Local 513, International Operating Engineers

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 921 (N.L.R.B. 1972)

LOCAL 513, INTERNATIONAL OPERATING ENGINEERS _ 921
International Union of Operating Engineers , Hoisting
and Portable Local No. 513, AFL-CIO (S. J. Groves
and Sons Co.) and Ronnie D. Hildreth . Case 14-
CB-2310
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On May 25, 1972, Administrative Law Judge'
Morton D. Friedman 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 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
attached Decision 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 found that
Respondent's failure to refer Ronnie D. Hildreth, the
Charging Party herein, for employment was not dis-
criminatorily motivated. For the reasons discussed
below, we disagree.
The facts herein may be briefly stated. Respon-
dent operates several hiring halls in the State of Mis-
souri. Applicants for job referrals must register at the
hiring hall nearest the job in which they are interested.
An applicant's seniority for referral is then based
upon the date of registration, if he has the qualifica-
tions to perform the job.
Hildreth has been a member of Respondent in
good standing since 1969, and from that time until
December 1970 had no difficulty in gaining referrals
through Respondent's hiring halls.
From early July 1970 until December 10, 1970,
Hildreth had been employed on a job to which he was
referred by Respondent. Hildreth believed that he
had been under-classified on this job and should have
been receiving higher wages . He therefore discussed
the matter with Paul Ott, Respondent's business rep-
resentative in charge of the Rolla, Missouri, hiring
hall, at a December 1970 membership meeting. Ott
explained at that time that there had been a misun-
derstanding, for he was under the impression that
Hildreth had been operating equipment which called
for Hildreth's lower wage rate . Hildreth explained the
1 The title of "Taal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
job he had been doing and Ott agreed that Hildreth
was entitled to more money, Hildreth then stated to
Ott, "I didn't think you were that stupid to think
something like that ...." Ott turned red in the face
and said that he would take care of it. Hildreth later
received a check for the difference in pay.
Since that time Hildreth has not received any
referrals from Respondent's hiring halls, although he
was properly registered, there have been job requests
for which he was qualified, and applicants with less
registry seniority were referred to such jobs.
In finding no violation, the Administrative Law
Judge considered only referrals made by Respondent
to employers involved in a pipeline construction proj-
ect. While observing that one such referral, of an ap-
plicant with less seniority than Hildreth, raised a sus-
picion of discriminatory motivation as to Hildreth,
the Administrative Law Judge found that the other
referrals, although of individuals with less seniority
than Hildreth, had a legitimate objective reason: such
individuals had prior pipeline experience, whereas
Hildreth did not.
Respondent's normal referral practice is based
on registry seniority, and referral to a particular job
is given to the employee with the earliest date of reg-
istration on Respondent's out-of-work list (providing
the employee is qualified to perform the job to be
filled). Respondent contends that its contracts with
the various pipeline employers required Respondent
to refer only those employees who had previous pipe-
line experience, and that since Hildreth had no previ-
ous pipeline experience it was necessary for
Respondent to refer employees with less seniority
than Hildreth.
While the Administrative Law Judge rejected
this contention, he nevertheless found that pipeline
experience was a legitimate consideration for Respon-
dent to apply in passing over Hildreth. As the record
reveals, however, Respondent referred many other
applicants who had no previous pipeline experience.
Thus, Emery Reese, Chester Crider, and Business
Representative Ott's son were referred to jobs which
Hildreth was qualified to perform. They were all less
senior than Hildreth; indeed, Ott's son was not even
on the seniority list, nor was he qualified for the job.
Although Crider had some prior pipeline experience,
he had no experience in the position to which he was
referred. The Administrative Law Judge gave little or
no consideration to these referrals. Further, he gave
no consideration to the referrals of still other employ-
ees who had absolutely no previous pipeline expe-
rience.
In addition, the Administrative Law Judge failed
to consider Respondent's failure to refer Hildreth to
two other jobs which had nothing to do with pipeline
work. Thus, Lawrence Duncan, who had less seniority
199 NLRB No. 155
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than Hildreth, was referred to Drilling Service Com-
pany to operate an air compressor. Hildreth had done
that same job for the same company at an earlier time,
before he began having difficulty being referred by
Respondent. In September 1971, Ronnie Duncan,
whose name does not even appear on Respondent's
seniority list, was referred to Minner Construction
Company to operate an air compressor.
