Local 18, Bricklayers, Masons and Plasterers

LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 303 manner discriminating against any employee in regard to his hire, tenure, or other term or condition of employment. WE WILL NOT, in any like or related manner , interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union or any other union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Ben Poole immediate, full and unconditioned reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain , or to refrain from becoming or remaining, members -of the above-named union or any other labor , organization. LEECE-NEVILLE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta , Georgia 30323, Tele- phone 526-5741. Local 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO and Jesse Bulle and Union County Building Contractors Association and The Johansen Company, Parties to the Contract. Case 29-CB-784. June 14, 1966 SUPPLEMENTAL DECISION AND ORDER On June 8, 1965, the National Labor Relations Board issued its Decision and Order 1 in the above-entitled proceeding, affirming the Trial Examiner's finding that the General Counsel failed to establish that Respondent violated Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended, as alleged in the com- plaint, and granting Respondent's motion to dismiss the complaint in its entirety. Thereafter, on September 14, 1965, the Board issued an order granting the Charging Party's motion for reconsideration, vacating its prior Decision and Order, and remanding the proceed- ing for further hearing before the Trial Examiner. Pursuant thereto a further hearing was held and, on January 3, 1966, Trial Examiner Thomas F. Maher issued his Decision 2 herein, 1152 NLRB 1280 'The attached "Trial Examiner's Decision" of January 3, 1966, is in fact a supplemental decision. 159 NLRB No. 31. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding that Respondent had not engaged in the unfair labor prac- tices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and a brief in support of exceptions was filed by the General Counsel.3 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- memiber panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith.' The Trial Examiner recommended dismissal of the complaint, finding that the record as a whole ". . . reveals no single fact that would categorically establish the allegations ..." that Respondent; 3 Respondent filed no exceptions to the Trial Examiner 's Decision . However, its brief in support of that Decision , which was postmarked March 29, 1966 , and received by the Board on March 30, 1966, was rejected by the Board on April 4 , 1966, as untimely pursuant to Section 102 46 of the Board Rules and Regulations, Series 8 , as amended. Thereafter, on April 8, 1966, Respondent filed a motion requesting special permission of the Board to file its brief, pursuant to Section 102 46 ( g) of the Rules and Regulations. In its accompanying affidavit in support thereof, Respondent, by counsel , states that it was unaware of the Board's time for filing requirement and that counsel was heavily engaged in other litigation We find no merit in this ground , as a copy of the Board's Rules governing the time for filing exceptions and briefs was attached to the Order trans- ferring this case to the Board , copies of which were duly served on both Respondent and its attorney. Nor do we find merit in Respondent 's argument that equity requires a relaxation of the Board 's Rules herein . Contrary to Respondent 's assertion , the Charg- ing Party 's motion for reconsideration was timely received by the Board on July 21, 1965, pursuant to an extension of time which was granted Respondent , on the other hand, has shown neither substantial compliance with the Board ' s Rules, nor an attempt at such compliance. The Board makes every effort to apply its Rules with such lenience as will effectuate the purposes of the Act, but Respondent herein cites no valid reason, and we perceive none, why we should accept its brief, which was filed approximately 2 months after the time for filing had expired . Accordingly , Respondent ' s motion is hereby denied We note, however , that even if accepted , the brief advances no issues , theories, or argu- ments which would alter our ultimate findings and conclusions herein. 4 The Charging Party has excepted to certain of the Trial Examiner 's credibility find- ings. We find merit in this exception It is the Board 's established policy not to over- rule a Trial Examiner 's resolutions with respect to credibility unless the clear prepon- derance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F.2d 362 ( C.A. 3). How- ever, since the resolutions of credibility are based not alone on the Trial Examiner's observations of the witnesses and their demeanor but in large part on his interpretation and analysis of testimony appearing in the record , we do not rely on such findings where, as indicated infra, the record evidence preponderates against them. Briggs IGA. Food- liner, 146 NLRB 443, footnote 6; Interboro Contractors, Inc, 157 NLRB 1295, footnote 14 For the same reason, we also reject the Trial Examiner's blanket credibility resolu- tion , as set forth by the second sentence in footnote 2 of his Decision , purporting to dis- credit all testimony upon which he does not specifically rely . Cf Nachman Corporation, 144 NLRB 473, footnote 2 As hereafter discussed , this broad general credibility finding is also inconsistent with certain of the Trial Examiner 's specific credibility resolutions LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 305 in the operation of its exclusive hiring hall, discriminatorily refused to rE►fer Jesse Bulle, the Charging Party, for employment in viola- tion of Section 8(b) (1)'(A) and (2) of the Act. Specifically, he found no evidence to show that Jesse Bulle ever requested, and was refused, referral to a job from Respondent's hiring hall at a time when Respondent had jobs available. We find merit in the General Counsel's exceptions to these findings. As set forth in the Trial Examiner's Decision, Respondent, Local 18, Bricklayers, Masons and Plasterers' International Union of Amer- ica, AFL-CIO, herein also called the Union, had a collective- bargaining agreement with Union County Building Contractors, Association, herein called the Association, containing .the hiring pro- visions quoted in the said Decision. Upon evidence introduced at' the hearing, the Trial Examiner correctly found that pursuant to this agreement, the employer-members of the Association were required to, and did in fact, utilize the Union's hiring hall or referral system as their exclusive source of applicants for employment as cement masons, bricklayers, and plasterers within the territorial jurisdiction of the Union .5 Therefore, we find, in agreement with the Trial Examiner,6 that Respondent operated and maintained an exclusive hiring or referral arrangement which required that all applicants for employment as masons, bricklayers, and plasterers' with employer-members of the Association must' be referred by Respondent. While the validity of the hiring clause of the contract is not in issue, the complaint alleges that Respondent, in the opera- tion of its exclusive hiring or referral system, has refused to refer Jesse Bulle to jobs with employer-members of the Association because Bulle was not a member of the Union. The facts, as recited by the Trial Examiner and established in the record, indicate that Jesse Bulle, a cement mason and former mem- ber of the Union, visited Respondent's hiring hall at approximately 7 o'clock in the morning, when referrals to jobs were customarily made, on each workday from September 10 through September 22 and, again, on September 25, 1964.7 On each of these occasions, except September 21, Bulle spoke either to Respondent's business agent, Sal 6The record fails to establish that The Johansen Company, ,named as party to the con- tract herein , was either a member of the Association or party to a current collective- bargaining agreement with Respondent at any time material herein. However, it pre- viously had a written contract and the evidence establishes that, as a matter of general practice, all employers engaged in construction within Respondent's territorial jurisdic- tion rely upon and use the Union 's hiring hall as the exclusive source for securing cement masons, bricklayers , and plasterers. 