Electrical Workers IBEW Local 617 (Greyhound Services)

National Labor Relations Board - Board Decisions

Oct 22, 1992

309 N.L.R.B. 314 (N.L.R.B. 1992)

314
309 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We note that the judge did not discuss Charging Party Davoli’s
testimony that on May 18, 1990, he was present when the Respond-
ent’s dispatcher (Dean) played back the tape on the telephone an-
swering machine, and that Davoli heard a voice say ‘‘I’m reconfirm-
ing my call for the show from the night before.’’ Davoli claims that
the Respondent violated the Act by failing and refusing to refer him
for employment to this job. Dean’s testimony, which acknowledges
Davoli’s presence, was that this was not a request that came in for
that day, but a request from several days earlier, which had already
been filled. The judge credited Dean’s explanation for the message
overheard by Davoli, thereby indicating that the judge sub silencio
considered and rejected Davoli’s testimony to the extent that it was
in conflict with Dean’s explanation.
1 In its answer to the complaint Respondent admits that the Em-
ployer meets the Board’s applicable discretionary jurisdictional
standard and is an employer engaged in commerce within the mean-
ing of Sec. 2(6) and (7) of the Act, and that Respondent is a labor
organization within the meaning of Sec. 2(5) of the Act. I therefore
find it will effectuate the policies of the Act for the Board to assert
its jurisdiction herein.
2 All dates hereinafter, unless otherwise specified, refer to the year
1990.
International Brotherhood of Electrical Workers,
Local 617 (Greyhound Exposition Services,
Inc.) and Louis E. Davoli. Case 20–CB–8524
October 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 7, 1992, Administrative Law Judge Jerrold
H. Shapiro issued the attached decision. The Charging
Party filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Mary Vail and Leticia Pena, for the General Counsel.
Joseph Hogan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which a hearing was held on January 30,
1992, is based on an unfair labor practice charge filed on
November 9, 1990, and an amended charge filed on January
4, 1991, by Louis E. Davoli (Davoli), and on a complaint
issued on December 31, 1990, on behalf of the General
Counsel of the National Labor Relations Board (Board), by
the Board’s Regional Director for Region 20, alleging, as
amended at the hearing, that the International Brotherhood of
Electrical Workers, Local 617 (Respondent) has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) and (2) of the National Labor Relations
Act (Act).
The complaint alleges that the Respondent is the sole and
exclusive source of referrals of employees who perform cer-
tain work for Greyhound Exposition Services, Inc. (Em-
ployer), and that, in violation of Section 8(b)(1)(A) and (2)
of the Act, on May 18, 1990, Respondent failed and refused
to refer employees, including Davoli, to the Employer and
engaged in this conduct ‘‘for arbitrary and capricious reasons
and for reasons other than the employees’ failure to tender
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership in Respond-
ent.’’ Respondent filed an answer denying the commission of
the alleged unfair labor practices.1
On the entire record, and from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Evidence
The Employer prepares, installs, and dismantles employ-
ers’ trade shows, exhibitions, and convention sites in the
States of California, Nevada, Washington, and Arizona. Dur-
ing a 3- or 4-week period in April and May 1990,2 the Em-
ployer installed the Semicon trade show at the San Mateo
Fairgrounds, located in the county of San Mateo, California.
The Semicon trade show involved employers in the business
of manufacturing, testing, and assembling computer products.
It was scheduled to open for the public on May 22. The Em-
ployer was required to complete the installation of the show
no later than May 20.
Respondent, whose geographical jurisdiction encompasses
the county of San Mateo, California, is a labor organization
whose members are employed as electricians. Respondent
maintains a hiring hall to fulfill its contractual obligations to
supply employers with electricians for jobs within Respond-
ent’s geographical jurisdiction.
The Employer, by virtue of membership in the National
Electrical Contractors Association (NECA) or by having
signed a letter of assent, during the time material was obli-
gated to abide by the terms of a collective-bargaining agree-
ment, known as the Inside Agreement, between Respondent
and the San Mateo Chapter of NECA.
