Stockton Steel Fabricators and Erectors, Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 433 (Stockton Steel Fabricators and Erectors, Inc.) and Gary M. Spring. Case 31-CB-2926 March 5, 1980 DECISION AND ORDER By Members Jenkins, Penello, and Truesdale On August 31, 1979, Administrative Law Judge Gordon J. Myatt issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings.ln this regard we note that the Administrative Law Judge discredited Gary Spring based in part on certain inconsistencies in his testimony regarding the Union's unwillingness to allow him to look at the out-of-work list on May 8, 1978. However, a review of the record indicates that the testimony found inconsistent by the Administrative Law Judge refers to events occurring on two different dates. We do not, therefore, rely on the Administrative Law Judge's analysis of Spring's testimony of the matter in adopting his credibility resolutions. DECISION STATEMENT OF THE CASE GORDON J. MYATrr, Administrative Law Judge: Upon a charge filed on May 8, 1978,1 and an amended charge filed on June 23 by Gary M. Spring (hereinafter called the Charging Party or Spring), the Regional Director for Region 31 issued a complaint and notice of hearing on July 26 against International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 433, hereinafter called the Respondent Union. On De- ' Unless otherwise indicated, all dates herein refer to the year 1978. 248 NLRB No. 33 cember 8, the Regional Director issued an amended com- plaint and notice of hearing alleging that the Respondent Union violated Section 8(b)(1)(A) and (b)(2) of the Na- tional Labor Relations Act, as amended, 29 U.S.C. 151, et seq., hereinafter called the Act. The Respondent Union filed a timely answer and an amended answer admitting certain allegations of the complaint, denying others, and specifically denying the commission of any unfair labor practices. 2 The substantive allegations of the complaint allege, inter alia, that the Respondent Union maintained and ad- ministered an exclusive hiring hall arrangement pursuant to a local agreement. That, on April 10, the Respon- dent's business agent told Spring he would not be re- ferred to work out of the hiring hall because he was not a member of the Respondent Union. Further, that on May 8, the Respondent's business agent told Spring he had to be a member of the Union in order to be referred to work, and caused Spring's layoff records to be changed from a normal layoff to a layoff for "goofing off" on the job because Spring filed charges against the Respondent Union with the Board. Finally, that on May 8, Respondent's business agent refused to refer Spring to a job because he was not a member of the Respondent Union and because Spring stated, and Respondent's agent believed, he would go to the Board to protest the operation of the hiring hall. The Respondent Union denied each of these substantive allegations. A hearing was held in this matter on March 1, 1979, in Las Vegas, Nevada. All parties were represented by counsel and afforded full opportunity to examine and cross-examine witnesses, and to present material and rel- evant evidence on the issues involved herein. Briefs were submitted by the General Counsel and the Respondent Union and have been duly considered. 3 Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor while testi- fying, I make the following: FINDINGS OF FACT 1. JURISDICTION The amended pleadings admit and I find that jurisdic- tion should be asserted on the following basis: 1. Stockon Steel Fabricators and Erectors, Inc., the employer herein, is a wholly owned subsidiary of Her- rick Corporation. Herrick is a member of National Erec- tors Association and, as such, is party to a collective-bar- gaining agreement, called the National Agreement, with the International Association of Bridge, Structural and Ornamental Iron Workers, of which the Respondent Union is an affiliate local. The National Agreement in- corporates by reference all local collective-bargaining agreements negotiated between local unions having jusi- 2 The complaint was further amended at the hearing and the Respon- dent Union amended its answer to admit certain allegations previously denied. However, the Union maintained its position that it had not en- gaged in conduct which constituted unfair labor practices under the Act. I The Respondent's brief was filed 2 days late and was accompanied by a "Motion to File Brief of Respondent Instanter" The grounds set forth in support of the motion demonstrate that the untimely filing was caused by inadvertent circumstances. Since this motion was not opposed by counsel for the General Counsel, it is hereby granted. IRON WORKERS, LOCAL UNION 433 161 diction in the geographic area for work covered by the National Agreement and contractors engaged in such work. 2. The District Council of Iron Workers of the State of California and Vicinity is a union association which has as members various local unions, including the Re- spondent Union, and exists in part for purposes of negoti- ating, executing and administering multiunion collective- bargaining agreements on behalf of its constituent mem- bers. The District Council and its various affiliated locals, including the Respondent Union, are parties to a local agreement, effective June 30, 1977, to June 30, 1980, covering employees of employers engaged in steel and iron construction in the State of California and a portion of Nevada which encompasses the Las Vegas area. By virtue of the terms of the National Agreement between Herrick and the International Union, Stockton Steel is bound to the local agreement negotiated by the District Council and the various employer associations. 