Carpenters Local Union 2020

National Labor Relations Board - Board Decisions

Jun 14, 1976

224 N.L.R.B. 792 (N.L.R.B. 1976)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local Union 2020 , and San Diego
County District Council of Carpenters , AFL-CIO
(Solana Lumber Company ) and Michael Ralph
Bailey Case 21-CB-5330
June 14, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On February 19, 1976, Administrative Law Judge
Maurice M Miller issued the attached Decision in
this proceeding Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to General Counsel's excep-
tions
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
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders the complaint herein be, and it hereby is, dis-
missed in its entirety
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judge s resolutions with respect to credibih
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 ( 1950) enfd 188 F2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MAURICE M MILLER, Administrative Law Judge Upon a
charge filed June 18, 1975, and duly served, the General
Counsel of the National Labor Relations Board caused a
Complaint and Notice of Hearing dated August 13, 1975,
to be issued and served upon Carpenters Local Union 2020
and San Diego County District Council of Carpenters
AFL-CIO, designated as Respondent Unions within this
Decision Therein, Respondent Unions were charged with
the commission of unfair labor practices affecting com-
merce within the meaning of Section 8(b)(2) and (1)(A) of
the National Labor Relations Act, as amended 61 Stat
136, 73 Stat 519 Within Respondent Unions' duly filed
answer-modified in certain limited respects when this
case was heard-various factual statements within General
Counsel's Complaint have been conceded Respondent
Unions have, however, denied the commission of unfair
labor practices
Pursuant to notice, a hearing with respect to the issues
was held before me in San Diego, California, on October
21, 1975 The General Counsel and Respondent Unions
were represented by counsel Each party was afforded a
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues
Since the hearing's close, briefs have been received from
General Counsel's representative and Respondent Unions'
counsel, these have been duly considered
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent Unions raise no question, at this stage, with
respect to General Counsel's jurisdictional claims Upon
the Complaint's relevant factual declarations-specifically
those set forth in detail within the second paragraph there-
of-which Respondent Unions now concede as correct,
and upon which I rely I find that Solana Lumber Compa-
ny, the concerned Employer herein, was throughout the
period with which this case is concerned an employer with-
in the meaning of Section 2(2) of the Act, and engaged in
commerce and business operations which affect commerce
within the meaning of Section 2(6) and (7) of the statute
Further, with due regard for presently applicable jurisdic-
tional standards, I find assertion of the Board's jurisdiction
in this case warranted and necessary to effectuate statutory
objectives
II THE RESPONDENT UNION
Carpenters Local Union 2020 and San Diego County
District Council of Carpenters , AFL-CIO, designated as
Respondent Unions Local 2020 and District Council with
in this decision , are, and at all times material herein have
been , labor organizations within the meaning of Section
2(5) of the Act , as amended Throughout the period with
which this case is concerned , I find M N `Bud" Long,
Local 2020's financial secretary and District Council of
Carpenters business representative has functioned as Re-
spondent Unions' agent within the meaning of Section
2(13) of the statute
III THE UNFAIR LABOR PRACTICES CHARGED
A Issues
Section 8(b)(2) of the statute provides that it shall be an
unfair labor practice for a labor organization or its agents
224 NLRB No 113
CARPENTERS LOCAL UNION 2020 793
to cause or attempt to cause an employer to discriminate
against an employee in violation of Section 8(a)(3), or to
discriminate against an employee with respect to whom
membership in such organization has been denied or termi-
nated on some ground other than his failure to tender the
periodic dues and initiation fees normally required as a
condition for procuring or retaining membership
Herein, General Counsel contends substantially that Re-
spondent Unions violated Section 8(b)(2) when Local
2020's dispatcher, consistent with Financial Secretary
Long's purpose, refused to dispatch Michael Ralph Bailey,
complainant herein, for temporary work, pursuant to re-
quests for worker referral which Solana Lumber Company
had conveyed, because of his previous failure to maintain
union membership, that Respondent Unions had thereby
caused or attempted to cause discrimination by Solana di-
rected against Bailey for statutorily-proscribed reasons,
and that Respondent Unions course of conduct-thus de-
scribed-had restrained and coerced Bailey, with respect
to his exercise of rights statutorily guaranteed
Respondent Unions presently seek determinations, con-
trariwise, that Bailey's union membership had been 'law-
fully" suspended because of dues delinquency, that Gener-
al Counsel's claimed discriminatee had thereafter failed to
comply with Local 2020's dispatch procedures, that Local
2020 s dispatch list had not contained Bailey's name when
that organizations dispatcher was referring workers for
temporary Solana Lumber Company positions, and that
Bailey had not been dispatched for work with the firm
designated because Solana had not desired his referral
With matters in this posture, so Respondent Unions con
tend, they cannot legitimately be charged with statutory
violations
B Background
1 The Employer concerned
Throughout the period with which this case is con
cerned, Solana Lumber Company, a California corporation
(which will be designated Solana hereinafter), has main-
tained its principal place of business in Solana Beach, Cali-
fornia, some miles north of metropolitan San Diego, where
it manufactures and sells lumber, lumber components, and
related building materials
2 Respondent Unions and their relevant contracts
