Plumbers Local 454

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers, Pipe Fitters, and Refrigeration Local Union 454, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Ebasco Services, Inc., et al.) and Ellis B. Clark. Case 26-CB-448 June 20,1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS provisions of the Act by refusing on various dates in 1968 to refer the charging party to available jobs with various employers who made use of the respondent 's referral system.' Subsequent to the hearing counsel for- the General Counsel and for the respondent filed briefs with me. Upon the record so made, and in view of my observation of the demeanor of the witnesses , I hereby make the following: FINDINGS OF FACT: 1. THE RESPONDENT On March 28, 1969, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain alleged unfair labor practices and recommending that the complaint herein be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Decision , together with a supporting brief, and the Charging Party filed a document which we have construed as exceptions. The Respondent filed an answering brief. Pursuant to 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. 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'In iu= ocument accepted as exceptions, the Charging Party moved that the record be reopened. We hereby deny that motion as lacking merit. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner : Upon a charge duly filed by Ellis B. Clark on September 27, 1968; a complaint issued on November 15, 1968, alleging that the respondent had violated Sections 8(b)(1)(A) and 8(b)(2) of the Act; and the answer of the respondent denying the commission of any unfair labor practices, I heard this case at Hot Springs, Arkansas, on December 11 and 12, 1968. The sole issue involved in the present proceeding is whether the respondent in the operation of its exclusive hiring hall and referral system, violated the above cited Plumbers, Pipe Fitters, and Refrigeration Local Union 454, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as Local 454), is a labor organization within the meaning of Section 2(5) of the Act. The jurisdiction of Local 454 extends to nine counties in Arkansas . These nine counties are Garland, Montgomery, Polk, Yell, Hot Springs, Pike, Clark, Pope and Sevier. IL THE EMPLOYERS INVOLVED Ebasco Services, Inc., is now, and , at all material times, has been a corporation doing business in the State of Arkansas with an office and place of business located in Malvern, Arkansas, where it has been engaged in the construction of the Lake Catherine Steam Generation Plant. Turner-McCoy, Inc., is now, and, at all material times, has been a corporation doing business in the State of Arkansas with an office and place of business located in Little Rock, Arkansas, where it has been engaged in the installation of plumbing, heating and air-conditioning units. Ace Plumbing Company is now, and, at all material times, has been a corporation doing business in the State of Arkansas with an office and place of business located in Hot Springs, Arkansas, where it has been engaged in the installation of plumbing and air-conditioning units. Natkins Company is now, and, at all material times, has been a corporation doing business in the State of Arkansas with a jobsite at Dardanelle , Arkansas, where it has been engaged in the installation of plumbing. During the past 12 months, Ebasco Services, Inc., in the course and conduct of its business operations, purchased and received, at its Malvern , Arkansas location, goods and equipment valued in excess of $50,000 directly from points located outside of the State of Arkansas. During the past 12 months, Turner-McCoy, Inc., in the course and conduct of its business operations, purchased and received, at its Little Rock, Arkansas location, goods and equipment valued in excess of $50,000 directly from points outside of the State of Arkansas. During the past 12 months, Ace Plumbing Company, in the course and conduct of its business operations, purchased and received, at its Hot Springs , Arkansas location, goods and equipment valued in excess of $50,000 from points located outside of the State of Arkansas. 'There are 27 such employers who are enumerated in paragraph 7 of the complaint but only 4 of them are directly involved in the present proceeding. These four employers are Ebaaco Services , Inc., Ace Plumbing Company, Turner McCoy, Inc., and Natkins Company. 176 NLRB No. 114 PLUMBERS LOCAL 454 897 During the past 12 months, Natkins Company, in the course and conduct of its business operations, purchased and received, at its Dardanelle. Arkansas location, goods and equipment valued in excess of $50,000 directly from points located outside of the State of Arkansas. The respondent admits, and I find, that at all material times Ebasco Services, Inc., Turner-McCoy, Inc., Ace Plumbing Company, and Natkins Company have been employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relations between Clark and Bottoms The case for the General Counsel is based on the theory that David F. Bottoms, the business agent of Local 454 and also its financial secretary and treasurer, refused to refer Ellis B. Clark, the Charging Party, to various jobs in 1968 because of personal hostility towards the latter, arising from a series of incidents which had brought them into conflict. These incidents go as far back as July 1964 when Clark was working on a plumbing job for Ed Sanders & Son. Clark is a plumber, pipefitter and refrigeration man, who