3. Stockton Steel is a California corporation and, in the course of its business operations, annually sells and ships goods and services valued in excess of $50,000 di- rectly to customers located outside the State of Califor- nia. On the basis of the foregoing, I find that Stockton Steel is, and has been at all times material herein, an em- ployer within the meaning of Section 2(2) engaged in commerce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Or- namental Iron Workers, Local Union 433, is a labor or- ganization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Collective-Bargaining Agreement The Respondent Union has its main office and hiring hall in Los Angeles, California. It maintains a small branch hall in Las Vegas, Nevada, which is run by a single business agent, Fred Toomey. Under the terms of the local agreement (G. C. Exh. 2), the Respondent Union has an exclusive hiring hall arrangement for the referral of employees to contractors who are parties to or bound by the provisions of the local contract. Section 5 of the local agreement deals with the em- ployment of ironworkers within the jurisdiction of the District Council and its member unions. This section pro- vides, inter alia: A-In order to maintain an efficient system of production in the industry, to provide for an order- ly procedure for the referral of applicants for em- ployment, and to preserve the legitimate interest of the employees in their employment, the Employers and the Union agree that when an individual em- ployer requires workmen to perform any work cov- ered by this Agreement he shall hire applicants for employment to perform such work in accordance with this Agreement.B-I-The individual employ- er shall have the right to employ directly a mini- mum number of key employees who may include a General Foreman and a Foreman. In addition, the individual employer shall have the right to employ directly on any job in the locality in which the indi- vidual employer maintains a principal place of busi- ness all employees required on such job or jobs, provided such employees are regular employees of the individual employer who have been employed by him fifty percent (50 %) of the working time of the applicants during the previous twelve (12) months. C-All other journeymen required by an individ- ual employer shall be furnished and referred to such individual employer through the hiring office of the appropriate Local Union. F-Subject to the provisions of Section 4 of this Agreement, "Union Security," selection and referral of journeymen applicants to jobs shall be on a non- discriminatory basis and shall not be based on, or in any way affected by, union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies or requirements. The selection and referral of applicants shall be operated in accordance with the following plan: Any workman desiring employment in the work covered by this Agreement shall be required to be reqistered in one of the Groups listed below. Each such workman shall be registed in the highest prior- ity Group for which he qualifies. Group "A" All applicants for employment who have worked at the trade as journeymen or apprentices in the work of the type covered by this Agreement for the past three (3) years in the geographic area covered by this Agreement provided, however, if such ap- plicants request registration in this Group with the designation of a particular classification or classifi- cations, and specialty or specialties, they shall have worked at least six (6) months within the three (3) years immediately preceding such registration, in such classification or classifications, and specialty or specialties. All apprentices graduating to journey- man status within the coverage of this Agreement shall be included in this Group "A". Group "B" All applicants for employment who have worked at the trade as journeymen or apprentices in work of the type covered by this Agreement for the past four (4) years, provided, however, if such applicants request registration in this Group with the designa- tion of a particular classification or classifications, and specialty or specialties, they shall have worked at least nine (9) months within the four (4) years im- mediately preceding such registration, in such clas- 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sification or classifications, and specialty or special- ties. Group "C" All applicants for employment who have worked at the trade as journeymen or apprentices in work of the type covered by this Agreement for the past two (2) years or more and who have for the past year actually resided within the geographic area covered by this Agreement. Group "D" All applicants for employment who have worked at the trade in work of the type covered by this Agreement for one (1) year or more immediately preceding the date of their registration. Group "E" All other applicants for employment. G-Each Local Union shall maintain each of the separate Group lists set forth above which shall list applicants within each Group in the order of the dates they registered. H--Individual employers shall advise the ap- propriate Local Union of the number and classifica- tion or classifications, and specialty or specialties, or applicants required. The appropriate Local Union shall refer applicants to the individual employer by first referring applicants in Group "A" in the order of their places on said list and then referring appli- cants in the same manner successively from the lists in Group "B", then Group "C", then Group "D", then Group "E". I-I-Any individual desiring employment shall register at the appropriate Local Union by appear- ing personally and shall indicate his name, address, telephone number, Social Security Account number, classification or classifications, specialty or special- ties of the type of work desired, the date of such registration and other pertinent information if re- quired. 