Teamsters Local 391 (U.S. Pipeline, Inc.)

National Labor Relations Board - Board Decisions

Jun 19, 2003

339 N.L.R.B. 346 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
Teamsters Local Union No. 391, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO
(U.S. Pipeline, Inc.) and Teamsters Local Union
No. 71, affiliated with International Brother-
hood of Teamsters, AFL–CIO (U.S. Pipeline,
Inc.) and Jim Seitz. Cases 11–CB–3101 and 11–
CB–3102
June 19, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On February 26, 2003, Administrative Law Judge Jane
Vandeventer issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondents filed an answering brief which included
their brief to the judge.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
In exceptions, the General Counsel argues that the Re-
spondents unlawfully refused to refer alleged discrimina-
tees Jim Seitz, Raymond Andel, and Hazel Maddocks to
work on the Employer’s Concord, North Carolina pipe-
line project, pursuant to the Respondents’ exclusive hir-
ing hall agreement. Alternatively, the General Counsel
argues that, even if the Respondents operated a nonex-
clusive hiring hall on that project, the Respondents
unlawfully refused to refer the alleged discriminatees
because of Seitz’ protected activity. We find no merit to
these exceptions.
First, the judge found, and we agree, that the evidence
fails to establish that the Respondents operated an exclu-
sive hiring hall on the Employer’s project. There is no
exception to the judge’s finding that there was no collec-
tive-bargaining agreement between the parties that pro-
vided for an exclusive hiring hall. Nor do we find that
the evidence establishes that the parties, by agreement or
practice, instituted an exclusive hiring hall arrangement.
Indeed, the record, including the testimony of the only
two witnesses who attended the prejob conference for the
Concord project, fails to establish that the parties agreed
that the Respondents would be the sole source of any
specific percentage of referrals. Cf. Carpenters Local
608 (Various Employers), 279 NLRB 747, 754 (1986).
Nor did either of the Employer’s job superintendents or
the Respondents’ steward—the individuals who could
have explained how the referral system operated in prac-
tice—testify at the hearing. Thus, there was no showing
that the Employer and the Respondents ever agreed that
the Respondents would be the sole source of referrals of
50 percent of the Employer’s work force, as the General
Counsel contends. Indeed, documentary evidence indi-
cates that, of the 52 employees hired for the project, 28
were hired directly by the Employer, and only 24 were
referred by the Respondents.1 Accordingly, we find no
violation under the exclusive hiring hall theory.
Nor do we find merit to the General Counsel’s alterna-
tive theory. To the extent there was a hiring hall ar-
rangement between the parties, it was nonexclusive.
However, under such arrangement, it was not unlawful
for the Respondents to prefer their members for referral
over the alleged discriminatees who were members of a
different Teamsters local. TK Productions, 332 NLRB
110, 123–124 (2000). We also agree that the evidence
does not establish that the Respondents discriminated
against the alleged discriminatees in referrals because
Seitz had engaged in protected activity. Carpenters Local
537 (E. I. du Pont), 303 NLRB 419 (1991).2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Ronald C. Morgan, Esq., for the General Counsel.
J. David James and Seth R. Cohen, Esqs., for the Respondent.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on October 24 and 25, 2002, in Concord, North Caro-
lina. The complaint alleges Respondent violated Section
8(b)(1)(A) and (2) of the Act, by refusing to refer three indi-
viduals to jobs pursuant to an exclusive hiring hall arrange-
ment, operating its exclusive hiring hall in an arbitrary and
discriminatory manner, and thereby failing fairly to represent
the individuals. The Respondent filed an answer denying the
essential allegations in the complaint. After the conclusion of
the hearing, the parties filed briefs which I have read.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the
following

1 We disavow the judge’s statement that this exhibit does not show
on its face the source of each of the employees hired. The sources are
shown on the document, although Employer witness Crooks, who cre-
ated the exhibit, testified that two employees who are listed as union
referrals were actually hired directly by the Employer.
