Iron Workers Local 167

National Labor Relations Board - Board Decisions

Aug 29, 1975

220 N.L.R.B. 70 (N.L.R.B. 1975)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers Local Union No. 167, International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Mid-Steel, Inc.) and Don W.
Brown. Case 26-CB-920
August 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On April 29, 1975, Administrative Law Judge Ben-
jamin K . Blackburn issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed limited exceptions and brief in sup-
port thereof, and an answering brief.
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
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . He recognizes that it is the Board's estab-
lished policy not to overrule such credibility resolutions unless the clear
preponderance of all the relevant evidence convinces the Board that the
resolutions are incorrect . See, Standard Dry Wall Products, Inc, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). He contends , however, that
certain aspects of the present case require that some of the credibility find-
ings be reversed . We have, however, carefully examined the record and find
no substantial basis in the record before us for reversing the Administrative
Law Judge's credibility findings.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge: The
charge was filed on August 22, 1974 ,1 and amended on
October 21. The complaint was issued on October 24. The
hearing was held in Memphis , Tennessee, on December 16
and 17 and January 27 and 28 , 1975. The issue litigated
was whether Respondent violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act, as amended, by
refusing to refer the Charging Party to available jobs with
Mid-Steel on August 14 and again on August 22. For the
1 Dates are 1974 unless otherwise indicated
reasons set forth below , I find that Respondent did not.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses , and after due con-
sideration of briefs , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Mid-Steel , Inc., is engaged in the building and construc-
tion industry as a steel subcontractor. While it performs
some steel erection work, the overwhelming majority of its
contracts call for the placing of steel rods on projects where
poured concrete structures are being built . It has an office
in Memphis . In the 12 months just prior to issuance of the
complaint in this case , it performed services valued in ex-
cess of $50,000 in Tennessee and other states. On Decem-
ber 16, the opening day of the hearing, it had under way
two projects in Pennsylvania , one in Florida, one in Texas,
one in Indiana , and one in Tennessee.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Mid-Steel is party to a collective-bargaining agreement
with Respondent which provides for an exclusive hiring
hall operated on nondiscriminatory principles. The con-
tract calls for registration and referral of applicants on the
basis of four groups distinguished by such criteria as expe-
rience in the trade. Applicants are placed in Group A, the
highest classification , for example , if they have worked as
mechanics or apprentices for the past 4 years , passed a
journeyman's examination administered by an Iron Work-
ers local, worked 1 of the last 4 years for an employer who
is signatory to the contract, and lived for the past year in
the "geographical area constituting the normal construc-
tion labor market." Group D, on the other hand, is made
up of applicants who have merely worked at the trade for
more than 1 year. Paragraphs 6, 7, and 8 of the referral
clause read:
6. The Union shall maintain each of the separate
Group lists set forth above which shall list the appli-
cants within each Group in the order of the dates they
registered as available for employment.
7. Employers shall advise the Union of the number
of applicants needed . The Union shall refer applicants
to the Employer by first referring applicants in Group
"A" in the order of their places on said list and then
referring applicants in the same manner successively
from the lists in Group "B", then Group "C", and then
Group "D". Any applicant who is rejected by the Em-
ployer shall be returned to his appropriate place with-
in his Group and shall be referred to another Employ-
er in accordance with the position of his Group and
his place within the Group. Upon a registrant being
referred for employment and actually employed on a
job more than three (3) days, such registrant's name
shall be removed from the list until such time as his
employment has been terminated at which time he
220 NLRB No. 19
IRON WORKERS LOCAL 167 71
shall be registered at the bottom of the appropriate list
under which he is entitled to be registered.
If a registrant, upon being referred in regular order,
refuses to accept the referral , such registrant's name
shall be placed at the bottom of the appropriate list
under which he is entitled to be registered.
8. The order of referral set forth above shall be fol-
lowed except in cases where Employers require and
call for employees possessing special skills and abili-
ties in which case the Union shall refer the first appli-
cant on the register possessing such special skills and
abilities.
