Local 1341, Carpenters

344 DECISIONS OP NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the Communications Workers of America, AFL-CIO, or in any other labor organization, by discharging any of our employees or in any like manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. WE WLL NOT interfere with, restrain, or coerce our employees in the exer- cise of their right to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection by interrogating or threaten- ing our employees, or by promise of benefit. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the Communications Workers of America, AFL-CIO, or of any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended AMERICAN CABLE SYSTEMS, INC., Employer. 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. If employees have any questions concerning this notice or compliance witn its provisions, they may communicate directly with the Board's Regional Office, 764 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele- phone 534-3161. Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the Lower Ohio Valley District Coun- cil of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America , AFL-CIO ( Leonard R. Lanham and Larry E. Lanham, a partnership , d/b/a Lanham Brothers, General Contractors) and Marshall H. Edmonson. Case 25-CB-630. October 24,1966 DECISION AND ORDER On July 1, 1966, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent 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 Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting 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-11C-mher panel [Members Fanning, Brown, and Jenkins]. 161 NLRB No. 32. LOCAL 1341, CARPENTERS 345 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 and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner 's Recommended Order.] TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charge filed on December 16, 1965, and Janu- ary 24, 1966, respectively, by Marshall H. Edmonson, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25 (Indi- anapolis, Indiana), issued his complaint dated January 28, 1966, against Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and The Lower Ohio Valley District Council of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein sometimes called respectively Respondent Local and Respondent District). In substance the complaint alleges that the Respondents caused ar attempted to cause Leonard R. Lanham and Larry E. Lanham, a partnership, d/b/a Lanham Brothers, General Contractors (herein sometimes called the Employer), to discharge Marshall H. Edmonson because of his lack of membership in Respondent Local and Respond- ent District Council in violation of Section 8(b)(1)(A) and (2) of the Act. The Respondent's duly filed answer admits many of the facts alleged in the complaint, denies other facts, and denies the commission of unfair labor practices. Pursuant to appropriate notice a hearing was held before Trial Examiner Jerry B. Stone at Owensboro, Kentucky, on April 6 and 7, 1966. All parties were repre- sented at and participated in the hearing and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs.' Briefs were filed by the General Counsel and the Respondents and have been considered. The issues in this case are relatively simple The General Counsel contends that the Unions attempted to cause and caused the Employer to discharge Edmonson because of his lack of membership in the Unions and not pursuant to a legitimate union-security enforcement demand. The Respondents concede in effect that they attempted to cause the Employer to discharge Edmonson but contend that they attempted to cause the Employer to discharge Edmonson because the Employer had not abided by the existing collective-bargaining contract hiring procedures whereby the Employer was required to secure its employees through the Unions' referral system. Upon the entire record in this case and from my observation of the witnesses, the following findings of facts, conclusions of law, and recommendations are made.2 1. THE BUSINESS OF THE EMPLOYER Leonard R. Lanham and Larry E. Lanham are, and have been at all times material herein, partners doing business under the trade name and style of Lan- ham Brothers, General Contractors, and are herein referred to sometimes as the Employer. The aforesaid Employer has at all times material herein, maintained its principal office and place of business at 2119 West Third Street, Owensboro, Ken- tucky, and is, and has been at all times material herein, engaged in the business of i The Charging Party was present at the hearing but did not make an appearance on the record . His interests were represented by the General Counsel. 2 The findings of fact as to the business of the Employer , as to the labor organizations involved, as to the agency status of certain individuals unless otherwise indicated, are based upon the pleadings and admissions therein. All credibility resolutions are based In whole or part upon a composite evaluation of witness demeanor and the logical consistency of all the facts. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general, commercial, residential, and remodeling contracting. The aforesaid Employer, during a representative 12-month period ending on January 28, 1966, in the course and conduct of its business operations, purchased, transferred, and delivered to its Owensboro, Kentucky, facility, goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Kentucky. The aforesaid Employer, during the same represent- ative 12-month period of time, in the course and conduct of its business operations, performed services valued in excess of $50,000 in the States other than the State of Kentucky wherein the Employer is located. As conceded by the Respondents, and upon a consideration of the foregoing, it is concluded and found that the Employer is now, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, and The Lower Ohio Valley District Council of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. It is so con- cluded and found. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary issues-agency status At all times material herein, the following named person occupied the position set opposite his name, and has been, and is now an agent of Respondent Local (Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL- CIO) and Respondent District Council (The Lower Ohio Valley District Council of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America, AFL-CIO), acting on behalf of such Respondents within the meaning of Section 2(13) of the Act: William Moseley-business agent. B. The allegations The complaint alleges that "on or about November 22, 1965, Respondent Local and Respondent District Council caused or attempted to cause the Employer to discharge Marshall H. Edmonson because of his lack of membership in Respond- ent Local and Respondent District Council." The complaint also alleges that "Since on or about November 22, 1965, Respondent Local and Respondent District Coun- cil are causing and have continued to cause, the Employer to refuse to reinstate Marshall H. Edmonson to his former or substantially equivalent position or employment." The Respondents concede that they have attempted to cause the Employer to live up to his contract and that this in effect constituted an attempt to cause the Employer to discharge Edmonson, but contend that the reason they have done so is because the Employer had not abided by contractual hiring arrangements in hiring Edmonson. C. The facts 3 1. The factual findings A determination of the facts in this case requires a resolution of disputed