Maxon Construction Co., Inc.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or require W. J. Hedrick and W. J. Marschall, Jr., d/b/a Industrial Painters and Sand Blasters, to assign air compressor work to its members rather than to the employees who are not members of that labor organization. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, the Respondent shall notify the Regional Direc- tor for the Sixteenth region, in writing, as to what steps the Re- spondent has taken to comply with the terms of this Decision and Determination of Dispute. MEMBER LEEDOM took no part in the consideration of the above Decision and Determination of Dispute. Maxon Construction Company, Inc. and Brotherhood of Paint- ers, Decorators and Paperhangers of America , Local Union No. 437, AFL, and its agent, Edgar A. Peterson and Ray Lunsford, Roy E. Stephens, Kenneth J. Weaver, William H . Kaiser, Jr., Omer F. Waldrop, Charles R. Scruggs, Charles O. White, Roy E. Bates, Tom A. Holt, Calvin L. Gaskey and Frank L. Weaver. Cases Nos. 10-CA-1905, 10-CA-1932, 10-CB-185, and 10-CB-207. April 25,1955 DECISION AND ORDER On September 21, 1954, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in any unfair labor practices and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent Company and the Respondent Union each filed a reply brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 112 NLRB No. 62. MAXON CONSTRUCTION COMPANY, INC. 445 INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by various individuals, the General Counsel of the National Labor Relations Board 1 by the Regional Director for the Tenth Region (Atlanta, Georgia), on April 30, 1954, issued an order consolidating the above-numbered cases, a complaint in the consolidated cases alleging that the Respondents above-named had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, as amended, 61 Star. 136, herein called the Act, and a notice of hearing thereon. Copies of the charges, the complaint, the order consolidating the cases, and the notice of hearing were duly served upon the parties. Answers to the complaint were filed on behalf of the named Respondents denying the commission of the alleged unfair labor practices. The Respondents, Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 437, AFL, herein called the Union, and its agent, Edgar A. Peterson, filed a motion, dated May 13, 1954, to dismiss Cases Nos. 10-CA-1931, 10-CA-1932, and 10-CB- 207. The motion was denied by an order issued by the Trial Examiner on May 21, 1954. Thereafter, the said Regional Director issued an order, dated June 4, 1954, and a supplemental order, dated June 7, 1954, severing from the consolidated com- plaint and indefinitely postponing the trial of Cases Nos. 10-CA-1904, 10-CA-1931, 10-CB-184, and that portion of Case No. 10-CB-207 which relates to Rust Engineer- ing Company. On June 4, 1954, the said Regional Director also issued an order amending the consolidated complaint by striking certain paragraphs therefrom. The amendment of the complaint likewise amended the caption thereof by striking there- from Rust Engineering Company as a party respondent and Warren G. Arp as a charging party and Cases Nos. 10-CA-1904, 10-CA-1931, and 10-CB-184. The cap- tion as amended by the Regional Director's order of June 4, 1954, is used herein- above. Pursuant to notice, a hearing was held at Knoxville, Tennessee, and at Oak Ridge, Tennessee, from June 7 to 15, 1954, before Herbert Silberman, the duly designated Trial Examiner. All parties were represented at the hearing by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. A motion to dismiss the remaining portions of Case No. 10-CB-207 made by the Union and Peterson at the opening of the hearing was denied. Decision was reserved on motions to dismiss the com- plaint made on behalf of all Respondents at the close of the General Counsel's case- in-chief and renewed at the close of the entire case. These motions are disposed of in accordance with the findings of fact and conclusions of law made below. The General Counsel's motion at the close of the entire case to conform the pleadings to the proof was granted. The parties waived the opportunity afforded them to engage in oral argument at the hearing. Briefs were duly filed with the Trial Examiner by the General Counsel and counsel for the respective Respondents which have been care- fully considered. The Issues The amended complaint herein alleges that the Respondent, Maxon Construction Company, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and that the Respondents Union and Peterson have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. The issues framed by the pleadings, in brief, are as follows: 1. Whether during the times material herein the Respondent Company and the Respondent Union have maintained and given effect to an understanding and practice under which the Company employs for painting work in connection with its opera- tions at Oak Ridge, Tennessee, only members of the Union who are referred to it by the Union, and whether the Company has required and is requiring, as a condition precedent to employment, that all applicants for employment as painters obtain approval and clearance from the Union. 2. Whether the Respondents Union and Peterson caused the Respondent Maxon and the Respondent Maxon did discriminatorily discharge Ray V. Lunsford, Calvin L. Gaskey, Roy E. Stephens, Charles O. White, Kenneth J. Weaver, Charles R. Scruggs, Roy E. Bates, William H. Kaiser, Jr., and Omer F. Waldrop, on September 22, 1953, because the said employees on September 11, 1953, signed a petition pre- 0 ' The General Counsel and his representative at the hearing are referred to herein as the General Counsel. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferring charges within the Union against Edgar A. Peterson for neglect and improper performance of his duties as business agent. 3. Whether the Respondents further discriminated against the aforenamed em- ployees by reason of the failure of Maxon to reemploy them after September 22, 1953. 4. Whether on January 4, 1954, the Respondent Company refused to employ Tom A. Holt because he had not received from the Respondent Union referral , approval, or clearance for employment by the Company. Upon the entire record in the case, and from my observation of the demeanor of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Maxon Construction Company, Inc., is an Ohio corporation with its principal office and place of business at Dayton , Ohio. It is engaged in general construction work throughout the United States. During all times material herein, the Com- pany has been engaged in construction work at Oak Ridge , Tennessee, under a cost- plus-fixed-fee prime contract with the Atomic Energy Commission . The value of the Company's services under this contract exceeds $200 ,000,000. Maxon, in the course and conduct of its operation at Oak Ridge, annually acquires for the account of the Atomic Energy Commission through the use of Government funds materials and supplies which originate outside the State of Tennessee valued in excess of $1,000,000 2 The Respondent Company admits that it is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Brotherhood of Painters, Decorators and Paperhangers of America , Local Union No. 437, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events 1. Background Since 1949, Maxon has been engaged in construction work at the atomic energy installation in Oak Ridge, Tennessee . Overall direction and control of the installa- tion has been exercised by the Atomic Energy Commission since shortly after the conclusion of World War II when the commission relieved the Army Corps of Engi- neers of its responsibilities over the project . An important problem the latter agency had to overcome when construction of the installation was begun in the late fall of 1942 was recruitment of labor. The communities surrounding Oak Ridge, which include Knoxville, from which labor for the installation normally would have been obtained were unable to furnish more than a fraction of the required number of em- ployees. Workmen therefore had to be recruited from other sections of the country. Substantial assistance in obtaining volunteers was furnished by various labor organi- zations which appealed to their membership throughout the United States to come to Oak Ridge and help build the project. As a result of this appeal most of the New arrivals in the area were affiliated with one or another of the various labor organiza- tions and the effect of this large influx of union workmen into the area was to swell the membership of the craft locals in the vicinity of Knoxville For instance, mem- bership in the Knoxville chapter of the Plumbers Union grew from less than 250 in 1953 to about 2,000 in 1954 . Although no testimony was offered at the hearing con- cerning the growth of the Knoxville local of the Painters Union, which is a Respond- ent in this proceeding, Hugh Nicely, a painting contractor and president of the Knoxville chapter of the Painting and Decorating Contractors of America testified that only a very small percentage of the qualified painters in the area do not belong to the Union . C F. Yarnell, who has been a painting contractor in Knoxville for about 30 years, likewse testified that most of the qualified painters in the area are members of the Union. In March 1949, before it had begun hiring labor locally, Maxon advised the Knox- ville chapter of the Association of General Contractors that the Company would make every possible effort to conduct its labor relations so as not to disturb local economic conditions and would observe all area practices provided they do not discriminate against Maxon . The Company also made known its labor relations policy to the 2 Stipulation of the pasties submitted to the Trial Examiner after the close of the hearing. MAXON CONSTRUCTION COMPANY, INC. 447 various labor organizations in and about Knoxville. With two exceptions Maxon has entered into no formal agreement with any labor organization in the Knoxville- Oak Ridge area,3 but in accordance with its announced policy has consistently main- tained the wage scale and other employment conditions prevailing in the area for its craft employees. Thus, although the Company has not been a party to any collective-bargaining agreement with the Union involved herein, nevertheless, with the approval of the Atomic Energy Commission it has voluntarily adopted the wage scales and other job conditions provided for in the contracts which are negotiated annually between the Union and the Association of Painting and Decorating Con- tractors of Knoxville. The Company's practice with respect to hiring painters , the only employee classifi- cation with which this proceeding is concerned , was described in the testimony of Curtis deForest, Maxon's personnel manager. According to deForest, when opera- tions were begun at Oak Ridge some employees were transferred from a job the Company had had at Miamisburg. The greater number, however, were recruited in the Oak Ridge-Knoxville area among persons who had filed applications with the Company 's personnel office, or who had been recommended to the Company by its employees or by the Union . Although a majority of the painters who have been hired by Maxon were sent to the Company by the Union, deForest testified that the Company has no agreement or understanding with the Union with respect to the hiring of painters . DeForest specifically denied that the Company has agreed to hire painters only through the Union , or only after the applicants have been cleared by the Union or to hire only members of the Union . All applicants for employment, including those referred to the Company by the Union , are required to fill out and execute an application for employment and a personnel security questionnaire. Neither form asks the applicant to indicate whether or not he is a member of any labor organization and the employees in the personnel office have been instructed not to ask that question . Upon the basis of the application the personnel manager or his assistant makes the decision as to whether the applicant will be employed sub- ject to the veto of the security branch of the Atomic Energy Commission . Because much of the Company's work is located in restricted areas every regular employee of the Company must obtain security clearance from the commission . This procedure requires between 30 and 90 days for an applicant who has not previously been screened for security . However, the time involved in obtaining security clearance for an applicant who has previously been employed by the Company at Oak Ridge or has been employed at other atomic energy projects is considerably less. The Com- pany therefore makes an effort when expanding its work force to hire former em- ployees and others who have had security clearance. Because Maxon does not check off union dues or make any inquiries concerning union affiliation of its employees, its deputy project director , general superintendent, assistant general superintendent , and personnel manager, who were witnesses at the hearing, were unable to testify as to whether any nonunion painters have at any time been employed at the Oak Ridge project . However, none of the many employees and former employees who testified at the hearing knew any painter employed at the project who was not a member of the Union , and the Company was aware of the fact that the Union represented a controlling majority of its painters ? Also, it per- mitted union stewards to conduct union business relating to the job during working hours and observed the prevailing practice that union stewards are the last employees laid off in the event of a reduction in force. 3 The only formal collective-bargaining agreements that Maxon has entered into are with Local 900 of the Operating Engineers who represent the Company's survey party employees and with International Guaids Union of America who represent the Company's guards. 4 Thus, in April 1951 and again in April or May 1952, the Union called strikes during which all the painters employed at the project walked off the job. Maxon's recognition of the Union's strength among their painters was further demonstrated by the Company's actions in February and March 1954 with respect to the 4 p. in. to midnight shift. In February the Union wrote the Company a letter demanding an upward adjustment in the rate for work performed between 5 p in. and 7 30 a in. The Company which did not wish to comply with this demand thereupon, without negotiation or other discussion with the Union, discontinued its 4 p. in to midnight shift According to Maxon's personnel manager, "We didn't want to get into any lawsuit over it or anything else, so we just decided the best thing to do was stop painting " The night shift was reestablished the following month, also without consultation with the Union, after the Company received a second letter from the Union withdrawing its request for an adjustment in the wage rates for night work 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Events between September 11 and 22, 1953 The events which precipitated the instant proceeding developed from a fractional dispute within the Union. The painters at the Oak Ridge project had become dis- satisfied with the manner their business agent, Edgar A. Peterson, was handling a jurisdictional dispute with the laborers on the job. On September 11, 1953, Charles R. Scruggs and Ray V. Lunsford, who were employed as painters at the Oak Ridge project and who were also union stewards, drafted a petition preferring charges against Peterson alleging violation of his oath of office, accusing him of neglect, inefficiency, or incompetency in the performance of his duties as business agent, and requesting that he be relieved of his office. Scruggs and Lunsford circulated the peti- tion among the painters at the job for their signatures and obtained additional signa- tures at the union hall. The petition was signed by 54 union members,5 44 of whom were employees of Maxon. At the regular weekly union meeting held the night of September 11, 1953, the recording secretary read the petition together with the names appended thereto to the union membership The following day the business agent, Peterson, relieved Scruggs and Lunsford as stewards. At the next regular union meeting held on Fri- day, September 18, Peterson's action was ratified by the membership. The sig- nificance to the issues in this proceeding of the removal of Scruggs and Lunsford as stewards is that under the prevailing practice observed by Maxon thereafter it was permissible for the Company to terminate their employment in a reduction in force. The Company initiated a reduction in force of 15 painters on Tuesday, September 22. At that time Maxon employed 128 painters, excluive of foremen. Of the 15 painters whose employment was terminated, which included Scruggs and Lunsford, 14 had signed the petition preferring charges within the Union against Peterson. The complaint alleges that 9 of these 14 painters were discriminatorily discharged by Maxon on September 22 at the request of the Union because they had signed the petition and because of the alleged unlawful agreement between Maxon and the Union relative to the employment of painters. 