Teamsters, Local 525

National Labor Relations Board - Board Decisions

Oct 14, 1971

193 N.L.R.B. 724 (N.L.R.B. 1971)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen & Helpers,
Local Union No. 525, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Nelson Con-
struction Co., Inc.)' and Robert E. McBride. Case
14-CB-1994
October 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JLNKIiS
AND KENNEDY
On September 8, 1970, Trial Examiner John P von
Rohr issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision 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
powers in connection with this case to a three-member
panel
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, only to the extent consistent herewith.
The Trial Examiner found that Respondent's
refusals to refer the Charging Party, Robert E
McBride, on the four occasions when his regular
employer, Nelson Construction Co., inc , asked for
him by name, and Respondent's attempt to cause
Nelson to terminate McBride on February 25, 1970,
were based on irrelevant, invidious, and unfair
considerations, and thereby violated Section
8(b)(1)(A) and (2) of the Act under the principles
enunciated by the Board in Miranda Fuel Company,
Inc., 140 NLRB 181, enforcement denied 326 F.2d
172 (C.A. 2) Respondent denies any illegality in its
treatment of McBride and maintains that its failure to
refer McBride and its attempt to cause Nelson to lay
McBride off were based on a good-faith, nondiscrimi-
natory interpretation with regard to the hiring hall
provisions of the applicable multiemployer contract
t Respondent's name was amended at the hearing but the l rial
Examiner failed to note the amendment in his Decision
to which Nelson is a party, and the established
practice thereunder.
We find it unnecessary at this time to pass on the
question decided in Miranda as to whether invidious
discrimination by a union against one of its members
constitutes an unfair labor practice, as we conclude
that in any event the evidence in the instant case is
insufficient to support a finding that the Respondent
took hostile action against McBride for irrelevant,
unfair, or invidious reasons.
While it is difficult to determine upon this record
whether the Respondent's interpretation of the
contract and existing referral practice is correct, its
position does not appear to be so unconnected with
the contract or so unreasonable as to evidence that
McBride was singled out for discriminatory treat-
ment Thus, in regard to the attempt to cause
discharge allegation, the contract provides that
employers are required to request applicants from
Respondent's hiring hall. An addendum to the
contract also states as follows:
An applicant may place his name upon the
registration list providing he is unemployed.
Applicants shall be placed upon a list serially by
the date and time of their application Upon taking
a job and working five (5) days the Union shall
strike their name from the list and it shall remain
off the said list until said applicant re-registers.
The applicant will notify the Union where and
when he is working
It is undisputed that McBride did not reregister after
his layoff by Nelson, from the latter part of July 1969
through November 1969, and that Nelson did not
contact the hiring hall before reemploying McBride
after this layoff. While there is some testimony that it
is customary for an employer to call back to work,
without going through the union hall, regular employ-
ees who are laid off for a few days for such reasons as
had weather or temporary lack of work, several
supervisors and officials who testified as to this
practice admitted that such practice could be con-
strued as violations of the contract. Indeed, Karney
Hackney, Nelson's job superintendent at the Venice
jobsite, where McBride was employed, testified that
after his conversation with McDuffy on February 25
in which the latter accused Nelson of violating the
contract by calling McBride directly, he read the
contract and decided he had erred in failing to call the
union hall for referrals if an employee has been laid
off for a period of time other than because of weather.
In addition, Respondent's president testified that
whenever Respondent becomes aware of what it
considers to be violations of the contract's referral
provisions it undertakes to correct them but that
193 NLRB No. 106
TEAMSTERS, LOCAL 525 725
Respondent deals with about 150 construction com-
panies and the referral list normally ranges between
200 and 300 applicants, thus making the job of
policing the referral provisions a difficult one.
Concerning the failure-to-refer allegation, the con-
tract appears to contain somewhat conflicting provi-
sions. Thus, in article 14 it provides that:
Individual Employer may, from time to time,
request. by name from the list, individuals who
have been laid off or terminated in the area and
who are available for work. Further, the Union
recognizes the Employers legitimate interest in
recalling former employees. To effect this objec-
tive, the Employer shall furnish the Referral Office
with a list of such employees who have worked for
him during the past three hundred sixty (360) days.
This Mall not be construed to mean that the Union
must refer all requested employees. [Emphasis
supplied.]