2-Available for employment shall mean: a-All individuals seeking employment under Subsection 1-1shall be in the Local Union at regu- larly established Roll Call time. b-All individuals eligible for referral shall be present at the Local Union during dispatching hours; provided, however, they may be present at a location where they can be reached by telephone if they live in a remote area or, due to extenuating cir- cumstances, cannot be personally present. B. The Events Relating to the Charging Party Spring is an ironworker out of Seattle, Washington, and is a member of Local 82, a sister local of the Re- spondent Union. Spring testified that he worked out of Local 82 for 20 years and had been a member for 18 years. In early 1978, Spring and his wife were vacation- ing in San Diego, California, and decided to spend some time in Las Vegas. They arrived in Las Vegas in March and noticed that construction work seemed to be flour- ishing in the area. He began to investigate the possibili- ties of securing employment in the event he and his wife decided to return to the area. Spring testified that he made contact with a former acquaintance, Eddie Ed- wards, who was an ironworker employed by Steel, Inc. According to Spring, Edwards promised to contact Toomey at the union hall and get Spring referred to a job with Steel, Inc. The Springs returned home to Seattle in order to pre- pare for their return to Las Vegas. On April 10, Spring appeared at the Respondent's hiring hall in Las Vegas and signed the out-of-work list. He testified that Toomey was seated at the desk in the hall and, when he got Too- mey's attention, he asked to be referred to Steel, Inc. He asked Toomey if Edwards had spoken to him and stated that a job was available for him with that employer. Ac- cording to Spring, Toomey replied, "Who in the hell do you think you are? You Goddamn 'boomers'4 come in here and you think you run the whole Goddamn hall. I'm the business agent here and I'm Fred Toomey." Spring stated that he then sought to convey to Toomey that he was under the impression Edwards had already spoken to him about Spring being employed by Steel, Inc. Spring testified that Toomey stated, "I'll talk to whomever I Goddamn well please. I'm a business agent here. If you boomers think you can come here and-you son of a bitch-and run this local, then I will find out why." At this point, according to Spring, he stated "Maybe I better go downtown to the NLRB." Spring testified that Toomey then stated, "Go down there to see those sons of bitches. I had trouble with them before. They don't scare me. I'm Fred Toomey." Spring testified that, in order to ease the situation, he explained to Toomey that he could understand his desire to protect the local men, but in Seattle the local union was under a court order to refer out anyone that came into the hiring hall. Toomey's response to this, according to Spring, was, "You're Goddamn right. I protect my local men. They go out first on any of the jobs before anybody else does, especially you Goddamn boomers." Spring further testified that Toomey told him Steel, Inc., was a "rat outfit" and he was out to get them. Toomey stated, according to the testimony of Spring, that he would not send Spring to work for them nor would he send anyone else out from the hiring hall to that employ- er. Spring testified that, after his encounter with Toomey, a call came in from an employer requesting two connec- tors and two groundmen. Toomey called out in the hall for the men and then asked Spring if he were a connec- tor. When Spring replied that he was, Toomey asked if he would like to go to work for the employer, Martin Iron. Toomey then dispatched Spring and another iron- worker to this employer. Spring testified that he worked on the Martin Iron job for 5 days and then injured his back. Because he had to 4A "boomer" is described as an ironworker that goes from town to town or goes into an area under the jurisdiction of another local union in order to work, IRON WORKERS, LOCAL UNION 433 163 take exercises to strengthen his back, Spring did not appear at the hiring hall until approximately April 19. He put his name on the out-of-work list and reported to the hall each day to be dispatched. Spring stated that on Friday of that week he was in the hall and overheard Toomey talking to another ironworker, Runyen. Accord- ing to Spring, Toomey stated that any person who came into the hall and caused trouble would be taken care of. Spring testified that Toomey indicated to Runyen that they had already taken care of an individual by wiring his automobile and detonating it by remote control. Spring stated that Toomey then turned to him and ad- dressed him as "Killer." He told Spring he would send him out the following Monday to work for Steel, Inc. According to Spring, Toomey said this would be done as soon as he laid off a couple of boomers and apprentices who apparently were then working for Steel, Inc. Spring testified that, later that same day, he encoun- tered Toomey in the parking lot. He told Toomey that he wanted to transfer to the Las Vegas branch of the Respondent Union and get on the A list. He inquired as to what procedure he would follow to accomplish this. Spring testified that Toomey told him he should send 8 months' dues to the Los Angeles local and he (Toomey) would verify it. Then Spring was to serve 3 months on the lower priority dispatch list with the rest of the boomers, and if he stuck it out he would be put on the A list. Spring testified that, although Toomey promised to send him out to the Steel, Inc., job the following Monday, he was never dispatched. He returned to the union office each day of that week but was never re- ferred to a job. On April 27, Spring went to the hiring hall and Toomey was not present. Another person was filling in for him and dispatching workers to jobs. A call came in from Industrial Steel for two connectors. Spring testified that he heard the job was filled and he went to a nearby restaurant with two other boomers when he was told that another connector was needed on the job. Ac- cording to Spring, he and two boomers flipped a coin and he won. So he went to the dispatcher and bid for the job. The individual filling in for Toomey dispatched Spring to Industrial Steel as a connector and he began work the following day. Spring testified that he worked at the Industrial Steel site until the following Thursday, May 4. He stated that on that date Toomey came to the jobsite at approximate- ly 9 a.m.5 According to Spring, Toomey went over and spoke to the job foreman. During