3. Events subsequent to September 22 Between October 20 and 26, 1953, Maxon hired 20 additional painters. Only 1 of the 15 painters who were laid off the previous month was reemployed. That individual ,was Dan Hill, the only one in the group that was laid off on September 22 who had not signed the petition. The painters who were hired in October 1953 were largely recruited through the Union. Personnel Manager deForest testified, "If I remember, I called him [Peterson] and told him I needed a few painters. If he had anybody available we would like to talk to them." Most of the alleged discriminatees testified that they had asked Peterson to send them back to Maxon when the Company began hiring painters again, but Peterson had refused. The final element of the complaint relates to Tom A. Holt who testified that on January 4, 1954, he applied to Paint Superintendent Charles B. Tidwell for a job. The complaint alleges that Holt was denied employment because he had not received union clearance. On the same day the complaint in this proceeding was issued, the Respondent Union mailed a letter to Maxon with copies to each of the alleged discriminatees advising that the Union has no objection to their hire or rehire, as the case may be. B. Conclusions 1. As to the alleged unlawful employment and hiring practice The General Counsel does not contend that there is or has been in existence any written instrument under the terms of which Maxon agreed it would employ only members of the Union who are referred to it by the Union. However, he asserts that, in accordance with an understanding between Maxon and the Union and a practice observed by the Company, Maxon employs as painters only members of the Union and has required, as a condition precedent to employment, that all applicants for employment as painters at the Oak Ridge project obtain approval and clearance from the Union. To prove such understanding and practice the General Counsel relies upon evidence purporting to show that: (1) All painters employed by Maxon were referred to the Company by the Union; (2) no member of the Union would knowingly work alongside a nonmember because of fear of 6 A line is drawn through eight of the names which appear on the petition. DIAXON CONSTRUCTION COMPANY, INC. 449 economic reprisals by the Union; and (3) all painters employed by Maxon at Oak Ridge were members of the Union. To support his contention that the Company only hired painters who were referred to it by the Union, the General Counsel relies principally upon the testimony of various witnesses that they obtained employment with Maxon as painters after having been sent to the Company by the Union. The General Counsel argues in his brief "that the Respondent Maxon, as well as the Respondent Union, intro- duced no testimony specifically to show that employees obtained employment at Respondent Maxon other than through Respondent Union" and not one witness was called to testify at the instant hearing "who had not been referred to the job through the Respondent Union." However, the record does not support this categorical argument. Twelve witnesses 6 testified that during the period from 1950 to the dates of the hearing they were hired by Maxon one or more times after having been ad- vised to report to the Company's personnel office by the business agent or other representative of the Union. However, of these 12 witnesses, 5 obtained employ- ment with Maxon on 1 or more occasions either without the Union's prior knowledge or with the Union acting merely as a conduit for the transmission of the Company's requests to the employees to report for work. Thus William R. Underwood testi- fied that he was hired by Maxon five different times. On three of these occasions he was hired after he had been advised by the union business agent to report to the Company's personnel office and a pass to admit him to the office would be waiting for him at the gate? But the other two times he was hired by Maxon it was without the intervention or prior knowledge of the Union. James W. Billingsley testified that the third separate occasion he was hired by the Company which was in March 1954, the Company's personnel office had contacted him directly and told him to report for work. William H. Kaiser, Jr., and Arlan Dick each testified that on one occasion he was employed by Maxon, after the Company's personnel office had instructed the Union to advise him to report to the Company's personnel office. William P. Stansberry testified that he was employed two sep- arate times by the Company and on each occasion he first filed an application for employment with the Company and subsequently was advised by the Union's busi- ness agent to report to the personnel office. On the other hand, 6 other employees or former employees,8 who were witnesses at the hearing, did not give any testi- mony as to how they obtained employment with Maxon. Thus, of 18 employees and former employees who were witnesses at the hearing, the evidence shows that only 7 were hired on every occasion by Maxon after the Union had referred them to the Company. The testimony of these 18 witnesses, considered as a whole does not prove the General Counsel's contention that all painters hired by Maxon had been referred to the Company by the Union,9 but on the contrary corroborates the testimony of Maxon's personnel manager that although a majority of painters who were hired by Maxon had been introduced to the Company by the Union, in addition painters also were hired directly by the Company without any union intervention.10 The 6 Charles R Scruggs, James H. Patterson, Roy E Bates, William H Kaiser, Jr , Charles O White, Charles H Monday, Charles B Tidwell, William R Underwood, James W. Billingsley, Arlan Dick, William P Stansberry, and Willard S Dozier 7 Until recently the Company's personnel office had been located within the Oak Ridge restricted area so that an applicant for employment was able to obtain admission to the personnel office only if advance arrangements had been made for a pass to be waiting for him at the gate However, during the time that the personnel office was located within the restricted area, Maxon maintained an employment office outside the iestricted area 8 Ray V Lunsford, Calvin L Gaskey, Dan Hill, Omer F Waldrop, Kenneth J. Weaver, and Roy E Stephens. There was testimony through other witnesses that subsequent to his layoff on September 22, 1953, Dan Hill was rehired by Maxon after having been sent to the Company by the Union's business agent. O Furthermore, Edgar A Peterson testified that it NN as not necessary for an applicant to obtain prior approval from the Union before he could accept employment with Maxon and that quite a few painters within his knowledge, including Dewey Clark, Anderson, Coldiron, and himself had been hired by Maxon without first having been ieferred to the Company by the Union 10 DeForest also testified that the personnel office found it convenient to ask the Union to contact paiticular men for it rather than attempt to contact the men directly because "normally we call the union to find out if a man was working for some other contractor, and we didn't want to disrupt his work." An additional reason for calling the Union, 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence introduced by the General Counsel indicates no more than that the Union was a ready source from which qualified painters could be obtained and Maxon freely tapped this source when recruiting painters , and does not prove that the Union or Peterson was authorized to act as hiring agent for Maxon or that Maxon sought the prior approval or clearance of the Union before it hired any painters. To support the second element in his proof of an unlawful understanding and practice the General Counsel introduced into the record the constitution of the parent organization of the Union involved herein , which provides in section 304: No member of this Brotherhood shall injure the interests of another by under- mining him in prices or wages, or wilfully performing any other act by which the situation of any member may be placed in jeopardy; nor shall he be allowed to work at his trade , within the jurisdiction of any local union, with anyone who does not carry a membership card in the Brotherhood. He sought to implement this evidence through the testimony of several witnesses that any union member who works with a nonunion member is subject to a fine. However, Edgar A. Peterson testified without contradiction that during the period he was business agent, which period covers substantially all times material to this proceeding, no member of the Union was charged with violation of the Interna- tional's constitution because of having worked with a nonunion painter, although such charges had been common prior to Peterson 's inauguration . Peterson offered a two-fold explanation for the change in union policy in this regard . First, he testified that when he became business agent he inherited a judgment in the sum of $1,608 which had been obtained against the Union for violation