Iron Workers Local 75 (Tyler Reinforcing)

National Labor Relations Board - Board Decisions

Oct 14, 1977

232 N.L.R.B. 1194 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural, Rein-
forcing and Ornamental Iron Workers, Local 75,
AFL-CIO (Bob C. Keith, an Individual Proprietor
d/b/a Tyler Reinforcing) and Richard M. Franko.
Case 28-CB-1 142
October 14, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING, AND MEMBERS
JENKINS, AND PENELLO
On June 30, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decsion in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge recommended
dismissal of the allegation that Respondent violated
Section 8(b)( )(A) and (2) by refusing to refer
Richard Franko from its exclusive hiring hall to
employment with Tyler Reinforcing.' Excepting to
this recommendation, the General Counsel asserts
that Franko was discriminatorily refused referral by
Respondent because of his recommendation that
Respondent's union steward, Will Holloway, not be
rehired for the Ina Road Water Pollution Control
construction project.2 We find merit in the General
Counsel's exceptions.
Franko began working on the project in February
1976,: as a foreman of the crew of subcontractor
Livermore Rebar, Inc.4 As a signatory to a contract
with Respondent's International, but not with Re-
spondent Local 75, Livermore was entitled to employ
some ironworkers of its own choosing regardless of
their placement on the out-of-work list used by
Respondent in the operation of its exclusive hiring
I Tyler Reinforcing is a steel erection subcontractor located in Chandler,
Arizona.
H2 ereafter referred to as the Project. Located near Tucson, the Project
was within Respondent's territonal jurisdiction.
:' Unless otherwise indicated, all dates herein refer to 1976.
Livermore is a California corporation and subcontractor in the building
and construction industry which places iron reinforcing, known as rebar, in
new structures. Franko had worked for Livermore in California where he
was a member of Local 416, a Los Angeles affiliate of the International, for
over 20 years. After he moved to the Phoenix, Arizona, area in October
1975. Franko worked on four other jobsites for Livermore before beginning
work on the Project.
I Under Sec. 3 of Respondent's contract, these individuals would fall within
Group "A." Franko fell within Group "B" which is defined by the contract
as those qualified for "A" status except foir the 4 years in the jurisdiction.
232 NLRB No. 178
hall. Franko was thereby able to become a part of
Livermore's crew on the project even though he had
worked less than I year in Respondent's territorial
jurisdiction. Under Respondent's standard contract,
as distinct from the International's, only individuals
who have passed a journeyman test and have worked
in the trade in Respondent's territorial jurisdiction
for 4 years are referrable by name.5
When financial problems forced Livermore to
withdraw from the project effective October 4, 1976,
the project's contractor, Del E. Webb Corporation
(hereafter Webb), assumed responsibility for the
Livermore crew until a permanent replacement could
be found. Because Webb was signatory only to the
contract with Respondent Local, it had a right to
request only Group "A" people by name. All of the
Livermore employees, including Franko, however,
were placed on Webb's payroll and Respondent did
not disturb Webb's retention of the Livermore crew
intact. On November 1, 1976, moreover, referral
slips, predated October 4, 1976, were issued by
Respondent to the Livermore crew for employment
with Webb. 6
Shortly thereafter, arrangements were made to
have Tyler Reinforcing complete Livermore's work
on the Project.7 Anticipating Tyler's assumption of
Livermore's obligation, general contractor Webb
formally terminated the former Livermore crew on
November 5. Inasmuch as Tyler, like Webb, was
signatory only to the contract with Respondent
Local, the former Livermore crew needed referrals
from Respondent's hiring halls in either Tucson or
Phoenix before going to work for Tyler. When
Tyler's owner, Bob Keith, requested that Respon-
dent's Phoenix hall refer Franko, he was told by
Respondent's agent, Wilson, that Franko "didn't
qualify to go out because he was on the 'B' list."
It is true that Respondent was not contractually
required to refer Franko for employment with Tyler.
If Respondent merely seized upon the contract as a
pretext, however, and it was really motivated by its
belief that Franko had undermined the position of
Respondent's steward, then a violation of the Act
resulted." That Respondent was motivated by ani-
mus towards Franko is demonstrated by the events
6 According to Respondent's business agent, Dennis Wilson. this was
done only to get Webb to assume responsibility for the fringe benefits
provided by the Livermore contract.