While Respondent may establish reasonable
rules for administering its hiring halls, it may not
administer them in a discriminatory manner.2 Upon
the entire record we cannot agree with the Adminis-
trative Law Judge that Respondent's alleged reason
for its refusal to refer Hildreth (namely, lack of pipe-
line experience) is established by the record. Far from
enforcing this alleged requirement, Respondent fre-
quently waived it with respect to other employees. As
the Administrative Law Judge found, Hildreth was a
member in good standing with dues fully paid up.
Accordingly, as the evidence does not show any
legitimate reason for the refusal to refer Hildreth for
employment, and does show prima facie bases, unex-
plained by Respondent, for inferring discriminatory
treatment, we conclude that such refusal constituted
a violation of Section 8(b)(1)(A) and (2) of the Act.'
THE REMEDY
In order to effectuate the policies of the Act, it
is found necessary that Respondent (1) cease and de-
sist from the unfair labor practices found, and from
like or related unfair labor practices; and (2) take
certain affirmative action, including making whole
Ronnie D. Hildreth for loss of earnings computed on
a quarterly basis, plus interest at 6 percent per annum,
as prescribed in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716;
and (3) post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
2 United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-
CIO (Rayber-Kiel, Inc), 152 NLRB 629, enfd. 369 F 2d 684 (C A 9), J J
Hagerty, Inc, 139 NLRB 633, 654, enfd in part sub nom . Local138, Interna-
tional Union of Operating Engineers, AFL-CIO v NL.R B, 321 F.2d 130
(CA 2)
3 See Laborers International Union of North America, Local]] 77 (Nichols
Construction Corporation), 183 NLRB No 111, Millwrights and Machine
Erectors' Local No 1699, AFL-CIO (Swinerion and Walberg Company), 159
NLRB 1337.
tions Board hereby orders that Respondent, Interna-
tional Union of Operating Engineers, Hoisting and
Portable Local No. 513, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer
within the meaning of the Act to deny employment to,
or in any other manner to discriminate against, Ron-
nie D. Hildreth in violation of Section 8(a)(3) of the
Act.
(b) Refusing to refer Ronnie D. Hildreth for em-
ployment in accordance with Respondent's normal
hiring hall procedure and practice.
(c) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Refer Ronnie D. Hildreth for employment to
positions for which he is qualified, in accordance with
Respondent's normal hiring hall procedure and prac-
tice.
(b) Make Ronnie D. Hildreth whole for loss of
earnings suffered as a result of the discrimination
against him in the manner set forth in the section
above entitled "The Remedy."
(c) Post at its office, meeting halls, and hiring
halls, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt therof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members and employees are custom-
arily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER , dissenting:
The facts set forth by my colleagues fail, in my
view, to establish a violation of the Act. They show
that Hildreth was not referred to jobs when he might
normally have expected such referrals. They do not
establish an illegal motivation for his nonreferral. In
my opinion, that is an insufficient record on which to
premise a finding of a violation of Section 8(b)(1)(A)
and (2) of the Act.
4 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."
LOCAL 513, INTERNATIONAL OPERATING ENGINEERS 923
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportuni-
ty to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice:
WE WILL NOT cause or attempt to cause any
employer, with the meaning of the Act, to refuse
to hire or in any other manner discriminate
against Ronnie D. Hildreth in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed under the Act.
WE WILL make Ronnie D. Hildreth whole for
loss of pay suffered as a consequence of our hav-
ing refused to refer him for employment in ac-
cordance with our normal hiring hall procedure
and practice.
INTERNATIONAL UNION OF OP-
ERATING ENGINEERS, HOISTING
AND PORTABLE LOCAL No. 513,
AFL-CIO
(LABOR ORGANIZATION)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 448, 210 North 12th Boulevard,
St. Louis, Missouri 63101, Telephone 314-622-4142.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on September 8, 1971, by Ronnie D. Hildreth, an
Individual, herein called Hildreth, the Regional Director for
Region 14 of the National Labor Relations Board , herein
called the Board, issued a complaint on January 11, 1972,
and an amendment to said complaint on February 25, 1972,
against International Union of Operating Engineers , Hoist-
ing and Portable Local 513, AFL-CIO, herein called the
Respondent or the Union, alleging violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act,
herein called the Act. In its duly filed answer to the com-
plaint , the Respondent , while admitting certain allegations
of the complaint, denied the commission of any unfair labor
practices.
Pursuant to notice , a hearing in this case was held
before me at St. Louis, Missouri, on March 21 and 22, 1972.
All parties were represented and were afforded full opportu-
nity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs. Oral argument was waived.