of the Tennessee right-to-woik law. And second, after his inauguration as business agent, T. V. Carter, a vice president of the International , advised him and the union membership that the constitution was to be stretched "for the good of the Brotherhood ... to conform with whatever took place in the local area." Peterson further testified that, in view of these circumstances , as business agent he would not call a strike if a nonunion man remained on a job with members of the Union or insist upon the discharge of any painter who was not in good standing with the Union. This testimony was corroborated by the testimony of Paul L Patrick. Patrick, who is employed as a painter by Carbide and Carbon Chemicals Company at Oak Ridge and is the chief steward for the Union on that job, testified that at the time of the hearing herein Carbide employed 24 painters and only 10 were members of the Union and in September 1953 the proportion of union and nonunion painters on the Carbide job was 50-50 . Also, other witnesses testified that union painters work with nonunion painters at the Tennessee Valley Authority, which project draws some of its painters from the area within the Union 's territorial jurisdiction. I do not find that the evidence supports the General Counsel 's contention that during the times material herein members of the Union would not knowingly work alongside a nonmember because of fear of economic reprisals by the Union . Section 304 of the International's constitution, according to uncontradicted and credible testimony, is not being enforced within the territorial jurisdiction of the Union. The testimony of the General Counsel's witnesses that union members would be fined for working at their trade with nonmembers was unrelated to any specific times and unsupported by any specific examples, whereas the testimony of Peterson is uncontradicted that such practice on the part of the Union had been discon- accoiding to deForest , was that he found the Union was able to send painters who had had seemity clearance Furthermore , according to Peterson 's testimony , the Company had experienced difficulty in locating some former employees , while the Union keeps a cuiient record of all changes in the residences of its members , as is evidenced by section 14 of its by law s 11 Ray V Lunsford , Calvin L Gaskey . William II Kaiser , Jr , and Charles O. White. At vaiiance with the testimony of these witnesses is the testimony of Charles R. Scruggs, a former union steward , that one of the duties of a steward in the event lie discovered a nonunion man on a job "would be to pull the men off until the non-union man was removed " In this respect Scruggs was corroborated by the testimony of Roy E. Bates. I do not credit the testimony of Scruggs and Bates that the usual practice of the Union was to authorize the stewards to call a strike ahienever the presence of a nonunion painter on a job was discovered , particularly in view of Peterson 's testimony and the testimony of James W Billingsley , who is a former union steward, that a steward has no authority to call a strike and the union bylaws which do not vest such authority in the stewards. Furthermore , Sci uggs testified lie never had occasion to call a strike because of the presence of a nonunion painter on the job MAXON CONSTRUCTION COMPANY, INC. 451 tinued in 1952 and thus was not followed during any times embraced by the charges and complaint herein. The evidence adduced at the hearing sustains the General Counsel's contention that all persons who have been employed by Maxon as painters at the Oak Ridge project were members of the Union. None of the witnesses, which included 4 management officials, 7 supervisors or former supervisors, and 11 employees or former employees of the Company, testified that they knew a single painter em- ployed at the project who was not a member of the Union, although most of these witnesses were asked that question. Further support for such finding obtains from the practice of the Union which was to appoint a steward for each painting crew, generally consisting of 15 men, whose duty, among other things, was to report to the union business agent any nonunion painter who was working with members of the Union, and the testimony of Edgar A. Peterson, who was business agent from June 27, 1952, to July 1, 1953, and then again from August 1, 1953, to February 8, 1954, which period embraces the times material to this proceeding, that no steward reported to him that any nonunion painter was employed on the Maxon job. Thus, the only substantial support in the record for the allegations in the complaint that Maxon and the Union have been parties to an unlawful employment and hiring practice is the evidence that all painters who have been employed by Maxon were members of the Union and that a majority of the employees were introduced, or referred, to the Company by the Union. These circumstances alone, despite the suspicions they may raise, do not constitute proof of the unlawful agreement or practice alleged in the complaint. The action of Maxon in requesting the Union to refer painters to it for employment is permissible under the Act.12 The evidence does not establish that Maxon arrogated to the Union by agreement or otherwise authority over the employment of painters, but to the contrary the testimony of the Company's personnel manager was unrefuted and substantially corroborated that the decisions with regard to the hire and tenure of painters at the Oak Ridge project at all times were made by the Company. Also, in the light of the history of the growth of the labor force in the Oak Ridge-Knoxville area and the testi- mony that most of the qualified painters in the area were members of the Union, the mere fact that all the painters employed by Maxon were members of the Union and the Company looked to the Union as its principal source for recruitment of painters does not constitute proof of an unlawful hiring or employment arrange- ment.13 Furthermore, opposing the circumstantial evidence adduced in support of the complaint is the direct testimony of Curtis deForest, the Company's personnel manager, and Edgar A. Peterson that there never was any agreement or under- standing between the parties relating to the employment of painters. The General Counsel did not state when the alleged unlawful agreement or understanding was reached. However, he sought to show that from the inception of its operations at Oak Ridge Maxon hired only members of the Union who were cleared by the Union for employment with the Company. Presumably, therefore, his position is that the alleged unlawful arrangement was agreed to when Maxon began work at Oak Ridge in 1949 and was maintained in effect thereafter. Accordingly, other union business agents in addition to Peterson should have had knowledge of the agreement. However, the General Counsel made no attempt to elicit testimony concerning the alleged unlawful employment arrangement with Maxon from other business agents who held office during the time Maxon has been at Oak Ridge. Although Frank L. Weaver, who was business agent for the Union from November 1950 until June 1952 when he was succeeded by Peterson, was a witness for the General Counsel at the hearing. Weaver did not testify about any understanding or agreement between the Union and Maxon with respect to the hiring of painters. The complete absence of any evidence that Maxon and the Union at any time had entered into any contractual or extra-contractual understanding with regard to the hiring of painters corroborates deForest's and Peterson's testimony that there never was such agreement. The General Counsel has failed to prove by a preponderance of the evidence that the Respondents during the period covered by the complaint la Jerry Fa irbant s, Inc, et at, 100 NLRB 556; The M. TV Kellogg Company, et at, 94 NLRB 526, Missouri Boiler and Sheet Iron Works, et at, 93 NLRB 319 See N. L. R B. v. F H McCraw and Company, at at, 206 F. 2d 635 (C. A. 6), wherein the court said, The action of an employer in hiring workmen through a union, by means of referrals from the union , is held not to violate the Act, absent evidence that the union unlawfully discriminated in supplying the company with personnel. N. L R. B. v. Del E. Webb Construction Co, 196 F 2d 702 (C. A. 8). 369028-56-vol. 112-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were parties to an unlawful understanding relating to the hire and employment of painters. 