The Inside Agreement obligated the Employer to use the
Respondent’s hiring hall when it employed employees to per-
form electrical installation work in San Mateo County. The
agreement, in this respect, provided, ‘‘the [Respondent] shall
be the sole and exclusive source of referrals of applicants for
employment.’’ The agreement also required Respondent to
315ELECTRICAL WORKERS IBEW LOCAL 617 (GREYHOUND SERVICES)
3 Dean, a witness for Respondent, was not questioned about the
above-described May 7 conversation.
register job applicants on out-of-work lists, and then refer the
applicants on those lists on a first-in, first-out basis. If Re-
spondent could not fill a job request within 48 hours, the re-
questing contractor had the right to find workers on its own.
The agreement did not provide for any other relevant method
of making referrals.
During the time material, Respondent’s hiring hall dis-
patched applicants Monday through Friday at 8 a.m. The ap-
plicants that were registered on the hall’s out-of-work lists
had to be present at the hall to be dispatched.
Respondent requires an employer to notify Respondent of
its request for applicants no later than 8 a.m. on the date for
which the request is being made. The usual practice is for
an employer to telephone Respondent’s hiring hall during the
Respondent’s normal business hours (8 a.m. to 5 p.m.), the
day before the employer wants the workers dispatched to the
job. But, sometimes an employer phones its request after nor-
mal business hours, at which time the employer reaches a
tape recorder which is activated each day during those hours
Respondent is not open for business. The employers infre-
quently use this tape recorder to leave messages requesting
that Respondent refer applicants to jobs. It is used by em-
ployers mainly to cancel previous requests for workers and
when, during the evening, employers discover for the first
time they need workers for the next day.
It is undisputed that prior to the time material herein, there
were times when employers used the recorder to place orders
for employees and the recorder failed to record the orders.
As a result, it is also undisputed, Respondent’s hiring hall
dispatcher normally cautioned employers who used the re-
corder that it was not a reliable method for requesting refer-
rals from the hall (Tr. 114, LL. 5–13).
John Lloyd, the Employer’s electrical supervisor on the
Semicon job, was responsible for hiring the workers who
performed the electrical installation work. He testified he
telephoned Respondent’s hiring hall to request workers on
approximately five different occasions during the approxi-
mately 3 or 4 weeks the Semicon job was in progress, and
that on May 4, 17, and May 18, he phoned the hall during
nonbusiness hours and left his requests on the Respondent’s
recorder. It was only on May 4 and May 17–18, when he
used the recorder to request workers, that Lloyd testified he
ever had problems having Respondent comply with his re-
quests for workers.
Lloyd testified that on Friday, May 4, sometime after 5
p.m., he telephoned Respondent’s hiring hall and left a mes-
sage on the recorder requesting Respondent to dispatch two
workers to the Semicon job on Monday, May 7. He testified
when the two workers did not arrive at the jobsite by 9 a.m.
on May 7, he telephoned Respondent’s hiring hall dispatcher
Donald Dean and told him he had left the above-message on
the recorder, and further testified that Dean replied by stating
he had played back the recorder and what was on the re-
corder was unintelligible, and explained to Lloyd Respondent
had been having trouble with the recorder. Lloyd also testi-
fied that the result was that his May 4 request that two work-
ers be dispatched to the jobsite on May 7 was not complied
with and it was only after he renewed this request on May
7 that Respondent on May 8 dispatched the two workers to
the jobsite.3
Louis Davoli, the Charging Party, testified that on May 7,
while in Respondent’s hiring hall, just before the 8 a.m. dis-
patch, he observed dispatcher Dean play back the recorder
and heard Lloyd’s voice on the recorder say, ‘‘I’m putting
in a call, short call, for one man at the Semicon show.’’
Davoli also testified Dean played back Lloyd’s message for
Respondent’s Business Manager Joseph Hogan and that Dean
asked Hogan what he wanted him to do with the request, and
Hogan answered ‘‘they’re playing games, we’ll put it upon
the board tomorrow.’’
Neither Dean nor Hogan, who testified for Respondent,
were questioned about Davoli’s above-described testimony.