Section 7 of the contract's addendum B contains the
following provision:
Referral Officers shall notify any applicant as to
his serial standing in the registration list of
applicants. Referral Officers shall refer applicants
to jobs from the top of said list in accordance with
the men's qualifications and competence to fill the
request of the employer unless, however, the
employer has called for an applicant by name or by
other terms as set forth in the basic work
agreement. [Emphasis supplied.]
It is uncontradicted that in practice Respondent does
not always refer an applicant when he is specifically
requested by an employer. In addition, one of the
employers who testified for the General Counsel, as
well as McDuffy, testified that in practice regular
employees of an employer are put on a seniority list
and if they desire to return to work with their regular
employer they "claim seniority " These applicants are
then, according to McDuffy, bypassed on regular
daily work and only referred when other applicants
for employment have been sent out to allow them a
better opportunity for recall by their regular employ-
er. However, McBride, while undisputably a regular
employee of Nelson, failed to indicate that he was
retaining seniority at Nelson when he registered for
referral on February 26, 1970. He was therefore put at
the bottom of the referral list at the time of his
registration.
In the light of the foregoing, we believe that
Respondent's interpretation upon which it based its
failure to refer McBride and its attempt to cause his
discharge is at least a reasonable one, and, conse-
quently, there is no basis for finding that the
treatment of McBiide necessarily violated the con-
tract terms or existing practice.
Neither, as the Trial Examiner found, is there any
basis for concluding that Respondent's actions were
related to any specific union activity of this employee
or his failure to engage in such activities or that it was
for the purpose of encouraging or discouraging union
activities. McBride has been a member in good
standing of Respondent since 1949. He has known
McDuffy, the one who allegedly attempted illegally to
cause his discharge, for about 25 years and has always
enjoyed friendly relations with him. In fact, it is
uncontradicted that McBride has never had any
trouble or difficulty with Respondent or any of its
officers or agents. Moreover, we agree with the Trial
Examiner that the evidence is insufficient to warrant
an inference that Respondent sought to replace
McBride with Sam Armstrong, a laid-off employee, as
a favor for Armstrong's information concerning
various alleged contract violations. Thus, at no time
did McDuffy suggest that Nelson should reemploy
Armstrong. In addition, while, after McBride's layoff,
Armstrong on one occasion was sent out when Nelson
called Respondent's hall for a driver, the record
establishes that other drivers were also referred by
Respondent to Nelson and that these drivers received
more work than did Armstrong.
In these circumstances, we find that the actions of
Respondent against McBride were not arbitrary or
capricious. Accordingly, we conclude that the Gener-
al Counsel has failed to prove by a preponderance of
evidence that Respondent violated Section 8(b)(1)(A)
and (2) of the Act. We shall, therefore, dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint in
this proceeding herein be, and it hereby is, dismissed
in its entirety.
MEMBER JENKINS, dissenting:
For the reasons set forth in the Trial Examiner's
Decision, I would find that Respondent Union
violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge filed
on March 2, 1970, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 14 (St. Louis, Missouri), issued a complaint on April
16, 1970, against Chauffeurs, Teamsters & Helpers Local
Union No. 525, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Respondent or the Union,
alleging that it had engaged in unfair labor practices in
violation of Section 8(b)(2) and (1)(A) of the National
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, as amended, herein called the Act. In
essence, it is the General Counsel's contention that the
Respondent, although party to a contract containing valid
union-shop and referral provisions, failed and refused to
refer Robert E. McBride to employment with the Nelson
Construction Co., Inc., on irrelevant, invidious and unfair
considerations within the meaning of the Board's decision
in Miranda Fuel Company, Inc., 140 NLRB 181.1 The
Respondent's answer denies the allegations of the unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me in St.
Louis, Missouri, on June 8 and 9, 1970. All parties were
represented by counsel and were afforded opportunity to
adduce evidence, to examine and cross-examine witnesses,
and to file briefs. A brief has been received from the
General Counsel and it has been given due consideration.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Nelson Construction Co., Inc ., at times herein referred to
as Nelson is a Missouri corporation with its principal office
and place of business located in the city of Clayton,
Missouri (maintaining otherjobsites in the State of Illinois),
where it is and has been engaged in the building and
construction business as a general contractor. Nelson's
jobsite located at Venice, Illinois , is the only facility
involved in this proceeding. During the year ending
December 31, 1969, Nelson purchased goods and materials
valued in excess of $100,000, of which goods and materials
valued in excess of $50,000 were transported and delivered
to its jobsites from points located outside the State of
Illinois.