2 The General Counsel has moved to amend the consolidated com-
plaint to allege that the Respondents violated Sec. 8(b)(1)(A) by telling
the alleged discriminatees that members of the Respondents would
receive referral preferences for the Employer’s pipeline project. We
find it unnecessary to rule on this motion. Even if the motion were
granted, we would conclude, for the reasons stated above, that the
allegation has no merit.
339 NLRB No. 46
TEAMSTERS LOCAL 391 (U.S. PIPELINE, INC.) 347
FINDINGS OF FACT
I. JURISDICTION
The Employer herein, U. S. Pipeline, Inc., is a Texas corpo-
ration, engaged in the construction industry. In 2000, the Em-
ployer was engaged in a pipeline construction project in Con-
cord, North Carolina. During a representative 1-year period,
the Employer derived more than $50,000 from work it per-
formed outside the State of North Carolina. Accordingly, I
find, as Respondent admits, that the Employer is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Respondents are labor organizations within the meaning
of Section 2(5) of the Act.1
II. UNFAIR LABOR PRACTICES
A. The Facts
1. The collective-bargaining agreement
The International Union with which Respondents are affili-
ated is signatory to a national agreement with various employ-
ers in the pipeline construction industry referred to in the record
as the National Pipeline Agreement (NPA). In article II of the
NPA, the International agreed that “the terms of this Agreement
shall be recognized by” each local with geographic jurisdiction
where work was to be performed. The local union participates
in a prejob conference, at which the employer, the local union,
and the International Union discuss the manpower needs, dura-
tion, and timing of the job, and other matters concerning staff-
ing of the job and application of the contract.
With regard to the hiring of employees, the NPA states: “In
the event a valid nondiscriminatory exclusive referral procedure
has been established by collective-bargaining between a local
of the Union and an association of highway and heavy contrac-
tors in the area in which the job is to be done. . . . Employer
agrees to utilize such referral procedures upon the following
conditions [conditions omitted].”
The NPA goes on to state: “In the event there is no valid ex-
clusive referral procedure established in the area where the
particular job is to be done or the proper conditions set out
hereinabove have not been met by the referral procedure which
has been established, Employer will at the prejob conference
notify Union, as one of the sources from which men are to be
recruited, as to the number of men who will be needed in addi-
tion to his Regular Employees. Employer shall give preference
in employment to men in the area who have had previous pipe
line construction experience. It is understood that Employer
may also recruit men from other sources, will hire all employ-
ees at the jobsite in a non-discriminatory manner, and shall
have the absolute right to determine the competence and quali-

1 Teamsters Local Union No. 391, affiliated with International
Brotherhood of Teamsters, AFL–CIO, will be referred to as Local 391
or Respondent Local 391. Teamsters Local Union No. 71, affiliated
with International Brotherhood of Teamsters, AFL–CIO, will be re-
ferred to as Local 71 or Respondent Local 71. Local 391 and Local 71
will be referred to collectively as respondents.
fications of applicants and employees and to reject and dis-
charge accordingly.”
The NPA required that its hiring arrangements, as set forth in
the agreement, be posted by Employers and the Union. A sig-
natory employer was permitted to staff its job up to the level of
50 percent of its employees with employees it employed regu-
larly, commonly called “key employees” or “regular employ-
ees.” This privilege obtained under either the exclusive or the
nonexclusive hiring arrangement.
There was no evidence in this record that either Respondent
was signatory to a collective-bargaining agreement with high-
way and heavy contractor employers in the Concord, North
Carolina area. Andrew Crooks, who was the Employer’s ad-
ministrative manager and chief information officer at the time
of the events herein, testified that he was unaware of any such
collective-bargaining agreement. He further testified that as far
as he was aware, the Employer most often did operate under an
exclusive hiring hall arrangement in most of the locations
around the country where it performed work. On that basis, he
assumed that the Concord, North Carolina location would oper-
ate in the same way. Crooks, however, did not attend the pre-
job meeting with the local unions, Respondents herein, and had
no direct knowledge of what was discussed at that time.