I Tyler was authonzed to complete Livermore's work by St. Paul Fire
and Manne Insurance Company which had bonded Livermore on the
Project.
8 See Local Union No. 305 United Assoiaioion of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United Statres and
Canada (Mechanical Contractors Association of Connecticut, Inc., acting
through its agent, Eastern Connecticut Mechanical Contractors Association),
211 NLRB 826, 828, 830(1974), enfd. 517 F.2d 1395 (C.A. 2, 1975). See also
District Council of Painters No. 52 AFL-CIO, Brotherhood of Painters,
Decorators and Paperhangers of America (Maynard C Belvoir), 150 NLRB
1194
IRON WORKERS, LOCAL 75
surrounding Webb's termination of the Livermore
crew and Tyler's request for Franko's referral. As
Webb's foreman, Franko delivered termination slips
to the crew on November 5. Before receiving his own
slip in the afternoon, Franko was confronted by
Respondent's assistant business agent, Shelby
McPeak, who reproved Franko for laying off
Steward Holloway ahead of others.9 Although
Franko explained that Webb had terminated all of
the former Livermore employees and not only
Holloway, McPeak threatened to "fix" Franko.
McPeak added: "I'll send some of the boys from the
hall out."
On Monday, November 8, McPeak telephoned
Tyler's owner, Keith, to verify the latter's request
that Franko and two other individuals be referred by
name. McPeak asked why Keith had not requested
the referral of Steward Holloway. Keith answered
that "Franko had told me that [Holloway] wasn't the
type of man I would want." According to Keith's
undenied testimony, McPeak was very upset and
insistent that Holloway be hired. Respondent's
anxiety over the Holloway situation is further
evidenced by a conversation later on November 8
between Keith and Respondent's agent, Dennis
Wilson. When Keith asked why Franko was not
being referred, Wilson replied that Franko "didn't
qualify to go out because he was on the 'B' list."
According to Keith's testimony, Wilson also stated
that he was upset because Holloway was not hired.
Keith added that "[in] so many words, [Wilson] said
that [Franko] didn't get along down there." 10
That factors other than mere reliance upon the
contract motivated Respondent's refusal to refer
Franko is also shown by Keith's conversations with
Respondent's agents on November 9. Keith person-
ally visited Respondent's Phoenix hiring hall to
inquire why no individuals had been referred and
was told by Respondent's assistant business agent,
Johnson, that Dennis Wilson had ordered him not to
"send anybody out down there and that he couldn't
send Franko out at all." When Keith thereupon
telephoned Wilson, Wilson again stated that Franko
could not be referred by name because he was not in
Group "A." Wilson added, however, that he had
1094, 1097 (1965), where the Board stated: "As it is clear that Johnson's
discharge was predicated upon discriminatory reasons, it is no defense that
the Respondent might have been entitled to require Johnson's discharge
pursuant to the hiring-hall provisions of the bargaining agreement here
involved."
9 Apparently, Holloway received his termination slip in the morning
while others received theirs later in the day.
i0 When Wilson was asked whether he said anything to Keith about
other people not liking Mr. Franko, Wilson replied: "1 said the report from
the job site was there was a lot of fnction on the job, and even with the
contractor because I had called the contractor myself." The Administrative
Law Judge does not mention either Keith's or Wilson's testimony in this
regard and thus neither account is credited nor discredited.
done some checking and learned that Franko
"wasn't very well liked." "1
Against this background of Respondent's threat to
"fix" Franko, and its evident anxiety and insistence
that Tyler rehire Union Steward Holloway while
simultaneously telling Tyler's president that Franko
was not very well liked, Respondent's contention
that its refusal to refer Franko was motivated by the
referral provisions of its contract is unpersuasive.
Rather, we conclude that Respondent was also
motivated by its belief that Franko had undermined
the position of Steward Holloway and that Respon-
dent used the contract to obscure its animus.