Southern Illinois Builders Association (herein called
SIBA) is an Association of employers engaged in the
contracting business in the building and construction
industry in the State of Illinois. SIBA exists, inter alia, for
the purpose of representing its employer members in
collective bargaining for wages, hours, and terms and
conditions of employment of the employees of the
employer members of the Association.
During the year ending December 31, 1969, the employer
members of the Association, in the course and conduct of
their business operations, purchased and caused to be
delivered to,lobsites within the State of Illinois goods and
materials valued in excess of $100,000, of which goods and
materials valued in excess of $50,000 were transported to
said jobsites directly from States other than Illinois.
The Respondent concedes, and I find, that Nelson and
SIBA are engaged in commerce within the meaning of the
Act and that the Board has jurisdiction over the dispute
involved herein.
H. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters & Helpers Local No. 525,
i Enforcement denied on other grounds 326 F 2d 172 (C A 2)
2 The record reflects that during this period McBride experienced short
layoffs, usually a matter of days, due to weather conditions or lack of work
affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. McBride 's Layoff From the Nelson
Construction Co.
Robert E. McBride has been a member in good standing
of the Respondent Union at all times material hereto. With
the exception of an approximate 4-month period in 1969
when he worked principally for the Marcal Asphalt Paving
Co., McBride was a regular truckdriver employee of the
Nelson Construction Co. for approximately 2-1/2 to 3 years
prior to February 25, 1970, at which time his employment
with Nelson ceased.2
As a member of an employer association , Nelson is party
to a collective-bargaining agreement with the Respondent
Union, in effect at all times material hereto, which contains,
inter alia, a union security clause and further provides for a
hiring-referred hall agreement wherein the Respondent is
the exclusive source of applicants for employment. It
appears that the hiring hall provision in the contract is a
valid one. In any event, it is not under attack here. This
agreement sets forth on page 7, inter alia, the following:
ARTICLE 14
(e) Individual Employers may, from time to time,
request, by name from the list, individuals who have
been laid off or terminated in the area and who are
available for work. Further, the Union recognizes the
Employers legitimate interest in recalling former
employees. To effect this objective, the Employer shall
furnish the Referral Office with a list of such employees
who have worked for him during the past three hundred
sixty (360) days. This shall not be construed to mean
that the Union must refer all requested employees.
Pages 37 and 38 of the said contract contain, inter aka,
the following:
ADDENDUM B
RULES AND REGULATIONS OF REFERRAL OFFICES
(7) Referral Officers shall notify any applicant as to
his serial standing in the registration list of applicants.
Referral Officers shall refer applicants to jobs from the
top of said list in accordance with the men's qualifica-
tions and competence to fill the request of the employer
unless , however, the employer has called for an
applicant by name or by other terms as set forth in the
basic work agreement.
On February 25, 1970, Marshall McDuffy, assistant
business representative of the Respondent Union, visited a
Nelson Jobsite in Venice, Illinois , where McBride was
working. McDuffy was accompanied by Sam Armstrong, a
truckdriver and member of the Union. Armstrong had
while employed by Nelson . While the testimony is not entirely clear , it also
appears that McBride at times may have worked for other employers
during certain of these brief layoffs.
TEAMSTERS, LOCAL 525 727
worked for Nelson for approximately 5 days prior to and
including February 20, 1970. Although Armstrong was not
called as a witness, McDuffy testified that Armstrong was
laid off by Nelson after working only 5 days "because he
raised an issue on what was going on on the project."
McDuffy further testified that before going to the project
on the morning of February 25 with Armstrong, Armstrong
telephoned him to complain about certain alleged contract
violations by Nelson, including the fact that some
equipment was being operated by Nelson employees who
were not members of the Respondent Union. In fact,
McDuffy testified that it was for the purpose of looking
into these alleged contract violations that led him to come
to the Nelson jobsite with Armstrong on February 25.
According to McDuffy, upon arriving at thejobsite he and
Armstrong first observed McBride sleeping in the cab of a
parked truck. McDuffy said that at this point Armstrong
told him that he thought that McBride was not getting the
contract rate. McDuffy then sought out Carney C.
