John Maroon Trucking Service

JOHN MAROON TRUCKING SERVICE 87 Upon the entire record in this case, we find that the following employees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employ- er's Hammonds Ferry Road plant at Baltimore, Maryland, including truckdrivers, plant and production clericals, shipping and receiving clerks, laboratory employees, leadmen and leadwomen, but excluding office clericals, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] John Maroon Trucking Service and Lawrence S. Tate. Case No. 14-CA-3492. December 17,1965 DECISION AND ORDER On September 27, 1965, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Decision, the excep- tions, and the briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. We find, in agreement with the Trial Examiner, that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent refused to reemploy Lawrence Tate because he engaged in protected concerted activity or because he filed a charge with the Board; or that the Respondent refused to reemploy Roy Clark because he engaged in protected concerted activity. We do not, however, agree with the Trial Examiner's conclusion that Clark's on-the-job protest 156 NLRB No. 13. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not a protected activity. Nor do we deem it necessary to pass upon the Trial Examiner's statements in his section entitled "Analysis and Conclusions," to the extent that they imply that an employer may assert "a contract right" to refuse to employ an individual because of such individual's protected concerted activity, or that an individ- ual's motive in filing an unfair labor practice charge with the Board is an issue in any Board proceeding which ensues, as such matters are in any event irrelevant herein. The issue in this case is the reason for the Respondent's refusal to reemploy Tate and Clark; as we have found, in agreement with the Trial Examiner, that the record fails to establish. that the Respondent's reason was an unlawful one, we shall dismiss the complaint. [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on October 28, 1964, by Lawrence S. Tate, an individual, the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, issued a complaint and an amended complaint on December 14, 1964, and January 12, 1965, respectively, against John Maroon Trucking Service, hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a) (3) and (1 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat . 136), hereinafter referred to as the Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. On January 25,-1965, pursuant to notice, a hearing was held in Salem, Illinois, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross -examine ,witnesses, and to introduce evidence pertinent to the issues . At the hearing, based upon an amended charge having been filed by the Charging Party on January 13, 1965, the General Counsel's motion to further amend the complaint to allege a Section .8(a)(4) violation was granted without objection. Subsequent to the close of the hearing a timely "Memorandum" was filed by Counsel for the General Counsel. Upon the entire record in this case , and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony" ( Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OP THE RESPONDENT The Respondent maintains its office and principal place of business in Centralia, Illinois, where it is engaged in the trucking and excavating business. The Respondent, in the course of such operations, annually receives at its Illinois operation , goods and materials valued in excess of $50 ,000 directly or indirectly from points located outside the State of Illinois . In the course of its business , the Respondent also furnishes annually services valued in excess of $50,000 to several large Illinois corporations, each of whom is engaged in operations or annually performs services of significant dollar proportions outside the State of Illinois. The parties stipulated , and I find, that .the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED The parties admit , and I find, that International Hod Carriers ', Building and Com- mon Laborers' Union of America, AFL-CIO, Local No. 19, hereinafter referred to as the Union or Local 19 , is a labor organization within the meaning of Section 2(5) of the Act. JOHN MAROON TRUCKING SERVICE III. THE ALLEGED UNFAIR LABOR PRACTICES 89 A. The issues Whether the Respondent refused to reemploy laborers Roy Clark and Lawrence Tate on its North End sewer line construction project when, after a the 3-week shut- down, work resumed on November 5, 1964,1 and, if so, whether such refusal, in the case of Clark, was based upon Clark's earlier on-the-job protest to John Maroon, owner of the Respondent, that Maroon was performing Laborers' work, and, in the case of Tate, was predicated upon the fact that he had filed an unfair labor practice charge the week before. B. The facts 1. Prefatory statement The Respondent and Local 19 have at all times material to the issues in this case maintained a contractual relationship covering "all building construction labor within the city limits of Centralia, Illinois, and such additional area as Local 19 normally services." Pursuant to the terms of the existing union shop and nondiscriminatory exclusive referral contract , the Union maintains and operates a hiring hall, under which the Respondent requests, and the Union refers, laborers as needed.2 The con- tract reserves to the Respondent