Currently, both Respondent Unions are privy to a mas
ter labor agreement with San Diego Lumber and Wood
Products Association, which they had negotiated for a 3-
year, 1974-1977, term Solana has also been considered
privy thereto because of Association membership
Respondent Unions have, further, negotiated a number
of comparable "lumber yard contracts which various San
Diego County firms, not bound by the master labor agree
ment previously noted, have separately signed These con-
tracts, likewise, provide for 3-year, 1974-1977, terms J A -
M A C Construction Company, headquartered in Nation-
al City, California, was, throughout the period with which
this case is concerned, privy to one such separate "lumber
yard" labor agreement
The master labor contract for these pattern "lumber
yard' contracts contain similar union security provisions
They require newly-hired workers to become Union mem-
bers "on or after the expiration of thirty-one continuous or
cumulative days of employment" and to maintain "mem-
bership in good standing" thereafter Inter aha, they pro-
vide, further, that employers privy thereto "shall notify the
Union of job vacancies" before new, additional, or replace-
ment workers may be hired, that such workers, before
starting work, shall "obtain from the Union office a refer-
ral slip" which must be presented to the requisitioning em
ployer or his representative Contractually bound firms
have however, been granted entire freedom of selectivity
of hiring" save for various commitments, which mutually
bind both Respondent Unions and their signatory firms,
that referrals will not be refused, nor referred workmen
rejected, because of certain specified discriminatory con-
siderations, provided that such workmen are sufficiently
`skilled and competent" to perform "efficiently" those
tasks for which they may have been requisitioned
3 Local 2020's referral procedure
To effectuate these contractual provisions, Local 2020
maintains a so-called Official Nondiscriminatory Employ-
ment List which qualified workmen who desire employ
ment within the local's trade jurisdiction may sign Such
workmen need not be union members In practice, workers
seeking a job referral may sign Local 2020 s list personally,
they may also telephone a request that their name be listed
The local s clerical workers, who normally take telephone
calls, generally comply with such "call in' requests
Lists are maintained weekly New list forms are normal-
ly prepared each Monday, when they are laid out for signa-
ture The lists maintained during previous weeks are regu-
larly retained, however These are used, together with the
current week's list, when workers are dispatched, with pref-
erence in referral given those workmen who have been list-
ed as seeking work for the longest period of time within a
2-month period Workers who may have missed registra-
tion, personally or by telephone, for I week, within the
2 month period which the dispatcher may consider, suffer
no penalty Further, Local 2020's dispatchers require no
specific showing before referrals are made that particular
workers considered qualified for referral have been listed
within the current week
Throughout the period with which this case is con-
cerned, Solana, consistently with its contractual commit-
ments, has routinely requested workmen whenever they
have been needed from Local 2020's hall, those requests
have been regularly communicated through telephone
calls Credible testimony proffered by Howard Snell,
Solana s components division manager, warrants a deter-
mination, which I make, that he has frequently requested
the names of qualified workmen currently listed for job
referrals, and that he has requested referrals of designated
workmen known to him
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 Bailey's work history
Michael Ralph Bailey, complainant herein, had previ-
ously worked for Solana during a 4 year, 1970-73, period,
Snell, so the record shows, had considered him a qualified
component builder Such workmen normally prefabricate
or construct modular wooden subassemblies, known as
truss configurations, for subsequent jobsite incorporation
within structures under construction During the year last
designated, however, Complainant had been discharged
for absenteeism, Solana's management, so Snell's credible
testimony shows, no longer considered him "eligible" for
permanent reemployment
During 1974 Bailey had worked for J A -M A C Con-
struction Company, for some 8 months before August
1974, he had held a foreman's position In that capacity, he
had been authorized to assign work, to permit early depar-
tures when workers reported illness, and to hire workers,
following conferences with his supervisor He had been
considered, inter aka, responsible for directing a 12-man
crew Following the conclusion of his period of conceded
supervisory service, Bailey remained in J A -M A C's hire,
he was then, however, merely a rank-and-file component
builder
Throughout this period, Bailey had retained his union
membership However, he did become a dues delinquent
On September 30, 1974, his union membership was sus-
pended, complainant had then failed to pay his union dues
for 3 months at least During November 1974, when he
tried to cure his dues delinquency with a $30 remittance,
complainant was notified that he had been suspended and
that Local 2020 declared that he would be required to re-
join as a new member His initiation fee, so he was told,
would be $210 plus $11 75 monthly dues, he was notified,
however, that his $30 remittance had been applied toward
his initiation fee
5 Bailey's loss of work
During February 1975, Bailey lost his J A -M A C com-
ponent builder's position, which he had then held for some
5 or 6 months, when that firm suffered a Government clo-
sure because of tax delinquencies
Following his J A -M A C layoff, however, Bailey re-
ceived a substantial termination check, together with his
vacation pay His testimony herein, proffered without con
tradiction, warrants a determination, which I make, that he
visited Local 2020's hall shortly thereafter, he told a secre-
tary there that he wished to get `squared away" with re-
spect to his financial obligations Complainant was ad-