6 The Trial Examiner's use of the term "nonexclusive" in, describing the hiring provision of 'the contract appears to have been inadvertent ,in .view of his contrary findings in the immediately preceding paragraphs. _ 7 Unless otherwise indicated , all dates are in 19,64. - • •, , 243-084-67-vol. 159-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Migliore, who normally handled referrals from the hall, or to Respondent's president, Thomas M. Clark, who substituted in that capacity during, Migliore's absence. The Trial Examiner appears to find that Bulle's primary purpose in visiting Respondent's hiring hall was to seek reinstatement of his union book, rather than obtaining job referrals. However, the pre- ponderance of all relevant evidence, including Bulle's undenied and corroborated testimony, as well as the admissions made by Respond- ent, establishes, contrary to the Trial Examiner, that Bulle was seeking a job referral and that he requested reinstatement to union membership only as a necessary means to that end. Thus, Bulle testified, without contradiction, that when he made his first of a series or regular visits involved herein to the union hall on September 10, he spoke to Migliore about work, specifically ask- ing for a referral; he also discussed with Migliore the matter of his union book. In the course of the conversation, as related by Bulle, Migliore stated that it was impossible to refer Bulle without a union book. Additionally, Migliore told Bulle that no work was available and that his own men were out of work. The fact that, on cross- examination, Bulle was questioned concerning and testified with respect to only one of the two topics of his conversation with Migli- ore, as quoted in the Trial Examiner's Decision, does not constitute a contradiction' or denial of the other aspect of that discussion. Rather, Bulle's testimony on cross-examination reflects his responsive- ness-to very specific and limited questions. Similarly, with: respect to September 11, Bulle * testified without contradiction that he went to the hiring hall at his usual time and asked Migliore for a job, and that Migliore told him that no work was available: Bulle's testimony on cross-examination, as excerpted in the Trial Examiner's Decision, denying that he saw Migliore on September 11 after 10:30 a.m., neither confuses'nor contradicts his direct testimony that he spoke with Migliore at his usual' time, i.e., between 7 and 7:15 o'clock that morning. Nor does Bulle's prehear- ing affidavit," from which the Trial Examiner also quotes, contradict or confuse Bulle's - testimony at the hearing concerning the avail- ability of work on that day. Migliore, who was Respondent's princi- pal witness did not testify with respect to the events, including the availability of work, of September 10 and 11. Again, with respect to September 22, the fact that Bulle, requested and was refused a referral on that day was admitted by Respondent, ' 8 Jesse Bnlle's prehearing affidavit, after being used by Respondent in attempting to impeach 'Belle's testimony, was subsequently offered to corroborate 'Bulle's testimony in general and was admitted into evidence for that purpose over Respondent 's objections.' Baker Hotel of Dallas, Inc., 134 NLRB 524, footnote 1. LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 307 through Migliore's testimony, on the record. Migliore also conceded that jobs were available to which he referred other cement masons. Bulle's testimony is further corroborated by cement mason Oliphant,: who testified, without contradiction, that when he arrived at the hall on September 22, at approximately 7:20 or 7:15, ". . . I went straight upstairs, and I met Jesse Bulle on his way out [of Migliore's office], and I went straight in'... and talked to Sal [Migliore] and he referred me out • to Johansen.?' Similarly, cement masons Powell, who also was' referred ' that day, and Edward Bulle, the ; Charging Party's. son, each testified that when he arrived at the hall, Jesse Bulle was already there. Again, with', respect to September • 25, Bulle's testimony that he requested and was refused a job referral on that day is corroborated by Migliore's prehearing affidavit,9 where he admitted that on Sep- tember 25 Bulle asked about his union book and also ". . . if there was any work. and I told him they [sic] were- a lot of masons out of work, as he could see." In addition, Powell, who was' generally credited, testified that, while going upstairs to see 'Migliore, he saw Bulle leaving Migliore's office. As they passed, Bulle commented to. Powell that "... I can't get a day's work out of him." When Powell, immediately thereafter, entered the office 'and, told Migliore that cement mason'Wallace had rejected a referral, )Migliore asked .'vho else was outside. : Powell replied that Holner was downstairs, where- upon Migliore gave Powell a referral slip'-to ,give to Holner.:Under these circumstances.it is immaterial that Bulle's testimony was uncer- tain about his speaking with Migliore on September 25, and the incon- sistency' reflects only his failure to, recall, a specific date. As noted _ above, Respondent did not. counter Bulle's ; testimony regarding the ' events of , September 10 and, 11.:, However, with regard to, September 22 Migliore; by way of explaining his refusal to refer Bulle, testified that 'all. the,'available jobs had been assigned before Bulle appeared and asked to be, referred. Therefore, Respond- ent contends, no jobs were available at the time that Bulle requested- referral: Similarly, with respect to September, 2,5, Migliore testified, contrary to his prehearing affidavit, that although jobs were avail-. able and other cement masons were' referred; Jesse Bulle, was not referred because' he had asked only 'for his union book and did ' not request 'a' referral: In addition, Migliore explained,_'in,response to,, 9 Migliore's 'affidavit was admitted in evidence„ over ,Respondent's, objections,, for .the, purpose - of contradicting (and , impeaching his testimony ,at the, hearing. ' In the, context: In, which his statement was offered, -and since Migliore admittedly acted ':as agent for, Respondent, his affidavit may be relied-upon as an 'admission, against Respondent's interest as well as for purposes i of, impeachment. International, Aasooiation • of Heat and Frost Insulators and Asbestos Workers, Local # 84,-AFL-CIO (Edward R. Hart Company), 146 NLRB 660, 665. , Accord, Barker's East Main Corporation, • 136 NLRB 494, 496: Cf: Hribar Trucking, Inc., 143 NLRB 327, 329 , footnote 4. . 