ver- sions as to some of the incidents. As can be expected there are certain facts which are virtually undisputed. Argument can be made that an abstract consideration of clearly established facts coupled with the testimony of either the General Coun- sel's or Respondents' witnesses. and without demeanor evaluation, would reveal a consistency of either version. Virtually all of the witnesses in this proceeding were confused as to the timing of certain events. A consideration of the witnesses' testi- mony and their interests however, and their demeanor convincingly reveals, in my opinion, a proper basis for fixing the timing of events. A consideration of the witnesses' demeanor as they testified and the timing of the events when considered 3 The facts are based upon a composite of the credited aspects of the testimony of all the witnesses including Leonard Lanham, Larry Lanham, Marshall H. Edmonson, Otis Paul Sapp, William Glenn, and William C Moseley. The aspects of the testimony of the foregoing witnesses disciedited is set out at appropriate places hereinafter. LOCAL 1341, CARPENTERS 347 with the facts clearly established convince me of the probabilities of the accuracy of various witnesses as to the statements actually made. It suffices to say that upon consideration of Larry Lanham's testimony (that when Moseley complained to him about Edmonson that he sent Edmonson to the union hail), upon considera- tion of Edmonson's testimony (that Larry Lanham told him to go and that he thereupon went to the union hall), and upon consideration of the date on Edmon- son's union application, which reveals a date of November 10, 1965, I am con- vinced of the findings as to the timing of events and as to the statements made by various individuals as herein set out. Were the credibility resolutions to be based solely on demeanor, it suffices to say that Leonard Lanham and Larry Lanham, did not present themselves as frank, forthright, truthful, or objective witnesses, that Edmonson appeared basically as an honest witness but prone to give conclusions and his own interpretation of what he thought was meant, and that Moseley appeared extremely honest and forthright in his testimony. The facts relating to the issues are relatively simple and are herein briefly set out. 2. The contractual and hiring arrangements The Employer operated in past years, prior to several years ago, without con- tractual agreement with the Unions. For the past several years, however, the Employer has been under contractual agreement with the Respondents. The contract in existence between the parties pertinent to the issues herein was executed on Febru- ary 10, 1964, effective from that date to December 31, 1966. The aforesaid contract had the following provisions relating to the hiring pro- cedures agreed to by the Employer and the Unions: ARTICLE VI Hiring Procedures Lower Ohio Valley District Council of Carpenters, and Local Union No. 1341, United Brotherhood of Carpenters and Joiners of America, agree to furnish competent journeymen selected for reference to jobs upon a non- discriminatory basis, such furnishings to be made upon request of the employer and with the Employer retaining the right to reject or accept the applicants for employment. 1. The District Council shall establish and maintain open and non-discrimi- natory lists for the use of individuals desiring employment. 2. All individuals desiring employment shall register at the District Council Office by appearing personally and shall indicate name, address, telephone number and Social Security Account Number, qualifications and type of work desired. 3. Employers shall first call upon the District Council and submit job orders. District Council then calls the Local Union having area jurisdiction of work indicating the number of individuals desired, qualifications of such individuals, and location of the job, and the reporting date and time. If an Employer request individuals by name pursuant to Section 5, hereof, he shall advise the District Council of the location of the last job worked and the ter- mination date thereof, with respect to such individuals. Job order shall be submitted not less than forty-eight (48) hours (Saturdays and Sundays and recognized holidays excluded) prior to the hour when the employer wishes them to report for work. 4. If the District Council or Local is unable to refer the number of indi- viduals desired within forty-eight (48) hours after the submission of such job order, the employer may procure additional employees up to the desired num- ber from any other source, provided, however, that the employer shall imme- diately notify the District Council of the names of the employees hired and the job location. 5. Individuals available and qualified to fill the job order shall be referred in the following order: (a) First, individuals in the order of their registration who within two (2) years immediately preceding the job order performed work of the type cov- ered by the collective bargaining agreement in the geographical area of the District Council. (b) Next, all other individuals, in the order of their registration. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Provided , an employer may request by name individuals formerly employed on work performed in the geographical area of the District Coun- cil who within two (2 ) years immediately preceding the job order performed work of the type covered by the collective bargaining agreement in the geo- graphical area of the District Council. 6. Available for employment means that the individual shall be currently registered and shall be either present at the Local Union Office or present at a location where he can be reached by telephone. 7. Dispatching hours shall be from 7:30 A. M. to 10:00 A . M., daily, (Sat- urdays, Sundays , and recognized holidays excluded). 8. Each individual, upon being referred, shall receive a referral slip to be transmitted to the employer representative at the job site. 9. To insure the maintenance of the registration list, all individuals should re-register as soon as possible after the termination of their current employment. 10. Individuals shall be removed from the registration list for the following reasons. (a) Dispatched to a job, except that any individual who is rejected by the employer, or fails to complete two (2 ) full days work shall retain his position on said list. (b) Failing to accept suitable employment two times during the current week at the time of dispatch . Employment which cannot be reached by an individual because of lack of transportation shall not be deemed suitable to him. (c) Any individual dispatched to a job who fails to report for work. Individuals removed from the registration list must register promptly in home local in order to be considered available for employment. 11. Any individual who believes he has been discriminated against with respect to the operation of these procedures shall be entitled to appeal there- from within twenty-four (24) hours of the alleged discrimination by filing in writing with an impartial arbitrator, selected by the Local Union and the Employer. 12. The Impartial Umpire shall consider the appeal and render a decision which shall be final. He is authorized to issue procedural rules for the handling of appeals, but he is not authorized to modify any provisions of these procedures. 