2. As to the alleged discriminatory discharges For valid economic reasons Maxon effected a layoff of 15 painters on September 22, 1953. The General Counsel contends that the selection of employees for inclusion in the layoff was discriminatorily motivated because Maxon, through the agency of its foremen, acceded to the request of Union Business Agent Peterson to terminate the individuals who signed the September 11 petition preferring charges within the Union against Peterson. Although 14 of the 15 employees who were laid off on September 22 had signed the petition, the complaint alleges that there was unlawful discrimination only as to 9 employees 14 The initial recommendations as to which employees should be included in the layoff were made by five of Maxon's paint foremen and were approved by the paint superintendent. The General Counsel contends that a concerted plan of action was reached among Peterson, the paint superintendent, and the paint foremen to select for layoff those painters who had signed the petition.15 As expressed in the General Counsel's brief, "when Peterson became aware of the identity of those signing the petition against him, he requested the foremen and the painting super- intendent, all of whom are members of Respondent Union, to select these particular individuals in the forthcoming reduction in force." The General Counsel's direct proof in support of this contention rests entirely upon the testimony of James H. Patterson to the effect that prior to the September 22 layoff he approached Charles B Tidwell, the paint superintendent, for a job and was told by Tidwell that he intended to hire some men in a few days and will see that Patterson was hired, but first he has to get rid of 30 men because some of them preferred charges to oust Peterson as business agent. Tidwell, as well as Arlan Dick, the general foreman for the painters, who overheard the conversation, denied that the foregoing statements attributed to Tidwell by Patterson were made Patterson was hired by Maxon about October 23, 1953. However, he recalled the fact that 15 men were laid off by the Company in September 1953. He further testified that "somewheres around the first of September," he went to the Oak Ridge project and, after obtaining from the timekeeper a description of the truck Tidwell was driving, succeeded in stopping the vehicle as Tidwell approached the gate. Then, according to Patterson: We got in a conversation there and I said, "Hoss, [Tidwell] you are about as big a liar as I haver seen"-excuse my language. And he said, "What do you mean by that, Pat?" And I said, "I thought I was going to be the ninth man on this job when you first started." He said, "Well, Pat, you needn't mention it." he said, "but my hands are tied since that time. They call them by name. I call Peterson and get Peterson to send them down that way." He said, "But I'm fixing to hire some men in a few days. I'll see that you get on." And I said, "How long?" And he said, "Well, first I've got to get rid of 30 men, and it will be about a week after I get rid of them, that I'll get some men." I said, "How long's this going to be?" He said, "Well, maybe in the next week." I said, "Well, what's the matter with the men, Hoss," and he said, "Some of them's got charges preferred against Peterson, trying to oust him as business agent, and they claim they are going to prefer charges against me." I said, "What are they going to say if you give me a job, when you laid them off?" He said, "That doesn't make no difference. I can lay them off," he said. "We'll do the business there." So I went on back home. I told him before I left, I said, "Well, when I draw my first payday from Maxon I'll believe I'm on the job." So I went on back home, and I had three jobs that I was doing at that time. So about two weeks then, they had the layoff, and Hoss told me-Mr. Tidwell told me when they got them laid off, it would be about a week after they laid them off till they called me." 14 The alleged discrmmnatees are • Ray V Lunsford , Calvin L Gaskey, Roy E Stephens, Charles 0 White, Kenneth J Weaver, Charles R Scruggs , Roy E Bates , William H. Kaiser, Jr , and Omer F Waldrop 15 The General Counsel argues that Dan Hill , who had not signed the petition, was laid off on September 22 through inadvertence and that this error was corrected the following month when Hill was rehired by the Company MAXON CONSTRUCTION COMPANY, INC. 453 He said, "I'll call Pete, and tell him, Pete, the orders what to do." So sure enough, after they laid them off, well, I guess it was three weeks before they really called me from the time they laid them off till I got called. The call mentioned by Patterson referred to a telephone conversation with Peterson in which the latter told Patterson to report to Maxon and "there'll be a slip waiting to introduce you." Patterson filled out an application for employment the next morning at the Company's personnel office and was hired. During his cross-examination, Patterson testified as follows: Q. (By Mr. Rayson.) When was this when you saw Tidwell on the job? A. Somewheres around the first of September. Q. Are you pretty certain about that date? A. It was either about the 25th of August or the first of September. Q. If anything, you recall that it was before the first of September, is that right? A. Well, I would say it was right along the first of September. * n k -Y * * Q. And he [Tidwell] told you that 15 men were going to be laid off? A. He told me 30 men. Q. Thirty men. And that was on September first? A. I said around September first. I didn't say positive. Q. Was anyone with Tidwell at that time? A. Yes. Arnold Dick was with Tidwell at that time.is Q. Did he hear this conversation? A. Well, he probably heard part of it. He was close enough. Q. Are you still employed at Maxon? A. No, sir, I quit Maxon's. Tidwell's version of his conversation with Patterson was that he had informed Patterson painters were not being hired at the time and he had suggested that if Patterson would leave his telephone number he would call when hiring of painters commences. However, Tidwell testified that he did not call Patterson or do anything to assist Patterson in obtaining employment with Maxon. Tidwell's testimony in this latter respect was corroborated by Edgar A. Peterson, who testified that his own choosing he sent Patterson to the Maxon job, that the Company did not call for Pat- terson by name, and that Tidwell did not ask that Patterson be sent to the job. Arlan Dick, the general foreman for painters, corroborated Tidwell's version of his conversation with Patterson. Dick testified that the conversation between Patter- son and Tidwell took place "somewheres in the last of August." Dick further testi- fied, as follows: Q. Did you hear the conversation? A. Yes, sir, I did. Q. Can you tell the Examiner just what you heard? A. He flagged Tidwell down in the parking lot. Me and Tidwell was in a pick-up truck to start back to 29, and he asked Hoss how about giving him a job, and Hoss told him, he said they wasn't hiring any men at that time. He said, "If you'll let me have your telephone number," he said, "I'll call you if they do start hiring." Q. Did Mr. Tidwell tell Mr. Patterson at that time that there was going to be a coming layoff. A. No, sir. Q. Did he say that there was going to be approximately 30 men laid off? Did he tell that to Patterson? A. No, sir, he didn't. Q. Did he tell him that Maxon was not hiring at that time? A. Yes, sir, he did. Q. Did Mr. Tidwell tell Mr. Patterson that he should go to see Mr. Peter- son? A. No, sir. Q. Did Mr. Tidwell tell Mr. Patterson that he, Mr. Tidwell, would call Mr. Peterson? A. No, sir, he didn't. 16 Patterson meant "Arlan," not "Arnold" Dick. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of significance in resolving the issue of credibility arising from Patterson's testi- mony is that he fixed the time of his conversation with Tidwell as having occurred about September 1, 1953. Unless Patterson erred in his recollection of the date of his conversation with Tidwell, the meeting preceded the drafting and circulation of the petition preferring charges against Peterson by about 2 weeks, and therefore the statement attributed to Tidwell by Patterson that he (Tidwell) had to get rid of 30 men who preferred charges to oust Peterson as business agent could not have been made. Patterson's testimony indicates that he did not err as to the time of his conversation with Tidwell. Patterson was not vague or indefinite in his testimony concerning the sequence and the dates of events which occurred in September and October 1953. He remembered the date on which he was hired by Maxon to be "about October 23rd." He recalled with reasonable accuracy that he was hired about 3 weeks after the September 22 layoff 17 Upon cross-examination when Pat- terson was asked again the date of his conversation with Tidwell he reaffirmed that it had occurred on September 1, 1953. And when questioned further as to whether he was certain about the date, he testified, "It was either about the 25th of August or the first