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leading questions by Respondent's counsel, as quoted in the Trial Examiner's Decision, that Bulle was not referred because, unlike the masons who were selected for referral, Bulle had not reported to the hall on September 23 and 24. In support of the above contentions, Respondent offered into evidence a so-called "out of work" list or roster which was allegedly prepared and kept personally by Migliore in handling referrals from the hall. This list, according to Migliore, purported to establish the true chronological order in which employ- ees applied to the hall for referral and the dates on which they were subsequently referred to particular jobs. Although offered for the limited purpose of corroborating Migliore's testimony with respect to the above dates, it was admitted in evidence and made a part of the record, to the extent relevant to all the dates in issue, to wit, September 10 through 25. In view of certain material contradictions and ambiguities in Migliore's testimony as regards the time, manner, and purpose for which the "out of work" list was prepared, as well as the ambiguities and contradictions appearing on its face, no probative value can be attached to any self-serving aspects thereof.10 However, we do rely on this list or roster to the extent that it contains admissions by Migliore against Respondent's interests." Thus, the list reveals, and we find, that several cement masons were referred to jobs on Septem- ber 11.12 - Furthermore, Respondent's asserted reasons for failing to refer Bulle,on September 22 and 25 are without support in the record. Thus, Bulle's testimony, as corroborated by cement masons Oliphant, Powell, and Edward Bulle, establishes, and we find, that Jesse Bulle requested and was refused a referral on September 22 at a time when jobs were available. Similarly, we find no merit in Respondent's contentions that on September 25 Bulle asked only for his union book. However, even accepting, as the Trial Examiner did, Migliore's testi- mony that Bulle asked only for his union book, we conclude never- theless that, in light of Bulle's past conversations with Migliore and 10 Cf. Operative Plasterers' and Cement Masons' International Association, Local Union No. 44, AFL-CIO (Penny Construction Company, Inc .), 144 NLRB 1298, footnote 2 at 1300. The Trial Examiner, who generally credited Migliore's testimony, appears also to dis- credit his "out of work" list. u Cf. Florence Printing Co., 145 NLRB 141, 144 ; see also cases cited in footnote 9, supra. "Our finding does not reject Bulls's testimony that Migliore told him no work was available and that he saw no one referred from the'hall that day. For, Bulle's testimony establishes only what he was told and what he saw. It does not prove conclusively whether jobs were, or were not, in fact available. However, Respondent, having access to all hiring hall records , could have clarified any ambiguities concerning the availability of jobs on September 11. It is well settled that the General Counsel has the burden of proof to show discrimination. However, where, as here, an, ambiguous situation is presented, which may be resolved by evidence In possession of the opposing party, the burden of going forward with ,the evidence shifts to that party. Respondent's failure to uphold.this burden .gives credence to the General Counsel 's contention that Respondent's refusal to refer Bulle was based on reasons other than nonavailability of work. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (C.A. 8). LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 309 the testimony of Holland, discussed below, such a request was tanta- mount to an appeal for a job 13 Nor is it necessary that an employee continue to report to the hiring hall and request a referral, when having been told that he will not be referred without a' union book, such requests would be futile. 14 In view of the above, and the entire record in this case, we find, contrary to the Trial Examiner, that Jesse Bulle requested, and was refused, a job referral from Respondent's exclusive hiring hall on September 10, 11, 22, and 25. In addition, the record establishes, and we find, that jobs for cement masons, to which Bulle could have been referred, were available on September 11, 22, and 25, and that Respondent's asserted explanations for not referring Bulle on the latter two dates are without merit and constitute a pretext for the real reason. The question remains, however, whether the real reasons behind Respondent's conduct herein involved union membership con- siderations as proscribed by Section 8(b) (1) (A) and (2). By way of background, as noted in the Trial -Examiner's Decision, it is conceded that in 1960 Bulle's relations with the Union, of which he was then a member, became strained and,. subsequently, his mem- bership therein was canceled. Since then, Bulle •has made repeated, although unsuccessful, efforts to regain his.membership in the Union. The Trial Examiner, while rejecting as irrelevant, all testimony con- cerning the merits of Bulle's expulsion from the Union,15 erred in holding that Bulle's union status itself is also of no relevance.to the instant proceeding. To the contrary, status in the Union is the very heart and essence of a proceeding, such as this, wherein it is alleged that the Union is discriminatorily refusing to refer employees from its hiring hall on this very ground. For, in its operation of an exclu- sive hiring or referral arrangement, a union must act without dis- crimination based on membership or nonmembership therein .16 Thus, 13 The General Counsel's brief to the Board asserts that Respondent's refusal to refer Bulle on September 25 is not alleged as a separate violation, since the referral jobsite on that date was outside the territorial jurisdiction wherein Respondent operated its ex- clusive hiring or referral system . Therefore, we make no specific finding with respect to September 25, but rely on the events of that day only to the extent they are part of the overall conduct which reflect on Respondent's motivation.. . i 1s Local 215, International Brotherhood of Electrical Workers, AFL-CIO -(Eastern New York Chapter of the National Electrical Contractors Association ), 136 NLRB 1618, 1629. zs No prejudicial error was committed by the Trial Examiner in excluding 'evidence regarding the reasons for Bulle's expulsion from the Union , although such evidence was admissible as background to shed light on the motive behind Respondent's conduct en- compassed within the complaint. Iron City Sash•& DooriCompaay, 146 NLRB 1211, footnote 2. ' - . 1 '°Local 25, Marine Division, International Union of Operating Engineers , AFL-CIO (American Dredging Company), 149 NLRB 519, 535; International' Longshoremen's & Warehousemen's' Union, Local No. 12, (Donald D. Wilson), 155 NLRB 1042 ; United Brotherhood of Carpenters &'Joiners of America, Lodal 1281, AFL-010 ( Raber-Fief; Inc.'), 152 NLRB 68, and cases cited at footnotes 2, 4, and 5 thereof. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner erred in not relying upon the testimony of Mable Holland, a welfare investigator for-the city of Elizabeth, New Jersey, concerning her conversation with Migliore in February or March .1965.17 'Holland testified that, in the regular course of her investiga- tion of Jesse Bulle as a welfare applicant, she spoke with Migliore, asking that he permit Jesse Bulle to work. Migliore's response, according to Holland,; was that Bulle could not work without a union 'card. Thus, Holland's testimony corroborates that of Bulle concern- ing his September :10 conversation with Migliore, discussed above. Similarly, Migliore's own testimony that Bulle asked only for his union book on September 25 is significant and, when viewed in the context of all-the facts herein, warrants an inference that such a book was a necessary prerequisite to securing job referrals from Respond- ent's-hall. Under all the circumstances, we are convinced that the real reason for Respondent's refusal to refer Jesse Bulle is to be found in Bulle's lack of membership in the Union. Such discrimina- tion, which obviously encourages union membership and adherence to union policy, is proscribed by Section 8(b) (1) (A) and (2).111 Nor is it necessary for finding'a violation of Section 8(b) (2) to ascertain particular employers who have been caused to discriminate.19 Accordingly, upon the entire record in this case, we conclude and find that Respondent, in the operation of an exclusive hiring hall or referral system, has refused, since on or about September 10, 1964, to refer Jesse Bulle for employment by employer members of the Asso- ciation and by other employers who regularly use Respondent's hir- ing hall as their exclusive source of cement masons, because of Bulle's lack of membership in Respondent. We further find that since on or about September 11, when jobs were available, Respondent discrimi- natorily denied Jesse Bulle referrals to such jobs because of his non- membership -in the Union. By the conduct described above, we find that Respondent violated Section 8(b) (1) (A) and (2) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be ordered that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. 