Nonetheless, I reject it for these reasons: Davoli’s testimonial
demeanor—his tone of voice and the way he looked and
acted while on the witness stand—was poor; Davoli’s testi-
mony was inconsistent with Lloyd’s testimony that Lloyd left
a message on the recorder for two, not one, workers to be
dispatched; and, Davoli’s testimony is implausible inasmuch
as there is nothing whatsoever in the record to suggest why
Hogan would have concluded that Lloyd was ‘‘playing
games’’ with Respondent by using the recorder on May 4 to
request Respondent to dispatch workers, or to suggest why
Hogan on May 7 would be unhappy because of Lloyd’s use
of the recorder to request workers. Moreover, there is noth-
ing whatsoever in the record which would suggest why, if
in fact Respondent had received a recorded message that
Lloyd wanted two men dispatched on May 7, it would not
have promptly complied with that request, especially since
the Respondent’s dispatch records show that on May 7 it dis-
patched six workers to the Semicon jobsite pursuant to the
Employer’s request. There is nothing in the record to suggest
why Respondent on May 7 would not have dispatched two
more workers, if in fact by the time of the 8 a.m. dispatch
it had received Lloyd’s recorded message.
On May 16 the Employer laid off two of its electrical in-
stallers—Don Guabello and Richard Larson—because it
thought their work performance had not been satisfactory.
On May 16, after being laid off, Guabello and Larson
went to the Respondent’s hiring hall and spoke to Paul
Regnier, Respondent’s assistant business representative and
assistant dispatcher. They stated they believed the Employer
had laid them off, but had not given them termination slips,
and Guabello questioned why he had been terminated as he
stated he thought he was a very good mechanic. They asked
what Regnier could do about the matter? Regnier asked if
they wanted to file a grievance, and they answered in the
negative and indicated, in substance, they wanted him to de-
termine why they had been laid off since they had not been
given termination slips giving the reason for their layoff.
They also informed Regnier they thought their layoff might
have been a mistake (oversight).
Subsequently, Regnier went to the Semicon jobsite where
he spoke to Lloyd about Guabello’s and Larson’s termi-
nations. He asked why they had been terminated? Lloyd in-
formed him, in substance, that their work had been unsatis-
factory, so it had been decided to lay them off and they were
not eligible for rehire. Regnier asked why, if they had been
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The significance of the date is that on the morning of May 17
Respondent dispatched several workers to the Employer at the
Semicon jobsite.
5 Earlier that morning a friend of Davoli employed by the Em-
ployer on the Semicon job telephoned him and, according to
Davoli’s testimony, told him there were going to be ‘‘five’’ ‘‘short
calls’’ for the Semicon job that morning.
6 On May 18 Regnier was away from Respondent’s hiring hall on
several different occasions, starting at 7:45 a.m. and at various other
times throughout the day, on a series of errands.
terminated, they had not been given termination slips. Lloyd
replied the Employer did not have any termination slips, at
which point Regnier made a note to bring some blank termi-
nation slips to the Employer. Regnier then asked to meet
with the foreman who supervised Guabello’s and Larson’s
work, and Lloyd introduced him to Foreman Bill Green, and
left. Green showed Regnier the work Guabello and Larson
had done and, in response to Regnier’s inquiries, indicated
that Larson had loafed on the job, whereas Guabello had
tried to be productive. Regnier left Green and rejoined Lloyd.
He asked Lloyd whether the Employer would consider rehir-
ing Guabello and Larson? He pointed out to Lloyd that since
Guabello and Larson had not been issued termination slips,
they did not know whether they were fired, laid off, or eligi-
ble for rehire, that they just knew they were no longer em-
ployed by the Employer, and that Guabello felt he had been
treated unfairly. Lloyd answered the Employer would not
agree to rehire them and, when Regnier asked if the Em-
ployer would agree to rehire one of them, Lloyd answered
in the negative, and this ended the conversation.
Immediately after his above-described conversations with
Lloyd and Green about Guabello’s and Larson’s termi-
nations, Regnier returned to Respondent’s hiring hall, where
he got 25 blank termination slips and, it is undisputed, re-
turned later that same day to the jobsite where he gave the
termination slips to Lloyd.