13. A copy of procedures shall be posted at the Local Union Office and at each job site covered by the collective bargaining agreement. The foregoing is applicable in all jurisdictions subject to the Taft-Hartley Act. There is no issue or contention that the Unions' referral system or that the con- tract is illegal or discriminatory within the meaning of the Act. 3. Hiring in 1965 4 Leonard Lanham testified in a generalized and unconvincing manner about his method of hiring . Leonard Lanham testified in effect that he was not familiar with the hiring provisions of his contract, that he did not get men by reference from the Unions, and yet that he called about hiring Edmonson ( in November 1965) because he was nonunion. When cross-examined or otherwise questioned as to specifics, Leonard Lanham recalled calling about the hiring of Richardson around the summer of 1965 and the calling for certain carpenters after the November 22, 1965, showdown with Moseley. 4 Based upon a composite of the credited testimony of Leonard Lanham, Larry Lanham, William Moseley, William Glenn , and Otis Sapp . The basic dispute as to facts is whether Leonard Lanham called before hiring Ednonson and asked Moseley whether he could hire Edmonson, and whether Moseley on November 22, 1965, complained that Edmonson was not a union member. I have considered all of the testimony and facts , arguments as to consistencies and inconsistencies , and the demeanor of the witnesses. Neither Leonard Lanham nor Larry Lanham impressed me as being frank , forthright, truthful , or reliable witnesses as to the critical facts. I am convinced that Leonard Lanham , contrary to his testimony, knew of the hiring provisions in the contract and knew he should abide by them but did not when he hired Edmonson . I am convinced that his testimony was twisted by him so as to justify his actions either on a basis that he had complied literally with the contract or that there was no practice . I am convinced that he and Larry Lanham may have believed that the reasons for Moseley's demand were as they testified but not that they knew that Moseley had so said. I discredit their testimony inconsistent with the facts as found. LOCAL 1341, CARPENTERS 349 As a matter of specific facts, the facts reveal that in 1965 prior to the hiring of Edmonson that two employees were hired. These two employees were Richardson and Glenn. Glenn was an apprentice carpenter, and Richardson was a journeyman carpenter. The contract between the Employer and Respondents does not require clearance or referral of apprentices Glenn was hired around April 1965 and was not cleared or referred by the Unions Moseley, Respondents' representative, told Glenn several days later that he should have had the Unions notified. There is no evidence that Moseley complained to the Employer about the hiring of Glenn. Nor was there any contractual basis for Moseley to make such complaint. Glenn's hiring had been consistent with the contractural hiring rights of the Employer. Richardson, the journeyman carpenter, was hired around the summer of 1965. In Richardson's case, Leonard Lanham telephoned Moseley, told him that he knew he was out of men, and told him that he (Lanham) wanted to hire Rich- ardson 5 Thus, under the contract, the Employer had the right to hire Richardson in the manner that he did. Although Leonard Lanham's generalized testimony was to the effect that he hired his own men, considering the answers he ultimately made when pressed for specifics, I find such testimony unreliable to reveal that Leonard Lanham deviated from his contractual arrangement to such an extent that Respondents' failure to protest constituted a wavier of contractual rights. Leonard Lanham's testimony does raise a factual suspicion that in fact the Respondents may not have argued about the hiring of men when in fact use of the referral system would have been only a formality. In short, however, the General Counsel has not established as a matter of probative evidence that the Employer deviated from his hiring practice in specific incidents known to the Respondents prior to the Edmonson incident. Thus the facts fail to establish any wavier of contractual rights by the Respondents.6 The next specific hirings revealed in 1965 were the hirings of Edmonson (Octo- ber 19, 1965) and Rightmeyer (around November 12, 1965). As to Edmonson the testimony is in dispute, but the facts as found later reveal that Respondent hired Edmonson without clearance in accordance with the contract or otherwise. In the case of Rightmeyer the facts are undisputed that the Employer hired Rightmeyer without clearance, referral, or any kind of notification (before or afterward) to the Respondents. After November 22, 1965, and Moseley's showdown with the Employer (con- cerning living up to the contract), the Employer's hirings were done in accordance with the contractual provisions. a. Edmonson's prior membership in Unions and prior employment and the September 1965 contract with the Unions Edmonson was a member of the Unions in 1961 but has not been a member of the Unions in recent years. Edmonson worked for employers not under contract with unions for the several years preceding September 1965.7 In September 1965, Edmonson decided that he might like to change employment and contacted Respondent Local about becom- ing a member in good standing. Edmonson was told of the fees and dues and that he would have to pay.8 Edmonson apparently feeling that his 1961 dues had not been beneficial, attempted to bargain unsuccessfully for an offset of new dues. 6 Leonard Lanham in his testimony ultimately testified that he telephoned Moseley about hiring Richardson but did not remember saying that he knew Moseley was out of men. I credit Moseley's testimony to the effect as revealed in the facts Moseley- s credited testimony also revealed in fact that he was out of men for referral purposes 6I have considered the fact that Moseley's remarks to Sapp as to Riglitmey er seems to reveal that Moseley was not concerned about formality as long as the employee in question would be entitled to the job if formality were observed . Absent a statement by Moseley to the Employer however this does not constitute a waiver of contract rights especially as to the hiring of an employee who would not be entitled to referral at the time 7 Edmonson had worked for the Employer herein for about 6 or S months on several occasions between 1955 and 1958. At that time the Employer herein was not in con- tractual arrangement with the Unions. 8 There is no evidence to reveal that Edmonson was not treated as any other person in similar circumstances. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Edmonson's hiring by the Employer On or about October 18, 1965, Edmonson spoke to the Lanham brothers about a job. Edmonson told the Lanham brothers that he was not a union member and expressed concern as to whether the Unions would allow him to work.9 On October 19, 1965, Edmonson was hired by the Employer. 