There is no provision for referral of men requested by an
employer by name in situations where the special skills and
abilities contemplated by paragraph 8 are not a factor.
Paragraphs 7, 8, and 9 of the complaint , the parts which
frame the issues litigated at the hearing, read:
7.
Respondent maintains , by contract or arrangement
with the Employer , an exclusive referral system in the
job classifications represented by Respondent.
8.
Respondent, by its agent, Varner Roberson, on or
about August 14, 1974, caused or attempted to cause,
the Employer not to hire Brown by refusing to refer
him to an available job with the Employer because of
a prior dispute between Brown and Roberson con-
cerning Brown's allowing carpenters to do steel work.
9.
Respondent , by its agent , Varner Roberson, on or
about August 22, 1974, refused to refer Brown to an
available job with the Employer after he was specifi-
cally requested.
Don Brown is a member of Iron Workers Local 426 in
Detroit where , apparently, his father is a steel contractor.
However, for several years, off and on, prior to 1974 he
lived with his mother and children in Trumann , Arkansas,
and worked as a union ironworker in and around Mem-
phis , the geographical jurisdiction of Respondent . During
this period he obtained work through Respondent's hiring
hall without incident. Ironworkers come in assorted types,
depending on their skills . Their union books reflect this, at
least in part , since some show that a man is a journeyman
and thus presumably capable of doing structural, detail, or
rod work indiscriminately while others show more limited
qualifications. (While the record is a little obscure in this
area , I gather that welding is a skill unto itself and even a
man carrying a journeyman's book is not referred to a job
when the call is for a welder .) Brown is a rodbuster only,
that is, the only type of job he seeks when he utilizes
Respondent's hiring hall is one involving the placing of
steel rods to reinforce poured concrete. Respondent struck
on June 4. At that time Brown was working for Mid-Steel.
The event which the General Counsel contends explains
Respondent's motive for the August violations took place
in May, some 2 or 3 weeks before the strike began. There is
no significant disagreement about what happened at that
time.
The strike lasted for 30 days. During this period, Brown
worked at his trade in the Detroit area . When he returned
to Memphis after the strike, he sought to return to work for
Mid-Steel. This case turns on what happened on three dif-
ferent occasions in August. There is no real conflict about
what happened on August 20. It is impossible to reconcile
the testimony of the witnesses as to what happened on
August 14 and 22. As to those 2 days, the testimony of the
General Counsel's witnesses and the testimony of
Respondent's witnesses present a head-to-head credibility
conflict.
B. May
Mid-Steel had a three-man crew working in May on a
football stadium being built at the Arkansas State Univer-
sity campus in Jonesboro. Jeff Blankenship was the fore-
man. Don Brown and Arthur O'Neal White were under
him. White was the steward. Blankenship took a few days
off. He asked Brown to mind the store for him while he
was gone. Mid-Steel sent a final check to the project for
White and instructed Brown to give it to him. Mid-Steel
understood that White would move over to the payroll of
the general contractor on the project for the few days Mid-
Steel did not have enough work for him. Brown simply
handed White his check and told him he was laid off.
White called Respondent and protested that he had been
laid off illegally while Brown continued to work since he
was the steward on the job. Respondent telephoned Mid-
Steel, and the misunderstanding was quickly straightened
out.
A day or two later Brown was working in a hole placing
U-shaped rods around which concrete would be poured to
form the base of a light tower. White saw a carpenter hand
a rod or two to Brown. White went to a nearby construc-
tion office and called Respondent. He told Varner Rober-
son, Respondent 's business agent , that Brown was letting
carpenters do ironworkers work. Roberson asked to speak
to Brown. A labor foreman who was standing outside the
office hollered for Brown to come to the phone. Brown
cursed, jumped out of the hole, grabbed a piece of pipe,
and stormed into the office. As he picked up the telephone
he banged the pipe on the desk. There followed an argu-
ment between Brown and Roberson so horrendously pro-
fane that no witness could be persuaded at the hearing to
state explicitly just what words were used. In substance,
Roberson yelled at Brown for letting carpenters do iron-
workers work; Brown yelled at Roberson for making a
mountain out of a molehill.