In making this determination, we recognize that
Respondent had a contractual right to remove
Franko from the project when Webb, signatory to
Respondent's contract, hired the Livermore crew.' 2
As acknowledged by the Administrative Law Judge,
Respondent failed to do so. Respondent, moreover,
apparently waived application of the contract's
referral provisions by issuing referrals to the entire
Livermore crew, including Franko, for employment
with Webb. Respondent's disparate application of
the contract to Franko belies Respondent's reliance
on the contract as a defense and reinforces our
conclusion of the presence of Respondent's unlawful
motive. Nor are we persuaded otherwise by the
Administrative Law Judge's characterization of the
Webb situation as one "of a temporary and an
emergency nature." Experience shows that frequent
turnover among subcontractors in the building and
construction industry is not rare.
Based on the foregoing, we conclude that Respon-
dent violated Section 8(b)(IXA) and (2) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(b)(1)(XA) and (2), we shall order it to cease and
desist therefrom and to take certain affirmative
action in order to effectuate the policies of the Act.
We shall require that Respondent notify Tyler
Reinforcing and Richard M. Franko, in writing, that
it has no objection to his referral for hire or
employment. We shall also require that Respondent
make Franko whole for any loss of earnings suffered
In assessing Keith's testimony, however, we note particularly the
Administrative Law Judge's recognition that "The relationship between
Respondent and Tyler Reinforcing has always been amicable."
" According to Keith's testimony, Wilson told him that neither McPeak
nor the men on the job like Franko. Wilson testified, however. that McPeak
merely said "there had been some dissension on the job but he didn't say
whether [Franko I was a good guy or a bad guy."
12 Sec. 3 provides "that when an individual Employer requires Iron
Workers to perform any work covered by this Agreement, he shall hire
applicants for employment to perform such work, in accordance with this
Agreement." Subsec. (a) provides: "All Employees required by the
Employer shall be furnished and referred by the Union to the Employer off
the hiring lists."
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by him by reason of the discrimination practiced
against him. Under Board law, Respondent's liability
for backpay shall terminate 5 days after notifying
Tyler and Franko that it has no objection to
Franko's employment. Loss of earnings, if any, shall
be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest to be accorded in the manner set forth in
Florida Steel Corporation, 231 NLRB 651 (1977). 13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, International Associa-
tion of Bridge, Structural, Reinforcing and Ornamen-
tal Iron Workers, Local shall:
1. Cease and desist from:
(a) Failing or refusing, in the operation of its
exclusive hiring hall, to refer Richard M. Franko for
employment with Tyler Reinforcing or any other
employer.
(b) In any other manner restraining or coercing
employees or applicants for employment in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the purposes of the
Act:
(a) Make whole Richard M. Franko for any loss of
pay he may have suffered by reason of the discrimi-
nation practiced against him in the manner set forth
in the section of this Decision entitled "The Reme-
dy."
(b) Preserve and, upon request, make available to
the Board or its authorized agents, for examination
and copying, all records, reports, work lists, referral
documents, and any other records and documents as
may be in its possession, custody, or control, which
are necessary or appropriate to analyze the amount
of backpay that may be due under this Order.
(c) Notify Bob C. Keith, an Individual Proprietor
d/b/a Tyler Reinforcing, and Richard M. Franko, in
writing, that it has no objection to the employment of
Richard Franko and that it will not discriminate
against him in referral for employment pursuant to
its hiring hall procedures.
(d) Post at its business office, hiring hall, and
meeting hall, copies of the attached notice marked
"Appendix."" 4 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by the Union's authorized
representative, shall be posted by the Union immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to job
applicants are customarily posted. Reasonable steps
shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Sign and mail a sufficient number of copies of
said notice to the Regional Director for Region 28
for posting by Tyler Reinforcing and every employer
signatory to a collective-bargaining agreement creat-
ing the exclusive hiring hall agreement administered
by Respondent, said employers being willing, in
places where they customarily post notices to their
employees
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
13 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the National Labor Relations Act and ordered us to
post this notice and abide by its terms.
WE WILL NOT fail or refuse, in the operation of
our exclusive hiring hall, to refer Richard M.
Franko for employment, with Tyler Reinforcing
or any other employer, for discriminatory rea-
sons.
WE WILL NOT in any other manner restrain or
coerce any employee or applicant for employment
through the exclusive hiring hall we operate, in
the exercise of rights guaranteed them by Section
7 of the Act.
WE WILL make whole Richard M. Franko for
any loss of pay he may have suffered by reason of
our discrimination against him, with interest.