Hackney, the job superintendent for Nelson. It is
undisputed that McDuffy spoke to Hackney and first
discussed with him the alleged contract violations referred
to above. The conversation then turned to McBride.
McDuffy first testified that he asked Hackney why he
(Hackney) had not called the hall upon the last occasion of
his calling McBride back to the job. This, McDuffy said,
was "about the extent" of the conversation. However, later
in his testimony McDuffy testified, "At that particular
time, when I talked to Mr. Hackney, I asked him when he
called this man back, and he said, `I don't know, six or
seven days, four, five, six, seven days,' and I asked him if he
had called the hall for him and he said no." Hackney
testified that when McDuffy inquired about McBride, he
(Hackney) acknowledged that he had called McBride back
to work without calling the hall and also that he told
McDuffy he had followed this practice "down through the
years." I credit Hackney's testimony that McDuffy
thereupon told him that "we should replace him [McBride]
because we should have called the hall for a driver."
McBride recalled McDuffy and Armstrong coming to the
job on February 25. He said that McDuffy greeted him with
a "How are you doing" and that McDuffy then went over
to speak with Hackney outside of his presence. McBride
testified that about 20 minutes after McDuffy and
Armstrong departed from the jobsite, Hackney came up to
him and stated that he had to lay him off because McDuffy
wanted him replaced. With this McBride left the job.
Hackney, who did not testify as to this conversation with
McBride, testified that on this occasion he laid off McBride
because they ran out of work. He said his earlier
conversation with McDuffy had nothing to do with the
layoff.
3 While there is some question as to whether Schroeder called the hall
on February 26 or 27, it is undisputed that on February 27 Armstrong was
referred to the job rather than McBride and that this was the occasion
when Schroeder asked for McBride
4 The credited and unrefuted testimony of Superintendent Hackney
Respondent Exhibit 10 reflects that Armstrong worked 4 hours for Nelson
on March 4 and that he also worked for Nelson on March 5 and 13
S At the hearing counsel for the Respondent generally stated that all of
Respondent's actions at issue herein were taken in accordance with the
B. The Failures and Refusals of Respondent To
Refer McBride to Nelson Construction
Upon being laid off on Wednesday, February 25,
McBride, while on his way home, called McDuffy at the
union hall and advised him that he had been laid off by
Nelson. On that same evening McBride received a
telephone call from Richard Schroeder, also a superintend-
ent for Nelson Construction Co., asking him to report to
work on the following day at a jobsite in Granite City,
Illinois, where Nelson was performing some work for the St.
Louis Slag Company. McBride advised Schroeder that he
had been laid off that day and suggested that he call the hall
and ask for him by name. It is undisputed that Schroeder
did call the hall on February 27, 1970, at which time he
requested that McBride be dispatched to the job. It is also
undisputed that Respondent did not comply with this
request but instead on this date dispatched Sam Armstrong
to the job.3 In the meantime, on February 26, McBride
went to the union hall and filled out a union referral card.
The record discloses that on three subsequent occasions
(March 4, 5, and 9, 1970) the Nelson Construction Co., by
Superintendent Carney Hackney, called the Respondent
union hall and on each such occasion specifically asked for
McBride by name. Again, Respondent did not honor these
requests. Sam Armstrong was dispatched on the first
occasion and drivers Edmond and Wright were dispatched
on the latter two occasions .4
C. Conclusions
It might be mentioned at the outset that the Respondent,
although requested to do so, did not file a brief in this case.
Accordingly, I am somewhat at loss as to the nature of its
defense to the unfair labor practice allegations herem.5
For the reasons which are hereinafter apparent, I shall
begin with the issue pertaining to Respondent's failure to
refer McBride to Nelson subsequent to February 25 and
shall reserve for later discussion the issue as to whether
Respondent violated the Act by unlawfully attempting to
cause Nelson to lay McBride off on February 25, as alleged
in the complaint.
Preliminarily, it is undisputed that various employers
who are party to the collective-bargaining agreement with
the Respondent employ truckdnver members of the
Respondent as so-called regular employees; i.e., employees
who have worked for the same employer on a regular basis
for over a period of years .6 It is undisputed that these
employees are regarded as holding the status of regular or
"senior" employees by the Respondent as well as by their
respective employers. The evidence further establishes that
it is customary for the employers to periodically furnish the
Respondent with a seniority list of their regular employees.