Briefs were filed by counsel for the General Counsel and the
Respondent. Upon consideration of the entire record here-
in, including the briefs, and upon my observation of each
of the witnesses as they appeared before me , 1 make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
S. J. Groves and Sons Co., a corporation authorized
to do business in the State of Missouri, operates certain
jobsites in the State of Missouri. During the year ending
December 31, 1971, a representative period, Groves pur-
chased and caused to be transported and delivered mate-
rials of a value in excess of $50 ,000 to jobsites in Missouri
from points located outside Missouri.
Ford-Bacon and Davis Construction Corporation,
likewise a corporation authorized to do business in Mis-
souri, maintains jobsites in the State of Missouri. During the
year ending December 31, 1971, a representative period,
Ford-Bacon and Davis purchased and caused to be trans-
ported and delivered to its Missouri jobsites supplies of a
value in excess of $50 ,000, which supplies came from points
located outside of the State of Missouri.
Pipeline Dredging, Inc., a Texas corporation authoriz-
ed to do business in Missouri , maintains jobsites in the State
of Missouri. During the year ending December 31, 1971, a
representative period, Pipeline performed services of a value
in excess of $50 ,000, which services were performed for
enterprises at locations other than the State of Texas, and
its direct outflow was in locations other than in the State of
Texas in the calendar year 1971.
Accordingly, I find and conclude that Groves, Ford-
Bacon and Davis , and Pipeline are employers engaged in
commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Did the Union fail and refuse to refer Ronnie D.
Hildreth to employment as a reprisal against Hildreth for
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legitimate criticism by Hildreth of the Union's business
agent in violation of Section 8(b)(1)(A) and (2) of the Act?
B. The Evidence
The collective-bargaining agreements between the Un-
ion and the employer association to which Groves, Ford-
Bacon and Davis , and Pipeline belong each provides for an
exclusive hiring hall through which halls the Respondent
Union makes referrals of men to work . There is nothing
unusual about the hiring hall and referral arrangements
with regard to the agreement between the Union and the
association to which Groves belongs . However, the contract
between the Union and the employer association to which
Ford-Bacon and Davis and Pipeline belong contains the
following paragraph:
Article II (H) It is recognized that because of the spe-
cial nature of pipeline construction work , it is necessary
that employer have available experienced and qualified
employees and that both parties shall cooperate to the
end that all of the employees hired hereunder shall be
capable of performing pipeline construction work in an
experienced manner.
Because the Respondent 's operations are extended
over the entire eastern half of the State of Missouri, it is
necessary that the Respondent, in order to efficiently oper-
ate its referral procedures, maintains a number of hiring
halls at various locations . Thus , the Union operates hiring
halls at St . Louis, Hannibal , Jefferson City , Rolla, Farming-
ton, and Cape Girardeau . To operate these hiring halls the
Respondent has promulgated rules which require that an
applicant for work must register on the out-of-work list and
must reregister every 30 days . In addition , it is required that
members register at the hiring hall nearest their home for
referral to work in that area . For job seekers desiring to be
referred to particular jobs outside their home area , the ap-
plicants are required to register at the hiring hall nearest the
jobsite . It should be noted in connection with all of this that
in his testimony , Ronnie Hildreth , the Charging Party, ad-
mitted that he was informed of and knew of these registra-
tion requirements at all times pertinent to the matters
involved in this proceeding.
Hildreth , admittedly a member in good standing since
his induction into the Union in 1969 when he left the Army,
was from the period of his early membership during 1969
and 1970 referred to a number of jobs by the Union. From
the first part of July 1970 to December 10, 1970 , Hildreth
was employed by O. L. Koch Company , a job to which he
had been referred by the Union . At the time the job ended,
Hildreth was of the opinion that he had been under classi-
fied on that job and had therefore received less in wages
than he thought he was entitled to. He spoke to the employ-
er about this matter . The employer advised him that it was
the business agent who had classified him and that the
employer knew nothing further about the matter . Accord-
ingly , at a meeting of the Union in St. Louis in December
1970, Hildreth , accompanied by his father , who was also a
member of the Union, approached Business Representative
Paul Ott concerning the matter. Hildreth told Ott that he
had been misclassified on the Koch job . According to Hil-
dreth and his father , Hildreth asked Ott what the classifica-
tion for a tractor operator pulling a sheeps foot roller would,
be. Ott said there was a misunderstanding . Ott explained
that he thought that Hildreth had been operating a self-
propelled roller and said that the classification was correct
and that Hildreth was wrong. Hildreth said to Ott "You
mean that a tractor operator pulling a sheeps foot roller is
classified as a sheeps foot roller operator ?" Ott answered
"No, not that." Then Hildreth said to Ott , "I didn't think
you were that stupid to think something like that , as you can
plainly see that a sheeps foot roller can't be moved without
something pulling it and I would be classified as operating
it, I would think."