A day or two later James (Sonny) Hawkins,
Respondent's assistant business agent, met Jerry Cole, an
official of Mid-Steel, at the jobsite. They conducted a brief
investigation of what had happened. When it was over,
Cole assured Brown that everything was all right.
C. August 14
Brown returned to Trumann from Detroit sometime in
early August. He began his quest for work on August 13,
when he telephoned Cole. The head-to-head credibility
conflicts start with the testimony as to this conversation
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and become critical , because of the allegations in para-
graph 8 of the complaint , with respect to the events of the
next day . The conflicts pit Brown against Cole , Blanken-
ship, and Roberson . Compared to the testimony with re-
spect to the events of August 22 , they are relatively easy to
resolve, for Brown displayed on the witness stand a memo-
ry so selective as to make him a reliable witness only where
the significant parts of his account are corroborated in
some way. Time after time when pressed for details about
the glibly given bare bones of his story , he retreated into
the shell of "I don't remember ." The testimony as to Au-
gust 14 differs in another important respect from the testi-
mony as to August 22 . As the following summary of what
each testified makes clear , even if I were to credit Brown
over Cole , Blankenship , and Roberson , the only evidence
that Roberson refused to refer Brown on August 14, as
paragraph 8 alleges , would be Brown 's account of what
Blankenship allegedly told him about a telephone conver-
sation Blankenship allegedly had with Roberson and thus
hearsay.
On August 13, according to Brown , Cole told him to go
to Respondent 's hall and Cole would put in a request for
him by name . According to Cole , he told Brown to go to
Jonesboro and talk to Blankenship to find out whether
Blankenship needed any men. In a subsequent call to
Blankenship , according to Brown , Blankenship instructed
him to come directly to Jonesboro instead of going to the
hall and Blankenship would get the hall to send a referral
slip to the project . Blankenship denied that he talked to
Brown on the telephone at all.
On August 14, late in the day, Brown went to the site in
Jonesboro where Mid-Steel was working on a building for
Craigshead Memorial Hospital . According to Brown,
Blankenship said he needed two men and then made a
telephone call to the hall , out of his presence , and talked to
Roberson . When he came back from the telephone , he told
Brown that Roberson had refused to send a referral slip to
Jonesboro for Brown , "he [Roberson ] didn't give a damn if
he [Blankenship ] didn't get a man , that I [Brown] couldn't
work in his area-I couldn't work in Jonesboro ." Accord-
ing to Blankenship , Brown arrived at the jobsite just as he
was laying off the men he already had on the project be-
cause they had temporarily run out of steel. Brown , appar-
ently , divined for himself that there was no work available
because he did not even ask for a job . The sum total of
their conversation was social pleasantries , including the of-
fer of a beer to Blankenship from a six-pack which Brown
was carrying, an offer which Blankenship politely declined.
Blankenship did leave Brown after Brown first spoke to
him, go into the office , and return while Brown was still
there . However , Blankenship 's purpose in going into the
office was not to call the hall and he did not make a tele-
phone call while he was there . Roberson testified that he
received no call from Blankenship for men that day.
(Respondent's retained copies of all the referral slips it is-
sued during August are in evidence along with those from
dates before and after August . Among them is one dated
August 14 and signed by Roberson which indicates an
ironworker named David Huddleton was referred to Mid-
Steel at its Jonesboro hospital project. No witness was
asked about it during the hearing, presumably because
counsel did not notice it among the mass of papers which
was put into evidence . I have no reason to doubt the testi-
mony of Cole and Blankenship , elicited in another context,
that Cole and not Blankenship usually called the hall when
Mid-Steel needed men. That somebody called for a man
early in the day is not inconsistent with Blankenship 's testi-
mony that work had run out temporarily near the end of
the day.)
I find that Cole's, Blankenship 's, and Roberson 's version
of these events is accurate . Since Mid-Steel had no jobs
open in Jonesboro when Brown showed up and did not
request Roberson to refer him , it follows that Respondent
did not cause or attempt to cause Mid -Steel not to hire
Brown on August 14 "by refusing to refer him to an avail-
able job with the Employer because of a prior dispute be-
tween Brown and Roberson concerning Brown's allowing
carpenters to do steel work."