vised, however, that he would not be required to satisfy
those financial obligations until he resumed work
Thereafter, during the 2 month period which followed,
Bailey registered for job referrals with Respondent Local
several times His name, so the record shows, was placed
on Local 2020 s so-called out-of-work list-sometimes fol-
lowing a personal visit to the Union's hall and sometimes
pursuant to his mere telephone request-both on March 6
and 27, 1975 Further, Bailey was likewise registered on
April 3 as still seeking work
During this period, so I find, Complainant had tele-
phoned Solana several times seeking work, when he could
not speak with Division Manager Snell directly, he left
messages My factual determination in this connection de-
rives from Snell's credible testimony When presented with
General Counsel's leading question, in this connection,
Bailey had first confirmed Snell's recital Then, following
Respondent Unions protest, when I requested him merely
to state "how many times" he had been 'in touch with
somebody at Solana" with regard to work during the two-
month period now in question, the Complainant had re-
plied, `Not at all " Subsequently, when queried by General
Counsels representative with regard to his contradictory
testimony, Bailey claimed that he had misconstrued my
question, he declared, then, that he had communicated
with Snell seeking a possible job some four or five times
With matters in this posture, I have not considered Bailey's
shifting testimony reliable
Sometime during the last week in April, complainant re-
portedly learned from a friend, Ralph Bhsh, currently in
Solana's hire, that some temporaryjob opportunities would
possibly be developing there Blish suggested that Bailey
would be well advised, therefore, to keep his name current
on Local 2020's dispatch list since Solana would probably
be seeking workers within a week
Bailey, when first questioned by General Counsel's rep-
resentative, declared that, thereafter, he had, consistent
with Bhsh s suggestion, telephoned Local 2020 during
April's last week with a request that his name be placed on
the Local's job referral list However, when produced for
review during hearing of this case, the Local's dispatch
lists, either for the full calendar week which began Mon-
day, April 21, or the week which began April 28 did not
contain complainants name The record reveals that
Bailey's name had previously been properly listed - with
telephone "call in" notations whenever relevant - consis-
tent with his March 6 and 26, and April 3 requests Noth-
ing herein suggests that Local 2020 s secretaries would
have failed or refused to list complainant's name, had a
telephone request for such listing indeed been received
during the last week of April Bailey, when questioned,
could not account for the fact that April 3 was shown as
his sole registration date during the month now under con
sideration With matters in their present posture, within my
view no determination would be warranted that Local
2020's clerical workers had deliberately or negligently
failed to record Bailey's name His testimony that he had
"called in" during April's penultimate or final week-with
a request that he then be listed for dispatch carries no per-
suasion
C Respondent Locals Failure To Refer Bailey
1 Solana's May 5 request for temporary workers
On Monday, May 5, 1975, Solana s components division
manager, Howard Snell, did telephone Local 2020's hall
CARPENTERS LOCAL UNION 2020
and spoke with Dorothy Sanchez, Respondent Local's of-
fice secretary Sanchez was requested to refer `three or
four or five" component builders
Snell, though clearly a neutral disinterested witness,
could provide nothing more than a generalized somewhat
confused recital with respect to his May 5 telephone call
First, he could not recall clearly whether he had telephoned
Local 2020 on May 5 or 6, and when prompted with a
calendar reference, he conceded finally that May 5 was
"probably" the correct date Secondly, he could not recall
whether Local 2020's secretary, when she responded, had
proceeded to name various workers qualified as compo
nent builders who were then listed for dispatch During his
direct testimony, however, Snell conceded that previously
he had "sometimes" been provided with the names of reg-
istered men and had requested workers by name Thirdly,
he testified "I believe I said I would take Bailey if he was
on the list " However, when queried subsequently with re-
spect to whether he had rather declared that he would
"even" take Bailey, Snell conceded that his statement
could have been phrased either way Respondent Local's
secretary did tell him, so he recalled, that Bailey was not
listed
Complainant herein, when summoned as General
Counsel's witness directly following Snell's testimony, de-
clared, categorically, that he, himself, had telephoned Lo-
cal 2020 sometime during the morning of May 5 with a
request for registration, he could not say, however, wheth-
er his "call in" request had preceded or followed Snell's
telephone contact, noted herein When given Respondent
Local's dispatch list, however, Bailey found no record with
respect to his purported May 5 registration, Local 2020's
record merely showed a subsequent May 7 registration,
which will be considered heremaf per Nevertheless, despite
his failure to locate his claimed May 5 registration Bailey
reiterated his prior testimony He declared that to the best
of [his] knowledge" he thought" he had telephoned Re-
spondent Local on Monday, May 5, he conceded, howev-
er, that he could not be positive In my view, based on this
record, Bailey's testimony with regard to his purported
May 5 registration must be rejected, the record, considered
in totality, warrants a determination which I make that he
was not currently listed for referral when Local 2020 s sec-
retary received Snell's dispatch request
While a witness, Solana's division manager was ques-
tioned further with regard to a telephone conversation with
complainant herein, which he testified had taken place
"sometime" during the period with which we are now con-
cerned Snell could not recall, however, whether he had
