Int'l Hod Carriers, Building, Etc., Local 341

National Labor Relations Board - Board Decisions

May 5, 1964

146 N.L.R.B. 1358 (N.L.R.B. 1964)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT damage, block, or turn away vehicles seeking to enter the com-
pany plant nor will we throw stones or other objects upon or against them or
.persons riding in or on them nor against persons or vehicles inside the plant
gate.
WE WILL NOT in any way restrain or coerce employees in the exercise of their
rights under the National Labor Relations Act, as amended.
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFL-CIO,
LOCAL UNION No. 1198,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional . Office, 746 Fed-
eral Office Building , 167 North Main Street , Memphis , Tennessee , Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
International Hod Carriers , Building and Common Laborers
Union of America , Local 341, AFL-CIO and Donald W. Holton.
Case No. 19-CB-894. May 5, 1964
DECISION AND ORDER
On December 16, 1963, Trial Examiner Henry S. Sahm issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in any unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set forth in the Trial
Examiner's attached Decision. Thereafter, the General Counsel filed
-exceptions to the Trial Examiner's Decision and a supporting brief,
and the Respondent filed a brief in reply thereto.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision- and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board dismissed the complaint.]
1 Without adopting the Trial Examiner 's lengthy exposition of the law applicable to this
case, we agree with his findings that there was a factual failure of proof In support of
the alleged violations of the Act.
146 NLRB No. 159.
INT'L HOD' CARRIERS, BUILDING, ETC., LOCAL 341 1359
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on September 5, 1962, by Donald W. Holton, the General
Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board, through the Regional Director of the Nineteenth
Region , issued a complaint on February 4, 1963, against the International Hod
Carriers, Building and Common Laborers Union of America, Local 341, AFL-CIO,
hereinafter referred to as both the Union and the Respondent alleging violations
of Section 8(b) (2) and 8(b) (1) (A) of the Act. The complaint alleges in substance
that:
On or about July 5, 1962 , M.B. Construction Company , pursuant to the hiring
hall agreement between it and Respondent , requested Respondent to dispatch
five laborers to act as jack hammer operators on a construction job located
approximately 150 miles from Anchorage, Alaska, said laborers to report ready
for work on the morning of July 9, 1962. Pursuant to this request, the agents
of Respondent on or about July 5, 1962 attempted to fill these jobs from its
lists of registered men, and on failing to do so, opened the jobs to any qualified
applicant. The availability of these jack haramer jobs came to the attention of
Donald W. Holton, Fred Sinyon and George Kahkonen, each of whom on
July 5, 1962 made application at Respondent's hiring hall to fill said jobs, and
each of whom was separately refused a dispatch by Respondent's agents, although
each was qualified to perform the work in question and none of the jack hammer
jobs had been filled or applied for at the time each requested dispatch to .the
job.
On or about August 28, 1962, Locher Construction Company, pursuant to
the terms and conditions of its contract with Respondent, applied for the dis-
patch of four men to take part in a concrete pour in the City of Anchorage,
Alaska on the following morning. At all times following the Locher Construc-
tion Company's request for the dispatch of laborers, Casimir Sanuita, who was
properly enrolled on the Respondent's out-of-work list, was present in Respond-
ent's hiring hall awaiting dispatch as a laborer , and, in furtherance of this
purpose, remained in the hiring hall until the close of business on August 28,
1962, at which time he was requested by Respondent 's agents to leave the
premises as they were closing the hiring hall for the day.
Although Sanuita was at all times present in the hiring hall on August 28,
1962 until the close of business, following Locher Construction Company's
request for the dispatch of men to report the following morning at 7:30 a.m.,
and notwithstanding that the Respondent 's rules and practices governing the
operation of the hiring hall require that all dispatches be made during the times
when the hiring hall is open for business, the Locher request was never called
out in the ball and Sanuita was never given an opportunity to fill one of the
jobs requested. The following morning at 7:30 a.m. four men dispatched by
Respondent reported to the Locher Construction Company job in Anchorage,
Alaska. Each of those persons dispatched had less priority to referral to the
Locher Construction Company Job than Sanuita since each of their names
appeared below that of Sanuita's on Respondent's out-of-work list.
Pursuant to notice, a hearing was held in Anchorage, Alaska, on July 16 and 17,
1963, before Trial Examiner Henry S. Sahm. All parties were represented by
counsel and were afforded full opportunity to participate. in the hearing, to introduce
relevant evidence, and to argue orally. The motion of the Respondent to dismiss
the case at the end of the General Counsel's case-in-chief was denied. Ruling was
reserved on the Respondent's renewal of its motion at the conclusion of its case-in-
chief and is hereby ruled upon in accordance with the findings and conclusions made
herein. Briefs were filed by the General Counsel and the Respondent which have
been fully considered.
Upon the entire record in this proceeding, including the briefs filed by the parties
and citations of cases alleged to be dispositive of the issues in this proceeding, and
from observation of the demeanor of the witnesses while testifying, the Trial Ex-
aminer makes the following:
744-670-65-vol. 146-87
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE ALASKA CHAPTER OF THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC.
It is conceded and found that:
Alaskan chapter of the Associated General Contractors of America, Inc. is,
and has been at all times material herein, an association of general contractors
and employers of construction laborers operating in the State of Alaska, and is,
and has been, the agent of its employer members in representing them in collec-
tive bargaining and adjusting of grievances with labor organizations. The gross
annual business of the employer members of the Alaskan chapter of the Asso-
ciated General Contractors of America, Inc. exceeds $1,000,000. The employer
members of the Alaskan chapter annually ship goods valued in excess of
$100,000, or perform services valued in excess of $100,000, which goods are
delivered or services are performed in places outside the State, in which the
principal place of business of the employer members is located. Additionally,
there are employer members of the Alaskan chapter who annually perform
services for the Government of the United States relating directly to the National
defense valued in excess of $100,000.
The M.B. Construction Company is an Alaska corporation engaged in con-
struction work in Alaska with its principal place of business in Anchorage,
Alaska. Its gross annual business exceeds $100,000. M.B. Construction Com-
pany annually imports goods from outside the State of Alaska with a value in
excess of $50,000, and is either an employer member of the Alaskan chapter
of the Associated General Contractors of America, Inc., or has separately
executed the contract between Respondent and the Alaskan chapter of the Asso-
ciated General Contractors of America, Inc., and is bound by the terms and
conditions of said contract.