the right to accept or reject applicants referred by Local 19, but prohibits the Respondent from hiring personnel on the job without the Union's approval. Thus, it is provided in article I, section 3, that: (2) The Employer shall request the Union to refer applicants as required and shall not solicit applicants directly and shall not in any manner circumvent the Union in the recruitment of applicants for employment. (6) The Employer reserves and shall have the right to accept or reject, to employ or not to employ, any persons furnished by the Union, or to discharge for cause any employee who has been accepted but who subsequently proves unsatisfactory to the Employer. The hiring hall referral system operated by Local 19 is based upon the utilization of two files, one called a "working list" and the other an eligibility or "non-working list." 3 The "working list" is made up on the names of all registered laborers who have been referred to jobs and are either actually engaged in work or, because the job to which they had been referred has halted temporarily, they have an expectancy of being called back to their work.4 The "non-working list" is comprised of the names of registered laborers who are out of work and are waiting to be referred to a new job. Laborers who are laid off at the termination of their work assignment apprise the union hall of such fact, and their application sheets are then taken from the "working list" and .placed at the bottom of the "non-working list." Thus, as calls from employers come in requesting laborers, the job openings are filled by referring men from the top of the "non-working list." However, to be referred a person must be present and available in the union hall at the time of a job opening, and, if the top man with priority is not present, the next person on the list who is present in the hall is referred out, and .the application sheet of the absent "top" man is then placed at the bottom of the "non-working list." If a call comes in for a laborer, however, and no "non-working list" people are in the hall, a "working list" man, who, while waiting for his own job to reopen, happens to be in the hall, may be sent out. . 1 Unless otherwise set forth, all dates refer to 1964. 2 Notwithstanding an affirmative statement contained In the Respondent's answer which alludes to the employment of "union members" furnished by the Union "in accordance with the regular and usual hiring practices of the Union," legality of the hiring hall prac- tice was neither challenged in the complaint nor litigated at the hearing and, accordingly, is not in issue in this proceeding. 3 These lists are not , in fact, lists , but rather are piles of work applications stacked one on top of the other and kept in two filing cabinet drawers. For clarity purposes, however, they will be referred to herein as lists. 4In other words, as far as the Union Is concerned , all laborers on the "working list" at any given time are considered to be employed and therefore , with one exception here- inafter noted, are not eligible to be referred to a new job. In this connection, however, a laborer who chooses to remain on the Union 's "working list" after the job to which he was referred is temporarily shut down, has the right to return to 'his job with that employer when the particular work or job on which he previously was employed again opens up. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The alleged unlawful conduct During the fall months of October through January 5, 1965, the Respondent, per- forming under a subcontract with Millstone Construction Company, was engaged in the laying of sewer and water lines on the outskirts of Centralia . On Wednesday morning, October 7 , in connection with the sewer line being constructed to the Seigler plant, John Maroon , owner of the Respondent, called Lee Hiltibidal, business repre- sentative for Local 19, told him that he was ready to start at the north end, and asked for two laborers, pursuant to which request the Union referred employees Howard Queen and Tom Campbell . At noon on this date, pursuant to Maroon's request of Hiltibidal, Roy Clark , one of the alleged discriminatees , was also sent to the north end project. On the following day, Thursday, October 8, presumably at Maroon's request for an additional laborer, Lawrence Tate, the Charging Party and the other alleged discriminatee , was referred to the north end project.5 The record reveals that all four of these laborers worked for the Respondent on October 8 - and 9, and that, during the following week, when there appears to have been employment for but two of Local 19's referrals, only Queen and Campbell worked the jobs Thereafter, while waiting for a right-of-way clearance, the job was shut down and did not reopen until November 5. Sometime during the day on October 8, Maroon and Clark became involved in an argument concerning the setting of batter boards, work to which Clark had been assigned and on which Maroon , himself, also was engaged . On this occasion, Clark challenged Maroon concerning the latter's right to perform the work, and, as testified to by Clark, "I told him to lay off our work, that if we was shorthanded, that if he needed any more men to go to our hall and get them. Clark further testified that Maroon replied that "he wasn 't going to get any more, that he had enough out there, that he wasn't going to quit doing that work, that he didn't have anybody