was graduated from plumbing school in 1947 and who was once in business for himself in Kansas City and Independence, Missouri. He came to Arkansas from California early in 1964 and bought a farm near Donaldson, Arkansas. He was licensed as a plumber by the State of Arkansas and became a member of Local 454 on March 3, 1964. He was referred by Bottoms to the Ed Sanders & Son job in August 1964 and worked on the job steadily until February 1, 1965 when the contract between his employer and the union was about to expire. Clark, who was steward on the job, accompanied by Ed Berry, one of the men, went to see Bottoms in order to ascertain whether they should come to work the following day. Bottoms told Clark and Berry that he would pay a visit to the job that afternoon but he never showed up, and Clark decided to take the lead in talking to Ed Sanders' son, Bill, and obtaining from the son a promise to sign the union's new contract which called for a 15-cent-an-hour wage increase. Although Ed Sanders paid the increase, apparently, he refused to make good on his son' s promise to sign the contract. He also complained to Bottoms about Clark's conduct, and the former agreed to the latter's layoff which proved, however permanent. There was some question whether Ed Sanders was bound to give any raise because he had bid the job before there was any question of a raise, and an International representative of the union was looking into the matter. When Clark was dismissed, although the journeymen on the job were being retained, he was highly incensed and went to see Bottoms to ask the latter why he had been fired, and to berate him for not supporting him. Bottoms told Clark that Ed Sanders had complained about his handling of the situation and wanted him off the job. According to Clark, Bottoms hung his head and remarked to him: "Well, you'll never be another steward on a job for me," and added: "I'll never forget this." Bottoms admitted that he never again appointed Clark as steward on any job but denied saying "I'll never forget this," and I credit his denial. It is somehow not consistent with the business agent's character that he should have been so abashed that he hung his head. After his rather stormy interview with Bottoms, in the course of which he threatened to whip Bottoms and knock him out of his own office, Clark did not receive another referral for about 2 months. Since this could have happened even if Bottoms had not been angry with Clark, it does not necessarily follow that it is to be interpreted as a form of reprisal. In any event, Clark worked with a fair degree of steadiness during the rest of the year 1965. During June and July of 1966, Clark was employed at the Wall Plumbing and Heating Company. This job involved the remodeling of a building at the country club golf course in Hot Springs. According to Clark, he was told by Bottoms that he would be the only man on the job, and he then demanded a foreman's wages, since he would have to read the blueprints and do all the layout work; Bottoms told him, however that Wall would not pay a foreman's wages, and that he could take the job or not; he decided to take it because he needed the work. Clark also testified that while he was on the job he complained to Bottoms that he was being made to work with a nonunion man but that the latter told him that he could do nothing about it, and that he could quit if he did not like it. Bottoms could not recall any discussion with Clark about foreman's pay before he went out on the Wall job but he did recall that after Clark was on the job, he complained about working all by himself when he needed help, and that he then told him that he could make use of the boy on the job who was supposed to do common labor. The "boy" was a son of Wall who was working on the job during the summer months, and who had a summer union working card. In addition to the work-related incidents, counsel for the General Counsel relies on Clark's opposition to Bottoms in the conduct of the internal affairs of the union. Local 454 has an election for union officers every 2 years in the month of June. Bottoms ran for the offices which he now holds in 1962, 1964, 1966 and 1968. He had no opposition in the 1962 and 1964 elections' but he was opposed in the 1966 and 1968 elections. In 1966, his opponent was Curtis Buttrum, who is now president of Local 454 and, according to Clark, he supported the latter by telling other members that Buttrum was the smarter and fairer man, that he did not drink, and that he thought he would make the better business agent. Clark also testified that he related to other members his experiences with Bottoms in connection with the Sanders & Son and Wall Plumbing jobs. Although Bottoms did not campaign for reelection, he won by a vote of 67 to 13. During the campaign of 1968, an opposition slate ran against all of the local's incumbent officers. Ed Halsell, one of the members of the local, ran against Bottoms, who was again running for the office of business agent and financial secretary and treasurer. According to Clark, he told "several men" that he was backing Halsell because he thought he would be fairer in operating the referral system and see to it that "all the men got part of the work rather than a few men getting most of the work . ." Nevertheless, Bottoms also triumphed in this election. Although the vote was closer this time, being 64 to 46, his victory was all the more impressive because he was the sole survivor among the incumbents. Bottoms testified, moreover, that he did not even know that Clark was campaigning against him in the 1968 election, and I credit his testimony. 