2. The Concord job
The Employer’s job in and around Concord, North Carolina
(called hereafter the Concord job), began in about midsummer
2000. The Employer’s task was to build a 36” diameter pipe-
line for a large utility company. The Employer maintained an
equipment yard, where it kept its trucks, heavy equipment, and
an office. The superintendents for the Employer were Jimmy
Crotts and Harold (Racer) Hutchens. The actual worksite itself
changed, moving along the route of the pipeline as the work
progressed.
The Employer and Respondents held a prejob conference on
about August 11, 2000. As stated above, Crooks was not pre-
sent, but Bobby Crotts, Jimmy Crotts, and a Mr. Klyne, the
office manager for the Concord job, were present on behalf of
the Employer. J. D. Wright, a business agent, and Jim Runion
attended the meeting on behalf of Local 71. Steve Bishop, a
business agent, attended on behalf of Local 391. Both Bobby
and Jimmy Crotts were part-owners of the Employer. At the
meeting, a member of Local 391, John Hudson, was designated
by both Respondents to be the steward representing both locals
on the Concord job. Hudson was present at the prejob confer-
ence as well. The meeting lasted for about an hour, and the
parties resolved issues such as wages, benefits, drug testing,
safety requirements, and the number of employees required for
the job, approximately 32. Another issue which was agreed
upon was that 50 percent of the employees would be brought in
directly by the Employer under the regular employees or key
man provisions of the NPA. According to J. D. Wright, at the
meeting, Jimmy Crotts told the Respondents that he would like
to have employees on the Concord job who had previously
worked for the Employer. Jimmy Crotts described a job the
Employer had done in Pittsboro, North Carolina, in 1999, and
stated that he would like to have those same drivers if the Re-
spondents could get them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
According to Wright, Respondents referred employees to the
Concord job from August through November 2000.2 All the
referrals were handled by John Hudson. Sometime in August,
Wright gave Hudson a list of people who had called him ex-
pressing a desire to be employed on the Concord job. Accord-
ing to Wright, the first two names on his list were members of
Local 71, the next three were members of a nearby North Caro-
lina local union, Local 61, and the remaining names were in the
order in which they had called Wright to express interest in the
pipeline job. The Charging Party herein, Jim Seitz, appears as
the eighth name on Wright’s list, with Raymond Andel and
Hazel Maddocks following his name, as the ninth and tenth
entries.
Steve Bishop testified that shortly after the prejob conference
he, too, gave John Hudson a copy of his personal list of em-
ployees who had called him and said they were interested in
working on the Concord job or on any pipeline job. Bishop
said that any employees who called him after that time, how-
ever, were told to call the company office at the yard and talk to
John Hudson. The names on Bishop’s list were also noted
down in the order in which they had called him, beginning in
1999. In addition to his personal list, Bishop also passed on to
John Hudson a list of employees with pipeline experience
working for another pipeline employer, and a list of employees
who had worked for the Employer on the Pittsboro pipeline job
in 1999.
According to Wright, Seitz had called him about the Con-
cord job in July. Seitz requested that his name, and the names
of Raymond Andel and Hazel Maddocks be put on the list for
the Concord job. Wright took down the names and added them
to his list, as described above. Seitz mentioned that he was
from North Dakota, and had worked for the Employer on a
pipeline job there, as had Andel and Maddocks. Wright testi-
fied that he told Seitz that Local 71 members would be referred
to the job first, before those from outside the area. Wright testi-
fied that he never informed Seitz of his placement or number on
his list or on any referral list. He also testified that he told Seitz
that he should stay in North Dakota until he was called; he did
not tell Seitz to come to North Carolina.
Maddocks testified that she telephoned Local 71 in June, and
asked to have her name and Andel’s name put on the out of
work list for the Concord job. The woman with whom she
spoke took down both names and told her that she and Andel
were the first two names on the list. There is no evidence in the
record as to the identity of the person Maddocks spoke to, and
no evidence as to what happened to the names she recorded.
Andel testified that he telephoned Wright in late July to ver-
ify that his name was on the list for the Concord job, and that
Wright told him that Seitz, Andel, and Maddocks were numbers
three, four, and five on the list. According to Andel, Wright
also said they should come to North Carolina as soon as possi-
ble.