Locher Construction Company is an Alaskan corporation engaged in con-
struction work in Alaska with its principal place of business in Anchorage,
Alaska. It has a gross annual business which exceeds $100,000. Locher Con-
struction Company annually imports from outside the State of Alaska goods with
a value in excess of $50,000, and is either an employer members of the Alaskan
chapter of the Associated General Contractors of America, Inc., or has separately
executed the contract between Respondent and the Alaskan chapter of the Asso-
ciated General Contractors of America, Inc., and is bound by the terms and
conditions of said contract.
It is found accordingly that the Alaska Chapter of the Associated General Con-
tractors of America, Inc., and its constituent members are engaged in commerce
within the meaning of the National Labor Relations Act (61 Stat. 136, as amended),
herein called the Act, and subject to the jurisdiction of the Board.
It. THE RESPONDENT UNION
The Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
This proceeding involves the charge that the Respondent Union violated Section
8(b) (1) (A) and 8(b) (2) by unlawfully discriminating against four individuals by
refusing them job referrals from its hiring hall. The General Counsel alleges the
Union refused to refer them because of hostility toward two of them who opposed
the Union's officers and who had established a rival labor organization. There is
no allegation in this case that the contractual provisions for this hiring hall or its
general method of operation was defective but only that its operation was dis-
criminatory. An understanding of these issues requires a somewhat detailed state-
ment of not only the factual background but the applicable legal principles involved
as hereinafter discussed.
B. The referral system
The casual , unstable , and intermittent nature of employment in the construction
industry often make it needful that there be some place or means through which
craftsmen can be hired, frequently on short notice. Employers and unions have
recognized this problem by contracting on •a multiemployer basis, for unions to oper-
ate hiring halls through which employees seeking work obtain referrals to whatever
INT'L HOD CARRIERS , BUILDING, ETC., LOCAL 341 1361
jobs may be open . Recruiting arrangements of this kind made between the con-
tractors and the union are called a referral system .' The union's office or hiring
hall is the location from which it fills requests for workers . Normally , the method
used to fill requests from contractors is a rotation system of referrals designed to as-
sure fairness in treatment of applicants requesting referrals to jobs. Under this ar-
rangement , when a workman is unemployed he registers at the union office where the
registrants are listed in order of date of registration . Opportunities for employ-
ment and for obtaining employees are directly affected by the priority standards es-
tablished in the hiring hall. When the contractor contacts the union hall, and
advises the union 's business representative of his requirements , the business repre-
sentative usually selects from the top of the register or out-of-work list the work-
man qualified for the job and refers him to the jobsite of the contractor where his
services are required.
The Respondent Union's out-of-work list for men who register for work is com-
prised of "A," "B," and "C" lists on which are both union and nonunion men, in
the order in which they have registered for work . For a man's name to be on
the "A" list, he must have had 400 hours of work experience within the geographical
jurisdiction of the Union within the immediately preceding 2 years. The "B" list
is made up of men , both union and nonunion, who have from 1 to 399 hours of
work experience within the geographical limits of the Union within the preceding 2
years. The "C" list is made up of all other registrants who have had no previous
work experience within the geographical jurisdiction of the Union in the past 2 years.
C. Discussion
Inasmuch as 8(b )(2) is one of the sections of the Act the Respondent Union is
alleged to have violated, it is necessary to analyze also Section 8(a)(3) because of
its interrelationship with Section 8(b)(2). The policy of the Act, particularly Sec-
tion 8(a) (3) and 8(b) (2) is to insulate employees' job rights for the exercise of their
organizational rights? Section 8(a)(3) provides that it shall be an unfair labor
practice for an employer-
by discrimination in regard to hire or tenure of employment to encourage or
discourage membership in a labor organization.
Section 8(b) (2) of the Act provides that it shall be an unfair labor practice for a
union-
to cause or attempt to cause an employer to discriminate against an employee in
violation of subsection (a) (3) ..3
From such examination of these two sections, it seems clear that it is an unfair
labor practice for a union to cause or attempt to cause an employer to discriminate
against employees in regard to hire or tenure of employment or any term or condi-
tion of employment. The prerequisites to a finding that these sections have been
violated thus, are a showing (1) of discrimination respecting employment for which
the employer and union are responsible and (2) that such discrimination encourages
or discourages membership. The decisions of the Board and the courts hold that
the test of the legality of a referral system is whether in its operation, or effect, it
results in unlawful discrimination to applicants -for employment.4 A nondiscrimina-
tory hiring hall operates to serve both members and nonmembers of the union and
it also serves employees. An employee seeking a job referral is not required either
to become a member of the union or to tender agency-shop payments to the union in
lieu of membership. Settled law establishes that, subject to one sharply defined ex-
ception,5 the power of a union or employer to discriminate in employment has been
annulled by the Act so that the -rights of an applicant for employment may not be
abridged nor may he be subjected to job discrimination. However, the Board has
1 For the legislative history of the Labor Management Relations Act, 1947, with respect
to referral systems, see S. Rept. 105, 80th Cong., 1st sess., p. 6 ; 93 Congressional
Record 3836.
2 The Radio Officers' Union et al. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S.
;17, 40, subject to an express qualification not material here.
3 See The Radio Officers ' Union, et al . (A. H. Bull Steamship Company) v. N.L.R.B.,
347 U.S. 17, 40, et seq.
4 N.L.R.B. v. F. H. McGraw and Co., 206 F. 2d 635 (C.A. 6), enfg. 99 NLRB 695.
This exception permits a union through a valid union-security agreement to compel
payment of union dues. See Sections 7, 8(a) (3), 8(ib) (2), and the proviso to Section
8(a)(3) with respect to a union-security provision.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held, citing as its authority, Local 357, Teamsters v. N.L.R.B., 365 U.S. 667, that
neither an employer nor a union violate Section 8(a)(3) or 8(b)(2) of the Act if
an applicant is required to obtain a referral from the union as a condition precedent
to.employment where the union and the employer have a nondiscriminatory agree-
ment obligating use of the hiring hall and the hall is operated in a nondiscriminatory
manner .6 Nor need such an exclusive hiring agreement or arrangement be written,
but it may be established by evidence of an oral understanding or a course of
-conduct?