'In any event, Clark was not a member of Local 454 in 1962, and he was not even eligible to vote in 1964. since he had not been a member of the local for a year, which was a prerequisite to his right to vote under the union constitution. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark made a more direct challenge to Bottoms' performance of his functions as business agent at the regular union membership meeting that was held on August 12, 1968 at the union hall. At this meeting Clark made a motion that the out-of-work list maintained by Bottoms for the local be made public by posting on the union bulletin board. The proposed change in the procedure concerning the out-of-work list derived from Clark's distrust of Bottom's behavior in referring members to the available jobs, and there can be no doubt that the procedure was very flexible and informal. Bottoms maintained separate referral lists for the categories of plumbers, pipefitters and pipefitter-welders, and he dispatched the members to jobs from these lists in order but there were many qualifications and exceptions to following the order of names on the list. Indeed the exceptions were so numerous that Bottoms testified only that he followed the order of the lists "the majority of the time." His evidence, as well as the evidence of other witnesses, shows that he did not go by the list when an employer asked for a specific individual by name; when a welder insisted on a particular helper with whom he was accustomed to work: when a member who had not been working for a long time appealed to him for a job, particularly when he happened to live in the vicinity; when the requirements of a particular job called for individuals with special experience; or whenever there seemed to be some good reason in policy or equity for not going by the lists. Once a member was referred to a job, his name was taken off the out-of-work list after a brief interval of a week or two, and he thus lost his opportunity for more steady employment. This seems to have been a frequent source of complaint because often Bottoms in referring a member to a job did not know how long it would last. The motion that Clark made at the August 12 membership meeting was seconded by James Knox, although he was a member of the union's executive board, and the motion carried, although it was opposed by Curtis Buttrum, the president of the union, and, of course, by Bottoms himself. However, at the regular membership meeting of October 14, 1968, a motion was made by F. B. Harrison, and seconded by John Williams to rescind the posting of the out-of-work list and allow Bottoms to handle it as theretofore. The reasons for the change of attitude on the part of the membership is not clear from the record. Presumably, Bottoms went back to keeping the out-of-work list in his desk, as he had always done. B. Clark's Efforts to Secure Referrals Having reviewed the motivational evidence , so to speak, it would seem to be next in order to examine the efforts of Clark to secure referrals to jobs between the end of March and the end of September when he file his charges against the respondent.' It is the claim of Clark that despite persistent efforts on his part during this period he was unable to secure anything but referrals to "little piddling jobs' 14 with the result that by the end of September he was reduced to such penury that he was unable to support his family, which was faced with starvation. 'As the charges were filed on September 27, 1968 , the Section 10(b) period ran from March 27, 1968. 'Clark worked only 16 days for Southwest in the months June , July, and August, 1968: only 12 days for Vogt & Conant in the months of August and September 1968; and only 6 days for Martyn Bros. between September 30 and October 7, 1%8. He had worked 32 hours in the month Clark sought in his testimony to create the overall impression that he was constantly in touch with Bottoms and seeking to secure referrals to jobs, except that between his layoff from the General Cable plant job early in February and about the middle of March he "didn't make too much effort." He explained that the reason for this was that he was having a new home built and he himself was busy putting in the plumbing and doing the painting, although he had hired contractors for most of the rest of the work. After the middle of March, however, he "started pressing." This pressing consisted of either visiting Bottoms in his office to ask for work, or telephoning to him for the same purpose. Of the two methods, Clark preferred the latter because, living at Donaldson, Arkansas, he was 40 to 45 miles away from the union hall in Hot Springs, and it took him about an hour to drive there from his home. Asked to state how often he was in contact with Bottoms, Clark was rather vague. "There was quite a few times," he testified "I wouldn't want to say how many." Asked further whether the contacts occurred at least once a week, he replied that it was "maybe not that much but quite a bit." Clark also maintained that he was not getting enough work, although he was always prepared to travel any distance, even outside the jurisdiction of Local 454. On the occasion that this question was first raised with him, however, Clark testified: "Work was slow, there is no question about it. So everybody was out of town, but I couldn't go out of town." (Emphasis supplied.) A few moments later the following colloquy