Lloyd and Regnier testified about Regnier’s above-de-
scribed visit to the jobsite concerning Guabello’s and
Larson’s terminations. They did not contradict one another
when they testified about what occurred on that occasion.
The above description of what occurred on that occasion is
based on a composite of their testimony. In dispute, however,
is the date on which Regnier’s visit took place. Regnier testi-
fied it took place on May 16, whereas Lloyd testified it took
place during the afternoon of May 17.4 I have not resolved
this conflict because I believe its resolution would not effect
the outcome of this case.
On May 17, at approximately 5:45 p.m., Lloyd telephoned
Respondent’s hiring hall and left a message on the recorder
identifying himself and requesting that Respondent dispatch
eight workers on a ‘‘short call,’’ referring to a job of 5 days
or less, to the Employer at the Semicon job the next morn-
ing, May 18. The next morning, May 18, when Lloyd arrived
at work he again telephoned the Respondent’s hiring hall at
approximately 7:15 a.m. and left the same message on the
recorder that he had placed the previous night.
On May 18 there were between 6 and 10 out-of-work
members of Respondent, including Davoli, present in the Re-
spondent’s hiring hall at 8 a.m. for that day’s dispatch.
Davoli was registered on the out-of-work list. Dean informed
them there were no jobs available. Davoli asked where the
‘‘calls’’ were for the Semicon job? Dean answered, there had
been no request for workers by the Employer for the
Semicon job. Davoli told Dean he intended to go the
Semicon jobsite to find out what was going on because ear-
lier that morning someone had told him there was going to
be ‘‘calls’’ for the Semicon job.5 Dean repeated there had
been no ‘‘calls’’ for that job.
On May 18, when the eight workers Lloyd had requested
did not arrive at the jobsite by 9 a.m., he telephoned Re-
spondent’s hiring hall and asked the secretary who answered
the telephone to speak to Dean. He was informed that neither
Dean nor any of the other business representatives were
present and that none of them were expected back until the
afternoon. Lloyd stated he had placed a call for workers on
the recorder and asked if the workers had been dispatched
or if the secretary knew anything about the matter. The sec-
retary replied she knew nothing about the matter.
Shortly thereafter, during the morning of May 18, Davoli
visited the Semicon jobsite and was informed by Lloyd,
among other things, that Lloyd in fact had placed a call with
Respondent the night before for workers to be dispatched to
the job that morning. Davoli then returned to Respondent’s
hiring hall and asked to speak to Dean, who was out of the
office, so he confronted Regnier with what Lloyd had told
him. Davoli was very upset and was yelling. He told
Regnier, in substance, that the Employer had in fact placed
a call with Respondent’s hiring hall for workers to be dis-
patched to the Semicon job that morning. Regnier responded
by stating, in substance, that to his knowledge the Employer
had not placed such a call.
Immediately after his conversation with Davoli, Regnier
left Respondent’s hiring hall for a previously scheduled busi-
ness appointment.6 On his way to his appointment he tele-
phoned the Employer’s number at the Semicon jobsite and
got no answer and later that morning at the conclusion of his
appointment again unsuccessfully tried to reach someone at
the Employer’s jobsite phone number.
On May 18 Dean left Respondent’s hiring hall at approxi-
mately 8:15 a.m. and did not return until the later part of the
afternoon. Upon his return, he found messages on his desk
stating that both Lloyd and Norm Yaharis, the Employer’s
vice-president of electrical services, had called. Dean at this
time dialed the Employer’s jobsite number and his call was
answered by Yaharis. Dean asked if there was any problem?
Yaharis stated, the Employer wanted workers and the Re-
spondent had not sent it any. Dean stated that if the Em-
ployer was in a bind, Respondent could try to get the Em-
ployer some workers. Yaharis told Dean to go to ‘‘hell’’ and
stated the Employer intended to ‘‘take care of [Respondent’s]
jurisdiction the best way we can.’’