WE WILL notify Tyler Reinforcing and James
M. Franko, in writing, that we have no objection
to the employment of Richard M. Franko and
that we will not discriminate against him in
referral for employment pursuant to our hiring
hall procedures.
1196
IRON WORKERS, LOCAL 75
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL,
REINFORCING AND
ORNAMENTAL IRON
WORKERS, LOCAL 75,
AFL-CIO
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Phoenix, Arizona, on May 26,
1977. The charge was filed December 22, 1976, and
amended January 25, 1977, by Richard M. Franko, acting
on his own behalf. The complaint issued February 7, 1977,
was amended during the hearing, and alleges that Interna-
tional Association of Bridge, Structural, Reinforcing and
Ornamental Iron Workers, Local 75, AFL-CIO, (herein
called Respondent) violated Section 8(bXIXA) and (2) of
the National Labor Relations Act, as amended.
The parties were permitted during the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Posttrial briefs were submitted
for the General Counsel and for Respondent.
I. JURISDICTION
At issue is Respondent's refusal to refer Franko on the
request of Bob Keith, an individual proprietor doing
business as Tyler Reinforcing.
Tyler Reinforcing is a steel erection subcontractor
located in Chandler, Arizona. In November 1976, it began
to perform under an $80,000 contract with Marathon Steel
Company and/or St. Paul Fire & Marine Insurance
Company on the project in question,' substantially com-
pleting its obligation thereunder by the time of the hearing.
Tyler in addition realized about $25,000 under contract
with Smith Pipe & Steel Company between July 1, 1976,
and the hearing.
Marathon Steel is an Arizona corporation engaged in
providing steel fabrication and erection services in the
construction industry. It annually sells, for shipment across
state lines, goods of a value exceeding $50,000. St. Paul
Fire & Marine, which had bonded Tyler's defaulting
predecessor on the Project, is a Minnesota corporation
engaged in the sale of insurance throughout the United
States. Its 1976 revenues exceeded $6 million. Smith Pipe &
Steel is an Arizona corporation engaged in the nonretail
sale of pipe and steel products to construction contractors,
among others. It annually purchases and takes delivery
from outside Arizona goods of a value exceeding $50,000.
It is concluded in these circumstances that Tyler
Reinforcing is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6). and (7)
of the Act.
I The Ina Road Pollution Control Project near Tucson. hereafter referred
to as the Project.
2 Respondent's contract defines Group "A" people as those who have
II1. LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
IIl. ISSUE
The complaint alleges that Respondent violated Section
8(b)(1)(a) and (2) by refusing to refer Franko to Tyler
Reinforcing in November 1976. The answer denies any
wrongdoing.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
The general contractor on the Project was Del E. Webb
Corporation. It subcontracted certain of the steel work to
Marathon Steel, which in turn sub-subcontracted to
Livermore Rebar, Inc. Livermore was forced by fiscal
problems to withdraw from the Project on about October 4,
1976. A month or so later, Marathon and St. Paul Fire &
Marine, which had bonded Livermore, arranged for
Livermore's replacement by Tyler Reinforcing. Tyler
began to perform under that arrangement on November 9.
The Project lay in the territorial jurisdiction of Respon-
dent. Livermore was signatory to a labor contract with
Respondent's International, but not with Respondent. As a
so-called International signatory, Livermore was entitled to
employ some ironworkers of its own choosing, regardless of
their grouping or placement on the out-of-work list used by
Respondent in the operation of its exclusive hiring hall.
This is how Franko, who had Group "B" standing, became
a part of the Livermore crew on the Project. Under
Respondent's standard contract, as distinct from the
International's, only Group "A" applicants are referable by
name.