occurred: Q. During the past year, Mr. Clark, have you ever asked Mr. Bottoms about out of town work? A. Oh, yes, several times. Q. Have you ever indicated to Mr. Bottoms that you weren't interested in out of town work? A. Never. A good deal later in his examination, Clark kept repeating that he had asked for out of town work, "Yes, I've asked for out of town work," he testified, "I've asked many times to go out of town," he testified even more strongly. Clark excepted, however, going to Baton Rouge, Louisiana, which he described as one of the hell holes of creation. "That's one of the hot spots of the country," he testified, "but it's so hot that nobody wants to go down there, because there is poor housing, high groceries, rain, wind. So, that is the last job in desperation for any plumber and pipe fitter." Clark also testified that in May or June he had asked Bottoms for work in Illinois, which he had heard about, but that Bottoms had told him that he could send him there only if he could work with a of February 1968 at the General Cable plant but had had no work at all in the months of March . April, and May, 1968 . Clark 's referrals are reflected in G. C. Exhs. 2 and 3. G. C. Exh . 2 reflects all the referrals of members of Local 454 who were available for work between the dates of March I and November 19. 1968 , both in and out of the jurisdiction of the local, but in many instances no precise dates are given , the inability to do so being reflected by a question mark . When a member was still on a job at the time the exhibit was prepared this was indicated by the notation "still work ." although he might not actually be working . The "still work" merely indicates that the job is incomplete The amount of time worked is given in days or weeks but the member did not necessarily work 40 hours every week. When less than 40 hours were worked, the hours were totaled together to make a week Thus, although 3 months may have elapsed on a particular job, only 3 weeks is listed alongside the member 's name. G. C. Exh. 5 is the work record of Clark from August 1963 to October 19, 1%8. The periods of employment on this exhibit are shown by weeks and months except in a few instances where the dates of employment are given. PLUMBERS LOCAL 454 899 welder which he could not do. After the election in June 1968, Clark went to see Curtis Buttrum , the newly elected president of the local, and complained to him that Bottoms would not send him out of town, or in town, for that matter. Clark ended up by declaring"I was wanting to travel so bad that I could taste it, but no one would give me a job," and he explained: "Mr. Bottoms would always have an answer that they were full up. I wanted to go to Memphis and he told me they was full." It is evident that Clark must have been on the out-of-work lists at the times that he obtained referrals to the Southwest and Vogt & Conant jobs prior to the time that he filed charges. But all the out-of-work lists themselves are not in evidence. The only out-of-work list that is in evidence is the one that came into existence a week after the union meeting of August 12, and remained in use until approximately a week after the union meeting of October 14.6 Clark himself signed this list, and noted on it the date that he did so, this date being September 9.6 In the absence of the earlier out-of-work lists, there is no direct confirmation of Clark's claims that he was frequently in touch with Bottoms, and Bottoms himself denied that this was true. Bottoms testified that Clark never came to his office before the month of May. He came in the Saturday before the meeting of May 27 at which nominations were made for union office, which would be May 25, and he came in then to discuss an overpayment of dues on his part. On this occasion, Bottoms asked Clark where he had been all this while, and told him that while he had no work within the jurisdiction of the local, there was plenty of work available out of the State. According to Bottoms, Clark replied that he was not interested in working then because he was busy building his home, and that he would like a week or two of work near his home when he got caught up with his work. Bottoms testified further that his next contact with Clark occurred on June 13 when he referred him to the Southwest job. Of course, Bottoms had seen Clark at the membership meeting of May 27, but he had been too busy then to discuss jobs with anyone. He had also seen Clark the next day in his office when the latter came in to get permission to post a notice of sale for his old house on the union bulletin board. This notice had been typed by Virlene Blocker, Bottom's secretary, who also testified that she had not seen Clark in the union office in 1968 more than a few times. Bottoms also testified that he had not seen Clark between August 27, when he commenced work on the Vogt & Conant job, and his layoff from that job on September 9 when he came to the union office to sign the out-of-work list. There is no corroboration of Clark's testimony that he wa° in frequent touch with Bottoms in his effort to obtain work but there is some corroboration of Bottoms' testimony that before the month of June Clark was not even seeking work, and that at no time was Clark prepared to work out of the State. Lester E. Carr, a member of the local, who was present in the union office on the occasion when Clark had come in to have the 'This list is in evidence as G. C. Exh. 5. 