D. August 20
When Brown returned home on August 14 he tele-
phoned Roberson at the hall and accused Roberson of re-
fusing to refer him to the Mid -Steel job in Jonesboro. Ro-
berson simply said he could not refer Brown because the
hall was full of men looking for work . By hanging up on
Brown , he refused to be drawn into an argument.
Brown thereupon telephoned Dick Wheeler , business
agent of Local 426, in Detroit, and asked Wheeler to inter-
cede with Roberson for him so that he could get a job.
Wheeler called Roberson . Wheeler said he was calling be-
cause Brown 's father , a good friend , had asked him to see
if he could do anything for his son . Wheeler explained that
Brown 's wife had left him with two children , that Brown
was working in the Memphis area because he had taken the
children to his mother in Trumann , and that Brown was
subject to epileptic seizures . He asked Roberson to help
Brown any way he could . Roberson told Wheeler he would
do his best but could not promise anything because rod
work was slow.
A few days later Brown 's father telephoned him and told
him that Wheeler said Roberson wanted to see him. Brown
went to the hall on August 20. He bumped into Hawkins in
the public part of the hiring hall and asked to see Rober-
son. Hawkins took him into the inner office which Rober-
son and Hawkins share . The only difference between
Brown 's version of the conversation which followed on the
one hand and Roberson 's and Hawkins ' on the other lies in
Brown 's efforts to paint Roberson as the aggressor who
started an argument by bad-mouthing him from the mo-
ment he walked into the room . Since I have already dis-
credited Brown generally I have relied , with respect to this
incident , on the testimony of Roberson and Hawkins.
(Brown , of course, testified before Roberson and Hawkins
did. He answered the General Counsel 's question "What
was said?" with quotes which made Roberson 's first words
an attack on him. The General Counsel then asked if any-
thing else was said . Brown 's indirect answer-"And then
the situation came up about O'Neal White [ ,] and me let-
ting carpenters [do] steel work over at the football stadi-
um"-is, I think , a good example of the lack of candor
which made Brown an unreliable witness. Roberson and
IRON WORKERS LOCAL 167 73
Hawkins agreed that Brown , not Roberson , brought up the
subject of the carpenters incident in May.)
Just as in May, Brown and Roberson got into a loud,
profane argument , so loud and so profane that Roberson
rebuked Brown for speaking in a manner that could be
overheard by and would be offensive to his female secre-
tary, at work in the next room. Brown's ire was aroused by
the way the conversation began. Brown said he was there
because Wheeler said Roberson wanted to see him . Rober-
son said that was not the message he had given Wheeler;
what he had said was that he would talk to Brown if Brown
wanted to see him, and added, "As far as my wanting to
talk to you, I don't care nothing about talking to you."
Brown asked why Roberson would not put him to work.
Roberson said because he did not have any rod work right
then . Brown lost his temper . He accused Roberson again of
refusing to refer him to Mid -Steel on August 14 after
Blankenship called for him by name . Roberson denied that
he had done any such thing. Brown said Roberson was
refusing to refer him to jobs because Roberson had it in for
him as a result of the layoff of White and the carpenters
incident in May. Roberson denied this also. Hawkins
asked if it were true that Brown had already been to the
Board's Regional Office in Memphis to complain about
being discriminated against by Respondent . Brown said he
had been there and discussed the situation with a Board
agent but had not yet filed a charge. The conversation end-
ed when an angry Don Brown walked out of the office of
an angry Varner Roberson.
E. August 22
The credibility conflicts as to the events of August 22 are
different in kind from those as to August 14 , for here the
General Counsel presented direct evidence which, if be-
lieved, would establish that Roberson refused a request
that he refer Brown to another Mid-Steel project. The con-
flicts pit Brown and Donald (Donnie) Elmore, on the one
hand , against Roberson , Hawkins , and Joe Pittman, on the
other . Elmore is an ironworker and sometime foreman for
Mid-Steel. On August 22 Mid-Steel put him in charge of a
1-day job installing a concrete slab at an Executive Inn
under construction in Memphis. Pittman is a trustee of Re-
spondent who is in charge of its apprentice training pro-
gram.