During the hiatus after Livermore and before Tyler, Del
E. Webb assumed responsibility for the Livermore crew,
keeping it on the job, meeting the payroll, etc., until a
permanent replacement could be found. Although Webb
was signatory only to the local contract, and thus entitled
to request only Group "A" people by name, Respondent
did not disturb its retention intact of the Livermore crew,
Franko included. As explained by Dennis Wilson, Respon-
dent's business agent, Webb had assured Respondent "that
the job was going to go out for bid and they would be
putting it out to another contractor, and that they were just
carrying the payroll for a while." On November I,
however, Respondent went through the formality of issuing
referral slips to the crew, predated October 4, vis-a-vis
Webb. Wilson explained:
We were just trying to make sure that the people got
their fringe benefits. When I talked to Del Webb they
said the job would be put out for bids again and some
other contractor would be picking up the job. We tried
to get them [Webb] to assume the responsibility for the
fringe benefits which they finally did.
passed a journeyman test and have worked in the trade in Respondent's
temtorial jurisdiction for 4 years; and defines Group "B" people as those
qualified for "A" status except for the 4 years in thejurisdiction.
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 5, in anticipation of Tyler Reinforcing's
succeeding to the Livermore role, Webb formally terminat-
ed the erstwhile Livermore crew. This meant that the
crewmembers had to clear through Respondent's hiring
halls in either Tucson or Phoenix before going to work for
Tyler. By contrast, there had been no formal terminations
incidental to Livermore's departure; and, as indicated
above, no requirement that the people obtain fresh
clearances upon the takeover by Webb. Tyler, like Webb,
was signatory only to the local contract.
On November 8, a Monday, Tyler requested that
Respondent's Phoenix hall refer Franko and another
person by name, and that the Tucson hall refer yet another
named individual. Shortly after the Tucson request had
been placed, Respondent's assistant business agent in
Tucson, Shelby McPeak, telephoned Tyler's owner, Bob
Keith, verifying the order and asking why Holloway, the
steward on the Livermore crew, had not been requested.
Keith replied that "Franko had told me that he [Holloway]
wasn't the type of man I would want."
Later on November 8, no referrals having come from
either Tucson or Phoenix, Keith spoke with Dennis Wilson
at the Phoenix hall. To Keith's question why no one had
been referred, Wilson stated that Respondent was awaiting
settlement of a lingering retroactive pay problem concern-
ing the Livermore crew. Keith then asked about Franko's
being referred. Wilson answered that Franko "didn't
qualify to go out because he was on the 'B' list." Keith
countered that the job was "messed up" and that he needed
Franko to help set it right. At some point in the
conversation, Wilson asked, as had McPeak, why there had
been no request for Holloway. Keith replied, as he had to
McPeak, that he did not think Holloway "was the type of
man I wanted."
On November 9, by prearrangement between the two,
Franko appeared at the Phoenix hall the first thing in the
morning to await a repeat request from Keith for his
referral. Wilson told Franko at that time that he "was not
qualified to be called out by name" because he "did not
qualify for the 'A' list."3 After that, when Keith called in
his request, he was told by Al Johnson, an assistant
business agent, that Wilson had issued orders that Franko
not be sent out.
Keith presently telephoned Wilson, who in the meantime
had gone to Tucson. Wilson informed him, as he had the
day before, that Franko could not be referred by name
because he was not in Group "A." Wilson added that he
had done some checking and learned that Franko "wasn't
very well liked" by the crew anyway. Keith responded that
Franko's popularity was beside the point; that he needed
Franko's ability on the job. 4 Keith then asked if there was
any way to get Franko cleared. Wilson said there was not.
The retroactive pay problem was resolved the morning of
November 9.5 Respondent thereupon made two referrals,
enabling Tyler to begin work at or about noon that day.
Franko, however, was never referred.
3 Wilson is credited over Franko's denial that Wilson alluded to Franko's
Group "B" status as the reason for his not being subject to request by name.
Having told Keith this the da) before, it is entirely probable that Wilson
would have given the same reason to Franko.
4 It is undisputed that Franko is an excellent ironworker. Wilson testified
in substance that his purpose in making the remark about Franko's
In agreement with Wilson, Keith and Franko both
conceded in their testimony that Respondent would have
had to breach its hiring hall contract to honor Keith's
request for Franko. And, while Keith testified that he
"thought that I could talk Dennis [Wilson] into letting me
call him," there is no evidence of a single instance in which
Respondent has ignored the contract as Keith asked it to
do for Franko-unless its allowing Del E. Webb to retain
Franko as part of the Livermore crew is deemed analogous.
On this latter point, Wilson testified that, in his 10 years as
a business agent, he could not "recall another situation like
that" in which Webb, the general contractor, took over
Livermore's payroll.