'The name of Clark appears twice on this list. It appears first and, apparently, not in Clark's handwriting, as the fourth name from the top, the other three names being J. E. Rogers, H. S. Bryant, and W. J. Martin, Sr. But on September 9, after he had been laid off from the Vogt & Conant job, Clark resigned the list, and dated his signature so that he would be in a position to determine whether others were being sent out ahead of him . Clark attempted to dismiss the three members whose names were ahead of his as "elderly men drawing social security." notice of sale of his old house typed up, and who heard the conversation between Clark and Bottoms, testified that when Bottoms asked Clark whether he wanted out-of-state work, Clark replied that he did not wish to go out of the State just then, and added that he was not even interested at that time in going to work because he was still doing some things around his house. Kenneth Poole, another member of the local, also testified that when he encountered Clark at a liquor store one night after a union meeting, the latter complained to him that he was being discriminated against, and that he was "just about to starve to death," and that, when he offered to lend Clark $40, and told him that he could get him more if he would work out of town, Clark stated that he was not interested in going out of town. C. Clark's Attempts to Discredit Bottoms The casual encounter between Clark and Poole seems to have been followed by a more determined effort on the part of Clark to accuse Bottoms of discrimination against him in the operation of the union hiring hall, and this effort seems to have enlisted some degree of attention, if not support, by some of the members of Local 454 at the regular membership meeting held on September 23. Clark told the members that he had not had work for 8 months, and that he had to have some work, and, according to Clark, "some of the members got up on the floor and asked Mr. Bottoms to give me some work that they knew I hadn't had any;" Walter Martin, Sr.,' then rose and told the membership that he knew Clark needed work and "if there was a job available he would give his part up just so I could go on it;" two or three of the members stood up and offered to lend him money; and finally Walter Martin, Jr., suggested that the case of Clark be considered at an executive board meeting following the membership meeting. Bottoms' account of what happened at the membership meeting was as follows: Some member said that we had a member who was in bad financial shape and he hadn't worked too regular and he needed to go to work, and I asked the member who it was. I said, "I've got several members, I imagine if they haven't traveled are in bad financial shape," and this member said Clark, and then Clark made his pitch. He said he was in bad financial shape, that he had spent all the money he had, he was having to sell his boy's saddle horse, and had sold his cattle to buy groceries, and it looked like to go to work, why, he was going to have to knock my head off, or something to that effect. I'm not too positive of the exact words. That Clark threatened to knock Bottoms' head off is indeed confirmed by the corroborative testimony of Walter Martin, Jr., and of Kenneth Poole. The minutes of the September 23 meeting also show that Clark was certainly mistaken in testifying that it was Walter Martin, Jr., who suggested that the executive board meet following the meeting. It was Curtis Buttrum, the president of the local, who made the suggestion. The executive board meeting was duly held after the membership meeting on September 23. In testifying about the meeting, Clark dramatized himself as "the center of attention there," declaring "the meeting was for me."' 'He is, apparently, the father of Walter Martin. Jr., the chairman of the union's executive board. 'Nevertheless, Clark also revealed that another member, John Ledbetter was there for the same reason that he was; namely , that he had not had any work for quite sometime. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Clark, he told the executive board: "You boys here either got to talk to Mr . Bottoms and see that I get work or I've got to go to the National Labor Relations Board and file charges;" he accused Bottoms of discriminating against him; Bottoms claimed that he had done the best he could ; the discussion waxed "hot" and in the midst of it Bottoms walked out of the meeting. The minutes of the executive board meeting simply reflect, however , that the board asked Bottoms "to send Clark out as soon as work was available," and that "Brother Bottoms assured the Body and the Executive Board that he would try to get Brother Clark out as soon as possible." This is entirely in harmony with the more detailed testimony of Bottoms, which was confirmed by the testimony of Curtis Buttrum, the president of the union . Buttrum , who was a foreman at the Ebasco jobsite, the Lake Catherine Power House , suggested that Bottoms contact the supervision there in an effort to get work for Clark, and Bottoms agreed to do so, explaining to the board that Clark had just come off a job on which he had worked 12 straight days with 4 days' overtime pay, and that he had not realized that he was in such bad straights. Bottoms also testified that he left the executive board meeting only after he had asked Buttrum whether he was needed any longer. Buttrum's testimony establishes also that Clark turned down the suggestion of a job at Ebasco, stating that he wanted to work closer to Arkadelphia, Arkansas, although Arkadelphia was only 28 to 30 miles