Andel testified that in about mid-August, he and Seitz came
to Local 71 and met with Wright in his office. At that time,
Wright told them to see John Hudson about going to work on
the Concord job, as Hudson was the one handling all referrals.

2 All dates hereafter are in 2000, unless otherwise specified.
Charging Party Jim Seitz did not testify, as he was deceased by
the time of the trial. Andel, however, testified that Wright
again told them that the three of them were “three, four, and
five” on the list and would be the next ones hired. He told them
to go to the Employer’s yard the next day. Wright denied that
he told the two employees that they were “three, four, and five”
on the out-of-work list, and that they should come out to the
yard the next day. He stated that he never uses the phrase,
“out-of-work list,” as Local 71 has never maintained one. He
testified that he told them to go see John Hudson at the Em-
ployer’s yard.3
Wright testified that the list of names he gave to Hudson was
simply a memory jogger for his personal use, and was not a
formal referral or “out-of-work” list. It was never posted or
made available to the public. In addition, Wright later relayed
another name to Hudson orally over the telephone, that of a
Local 71 member who had called him to express a desire to go
to work. Wright testified without contradiction that Local 71
does not operate a hiring hall of any kind.
Steve Bishop was also called by Seitz several times in July
and August about the Concord job. Until the prejob conference
in August, Bishop simply told Seitz that he did not know much
about the job yet, but that Seitz should call again to check on
the job. The first time Seitz called after the prejob conference,
Bishop told him that the job had been delayed a little due to the
utility company having trouble getting some necessaary right-
of-way permits for portions of the pipeline. When Seitz told
Bishop he believed he was number one on the list, Bishop re-
plied that there was no number one, since there was no “hiring
list.” Bishop also told Seitz that out-of-work local members
would probably be the first ones to be referred. Bishop recalled
that Seitz volunteered to switch his membership to Local 391.
Bishop told Seitz that would not be necessary.
It is undisputed that neither Local 71 nor Local 391 operates
a hiring hall of any kind. Both Wright and Bishop testified that
they regarded the hiring arrangement with the Employer as a
nonexclusive hiring arrangement.
3. Jim Seitz, Raymond Andel, and Hazel Maddocks
Prior to the Concord job, Andel had worked on a pipeline job
for the Employer in North Dakota for approximately 5 months
in 1999 as a busdriver and a skid driver. He had worked on
another pipeline job for a different employer in June and July
2000. Maddocks, who is Andel’s sister, had worked on the
same two jobs as a busdriver and a dump truckdriver. Seitz,
who was Andel’s brother-in-law, had worked as parts runner
and a bus driver on the first of those jobs. At the time, they
were all members of a Teamsters local union in North Dakota,
Local 123.
3 I credit Wright over Andel to the effect that Wright told them to go
see Hudson at the Employer’s yard, not that he told them they were the
next to be hired. I also credit Wright’s denial that he told the employ-
ees they were number three and number four on an out-or-work list.
They were, in fact, numbers eight and nine. Wright’s testimony overall
was more consistent within itself as well as with other record evidence.
Andel testified inconsistently with his affidavit on one point, and did
not demonstrate a good memory overall.
TEAMSTERS LOCAL 391 (U.S. PIPELINE, INC.) 349
Andel testified that on August 15, he and Seitz went to the
Employer’s yard in Concord, and talked to Wright there. Ac-
cording to Andel, it was on this day that Wright first told them
that Job Steward John Hudson would be the one to talk to about
getting referred. Seitz and Andel went to talk to Hudson. Hud-
son told them that the Employer was hiring those employees
who had worked for it the previous year. Seitz told Hudson
that they had worked for the Employer the previous year, but in
North Dakota rather than in North Carolina. Hudson said that
those from out of state could be on the “B” list. According to
Andel, they talked to Hudson several times in the next couple
of weeks, and he continued to tell them that the Employer was
still hiring employees who had worked the 1999 North Carolina
job for it.
Andel testified he and Seitz were at the Employer’s yard one
day in August when Seitz talked to Racer Hutchens, the job
superintendent. They were acquainted with Hutchens, who had
been a superintendent at the North Dakota job they had worked
on the year before. According to Seitz’ report back to Andel,
Hutchens had said the Employer had already hired all it was
going to, and it would obtain the remaining employees through
the hiring arrangement with Local 71 and Local 391.