of September." Thus, Patterson's testimony indicates that September 1 was the latest date on which the conversation occurred. Also, in the same connection, Arlan Dick testified that the conversation occurred at the end of August. Apart from the matter of dates, I credit Tidwell's rather than Patterson's ver- sion of their conversation Not only were the essential parts of Tidwell's testimony corroborated by other witnesses, but Tidwell impressed me as being the more credible witness Absent credible direct evidence to support the General Counsel's contention that there existed a conspiracy to select Peterson's opponents within the Union for layoff, there remains for consideration the question of whether the collateral cir- cumstances attending the September 22 reduction in force nevertheless supports a conclusion that the employment of the nine persons named in the complaint was discriminatorily terminated. Significant in this respect are the following circum- stances: On Friday, September 11, 1953, Scruggs and Lunsford drafted and circu- lated the petition among the painters at the Maxon job The petition, including the names of the signers, was read to the membership the same evening The fol- lowing day Peterson relieved Scruggs and Lunsford as stewards on the Maxon job and his action was ratified at the next regular union meeting which was held on September 18. This fact is significant because, under the practice observed by Maxon, Scruggs and Lunsford would not have been laid off in a reduction in force while they continued as union stewards. All Maxon's paint supervisors involved in this proceeding were members of the Union and knew about the existence of the petition by September 18 (with the possible exception of Arlan Dick) and either knew or could have discovered without too much difficulty the identity of the men who had signed it On September 22, Maxon terminated the employment of 15 painters, thereby reducing its total crew of painters, excluding foremen, from 128 to 113. Although only 44 employees had signed the petition, 14 of the 15 persons laid off, which included Scruggs and Lunsford, were among the signers. As heretofore mentioned, the painters at the Maxon project were divided into crews of approximately 15 men each. The layoff was limited to 3 men from each of 5 crews. The evidence does not show whether all 44 employees who signed the petition were in the 5 crews affected by the layoff or the proportion of signers in the 5 affected crews Even if it were assumed that a large majority of the signers were in the affected crews,18 nevertheless, the arithmetic probability that 14 out of 15 painters selected to be laid off should be among the approximately 44 out of 75 employees in the 5 crews affected by the reduction in force is small. Considerable testimony was adduced in behalf of the Respondent Maxon both as to the economic necessity for the September 22 layoff and the methods by which the employees who were included in the layoff had been selected. There is no evidence in the record which contraverts or tends to contradict the testimony of- 17 Patterson first placed the date of his hire as having been 1 or 2 weeks after the layoff, but then corrected himself by testifying it was about 3 weeks after the layoff is The painting crews which were not affected by the September 22 layoff worked several miles away from the places where the other five crews were located Because Scruggs and Lunsford , who circulated the petition , were in the five affected crews , it is not improbable that the bulk of the employees who signed the petition also were in these crews. The evidence shows that 16 or 17 of the signers were in Monday's and Dozier 's crews If the same proportion of signers were in the other 3 affected crews then approximately 40 of the 44 employees who signed the petition were in the 5 crews affected by the layoff. MAXON CONSTRUCTION COMPANY, INC. 455 fered in behalf of Maxon that the September 22 layoff of painters was a normal reduction in force occasioned by a temporary slackening in the Company 's require- ments for painters . I, therefore , find that to be the fact William E. Dieker , general superintendent of the Maxon job, testified that 2 or 3 weeks before the layoff, in accordance with his normal procedure , he discussed "the whole painting operation " with the paint superintendent and gave Tidwell instructions concerning a re-reduction in force of painters. They decided that at least 15 men should be laid off but it was within the discretion of Tidwell to lay off as many as twice that number. Dieker also told Tidwell "to cut out the least productive members instead of laying off one individual whole crew or crews." 19 Tidwell fixed the conversation with Dieker as having taken place about a week be- fore the layoff.20 He testified that he in turn instructed the general foreman on September 21 to inform each of the 5 foremen who were working in the Y-12 and K-33 areas 21 to lay off 3 men from his crew. Dick testified that he carried out these instructions and that the selection of the men who were to be included in the layoff was left entirely to the discretion of the paint foremen. On September 22 each of the five foremen handed to Dick a slip on which was written the names of the men selected, which Dick in turn gave to Tidwell . This, according to Tidwell, was the first time he learned who would be included in the layoff. The men chosen by the five foremen were given termination slips on the afternoon of September 22 advising them that they were being laid off for lack of work. Each of the five foremen testified that he made the selection of men for layoff independently and that no one, including Edgar A. Peterson , suggested that any par- ticular individual be selected. Charles H. Monday, 1 of the 5 foremen, testified that he was first informed about the impending layoff in the afternoon of September 21 and was instructed to pick 3 men from his crew . Monday selected William H. Kaiser , Jr, James Waldrop, and Dan Hill. He selected Kaiser because he had learned from Kaiser that the lat- ter intended to quit the Maxon job for other employment and Monday did not believe it would be fair to retain Kaiser and lay off another employee. He laid off Hill and James Waldrop because they were the poorest men in his crew. Monday further testified that by September 22 when he made his selection he knew that 4 men in his crew had signed the petition, 2 of whom were Kaiser and James Waldrop .22 How- ever, Dan Hill , who Monday selected to be laid off, did not sign the petition . Monday testified that he had no conversation with Peterson regarding the layoff and that union considerations did not affect his selections . His testimony in this respect is unimpeached . The reason he assigned for choosing Kaiser is plausible and credible.23 His testimony was not impeached that James Waldrop and Dan Hill were the poorest 19 As is the geneial practice in the construction industry , Maxon does not observe any policy of seniority when effecting reductions in force, but generally selects the least pro- ductive men. Also, where the number of men to be laid off equals or exceeds an entire crew, Maxon may lay off one or more crews iather than select men from seveial ciews. Thus , when Dieker instructed Tidwell "to cull out the least productive men," he was not suggesting a new layoff procedure, but meiely that the layoff should not be by entire crews For this reason the discrepancy between the testimony of Tidwell and Dick as to whether Tidwell specifically instructed Dick that the least productive men were to be laid off is inconsequential 20 Prior to the time that the decision was finally reached to lay off painters on September 22, there had been discussions among Diekei, Tidwell, Dick, and others that a layoff would be necessary when one phase of Maxon's work (the Y-12 project) was completed, which occurred on September 27, 1953 21 The layoff was restricted to the crews working in these two areas because the slack- ening in work which was the occasion for the layoff was limited to these areas. 