In the Mountain Pacific Chapter of the Associated General Contractors, Inc.,
case 8 the Board held that unions and employers. can agree to operate under exclusive
hiring arrangements provided they set forth in their contract certain safeguards or
criteria to be followed by the union in performing its function as hiring agent and
which will constitute notice to applicants for employment that the union does not
have unilateral control of the employment relationship. The Board listed the follow-
ing as among the safeguards against improper discrimination over the recruitment
and referral of employees to be included in the agreement:
(1) Selection of applicants for referrals to jobs shall be on a nondiscriminatory
basis and shall not be based on, or in any way affected by, union membership,
bylaws, regulations, constitutional provisions, or any other aspect or obliga-
tion of union membership, policies, or requirements.
(2) The employer retains the right to reject any job applicant referred by the
union. -
(3) The parties to the agreement post in places where notices to employees
and applicants for employment are customarily posted, all provisions relating to
the functioning of the hiring arrangement, including the safeguards that are
deemed essential to the legality of an exclusive hiring agreement.
The Board in-its Mountain Pacific decision held that a collective-bargaining agree-
ment having a contract clause that grants a union exclusive control of the referral
system without including in it the above three safeguards against union favoritism in
the exercise of that control is illegal in itself, apart from whether the referral arrange-
ment in its operation results in unlawful discrimination to nonmembers of the con-
tracting union. Such unilateral control, without these three provisions in the contract,
said the Board, was notice "to the world at large that the union is arbitrary master
and is contractually guaranteed to remain so," 9 as no criteria or methods are specified
by which referrals are to be made by the union. This, concluded the Board, is a
violation of the Act's provisions against exerting pressure upon job applicants to
comply with union obligations such as membership in a union being made a pre-
requisite to obtaining a job referral under an exclusive hiring-hall contract. In prac-
tical terms this means that whether job applicants are referred to jobs depends solely
on the union's disposition toward them as the union is "free to pick and choose on
any basis it sees fit." to
The United States Court of Appeals for the Ninth Circuit, however, refused en-
forcement of the Board's Mountain Pacific decision and remanded the case for re-
examination by the Board of its holding that a collective-bargaining agreement which
does not include these three safeguards is illegal per se.11 According to the court,
the absence of specific contractual safeguards against hiring preference for union
members, regarded by the Board as establishing per se illegality, may be treated as
6 Hoisting and Portable Engineers, Local 302 . 144 NLRB 1449 . In that case , the sub-
contractor and the union had an informal hiring-hall arrangement under which the sub-
contractor would obtain clearance or referral of job applicants from the union . The Board
found that this hiring -hall procedure imposed by such arrangement was not in itself dis-
criminatory or operated in a discriminatory manner . Cf. N.L. R.B. v. International
Longshoremen 's d Warehousemen's Union, et at. (Pacific Maritime Association ), 210 F. 2d
581 W.A. 9) ; N.L. R.B. v. International Longshoremen 's Association Local 10 ( Pacific
Maritime Association ), 214 F . 2d 778 (C.A. 9) ; N.L.R.B. v. Waterfront Employers of
Washington . 211 F . 2d 946 ( C.A. 9) ; Construction Specialties Co., 102 NLRB 1542. enfd.
208 F . 2d 170 (C.A. 10) ; George D. Auchter Company , et at., 102 NLRB 881, enfd. 209
F. 2d 273 ( C.A. 5) ; Enterprise Industrial Piping Company , 117 NLRB 995.
a Id. at page 1452 of the Board's decision.
8119 NLRB 893.
B IS. at page 896.
'O ld . at page 894.
11 N.L.R.B. v. Mountain Pacific Chapter of Associated General Contractors , 270 F. 2d
425 (C.A. 9).
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 341 1363
no more than evidence of an intent to discriminate illegally. The court's reasoning
is that the presence or absence of specific contractual safeguards has no direct rela-
tionship to the existence of a violation. The inclusion of such clauses does not
mean , stated the court, that the parties will not practice discrimination, and their
absence does not mean that the parties do not'intend to comply with the law. Still,
held the court, there is no reason why the Board, drawing upon its expertise, may
not treat the absence of such provisions as evidence of an intent to violate the law.
In the court's view, the absence of these three safeguards must be treated not as a
question of law, to be determined by the provisions of the contract alone, but as a
question of fact, to be determined by evidence as to either the intent of the parties or
the operation or effect of the contract. The court concluded by stating that while
this approach cannot be upheld in the instant case the Board can, however, legally
give weight to this particular item of evidence, but the rule must operate.
prospectively.
The Supreme Court adopted, in part, the Court of Appeals' rationale when the
Mountain Pacific doctrine came before it in Local 357, International Brotherhood of
Teamsters, et al. (Los Angeles-Seattle Motor Express) v. N.L.R. B.12 In that case,
the Board had held 13 that a hiring hall agreement which did not include the Mountain
Pacific "safeguards" against discrimination, detailed above, was illegal. The Supreme
Court, however, held that failure to include these safeguards could not in itself render
the collective-bargaining agreement illegal in the absence of the standards prescribed,
by the Board, particularly where the contract itself prohibited discrimination on the
basis of union membership. The Court did indicate, however, that the parties would
be held in violation of the Act if evidence is -produced proving that discrimination
had been practiced under the agreement. In short, stated the Supreme Court, the
Board is confined to determining whether the agreement has, in fact, been used to
discriminate in regard to hire or tenure, term or condition of employment.14
It would appear to be far from certain that the Supreme Court decision, supra, has
completely done away with the Mountain Pacific rules because the Local 357, Team-
sters decision involved particular facts which presented virtually' the strongest pos-
sible arguments 'against the application of these rules. Thus, in the Local 357 case,
the agreement specifically provided that referrals would be made without regard to
whether the employee was a union member or not. ' And there was no evidence dis-
crimination had been practiced under the agreement. In Mountain Pacific, how-
ever, the Board had a stronger case in that the contract failed to specifically prohibit
discrimination.