Later that afternoon, not long after Dean’s conversation
with Yaharis, Regnier received a telephone call from one of
Respondent’s members employed by the Employer on the
Semicon job, stating there were some workers doing elec-
trical work for the Employer whom he did not recognize and
asked if Respondent could send someone to the jobsite to in-
vestigate. Regnier immediately went to the jobsite, where he
discovered three persons doing electrical work for the Em-
ployer who had not been referred to the job by Respondent
and were members of Local 6, one of Respondent’s sister
317ELECTRICAL WORKERS IBEW LOCAL 617 (GREYHOUND SERVICES)
7 Respondent’s dispatch records establish it dispatched six workers
to the Employer’s Semicon job on May 7.
local unions. Regnier asked Lloyd what they were doing
working on the job? Lloyd answered they were there because
he had a job to run and explained he had requested Respond-
ent to dispatch workers to the job for that day, but Respond-
ent had not complied with his request. Regnier stated that to
his knowledge there had been no request made by the Em-
ployer for Respondent to dispatch workers on May 18 to the
job. Lloyd asked if Regnier could dispatch some people to
the job and Regnier stated that if Lloyd wanted workers to
be dispatched he would have to contact Respondent’s hiring
hall.
The unfair labor practice charge in this case was not filed
by Davoli until November 9 and there is no evidence that
prior to that date Respondent had any indication that either
Davoli, or another hiring hall registrant, or the Employer in-
tended to take action, legal or otherwise, against Respondent
because of Respondent’s failure to dispatch workers to the
Employer on May 18.
On August 30 the Respondent’s Business Manager, Joseph
Hogan, sent to all of the employers, including the Employer,
who were obligated to abide by the Inside Agreement, the
following letter:
Local Union 617 who is the source of referrals for
employment in the San Mateo County Electrical Con-
struction Industry has encountered some misunderstand-
ing regarding requests for Electricians.
To resolve any questions regarding this matter and
eliminate any further controversy the following proce-
dure will be followed. Employer requests for the refer-
ral of electricians are to be placed on the previous regu-
lar work day during the hours of 8:00 AM and 5:00
P.M. Requests at other times placed on the tape re-
corder will not be considered.
We are sorry for any inconvenience this may cause
your firm but we feel a responsibility to insure the trust
and integrity of the referral system and to eliminate any
question of doubt regarding job opportunities real or
imagined in the future.
Hogan testified that subsequent to May 18 various of the
Employer’s officials continued to indicate that they were
upset over what had occurred on May 18 and, in effect, ac-
cused the Respondent of deliberately ignoring the Employ-
er’s request that workers be dispatched on May 18 to the
Semicon job. Hogan testified these accusations disturbed him
and to make sure that such a situation could never occur
again he sent his August 30 letter to all the contractors cov-
ered by the Inside Agreement.
B. Discussion and Conclusions
It is well established that, as the operator of an exclusive
hiring hall, the Respondent owes a duty of fair representation
to applicants using the hall. See Breininger v. Sheet Metal
Workers Local 6, 493 U.S. 67 (1989). As part of its duty of
fair representation, the Respondent has an obligation to oper-
ate the exclusive hiring hall in a manner that is not arbitrary,
or discriminatory, inasmuch as the Act prohibits a labor or-
ganization from adversely affecting the employment status of
someone it represents for discriminatory, arbitrary or irrele-
vant reasons. Miranda Fuel Co., 140 NLRB 181, 184–188
(1962).
The complaint herein alleges that Respondent’s failure to
refer applicants to the Employer on May 18, violated Section
8(b)(1)(A) and (2) of the Act because Respondent engaged
in this conduct ‘‘for arbitrary and capricious reasons.’’ The
theory of the complaint, as explained by counsel for the Gen-
eral Counsel at the start of the hearing, is that Respondent
acted arbitrarily and capriciously on May 18, when it failed
to refer applicants to the Employer because its failure to refer
the applicants requested by the Employer was motivated by
Respondent’s animus toward the Employer for having termi-
nated two of Respondent’s employee members on May 16
and refusing Respondent’s request that they be reinstated. I
am of the opinion, as contended by Respondent, that Re-
spondent’s failure on May 18 to refer applicants to the Em-
ployer had nothing whatsoever to do with the Employer’s
termination and refusal to reinstate Respondent’s employee
members, but resulted solely from Respondent’s failure to re-
ceive the Employer’s request for the applicants due to a mal-
function of the Respondent’s telephone message recorder. It
is for this reason that I shall recommend the complaint be
dismissed.