22 James Waldrop is not alleged to be a disci iminatce in the complaint 22 Kaiser testified that on September 22, Monday said to him in the piesence of Arlan Dick, "I wouldn 't want to lay off somebody else if you are going to work somewhere else " Kaiser piotested that lie did not know whether lie will get the other job for which he had applied At this point , according to Kaiser , Dick left and said before leaving, "I've got to go hei e and call the numbers in to the superintendent " Kaiser testified further that after Dick left, "So Chailie Monday talked on a little bit He said , 'Well,' lie says, 'I'll go over and tell him ' He didn't tell me that lie was laying me off He says, 'I'll go over and tell him at the mill ' So Charlie left, and that afternoon nie, Dan Hill, and James Waldrop ieported over to the time office and got our termination " I do not find that this testimony on the part of Kaiser, even if credited in its entirety , impeaches Monday's testimony that Kaiser was selected because of his pi ospects for other employment 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men in his crew 24 Taking into account further that Hill had not signed the petition, there appears no basis for inferring that Monday discriminated against signers of the petition in making his selections. Foreman William R. Underwood selected Charles O. White, Roy E. Stephens, and Truman Graves to be laid off.25 He testified that all 15 men in his crew were good painters and he selected those men who in his judgement would be hurt the least from a financial standpoint by a layoff. Underwood understood that White owned a farm, Stephens was the only single man in the crew,26 and Graves planned to give up paint- ing to become an electrician. He also testified that the selections were left to his dis- cretion and that Peterson never asked him to cause any man to be laid off. Although he knew about the petition, he testified he did not know who had signed it and that union considerations did not affect his choices. However, he supported Peterson as business agent because in his opinion, "Mr. Peterson had more brains than any man we ever had there. He kept order, he is honest and sincere." Foreman James W. Billingsley testified that he chose Omer F. Waldrop, Calvin L. Gaskey, and Charles R. Scruggs to be laid off, all of whom are alleged discriminatees. He had no particular basis for his selections because all the painters in his crew were good workmen and in the circumstance it was a difficult choice for him to make. Although he heard the petition read at the September 11 union meeting, he testified that he did not remember any of the names of the signers of the petition, that in se- lecting the three men to be laid off he did not consider whether the men had signed the petition, and that he had not discussed his selections with any other foreman, Peterson, or any member of the Union. He testified that he voted for Peterson in the union election. Foreman Willard S. Dozier, like Foreman Billingsley, testified that he had no par- ticular basis for his designation of Ray V. Lunsford, Roy E. Bates, and Joe Poore from the painters in his crew for inclusion in the September 22 layoff because all 15 men were equally good. He further testified that union considerations did not affect his selections and that he did not discuss his choices in advance of making them with the other foremen or any union official, including Peterson. Significant with regard to the fact that all men selected by Dozier for layoff had signed the petition is the testimony of Dozier and Lunsford that 12 or 13 men in Dozier's crew of 15 were among the signers. In the circumstance, as a matter of mathematical probability, the likelihood was great that absent discriminatory motive all three designees would be among the signers of the petition. Foreman William P. Stansberry testified that in making his selections he tried to retain his best men. He chose E. C. McGhee because McGhee constantly grumbled about the work assigned to him, Clyde Moore because Moore caused friction among the men in the crew, and Kenneth J. Weaver 27 because Weaver was a slacker. He also testified that union considerations did not affect his choices and that he did not consult Peterson or anyone else about the men he should select for layoff. Stans- berry did not consider himself a strong supporter of Peterson, although he had voted for Peterson in a union election held in August 1953. He testified that he had voted against Peterson in the prior election held 2 months earlier in June 1953. The testimony of Maxon's witnesses with regard to the necessity for the Septem- ber 22 layoff and the basis for the selection of employees is unimpeached on the record and is credited. Foremen Stansberry and Monday testified they laid off their poorest or most troublesome workers (except Kaiser who was laid off be- cause Monday understood Kaiser was planning to quit his job with Maxon for other employment). The other three foremen considered all members of their crews to be good workmen and did not attempt to make their selections according to the relative abilities of the painters. Underwood testified, therefore, that the criterion he applied to his choices was the economic ability of the men to weather a layoff. Dozier and Billingsley testified that they chose men for layoff at random without any particular basis for their selections. However, in the case of Dozier's selections the fact that all 3 designees had signed the petition preferring charges against Peterson is without significance as reflecting upon discriminatory motive because 12 or 13 of the 15 men in his crew had signed the petition. Thus, if the evidence adduced on behalf of the General Counsel raises any inference that the 11 Peterson testified that Hill was a good painter. However, Peterson had no knowledge about Hill's performance on the Maxon job zs Only White and Stephens are alleged in the complaint to have been the subjects of discrimination 20 Stephens was separated from his wife and had told Underwood that he had "a divorce case coming up " n Only Weaver is alleged in the complaint to have been discriminated against. MAXON CONSTRUCTION COMPANY, INC. 457 layoff was discriminatorily directed against the men who had signed the petition such inference was adequately overcome as to all alleged discriminatees except Omer F. Waldrop, Gaskey, and Scruggs , who were in Billingsley's crew, and per- haps Lunsford who was in Dozier's crew .28 However, the evidence does not raise a sufficiently strong inference of discrimination against any signers of petition to sustain a finding of violation of the Act by the Respondents even absent a convinc- ing explanation for the selection of some of them. There is no direct proof of any casual relationship between the petition and the selection of its signers for inclusion in the September 22 layoff. And the cir- cumstances attending the reduction in force do not reasonably justify a conclusion that the men who were laid off were chosen because they had signed the petition. The petition preferring charges against Peterson reflected a strictly intraunion dis- pute. No general union objective was sought , and the strength or position of the Union vis-a-vis Maxon was not involved in the effort of the signers of the peti- tion to depose Peterson as business agent. During the period of more than 4 years that Maxon has been engaged at the Oak Ridge project , the Union has had a suc- cession of different business agents. There is no evidence that Maxon preferred to deal with Peterson as union business agent rather than any other candidate for the job . Thus, there is no basis for implicating the management officials in any concerted plan to discourage opposition to Peterson among its employees by discriminating against those who signed the petition , and the General Counsel advances no such contention . However, the General Counsel argues in his brief that the only logical inference to be drawn from the evidence, particularly from the fact that Scruggs and Lunsford who were the leaders of the anti-Peterson move- ment were included in the layoff , is that "the Respondent , through its foremen, who also are members of Respondent Union, were in effect, if not directly, requested by Peterson to select those employees for the impending layoff of September 22, who had signed the petition to oust him from office as Business Agent." [Emphasis supplied.] This argument appears to be an acknowledgement on the part of the General Counsel that the record does not support a finding that Peterson actually made any such request. Peterson , the foremen who were concerned with the lay- off, the paint superintendent , and various managerial employees of the Company denied that any such request had been made. This cumulative , corroborative testimony is unimpeached.29 Absent evidence that Peterson requested the various foremen to select his op- ponents for inclusion in the layoff, the General Counsel's case rests entirely upon circumstantial evidence .30 The credited evidence favoring an inference of dis- 21 As noted above because almost all the men in Dozier 's crew had signed the petition the probabilities were that , absent discriminatory considerations , all the individuals selected for layoff would be among the signers of the petition . However , Lunsford was 1 of the 2 instigators of the petition and it might be argued that Dozier did not adequately explain the basis for including Lunsford among his choices. 