Apart from being at cross-purposes with Respondent
concerning the desirability of Tyler's hiring Holloway,
Franko seemingly incurred McPeak's wrath the day of the
Webb terminations. Franko, as foreman, passed out the
termination slips, giving Holloway his in the morning while
some got theirs later in the day. McPeak went to the site,
upbraiding Franko for laying off the steward ahead of
others. The exchange ended with McPeak saying he would
"fix" Franko, elaborating: "I'll send some of the boys from
the hall out." Nothing of the sort ensued.
There were about 200 Group "A" applicants on
Respondent's out-of-work list at relevant times.
Franko is a member of Respondent's sister local in Los
Angeles, and has been for many years.
B. Conclusion
Conceding for argument that officials of Respondent
intensely disliked Franko, it nevertheless is concluded that
a violation has not been shown. Not only did the governing
hiring hall contract decree that Group "B" people not be
referred by name, but there is no evidence that Respondent
ever ignored that decree in like circumstances.
That Del E. Webb, subject to the same mandate, was
permitted to retain Franko does not undercut this conclu-
sion. The Webb situation was at once of a temporary and
an emergency nature, while that of Tyler Reinforcing was
neither. Moreover, there had been no formal terminations
before the Webb takeover, while there had been before that
by Tyler. Given these distinctions, it cannot be said that
Respondent exceeded its allowable range of discretion or
betrayed pretextuousness by standing on the letter of the
contract in the one situation and not the other. See,
generally, Ford Motor Company v. Huffman, 345 U.S. 330,
338 (1953); Ohio Valley Carpenters District Council, Local
Union No. 415, et al (Cincinnati Fixtures, Inc.), 226 NLRB
1032, 1033 (1976); United Brotherhood of Painters, Decora-
tors & Paperhangers of America, Local Union No. 487, A FL-
CIO (American Coatings, Inc.), 226 NLRB 299, 301 (1976);
Marquette Cement Manufacturing Company, 213 NLRB
182, fn. 2 (1974); International Association of Machinists and
Aerospace Workers, San Francisco Lodge No. 68, AFL-CIO
(West Winds, Inc.), 205 NLRB 132, 133 (1973); Chicago
popularity was to console Keith that Franko was not as essential to Tyler's
success as Keith seemed to believe; and Keith testified that he understood
the remark in this light.
5 The record affords no basis for suspecting that this problem was other
than genuine. The relationship between Respondent and Tyler Reinforcing
has always been amicable.
1198
IRON WORKERS, LOCAL 75
Federation of Musicians, Local 10, American federation of
Musicians (Shield Radio & TV Productions), 153 NLRB 68,
84 (1965); Local Union No. 337, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO
(Townsend & Bottum, Inc.), 147 NLRB 929, 931 (1964);
New York Typographical Union Number six, Intern. tional
Typographical Union, AFL-CIO and The New York Times
Company; and Publishers' Association of New York City
(Lawrence F. Cafero), 144 NLRB 1555, 1558-59 (1963).
This is not to say that Respondent's conduct is above
suspicion. Wilson injected an element of doubt concerning
his purity of motive by mentioning that Franko "wasn't
very well liked," as both he and McPeak did by their stated
displeasure that Holloway had not been requested-a
circumstance for which Franko was responsible. The text
and context of these remarks is not sufficiently unambigu-
ous, however, to convert suspicion into finding, particular-
ly absent persuasive evidence of disparate contract applica-
tion and since Wilson was undeviatingly consistent in
citing Franko's lack of Group "A" standing as the reason
for his nonreferral.
Such cases as Local Union No. 305, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada (Mechanical
Contractors Association of Connecticut), 211 NLRB 826
(1974), and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 576 (Westfield
Thriftway Supermarket), 201 NLRB 922 (1973), on which
the General Counsel relies, contain vastly clearer indicia of
improper motivation outside the contract.
CONCLUSIONS OF LAW
i. Bob C. Keith, an Individual Proprietor d/b/a Tyler
Reinforcing, is an employer within Section 2(2) of the Act,
engaged in and affecting commerce within Section 2(6) and
(7).
2. Respondent is a labor organization within Section
2(5) of the Act.
3. Respondent did not violate the Act as alleged.
[Recommended Order for dismissal omitted from publi-
cation.]
1199