According to Brown and Elmore , Brown was in the hall
looking for work sometime before 8 a.m. when Elmore
came in looking for men . Brown told Elmore he was hav-
ing trouble getting a referral because Roberson was mad at
him over the ruckus they had had in Jonesboro. Elmore
said he would help Brown by asking for him by name when
he went in to see Roberson. When Elmore came out, he
told Brown that Roberson had refused to refer him, saying
Elmore did not pick the men to be referred to jobs, Rober-
son did . Once again, of course , Brown's testimony is only
hearsay as to what went on inside Roberson 's office.
Elmore's , however, is not.
Elmore testified there were three persons besides himself
in the office when the conversation took place . He identi-
fied them as Roberson, Hawkins, "and I don't know who
the other person was." He was confronted , on cross-exami-
nation, with Pittman and testified that he did not recognize
Pittman as the third man. Hawkins testified he was not
there. Roberson and Pittman testified that they were the
only persons other than Elmore in the room during the
conversation. Pittman testified that he left to get a cup of
coffee while Elmore was still in the office and Elmore was
gone when he returned. (Since Elmore's version of the con-
versation puts his mention of Brown in the first words he
spoke, Pittman's leaving the room before Elmore has no
significance.)
Elmore was asked to relate his conversation with Rober-
son by both the General Counsel and Respondent. On di-
rect examination, he testified:
Q. Did you talk to Mr. Roberson?
A. Yes, I did.
Q. What did you say to him?
A. I went in his office and I told him I needed Don
Brown and another good man.
Q. And what did he say?
A. He said he wasn't going to send me Don.
Q. Did he say why?
A. Yes, he said that-about the ruckus they had in
Jonesboro.
Q. Was anything else said in this conversation?
A. Well, he told me-he said I wasn't the business
agent, that he was running things, that I wasn't.
Q. All right. Did you get any men that day you
went up there?
A. Yes, sir, I got two men. He said, I got you two
good-said I got you two good men here, so I said,
well, all right.
Q. What else happened?
A. Well, of course, I didn't know the men, you
know.
Q. All right. Did you say anything else to Mr. Ro-
berson, was there any further conversation between
the two of you?
A. Well, I asked why he wouldn't send Don.
On cross, he testified:
Q. All right. Now, what was it that you first said to
Robby or Robby first said to you when you were at
the Union Hall that morning?
A. What I told him, what I said to him?
Q. Yes, sir, what he said to you?
A. What is Don Brown doing in here.
Q. That is what you said to Robby?
A. Yes, sir.
Q. All right, sir. What did he say to you?
A. He didn't say nothing. I told him I needed him
and another good man.
Q. You needed-
A. Him and another good man.
Q. Don Brown , did you call him by name?
A. I called him Don Brown.
Q. And another good man?
A. And another good man.
Q. What did Robby say to you then?
A. He said I can't send you Don.
Q. What else did he say to you?
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He said he had the ass for him .2
Q. He said what?
A. He had the ass for him.
Q. Who had the ass for him?
A. That is what Robby said.
Q. Robby said-tell me that again.
A. He had the ass for him, a-s-s.
Q. Oh, he had the ass for him, a-s-s.
A. Yes.
Q. That is what Robby said?
A. Right.
Q. Okay. What else did he say?
A. I asked him why, you know.
Q. Yes.
A. So he said about-about his behavior on the
Jonesboro job before the strike.
Q. What did he tell you about that?
A. He didn 't tell me about nothing.
Q. Well, what did he tell you about his behavior?
A. He said he started a bunch of ruckus in Jones-
boro that's all I knowed about.
Q. All right. Did you tell him that you had been on
that job, but you hadn't heard anything about this
ruckus?
A. I was on the job way before the strike. I
worked-wait a_minute, I worked one day and I went
back to Memphis cause I got a ticket on the highway
patrol, that is why I know.