from the Ebasco jobsite. After the executive board meeting of September 23, Bottoms checked Clark' s work record , and called another executive board meeting on September 26, at which he showed the board a work list and invited its members to compare , Clark's work record with that of any other member. The minutes of the meeting indicate that the executive board concluded : "Since very little work was available in our area since March and work was available with travel card the executive board finds no proof for discrimination charges." The next day Clark carried out his threat of filing the charges that initiated the present proceeding . On his way home from the Regional Offices of the Board, Clark telephoned to Bottoms and made an appointment to see him at his home . He assured Bottoms : "Mr. Bottoms, I'd like to come out and talk to you . There is no hard feelings and I'm not mad or anything . Don't be afraid of anything coming up, there will be no trouble or anything."' Arriving at Bottoms' home, Clark told him that he had been to the Board' s offices at Little Rock and filed charges, and that "they" had told him "to come down and talk to you and maybe I could get a settlement out of you and it would save the local a lot of money and a lot of trouble ." Bottoms asked Clark: "What are you talking about?" and Clark replied : "Well they said I might get four or five thousand dollars or so , but I'll settle off with you for $2500." Bottoms' response to this was : "Clark, I couldn't give you 25 cents" but he added : "I can give you a job if you are interested in going to work at Vogt & Conant (which was working on the Union Carbide plant) Monday evening." This job Clark refused unless Bottoms promised to pull him off the Vogt & Conant job when another job, the DeGray Dam job, started . Bottoms told Clark he could not promise him that without talking to the Superintendent of the DeGray Dam job . Bottoms duly contacted the superintendent on Sunday and persuaded him to take on another man. Clark was then referred to the DeGray Dam job on September 30. The account of the conversation between Clark and Bottoms at the latter's home on September 27 is based on the latter's testimony, which I accept, but Clark's testimony is different from Bottoms ' only on a few points. Clark admitted that he told Bottoms that before coming out to his house he had been told in the Board 's offices that "these things can get pretty nasty and long drawn out," and that if he could go to Bottoms and "try to work out some kind of a settlement with him so we won't have to go through with this," they would all be better off. Clark also testified that he even told Bottoms in making his offer to accept $2500 in settlement : "Well, you've worked for five years at about a $10,000 salary a year. I haven 't worked at all. I've got to have help." (Emphasis supplied.) After leaving Bottoms' house, Clark went over to the house of Walter Martin, Jr. and told the latter about his effort to get Bottoms to settle for $2500, and also attempted to persuade him, but without success, to support the settlement in exchange for his dropping his charges. He also wrote a letter to Peter T . Schoemann, the president of the International, about his case, and, as a result, the executive board of Local 454 held another meeting on November 17 to discuss it. Clark and Bottoms were both present at this meeting . Walter Martin, Jr. asked Clark "what would it take for him to drop all charges involved against the local and Mr. Bottoms," and Clark, pointing to Bottoms, replied that he would drop all charges if the union would get rid of Bottoms . That he made this proposal is not denied by Clark. It is indeed confirmed by the testimony of two of the members of the executive board , Walter Martin, Jr., its chairman, and Don E. Skillern, a member of the local. D. Concluding Findings Where there are issues of credibility between Clark and the respondent's witnesses, I resolve them in favor of the latter. I am convinced that Clark , who appears to have a persecution complex, and to be given to the making of threats of bodily violence and to wild exaggerations, often distorted the truth, and I reject his testimony where it conflicts with that of Bottoms, and the witnesses who corroborated the latter. There is no corroboration, on the other hand, for the disputed elements in Clark's testimony. I am also convinced that Counsel for the General Counsel has failed to establish any connection between the incidents involving Clark and Bottoms and the latter's operation of the referral system . The extent of the alleged clashes between them is, moreover, grossly exaggerated, and, whatever animosity really existed, was on the part of Clark rather than on the part of Bottoms . Clark appears to be a type of individual who bears grudges for extraordinarily long periods of time. This is illustrated by the Ed Sauders & Son incident that occurred as far back as February 1965. Clark attempted to picture himself as terribly wronged in this instance - as a stalwart union man seeking to uphold the obligations of union membership - but there is something of a case to be made for Bottoms also, and it is possible to perceive that Bottoms may well have thought that 'Clark made no mention of the assurance in testifying about the telephone call to Bottoms but the latter did mention it in his testimony, and considering Clark's previous threats, it is readily understandable that Bottoms should have needed such an assurance and that Clark should have given