In any event, the evil which Congress sought to eradicate is encouragement or dis-
couragement of membership by any discrimination. ' Congress did not define the
precise form of discrimination which it sought to ban so long as it tended "to en-
courage or discourage membership." Instead, it committed to the Board the "work
of applying the Act's general prohibitory language in the light of the infinite com-
binations of events which might be charged as violative of its terms." 15
A reading of the Supreme Court's Radio Officers decision, supra, reveals that the
Supreme Court treated "discrimination" and "encouragement or discouragement" as
separate but equally essential elements of a Section 8(a)(3) violation; that the ele-
ment of discrimination was established by a' showing of disparate treatment without
necessary reference to union membership or the lack thereof; and that the element
of encouragement or discouragement was established by a showing that the disparate
treatment could reasonably be said. to have "raised or lowered . .. the' desire of
employees to unionize." 16
Then, too, the Congress was concerned with the protection of individual employee
rights which underlies the Board's holding in Mountain Pacific, and is based upon the
inevitably coercive effect upon employees of "unfettered union control over all hir-
ing." 17 However, before. considering the rights of the individual employees..the four
alleged discriminatees in this proceeding, the. contractual provisions applicable in this
case will be discussed first.
A"365 U.S. 667.
1s 119 NLRB 883.
1' Houston Chapter, Associated General Contractors of America, Inc., 143 NLRB 409.
15 Republic Aviation Corporation v. N.L.R . B., 324 U.S. 793, 798.
1a Radio Officers' 'Union, et at. v. N.L.R.B., 347 U.S. at.page 51.
17 Mountain Pacific, et at ., 119 NLRB at page 896. See also N.L.R.B. v. Hymie Schwartz
d/b/a Lion Brand Manufacturing Company, 146 F. 2d 773, 774 (C.A. 5) ; N.L.R.B. v.
Lovvorn, d/b/a Georgia Twine and Cordage Company , 172 F. 2d 293 , 295 (C .A. 5). The
preamble to.the 1947 At states that the legislative purpose is '.'to protect the right of
individual employees in their relations with labor organizations."
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The applicable contractual provisions
On or about July 1, 1961, the Respondent Union became a party to a collective-
bargaining agreement with the Alaska Chapter of the Associated General Contractors
which represents its employer-members in collective bargaining with the Union on
multiemployer basis. This contract provides, in pertinent part, as follows:
ARTICLE III
A-Hiring of Men
Section 2. Employers shall hire qualified workmen by calling the Union.
Section 5(d). In the event that the referral facilities maintained by the Union
are unable to fill the requisition for any Employer for men within a forty-eight
(48) hour period after such requisition is made by the Employer (Saturdays,
Sundays and holidays excepted) the Employer may employ applicants with-
out reference to the referral procedure. In such an event, the Employer will
notify the Union of the names and.dates of such hi'rings within forty-eight (48)
hours of such hirings.
(e) 3. Bona fide requests by the Employers for workmen with special skills
and abilities will be honored; the dispatcher shall refer persons possessing such
skills and abilities in the order in which their names appear on the out-of-work
list. Such a decision of the dispatching agent in referring registrants is appeal-
able to the Joint Hiring Committee as herein provided.
* * * * * * *
Section 6. The Union and the Employers agree that the referral of workmen
shall be on the following basis:
(a) Selection of applicants for referral to jobs shall not be based on, or in
any way affected by, Union membership, by-laws, rules, regulations, constitu-
tional provisions, or any other aspect of or obligation of union membership,
policies or requirement. No fee shall be charged for the registration or referral
of any applicant.
(b) The Employer retains the right to reject any job applicant referred by the
Union.
(c) The Union and the employer shall post, in places where notices to all
employees and applicants for employment are customarily posted, all provisions
relating to the functioning of the hiring provisions of this agreement.
Section 7. (a) All employees covered by this agreement shall be required, as
a condition of employment, to apply for and become members of, and to main-
tain membership in, the Union within thirty-one (31) days following the begin-
ning of their employment or the effective date of this clause, whichever is later.
This clause shall be effective on August 15, 1959, and shall be enforceable to
the extent permitted by law. All requests by the Union for the dismissal of
any employee for failure to comply with the provisions of this paragraph shall
be in writing, which shall contain a certification by the requesting Union that it
is in full compliance with all applicable provisions of law entitling it to the en-
forcement of the rights provided for hereunder.
* * * * * *
B-Employment Clearance
Section 1 . (b) The Contractor shall be the sole judge of a workman 's ability,
competence and performance.
EXCEPTIONS TO ARTICLE III-A
Hiring of Men-Laborers
Section 5. (e) 2. Requests by Employers for a particular man previously
employed by the Employer. .
3. Bona fide requests by the Employer for workmen with special skills and
abilities will be honored; the dispatcher shall refer persons possessing such skills
and abilities in the order in which their names appear on the out-of-work list.
Such a decision of the dispatching agent in referring registrants is appealable
to the. Joint Hiring Committee as herein provided, and
4. Requests by Employers for bona fide residents of the vicinity immediately
accessible to the job site in a remote area shall be honored in accordance with
the place of the local resident upon the registration list in relation to other
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 341 1365
registrants in the same area. Residence for the purpose of this section shall
mean that the individual shall have resided in the area for a period of 3 months
immediately prior to the date of the requests, and
5. Requests by Employers for a particular individual with no priority shall
be honored without regard to the requested man's place on the out-of-work list
provided said individual shall occupy the status of sons of management or sons
of laborers employed on the work or of college students (seeking summer em-
ployment only); the number of such college students employed shall not ex-
ceed the ratio of one college student to nine other employees.
E. The testimony
1. M.B. Construction Company incident
Henry Headberg, business representative of the Respondent Union, received a re-
quest on or about July 5, 1962, from Harold Leader, an official of the M.B. Con-
struction Company, for five drillers to work on a rock job beginning on July 9 at
Chitna which is approximately 270 miles from Anchorage where the Union's offices
and hiring hall are located. It was explained by Leader, the Company official, to
Headberg, the Union's representative, that this was a peculiar and dangerous job
which necessitated the use of experienced and qualified rock men to operate drills on
the face of a cliff while sitting in a boatswain's chair (a wooden board slung by a
rope and used to sit on while at work aloft) and suspended 70 to 80 feet above the
ground. This type of work, testified the Union's President Groothius, required men
"young enough and agile enough to swing around on the ropes." Raes Pore, who
worked as a driller at the Chitna project and who testified on behalf of the General
Counsel, stated that operating a rock drill on the face of this cliff was a difficult job
and dangerous if the driller were not experienced and cautious. There was evidence
also that difficulties had been encountered in manning the job not only because of
the nature of the work but also because of the isolated location of the jobsite and the
close supervision by management which resulted in a high rate of personnel turnover.