1T At footnote 14 of his Decision, the Trial Examiner rejected , as beyond the scope of the pleadings, the testimony of Holland regarding her conversation with Migliore some 5 to 6 months after the charge herein was filed. We find merit in the General Counsel's exception to this ruling. Testimony of, relevant events and conduct which occurred sub- sequent to the filing of the charge is admissible at the hearing and may be relied upon to determine the merits-of the charge as set forth in the complaint . Wean Manufactur- ing Company, 147 NLRB 112,'footnote 5 at 114 , citing N.L.R.B. v. Pant Milling Company, 360 U.S. 301. International Longshoremen's dr Warehousemen's Union, Local No. 12, supra. 19Ibid. LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 311 The record reflects that beginning-on September-11, 1964, Jesse Bulle was denied referral for employment when work was available and when other masons were referred. Inasmuch as this is the first specific date that discrimination can be definitely found to have occurred, it will be ordered that Respondent make whole the Charg- ing Party from September 11, 1964, for any loss of earnings suffered by him as a result of the discrimination practiced against him. Such payment shall be equal to the amount of wages he would have earned but for the discrimination practiced against him by Respondent, as computed in accordance with the Board's formula in F. W. Wool- worth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as provided in Isis Plumbing f Heat- ing Co., 138 NLRB 716. CONCLUSIONS OF LAw 1. The Union County Building Contractors Association, and its employer-members, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, the Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and by causing discrimination against Jesse Bulle in violation of Section 8(a) (3) of the Act, the Respond- ent has violated Section 8(b) (2) and (1) (A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. SUPPLEMENTAL ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 18, Bricklayers, Masons and Plasterers' Interna- tional Union of America, AFL-CIO, Newark, New Jersey, its offi- cers, agents, and representatives, shall: 1. Cease and desist from : (a) Discriminating in the hire and tenure of Jesse Bulle by fail- ing and refusing to refer him to work by reason of his nonmember- ship in Respondent Union. (b) In any like or related manner restraining or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds necessary to effectuate the purposes of the Act : (a) Make Jesse Bulle whole for any loss of pay suffered as a result of the discrimination against him, in the manner set forth in the section of this Supplemental Decision entitled "The Remedy." 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the employer-members of the Association, and other employers who use Respondent's hiring hall as the exclusive source for securing masons, and mail a copy of each notice to Jesse Bulle, that Jesse Bulle will have full use of the hiring hall facilities with- out discrimination in connection with referrals for employment. (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, referral records, and all or any other records necessary for the determination of the amount of backpay due under the terms of this Order. (d) Post in conspicuous places at its offices, meeting halls, and hiring halls, including all places where notices to employees, appli- cants for referral,,and members are customarily posted, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for Region 22, shall, after being duly signed by a, representative of Respondent, be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 10 days, from the date of this Order, what steps have been taken to comply herewith. 21 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for' the words "a Supplemental Decision and Order" the words ' "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS, OFFICERS , REPRESENTATIVES , AGENTS, AND EMPLOYEES OF LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO Pursuant to a supplemental decision. and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE'WILL NOT discriminate in the hire and tenure of Jesse Bulle by failing and refusing to refer him for employment by reason of his lack of membership in the Union. WE WILL NOT in any like or related manner restrain or coerce employees in-the exercise of their rights protected by Section 7 of the Act. WE WILL make Jesse Biille whole for any loss of pay suffered by him as a result of the discrimination practiced against him. WE WILL refer Jesse Bulle for employment without discrimina- tion based on his lack of membership in the Union. LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 313 WE WILL notify the employer members of the Union County Building Contractors Association, and other employers who use the union hiring hall as their exclusive source for cement masons; and mail a copy of each such notice to Jesse Bulle, that Jesse Bulle will have full use of the hiring hall facilities without dis- crimination in connection with referrals for employment. LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO, Union. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 641 National Newark Building, 744 Broad Street, Newark, New Jersey 77002, Telephone 645-3088, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and amended charge filed by Jesse Bulle on September 18 and November 2, 1964, respectively, the Regional Director for Region 22 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on January 7, 1965, against Local No. 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Respondent herein, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (29 U.S.C., sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent , while admitting cer- tain allegations of the complaint , denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on January 27, 1965, at Newark, New Jersey, where all parties were present, represented by counsel and afforded a full opportunity to be heard. Counsel for the General Counsel presented his case-in-chief, with full oppor- tunity to Respondent's counsel to cross-examine witnesses . Upon the conclusion of General Counsel's case-in-chief, counsel for Respondent moved the dismissal of the complaint herein on the ground that upon the record made the General Counsel had failed to establish a violation of the Act. Because I entertained serious doubt that the General Counsel had established a prima facie violation of the Act, and in deference to Respondent's right in due process not to be required to enter its defense in the absence of such a showing , I adjourned the hearing for an indefinite period and requested briefs of the parties directed to the substance of Respondent's motion. Brief were filed with me on February 19, 1965. Thereafter, on March 30, 1965, upon consideration of the legal arguments and analysis of evidence advanced by the parties in their briefs, and upon a review of the record made by the General Counsel in support of the allegations of the complaint in which I assumed , of necessity, the veracity of all witnesses appearing before me, I concluded and found that counsel for the General Counsel had failed to establish a prima facie violation of Section 8(b)(1)(A) and (2 ) of the Act, as alleged, and I accordingly ordered, pursuant to Sections 102.25 and 102 35(h) of the Board's Rules and Regulations , Series 8, as amended . that Respondent's motion to dismiss the complaint be granted and that the complaint be accordingly dismissed in its entirety. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, upon request of the General Counsel for review of my Decision and Order on motion to dismiss, the Board, on June 8 , 1965, issued its Decision adopting my findings, conclusions, and recommendations and ordered the complaint dismissed.' Subsequently, on September 14, 1965, upon a motion for reconsideration made by Jesse Bulle, Charging Party, the Board set aside its Decision and Order of June 8, 1965, and remanded the proceeding to the Regional Director for further hearing before me "for the purpose of permitting the Respondent to present its evidence in defense." The Board further stated that I "shall take such additional evidence as the Respondent may present, whereupon General Counsel shall also be permitted to present testimony in rebuttal in the same manner as if the Respond- ent's Motion to Dismiss had been denied." Pursuant to further notice a hearing was held before me on October 13 and November 1, 1965. At the first session of this hearing all parties were present and Respondent and General Counsel were represented by counsel. Charging Party, Jesse Bulle, upon whose representation to the Board the proceeding was remanded to me, was present but not represented by counsel. Prior to the hear- ing, however, and although mindful of the fact that the Board had directed me to hear evidence only from the witnesses called by Respondent and such rebuttal witnesses as General Counsel would thereafter produce, I nevertheless had sent the following letter to Jesse Bulle under date of October 5, 1965: As you no doubt have been advised the above matter in which you are the Charging Party has been reopened and a further hearing before me is scheduled for Wednesday, October 13, 1965. At this time I will hear such evidence as Local 18 wishes to present in defense of the charges made against it. Although the General Counsel of the National Labor Relations Board has rested his case and may • present no more evidence I think you should be advised that you, as Charging Party have certain rights in this matter. Thus it is your privilege to call witnesses in your own behalf and elicit such testi- mony as will support your position. I am therefore advising you that you or any attorney whom you may retain has this privilege which you are at liberty to exercise when the hearing convenes. At the hearing I again reminded Bulle of his privilege of being represented by counsel. Furthermore, although limited by the Board's Order to the hearing of Respondent's witnesses I nevertheless invited Bulle to call such witnesses as he felt would support his claim of discrimination. Bulle, although insisting previously that witnesses would so testify, produced none at the hearing. Upon the conclusion of Respondent's case on October 13, I again called upon Bulle to produce such witnesses as would support his position, deeming such testimony to be in rebuttal of Respondent's case. In response Bulle requested the issuance of six subpoenae ad testificandum and, through his son-in-law, Rev. Nathaniel Nicholson, who accompanied Bulle to the hearing, requested an adjourn- ment for the purpose of retaining counsel. Upon the continued date of the hear- ing, November 1, 1965, no counsel appeared in Bulle's behalf but Rev. Nicholson entered an appearance in the record and called witnesses in his behalf. Here again the other parties were represented, and, as at the two previous sessions, all parties were afforded full opportunity to participate and thereafter to file briefs with me. Memorandums have been filed by all the parties. Upon consideration of the entire record in this proceeding, including all briefs and memorandums submitted to me, the Board's order of remand, and my observa- tion of each witness appearing before me,2 I make the following: 1152 NLRB 342. 2 Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his de- meanor as I observed it at the hearing and particularly at the time the testimony was given. Cf. Retail Clerks International Association , AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682 and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285 . To the extent that I do not rely upon or I reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such a part or whole of the testimony as the case may be is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F.2d 569 (C.A. 2). To the extent that I credit any witness only in part I do so upon the evidentiary rule that it is not un- common "to believe some and not all of a witness' testimony." N.L.R.B. v. Universal Camera Corp., 179 F.2d 749 , 754 (C.A. 2). LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS FINDINGS OF FACT AND CONCLUSIONS OF LAW 315 1. THE EMPLOYING CONTRACTORS OPERATIONS Union County Building Contractors Association, with whom Respondent has a collective-bargaining agreement, is an association of employers whose members are engaged in the construction business in and about Union County, New Jersey. In the course and conduct of the business of these member employers, they caused to be purchased, transferred, and delivered to construction sites construc- tion material valued in excess of $50,000, of which, materials valued in excess of $50,000, were transferred to said construction sites in interstate commerce directly from States other than the State of New Jersey. Upon the foregoing stipulated facts I conclude and find that the Association and its members are employers within the meaning of Section 2(6) and (7) of the Act.3 U. THE STATUS OF LOCAL 18 It is conceded and I conclude and find that Respondent, Local 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, is a labor organization within the meaning of the Act. M. THE ISSUE It is alleged that on or about September 22, 1964 , and on various other unknown dates Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer Jesse Bulle to employment as a cement mason upon his request that it do so. IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Introduction In support of his allegation that Respondent failed and refused to refer ' Bulle to employment, counsel for the General Counsel introduced into the record testi- mony that Respondent operates a hiring system whereby employers requiring the services of qualified cement masons would communicate their needs to the Union's hall and obtain suitable help. This facility operated pursuant to an agreement between Respondent and the employers whereby: The employer agrees that at least 48 hours before commencing work on any job in the territorial jurisdiction covered by this agreement, he will notify the Union and thereafter give it a reasonable opportunity to furnish qualified applicants to the Employer. In hiring any employees, the Employer agrees that it will not discriminate because of membership in the Union. Evidence in the record establishes that employers invariably go to the- Union for their cement masons, using the facilities exclusively for this purpose. In instances when no applicants are available employers then communicate with other union halls in the area, and when no employees were thus available they would feel free to "go out on the street" and hire. The employing contractors used this system not only as a matter of contract obligation but as a matter of convenience 4 By way of background it appears that in 1960 Jesse Bulle, a qualified cement mason, had experienced difficulties in his relations with Respondent, of which he was then a member. As a result charges were brought against him and his mem- bership was forfeited. Since then he has ' made repeated efforts to regain his membership status, but as of the dates upon which he visited the union hall in: September 1964 he still was not a member. Throughout the hearing, at recurring intervals, reference was made to Bulle's efforts to regain his union card; and an attempt was made to litigate the merits of his exclusion from union membership. Construing the pleadings as I have, as being limited to the failure to refer Bulle to employment as required by the nonexclusive provision of the agreement, I repeatedly ruled that Bulle's union status was of no relevance. Thus it is of no consequence that Bulle and individ- 3It is well settled that applicants for employment such as those who appear at Respond-, east's headquarters for referral to jobs are considered employees for purposes of the Act. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 191-192. A The credited testimony of John McCaron, an official of the Union County Builders Association, and an official of one of its employer members. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uals in his behalf sought and were refused his reinstatement in the Union .5 Accordingly, because I reject any suggestion that Bulle's failure to obtain reinstate- ment is an issue in this case, I specifically note paragraphs 12 and 13 of the complaint: 12. On or about September 22, 1964, and on various other unknown dates, Jesse Bulle requested Respondent to refer him to work as a mason. 13. On or about September 22, 1964 and on various other unknown dates, Respondent failed and refused and continues to fail and refuse to refer Jesse Bulle to employment as a mason. It is my intention to limit the scope of my findings and conclusions to the conduct alleged and, within reasonable limits, to the period specified, namely on or about September 22, 1964. B. Bulle's visit to the union hall On September 10, 1964, Jesse Bulle appeared at the union hall between 7 and 7:15 a in. and went directly to Business Agent Sal Migliore's office; this being a railed off section of the union hall; the hall itself being located on the second floor at the head of a flight of stairs and directly off of an entrance hallway. Bulle first testified that he talked with Migliore "about work, about Whitey tak- ing my book, and he said it was impossible for him to give me anything to do because the local brought me up on charges and I have to go to Washington to see Secretary Murphy." Upon further questioning on cross-examination he repeated part of this conversation, quoting himself as asking Migliore, "How about a job?" They conversed, according to Bulle, from 7 to 8 a.m. and at no time did anyone interrupt them, thus confirming Bulle's statement that Migliore had no jobs to iassign that day.6 The colloquy relating to this incident as given at the hearing was as follows: Q. For the hour that you were there nobody came in except this one fellow who he told to go right outside; right? A. That's right. Q. Therefore he could not have sent anybody to any job, is that correct? A. He said he didn't have anything doing, so I had to take his word for it. He said he got men out of work. I have to take his word for it, your Honor. Q. In other words, there were no jobs tavailable? A. He said that. Q. He did not send any men out either, did he? A. To my knowledge he said "no work." Q. He did not send any men to jobs? A. He said he got men out of jobs. TRIAL EXAMINER: Mr. Bulle did he or did he not send any men out? The WITNESS: As far as I know. TRIAL EXAMINER: You were sitting there. Did you see him send anybody out? THE WITNESS: No. He didn't explain it to me right when I was talking to him. No he didn't send anybody out. Migliore was not questioned concerning this September 10 incident by either Gen- eral Counsel who called him as a witness under Rule 43(b) 7 or by Respondent in the course of presenting its case in defense. Upon the foregoing contradictory testimony of Jesse Bulle I can make no find- ing, either directly or by inference, that on that day, September 10, he asked for and was refused employment. On Friday, September 11, late in the morning, Migliore departed on union busi- ness for Las Vegas, Nevada, and did not return until late on September 21. Before leaving on this morning he was at the hall, and while he was there Bulle appeared and asked him for work. Bulle quoted Migliore as replying, "No work." 6 For example , a welfare investigator for the city of Elizabeth, Mable Holland , testified at some length concerning Bulle 's efforts, and hers to secure his reinstatement to Local 18. I rejected the testimony when proffered for the reason that it was irrelevant . I reaffirm my ruling at this time. 6 It is not disputed that the daily assignments are made shortly after 7 a in and well before 8 a in. 4 Rules of Civil Procedure for the United States District Courts, Title 28, United States Code LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 317 However the answers to subsequent questions by counsel for the General Counsel relating to events on the morning of September 11 prior to ,Migliore's departure put this whole event in doubt, also. Thus: Q. Did you see Mr. Migliore? A Yes. Thursday and Friday. Q. No, on Friday, the 11th, after 10:30? A. No, I didn't see him; I left at 9 o'clock. As to whether any cement masons were assigned on that day Bulle could' only testify that certain men, Guy Wallace, James Oliphant, and some finishers were present; and, in an affidavit supplied to General Counsel prior to the hearing and made part of the hearing , Bulle stated, contrary to one version of his testimony, that he saw Migliore and asked him for a job. His statement continues: I was there about 10 minutes . When I went out there were about six or seven men outside. They were all cement masons . I do not remember the names of these men. I do not know what men if any were referred out that day as cement masons. No other testimony appears in the record concerning events of September 11. From the foregoing, however confusing or contradictory as it may be, no infer- ence can be drawn that anyone was assigned a job or indeed that jobs were avail- able. All that can be said of the evidence is that two versions of Bulle's testimony (including his statement ) would support a finding that he saw Migliore that morn- ing and asked him for work; but doubt is cast even on that finding by Bulle's third item of testimony on the same subject to the contrary. On the next workday, Monday, September 14, Migliore's duties were assumed by Thomas Clark, president of Respondent Union . Bulle was at the hall, as usual, by 7:15 a.m. and prior to Clark's arrival . When Clark came in he asked him, "How about work?" Clark replied, "No work, Jesse." Elsewhere in his testimony Bulle recounted this question to Clark, thus: "Any chance of getting a day's work?" To which Clark replied, "Bulle there's nothing doing. If there was I would give it to you." President Clark substituted for Migliore for the remainder of the week. .Each day Bulle would report and ask for work, each time to be told that no jobs were avail- able. Bulle could supply no information in his testimony as to referrals during Clark's tenure, the week of September 14. Bulle 's account of his relationship with Clark was as follows: Q. When you went out to talk to Tom Clark, tell us what took place? A. Not too much conversation; asked him about work. Q. What did you say to him? A. I asked Clark, "Any chance of getting a day's work?" Q. What did he say to you? A. He said, "Bulle, there is nothing doing. If there was I would give it to you." There's