According to both Hildreths , Ott turned red in the face
but nevertheless said nothing except that "I will take care
of it ." A few days later , the complaining Hildreth received
a check in the mail for the difference in his pay which
indicated that Ott had taken care of the matter.
However , thereafter for a period of 13 months, Hil-
dreth did not receive a single referral by the Union to any
job. During that period of time there were two large jobs
being performed in sections of Missouri within the ge-
ographical jurisdiction of the Union . Thus , in 1970 and 1971
the S . J. Groves and Sons Co . was engaged in a highway
construction job in the vicinity of the Cape Girardeau hiring
hall. Before December 14, 1970 , the Respondent's hiring
hall at Farmington , Missouri , had made referrals to the
Groves job. However, on December 14, 1970 , a hiring hall
was set up at Cape Girardeau , Missouri and from that date
on, only the Cape Girardeau hall made referrals to the
Groves job.
According to Hildreth , in about the end of March or
beginning of April, after the last big snow , he went with his
father to register at the Cape Girardeau and Farmington
hiring halls in order , presumably , to be referred to the
Groves job . He was never referred to that job from these
halls or to any other job.
According to Hildreth , when he went to the Cape Gir-
ardeau office to register , the secretary there raised a ques-
tion as to whether a $ 10 permit fee was required of Hildreth.
Upon advice from business agent William Tinker, who was
present, Tinker stated that Hildreth was a member in good
standing and was not required to pay a permit fee. Accord-
mg to Hildreth , he then made out a registration card to be
placed on the out-of-work list and left to go to Farmington.
Tinker testified that he remembered no such incident con-
cerning Hildreth at the Cape Girardeau office and that, as
far as he knew, Hildreth had never registered at the Cape
Girardeau office.
Hildreth further testified that he registered the same
day at the Farmington hall. The Respondent's Farmington
records show that Hildreth did register and filled out a card
on April 5 , 1971. From the foregoing , I find and conclude
that inasmuch as the Farmington card shows that Hildreth
did register on the day in question , it is more than likely that
Hildreth did register at Cape Girardeau on that day. This
is especially true in view of the fact that Hildreth remem-
bered so vividly and testified so certainly as to the events at
the Cape Girardeau office on the day in question . I further
note that Tinker did not deny specifically that Hildreth had
been at the Cape Girardeau office on the day in question
but rather stated that he could not remember . Accordingly,
I credit Hildreth and find that he did register at the Cape
Girardeau office on April 5, 1971. However , it should be
LOCAL 513, INTERNATIONAL OPERATING ENGINEERS
noted in reference thereto, that the Cape Girardeau office
records are barren of any records concerning Ronnie Hil-
dreth.
In connection with referrals to the Groves job, George
L. Hildreth, the Charging Party's father, testified that he
had been referred to the Groves job out of the Farmington
hall. However, he admitted that he registered at the Farm-
ington hall at the time when the Farmington and Girardeau
halls were combined and before the Girardeau hall was set
up by the Union. Introduced into evidence in connection
with this testimony was a letter from Groves to the Board's
Regional Attorney showing that George T. Hildreth was
sent to the Groves job on September 30, 1970, a date preced-
ing by 3 months the establishment of the Cape Girardeau
hall, and a period of at least 6 months before the Charging
Party had registered at the Cape Girardeau hall.
Also in connection with hirings on the S. J. Groves job,
Emery D. Reese testified that he had worked for Groves on
the Groves job and had also been referred out of the Farm-
ington hall. However, Groves' records fail to reveal that
Reese had worked for Groves on the particular job in ques-
tion. Accordingly, I do not credit this portion of Reese's
testimony.
The other big construction job that was being pursued
in the Respondent's jurisdictional area was a pipeline job to
which men were referred out of the Union's Rolla hall.
There is no question, and the Respondent does not deny,
that during the entire period of this job Charging Party
Hildreth was registered at the Rolla hall. Hildreth testified,
and I accept his testimony, to the effect that he regularly
registered for the out-of-work list at the Rolla hall during
the entire period of his unemployment. The pipeline job was
being conducted by Ford-Bacon and Davis as prime con-
tractor and Pipeline Dredging as subcontractor.