the course of the con- versation, Toomey turned and pointed at him. Spring, however, was unable to hear what was being said. At the end of the day Spring was told by the foreman, Scaggs, that he and another worker would be replaced the following Monday. Spring stated he was told that some steel on the job had been "misfabricated." Spring asked for a layoff slip giving the reason he was being ter- minated, but was told that it was not the custom in Nevada to give slips setting forth the reason for layoffs. a In his affidavit, Spring stated that Toomey appeared at the jobsite at 7:45 a.m. Spring filed a charge against Industrial Steel (Case 31- CA-7978) and a charge against the Respondent Union al- leging that he was laid off because he was not a member of the Respondent Union. The charge against Industrial was subsequently withdrawn on advice of the Board agent investigating the matter because it was felt to be without merit. The withdrawal request (G.C. Exh. 4) was signed on June 20 by Spring's daughter-in-law in Se- attle, who had been granted the power of attorney to do so. An amended charge against the Respondent Union was also executed on that date on behalf of Spring by his daughter-in-law citing an incident, discussed infra, al- leged to have happened with Stockton Steel. 6 The following Monday, May 8, Spring went to the hiring hall to sign the out-of-work list. His wife and a friend, Bob Trask, also went to the hall but did not enter at the same time that Spring did. Spring testified that, when he entered the hall, Toomey told him there were two lists to be signed. One was a list for local hands and the other was a list for boomers. Spring stated he walked over to look at the local list and Toomey told him "to get the hell away from there and come in and sign the boomer list on his desk." 7 According to Spring, the local list was a normal ironworkers' out-of-work list while the boomer list was a blank sheet of paper with no heading on it. Spring stated he went over to Toomey's dest and signed the boomer list. At this time, he stated that a person, subsequently identified as Farley Rice, general foreman for Stockton Steel, entered the hall and told Toomey that he needed men for Stockton's job at the "Barbary Coast." Spring testified that, after Rice's con- versation with Toomey, the latter put out a call in the hall stating that he needed two connectors and two groundmen for Stockton.8 Spring stated that he waited for 5 minutes and there was no response from the iron- workers in the hall. He then stood up and told Toomey he would take the call for one of the connector's posi- tions. Spring testified that Toomey replied, "This is for local hands only, Asshole." Spring testified that he did not observe any men being dispatched to Stockton that day. Spring also testified that, prior to making this state- ment, Toomey dispatched an older worker named Ray Shay to a job with Industrial Steel. According to Spring, Shay protested that he was not an ironworker and Toomey indicated that it did not matter, and "[he could] 6 At the hearing, Spring displayed considerable confusion as to the sig- natures on the amended charge and the withdrawal request. At one point he was uncertain whether he signed the documents or whether he autho- rized the Board agent to sign them. After a luncheon recess it was deter- mined that he and his wife had returned to the State of Washington on May 12, and were away from their home in Seattle when the documents were sent. Because the contents of the documents previously had been read to him over the telephone and he was expecting to be away when they arrived, Spring authorized his daughter-in-law to sign his name and return the documents to the Board's office. While this does not invalidate the withdrawal request or the amended charge, it is indicative of the con- fusion that was prevalent in much of the testimony given by Spring. 7 On cross-examination, Spring testified that, when he attempted to ex- amine the out-of-work list for the local members, he was told by Toomey to get his "filthy hands off the list." I Rice was called as a witness by the General Counsel. He testified that he went to the union hall on one occasion to request men, although he could not recall the date. He stated that the job began on May 1. and he recalled that he did not go to the hiring hall personally until "after the job had been running a good length of time." 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have charge of the bolt shack." According to the testi- mony of Spring, Toomey made a telephone call after he dispatched Shay. Spring stated he overheard the conver- sation and Toomey told whomever he was speaking to that he was sending a man out who was not able to get in the air. He told the other party to the conversation that he wanted him to take care of Shay. During this same conversation, according to Spring, Toomey stated, "We have a troublemaker in here by the name of Gary Spring." He told the other party on the line that he wanted him to change his layoff slip from "layoff" to "joeying around on the job."9 Spring testified that he heard Toomey state during the telephone conversation that Spring "was a troublemaker because [he] had gone to the NLRB and filed a complaint against the Union, and he was going to fix [Spring's] ass." Spring further testified that after Toomey told him the Stockton job was only for local hands he closed the hiring hall stating that, "I'm going down to the NLRB and straighten those assholes out." The following morning, Spring went to the hall again. He testified that he was directed by Toomey to sign the out-of-work list for local hands as well as the list for boomers. He stated that the furniture had been moved to the back room, and Toomey told everyone to go to the back as the rugs in his office were going to be cleaned. According to Spring, he was the last one to go to the back and, when he did so, he stood in the doorway. One of the members inside with Toomey closed the door in his face. Spring then went around to the window and said