The Employer’s request that Respondent refer eight appli-
cants to the Employer’s Semicon job on May 18 was made
in the form of a verbal message placed on Respondent’s tele-
phone message recorder. Paul Dean, Respondent’s hiring hall
dispatcher, testified he did not receive this message because
Respondent’s telephone message recorder had malfunctioned
during the time period when the message was left. Dean also
testified that the malfunction of the recorder caused Respond-
ent to fail to receive one other message; a message from a
contractor stating the contractor wanted a business represent-
ative to visit the contractor’s jobsite on May 18. Dean im-
pressed me demeanorwise as an honest and reliable witness.
I considered that when Dean came to work on May 18 and
played back the telephone message recorder, he played back
a message containing a request for applicants made by
Lloyd, the Employer’s electrical installation supervisor. I
credit Dean’s testimony that this message was a request for
workers made by Lloyd on the evening of May 16 for the
morning of May 17, which due to the subsequent malfunc-
tion of the recorder still remained on the recorder on May
18. I recognize Lloyd testified in effect that the only occa-
sions on which he used the Respondent’s telephone message
recorder to request workers was on May 4, May 17 and May
18. I have credited Dean’s testimony concerning this matter
because Dean’s testimonial demeanor—his tone of voice and
the way he looked and acted while on the witness stand—
was excellent. I am also convinced that just as Lloyd erred
when he testified to the effect that Respondent failed to dis-
patch any applicants to the Semicon job on May 7,7 that he
likewise erred when he testified the only times he used the
Respondent’s telephone message recorder were on May 4
and May 17–18.
Dean’s testimony that Respondent’s hiring hall did not re-
ceive the Employer’s May 17–18 messages for applicants to
be referred to the Semicon job on May 18, because Respond-
ent’s telephone message recorder malfunctioned, is supported
by the fact that Respondent’s telephone message recorder
had occasionally malfunctioned previously, resulting in Re-
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I am extremely doubtful whether there is sufficient evidence to
make a prima facie showing that Respondent, as contended by the
General Counsel, was angry at the Employer for terminating and re-
fusing to reinstate two of the Respondent’s employee members and
that it was this animosity which was a motivating factor for Re-
spondent’s failure on May 18 to refer applicants to the Employer.
As described in detail supra, there is no evidence—direct or cir-
cumstantial—which indicates Respondent was angry with the Em-
ployer for its termination of, and refusal to reinstate, two of Re-
spondent’s employee members. In any event, the Respondent estab-
lished that it failed to refer applicants to the Employer’s Semicon
job on May 18 for a legitimate reason which had nothing whatsoever
to do with the Employer’s termination of, and refusal to reinstate,
two of Respondent’s employee members.
9 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
spondent not receiving messages left by employers on the re-
corder during those periods. It is also supported by the fact
that Dean had previously cautioned employers that the tele-
phone message recorder was not a reliable method for re-
questing referrals.
As a matter of fact, on May 4, the Employer left a mes-
sage on the recorder for Respondent to refer applicants to the
Semicon job on May 7, which message Respondent failed to
receive because the recorder malfunctioned, and when the
Employer complained at that time about Respondent’s failure
to refer the requested applicants, Dean explained to Lloyd
that the message recorder had malfunctioned and that Re-
spondent had been having trouble with the recorder. In view
of all of these circumstances, Dean’s testimony that on May
17–18 the recorder once again malfunctioned is consistent
with the probabilities of the situation.
It is for the foregoing reasons that I find Respondent es-
tablished that the reason it failed to refer applicants to the
Employer’s Semicon job on May 18 was because it did not
receive the Employer’s request for applicants due to the mal-
function of Respondent’s telephone message recording ma-
chine. This constitutes a legitimate reason for Respondent’s
failure on May 18 to refer applicants to the Employer’s
Semicon job and is sufficient to overcome any inference that
Respondent’s failure to refer applicants to the Employer’s
Semicon job on May 18 constituted arbitrary or capricious
conduct.8
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The complaint is dismissed in its entirety.