called Bailey or whether complainant had called him, nei-
ther could he recall, initially, whether they had conversed
`before or after" his [Snell's] request for component build-
ers When queried by General Counsel's representative,
Solana's division manager testified, finally, that Bailey had
called him following his [Snell's] telephone request for com-
ponent builders, that Bailey had, during their conversation,
reported a prior visit to Local 2020's hall, and that com-
plainant had, further, reported Respondent Local's refusal
to dispatch him because of his dues delinquency record
Subsequently, when queried by Respondent's counsel,
Snell could not recall the substance of his telephone con-
versation with Bailey, more particularly, he could not re-
795
list Bailey, when queried subsequently, proffered no cor-
roboration with respect to Snell's less than positive recol-
call whether complainant had reported that he was told his
name could not be found on Local 2020's current dispatch
lections, instead, he denied any telephone conversation on
May 5 with Solana's division manager
With matters in this posture, Snell's testimonial sugges
tion that his telephone conversation with Bailey could have
taken place on May 5, shortly following his conceded re-
quest for component builders, must be rejected While a
witness, Solana's division manager conceded that, since he
was then "running two plants' while "moving around" fre-
quently, he had not considered Bailey's telephone call par-
ticularly worthy of note
When summoned in Respondent Union's behalf, San-
chez conceded that she had received Snell's May 5 tele-
phone request She testified that Snell had then requested
her to designate, by name, various component builders reg-
istered on Local 2020's referral list, that she had, there-
upon, reviewed Respondent Local's current "out-of-work'
list, together with her file of retained April registration
lists, and that Solana's division manager had thereafter
been provided with ten names (which Sanchez specified for
the present record) from which he could freely designate
those whom he wished dispatched or those whom he might
wish referred for prehire consultation
Sanchez' procedure in this connection, so she testified,
comported with her past practice Previously, when Snell
had requested referrals, Local 2020's clerical staff had pro-
vided him with the names of those qualified workers who
were currently available, Snell had then designated those
whom he wished dispatched Respondent Local's person-
nel would telephone the workers designated, notifying
them that they were being dispatched The workers she
named, so Sanchez testified, had either personally or by
telephone previously registered for work on various dates
scattered throughout Respondent Local's retained April
dispatch lists Snell, when given their names, had rejected
some, however, he had requested Local 2020's secretary to
dispatch several of those designated Inter alia, Sanchez
had (so her proffered recollections show) reported Bailey s
resignation of April 3 When queried about Snell's reply,
Sanchez testified "He told me that he would consider
Mike Bailey if I didn't fill the order' Local 2020's secre-
tary was then questioned, without objection from General
Counsel's representative, with respect to whether Snell's
comment, within her view, meant that he would consider
Bailey's hire if she could not "fill [Solana's] order" with
other workers whose referral had been requested Sanchez
declared that she had thus construed Snell's remark
With due regard for Snell's pervasive failures of recollec-
tion, General Counsel's present contention in his brief that
Solana s division manager had specifically requested
Bailey's referral, cannot be considered, in my view, prepon
derantly sustained Rather, Sanchez' relevant testimony,
which General Counsel's witnesses have not persuasively
controverted and which I credit in this connection, war-
rants a determination, which I make, that Snell had de
Glared his willingness to merely consider" Bailey's hire,
such a tentative declaration reflects nothing more than his
conditional acquiescence with regard to Bailey s possible
referral
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Respondent Local's referrals
Within a period of 3 days-between Monday, May 5,
and Wednesday, May 7, specifically-five workers re-
ceived dispatch slips from Sanchez, pursuant to Snell's
prior indication that their referral would satisfy Solana's
requirements Three of those dispatched were subsequently
hired Gary Martinez, who had-so the record shows-
registered for dispatch on both April 21 and 28, was dis-
patched on May 5, he began work with Solana the follow-
ing day Ralph Ochesky and James Ramirez were dis
patched on May 5 and 6, respectively However, neither
seems to have worked for Solana thereafter, their dispatch
slips were subsequently voided Wayne Holt, who had, in-
ter aha, registered for work on April 14, was dispatched on
May 7, he began work that very day Frank Gonzalez who
had signed Local 2020's out-of-work list on both April 1
and 17, likewise received a May 7 dispatch slip, with the
following day shown as his starting date Shortly thereafter,
Sanchez referred a sixth worker, Manuel Canizales, who
was likewise hired The record provides no definitive date
with regard to his date of dispatch, Solana's payroll record,
however, reveals that, like Gonzalez, he began work on
Thursday, May 8, presumably pursuant to Local 2020's
prior referral
3 Bailey's registration for work
On Wednesday, May 7, as Local 2020's relevant records
show, Bailey finally registered for work However, his testi-
mony herein-particularly with regard to his method of
registration, and that registration's circumstantial con-
text-reflects a significant lack of certainty, further, with
respect thereto, Local 2020's business representative and
clerical dispatcher have proffered recollections which, tak-
en at face value, materially contradict Bailey's testimony as
a witness
a Bailey s testimony
When summoned as General Counsel's witness, Bailey
initially testified that sometime close to 10 15 on the morn-
ing of May 7, Snell had telephoned him, that Solana's diva
sion manager had then declared that his firm had tempo-