out there that knew what they were doing and somebody had to do the work." Maroon, taking the position that one man was all that was needed but that Clark was not doing the work properly, testified that "Mr. Clark didn't seem to know what he was doing, and we talked about it and he wanted me to put on another laborer and I told him, 'no.' I said, 'This is a one-man job.' So I helped him set those batter boards that day to see that they were right because I didn't want to come down, go down to the next man- hole, maybe six inches low or six inches high, and I helped him check those batter boards." Early the following morning, October 9, after Clark had apprised Hiltibidal of the matter, Hiltibidal and William Huebner, Local 19's secretary, went out to the jobsite where Hiltibidal encountered Maroon . During the course of an argument between the two, Maroon admitted, in answer to Hiltibidal 's inquiry, that he had been assisting Clark in setting batter boards. As testified to by Huebner, Maroon replied that "in an attempt to get the job started right that he was setting batter boards and trying to line the job up." Maroon further stated, according to Hiltibidal , that Clark did not know how to do anything on the job, and , in reply to Hiltibidal's request that Maroon refrain from further performing this work , Maroon answered that "he was going to continue until the job got straightened out." 7 5 It would appear that these men, Queen , Campbell , Clark, and Tate, were referred in that order on the basis of their respective positions at the top of the "non-working list." 6 On Thursday and Friday , October 15 and 16 , of this week , when the need for addi- tional laborers arose , and again when the job reopened in November, the Respondent, confronted with work jurisdictional claims of Laborers ' Local 581 , with whom the Re- spondent also has an exclusive hiring hall contract , employed two referrals from Local 581. As will be noted hereinafter , although the Respondent's action in employing the two Local 581 men on October 15 appears to have been the real basis for the complaints of Clark and Tate against the Respondent , the work jurisdictional dispute between Local 19 and Local 581 is in no way made an issue in this proceeding , nor is the Respondent's action in capitulating to Local 581 's ultimatum to put on its men alleged as a violation or asserted by the General Counsel in support of the Section 8(a) (3) and ( 4) violations as to Clark and Tate, respectively. In addition to Huebner and Hiltibidal 's testimony , the testimony of Clark , who, at some point, entered into the conversation , and Maroon , reflects that, on this occasion, Maroon made known his feelings concerning Clark's inability to perform the work. Thus, Clark testified that Maroon stated that he had been performing the work "because I didn't have anybody out there who knew how to lay batter boards or lay tile," and Maroon testified that, in reply to Hiltibilal 's question as to why he was doing Laborer's work, he told Hiltibidal that "the man you sent me don't know how to do it." JOHN MAROON TRUCKING SERVICE 91 According to the further testimony of Hiltibidal, at some point in the argument, Maroon told Hiltibidal "that he didn't want Clark dispatched there because Clark was a troublemaker." Maroon also told Hiltibidal that "Tate is no good," and that "I don't want either one on the job." Maroon, on the verge of letting Clark go, bowed to Hiltibidal's suggestion that he not fire him. After the conversation was concluded and Hiltibidal and Huebner had left, Maroon continued to assist Clark in setting batter boards until Maroon put Queen on the job. Queen, according to Maroon, proved himself capable, and for the remainder of the job performed by himself the work of setting batter boards. Thereafter, on November 5, the right-of-way having been obtained, the project resumed. According to the testimony of .Hiltibidal, Maroon called him at 7 a.m. on November 4, "or thereabouts," and informed him that he was going to start the north end project again, and requested two men. Hiltibidal told Maroon that, accord- ing to their agreement, all four boys (referring to Queen, Campbell, Clark, and Tate) were eligible to go back on the job, to which Maroon replied that he would not hire Roy Clark or Tate.8 Thus, in filling Maroon's two referral requests for November 5, Hiltibidal decided to send Queen, who had top priority for the job, and Otto Metcalf, who was the top man eligible for referral on the Union's "non-working" list .9 Queen and Metcalf, along with two laborers from Local 581, worked on the north end project off and on during the month of November.10 No work was per- formed on the north end project during the month of December until the 28th, at which time Metcalf and Queen returned and worked from December 28 through January 4 and 5, 1965, respectively, which was the last day that any work was done by the Respondent on the north end project. Thus, from the November 5 reopening of the Respondent's north end project through its apparent completion on January 5, 1965, Maroon had need for but two of Local 19's laborers; Queen, who worked a total of 14 full and 2 partial days, and Metcalf, who worked 11 full and 2 partial days. During this period no further referrals for the north end project were requested, and, accordingly, neither Clark nor Tate, nor anyone else, was subsequently referred to, or employed