Leader, the M. B. Construction Company official, testified that when they requested
workmen for the Chitna project, the Union would refer men to him and he, in turn,
would interview them in Anchorage before hiring them. This was done, Leader
testified, because it cost the Company $80 to fly each man to the project site at Chitna
and he wanted to be certain the men were qualified. Leader went on to explain that
it requires little skill to operate a jackhammer but drilling in rock which this job
required could only be done by experienced drillers. Leader testified that in inter-
viewing men referred to him by the Union, he would inquire as to what contractors
they had worked for and then check with these contractors so as to ascertain the
applicants' competency. Leader also testified that on some occasions he requested
drillers by name when he placed an order with the Union.
Job calls were made twice daily, at 9 a.m. and 2 p.m. at the union hiring hall, at
which time it was announced to the applicants assembled in the hall what job requests
the Union had received from employers. At the 9 a.m. call on July 5, Headberg,
the Union's business representative, announced there were two rock driller jobs open
at the Chitna project beginning Monday, July 9, and he requested that only qualified
drillers apply as this was a difficult and dangerous job.
Headberg also testified that in looking over the 50 to 60 men who were then in the
hall that be "knew there were very few, if any, men in the hall at the time the call was
made who were qualified" for these Chitna jobs. This, he explained, accounts for
him asking for only two drillers and not the five requested by the M.B. Construction
Company as he hoped that qualified men in the Anchorage area would bear of these
openings in the meantime and come to the union hall to apply for the five Chitna
-jobs which were scheduled to begin on July 9. Headberg also testified that he
"talked a couple of men out of taking [the jobs] because [he] knew they were not
qualified."
After announcing the two driller jobs to those in the hall and explaining what it
involved, Headberg commenced to read the names of the registrants on the "A"
list, supra, but discontinued this when he received no response and "when [he] saw
it was useless" he then asked if anyone in the hall was qualified to apply for the two
jobs. There were no applicants and when be could not secure any drillers, he asked
those present that if they knew of.or saw any rock drillers to ask them to report to
the union hall that afternoon for the 2 o'clock call. However, the list was not called
at 2 o'clock for the reasons explained immediately below.
After the morning call was completed and closed around 9:30, Headberg spoke
to Robert McFarlane, secretary-treasurer of the Respondent Union. He told
McFarlane there were no rock drillers in the hall qualified to fill the Chitna jobs.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After further discussion, it was decided by Headberg and McFarlane not to fill these
jobs that day but to wait until they heard from Harold Groothius, president of the
Union, who was on a field trip in the vicinity of the Chitna job site and who when he
phoned in they would ask to attempt to locate and contact qualified rock drillers
living in the Chitna area. Also, Headberg testified that after announcing the jobs
and receiving no applications and then asking those in the hall to have any rock
drillers they might know report to the hall, he was hopeful that qualified rock drillers
would apply for the jobs when the call was eventually made. Some rock drillers
were in the hall that same day at the 2 o'clock call but Headberg.told them "the call
had been held up" until a later date.
After the 9 a.m. call was completed and subsequent to the time Headberg and
McFarlane had decided to delay filling these driller jobs, Holton, an alleged dis-
criminatee, came to the dispatching window of the office and applied for one of the
rock driller jobs at Chitna. Headberg testified he told Holton they "were not filling"
the' job call at the present time. Holton's testimony, which was corroborated by
Sanuita, also an alleged discriminatee, is that Headberg said , "The jobs are filled."
Headberg's version is believed as it is incredible that he would announce the jobs at
9 a.m. and shortly thereafter tell Holton, who in the meantime had arrived at the
hall, that the jobs were filled. As Headberg testified: "It would be rather asinine
for me to [tell Holton the jobs were filled] and then fill [the jobs] three days later."
Then, too, it offends commonsense to believe that Headberg, who knew of the
propensity of Holton and Sanuita in the past to file charges with the Board against
the Respondent Union, would be so incredibly naive as to senselessly compromise
the Union by a statement that the jobs were filled.
Later the same day, Groothius, the Union's president, telephoned the union office
from the Chitna project and told Headberg and McFarlane not to fill the 5 driller
jobs until he returned to Anchorage and discussed with them the qualifications a
man would need in order to do this job properly. They agreed not to fill the jobs
until he returned to Anchorage. Headberg then telephoned Leader, who agreed to
delay filling the 5 driller jobs until Groothius returned in the hope qualified men
could be obtained as there had been a 300-percent turnover of drillers at this project
because of the "toughness of the job and poor help." 18
When Holton was unsuccessful in obtaining a referral, he "prevailed" upon another
alleged discriminatee, Fred Sinyon, who like Holton was not in the hall when the
9 o'clock job call was made, to apply for one of the Chitna drill jobs. Sinyon has
not been registered with the Union since 1960. When Sinyon applied for the job,
Headberg told him that not only was he not qualified, but also that the filling of these
jobs was being held up until further notice.
George Kahkonen, another of the alleged discriminatees, was present at the 9
o'clock call on July 6 but he did not apply for the Chitna drill job at that time.
After the 9 o'clock call was completed and Headberg returned to his office, Kahkonen,
sometime later that morning, applied for one of the Chitna driller jobs.19 Headberg,
according to Kahkonen, told him to return around noon but Headberg's version is
that he told Kahkonen "the job was being held up and to check with [ him] later in
the day.
Holton and Kahkonen then went to the M.B. Construction Company office in
Anchorage the same day and applied to Leader, the employing company official, for
these Chitna driller jobs. They told Leader they were applying for these jobs directly
to him because they had been refused a dispatch by the Union for the Chitna jobs.
Leader told them that under the provisions of the Company's contract with the Union,
when an order is.placed with the Union for men, the Company. cannot hire anyone
until 48 hours has elapsed, as the Union is given 48 hours to complete the job order.20
When there was no 9 o'clock job call on the following day, Saturday, July 7,
Holton, accompanied this time by Sinyon, another alleged discriminatee, again went
to the office of Leader, the M .B. Construction Company official, and applied a second
time for the Cbitna driller jobs. As he had told them the previous day,. Leader
said: "The jobs are open but I can't hire anybody . .. without the Union." 21
's Groothius testified that the Company preferred men who lived in the vicinity of the
project site because they did not want to overload their on-site camp where the men who
lived some distance away from Cbitna were housed and fed. Also, it cost more to trans-
port men from outside the Cbitna area to the project site.