rary work which would last a month or more for three or
four people, and that he [Snell] had further declared he
wanted Bailey to come to work Complainant replied-so
he presently claims-that he would have to call Local
2020, that he would have to get "squared away" with that
organization, and that he would call Snell right back
Solana's division manager, testifying previously, had, how-
ever, recalled no such conversation I find Snell's complete
failure to corroborate Bailey's testimony, with respect to
this matter particularly, significant The record shows that
Solana's division manager, though concededly cognizant of
Bailey's previously manifested desire for work, did not
consider him personally "eligible' for permanent reem-
ployment Presumably though, he would have tolerated Lo-
cal 2020's referral of Bailey for temporary work, within my
view, he would hardly have been likely to suggest or solicit
his former subordinate's application
Due regard for the record, considered in totality, per-
suades me that Bailey's recollection, with particular refer-
ence to Snell's purported telephone call during the early
morning hours of May 7, merits rejection
However, sometime during the morning of May 7, pre-
sumably close to 10 30, Bailey, himself, did telephone Lo-
cal 2020's office Inter aha, he testified he spoke with Re-
spondent Local's financial secretary His proffered
recollections, with regard to their conversation, read as fol-
lows
I called him on the phone and told him I had a job
offer from Howard Snell And he said I could not go to
work because I was no longer a member of the Union,
and I had to start out at the bottom of the list and the
reason I was no longer a member was because of a
$2 50 strike fund [assessment] which I didn't pay
sometime in the middle of '74 [emphasis supplied]
During his direct testimony, Bailey mentioned nothing fur-
ther with regard to the course of this telephone conversa-
tion The record, however, reflects his subsequent conces-
sion that another subject was probably" covered and that
certain developments transpired, those developments will
be considered further hereinafter
Bailey testified that directly following his conversation
with Local 2020's financial secretary he telephoned
Solana's division manager, his testimony, with regard to
what Snell was told during their 10 44 a in conversation,
reads as follows
I told him that Bud [Long] would not let me go to
work because of my back dues and the strike fund and
that I would appreciate it if he called me again some-
time Maybe I would have things straightened out
According to Bailey, Solana's division manager gave no
indication during their May 7 conversation that Local 2020
had already dispatched several men-certainly four, and
possible five-pursuant to his prior request
Bailey testified that after his conversation with Snell,
Bailey promptly telephoned Long again, he notified Re-
spondent Local's financial secretary of his desire to "come
down and talk' with him Long concurred with
complainant's suggestion, commenting that he would show
him Local 2020's records
When Bailey, shortly thereafter, reached Respondent
Local's office, Long did, inter alga, show him his dues rec
ord That record, so credible testimony herein shows, re-
vealed that Bailey's last previous dues payment had been
made on June 21, 1974, his dues had been 3 months in
arrears, therefore, when he had received his September 30
suspension Bailey's further testimony with regard to their
conversation, summarized in relevant part, reads as fol-
lows
What I can remember he had my records open on top
of his desk, and we sat down at the desk, and he was
showing me in the records where I had not paid the
$2 50 strike fund and he told me I was three
months behind in my dues when I was suspended
from the union, and it wasn't because of the dues, it
was because of the strike fund That was his reasoning
for not sending me to Solana Lumber I offered to
CARPENTERS LOCAL UNION 2020 797
pay the strike fund and the initiation fee and all my
back dues , and he would not accept it He said he did
not want me in the union and that I should find an-
other profession He said he did not want me in
the union, and as I left, I signed the list, and he said he
would go back into weeks' list [sic] before he would
send me out on a job He would find someone else
before he would send me out [Emphasis supplied ]
When queried , further, by Respondent Unions' counsel,
Bailey reiterated his prior testimony that Long had re-
buffed his declared willingness to pay a new initiation fee
because he did not want complainant 's Local 2020 mem-
bership renewed Bailey was queried subsequently, howev-
er, with respect to whether it was possible that Long had
really proffered nothing more than a suggestion that he
would not be required to pay a new initiation fee or satisfy
any further financial obligations, that "all [he] had to do
was get [his] name" listed with Local 2020 for referral, and
that he could then be dispatched for work Confronted
with this formulation , complainant initially commented
that he did not "understand" counsel's question When
challenged further, however , Bailey declared that he could
not "remember" such remarks by Local 2020' s financial
secretary
b Long's testimony
With respect to Bailey's May 7 visit, however, Long's
proffered recollections provide a significantly disparate
picture Although Respondent Local's financial secretary
did initially concede a failure of recollection regarding the
precise date of Bailey's visit, he finally testified, with his
memory refreshed following a reference to Local 2020's
referral records, that Bailey had consulted him while San-
chez was still dispatching component builders pursuant to
Solana's request Respondent Local's records do show that
by May 7 three men had been dispatched while two more
had presumably been contacted preliminary to referrals
Long reported that when Bailey reached Local 2020's of-
fice he declared that he had some work prospects, presum-
ably with Solana, and that he desired a prompt referral
there, but that, despite a prior May 7 telephone conversa-
tion with Respondent Local's clerical personnel, he had