he was a member of "Local 86, International Iron Workers," and he would "stand in this window until the union hall closed." Spring stated that Toomey was talk- ing on the telephone at the time that this took place. Later, according to Spring, Toomey came out of the office and stood in the hall and said, "I don't know you. I've never seen you in this hall before." Spring testified that Toomey then stated, "If you want to work out of this hall . . . you're going to have to go down to L.A. and turn in your card and get a referral slip before you can work out of this hall." Spring replied that he was an ironworker and was entitled to be dispatched out of the hall. He stated that he had been sent out on two jobs previously. Spring testified that Toomey replied, "Oh, you have? I've never seen you before. It's funny the only way you can go out of this hall is by going to L.A. and clearing through the union hall. Down here we don't dispatch any boomers out of this hall without a clearance from the L.A. local." On cross-examination, Spring told essentially the same story about his encounter with Toomey on May 9, except that he embellished his account with even strong- er words. He stated that Toomey said, "I don't even know you, you son of a bitch. I've never seen you before. You want to work out of this hall, you've got to go down to L.A., 433, and get dispatched out of here [sic]. Nobody comes out of here but local hands." Spring also stated that Toomey attempted to grab his iron- workers' card out of his hand at this time. Spring testi- According to the testimony, "joeying" means fooling around or goofing off on the job and not performing the work properly. fled that, after his encounter with Toomey in the hall, Toomey closed the hall because he said there had been a death. Spring stated he then went to the FBI and the NLRB and gave an affidavit on what occurred that day. o Mrs. Spring testified that she and Trask entered the hiring hall separately from Spring on May 8. She had some experience as a welder's helper and went to sign the out-of-work list. She stated that she used her maiden name, Vaden, so that Toomey would not know that she was married to Spring. According to her testimony, Toomey stated boomers and permit people had to sign a different list from that signed by local hands. She there- upon signed the boomer list. Mrs. Spring testified that she saw Rice from Stockton Steel enter the hall and heard him tell Toomey that he needed some hands. She also stated that she overheard Toomey have a telephone conversation in which he said that he was having trouble with a fellow who had gone to the NLRB and he was going to change his layoff slip to "joeying around on the job." She corroborated Spring's testimony that when he asked to be referred to the Stockton job, Toomey told him it was "for local hands only, Asshole." She also re- called that, when Toomey closed the hall that morning, he stated he was going down to the NLRB and straight- en them out. Mrs. Spring further testified that she went to the union hall, again separately from her husband, on May 9. She stated, however, that she did not hear very much con- versation that morning. She testified that Toomey came out and said the hall was closed because someone was killed on a job. In her affidavit, given on May 12, Mrs. Spring stated that Toomey answered the phone and said, "Oh, the Showboat." According to the affidavit, he then called out for two connectors and two groundmen, and an old man was dispatched to the job. According to Mrs. Spring's affidavit this old man told Toomey that he was not an ironworker and Toomey stated, "That's all right, I've taken care of it." Mrs. Spring's affidavit further indi- cated that Toomey called out for another connector and after a few moments her husband went up to the window and said he would take the job. This is when, according to her affidavit, Toomey informed her hus- band the job was for local hands only. On cross-examina- tion, Mrs. Spring stated that she informed the Board agent taking the affidavit that the incident involving the old man occurred before Toomey told Spring that the Stockton job was for local hands only. She stated that she was informed it did not matter and that events not covered by her affidavit were contained in the affidavit of her husband. Michael Runyen, an ironworker, testified for the Re- spondent. Runyen was one of the first people hired by Stockton Steel to work on the job at the Barbary Coast. He stated he began working at that jobsite May 1 and he was the steward for the job. He stated that, when Rice needed men on the job, he would inform Runyen who would then make a call to the union hall. He testified 'o The record indicates that Spring did not give an affidavit to the Board regarding these events until May 12. IRON WORKERS, LOCAL UNION 433 165 that no one was called by name and all of the orders for men were open orders; i.e., requests for a given number of men rather than for specific ironworkers. Runyen also denied ever having a conversation at the union hall with Toomey regarding placing explosives in the car of anyone who caused trouble for the Union. Toomey's version of the events involving Spring was distinctly different from that given by Spring and his wife. Toomey testified that, on April 10, Spring appeared at the union hall and said he wanted to be dispatched to Steel, Inc. Toomey questioned Spring and ascertained that he was out of the State of Washington. He stated he told Spring he could not dispatch him without the job steward or the foreman of Steel, Inc., putting in a re- quest for men. He also told Spring that, if he was from Washington, he would have to have a "shipping letter" through his local from Steel, Inc., and he would then be dispatched to that job.' 2 Toomey stated that Spring did not have such a letter and he told him he would put him on the B list for dispatching. Toomey denied telling Spring that he would not refer men to Steel, Inc., be- cause it was a "scab outfit or something of that nature." He stated that the owner