In the event regular employees are laid off for a few days
terms of the contract However, and as will appear from the discussion
which follows, Respondent's chief witness (McDuffy) gave no testimony or
explanation as to Respondent's reason for not referring McBride to the job
on those occasions when Nelson called and asked for him by name At
best, this matter was but vaguely touched upon in cross and redirect
examination
6 Testimony of Fred Widman, Clarence Eberhart, George Rook, and
Robert Farley
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for such reasons as bad weather or temporary lack of work,
it is permissable and customary for the employer to call
these employees back to work without going through the
union hall. However , according to McDuffy , it is a union
rule that any employee, including a regular employee, who
has not worked for 5 consecutive days is to report to the
union hall and sign a referral card McDuffy further
testified that if in such event a regular employee desires to
return to work with his regular employer , he is to note the
fact that he "claims seniority" with such employer on the
referral card. It is then the practice of the Respondent, he
said , to refer these employees back to their regular
employer when so requested by him. McDuffy illustrated,
for example , the practice followed by the Respondent with
respect to the Helmkamp Trucking Company by the
following testimony:
They [Helmkamp] have a dispatcher by the name of
Don Chamberlain who dispatches all men at all times.
Whenever the men are laid off they come to the hall,
regardless of their length of service , and whenever he
calls men back , he calls the union hall and I send those
men back in the line of seniority if they are available
and there is no violation.
As previously indicated , McBride worked for the Nelson
Construction Co., for approximately 2-1/2 years or more.
Contribution report forms furnished Respondent by
Nelson which reflect contributions to the union welfare
fund show that McBride did not work for Nelson for
approximately 4 months in 1969 , this being the period from
August through November 1969, respectively .? However,
these reports further reflect that McBride returned to work
for Nelson in December 1969, and that he continued to
work for Nelson in January and February 1970. In view of
Respondent 's failure to file a brief , I do not know what
significance Respondent attaches to the fact that McBride
did not work for Nelson during the period from August
through November 1969. However, and lest there be any
doubt about the matter , I am persuaded and find that
McBride held the status of a "regular" or "senior"
employee of the Nelson Construction Co. at the time of his
layoff on February 25, 1970. I base this finding upon the
following : ( 1) the undisputed fact that , with the exception
of the 4-month interval noted above and possible other
instances of relatively short periods when work was not
available , McBride was regularly employed by Nelson for
approximately 2-1/2 years; (2) the fact that the Nelson
Construction Co. considered McBride to be one of its
regular truckdriver employees ; 8 (3) the fact that the
Respondent Union itself well knew that McBride had long
been an employee of Nelson's.9
It is the General Counsel 's contention that Respondent's
refusals to refer McBride , even though McBride was
specifically requested by name by his regular employer
(Nelson ), were based on irrelevant , invidious , and unfair
considerations , as enunciated by the Board in Miranda Fuel
Company, Inc, supra, and that by such conduct Respondent
I Resp Exh 11
8 Testimony of Superintendent Carney C Hackney
9 Not only would McBride's employment with Nelson be reflected on
the employer contribution report forms referred to above (Resp Exh 11)
but McDuffy conceded that he knew McBride to have been employed by
Nelson prior to 1970 Further, McBride testified that he was acquainted
violated Section 8(b)(1)(A) and (2) of the Act. Upon
consideration of the entire evidence in this case, I agree
with the General Counsel and find there is merit to his
contention as aforesaid.
In the absence of a statement of position from the
Respondent, I must presume that its defense to the
allegation at issue is in large part predicated upon the
proviso in section (e) of article IV of the contract (the entire
section of which has been heretofore set forth) which states
that that section shall not be construed to mean that the
Union must refer all requested employees. However, as will
be shown below, the evidence reflects that this proviso has
been followed by the parties only in those situations where
the men were not available because they were working
elsewhere at the time of the request, or for some similar
practical and legitimate reason . In any event, however, I
deem as controlling here the rules and regulations of
referral offices which is incorporated as Addendum B in the
collective-bargaining agreement , particularly section 7
thereof. While this section, which is hereinabove fully set
forth, provides that applicants will be referred from the top
of the referral list, it is clear that this section specifically
says that requests for employees by name are exceptions to the
usual rule of referring applicants in order. Moreover, the
evidence reflects that such also has been the practice of the
parties. Thus, with respect to the recall of regular employees
who have been laid off, employees who are party to the
Respondent contract testified as follows: Adolph Seebold,
president of A. H. Seebold Truck Service, testified that
unless the employee was working elsewhere, the Respon-
dent always referred the employees he asked for by name.