4. Events of November 2 to 22, 1966 a. Timing of events Leonard Lanham, Larry Lanham, and Otis Sapp all impressed me as witnesses who were not sure of the timing of the various events testified to. William Moseley impressed me as a witness who could reliably relate the timing of one incident to another but who was basing his timing of the events on the assumption that Leonard Lanham called him on the day prior to the time that Edmonson filled out his union membership application card. Considering all of the evidence, it is clear that Edmonson was hired on Octo- ber 19, 1965. I am also convinced that there is no reason to find that the Unions' records reflecting that Edmonson filled out his application for union membership on November 10, 1965, did not accurately reveal the date that he went to the union hall and filled out such application. Considering Larry Lanham's testimony to the effect that on the date that Moseley initially complained about Edmonson's employment that he told Edmonson to go to the Unions, and Edmonson's testimony that he did so on that date, I am convinced that Moseley initially complained to the Lanhams about Edmonson's employment on November 10, 1965. Considering the fact that Moseley placed the time of his initial complaint to the Lanhams as being about 5 days after receiving a complaint from someone on the job about Edmonson, I am convinced that the individual who telephoned Moseley about Edmonson's employment called approximately on November 5, 1965. Moseley placed the timing of the telephone call from the individual complaining about Edmonson's employment as being about 3 days after Edmonson was employed. I am convinced that Moseley timed this event on the erroneous assumption that Edmonson applied for union membership on the day after Leonard Lanham tele- phoned him about someone wanting to get in the Unions. Accordingly, I am con- vinced that Moseley was timing this event with reference to Leonard Lanham's telephone call and thus that Leonard Lanham's telephone call to Moseley occurred approximately on November 2, 1965. Considering the foregoing and the total con- sistency of the evidence, I am convinced that Moseley first understood that Edmonson was the person that Leonard Lanham was referring to when he visited the job on November 5, 1965. As indicated elsewhere, I do not believe Leonard Lanham's testimony to the effect that he telephoned Moseley about Edmonson before Edmonson was employed (on October 18, 1965). b. Leonard Lanham's telephone call to Moseley November 2, 1965 Around November 2, 1965, Leonard Lanham called the Unions' business agent, Moseley, and told him that he had a man that he wanted to send to him to e Edmonson testified to the effect that Leonard Lanham told him that it would be all right, that he (Leonard Lanham) would call the business agent. From the evidence as a' whole, I do not believe Edmonson's testimony in this respect and do not credit it. Edmon- son also testified to the effect that he did not know about union referral practice. Edmon- son's concern and 1961 experience as a union member and with the hiring procedures reveals that he did know that union referral was necessary. Neither Leonard Lanham's nor Edmonson's testimony as to the hiring incident had the ring of truth in its entirety. Considering the total consistency of all the evidence, I am convinced that Leonard Lanham and Edmonson discussed Edmonson's hiring with full understanding that he was being hired without compliance with the Unions' referral procedures. Around October 19 and until the first part of November 1965, the facts are undisputed that the Unions did not have men to fill referral jobs. If Leonard Lanham had called on October 18 or 19, 1965, and asked for permission to hire Edmonson, there appears no reason why such permission would not have been granted and that the Employer would have had Edmonson to (within 7 or 8 days) contact the Unions for membership. Since I am persuaded from Leonard Lan- ham's testimony that he was covering up the details of what occurred and the fact that Edmonson did not go until November 10, 1965, to the Unions and after Moseley had com- plained to Larry Lanham, I am thoroughly convinced that the facts are as set out. , LOCAL 1341 , CARPENTERS 351 talk about getting into the Unions.1° Moseley told Lanham to send the man down to him. c. Complaint to Moseley about Edmonson's employment Around November 5, 1965, an employee telephoned Business Agent Moseley and asked if he knew that there was a person working on the "Gatton Motors Job" for the Employer who was not a union member. Moseley told the employee that he did not know this." The employee told Moseley that there was such a person. Moseley went out to the "Gatton Motors Job" and saw that Edmonson was on the job. Moseley thereupon returned to his office without contacting the Employer and contacted the District Council as to what he should do. d. Moseley's complaint to the Employer about Edmonson 's employment On November 10, 1965, Moseley heard from the District Council as to the action he was to undertake as regards to Edmonson's presence on the job.12 Business Agent Moseley went to the job and told Larry Lanham about Edmonson being employed and that he expected the Employer to go along with the contract, that he should get Edmonson the right way or do something with him. Larry Lanham credibly testified to the effect that after receiving Moseley's complaint that he sent Edmonson to the union hall. Edmonson credibly testified to the effect that Larry Lanham came out on the job and told him that Leonard "Leonard Lanham testified unconvincingly that he called Moseley before he hired Edmonson, that he mentioned Edmonson by name, that Moseley told him that it was all right and to send Edmonson down. Leonard Lanham , who handled office affairs and union affairs for the partnership, testified as if he did not know the details of his contractual hiring arrangements. I am convinced that Leonard Lanham was familiar with the con- tract's hiring provisions and that his testimony was an attempt to hide the fact that he had knowingly hired Edmonson in violation of the hiring provisions . Considering all the facts, I am convinced that Leonard Lanham, after hearing Edmonson recite his Septem- ber 1965 talks with Moseley , was concerned that Edmonson would not be referred and decided to hire him anyway and to attempt later to "slip" him into the Unions I found Leonard Lanham to be an evasive witness attempting to avoid telling the facts as he knew them. Considering the total consistency of the facts and Leonard Lanham 's demeanor as a witness , I am convinced that he knowingly hired Edmonson on October 19, 1965, in violation of his contractual arrangement with the Unions, and that only when apprehensive of what would happen (when the Unions discovered how Edmonson was hired and that an employee was working after 8 days of employment without becoming a union member as required by the contract) did Leonard Lanham attempt to call the Unions' agent and solve his problem by trying to slip Edmonson into the Unions. I am convinced that Leonard Lanham twisted the truth at that time to indicate that he had someone who wanted to get in the Unions As indicated, I discredit Leonard Lanham's version and credit Moseley's testimony to the effect as indicated in the facts found. 11 Sapp, a longtime employee of the Employer, had worked for the Employer during the years that the Employer operated without a union contract. Edmonson had worked at sometime in the past for the Employer when Sapp was also working Sapp 's testimony on cross-examination was somewhat evasive as to whether he was a union steward or not, or was the one who had called the Unions complaining about Edmonson. Sapp's testimony appears however to indicate that he was the one who called about Edmonson and was the Unions' steward It is not clear why Sapp would be evasive about this unless he did not want Edmonson or the Employer to know that he had called the Unions' about Edmonson Since the number of the Employer 's employees is small, and since Edmonson worked on the Gatton Motors Job on October 20, 1965, and thereafter, it would appear that Sapp would have known that Edmonson had been employed for a sufficient length of time to require union membership If Sapp were the Unions' stewaid, it would appear that he would have at an earlier date contacted the Unions about Edmonson unless he was trying to help Edmonson or the Employer. Since he did not do so at the proper time but appears to have done so later, it appears that similar to Leonard Lanham that lie became appreuhensive about Edmonson's employment being discovered and proceeded to call the Unions about Edmonson. is Moseley placed this as occurring about 5 days after his telephone call from the em- ployee complaining about Edmonson's presence on the job. As the facts reveal that upon receipt of instructions that Moseley went and complained to Lairy Lanham, that Larry Lanham thereupon went and told Edmonson to go to the union hall, and that Edmonson went to the union hall on November 10, 1965, 1 fix the time as indicated. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lanham had called the business agent and made an appointment for him (Edmon- son) to see the business agent at that time. Edmonson thereupon went to the union hall. e. Edmonson's application for union membership On November 10, 1965, Edmonson went to the union hall to secure a job per- mit and to apply for union membership. Edmonson completed a union application form.13 Ednionson was unable to see Moseley since he was not there. The sec- retary of the Unions told Edmonson that she could take his application for union membership, that it would be necessary to buy a working permit until he became a member, that she could not issue a working permit or take the money, but that Moseley would be out on the job to issue a permit and collect the money for the permit, and that it would be necessary to have two union members to vouch for him, and that he could just send those members (vouching for him) by the hall. f. Sapp's inquiry about Edmonson On November 12, 1965, Otis Sapp went by the union hall and asked Moseley what was the story on Edmonson. Moseley told Sapp that the story was that the Unions were not going to take Edmonson in as a member. Mrs. Fitzgerald, the sec- retary, told Sapp she had contacted Edmonson in the past 2 or 3 times and that he had refused to accept work, that he was nonunion from lack of paying dues and lack of being in good standing. Moseley told Sapp that the Unions were going to stop the Employer from violating the hiring procedures. Moseley asked also about the number of men employed and if any new work was coming up. Sapp, who had learned that Rightmeyer was coming back to work and believed Right- meyer a member of the Local Union, told Moseley about Rightmeyer's coming back to work. Moseley told Sapp that this was all right, that Rightmeyer had worked there previously and was a union member.14 Sapp returned to work and told Edmonson what Moseley had said.15 g. Edmonson's November 12, 1965, telephone call to Moseley On November 12, 1965, Edmonson telephoned Moseley and told Moseley that Mrs. Fitzgerald had said Moseley would see him on the job, Moseley had not been on the job, and he had thought that he (Edmonson) should contact Moseley to see what he needed to do to get in good standing. Moseley asked Edmonson where he was. Edmonson told Moseley that he was on the "Gatton Motors Job." Moseley asked if Edmonson were working and Edmonson replied that he was. Moseley told Edmonson that the Employer had to quit hiring his own men. Edmonson told Moseley that he was willing to join the Unions and pay whatever initiation fees and permit money was necessary. Edmonson testified that Moseley said "what 11 Edmonson's testimony was to the effect that 4 to 6 days after being hired that lie went to the union hall. Sapp testified that 6 or 8 days after Edmonson started working that Edmonson asked him to vouch for him with the Unions, that he did so, and Alas told that the Unions would not take Edmonson in as a member Sapp's testimony as to the tim- ing of the event is unreliable and discredited. Sapp's testimony reveals that he based his speculation on the time on the assumption that Edmonson was attempting to comply with the 8-day contractual membership requirement From total consistency of all evidence, I am convinced that Edmonson knew that he was supposed to have become a union member after 7 days and was attempting to conform his testimony accordingly. Although Edmon- son in general appeared to be a truthful witness, I was and am convinced that he was not forthright in his testimony in this respect The Unions' business records reveal that Edmonson's union application card was dated on November 10, 1965 I find no reason to believe that this card was not dated in regular and correct fashion I find the facts so to reveal that Edmonson went to the Unions' office on November 10, 1965. 14 In this regard it is noted that it is General Counsel's responsibility to prove his case. There is no precise evidence to reveal when Rightmeyer had worked for the Employer or to reveal whether or not Moseley referred to Rightmeyer's membership in a foreign local or in the local involved herein. However, it is hard to believe that since Rightmeyer was not in the Local Union involved herein that Moseley did not so know. Accordingly, I find that the reference by Moseley was to Rightmeyer's membership in a foreign local. 15 Although some of the questions directed to Sapp were designed to elicit that he was a union steward on the job, his testimony thereto was somewhat evasive but does indicate that he was the Unions' steward. LOCAL 1341, CARPENTERS 353 if the Council doesn't want you" and that he told Moseley that this was between Moseley and Leonard Lanham.16 5. The events of November 22, 1965 a. Moseley's complaint On November 22, 1965, the Unions' business agent. Moseley , went to the Employer's office. At the office Moseley and the two Lanhams discussed a juris- dictional problem 17 and the hiring of Edmonson and a man named Rightmeyer without getting them through the hiring hall. Moseley asked the Lanhams what they were trying to do to him by getting men without using the hiring referral system. Larry Lanham thereupon asked Moseley what he wanted them to do.18 Moseley told the Lanhams that when they needed people "why didn't they call him," that the Employer was working a man (Rightmeyer ) who came through this jurisdiction,19 that if they had to work him that they could come through Moseley and get a referral , that he wanted them to live up to their contract, to get employees "right," to get employees through the Unions' referral system Moseley told the Lanhams that if they did not live up to their contract that he would have to picket the job.20 b. Edmonson's conversation with Leonard Latham and Moseley Around 2 p.m. on November 22, 1965, Leonard Lanham and Edmonson had a conversation 21 Leonard Lanham told Edmonson that Moseley had been there, that 10 Considering the total context of what was said, I am convinced that Moseley referred to "what if the council doesn't want you on the job " 17 While Moseley was in the office there was a scuffle between Moseley and the Lanhams. As I see that incident although the blame would appear to be on the Lanhanis, the scuffle was merely the result of hot tempers and misunderstanding and neither adds nor detracts from the finding herein. 18 Although the testimony (Leonard Lanham and Larry Lanham's) is confused, it appears that Rightmeyer had told Leonard Lanham that he had been told to leave the job by Moseley and Moseley had told him he would be fined if he did not, and Moseley had told Larry Lanham that the reason he was out there was because Rightmeyer had been by his union office that morning The evidence appears to reveal that Rightmever had left the job after Moseley spoke to him and Rightmeyer was at the office and told Leonard Lanham of Moseley's remarks to him. This suggests that Moseley, as part of his attempt to cause the Employer to use the referral system, had attempted to get ltightineyer, as a union man, to withdraw his services to the Employer, and that Moseley's statements to the Lanhams were straight to the point to use the coutiactual hiring pronsions of be picketed. 