of Steel, Inc., was a friend of his. Toomey testified that at the end of this particular conversation Spring stated that he would go to the Na- tional Labor Relations Board. According to Toomey, he told Spring that was his prerogative but that he should go by the procedure contained in the union book. He told Spring, "Read your book and you'll see, you know, that if you travel around, if you travel around the coun- try, you know you don't go on the A list; you go on the B list. Simple as that." He testified that Spring never filed a grievance under the contract to request a hearing contesting his placement on the lower priority list.' 3 Toomey testified that he dispatched Spring to a job for Martin Iron that day. He stated that he called out for a couple of connectors and none of the men on the A list bid for it, but Spring "hollered out" for the job from the B list and was dispatched. Regarding the priority of the referral lists, Toomey stated he kept two lists at the hall, but actually indicated there were at least three lists. He testified that he main- tained an A list, a B list, and a permit list. Toomey stated that all applicants signed one out-of-work list when they came to the hall. As the applicants with the lower num- bers were dispatched, those with higher numbers moved " Runyen acknowledged that he was discharged from the Stockton Steel job after approximately 6 weeks. He stated he filed charges with the NLRB, OSHA, and initiated a grievance under the contract. At the time of the hearing, the NLRB charge had been deferred by the Regional Office because the grievance was pending under the contract procedure and the other matters involved safety, which was OSHA's jurisdiction. '' A shipping letter under the terms of the collective-bargaining agree- ment requires an employer bringing in workers from another geographi- cal jurisdiction to have them transferred from their home local and pay their transportation costs and S20 a day subsistence. Toomey made the observation that this practice was usually limited to foremen and mem- bers of supervision because of the additional cost to the employer, '3 Under the terms of the agreement a job applicant dissatisfied with his classification on the referral list or grieved by the operation of the hiring hall could request a hearing before an appellate tribunal. The tribu- nal could consist of a representative selected by the employers party to the agreement, a representative selected by the union, and an impartial umpire appointed jointly by the employers and the Union. The decision of the tribunal would be final and binding. (G.C. Exh. 2, sec. 5(M).) forward on the list until they became eligible for dis- patching. Toomey testified that he only maintained an A and B list, because the Las Vegas office was a branch hall that did not have the number of men to justify using the additional referral lists set forth in the contract. Toomey stated this method was fairer to everybody, since the B list was directly under the A list and the men would be dispatched faster. According to Toomey, he combined all of the referral lists below B because, "the list with C, D, and E is a complicated son-of-a-gun." Toomey testified that, whenever an applicant came from within the geographical jurisdiction of the local dis- trict council, he was placed on the A list for referral. However, when an applicant came from the jurisdiction of another district council or local union, he was placed on the B list. When asked his understanding of the re- quirements for being assigned to the B list, Toomey stated that the applicant must have performed work cov- ered by the agreement for the last 9 months of his work experience in the geographic jurisdiction of the local dis- trict council. Toomey stated that he could determine which referral list (A or B) an applicant qualified for by examining the applicant's green ironworkers' card and questioning him at the time of registration. Toomey also testified that while he only kept one out- of-work list, he required all applicants to sign a list each day that they came to the hall. This list was kept on a wirebound tablet. He stated he followed this practice in order to avoid any dispute as to whether an applicant was in the hall at the time a job was dispatched. It also enabled him to respond if a call came in from an employ- ment office seeking to find out what men were at the hall. Toomey stated he discontinued the practice of having the men sign this daily list approximately 6 months before the hearing in this case. Toomey recalled being asked by Spring about the pro- cedure to be followed in transferring into the Local. Ac- cording to Toomey, the conversation took place near his car sometime after Spring had been dispatched to Martin Iron. Toomey told Spring that he would have to send his card to the Los Angeles office of the Union and pay a service fee of $2.50 a week directly to that office for a period of 6 months. Toomey stated he could not accept money at the branch hall and that he so advised Spring. He testified that Spring never followed this procedure. Toomey also denied that he had a conversation with Runyen in which he mentioned wiring the automobile of troublemakers with explosives. Toomey stated that he was "scared of that stuff." According to Toomey, he had no problem with the fact that Spring had been dispatched to the Industrial Steel job in his absence. He stated that he went to the Industrial jobsite on May 4 to check on the early starting time of the ironworkers. Toomey testified that he waved to Spring and other ironworkers he recognized on the job because "it's politics." He denied pointing out Spring to the job foreman or requesting that Spring be dis- charged. Toomey testified that he was not aware of the reason why Spring had been laid off from Industrial until he received a call from Scaggs on May 10 for more iron- workers. Toomey asked Scaggs at that time why he had discharged Spring when he was still in need of men. Ac- . -- 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Toomey, Scaggs stated Spring was dis- charged because he was unable to perform the work properly. 