Wilbur L. Waggoner, president of W. L. Waggoner
Trucking Company, testified that unless a man were
working elsewhere at the time he made the call, it was the
practice of Respondent to refer to him the men he
requested by name. Gilbert Helmkamp, president of G.
Helmkamp Excavating and Trucking Company, testified
that the men he requested of Respondent were always
referred unless they did not happen to be available because
they were working on another job. Indeed, Union
Representative McDuffy readily conceded that the Res-
pondent "normally" refers employees when they are
requested by name.10
In sum, I find that under the contract, as well as under
the practice followed by the parties, it was established
procedure, except for the obviously practical exceptions
noted above, for Respondent to customarily refer regular
employee applicants to their respective employers when
requested by name. Further, from the evidence heretofore
set forth it is clear , and I find, that the Respondent departed
from its contractual obligations and the established referral
procedure when it failed and refused to refer McBride on
the four occasions when his regular employer asked for him
by name. Accordingly, in the absence of any reasonable or
legitimate explanation for not referring McBride on the
occasions in question, I find that the General Counsel has
with McDuffy for 20-25 years and also that it was customary for
Respondent business agents to pay visits to the various jobs.
IU This is also evident from McDuffy' s heretofore quoted testimony
concerning Respondent's referral practice as illustrated by its relationship
with Helmkamp Trucking.
TEAMSTERS , LOCAL 525 729
made a prima facie case that Respondent's actions in this
regard were based on arbitrary and irrelevant reasons
within the meaning of the Miranda Fuel decision, supra, and
that Respondent thereby violated Section 8(b)(l)(A) and
(2) of the Act. In reaching this conclusion, I have taken into
account the following additional considerations:
1. In attempting to explain a motive for Respondent's
action, the General Counsel in his brief argues that "it is
apparent that Armstrong's upset and anger over being laid
off prompted him to inform McDuffy of various alleged
contract violations by the Company, and as a reward for
Armstrong's information on these matters, McDuffy
undoubtedly sought to replace McBride with Armstrong."
While it is possible that there is some truth to the
speculative theory thus propounded, I deem the evidence
insufficient to warrant an inference that this was the fact.
Indeed, there is no evidence of any hostility of Respondent
toward McBride nor does the evidence reflect that
Respondent's actions were related to any specific union
activity of this employee. However, I think it clear that
under the rationale of the Miranda case neither of these
elements must necessarily be present in order to establish a
violation. "Whether the motive of the Respondent in this
case was whim, suspicion, favoratism to others, caprice,
personal dislike, or other, is not determinative." 11
2. When McBride went to Respondent's hall on
February 26 to fill out a referral card, he did not make a
notation on the card to the effect that he claimed seniority
with Nelson.12 Although, as previously noted, McDuffy
testified that regular employees who desired to return to
work with their regular employer were expected to make a
notation that they "claimed seniority" when they filled out
a referral card, it is noteworthy that there is no such
requirement in the contract or in the rules and regulations
of referral offices as appended to the contract.13 In any
event, having previously found that Respondent was
cognizant of McBride's regular employment status with the
Nelson Construction Co., I would reject any contention by
the Respondent that its actions were justified because
McBride did not note that he "claimed seniority" with
Nelson on the referral card which he filled out on February
26.14
I turn now to the remaining issue as to whether on
February 25, 1970, Respondent attempted to cause the
Nelson Construction Co. to terminate McBride in violation
of the Act. Having previously credited the testimony of
Superintendent Hackney that on this occasion Union
Representative McDuffy asked him to replace McBride,
11 Although not relied on by the Board, I have adopted this statement
made by the Trial Examiner in International United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America et al (Considine Distributing