1U Apparently referring to the fact that Rightmeyer was not a member of the Unions but was a member of another union working in the jurisdiction of the Local Union. 201 discredit Leonard and Larry Lanhams' testimony to the effect that Moseley's com- plaint was because Rightmeyer did not have a permit from the Unions, or that Edmonson was not a union member. I discredit Leonard and Larry Lauhams' testimony to the effect that Moseley said that Edmonson could come back to work when lie got in the local The testimony of all the witnesses, including the Lanhams', reveals that Moseley was complain- ing about the Employer not living up to his contract in his usage of the hiring procedures. The Lanhams' testimony as to the complaint about the failure of the Employer to live up to his hiring procedures appeared natural and truthful The Lanhams' testimony to the effect that the complaint was about Edmonson's membership in the Unions did not appear to be a statement of what they actually heard but their own conclusion of what Moseley meant. I discredit the Lanhams' testimony to the effect that Moseley told them to get Edmonson and Riglitmeyer off the job. I am convinced that this however was a reasonable inference from his message to them. I believe that Moseley directed his whole argument to be a complaint of employer failure to live up to the contract. I am convinced however that he knew his argument in effect meant that the Employer should keep Rightmeyer and Edmonson or other persons not secured through the hiring hall off the job. The General Counsel argues that Moseley's lack of specific denial as to certain aspects of the Lanhams' testimony leaves such testimony uncontradicted. As I view the testimony of the witnesses, Moseley testified to a different version of what was said and that thus his testimony did constitute a denial of inconsistent testimony by the Lanhams. 21 Earlier that day Edmonson had been home engaged in some work of his own 264-188-67-vol. 161-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there had been quite a discussion, that the business agent would take Edmonson in the Unions, but that Edmonson would have to leave the job long enough for the business agent to attend to the matter.22 Edmonson asked Leonard Lanham if this were what he wanted and Leonard Lanham said yes. Leonard Lanham suggested to Edmonson that he might go to Moseley and straighten the matter out and come back to work. Later that day Edmonson went to see Moseley and told Moseley that he had talked to Leonard Lanham. Edmonson asked Moseley if he wanted to talk to him. Moseley told Edmonson that he did not want to talk to' him. Edmonson told Moseley that he wanted to hold his job, and he was willing to pay what- ever money was necessary to get right. Moseley told Edmonson that he could not let him stay on the job but that he would get in the Unions all right. Moseley told Edmonson there was a union meeting that night; that there was an executive meeting on December 9, 1965, and he would present his application for union membership on December 9, 1965; that the president of the Unions would then set up an examining committee and when that was done, it would probably be on December 15, 1965; he would notify Edmonson and go with him to Boonville so he could take the examination and, if proven he could come back and that the Unions would get someone to vouch for him, that he could then pay his initiation fee and be sworn into the Local Union.23 6. Events of November 22 or 23, 1965 Either during the conversation between the Lanhams and Moseley on Novem- ber 22, 1965, or on November 23, 1965, the Lanhams requested two men through the referral system. Thereafter, as need arose, the Lanhams used the contractual hiring provisions in getting men. 7. Events of November 24, 1965 On November 24, 1965, Edmonson went back to the union office to see Moseley. Edmonson asked Moseley if he had any news for him. Moseley told Edmonson that the District Council was not going to take any new members at this time, but that if there were only going to be two men taken in that Edmonson would be one of them. 8. Events of December 7 or 8, 1965 24 On December 7 or 8, 1965, Edmonson went to the union office and saw Moseley. Edmonson told Moseley that he needed a job, that his time was running out. Edmonson asked Moseley if he had made any arrangements for him to get in the Unions. Moseley again told Edmonson that there was an executive meeting of 221 credit Edmonson 's testimony to the above effect. I discredit Leonard Lanham's denial that he told Edmonson to leave the job. I believe that Leonard Lanham told Edmonson that he would have to leave the job long enough for Edmonson to get in the Unions. As indicated previously, I do not believe that Moseley told Leonard Lanham this but that Leonard Lanham confusedly believed this to be the effect of Moseley's statements to him. z' Edmonson's testimony as to his conversation with Moseley was slightly confused. Edmonson at first placed the time that Moseley would present his application for mem- bership as being on that date and later corrected it to be as of December 9, 1965. Edmon- son placed the time of the examination as being on December 15, 1965. Since Edmonson testified that he went back on November 24, 1965, to inquire as to the progress of the problem, and considering the total consistency of the evidence, I am convinced that Moseley indicated the probability that the examination would take place on December 15, 1965. 24 Edmonson testified to having several conversations with Moseley. Edmonson timed these conversations as being in September, November 22, November 24, December 5, De- cember 15, 1965, and on March 11, 1966. Moseley testified to a conversation in Septem- ber, to a conversation in November or December (later placed as being on December 7 or 8), to two conversations in mid-December 1965, and to a March 11, 1966, conversation. Thus both Edmonson and Moseley testified to a number of conversations. Considering the total consistency of the evidence and the testimony of the witnesses, I find the conversa- tions as having occurred on the times indicated in the facts found. Both Moseley and Edmonson's testimony reveal a conversation around December 5, 7, or 8, 1965. Since December 5, 1965, occurred on Sunday, I find this conversation to have occurred on De- cember 7 or 8, 1965. I am convinced as previously indicated that Moseley and Edmonson had the November 24, 1965, conversation as set forth in the facts, and that a substantial repetition of the conversation occurred on December 7 or 8, 1965. , - LOCAL 1341, CARPENTERS 355 the Unions on December 9, 1965, the president would set up an examining com- mittee, and when this was done he would notify Edmonson , that Edmonson could then go to Boonville and take the examination and if successful, that he could come back and the Unions would get someone to vouch for him, that he could pay his initiation dues and be sworn in the Unions. 