4 The Union's record indicate that Toomey dispatched four ironworkers to Industrial on May 10. (Resp. Exhs. 10-13.) Toomey testified that, on May 8, Spring came into the union hall and signed the out-of-work list. He denied that Rice came to the hall requesting men for the Stockton Steel job. Rather, he stated the steward called the hall that day with a request for four men. Toomey said the A list had not been exhausted and he dispatched four men to the Stockton job. The Union's dispatch slips show that Ray Shay, the individual asserted by Spring and his wife to have been dispatched to Industrial and to have been the subject of a phone conversation by Toomey, was one of the ironworkers sent to the Stockton job on May 8. (Resp. Exh. 6). Toomey denied telling Spring on that date that the Stockton job was for local men only. Toomey testified that, on May 9, he had moved the chairs where the men usually sat from the hallway to a room in the back of the union office. Toomey stated he did this because when women came into the union office to pick up health and welfare papers for their husbands, they were normally accompanied by children and they felt embarrassed having to walk through the area where the men were swearing or talking in a boisterous fashion. Toomey testified that everyone but Spring moved to the back. Spring came up and stood at the open window. When he asked Spring if he could assist him, Spring stated, "I've got an International book and I can stand wherever I want." Toomey testified that he asked Spring, "Why be a big asshole? The only reason is to keep the hallway clear in case a woman comes in there. They don't feel backwards [sic] that way. We got two big rooms in the back. We've got tables and all the chairs you want." Toomey stated that Spring insisted on standing there and he returned to his work. Toomey also denied that he closed the union hall on Tuesday because an ironworker had been killed on the job. Toomey stated that there was never a member killed on the job while he was business agent and denied making any reference to any man being killed on that date. Toomey also testified that, on May 8 and May 9, he did not have any knowledge of the charges filed by Spring against the Respondent Union or Industrial. The records show that the charge against the Union was mailed from the Board's office on May 9 and Toomey stated he did not receive a copy until the middle of the week. Concluding Findings As recognized by the briefs of the parties, the issues presented by this case rest primarily on a determination of the credibility of the witnesses. If the testimony given by the Springs is found credible, then a violation of the Act has been committed by the Respondent Union. But 14 When Spring returned to Seattle, he applied for unemployment compensation, stating that he had been laid off by Industrial due to lack of work. Through an employers' association of which it was a member, Industrial contested Spring's claim and stated he was discharged "because of his inability to perform the work he was sent out to do " (Resp. Exh. I.) if their testimony is found to be unworthy of belief, the complaint must be dismissed. Having observed the wit- nesses while testifying and after a full review of the entire record in this case, I am constrained to conclude that a finding of a violation is not warranted. My conclusion in this regard is based foremost on the fact that I find the testimony of Spring to be simply un- reliable. As a witness, Spring impressed me as one who was prone to embellish and exaggerate his description of events or incidents, even to the point of distortion, in order to weave a tale designed to support his claim that he had been discriminated against at the hiring hall. For example, Spring's graphic testimony about the loud and profane encounter with Toomey on April 10, wherein Toomey sought to establish that he was running the hiring hall and that local hands would be dispatched first, would lead one to conclude that Spring would not be referred to a job that day or any other time. Howev- er, when a call came in for ironworkers on the Martin Iron job, Toomey dispatched Spring when none of the men on the A list put in a bid for the job. The fact that Spring was dispatched by Toomey, immediately after the alleged heated encounter described by Spring, lends cre- dence to the testimony of Toomey regarding this inci- dent. Toomey explained to Spring that he could not be referred to the Steel, Inc., job without a specific request from that employer and that as an ironworker from an- other jurisdiction he had to go on the B list. That Toomey dispatched Spring to the Martin Iron job after the men on the A list did not make application for it belies any claim that Toomey told Spring he would not be referred for work out of the hiring hall because he was not a member of the Respondent Union. Similarly, despite a graphic recital of all of the inci- dents that he alleged occurred at the hiring hall, when asked for an explanation regarding the signatures on the amended charge and the withdrawal request, Spring became evasive and his memory faulty. He testified at one point that he gave the Board agent authorization to sign the amended charge and withdrawal request and at another point indicated that the signature might or might not be his. After the luncheon recess, Spring was able to recall that he had authorized his daughter-in-law to sign the documents. I find this to be indicative of the fact that, where Spring felt his case against the Union would be lessened in some fashion, he was willing to dissemble and be evasive. But where he felt it would assist his case, he was willing to distort and exaggerate. Indeed, even his testimony about events alleged to have occurred at the hiring hall took on a different coloration whenever he was required to repeat his recital of a given incident. For example, when questioned by General Counsel, Spring stated that on May 8 when he attempted to look at