Bishop testified that near the end of August he suggested to
Seitz that he and Andel try to get pipeline jobs at another pipe-
line jobsite in Morganton, North Carolina, where a sister local,
Local 61, represented employees. He had heard from the stew-
ard on that job that there were jobs available there. Andel and
Seitz did go to Morganton and did talk to the steward there.
The steward on that job, Joey Parker, testified that he told both
Andel and Seitz that they could go to work on the Morganton
pipeline job that day, and asked them to fill out the paperwork
to be put on the payroll. Parker then went to work for a few
hours, and when he returned to the office, Seitz and Andel had
left, having informed the office employee that they did not want
the jobs.
Andel returned to North Dakota shortly before the end of
August. On August 31, Maddocks arrived in North Carolina.
A few days later, she spoke to John Hudson by telephone, iden-
tified herself and said she was ready to go to work. He told her
that the Employer was hiring employees who had worked for it
the year before. Maddocks said that she had worked for the
Employer the year before, and that Jim Wright had told her she
was on the list for the Concord job. Hudson said that he would
check on it and get back to her. Maddocks testified that Hud-
son also asked her if she knew Jim Seitz. Maddocks replied
that he was her brother-in-law. Hudson said that he had heard
of some trouble with Jim Seitz the previous year. Maddocks
said she had no connection with that, she just wanted to go to
work.
Maddocks testified that Hudson called her back a week later
and told her that she was number 75 or 80 on the list. Hudson
said that he would not refer Andel or Maddocks to the Concord
job, because Seitz was ahead of them on the list, and Hudson
was afraid Seitz would “sue them” if Hudson put Andel and
Maddocks on the job ahead of Seitz. Hudson did not tell Mad-
docks why he did not intend to refer Seitz to the Concord job.
A few days later, Maddocks went to the Employer’s yard,
where she ran into her foreman from the Employer’s job in
North Dakota. When she told him that she didn’t know if she
was going to get on the job, her old foreman said he would see
if he could request her as his bus driver. Maddocks did not see
this foreman again, and was not hired for the Concord job.
4. Employees on the Concord job
No one who actually referred or hired employees on the
Concord job testified. There was documentary evidence in the
form of lists of employees who worked on the Concord job.
Two lists had been prepared by Employer witness Crooks from
the Employer’s computer records. However, there was no di-
rect evidence of how these employees were hired, or, more
specifically, whether they were hired through the Respondents
as a source, from the Employer’s regular employees, or through
some other source. Crooks assumed that they were hired either
from the Employer’s regular employees or through the Respon-
dents, but admitted that he was not present at the Concord job,
and did not actually know. The exhibit listing the names of
employees on the Concord job does not show on its face the
source of each of the employees. While there is a notation,
“Union” or “Company,” on the documents, this was put on by
Crooks based on his computer records and later altered, appar-
ently after a telephone conversation with Hudson.
5. Evidence concerning Seitz’ work history with the Employer
The only evidence concerning the Employer’s attitude to-
ward Seitz comes from a July 27 handwritten letter from the
superintendent on the Concord job, Hutchens. The letter was
authenticated only as coming from the Employer’s files at the
Concord job yard. In it, Hutchens informed Seitz that the Em-
ployer did not intend to hire him on the Concord job as one of
its “regular employees.” It appears that Hutchens already had
in mind a sufficient number of employees, and there was not
room for Seitz.
There were several references, mostly in hearsay evidence, to
Seitz having had a vehicle accident while working for the Em-
ployer in 1999, to Seitz having filed a workers’ compensation
claim, and to Seitz having filed a grievance with the North
Dakota local union. I have not relied on any of this evidence,
as it was, if not actually incompetent or inadmissible, entitled to
very little weight. In addition, with the exception of Hudson’s
remarks testified to by Maddocks, which will be analyzed be-
low, there is no evidence in this record of any animus, any con-
nection, or any causation which would link any of these inci-
dents to the Respondent’s failure to refer Seitz to the Concord
job.