the gentleman sitting right there -(indicating Clark in the hear- ing room). Q. That is Mr. Clark right in the middle? A. I know him quite a few years. Q. You know if there had been work available and there was enough :for you he would have sent you out? A. I'd have to take his word; he's been honest as long as I know him.8 Clark credibly testified to having made one referral that week-to Guy Wallace but could not recall the day. Wallace refused the assignment suggesting that Clark give it to Edward Bi lle, Jesse's son. Clark-complied with Wallace's request. According to Clark, whom I credit, Jesse -Bulle had not yet appeared at the union ball. Neither Bulle nor any other witness contradicted this statement. • It would appear from the foregoing analysis of Bulle's testimony that during the period September '14 through 18 no finding can be made that Clark had jobs to 8 At this point in the hearing it is significant to note 'that counsel for the General Counsel, objecting to 'a line of questions directed to Clark's efforts to locate ,available jobs, by telephone, stated: 1 Mr. Bulle asked Mr. Clark for work. That has been cross-examined in very great detail by Mr. Craver. Now he is trying to point out some questions'here that Mr. Clark was apparently calling for work. What has that got to do with the examina- tion' I don't know We are not alleging that Mr. Clark did discriminate. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he could have assigned Bulle or anyone else, excepting only the assignment to Bulle's son which, as we have noted, occurred before Bulle appeared at the union hall. Migliore returned to the area on Monday, September 21, but not in time to per- form his duties at the union hall. When the men first appeared at the hall that morning no one was there to handle matters so someone immediately went to a nearby construction project where President Clark was then employed and brought him back to the hall to handle the referrals until Migliore appeared.9 Jesse Bulle, who had arrived at 7 am. described Clark's late arrival but did not testify to any conversation with Clark or to any late referrals that he may have made on that day. On the following morning Tuesday, September 22, Migliore was back at the hall. Bulle appeared there but, contrary to his practice during the previous week (supra), "didn't ask them anything." He stayed downstairs. Indeed Bulle testified: "When Mr. Migliore came back Tuesday I never saw him no more. Only when he passed with a car or something; that's the only time I saw him." But while Bulle, by his own admission, failed to present himself on September 22 10 employees James Oli- phant, Raymond Powell, Guy Wallace, and John Holner were assigned to the Johan- sen project by Migliore. Be this as it may, however, and although both Powell and Oliphant testified to having seen Bulle either upstairs or on the stairs at the union hall, contrary to Bulle's testimony that he did not go upstairs, I am not disposed to infer from this that Bulle on that occasion requested and was refused a job, or that Migliore knew he was on the premises looking for a job and deliberately withheld his assignment. We come now to the following Monday, September 25, one of the days on which Bulle has four times denied having seen Business Agent Migliore (supra). Raymond Powell testified that he reported to the hall in his usual fashion, going to Migliore to see if a job was available. Powell's account of the incident follows: A. I was in the hall and Mr. Migliore called me into the office because he had received a phone call, I guess, because I was outside and he asks me who was outside. So I told him Guy Wallace and Eddie Bulle, and he gave me a referral slip and told me to take Guy Wallace and Eddie Bulle with me to the Murray Hill job and-, Q. Continue., A. -but Guy Wallace didn't want to go, so I went back upstairs-while I was asking Guy, "do you want to go," Jesse Bulle was downstairs. So he went upstairs so I had to go back upstairs to tell Mr. Migliore that Guy did not want to go, and I seen Jesse coming out of the office and he looked at me in the eye and I caught his eye and he said,"after campaigning for a man I can't get a day's work out of him." "That's all he said, and I went in the office and said that Guy did not want to go. He said, "who else is outside?" I said Johnny Holner," and he said "take Johnny Holner" and the three of us went. From the foregoing it would appear that when Migliore asked who else was outside and was told "Holner" that Bulle had already been seen coming out of Migliore's 9 The mutually corroborating testimony of Edward Bulls and Raymond Powell. w Bulls also testified to this reluctance as follows: Q. On September 22, Tuesday, you reported to the union hall but you did not talk to Sal Migliore? A. The door was closed. Q. The door was closed so you did not go inside? A. No. Q. From that day on you said "I never came back anymore." A. I never came back and asked for a job. I was downstairs, but I never asked Sal Migliore for a Job. And again: Q. I am asking you why-on your direct examination did you say that after Mon- day or Tuesday you did not come back anymore and on Tuesday you did not even go up there, you were downstairs? A. That's right. I was there the Monday that Sal came up there. He was sup- posed to come; he came Tuesday . I came Tuesday, Wednesday, Thursday and Friday, and the day I passed by some boys were there. I never went upstairs at all. (Em- phasis supplied.) LOCAL 18, BRICKLAYERS , MASONS AND PLASTERERS 319 office by Powell. Powell, seeking to explain this later in his testimony, however, only adds confusion, thus: Q. When you went upstairs you saw Jesse Bulle coming out of Sal's office? A. Right. Q. And then Sal asked you who was outside available for work? A. Not that time. This is my second trip. Q. When you told him Wallace did not want to go to work, he then asked you who else was outside? A. Yes. Q. And you told him Johnny Holner, right? A. Yes. Q. And he said, "take Johnny Holner," is that correct? A. Yes. Q. Sal did not know-you had not told Sal while Bulle was in the office that Wallace did not go to work, did you? A. No. Q. It was after Bulle left? A. Jesse Bulle and I were not in the office together. Q. It was after Bulle left that you told Sal that Wallace did not want to work? A. Yes. Quite apart from Powell's contribution to the confusion in the record his reason for not telling Migliore that Bulle was outside is significant. Thus when asked why he did not tell Migliore of this fact he stated "Because Jesse Bulle did not have a book." 11 Migliore's testimony confirms Bulle to the effect that he did not appear at the hall on September 23 or 24, and Powell's testimony that Bulle came into Migli- ore's office on the morning of September 25. Specifically, Migliore, whom I credit, testified that Bulle came in to ask for his union card. Then, by way of explaining the manner in which the four men were assigned on that day when Bulle (assuming he requested a job-which has not been established) was not, Migliore stated: Q. Mr. Migliore, my next question to you is, there was some testimony by one of the members of the local, whose name I do not recall for the moment, but to the effect, I believe it was Mr. Powell, that one of the men you had assigned out to work on the 25th was unable or did not want to go to that par- ticular job, and you had asked, according to his testimony, you had asked him who else was outside and he had given you the name of another member and you had told him, well, send him along on that job, too. My question to you is, were these men on the out-of-work list prior to Mr. Bulle coming up on the 25th? A. These men were on the out-of-work list, on the end, and I registered them on the 23rd and I sent them out on the 25th. ' Powell, Oliphant and Holner. Q. Did they report in on the 24th also? A. Yes, they did. They reported on the 25th, the four of them; Ray Powell, Oliphant, Wallace and Holner Now when I sent Ray Powell downstairs to ask if any of the cement masons down there were registered in there when he came in on the 25th,12 he came up and told me that Guy Wallace didn't want to go to Summit. So naturally, he didn't go to work and I sent Holner in his place, and Wallace didn't go to work again until the 28th, which was three days later. C. Evaluation of credibility Clearly the facts supporting the allegations of the complaint must rest either upon Bulle's testimony, or Powell's, or both. The foregoing references to Bulle's testimony and the quotations which I deem necessary to adequately represent the condition of the record, present a picture of contradiction, confusion, and irrelevance to such a degree that the very nature of the n There is no contention made that Powell was in any sense an agent of Respondent. 