the out-of-work list, Toomey told him to get the hell away from the book. Regarding the same incident, on cross-examination, he stated that he was told to get his filthy hands off the list. While it is true that the testimo- ny was intended to convey the same impression, i.e., that Spring was not to look at the list, his factual account of the alleged incident changed with each series of ques- tions. IRON WORKERS, LOCAL UNION 433 167 But equally important in my decision to discredit the testimony of Spring and his wife is the fact that their re- cital of the events which occurred on May 8 and 9 is to some extent at odds with each other and contrary to the record evidence submitted by the Union. Spring testified that, on May 8, Rice came into the hall requesting men for the Stockton Steel job at the Barbary Coast. He stated that when the jobs were announced none of the men on the A list applied, and he made a bid for the job. When he did so, he was told by Toomey, "This is for local hands only, Asshole." Spring testified that he ob- served Toomey dispatch an older ironworker, identified as Shay, to a job at the Showboat for Industrial Steel even though Shay is alleged to have stated he was not an ironworker. Mrs. Spring's testimony corroborated Spring's version of this event. However, in her affidavit, Mrs. Spring stated that Toomey was on the phone and mentioned the word "Showboat." It was then, according to Mrs. Spring's affidavit, that he dispatched Shay and told him not to worry about the fact that he was not an ironworker. The affidavit further indicates that Toomey called for additional men and Spring applied. It was then that he was told it was for local hands only. The dispatch slips submitted in evidence by the Union disclose that, on May 8, Toomey sent Shay along with three other ironworkers to the Stockton jobsite at the Barbary Coast. There is no evidence, other than the tes- timony of the Springs, which indicates that Shay was dispatched to the Industrial Steel job. This casts grave doubts on the Spring's version of the phone conversation which is alleged to have taken place between Toomey and someone at the Industrial jobsite. According to the testimony of Spring and his wife, it was during this con- versation that Toomey told the other party on the line to change Spring's layoff from Industrial the week before to "joeying around on the job." Since it is clear that Shay was dispatched to the Stockton job rather than to the Industrial job as indicated by the Springs, it is diffi- cult to give credence to their testimony that Toomey was engaged in a telephone conversation with Industrial because Spring filed charges with the Board. The record evidence indicates the charges filed by Spring were not mailed from the Board's office until May 9 and Toomey testified he did not learn of the charges until the middle of that week. Thus, it is evident that Toomey had no knowledge of Spring's charges against the Union or In- dustrial on that day that the Springs assert the statement was made over the telephone. The General Counsel argues that Toomey somehow learned of the charges on May 8, and this caused him to contact Industrial regard- ing Spring. This argument is based purely on speculation and is contrary to the record evidence. Finally, both Springs testified that Rice entered the hall on May 8 and requested men for Stockton Steel. Rice, however, testified that he did not know the exact date he went to the hall requesting men. He did state that the only time he can recall going to the hall was after the job had been running "a good length of time." Since the Stockton job began on May I and this alleged appearance was a week later, it is more reasonable to conclude, as indicated by the testimony of Toomey and Runyen, that Toomey dispatched the workers that day pursuant to a telephone request from the job steward for Stockton.In sum, I find that the testimony of Spring and Mrs. Spring is contradictory and full of distortions in order to support the Charging Party's claim that he had been discriminated against in terms of referrals from the Respondent Union's hiring hall. Because I totally reject the testimony of the Springs, I find that the testimony presented by the union witnesses must be credited. Thus, I find that Toomey maintained an out-of-work list at the union hall and that he required all persons physically present at the hall to sign a second list so that he would know which of the ironworkers were there when the jobs were called. I do not find that this second list was maintained solely for "boomers" but, rather, that it en- abled him to keep track of the applicants when he an- nounced job openings. The fact that Toomey did not maintain A through E lists as set forth in the collective- bargaining agreement in no way militates in favor of finding a violation here. Toomey maintained an A list which had certain residential as well as experiential qualifications for priority referral. The B list on which Spring was placed was uniformly applied to all others who did not fulfill the A list qualifications. Hence, it can hardly be said that by placing Spring on the lower prior- ity list-which he would have normally qualified for in any event-the Respondent Union was discriminating against him because of lack of membership. In sum, I find that the credited testimony and the record evidence does not support the finding of a viola- tion in this Case. Accordingly, it is recommended that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 433, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. Stockton Steel Fabricators and Erectors, Inc., is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The credited testimony and the record evidence does not establish that the Respondent Union violated Section 8(b)(1)(A) and (b)(2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant of Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 5 That the complaint in this case be, and the same hereby is, dismissed in its entirety. 1" In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.