9. The events of December 9 to 15, 1965 25 Sometime after December 9 and before December 15, 1965 , Edmonson went to the union office and spoke to Moseley. Edmonson asked Moseley why an exam- ination committee had not been set up so he could take his examination. Edmon- son told Moseley that he (Moseley) was horsing him around, that he was not trying to get him in the Unions.26 Moseley told Edmonson that it was out of his power, that the president of the District Council sets the examination nights, that when the examination night was set that he (Moseley) would personally notify Edmonson so that he could be there . Moseley told Edmonson that there were two prospective members, that they would take in two members, and that he would promise Edmonson that he would be one of the two. 10. The events of December 15, 1965 27 On December 15, 1965, Edmonson went back to see Moseley at the union office. Edmonson told Moseley that he was through fooling around with him. Edmonson asked Moseley if the Unions were going to take him in or not. Moseley told Edmon- son that he still could not take him in because an examination committee had to be set up. Edmonson told Moseley that he wished Moseley would not do what he was doing, that the Unions might have to pay him for the time he was losing. 11. Events around December 17, 1965 After receiving a copy of the unfair labor practice charge (in this case) filed on December 16, 1965, Moseley telephoned Leonard Lanham and told him that he had not said that Edmonson could not work , that he was going to set up a time that Edmonson could meet with them and try to get Edmonson in the Unions.28 The Setting Up of the Examination At the next weekly meeting of the District Council the president of the District Council set up an examining night as March 14, 1966. ti Moseley testified to two conversations around mid -December 1965. I am convinced that the second conversation in mid -December 1965 was the one placed by Edmonson as having occurred on December 15, 1965. I find Edmonson's timing of that conversation reliable and so fix the time of that conversation . Considering all the evidence , I am convinced that the first conversation , described as being in mid-December by Moseley, occurred after Decem- ber 9, 1965, and before December 15, 1965. It appears highly probable that Edmonson would contact Moseley after December 9, 1965, to learn of the expected action on Decem- ber 9, 1965. 26 Moseley testified that he said, "That I wasn't trying to get him in the union and I told him, I said Mr. Edmonson that is out of my power ...... From the total testi- mony I am convinced Moseley meant that Edmonson said that he (Moseley ) was not trying to get him (Edmonson) into the Unions. n Edmonson 's testimony was similar in effect to Moseley's excepting Edmonson 's testi- mony confused the purpose of his visit with what was said. Edmonson 's testimony incon- sistent with the facts found is discredited . To the extent that his testimony as to purpose for going to see Moseley might be construed as to what was said it is discredited. I do not credit or find that he told Moseley that he wanted a permit or whatever was necessary to go back to work, I am convinced that he construed that getting in the Unions was the requisite and was complaining about whether he was being taken in the Unions or not 29 Leonard Lanham also testified after further questioning that Moseley said that then Edmonson could come back to work. Although not specifically denied by Moseley, Moseley testified to the effect consistently that he complained of the contract violation, and that the Employer should live up to it. Considering Lanham's testimony as a whole I am not persuaded that he has testified accurately to facts but rather has interpolated his opinion of what was meant. I discredit his testimony to the effect that Moseley told him that after getting in the Unions that Edmonson could come back to work Considering the lack of evidence to reveal a discriminatory referral practice, I find no reason to believe that if Edmonson registered that he would not have been referred when his time came for referral. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12. The events of March 11, 1966 29 On March 11, 1966, Moseley telephoned Edmonson and told him he (Moseley) was a man of his word, that the first examining night was on March 14, 1966, and that he (Edmonson) was welcome to go with him. Edmonson told Moseley that he would not be there, that it was his understanding that there would be a hearing on his unfair labor practice charge on April 6, 1966. Edmonson asked Moseley if he were not aware of this Moseley told Edmonson that he knew this. Edmonson told Moseley that he did not want to go or join the Unions now, that he was going to wait to see what came out of the case (who was right or wrong). D. Summary Considering all of the facts I am convinced that the overwhelming weight of the evidence reveals that the Respondents were motivated in their actions relating to the Employer and Edmonson in an attempt to cause the Employer to utilize their nondiscriminatory referral hiring system. Thus Moseley's remarks to Larry Lan- ham on November 10, 1965, to Sapp and Edmonson on November 12, 1965, and to the Lanhams on November 22, 1965, all consistently were to this point. The General Counsel contends that Moseley's remarks to Sapp on November 12, 1965, indicating that it was all right for Rightmeyer to work because he had formerly been employed and was a union member reveals that Moseley only wanted the referral system to be enforced as to nonunion members. I have con- sidered this argument but am convinced that an equal strong if not stronger argument can be made that Moseley anticipated a clearance call even belated, or in fact felt that Rightmeyer could be hired legitimately by the Employer if referral was requested, and was not desirous of making issues over the lack of formal compliance. For all the facts reveal it is entirely reasonable to believe and I believe that Moseley changed his mind about not complaining about Rightmeyer because he believed that the Employer was completely disregarding the contractual provisions and was not making amends after Moseley's complaint on November 10, 1965. Under such circumstances I am convinced that Moseley believed on Novem- ber 22, 1965, he had to insist on strict adherence to the terms of the contract.30 I am convinced that, at most, Moseley's actions relating to Rightmeyer reveals. that Moseley consistently wanted the Employer to live up to its contract terms but was not trying to be difficult about minor matters or form, that after finding that the Employer was not living up to the spirit of the contract, that Moseley attempted to use the pressure of the withdrawal of Rightmeyer's services as a means to cause the Employer to use the contractual hiring agreement. 