by, Maroon on his north end project. However, and notwithstanding the fact that under the Union's hiring hall referral system, by voluntarily retaining their names on the "working list" until the middle of January 1965, Clark and Tate made themselves s Iiltibidal testified that when he asked Maroon for his reason, Maroon stated that "Clark is a loudmouth and a troublemaker," and also that "Tate has got me fouled up with the National Labor Relations Board, I will not have him on my job." Maroon, who testified that be did not call or talk with Hiltibidal about the resumption of work, either before or on November 5, and that it was solely through his call to Campbell that the Union was put on notice as to his need for calling back two former employees, testified that on November 6 (the day after Maroon assumed work), he (Maroon), in need of a couple of men for a different job not here involved, talked with Iiltibidal and told him "I didn't want Clark and I didn't want Tate because they weren't good help" and also stated, "Now they've got me messed up with the Labor Board." In resolving this testi- monial conflict, I must state that neither Hiltibidal nor Maroon impressed me as com- pletely credible in giving testimony. Hiltibidal appeared confused on many points, including dates and his operation of the hiring hall, and changed his testimony many times, while Maroon, also hazy on a number of matters, repudiated a portion of his pretrial affidavit given to the Board agent on November 6 by testifying that he did not call Hiltibidal for men when the job opened on November 5. In view of the seriousness of such repudiation by Maroon, I find, as testified to by Hiltibidal, that Maroon did make a request on November 4 for two men, but also find, in view of Hiltibidal's later testi- mony that the reason why Maroon would not hire Clark or Tate on November 5 was "because he (Maroon) told me for the simple reason that they wouldn't work," that Maroon's version of his statements to Hiltibidal concerning Clark and Tate, which I credit, is the more accurate of the two. 9 Campbell, who would have had second priority for the job over either Clark or Tate, had the day before removed himself from Local 19's hiring hall in favor of the Iron Workers. Oddly enough had Campbell not made this move and had been available for referral on this date, in view of the fact that no further job openings on Respondent's north end project were at any time thereafter forthcoming, it would appear that this entire matter would not have arisen. 10 The records disclose that the four employees worked at least a portion of 8 days through November 18, and that Queen worked an additional day during this period and again on November 23, which was the last day that any work was performed on the north end project in November. All four laborers were transferred by the Respondent to other projects during the remainder of the month. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligible only for referral back to the Respondent's north end project (in the event that additional men were needed), Tate was accepted by Maroon on a different proj- ect commencing on November 24, when, in response to a request for two men, Hiltibidal sent Tate and his father, Ivan Tate.11 Analysis and Conclusions The General Counsel contends that on November 5, when work on the project resumed, Maroon refused to accept the referral of Clark because the latter had earlier protested Maroon's performing Laborers' work and refused to accept the referral of Tate on the ground that he had shortly before, on October 28, filed with the Board an unfair labor practice charge. The Respondent, in denying these allegations, asserts that it has at no time refused to employ any man sent out by the Union,- including Clark and Tate; that on November 5 Queen had top referral priority for one of the two job openings, and that the decision to send Metcalf rather than either Clark or Tate was made by the Union and not by the Respondent; and that the Respondent was within its right under the contract in telling the Union that it did not want Clark or Tate referred. Prior to treating the contentions raised by the parties, and apart from the merits of the arguments raised, I feel compelled to state that, in my opinion, the true basis for the original complaints of the two charging individuals herein, as well as Local 19, is not that they were discriminated against by the Respondent because of any union activity on their part, but rather, the fact that they were displaced on the north end job on and after October 15 by two referrals from Local 581. The record amply demonstrates that a week or so before the occurrence of the incidents alleged herein as violative of the Act, namely, the refusal to hire on November 5, both of the alleged discriminatees, as well as Hiltibidal of Local 19, were at odds with Maroon over his permitting Local 581 to encroach upon Local 19's geographical territory. Thus, the two identical letters signed by Clark and Tate, dated October 19, and prepared by Hiltibidal and Huebner at Local 19's offices, and submitted to the Board's Regional Office, allege as possible violations only the fact that Clark and Tate had been displaced by Local 581 laborers. Both Clark and Tate, in testifying, agreed that at that time they had no other grievance or complaint against the Respondent.12 As in part noted heretofore, it apears that at times material to this