B. Discussion and Analysis
1. Exclusive or nonexclusive hiring arrangement
The first issue presented is whether the hiring arrangement
on the Concord job was an exclusive hiring hall or not. The
contract language quoted above clearly states that there will be
an exclusive arrangement where the local union has an exclu-
sive hiring hall agreement with “highway and heavy contractors
in the area.” It is undisputed that Respondents here had no such
exclusive referral agreement with such contractors, and in fact,
had no exclusive referral agreement with any employers. Nei-
ther Respondent operates any kind of an exclusive hiring hall.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
Under the language of the contract, therefore, the hiring ar-
rangement falls under the second part of article II of the NPA, a
nonexclusive hiring arrangement, where the local union is but
one source for employees. Therefore, under the plain language
of the collective-bargaining agreement, the Respondents were
but one possible source for employees. The Employer was, by
explicit contract language, free to hire employees from other
sources.
It is possible, however, for an agreed nonexclusive hiring
hall to operate in practice as an exclusive hiring hall. If, for
example, all the parties to the agreement treat it as an exclusive
hiring arrangement, then the same duties will apply to the union
as in the case of an agreed exclusive referral procedure. See,
e.g., Laborers Local 334 (Kvaerner Songer), 335 NLRB 597
(2001). Board law makes it clear that it is the General Coun-
sel’s burden to establish exclusivity under this theory.
In this case, it is clear that the Respondents did not regard the
hiring arrangement as an exclusive hiring arrangement, and did
not treat it as such. There was no out-or-work list maintained,
nor were referrals made in any particular order. There were no
written hiring hall rules, nor any of the other formal require-
ments of an exclusive hiring hall. The lists which did exist
were merely notations of employees who had experience or
interest in pipeline work. These lists were personal notes of
Wright and Bishop, and were given to Hudson, the steward, for
his convenience, apparently without any instructions on how
they should be used. Other lists of employees who had worked
on the Employer’s 1999 pipeline job or another pipeline job,
were also given to Hudson, as the Employer had expressed a
desire to have experienced employees, especially those it had
previously employed itself, working on the Concord job.
It is unclear whether the Employer regarded the hiring ar-
rangement as exclusive or not, as none of the Employer super-
intendents who ran the Concord job testified. The exhibit list-
ing the names of employees on the Concord job does not show
on its face the source of each of the employees. While there is
a notation, “Union” or “Company,” on the documents, this was
put on by Crooks based on his computer records and later al-
tered, apparently after a telephone conversation with Hudson.
There was no testimony by any knowledgeable witness as to
the source of each applicant who was hired. As noted before,
neither Jimmy Crotts, the owner and a superintendent, Racer
Hutchens, the other superintendent, nor John Hudson, the Re-
spondents’ job steward, testified concerning the source for each
applicant who was hired by the Employer. Thus, it has not
been shown by a preponderance of the evidence that the Em-
ployer hired only by union referrals (other than the “regular
employees” to which the contract entitled it). Even if it is as-
sumed, as Crooks assumed, that the Employer treated the ar-
rangement as an exclusive one simply because it was accus-
tomed to exclusive arrangements in other locations of the coun-
try, the mental assumptions of one party to a written agreement
cannot change the meaning of the agreement.4

4 It appears from the testimony of Andel and Maddocks that they be-
lieved hiring for the Concord job was being done under an exclusive
arrangement, and that an out-of-work list must exist, and that employ-
ees must be referred in order from this list. They may have believed
On this record, I find that the hiring arrangement for the
Concord job was a nonexclusive referral procedure, as de-
scribed in the NPA.
2. Respondents’ duty under a nonexclusive agreement
Board law imposes on unions a duty even in a nonexclusive
hiring hall situation. A union must not discriminate against
applicants because they have engaged in protected activity, for
example, intraunion political activity. See, e.g., Carpenters
Local 537 (E. I. du Pont), 303 NLRB 419 (1991). To prove a
prima facie case that a union has violated this duty, there must
be proof of protected activity, animus by the union towards the
individual (or individuals) based on that protected activity, an
action taken which harms the individual, and a nexus between
the animus and the action.