Q. What else did Varner say?
A. He wasn't going to send him out, that's all.
Q. All right. Did his assistant say anything?
A. Didn't nobody say nothing.
Q. Did the other man who was in there say any-
thing else?
A. Nobody said nothing. I left. I had a job to put
in.
Q. All right. What did Mr. Roberson say about the
men that he was sending out with you?
A. Oh, he said, well, I got you two good men right
here.
Q. You were looking for good men and he had
good men, is that right? Is that what he told you?
A. Yes. One man lasted about two hours and I give
him his money.
Roberson and Pittman placed Elmore's arrival at the
hall closer to 10 a.m. than 8 a.m. They deny that there was
any mention of Brown or of the May incidents at the
Jonesboro football stadium project. Rather, they remember
the conversation because it struck them as odd that El-
more , known to them as just another ironworker ,3 claimed
2 Elmore subsequently corrected this detail . He said it was Brown who
used the having ass expression to explain Roberson's attitude and explained
that he was momentarily confused when he put it in Roberson's mouth at
this point.
7 Included among the referral slips in evidence is one dated August I
which indicates that Elmore was referred to Process Contracting Co. as a
foreman . It is signed by Hawkins , not Roberson.
to be a foreman and that he would leave a job which he
indicated was an urgent one to come to the hall for men
rather than telephone . Because Roberson was dubious
about Elmore's authority to put men on Mid-Steel's pay-
roll, he tried to place a phone call to Mid-Steel's office
before making a referral but was unable to get through.
This was the point at which Pittman walked out of the
office.
This record abounds in suspicion but is short on certain-
ty. First, there is the matter of the referral slips which are in
evidence. Elmore said Roberson gave him two men when
he went to the hall. Roberson said he gave him only one,
Charles McKee. Elmore said one of the two men was an
old drunk who only lasted 2 hours. Mid-Steel's payroll re-
cords indicate that McKee only worked for 2 hours. El-
more testified he may have gotten two more men by calling
the hall later in the day. There are three slips dated August
22 which show men referred to Mid-Steel. One, which
names Lennie Cofer and Charles Terrell, is for a project
other than Executive Inn. The other two are for Executive
Inn. One bears the name of Charles McKee. The other
bears the name of Danny Glasscock, Jr. If Elmore really
did get a total of four men from the hall that day, where
are the other two referral slips? If he got only two and took
both of them with him in the morning, why are McKee's
and Glasscock's names not on the same slip , like Cofer's
and Terrell's?
Next is the matter of Respondent 's sign-in pad. Respon-
dent keeps a pad in the hall which persons looking for
work are supposed to sign and which Roberson and Haw-
kins are supposed to consult when they make referrals. A
new list is started each morning . The pad which was used
from July 15 through October 15 is in evidence. Brown's
signature appears under only two dates, August 20 and
August 27. Roberson and Pittman testified they did not see
Brown in the hall on the morning of August 22. Brown
testified the absence of his signature proved nothing, men
still got referrals even when they failed to sign up and Ro-
berson and Hawkins did not rely on the list anyhow. They
insisted they did, but somewhat less than vigorously. There
are 18 names on the August 22 page of the sign-in pad.
Eleven of them, including Cofer, Terrell, McKee, and
Glasscock, are listed on referral slips dated August 22. (In
fact, one man who signed up-H. Boyett-got two refer-
rals that day.) Only two slips dated August 22 contain
names not found on the pad . One of them indicates the
man referred is an apprentice, apparently a category which
requires special handling under Respondent 's referral pro-
cedure. If Brown really went to the hall that morning look-
ing for work, why did he not sign up? If his name did not
appear on the pad at all, there could be no significance to
its absence on August 22. But why sign up on some occa-
sions and not others?
Then there is the matter of the sequence of Brown's visits
to the Board's Regional Office . Brown was vague about the
dates on which he went to the hall after returning from
Detroit, including the date on which he happened to bump
into Elmore. When the sign-in pad was called to his atten-
tion, he thought the latter event might have occurred on
IRON WORKERS LOCAL 167 75
August 27. However , there can be no doubt that it oc-
curred (if, in fact, it ever occurred) on August 22, for the
culmination of Brown's conversation with Elmore after El-
more came out of Roberson 's office was Brown's an-
nouncement that he was going back to the Board and file a
charge . The charge in this case was filed on August 22.