"It is not too unreasonable to assume that Kahkonen's applying for the job after he
remained silent during the 9 o'clock call was due in no small measure to Holton's urging.
p See Section 1(a) at page 13 of General Counsel's Exhibit No . 2, and page 1304, supra.
21 Thia haw reference to the 48-hour provision in the contract. See footnote 20.
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 341 1367
At the 9 o'clock call on Monday, July 9, the five Chitna driller jobs were called and
filled but one of the five men selected for dispatch immediately turned it down when
he heard it was an out-of-town job. As soon as this man refused the referral, Holton
and Kahkonen again applied for the driller job but Headberg told them he was not
going to fill the job until the 2 o'clock call that afternoon. When the 2 o'clock
call was made, a referral slip was given to a man by the name of Siler who was higher
on-the list than Holton (who was registered on the "C" list and Kahkonen who was
not registered at all) and Siler was dispatched to the Chitna project.
All five men who were given referrals by the Union to the Chitna project had higher
priority on the registration lists than Holton. Sinyon and Kahkonen, the other two.
alleged discriminatees, were not registered at •all.22
Conclusions
A discriminatory referral for any.reason except to enforce a valid union-security
provision under Section 8(a)(3), is violative of Section 8(b)(1)(A) and (2) of
the Act unless, the lack of referral is pursuant to objective criteria established and
spelled out in a collective-bargaining agreement.23 In determining whether dis-
crimination, or an attempt to cause it, falls within the statutory condemnation, it is
the "true purpose" or "real motive" that constitutes the test.24 This is not to say
that the required intent must in all cases be independently proved. Some conduct
may by its very nature carry its own indicia of unlawful intent because of the natural
and foreseeable consequences that flow from it. There may also be situations where
an inference of unlawful intent may be justified from the fact that employer action
affecting•einployment status was.instigated or attempted by a union. Thus, in the
absence of some other credible explanation, it may perhaps be inferred from such
union instigation, standing alone, that the union would not have caused the employee
to suffer disparate treatment except for the element of lack of union membership.
Thus, a union hiring hall may not be operated so as to discriminate against workers
who are not members of the union.25 Likewise, it is abundantly clear that a union-
operated nondiscriminatory hiring hall, does not, by definition, require membership
in that union as a condition of referral, and thus of employment.26
But though union instigation may give rise to a presumption of unlawful intent,
that presumption is not a conclusive one. It may be rebutted by evidence of a com-
pelling and overriding character showing that the conduct complained of was re-
ferrable to other considerations, lawful in themselves, and wholly unrelated to the
exercise of protected employee rights or to the other matters with which the Act is
concerned. In short, the union's conduct must be evaluated, not in the abstract, but
in terms, as stated above, of its "true purpose" or `.`real motive." 27
2. Chitna Referrals
After the testimony, detailed above, is analyzed and evaluated, in the context of
these applicable principles of law, it is found that there was no unfair labor practice
committed with respect to the Chitna referrals as the record does not contain sub-
stantial evidence to support a finding of such discrimination. The alleged discrimi-
natees dilatorily applied for the Chitna driller jobs after the 9 o'clock call was com-
pleted and closed and at a time when Headberg announced that no applications.
would be considered until the next job call. Because of the difficulty and danger of
the Chitna job, it was ultimately determined by the Respondent's officials to postpone
the eventual dispatch of these five jobs until they heard from Groothius, the Respond-
ent's president, who was at the Chitna project and with the expectation that additional
qualified "rock drillers" would hear of the jobs in the meantime and apply for them
on or before Monday, July 9, when they were scheduled to begin. On July 9,
referrals were made to five applicants who were higher on the out-of-work list than
the, three alleged discriminatees. Therefore, these five applicants who received the
rl Four of the five men who were referred to the Chitna project were union members
and the fifth was a union member but not in good standing because of being delinquent
to his dues payments.
23 New York Mailers' Union, Local 6, 133 NLRB 1052; Bricklayers, Masons' and
Plasterers' Union, et at., Local 28, 134 NLRB 751. Cf. Local 294, International Brother-
hood o f Teamsters , 137 NLRB 1023.
24 Local 357, International Brotherhood of Teamsters v. N.L.R.B., 365 U.S. 667, 675.
24 Local 357, International Brotherhood of Teamsters v. N.L.R.B., supra.
96 Houston Chapter, Associated General Contractors of America, Inc., 143 NLRB 409.
21 The statement is an edited. excerpt from the Board's decision. in Millwrights Local
Union 1102 (Planet Corp.), 144 NLRB 798.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatches were entitled to them, absent any discrimination in the making of the
referrals.
The General Counsel avers in the complaint that each of the alleged discriminatees
"was qualified to perform the work in question . . Based upon the entire record
in this case, it is found that the General Counsel has not proved by a substantive
preponderance of the evidence on the record as a whole that the three alleged
discriminatees who applied for these Chitna jobs were qualified to perform the work.
Moreover, the Respondent Union had a legitimate interest in referring the five
men who it believed in its judgment were best qualified to handle the rock driller
jobs at Chitna, untainted by any motive for discriminating against Holton, Kahkonen,
and Sinyon because of personal animosity or their nonmembership in the Union.
Nor can it be said that the Union was guided by arbitrary, irrelevant, or proscribed
considerations, inconsistent with its contractual duty to refer to employers qualified
persons.28 The Union's aim was to supply such qualified personnel and there is
nothing in the record to belie the Union's assertion that it was exercising its best
judgment in doing so. Nor, conversely, is there any probative evidence to sub-
stantiate the General Counsel's contention that the Union failed to refer Holton,
Kahkonen, and Sinyon on the same basis as other men and that the three alleged
discriminatees were discriminatorily affected by the Union's referring union members
over nonmembers.
It is found, therefore, that in referring drillers to the Chitna project, the Union
acted without unlawful motive but solely in pursuit of a legitimate motive, namely
to supply qualified workmen for a difficult and dangerous job. Accordingly, it is
found that Respondent Union's referrals to the Chitna project were not violative of
Section 8(b) (1) (A) or 8(b) (2). It shall, therefore be recommended that the com-
plaint be dismissed as to these allegations.