it. PLUMBERS LOCAL 454 901 Clark was acting officiously in the matter . There is no occasion to decide the ultimate merits of the controversy but, even if Clark were wholly justified , it is apparent that he overreacted to the provocation . In any event, the incident occurred about 3 1 /2 years ago, and it is hard to believe that it was a factor in Bottoms ' conduct in 1968. Clark did fairly well employment-wise in 1965, and by his own admission 1967 was a good year for him. While he did not have much work in the early months of 1966 - at least not in the jurisdictional area of Local 454 - he did better in the subsequent months , and the year as a whole was at least 70 percent as good as the year 1967. If 1967 was a good year for Clark , Bottoms could not have been engaged in manifesting ill will towards Clark then. If he dig not do so in 1967 , why in 1968? Since 1967 is nearer to 1965 than 1968, the grudge , if Bottoms still bore it, should have been more strongly operative in the earlier year. The Wall Plumbing job incident, which occurred in 1966, was also followed by Clark's "good year" in 1967, and is subject to the same considerations . Certainly it was far more trivial than the Ed Sauders and Son incident. Moreover, the evidence indicates that Clark was wrong both in his contention that he was entitled to a foreman's pay and his contention that he should not be required to work with a nonunion man. Walter Martin , Jr., who is chairman of the union's executive board , testified that he worked without foreman 's pay when he was the only man on a job, and the respondent showed that Wall's son, with whom Clark was required to work , had a summer working card issued to him by Laborers Local 490 of Hot Springs. Arkansas. It seems to me also that one of Clark 's most palpable exaggerations was the role in the union elections of 1966 and 1968 in which he sought to cast himself . Counsel for the General Counsel produced not a single one of the union members to whom Clark claimed to have talked during the election campaigns, and, in the absence of such corroborating evidence, it would be hazardous to believe that Clark was very outspoken. Even if Clark did give expression to his wrath against Bottoms during the election campaigns, moreover, it is apparent that it produced no effect ,16 since Bottoms won handily both in 1966 and 1968. Having been the victor in both elections, Bottoms had no reason to be vindictive , or even resentful. Again it must be asked why, if Bottoms did not take it out on Clark in 1967, he should have done so in 1968. It is true that Clark took the lead in securing the posting of the out-of-work list, and I have already intimated that this was a more direct challenge to Bottoms' authority than any opposition in an election campaign could have been . It is also true that this act of Clark was also a more recent challenge. Nevertheless, I fail to find substantial evidence that it was responsible for retaliation by Bottoms in the manipulation of the referral system in the subsequent months of 1968. The evidence suggests rather that Bottoms met the challenge by securing a return to the former practice. If Bottoms was bent on revenge , it would be logical to expect that he would also seek to avenge himself on James Knox, who had seconded Clark' s motion . The referral record shows, however, that Knox was referred to a job at Vogt & Conant on August 30, 1968, and to a job at the Ebasco Power House on September 24, where at the time of the "I should note in passing that Clark's argument in favor of Bottoms' opponent that he was more abstemious than Bottoms came with ill-grace from one who was encountered in a liquor store by one of his brethern. hearing he was still working after a period of employment of 9 weeks, and that Clark himself was referred to a job at Vogt & Conant on August 27, 1968, although this job lasted only 12 days. During this "reform" period, so to speak, it was made, moreover, more difficult than ever for Bottoms to discriminate in operating the referral system, for once the referral list was posted , he was operating in a gold-fish bowl . His acts were then subject to greater scrutiny by the membership, and he had less freedom to deviate from the order of the out-of-work list. It is somewhat ironic to reflect that this situation, which made Clark's case so much harder to prove, was brought about by an action initiated by Clark himself. A leading motif in the present case is Clark 's supposed penury, which apparently, he advertised to everyone. But there is reason to believe that it was exaggerated by Clark, or that if it was real, that it was brought about by Clark's own actions. He could not have been destitute in the early months of 1968, since he himself testified that he was not really ready to go to work until about the middle of March . This means that he had really temporarily withdrawn from the labor market . He also could not have been destitute if he had the funds in the amount of $8,000 to pay the contractors who were building a new home for him, for he offered checks payable to them in that amount at the hearing." After the new house had been build Clark, of course, had two houses, the new and the old, and the old was still inhabitable, since he was engaged in trying to sell it. The ownership of two houses cannot readily be equated with dire poverty. Clark may have temporarily been strapped for ready cash but it is apparent that he was house-rich , and that he could have raised money on the houses, unless indeed