Presumably , when Brown went to the Regional Office the
first time and discussed his problem with a Board agent,
the ingredients of a hiring hall violation of the Act were
explained to him . Did he and Elmore then stage the August
22 incident in order to create evidence that would prove
Respondent was discriminating against Brown? If that is
so, would it not provide support for Elmore's version of the
conversation rather than Roberson 's and Pittman 's? Surely
a man involved in a conspiracy to create evidence would
not refrain from speaking the crucial words at the crucial
moment? Or would he? Did Brown really want a job or
was he engaged in a vendetta against Roberson? If the
latter, then Elmore's really asking for Brown would spoil
the game if Roberson acquiesced . Suspicions along this line
are silly and sterile.
In short , I can find nothing within the four corners of the
transcript and the exhibits to resolve the question of what
Elmore said to Roberson and Pittman and what they said
to him. Of the three, only Pittman impressed me as a total-
ly reliable witness. I rely on his testimony, therefore, to
find that Elmore did not ask Roberson on the morning of
August 22 to refer Brown to Mid-Steel 's Executive Inn pro-
ject. It follows that Respondent did not refuse "to refer
Brown to an available job with the Employer after he was
specifically requested."
er" in paragraph 7 made the pleading sufficiently precise to
satisfy due process. Since Respondent does not concede
that any such practice exists-and, in fact, strenuously liti-
gated the point-the General Counsel still has the burden
of proving that it does. Having found that Mid-Steel did
not ask Respondent to refer Brown to it, I do not reach this
issue.
The record in this area is as murky as it is with respect to
what Elmore and Roberson said to each other on August
22. The General Counsel called three witnesses whose testi-
mony went only to this point. I granted Respondent's mo-
tion to strike as to Purvis Simpson, construction superin-
tendent for American Bridge Division of United States
Steel Company, because his testimony was irrelevant. Ben-
nie Wells, a foreman for Southern Steel, testified that he
requested a man by name once and got him but the man
turned out to be a welder to whom the provisions of para-
graph 8 of the referral clause of the contract would pre-
sumably apply. Gene Warmath, general foreman for Mid-
South Erectors, testified he requested a man by name once
and got him but the man turned out to be an apprentice,
another special category. The testimony of witnesses such
as Roberson, Hawkins, Elmore, and Blankenship who were
asked about this as well as other points is inconclusive at
best. Therefore, if I were to reach this issue, I would find
that the General Counsel has failed to establish by a pre-
ponderance of the evidence that any such practice exists.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
F. The Other Issue
A major part of the hearing was devoted to an issue
posed by paragraph 7 of the complaint. The referral proce-
dure set forth in the contract between Respondent and
Mid-Steel imposed no duty on Respondent to refer Brown
to Mid-Steel under the circumstances which existed on Au-
gust 14 or August 22. There is no claim that Brown had
been out of work longer than any other ironworker in his
group or that no member of a group higher than Brown's
was looking for work. (The record does not contain enough
information to determine what group Brown falls into.)
Rather, the General Counsel's theory is predicated on the
existence of a practice supplementing the written docu-
ment under which ironworkers such as Brown who possess
no special skills or abilities are regularly and routinely re-
ferred from the hall if an employer requests them by name
at a time when they are available for work. When this first
became apparent during presentation of the General
Counsel's case , counsel for Respordent objected that the
complaint contained no such allegation and thus his client
had been denied due process . I ruled against Respondent
on the ground that inclusion of the word "arrangement" in
the phrase "by contract or arrangement with the Employ-
1. Mid-Steel, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Iron Workers Local Union No. 167, International As-
sociation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent vio-
lated Section 8(b)(1)(A) and (2) of the Act by refusing to
refer Don Brown to available jobs with Mid-Steel on Au-
gust 14 and August 22, 1974, have not been sustained.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER4
The complaint is dismissed in its entirety.
° 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.