proceeding, there existed an honest dispute as to whether the Respondent's north end project contractually came within the geographical jurisdiction of Local 19 or Local 581, and that the Respondent' s decision on or about October 15 to split the work between referrals from both organizations was arrived at independent of unlawful motivation concerning Clark or Tate. In any event, and notwithstanding testimony of Hiltibidal indicating the existence of continued resentment by him toward Maroon in this regard, the complaint issued by the Regional Office and the position asserted by the General Counsel in support thereof does not allege the Respondent's action in hiring two Local 581 laborers on October 15 and again on November 5 as unlawful. Accordingly, and apart from the fact that the grievances of Clark and Tate which originally motivated them in seeking Board relief do not merit such, we proceed to the question of whether the Respondent refused to hire Clark and/or Tate on and after November 5 for unlawful reasons. The crucial and, for the most part, uncon- troverted facts disclose that, upon reopening the north end project on November 5, there were but two job openings for Local 19 referrals; Maroon, the day before, had requested of Hiltibidal that two men be referred; under the existing referral system, Queen had top priority for one of the two jobs, and was referred; and Hiltibidal, "Although Hiltibidal's testimony is certainly confusing, if not conflicting, as to whether on this occasion he referred Tate "to test him (Maroon) out for sure to see if he will or not" employ Tate, or whether, in Hiltibidal's absence, Tate was sent because, although on the "working list" and therefore not eligible for any job other than the Respondent's north end project, "he was the only one available to go," it is clear that Maroon accepted the referral of Tate on November 24 and that Tate finished the work, to which he was assigned. 32 The formal unfair labor practice charge filed by Tate on October 28 alleges only that Tate had been displaced on October 15 by a Local 581 laborer. It should be further, noted that, notwithstanding the issuance on December 14 of the 8(a) (3) complaint alleging the November 5 refusal to hire Clark and Tate, the record contains no charge alleging such refusal or containing an 8(a )( 4) allegation prior to the amended charge. filed by Tate on January 13, 1965. JOHN MAROON TRUCKING SERVICE . 93 given to understand by Maroon that he would not accept either Clark or Tate, both of whom, respectively, were immediately behind Queen in line for filling the vacancy, sent Metcalf, who was the top man on the "non-working list." Without attempting to pass upon the question of whether, under different circum- stances, a union must actually send it man to the jobsite before an employer can be said to have rejected him, in view of the referral contract provision herein reserving to the Respondent the right to reject any person furnished by the Union, coupled with Maroon's specific instructions on November 4 to the effect that he did not want Clark or Tate, I find without merit, notwithstanding its technical accuracy, the Respondent's two-fold argument that it at no time actually refused to employ anyone sent out by the Union, and that the decision to refer Metcalf, rather than either Clark or Tate, was made by the Union and not by the Respondent. Thus, having found that the Respondent is estopped to deny that it refused to accept either Clark or Tate, or that it was responsible for the decision not to refer them, the question posed by the Respondent's final assertion is whether it was within its right under the contract in refusing to accept their referral. In considering the validity of the respective positions of the parties in this regard, controlling is the fact that Section 8(a)(3) of the Act, as well as the existing refer- ral contract, permits the Respondent to reject or to refuse to employ any employee referred by the Union for any reason, so long as the Respondent's motivation is not based upon union consideration. 13 On the other hand, were the evidence to reveal that Clark and/or Tate would have been employed on November 5 but for the fact that they engaged in protected activity, Section 8(a)(3) would prevent the Respond- ent from relying upon the contract in defense of its position. The sole basis upon which the General Counsel predicated his allegation concern- ing Clark is the fact that Clark, on October 8 and 9, protested to Maroon the latter's performing work on the job. While fully cognizant that under certain circumstances a proper protest involving work to be performed under a union contract may con- stitute protected activity under the Act, I am of the opinion, and so find, that under the circumstances here, Clark's on-the-job protest was not only unjustified but that his conduct in engaging Maroon in an argument concerning the matter places it outside the ambit of protected activity. It is evident, not only based upon Maroon's testimony but on that of Clark and Hiltibidal as well, that Maroon considered Clark as not capable of performing the assigned work properly, and that his work in set- ting batter boards was unsatisfactory. In addition, the fact that, even after the conference with Hiltibidal and apparently with the Union's acquiescence Maroon continued to assist Clark until Queen subsequently took over the work and finished the job by