not been given a dispatch slip According to Respondent
Local s financial secretary, Bailey reiterated his desire to
go to work right then" that very day, but was told that he
would not be dispatched `ahead of the people previously
registered on Local 2020's regular employment list Fur
ther, Long reported that Respondent Local had already
dispatched some workers to Solana, that more were being
referred for "interviews" with Solana's division manager,
and that he "thought" those workers who had previously
been dispatched and/or referred would suffice to satisfy
Solana's requisition Further, Long, while a witness,
claimed that
[Bailey] offered me to pay a new initiation fee if I
would dispatch him to work, and I said no, and I re-
fused to take his money I told him to get on the out-
of-work list and wait his turn, and he would be dis-
patched in order I told him that we are dis-
patching people to Solana, and we have people re-
ferred out for interviews I figured that they was
sufficient I did say that I wouldn t dispatch him to
Solana at that time, to get on the list and wait his turn
These people were ahead of him
Previously that morning, when Local 2020's financial sec-
retary learned that Bailey would be coming to see him, he
concededly removed complainant's dues record card from
Respondent Local's file When Bailey arrived, Long had
that record on his desk During Bailey's visit, so Long's
testimony shows, the component builders dues delinquen-
cy and consequent September 30 suspension were re-
viewed Respondent Local's financial secretary claims he
reminded Bailey that he had been permitted to continue
working at J A -M A C Construction Company until that
firm's business operations were suspended, despite his Sep-
tember 30 suspension, that J A -M A C had in fact re-
tained him for a component builder's work, despite a so-
called "removal slip" which Local 2020 had sent that firm,
bottomed upon his dues delinquency, and that J A -
M A C 's regular trust fund contributions, bottomed upon
his continued employee status, had been routinely credited,
despite his suspension from membership Further, Long re-
called that Complainants failure to pay a strike fund as-
sessment, which had been levied upon Local 2020's mem-
bers, was mentioned
Concededly, however, Bailey was not dispatched pur-
suant to Solana's prior requisition His visit, which lasted
almost one hour, terminated without result so far as his
dispatch or proffers calculated to settle his financial obliga-
tions were concerned
c Respondent Local's out-of work list
Previously, within this decision, Bailey's direct testimony
that he signed Respondent Local's dispatch list personally,
directly following his May 7 conversation with Local
2020's financial secretary, has been noted When produced
for complainant's perusal, however, Respondent Local's
relevant employment" list concededly revealed his name,
recorded in someone else's handwriting, with a parentheti-
cal `Called In" notation Confronted therewith, Bailey fi-
nally testified as follows
I thought I signed the list when I left, but it was on the
list already It had been called in earlier that morning
By me Howard Snell had called me that
morning I had then called Bud Long on the phone I
probably had my name put on the list then I am
not sure if I said it that morning, but on the records it
shows that, that I did call in Well, I must have
called it in that morning when I talked to Bud earlier
[emphasis supplied]
On Respondent Local's May dispatch list, produced for the
record, Bailey's name stands eighth, within a group of 16
"out-of-work" registrants with May 7 registration dates
Sanchez' testimony, which I credit in this connection, re-
veals that Local 2020's office customarily opens for busi-
ness at 8 o'clock She thought the position of Bailey's name
on Respondent Local's dispatch list signified that his tele
phone call had `probably been received 1 hour later
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d Discussion
The testimonial conflicts herein between Bailey and Fi-
nancial Secretary Long present the central problem of this
case, their resolution, clearly, will be determinative
Considered in totality-with due regard for the logic of
probability, and those contributory factors which triers of
fact may properly and reasonably consider when making
credibility determinations-the present record, within my
view, will not support Baileys proffered version with re-
spect to these relevant May 7 developments
Previously, within this decision, part of his testimony,
with regard to Division Manager Snell's purported 10 15
telephone call, has specifically been rejected Further, his
testimony as a witness, when summoned as General
Counsel's witness, clearly reflects a significant failure of
recollection with respect to his "call in" registration for
work, during his first May 7 telephone contact with Local
2020's personnel When Bailey finally conceded, during
cross-examination, that he might have" requested regis-
tration, that he had "probably" done so, and that he "must
have called [his name] in" during his first telephone con-
versation with Respondent Local's clerical workers and fi-
nancial secretary, he was not questioned further with re-
gard to whether his registration request had preceded or
followed Long's purported declaration that he "could not
go to work" because he was no longer a Union member If
complainant's registration had, in reality, preceded the fi
nancial secretary's comment, his failure to mention that
registration, coupled with his failure to protest Long's pur-
ported declaration that his listing for dispatch would be
futile, seems inexplicable If, however, Bailey's request for
registration followed the financial secretary's dictum, his
determination to register nevertheless, despite the fact that
he had presumptively been given reason to believe such
registration would be futile, cannot readily be rationalized
Further, his subsequent failure to recall a work registration,
possibly requested under such circumstances, necessarily
generates doubt with respect to his testimony's reliability
generally
Finally, Bailey's direct testimony that he personally