29 T F Browning testified that on September 12, while he and Ralph Giles were in the union office , Peterson said , with reference to the men who had signed the petition the previous day that "he was going to get them off the [Maxon] job ." Giles testified that he spoke to Peterson at the union office on September 12, and something was mentioned about the petition , but lie was unable to remember what was said Peterson denied that he ever made the statement attributed to him by Browning . I do not credit Browning's testimony. And in any event , even if the remark had been made , there is no evidence to show that Peterson made any overt attempt to fulfil this threat. Eugene W. Hall testified that about January 1 , 1954 , Peterson said to James C Smith and himself that the 14 men who had signed the paper filing charges against him would be laid off at Maxon's. This statement attributed to Peterson , according to Hall, was made some 3 1/,-, months after the September 22 layoff . Also, Hall's reference was to charges filed by 14 men, whereas, the September 11 petition was signed by 54 men It would appear that Hall's testimony is related to some incident other than the events involved in this proceeding and therefore has no probative value with regard to the question of whether Peterson requested the discharge of any of the persons alleged to have been discriminated against in this proceeding 3O See N L R B v Amalgamated Meat Cutters and Butcher Work men of America, Local No 127 (AFL), 202 F 2d 671 (C A. 9 ), wherein the court said , "Notwithstanding this want of anything but hearsay to support this particular portion of the complaint against the Union , the trial examiner arrived at his conclusion by saying `However, the circum- stances set forth in the evidence establish . . . Gearhart must have been told by the Union that the Union objected to the continuation of Wyatt 's employment.' [Emphasis supplied.] The Board is not permitted to arrive at conclusions based on such speculations " See also N. L. R. B. v. Stafford Operating Company, 206 F. 2d 19 ( C. A. 8). 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination in this case is primarily the so-called "percentage evidence," i. e , that a disproportionate number of painters who had signed the petition were laid off on September 22. However, standing alone, percentage evidence of the kind present in this case, although perhaps raising a suspicion of discrimination , will not sustain a finding of discrimination .31 Although the fact that Scruggs and Lunsford were included in the layoff is a further suspicious circumstance because they were the two instigators of the petition , nevertheless , even considered together with the percentage evidence this fact is insufficient to spell out the necessary causal con- nection between the circulation and signing of the petition preferring charges against Peterson and the selection of the signers for layoff. The General Counsel argues that the small time interval between the removal of Scruggs and Lunsford as stewards and their layoff and the fact that all paint supervisors were members of the Union has material bearing as proof of discrimina- tion. However, absent evidence that the date selected by Maxon for the layoff was related to the removal of Scruggs and Lunsford as union stewards , the fact that only 4 days intervened between ratification by the union membership of Peterson's action in replacing Scruggs and Lunsford as stewards and their layoff carries no particular weight. Likewise , the fact that all Maxon's paint supervisors were members of the Union does not appreciably strengthen the General Counsel's position There is no evidence that the paint superintendent and the foremen, individually or collectively , had allied themselves with Peterson in his defense against the efforts which were being made to oust him as business agent, or were in any manner subject to his influence, or even that Peterson had made any attempt to secure their support in his factional dispute.32 I do not find that the General Counsel has proved by a preponderance of the evidence that the nine individuals listed in the complaint were discriminatorily laid off on September 22, 1953.33 3. As to the failure of Maxon to rehire any of the alleged discriminatees The evidence shows that in October 1953 the Company asked the Union to refer painters to it and that the Company hired 20 painters , but did not reemploy any of the alleged discriminatees . However, none of the alleged discriminatees applied to Maxon for reemployment . Although they testified they had requested Peterson to send them back to Maxon , in view of my finding above that neither the Union nor Peterson was an agent of Maxon's for the purpose of hiring painters and that union approval was not necessary in order to obtain employment with Maxon, these requests to Peterson did not constitute valid applications for reemployment.34 Because the evidence further shows there was no duty, contractual or otherwise, on the part of Maxon to offer reemployment to the individuals who were laid off on September 22, 1953, 1 find that there is no proof of discrimination by any of the Respondents arising from the Company 's failure to rehire any of the alleged discrimmatees.35 31 "To be sure, percentage evidence , standing alone, will not support or sustain an order based on Section 8 (3) of the Act " 11' L R B. v Chicago Steel Foundry Co , 142 P. 2d 306, 308 (C A. 7) Accord N L 1Z B v Shedd-Brown Mfg Co , 213 F. 2d 163 (C. A. 7) See also Mount Ifope Finishing Company, et at., 106 NLRB 480, reversed on other grounds, 211 F 2d 365 (C A 4) 32 The fact that seveial foremen testified that they thought Peterson was a good business agent or had voted for Peteison in a union election is not evidence of their personal allegiance to Peterson 33 The complaint alleges that the nine individuals were discharged , rather than tem- porarily ]aid off on September 22 It is unnecessary to resolve this fact because the alleged violation of the Act steins from the alleged discriminatory selection rather than from whether the nine employees were laid off or discharged 34 There is no evidence that the persons who had anthority in behalf of Maxon to hire painters knew that any of the nine alleged discriminatees had asked Peterson to send them back to the Maxon job 3s The Respondents offered testimony to show that Maxon preferred not to reemploy the alleged discriminatees because the painting job proceeded more satisfactoiily after the layoff, which fact Building Superintendent Dicker attiibuted to the piobable unsatisfactory performance of woik by the men who were laid off Ilo\cever, because the alleged discrun- inatees did not make valid applications for ieemployment , it is unnecessary to speculate whether the alleged discrunmatees would have been denied reemployment had they applied therefor and further whether the refusals, if any had occuried , would have been for dis- criminatory reasons. See Strachan Shipping Company, 87 NLRB 431, 434. BEATRICE FOODS CO. 459 4 As to the Company's failure to hire Tom A. Holt Tom A. Holt testified that early in January 1954 he contacted Paint Superin- tendent Charles B. Tidwell and asked him for a job. The evidence shows that Tidwell had no authority to hire painters, therefore, Holt did not make a valid application for employment at that time Accordingly , without considering any other matters , the General Counsel has failed to make out a prima facie case of discriminatory refusal to hire Holt.36 CONCLUSIONS OF LAW 1. Maxon Construction Company , Inc., is, and at all times relevant herein was, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondents have not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] as p L . B B. v. Del F. lVebb Consti action Company, supra Beatrice Foods Co. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Lo- cal Union Number 190, Petitioner. Case No. 19-RC-1618. April 2511955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert L. Gese, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all the Employer's production and maintenance employees including route salesmen, but excluding office clerical and management employees and supervisors. The Employer contends that office clerical employees should be included in the unit, and that a part-time janitor, maintenance employees, and branch driver-salesmen should be excluded. The Employer is engaged in the manufacture of ice cream and but- ter, and the distribution of frozen foods and other food products. Its main plant is located in Billings, Montana.' It also has four branch refrigerated warehouses located in Worland, Sheridan, and Powell, 1 The Employer has another plant in Montana which is not involved in this proceeding. 112 NLRB No. 63