13 The transcript of record at page 221, lines 5 and 9 , erroneously state the date as the 23d. As indicated by the substance of the text which follows to the effect that the 28th "was three days later" I have corrected the transcript to reflect the correct date, the 25th. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding itself frequently stood in danger of being confused and misunderstood. Illustrative of Bulle's contradictions quite apart from the several evident above, was his testimony that he "signed the roster," and again that he asked to sign the roster on another occasion and was refused . On this very fact it was testified to by Edward Bulle, Guy Wallace, and Raymond Powell, all witnesses called by both the General Counsel and by Bulle himself as Charging Party, that there was no such thing as a roster. Similarly illustrative of Bulle's confusion , quite apart from instances evident in the quoted portions herein (supra), is Bulle's effort at one stage of the hearing to inject himself, by way of voicing objection to the course of the proceeding, although advised on several occasions to secure counsel to represent himself. Thus in object- ing to the admission of Respondent's job referral records into evidence he vigorously protested their admission because he did not know at the time that Respondent kept such records. Upon the transcript of the record itself, therefore, and quite apart from my obser- vation of Jesse Bulle as a confused and inarticulate witness , I reject his testimony in its entirety.13 As for Powell I am disposed to credit him. While there is inherent contradiction in his account of what happened upstairs and down at the union hall on Septem- ber 25 I am inclined to attribute this to the confusion that by this time had infected the proceeding itself. However vague he may have been, certain facts emerge when overlaid upon Migliore's account of the incident which I credit. D. Conclusions The basic problem presented by the record made in this case is to unravel the mass of threads which lead in two directions-one, to Bulle's loss of union mem- bership, the other to the alleged refusal by Respondent to refer him to an available job. This unraveling is complicated by Bulle's confused testimony which I am not disposed to rely upon for the reasons stated above. Quite apart from the inherent incredibility of this evidence is an apparent fixation on Bulle's part that retrieving his union book and membership was his first order of business. This, it seems, was the unspoken specter that dominated the whole pro- ceeding and never emerged . While I am inclined to believe that Bulle wanted first to have his "book," and then his job-in other words, in that order and on his terms, I -refrain from making such a finding: Conversely, moreover, I cannot make a finding that he was refused a job when one was available . Frankly, the facts do not add up to such a conclusion . It is suggested , of course, that upon the evidence presented I can infer animus against Bulle, and from that inference I can draw another one that he was thereby refused a referral . On the other hand, I could infer with equal validity and force that Bulle wanted the union book and a referral on the basis suggested above and on no other. Nor is it significant that other individuals may have been referred to jobs when Bulle was not. The simple fact is that it has not been established to my satisfaction that a job was ever available at a time when it could be also established that Bulle had asked for the job-not for a union book. The testimony describing events on September 25, including Powell's, is no more revealing. Here again possible inferences suggest themselves-all fraught with spec- ulations and unanswered questions. Was Bulle upstairs or down on that day, or, as he originally testified , was he there at all? Was he seen coming out of Migliore's office, or merely standing at the top of the stairway, outside the hall proper? And did Migliore assign the jobs.to the men before or aftei he knew Bulle was on the premises, if he knew? And finally, did Bulle ask for his job or his union book, or both, if in 'fact he did see Migliore that day? However much of such material exists for speculation I am not disposed to dignify it as a proper basis for a legal inference that on September 25 Bulle asked for a job when a job was available and was refused it by Migliore as Respondent's agent. A thorough reading of all the testimony here reveals no single fact that would categorically establish the allegations of the complaint. Notwithstanding the pecu- liar circumstances which appear to permeate the relationship between Bulle and Respondent I 'cannot substitute my suspicions , however lively, for legal evidence that 13 Cf. Sportswear Industries, Inc., 147 NLRB 755. CARGO HANDLERS, INC. 321 Respondent unlawfully refused to refer Jesse Bulle to employment upon request.14 I accordingly shall recommend that the complaint in this matter be dismissed in its entirety. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety. 14 Cf. Southwire Company, 152 NLRB 1594, footnote 1. A welfare investigator called by Charging Party testified to conversations had with Bulle and also with Migliore. Bulle's account of his efforts to get work at uncertain dates, cannot be accepted in such form as a substitute for Bulle 's own testimony and I accordingly reject it . The investigator also reported conversations with Migliore wherein she quotes him as saying, in February or March 1965 (after the first hearing in this matter), that he would not let Bulle work without a card. I cannot accept such state- ments as evidence that Migliore refused 6 months earlier to refer Bulle, upon his request, to an available job. This matter is clearly outside the scope of the pleadings. Cargo Handlers, Inc. and Ronald Sampson International Longshoremen's Association, AFL-CIO, and its Local 1911 and Ronald Sampson. Cases 5-CA-3134 and 5-CB- 633. June 14, 1966 DECISION AND ORDER On December 21, 1965, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the above- named Respondents engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Unions, Inter- national Longshoremen's Association, AFL-CIO, hereinafter some- times referred to as the International, and its Local 1911, hereinafter sometimes referred to as Local 1911, filed joint exceptions and sepa- rate supporting briefs. 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 Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, except as modified herein. The Trial Examiner found that both the International and Local 1911 violated Section 8 (b) (1) (A) and (2) of the Act by maintaining an employment referral arrangement with the Respondent Employer which discriminated against nonunion applicants and Negroes. Both 159 NLRB No. 17. 243-084-67-vol. 159-22