signed Local 2020's so-called employment list directly fol-
lowing a conversation with Financial Secretary Long dur
mg which he had been told that his renewed Union mem
bership was no longer desired, that he should find another
profession, and that Respondent Local's list would be
searched for "someone else" who could be dispatched for
available work before he would be referred, strains creduh
ty Though complainant, when confronted with Respon-
dent Local's documentary record, subsequently retracted
part of his testimony-particularly with reference to his
purported personal registration for work during the course
of his Local 2020 visit-his proffered recollections, taken
at face value, would suggest a disposition to pursue futile
gestures Rather than credit Bailey with such less-than-rea-
sonable behavior, I conclude that his testimony as a wit-
ness derives from memories which have been colored by
post hoc rationalization rather than verifiable recollections
With Bailey's testimony thus discounted, Financial Sec-
retary Long's generally contradictory recital-particularly
with reference to their conversation's tenor, which San-
chez, testifying in relevant part, corroborated- remains
Though his witness chair behavior reflected some lack of
certainty, with respect to various details, I find myself con-
strained to generally credit his proffered recollections
8 Subsequent developments
Within a week following his failure to procure a Solana
Lumber referral, Bailey again visited Respondent Local's
office and renewed his prior registration for work Local
2020's so-called employment list shows his May 13 registra-
tion, though Bailey could not recall with certainty whether
he had then signed the list in question personally Sanchez
testified credibly that no Local 2020 clerical worker had
subscribed his name Thereafter, complainant twice re-
newed his registration, on May 21 and 27, with telephone
"call in" requests
Sometime in July 1975, Bud Blish, Local 2020's Solana
shop steward, notified Bailey that a foreman's position
might soon be open" with that firm Complainant confer
red thereupon with Respondent Local's financial secretary
His testimony with regard to their conversation-proffered
without challenge or contradiction-reads as follows
I think I checked into the Union with Mr Long if he
would send me out as a foreman if Solana had called
for a foreman's job He said he would if he had
a call for a foreman If there wasn't anyone on
the list [ahead of me] [in the foreman classification] he
would send me out
Snell, Solana s division manager, subsequently told Bailey,
however, that Solana s current employees were then per-
forming "lead man" functions and that he (complainant)
therefore would not be hired for a leadman's or foreman's
position
During the month which followed, Bailey was dis-
patched for work with the Dixie Line Lumber Company,
then a signatory party bound by Respondent Unions' pat-
tern "lumber yard" contract, previously noted Since pro-
curing his present position, Complainant has completed his
initiation fee payments which Respondent Local requires,
likewise, he is currently "squared away' with respect to
dues payments However, when this case was heard, he had
not yet been "sworn in" formally as Respondent Local's
member
D Conclusions
Upon this record, no Board determination that Bailey
was improperly denied dispatch can reasonably be consid-
ered warranted General Counsel's presentation, consisting
of Bailey s less-than-coherent testimony and Snell's less
than-positive corroborations, carries no persuasion My
conclusion rests upon several grounds
First The documentary record precludes a determina-
tion, consistent with Bailey's testimony, that when Respon-
dent Local received Solana's call for three or four or five
temporary workers he [complainant] was currently regis-
tered for dispatch Nor will it sustain a determination that
SOLANA LUMBER COMPANY 799
he had previously been recently registered True, Respon-
dent Local's retained employment list reflected his April 3
registration, that "call in" listing, however, had never been
renewed prior to, or contemporaneously with, Snell's May
5 requisition Several workers qualified as component
builders had, however, registered for work, and had there-
after renewed their registrations between April 3 and May
5
Second Snell's qualified testimony, within my view, pro-
vides no preponderantly sufficient warrant for a determi-
nation that Bailey's referral had been specifically request-
ed Previously herein Sanchez' testimony with regard to
their May 5 telephone conversation has been noted While
a witness she declared without qualification that Solaria's
division manager had been provided with some 10 workers'
names, taken from Local 2020's April-May employment
lists She recalled he had rejected some of those mentioned
but had suggested that others could be dispatched or re-
ferred for job interviews With respect to Sanchez testimo-
ny in this connection, Snell conceded a failure of recollec-
tion, he could not proffer a categorical denial
Respondent's secretary, while a witness, reported that
Bailey's April 3 registration had, inter alga, been mentioned
when she was listing Respondent Local s referrable work
ers for Solana's division manager Before Sanchez testified,
Snell had declared, while a witness, his "belief" that when
he declared he would take Bailey, should the latter be reg-
istered, he was told complainant was not listed I am satis-
fied, however, that while Snell may have been told Bailey
was not currently listed, he was notified, inter aha, with
respect to complainant's previous April 3 registration The
record, considered in totality, warrants a determination,
bottomed upon Sanchez' testimony-which I have found
within its total context worthy of credence-that Solana's
division manager had, thereupon, merely declared his will-
ingness to consider Bailey's hire That declaration can
hardly be considered a straightforward request for Bailey's
prompt referral
Third General Counsel's presentation herein, within my
view, warrants no determination that Bailey, despite his
failure to register for work between April 3 and May 7,
should nevertheless have been considered a prime candi-