As noted above, Charging Party Hildreth was never
referred to the jobs of either of these companies. However,
other members of the Union testified that although their
names had been placed on the out-of-work list subsequent
to the date that Hildreth's name had been placed on that
list, they, nevertheless, had been referred to the jobs of
Ford-Bacon and Davis and Pipeline Dredging during the
penod when Hildreth was not referred. According to the
testimony of Business Representative Ott, he, Ott, is
charged with the responsibility under the pipeline contract
with the Union to select only those prospective employees
for referral who had previous pipeline experience. Ott re-
ferred to that portion of the contract between the pipeline
contractors and the Union which is set forth in full earlier
in this decision which requires that only experienced engi-
neers be referred to pipeline work.
Referrals to pipeline jobs were given to individuals who
had been entered on the out-of-work list subsequent to that
of member Ronnie Hildreth. Thus, Emery Reese , who had
never worked on a pipeline job before, was referred to the
pipeline job as a fleet greaser. The card of Ronnie Hildreth
showed that at the time that this occurred he was registered
at the Rolla hall and that one of his qualifications was as
a greaser . It should be noted in connection with Ronnie
Hildreth's card at the Rolla hall that the card introduced
into evidence, or shown at the hearing herein , was a new
card and Business Representative Ott testified that
925
Hildreth's old card had been lost.
Member Ronnie G. Duncan who was on the out-of-
work list later than Ronnie Hildreth, was referred to the
Ford-Bacon and Davis pipeline job as an oiler. However,
he had worked before as an oiler on pipeline jobs.
Member Lawrence Duncan was laid off a job in March
1971 and was thereafter referred to the Ford-Bacon and
Davis pipeline job as a clam operator. At another time in
June or July of 1971 he was rereferred to Ford-Bacon and
Davis as a back hoe operator. He also worked in 1971 at two
different times for Pipeline Dredging, each time referred by
the Union. However, it would seem that Duncan had skills
for pipeline work which Ronnie Hildreth did not possess.
On the second Ford-Bacon and Davis job to which Duncan
was referred, the son of Business Representative Ott was
referred to him as an oiler. However, the Company refused
to hire the young man inasmuch as he was under 18 years
of age. Thereafter a substitute oiler, a laborer not referred
by the Union and not an engineer by trade, was assigned to
Duncan as an oiler.
Member Joseph L. Maness finished a job on May 20,
1971, and then was referred by Ott to Ford-Bacon and
Davis as an oiler on a back hoe. He finished this job on June
24. Later, Maness was again referred to Ford-Bacon and
Davis as an oiler on a back hoe. He admitted that as an oiler
he had to read the grades on the ditches, a task for which
Ronnie Duncan had had no experience. Furthermore, Ma-
ness had worked many,times on pipeline jobs before.
Member Chester Crider was referred to the pipeline job
of Pipeline Dredging as an oiler after January 29, 1971. He
had worked on pipeline jobs before as a back hoe operator
but never before as an oiler. However, he testified that on
this job he was not required to stake or measure grades.
Additionally, in his testimony, Ott admitted in identify-
ing the records of the Rolla hall that the names of members
who had stars alongside their names were the members who
had had pipeline experience. He admitted that during the
job some members who did not have stars alongside their
name were referred to pipeline jobs. But, he maintained that
this was a matter of experience and qualification and that
he had to make his judgments for referral on this basis as
best he could.
C. Concluding Findings and Analysis
The General Counsel contends that the Respondent's
failure and refusal to refer Charging Party Hildreth to any
of the jobs during the period in question was based on
Respondent's hostility to Hildreth because he legitimately
criticized Ott, the business agent. The General Counsel fur-
ther contends that such discrimination,against an applicant
for referral based on such union-related considerations as
hostility of union agents or officers constitutes violations of
Section 8(b)(1)(A) and (2) of the Act.
On the other hand, the Respondent contends that be-
cause Hildreth was never registered at Cape Girardeau and
was therefore not referred and because Hildreth was not
qualified to perform pipeline work, he was not referred to
the pipeline job and that therefore there was no discrimina-
tion against him. Respondent further contends that evi-
dence of discrimination is entirely absent. Respondent
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further contends that it is not for the Board to substitute its
judgment in the referral of employees for such jobs as the
pipeline jobs for the judgment of its union business repre-
sentative responsible for such referral.