Here, it appears from the uncontradicted testimony of Mad-
docks that the Respondents’ job steward, Hudson, told her he
would not refer Andel and Maddocks because Seitz was ahead
of them on the list, and jumping over his name would be a
problem. With regard to Seitz, he said only that he had heard
of some “trouble” with Seitz the previous year. Hudson did not
specify what kind of trouble this was, or whether the supposed
trouble was the reason he had not referred Seitz to the Concord
job. The General Counsel argues that it should be inferred
from these remarks: (1) that the trouble referred to was a griev-
ance Seitz had supposedly filed in 1999, (2) that the filing of
the grievance was protected activity, and (3) that this grievance
was the reason Seitz was not referred. In addition, the General
Counsel assumes that the grievance, if it occurred, was pro-
tected activity. Maddocks testified that she believed Seitz had
filed a grievance in 1999. It is unclear from this record whether
that grievance was against the Employer, or concerned some
internal union matter. The record contains nothing about the
subject matter of the grievance, and the very existence of the
grievance itself is based on hearsay evidence. I find that the
General Counsel has not proved that Seitz engaged in protected
activity.
In order to sustain the General Counsel’s theory, far too
many mental leaps and unsupported assumptions would have to
be made. Hudson’s reference to trouble with Seitz could have
referred to his vehicle accident, to his worker’s compensation
claim, to the grievance, assuming there was such a grievance, to
his heart problem, or to some other difficulty which was un-
known to Maddocks. Hudson did not elaborate. The mere fact
that he mentioned this to Maddocks during a conversation in
which they were discussing her chances for referral to the Con-
cord job is not sufficient to establish both animus based on this
unidentified “trouble” and Seitz not being referred to the Con-
cord job because of the “trouble.” Hudson’s comments to
Maddocks are far too ambiguous and incomplete to support the
heavy burden of meaning the General Counsel would attribute
to them.

this because their previous experience in North Dakota involved an
exclusive referral procedure. I find that the belief of the individual
employee applicants does not have any weight in determining whether
the referral procedure on the Concord job was exclusive or nonexclu-
sive.
TEAMSTERS LOCAL 391 (U.S. PIPELINE, INC.) 351
Aside from Hudson’s ambiguous remarks to Maddocks, evi-
dence of animus by Respondents towards Seitz, Andel, and
Maddocks is wanting. Evidence concerning the conduct of the
two business agents, Wright and Bishop, does not establish
animus; on the contrary, both men acted helpfully towards
Seitz, Andel, and Maddocks. Both agents passed on the three
applicants’ names to the job steward of the Concord job.
Bishop informed them of pipeline work in another North Caro-
lina location. I find it unnecessary to determine whether
Wright did or did not inform Andel that the three North Dakota
applicants were, “three, four, and five” on his list of pipeline
employees. As has already been found, Wright’s list was not
an official “out-of-work” list, but was simply information con-
cerning interested and available employees. Especially in view
of the multiple lists of available and/or experienced employees
which Hudson was given for use in finding qualified employees
to refer, the order of employees on Wright’s list was not of any
particular importance. Nowhere in this record has it been
shown that Seitz, Andel, and Maddocks were more qualified or
experienced than the employees who were referred to the Con-
cord job.
Likewise, evidence of any connection between Seitz’ griev-
ance, assuming that it existed, and assuming that it was pro-
tected activity, with Respondents failure to refer him to the
Concord job is lacking. As described above, Hudson’s remarks
constitute the only scintilla of evidence in this record which
could bear on the issue of a nexus between the assumed pro-
tected activity and the failure of Respondents to refer Seitz and
the other two employees to the Concord job. Even if the other
elements of a violation could be wrung from this record, I find
that Hudson’s ambiguous remarks to Maddocks are insufficient
evidence of such a nexus.
In summary, I find that the General Counsel has not shown
by a preponderance of the evidence that Respondents refused to
refer Seitz, and consequently Andel and Maddocks, to the Con-
cord job for any unlawful reason.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.