3. The Locher Incident
Preston Locher, president of the Locher Construction Company, telephoned Head-
berg, the Union's representative, between 3:30 and 4 p.m. on August 27, 1962, and
requested four men for a concrete pouring job in Anchorage at 7 a.m. on the follow-
ing day.29 Since the weather was threatening, Locher advised Headberg that the
concrete would not be poured if it were to rain but in the absence of him calling
Headberg by 5 p.m. when the union hall closed, the men should be dispatched to the
job the following morning. Locher requested Headberg to delay the job call until
as late as possible in the afternoon because of the threatening weather. Accord-
ingly, the referrals were delayed by Headberg, he testified, until around 5 p.m. the
same day, when the four top priority men in the hall at the time were ordered to
report to the project site the following morning.
It is uncontradicted that Sanuita, the alleged discriminatee, was higher on the
out-of-work list than the four men who were dispatched to the Locher job. How-
ever, claims Respondent, Sanuita was not in the union hiring hall when the Locher
referrals were made. Sanuita denied this, testifying that he was in the hall on
August 27 from 8:20 a.m. until it closed at 5 p.m.
When Sanuita learned that these four men who had received referrals to the Locher
job were lower on the register than he was, he immediately went to the union hall and
questioned Headberg. He testified that he told Headberg he had been in the hall
from 8:15,a.m. to closing time at 5 p.m. on the previous day and he had heard no call
made for the Locher job. Headberg's reply to his inquiries , according to Sanuita,
was unsatisfactory.30 Headberg, when called as a witness by the General Counsel
under Section 43(b) of the Federal Rules of Civil Procedure was asked the follow-
ing questions:
Q. Now, going again to August 27, 1962 , that was a Monday . Did you
receive •a request for a dispatch of men from Locher Construction Company on
that date?
A. I did. I believe it was that date.
Q. As a matter of fact Mr. Sanuita signed back into the hiring hall at 8:20
in the morning on August 27, didn't he?
A. Well, he couldn't have been dispatched on that date.
28 See contractual provisions , supra , particularly article III which states that requests
for workmen with special skills "will be honored."
29 This finding is made on the credited testimony of Preston Locher.
so None of the four men who were dispatched was called' to testify.
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 341 1369
Q. He was dispatched to go to work on that date, wasn't be?
A. . I don't recall, he could have been.
Q. Isn't it a fact that he signed back in the hiring hall on that date at 8:20
in the morning?
A. I don't know.
Q. Now, on the date of which you received this request from Mr. Locher, the
27th or 28th of August to dispatch men to Fifth and C Street in Anchorage,
wasn't Mr. Sanuita in the hiring hall that morning?
A. He was in the hiring hall that morning. He was in the hiring hall early
in the afternoon.
Q. He was there for the 2 o'clock call?
A. To .the best of my knowledge, he was. I don't remember distinctly he
was, but to the best of my knowledge, he was . . . . He was not in that ball
from 4 o'clock on.
* * * * * *
Q. You are absolutely certain, though, that he wasn't there the afternoon of
the day Locher called for the men?
A. Right. If he had been there, he would have been dispatched the same as
he had been in the past when he has been in -the hall and when he has been the
top man.
On direct examination by his own counsel, Headberg was questioned as follows:
Q. Now directing your attention to August 28, 1962, did you on that date dis-
patch men to the Locher Construction Company?
A. I believe I did.
Q. What time was the dispatch made?
A. . between 4:30 and 5 o'clock?
Q. Was Mr. Sanuita in.the hall?
A. He was not.
Sanuita, on direct examination, testified he was in the union hiring hall on both
August 27 from the 9 o'clock call to closing time at 5 p.m. and on August 28 from
8 a.m. until some time not disclosed by the record. He denied he was dispatched
to another job ("Stud•nek" job) on August 27, testifying the date of the Studnek dis-
patch was August 31 and that he was in the union hall all day on August 27.
On redirect examination, however, Sanuita contradicted himself by testifying that
he was dispatched to the "Studnek" job at the Air Force base on August 27, and
after searching for the project site for 40 minutes, he was unable to find it, returned
to the union hall "and signed in at 8:20 a.m., and I stayed all day in the union hall on
August 27, until closing time, 5 p.m."
The complaint alleges that Locher applied for the dispatch of four men on Au-
gust 28, 1962. Respondent's Exhibit No. 1 shows, however, that Sanuita was given
a referral to "Studnek" on August 27 with the notation that he "couldn't find job"
and that he did not sign back into the union hall until 8 a.m. on August 28. The
record in this regard is in sharp conflict when it is recalled That Locher himself testi-
fied (whose testimony has been credited, supra), that he telephoned the union hall
between 3:30 and 4 p.m. on August 27 and asked Headberg to dispatch four men on
the following day. Respondent's Exhibit No. 1, which is Sanuita's referral card and
registration file, shows he was referred to the Studnek job on August 27, and that he
did not sign back into the hall until 8 a.m. on August 28. Therefore, it was impos-
sible for him to have been in the union hall and available for dispatch on August 27
when the referrals to the Locher job were made. It is found, accordingly, that the
General Counsel has not supported by substantial evidence on the record considered
as a whole that Sanuita was present in the union hiring hall when Headberg made
the referrals to the Locher job.
The Supreme Court had held 31 before the enactment of the Labor Management
Relations Act of 1947 (61 Stat. 136), that the evidence necessary to make a finding
of an unfair labor practice must be "substantial Substantial evidence is such
evidence as affords a substantial basis of fact from which the fact in issue can be
reasonably inferred 32 Substantial evidence must be such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Substantial evi-
dence must have rational probative force; it must carry conviction; it must be more
a N.L.R.B. v. Consolidated Edison Co. of New York, Inc., 305 U.S. 197, 229.
sa N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U. S. 292, 299.
1
i
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than a scintilla , and must do more than create a suspicion of the existence of the fact
to be established . And "the test is not satisfied by evidence ... which gives equal
support to inconsistent inferences." 33
In N.L.R.B. v. Stafford Operating Company, 206 F. 2d 19 (C.A. 8) the court said
at pages 22 and 23:
The insertion of the word, "substantial" in the Act by the 1947 amendment
did not, therefore, enlarge its meaning in that respect, but the insertion of the
words "on the record considered as a whole" and the historical background of
the Act and the amendment do have significance . . . . In construing the
amended Act, the Supreme Court said in Universal Camera Corp. v. N.L.R.B.,
340 U:S. 474, 487:
Whether or not it was ever permissible for courts to determine the sub-
stantiality of evidence supporting a Labor Board decision merely on the
basis of evidence which in and of itself justified, without taking into account
contradictory evidence or evidence from which conflicting inferences
could be drawn, the new legislation definitively precludes such a theory of
review and bars its practice. The substantiality of evidence must take into
account whatever in the record fairly detracts from its weight . . . .