himself, supports Maroon's position that he was not, in fact, attempting to get by with one less referral from Local 19, and that, contrary to Clark's assertion, one man was all that was necessary to perform the work.14 A finding that, under these circumstanecs, Maroon is precluded from asserting his contract. right to refuse the further referral of Clark is, in my'opinion, clearly unwarranted.15- On the record as a• whole, I am persuaded, and so find, that, based upon Clark's work performance in early. October, the Respondent justifiably considered Clark an unsatisfactory employee and for reasons relating thereto refused to accept his sub- 13 In view of the fact that neither the General Counsel's arguments nor the testimony by the union officials considers the Respondent's action with respect to Clark or Tate a "discharge" action, but rather, a "refusal to accept the referral" of the alleged dis- criminatees, for the purposes of this discussion it is presumed that. neither Clark nor Tate was considered an employee on November 5 (notwithstanding their right to be referred back to the north end project under the Union's unilateral hiring hall procedure), and therefore, that the contract's article I, section 3(6), is applicable here only to the extent that it refers to the Employer's right-to accept or reject persons furnished by the Union (as distinguished from that portion relating to "discharge for cause"). 14 Nor does the record reveal that the alleged ground for Clark's protest to Maroon is supported by earlier history; for there is no indication that Maroon, in his contract rela- tions with the Union, had at any time attempted to use less than the number of Local 19 laborers required to do a job by performing work himself, either for the purpose of cutting labor costs or in order to side step the union hiring hall. ze To hold otherwise lends itself to the- proposition that, under this type of referral contract, any referred person whom the employer considers to be incapable of properly performing the.work, or who for other legitimate reasons may be considered less than acceptable, may, with or without justification and under the guise of engaging in protected activity, protect his employment tenure or prevent his termination by merely protesting the employer's manner of operation under the contract. 94 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Sequent referral by the Union. According, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that, in refusing to accept the referral of Clark on and after November 5, 1964, the Respondent violated Sec- tion 8(a)(3) and (1) of the Act. With-respect to Lawrence Tate,16 whom the General Counsel alleges to have been unacceptable for referral solely on the ground that he filed an unfair labor practice charge against the Respondent on October 28,. the evidence reveals that, although Tate was in no way involved in the "batter board" incident on October 8 and 9, Maroon, on the latter date, which was several weeks before the October 28 charge was filed, apprised Hiltibidal of the fact that "Tate is no good" and that he did not want him on his job. Although, based upon Maroon's statement to Hiltibidal on- November 4 that he would not hire Tate, Hiltibidal did not refer him for the north end reopening on November 5, Hiltibidal's referral of Tate 3 weeks later on November 24 "to test" Maroon was accepted by.the latter without incident. Although Maroon admitted on the record that one of the reasons that he did not want Tate was because Tate was known around the country as a troublemaker, which meant "generally it is petty things like jumping out of the ditch to call the business agent if I pick up a shovel," the evidence discloses that, like Clark, Maroon consid- ered Tate to be other than a good worker and, based upon Hiltibidal's admission, Maroon communicated this to Hiltibidal as a reason for not hiring Tate (as well as Clark) on November 5. Accordingly, in view of the above, and notwithstanding Maroon's statement to Hiltibidal which, based upon its context, I believe to have been but an afterthought, to the effect that "Now they've got me messed up with the 'Labor Board," I find that the General Counsel has failed in its burden of proving by a preponderance of the credible evidence, that, in refusing to accept the referral of Lawrence Tate between November 5 and 24, 1964, the Respondent violated Sec- tion 8 (a) (3) and (4) of the Act. CONCLUSIONS OF LAW 1. John Maroon Trucking Service is engaged in commerce within the meaning of Section 2(6) and.(7) of the Act. 2. International Hod Carriers', Building and Common Laborers' Union of Amer- ica, AFL-CIO, Local 19, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. . RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. 16 Lawrence Tate, the alleged discriminatee, is more frequently referred to In the record as Steve Tate, and should not be confused with his father, Ivan Tate. Millwrights Local Union 1421 , affiliated with United Brotherhood of Carpenters & Joiners of America, AFL-CIO; L. A. Carter, Business .Representative [Jervis B. Webb Company of Georgia] and John H. Davis, Jervis B. Webb Company of Georgia, C. M. Yeatts, Jr., Earl Cox. Cases Nos. 16-CB-247, 16-CB-9247-2, 16- CB-247-3, and 16-CB-247-4. December'17,1965 DECISION AND ORDER On September 14, 1965, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth . in, the attached Trial Examiner's. Deci- 156 NLRB No. 10.