date for dispatch Three workers whom Sanchez did dis-
patch-Martinez, Holt and Gonzalez-had been registered
with Respondent Local subsequent to Bailey's April 3 reg-
istration Complainant had, however, maintained no com-
parable Local 2020 contacts
Previously, within this decision, Respondent Local's
preparation of dispatch slips for two more workers, Ralph
Ochesky and James Ramirez-has been noted Possibly,
Bailey could have been deemed "eligible" for prior referral
With respect to Ochesky, however, Local 2020's current
employment list revealed a May 5 telephone registration,
his dispatch slip bore the same date, and he had been regis-
tered, previously within the month, on April 21 With re-
spect to Ramirez, Respondent Local's record does show a
May 7 telephone registration subsequent to Bailey's re-
quest for listing He (Ramirez) had, however, been given a
dispatch slip previously on May 6 With due regard for
Sanchez' testimony-wherein she described without chal-
lenge or contradiction Local 2020's customary dispatch
procedures-I have concluded that Ramirez must have
been dispatched, like Ochesky before him, because Re-
spondent Local s retained "out-of-work" list reflected his
prior registration sometime within the last 2 weeks of April
Certainly, General Counsel's representative, though given
a chance freely to review Local 2020's complete April-
May referral list, has made no showing whatsoever which
would warrant a contrary determination Further, he has
proffered no contention, herein, that Bailey's lone month-
old registration had been disregarded for some statutorily
proscribed reason, when Ochesky and Ramirez were being
given their dispatch slips True, Respondent Local's rec-
ords show that Manuel Canizales received a Friday, May 9
dispatch slip, subsequent to Bailey's May 7 registration,
which bore a notation that he would be starting work three
days later Solana's payroll records however, show Thurs-
day, May 8 as Canizales' first working day Thus, whatever
the circumstances may have been which precipitated his
dispatch slip's belated preparation, I conclude that Cani-
zales must have been notified with regard to his May 8
starting date through some prior telephone contact Gener-
al Counsels representative has made no showing which
would call for a contrary conclusion Considered in totali-
ty, therefore, his presentation provides no substantial basis
for a determination that Bailey should have been properly
considered "eligible" for prior dispatch
Fourth General Counsel's presentation, with respect to
Bailey's May 7 Union contacts, provides no persuasive
warrant within my view for a determination that he was
being denied dispatch because of his prior financial delin-
quencies, or because of his consequent suspension from
Union membership True, when Complainant finally did
visit Local 2020's hall, Financial Secretary Long was de-
termined to review, then and there, his failure to satisfy a
strike fund assessment previously levied, together with his
dues delinquency record Within its total context, however,
Bailey's further testimony with regard to their conversa
tion-that Long refused his request for dispatch, specifical-
ly because of his prior defaults and consequent suspension,
while rejecting his promptly vouchsafed declaration of will-
ingness to satisfy, forthwith, Respondent Local's various
financial requirements-has been rejected I am satisfied,
of course, that Bailey was told during his conversation with
Respondent Local's financial secretary, that he would not
be dispatched And, he may very well have declared his
willingness, thereupon, to pay Local 2020's regular initia-
tion fee, dues, and strike fund assessment, with the hope
that he could, thereby, procure dispatch Testimony which
I have credited, however, warrants a determination, within
my view, that Long's refusal to direct Bailey's dispatch de-
rived, not from statutorily proscribed considerations, but
from his reasonably based belief that Solana's requisition
had already been satisfied or that it would be satisfied with
qualified workers who had previously been referred
In this connection some reference should be made to
Respondent Local's subsequently demonstrated readiness
to list Bailey for possible work referrals Throughout the
month his successive weekly registrations, whether by tele-
phone or personal visit, were recorded without question
During July 1975, he was promised dispatch for a possible
supervisory position should Local 2020 be requested to re-
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fer someone for such work and should there be no quali-
fied workers registered "ahead of him" with prior referral
rights Later, during August, Bailey was dispatched for
work with the Dixie Line Lumber Company When this
case was heard, he was still working there Concededly,
Financial Secretary Long's July declaration that Bailey
could conceivably be dispatched for a supervisory position
followed the service of his (Bailey's) June 18 unfair labor
practice charge, filed herein Nevertheless , the financial
secretary 's course of conduct, within my view, provides
some collateral support , however slight , for a determina-
tion that complainant herein was never really disfavored
for dispatch because of statutorily proscribed consider-
ations
2(2) of the Act, engaged in commerce and business activi-
ties which affect commerce within the meaning of Section
;(6) and (7) of the Act, as amended
2 General Counsel has not , herein, produced substan-
tial, reliable , or probative evidence sufficient to justify a
determination that Respondent Union refused to dispatch
Bailey for available work which he was qualified to per-
form because of statutorily proscribed considerations
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, as amended , I hereby issue the following recommend-
ed
ORDER'
CONCLUSIONS OF LAW
1 Solana Lumber Company, the business enterprise
with which Michael Ralph Bailey hoped to find work dur-
ing the period with which this case is concerned , was then,
and remains , an employer within the meaning of Section
The complaint is dismissed in its entirety
1 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