But whether the facts and circumstances constituting such evidence be of
such weight as to be substantial depends upon the nature of the facts shown,
the consistency of those facts and circumstances with each other, their con-
sistency with the truth of the ultimate fact, and their inconsistency with a
reasonable inference of the truth of the converse of the fact sought to be
shown, when viewed in the light of the entire record. And these facts
may not be viewed "in isolation."
* * * * * * *
Although the circumstances may support the inference of a fact, if it is
shown by direct unimpeached, uncontradicted, and reasonable testimony
which is consistent with the circumstances that the fact does not exist, no
lawful finding can be made of its existence.
Judged by these tests and standards, it is concluded there was not substantial evi-
dence adduced by the General Counsel that the Respondent refused to refer the four
alleged discriminatees for proscribed reasons and that he has not met the requisite
burden of proof for the reasons hereinabove and hereinafter delineated. Since the
burden of proof was on the General Counsel to prove the allegations in the com-
plaint and he has not met that burden , as there is no discernible relationship to the
alleged discriminatees failure to obtain referrals, it is recommended that the allega-
tions of the complaint with respect to both the M.B. Construction Company and the
Locher incidents be dismissed.
It is apparent that if the failure to refer Holton and Sanuita was not in itself dis-
criminatorily motivated nor prompted by "unfair or irrelevant or invidious" 34 reasons
and they were not subjected to "capricious, disparate" treatment, the failure to refer
Sinyon and Kahkonen surely could not be so considered as they were not even
registered with the Union 35
There is no convincing evidence that Holton, Sinyon, and Kahkonen were not
referred for any reason other than an honest belief that the men. who did not get
the•Chitna jobs were entitled to them. And there is no convincing evidence that the
Union did not refer Sanuita for other than the fact that he was not in the hiring hall
when the referrals were made to the Locher job. Nor is there sufficient evidence to
justify the inference that the General Counsel would have the Trial Examiner draw
that-the Union purposely refrained from calling the Locher jobs openly in order to
avoid dispatching Sanuita.
MEastern Coal Corporation v. N.L.R.B., 176 F. 2d 131, 135, 136 (C.A. 4). It might be
noted parenthetically that a situation can arise where upon a study of the entire record,
including consideration of the witnesses ' credibility, the trier of the facts concludes that
the evidence on both sides creates an equipoise. It would appear that In such a situation,
the complaint must be dismissed since the General Counsel has not proved the allegations
in his complaint by a preponderance of the evidence. Such a probability is neither an
abstract or academic proposition as evidenced by the frequency with which juries in a
.court of law are unable to arrive at a verdict.
34 Miranda Fuel Company, Inc.,- 140 NLRB 181. .
$Local Union No. -18, Operating Engineers ( Ohio Pipe Line Construction Co.), 144
NLRB 1365. 6
i
CONCRETE SUPPLY CO. 1371
Disputes of job applicants, such as are involved herein, are precisely the type of
matters which article III, section 8 of the Agreement between the Union and the
employers (General Counsel's Exhibit No. 2) was intended to handle through the
contractual grievance and arbitration procedures. This provides for the creation of
a "Joint Hiring Committee" to determine disputes arising out of work registrations,
work referrals, and the preparation of the referral registration lists. The alleged dis-
criminatees failed to avail themselves of this grievance procedure. As Member
Brown has stated: "Under the agreement, any matter dealing with the Union' s alleged
breach of a contractual duty to refer [job applicants] should have been submitted
as a grievance" [to the Joint Hiring Committee] 36 It would appear therefore, that
the failure to exhaust their remedies first under the contract might warrant dismissal
of the complaint 37
In arriving at these conclusions, the Trial Examiner has been mindful of Holton
and Sanuita's militant predisposition toward the Union and, also, the Union' s antip-
athy toward both of them because of their having repeatedly filed charges against
the Union with the Board and having established a rival union to compete with Re-
spondent, as well as Sanuita having been expelled from the Union and Holton's re-
quested transfer from the Fairbanks Local of the Laborers Union to the Respondent
Union having been denied, but conjecture, suspicion, speculation, and surmise are
not an adequate substitute for the -requisite burden of proof necessary to substantiate
the unlawful discrimination allegations of the complaint.38 Nor is the Trial Ex-
aminer unmindful of the fact that both Sinyon and Kahkonen were not even registered
on the Union's referral lists and that Sanuita has received 21 job referrals from the
Union for the period August 1960 to May 25, 1963, which includes referrals subse-
quent to the time that the two incidents detailed above occurred.
In view of the foregoing conclusions, and upon the entire record, it is found that
the General Counsel has failed to establish by a preponderance of the credible testi-
mony that the Respondent committed unfair labor practices within the meaning of
Section 8(b) (1) (A) and 8(b) (2) of the Act 39 It will, therefore, be recommended
that the complaint be dismissed in its entirety.40
26Local Union No. 18, Operating Engineers (Ohio Pipe Line Construction Co.), supra.
si See Consolidated Aircraft Corp., 47 NLRB 694, enfd. 141 F. 2d 785 (C.A. 9) ; United
Telephone Company, et at ., 112 NLRB 779.
38 Punch and Judy Togs, Inc., 85 NLRB 499.
89 See N.L.R.B. V. News Syndicate Company, Inc., 365 U.S. 695 , where the Supreme
Court held that provisions for union control over hiring and job requirements were not
violative of the Act. "Referral by the union violates the Act only where there is dis-
crimination based upon union membership or union activity." N.L.R.B. v. Local 294,
International Brotherhood of Teamsters , at at. ( Valletta Motor Trucking Co., Inc.),
315 F. 2d 746 (C.A. 2).
40 The conventional " conclusions of law" which are customarily repeated at this point
are omitted as they will be found in the body of this Decision.
Concrete Supply Co. and Howard Freeman. Case No. 15-CA-
2330. May 5, 196.E
DECISION AND ORDER
On January 31, 1964, Trial Examiner Stanley Gilbert issued his
Decision in the above case, finding that the, Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision and both the General Counsel and the Respond-
ent filed briefs.
146 NLRB No. 163.