29 The facts are not greatly disputed. Moseley testified that Edmonson told him that he (Edmonson ) had Moseley where he wanted him and would keep him there Edmonson denied saying the foregoing but testified with reference to waiting until the outcome of the unfair labor practice hearing. I am convinced that Moseley Interpreted Edmonson's remarks about the unfair labor case to mean that Edmonson was saying he had him where he wanted him and would keep him that way. I discredit Moseley's testimony, howei er, that this was what Edmonson said . Edmonson's testimony at first constituted a denial that he told ,Moseley he did not want to join the Unions Later Edmonson in effect admitted that he might have told Moseley that he did not want to join the Unions then 801t; is contended by the General Counsel that Moseley on November 12, 1965, thought Rightmeyer to be an employee who had worked in the past for the Employer and who was a local union member, and later found out that he was not a member of the Local and thereby changed his mind. The facts as to Rightmeyer are limited and not clearly estab- lished and thus are not sufficiently revealed to constitute a basis for such a finding If, as asserted, the Respondents discovered that Rightmeyer was not a member of the Local Union, it is equally possible that Respondents discovered Rightmeyer had not worked for the Employer within the past 2 years. Assuming however that Respondents discovered that Rightmeyer was not a member of the Local Union, the fact that the Employer had not acted to get Edmonson off the job and to attempt to get a replacement for Edmonson through the referral system would constitute at least an equal basis for ether inference contended for. Considering all of the evidence and the consistent statements relating to the failure of the Employer to use the hiring system properly, the evidence would pre- ponderate for a finding that the motivation toward Edmonson was not based on dis- criminatory reasons. At most the evidence to support discriminatory motivation approaches a suspicion. The limited specific facts as to examples of the hirings of various employees do not add up to sufficient facts that establish discriminatory motive. LOCAL 1341, CARPENTERS -357 The General Counsel also contends that after the Unions had a large number of men on the out-of-work list that Moseley attempted to get jobs for such men by picking minor jurisdictional squabbles with another union and demanding the discharges of Edmonson and Rightmeyer. The evidence is not sufficient upon which to make an evaluation of the merits or motives behind the "jurisdictional squabble" and the evidence otherwise does not establish discriminatory motivation as to Respondents' action relating to Edmonson. The General Counsel contends that it is hard to believe that the Unions' steward on the job did not know of Edmonson's working without a referral and that theie- fore the failure of the Respondents to take action until the time that action was taken makes Respondents' motivation suspect. I note that Edmonson would have worked 8 or 10 workdays in October 1965 on the job within the jurisdiction of the Unions The facts reveal that around 5 days thereafter, a complaint from some- one on the job 31 was made to Moseley about Edmonson's working and that he immediately investigated the same, checked with superiors, and on November 10, 1965, complained about the matter to Larry Lanham. I am convinced that Moseley thereafter was cautious about his steps and attempted to follow instructions as to what he should do 32 Under such circumstances the evidence does not reveal an undue delay in handling the problem involved. The General Counsel argues that Moseley, in his testimony in answer to a ques- tion as to whether Rightmeyer was registered, testified that Rightmeyer was not a member of the Local Union. The General Counsel argues in effect that Moseley equated registration with union membership. There is no evidence or contention that the Respondents' referral system has been operated on a discriminatory basis. I am convinced that Moseley was testifying in effect that Rightmeyer was not a member of the Local Union and had not registered. Considering Moseley's reminder to Glenn in the spring of 1965 about notification of new jobs, it is clear that Mose- ley considered that local union members were supposed to utilize the registration system and to keep him advised of changes so that he could keep the registration list up to date. Considering all of this I find that Moseley's answer, as to Right- meyer not being registered because he was not a union member, merely to reflect that Rightmeyer, unlike the local union members, did not utilize the registration list. Although not argued in support of the General Counsel's case, it might be argued that the Respondents seemed reluctant to get Edmonson in the Unions after November 22, 1965. Considering the totality of the situation and the scuffle with the Lanhams on November 22, 1965, it is easy to see that Moseley would not be a great admirer of either Edmonson or the Lanhams. Under such circumstances I find such evidence of insufficient persuasive value to reveal that Moseley's moti- vation in demanding that the Employer abide by the contract was because of Edmonson's lack of union membership. Considering all of the evidence and the foregoing, I am convinced and conclude and find that the reason the Unions attempted to cause the discharge of Marshall H. Edmonson was because the Employer had not abided by its contract with the Unions requiring the Employer to secure employees, such as Edmonson, by request- ing the hiring of such employees through the Unions' referral system. Accord- ingly, I conclude and find that the evidence does not establish that the Unions have violated Section 8(b)(1) (A) and (2) of the Act 33 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, and the Lower Ohio Valley District Council of Carpenters and Joiners of 81 Apparently by Sapp. 111 note also that Moseley credibly testified to other union business problems during this time. 83 Although the facts do not reveal violative conduct on the part of the Unions, it is an unfortunate fact that sometimes parties involved in litigation forget the original questions involved and place themselves in a frame of mind whereby acts of violative conduct may ensue It is to be noted with commendation that counsel for the Government and for the Respondents undertook to carefully explain the rights and obligations of the Employer, the Unions, and individual employees or applicants to the parties involved in this proceed- ing It is hoped that this wise counseling will act in resolving problems and eliminating litigation and will enable the parties to enjoy the benefits of the collective-bargaining procedures. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, are labor organizations within the meaning of the Act. 2. Leonard R. Lanham and Larry E. Lanham are , and have been at all times material herein, partners doing business under the trade name and style of Lanham Brothers, General Contractors, and constitute an employer engaged in commerce within the meaning of the Act. 3. The evidence does not establish that the Respondents have violated Section 8(b)(1)(A) and (2 ) of the Act. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety. Louisville Chair Company, Inc. and Local 236, United Furniture Workers of America, AFL-CIO. Cases 9-CA-3627 and 3692. October 25, 1966 DECISION AND ORDER On April 8, 1966, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, Respond- ent filed exceptions to the Trial Examiner's Decision and a support- ing brief. Pursuant to Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning 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 proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' 1 The Trial Examiner found that Hale's discharge constituted a violation of Section S(a) (1) of the Act. In so concluding , he found that the remark made by Hale to Mrs. Napier which precipitated Hale's discharge "was itself inextricable from his union ac- tivities." According to the credited evidence , Hale's "union activity" consisted of his wearing a union button for 1 hour before the election and the objectionable remark to a female employee , for which he was discharged . On this state of the record in this proceed- ing, we do not believe that the General Counsel has sustained his burden of proving that Hale was discharged for union activity. Accordingly , we shall dismiss the complaint in this respect. 161 NLRB No. 31.