Co), 166 NLRB 915, 922
12 As previously stated, McDuffy gave no reason or explanation for not
referring McBride on the occasions he was requested by Nelson on
February 26 and thereafter in his direct testimony It was not until redirect
examination , and then only in an incidental manner , that McDuffy
volunteered the testimony of McBride's not noting a claim of seniority on
the referral card
13 Nor is there evidence of Respondent having any such rule in writing.
In fact , other than McDuffy's testimony that such was the practice , there is
no evidence that any such rule was ever promulgated to Respondent's
members
14 Sam Armstrong, who was referred in lieu of McBride on February 26
and on March 4, was never a regular employee of the Nelson Construction
the question is whether Respondent was legally justified in
thus requesting McBride's removal from his employment
with Nelson. From the facts in this case it is my view that
Respondent was not. Respondent's apparent defense to this
action was that McBride's latest recall with Nelson was
made without clearance through the hiring hall (i.e., by
calling McBride directly), that this action violated the
contract, and that Respondent's action with respect to
McBride on February 25 was therefore justified.15 There is
some uncertainty in the testimony (including the statement
of Respondent's counsel in the preceding footnote) as to
whether McDuffy was protesting McBride's recall in early
February 1970, or if this protest was with reference to his
recalls to employment with Nelson in December 1969 or
January 1970.16 If McDuffy was protesting any recall of
McBride subsequent to his being laid off for a short period
due to weather conditions or lack of work, it has already
been shown that it was common practice for other
employers under contract with the Respondent to recall
their regular employees under such conditions without first
clearing with the Union and that the Respondent did not
object to this practice, Even assuming that the protest was
made with respect to McBride's direct recall by Nelson
after a longer period of layoff and further assuming that
this was in breach of the contract, I still would find that in
this instance the Respondent acted arbitrarily and unrea-
sonably and therefore was not lawfully justified for taking
the action in kind. Thus, there is no evidence that
Respondent at any other time requested that a regular
employee be replaced on the basis that he had been recalled
without first clearing through Respondent's hiring hall.
Moreover, assuming that on February 25 McDuffy acted
impulsively or on the spur of the moment, there was ample
opportunity for him to reconsider this action by referring
McBride back to Nelson upon Nelson's request for him
during the next few days. Respondent's conduct subsequent
to February 25 in failing and refusing to refer McBride on
the four occasions when Nelson asked for him by name is
further evidence and bolsters my conviction that Respon-
dent's initial attempt on February 25 to have him removed
was for reasons proscribed by the Act.17 Accordingly, I find
that Respondent on February 25, 1970, attempted to cause
Nelson to terminate McBride in violation of Section
8(b)(1)(A) and (2) of the Act.
Co, poor to February 26 Indeed, McDuffy conceded that, on the first
occasion of Armstrong's being dispatched to Nelson in lieu of McBride, it
was possible that Armstrong was not at the top of Respondent 's referral
list
is Thus, at the hearing Respondent's counsel stated, "It is our position
that Mr McBnde's employment by Nelson on February 6, 1970 [or earlier]
on the [Nelson] Alton & Southern job, without clearing through the hiring
hall, was a violation of the contract That's what he [McDuffy] was
complaining about "
16 Respondent Exhibit I i reflects that McBride worked for Nelson and
undoubtedly was laid off and recalled by this employer in each of these
months
17 Although McBride in fact was laid off on February 25 shortly after
McDuffy's request that he be replaced, the complaint does not allege, nor
does the General Counsel contend, that Respondent's conduct on this
occasion was anything more than an "attempt to cause "
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
employer described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices in violation of
Section 8(b)(1)(A) and (2) of the Act, it shall be
recommended that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent unlawfully caused the
Nelson Construction Co., Inc., not to hire Robert E.
McBride on February 26, 1970 , and on the various
subsequent occasions discussed in this Decision (by its
failure to refer McBride to Nelson upon Nelson 's request
for him) I shall recommend that Respondent notify Nelson
that it has no objection to the employment of Robert E.
McBride as a regular employee. In addition , I shall
recommend that Respondent make McBride whole for any
loss of pay he may have suffered as the result of the
discrimination against him.
The loss of backpay shall be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, and shall include the
payment of interest at the rate of 6 percent per annum, to
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and on
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Nelson Construction Co., Inc ., is an employer
engaged in commerce within the meaning of Section 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 attempting to cause Nelson Construction Co.,
Inc., to discriminate against Robert E . McBride, and by
failing and refusing , for arbitrary , unreasonable and
discriminatory reasons, to refer McBride to the Nelson
Construction Co., Inc., for employment , upon Nelson's
specific request for him, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce
and are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]