If, in fact, it is found that the failure to refer Hildreth
to either the Groves or Pipelinejobs was, in fact, discrimina-
tory, then the Board would not be substituting its judgment
for that of Business Agent Ott. Therefore, the question is
whether there is sufficient evidence in the record to spell out
discrimination in the failure to refer Hildreth to either the
Groves or Pipeline jobs. I have heretofore found that Hil-
dreth did, in fact, timely register at the Cape Girardeau hall
for referral to the Groves job. On the other hand, Tinker
testified and the Respondent's records show that for what-
ever reason Hildreth does not have a card and did not have
a card during the critical period at the Cape Girardeau
office. The question that this raises is whether Hildreth's
card was lost or somehow mislaid or whether it was delib-
erately removed from the Respondent's Girardeau hall files.
To resolve this issue, consideration must be given to the
conversation at St. Louis in December 1970 between Ron-
nie Hildreth and business representative- Paul Ott. As set
forth above, this conversation concerned the fact that Hil-
dreth did not receive proper compensation for his work
performed on the Koch job. An analysis of that conversa-
tion discloses that there was no actual argument between
Ott and Hildreth and that the most that can be said of
Hildreth's remarks at that time was that they amounted to
a slight insult to Ott. However, it must be noted that Ott did
not retaliate in any way at that time, at least . He may have
turned red in the face as testified by both the Hildreths.
However, he dutifully and immediately procured for Ron-
nie Hildreth the backpay that was due the latter. There is
no further evidence with regard to union hostility unless
such can be inferred from the nonreferral of Hildreth in the
period during which he was unemployed. The Respondent
contends that Hildreth's Cape Girardeau card, if indeed he
had one, was lost. The General Counsel would have the
Board infer that the card was deliberately removed from the
files in retaliation. I do not find that there is sufficient
evidence under all the circumstances to make the findings
requested by the General Counsel.
Moreover, I do not view the failure of the Union to
refer Hildreth to the Groves job in isolation. However, I do
consider it in conjunction with the failure of the Union to
refer Hildreth to the pipeline jobs. Here again the conversa-
tion between Ott and Hildreth at the St. Louis union head-
quarters must be taken into consideration. Here again, the
General Counsel argues that the failure to refer must neces-
sarily have been as a result of the conversation and not as
a result of a proper exercise of the judgment of Business
Representative Ott. To clarify this situation the testimony
of other employees who were referred to the pipeline job
must be reviewed. Each employee who testified that he had
been referred to the pipeline job by the Union further testi-
fied that there was some legitimate objective reason for the
referral . Thus, in the case of Reese he was sent as a greaser
and not as an oiler. However, Hildreth was also qualified as
an oiler . Thus insofar as the Reese referral is concerned,
there could be inferred a discriminatory motivation in not
referring Hildreth. However, in the case of the Duncans,
Maness, and Crider, there was in each instance a good
objective reason, admitted by those who testified as to the
basis for their referrals to the pipeline jobs. Ronnie Duncan
had worked before as an oiler on a pipeline job. Lawrence
Duncan was qualified to work as a clam operator and a
back hoe operator for neither of which jobs Ronnie Duncan
was qualified. Joseph Maness had worked many pipeline
jobs before. Chester Crider had worked pipeline jobs before
although he admitted that he had never worked on pipeline
jobs as an oiler. However, on the particular job to which he
was assigned he was not required to measure grades.
I find and conclude that it cannot be reasonably infer-
red from the foregoing testimony and from the conversation
between Ott and Hildreth at St. Louis, that the reason for
the Respondent's failure to refuse Hildreth was discrimina-
tory. It is true that the facts give rise to some suspicion but
suspicion is not enough. I find that the General Counsel has
failed to show by a preponderance of the credible evidence
that the Respondent's failure to refer Ronnie Hildreth to
either the Groves or the pipeline jobs was for discriminatory
reasons.
Accordingly, I shall order the complaint herein dis-
missed.
Upon the basis of the foreging findings of fact and on
the entire record in this case -I make the following:
CONCLUSIONS OF LAW
1. S. J. Groves and Sons Co., Ford-Bacon and Davis
Construction Corporation, and Pipeline Dredging, Inc., are
employers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing to refer Ronnie D. Hildreth to jobs during
the period from December 1970 until March 1972, Respon-
dent did not discriminate against Hildreth in violation of
Section 8(b)(1)(A) and (2) of the Act.
Upon the foregoing findings of fact, conclusions of
law; and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: [Rec-
ommended Order omitted from publication.]