both of them were already mortgaged up to the hilt, which is improbable. In any event, it was not poverty but the lure of easy money that drove Clark on to see what he could get out of Bottoms. He seems to have determined to make his poor year, so far as earnings were concerned, pay off in some ready cash. Having filed his charges, he did not delay so much as a day in contacting Bottoms . He did so, despite the fact that the Regional Office could hardly have had time to investigate his charges, and it is hardly credible that anyone in that office would have suggested to Clark, as he attempted to make it appear , that he go to see Bottoms immediately with a view to getting out of him a cash settlement of 4 or 5 thousand dollars . What he might have been told was that the Board proceeding might be long drawn out and that he might be better off if he could work out some modus vivendi with Bottoms under which he could get some steady and remunerative work. But Clark was not interested in work and at once persuaded himself that he now had Board approval for getting some ready cash out of Bottoms. It is characteristic of Clark that he should have attempted to justify his demands by remarking to Bottoms that while he had been working at $10,000 a year for 5 years, he had not been working at all. This was, of course, just nonsense. "Counsel for the Respondent would seem to be in error in contending that Clark built his new home "only with the help of one carpenter, a friend who lived nearby." He bases this contention on the testimony of Len J. Anderson, formerly president of Local 454, whose testimony he misconstrues. Anderson visited Clark's old home because he thought that his father-in-law, who was retiring, might be interested n buying it, and he testified that in talking to Clark , the latter told ban that he had built the house. Clark did not mean that he personally built the house, he meant that he had it built. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, if it is really true that by the middle of the year Clark was nearly destitute, the indications are that he brought it on himself, that the wound was self-inflicted. The year 1968 was, to be sure, a very poor one for plumbers and there was very little work available within the jurisdiction of Local 454. Even Clark admitted this much. But there was plenty of work available outside of the jurisdiction of Local 454, and its availability was repeatedly announced at union meetings and by postings on the union bulletin board. The record shows that a majority of the members of Local 454 traveled during the year 1968 in order to obtain employment. They ranged as far as Las Vegas. Nevada, Everette, Washington, and the Bahamas. The favorite places were, however, Hattiesburg, Mississippi, Memphis, Tennessee, Baton Rouge, Louisiana,' 2 and Rock Island, Illinois. Despite the availability of work elsewhere, however, Clark remained stubbornly at home. Up to May 20, 1968, when he moved into his new house, he was not interested in work at all, whether in or out of the jurisdiction of Local 454, but even after this date he still had his old house to dispose of, and was disinclined to go any considerable distance from the local scene. There is little doubt, moreover, that this continued to be his attitude during the balance of 1968. This is confirmed by the fact that he,turned down jobs in the latter part of 1968, even after he had filed charges against the local, and despite the fact that some of these jobs were fairly close to his home. While he did not give his disinclination to travel as a reason for declining the jobs, and may have been motivated in part by a desire to make sure that he secured long-term employment, I believe it was a factor in his decisions. One of the jobs offered to Clark was the Vogt & Conant job for Union Carbide, and as it turned out, ironically, the two plumbers who were sent out to this job, namely W. C. Brown and L. W. Ledbetter, were still on this job at the time of the hearing, both having worked there for 8 weeks. That the unremunerative referrals which Clark received in 1968 resulted not from any animus against him on the part of Bottoms but from the general lack of work for plumbers and pipe fitters within the jurisdiction of Local 454 is also indicated by the fact that other plumbers or pipe fitters had a year as lean as his in 1968. These were E. R. Baker, W. C. Brown, H. G. Bryant, E. Halsell, W. J. Martin, Sr., and A. R. Moore, who are plumbers, and C. L. Terrell, who is a pipefitter. There were many other members of Local 454 who would have had equally lean years if they had stayed home, and not sought work by traveling considerable distances from their homes. Yet these members of Local 454 filed no charges of discrimination against Bottoms. While it is possible, of course, that they were more long-suffering than Clark, there would seem to be no foundation for this surmise. Counsel for the General Cousel relies specifically on the series of alleged refusals to' refer Clark to available jobs that are alleged in Paragraph 8 in the complaint. The approximate dates on which these refusals to refer are alleged to have occurred are April 15 and 26, May 20, June 24, July 1, August 6 and 14, and September 12 and 24, but, although these dates number nine, only four "in view of Clark's intense dislike of Baton Rouge, Louisiana, counsel for the respondent makes much of the fact that at least 16 members of Local 454 chose to endure "the rain, cold and heat described by Clark in order to earn a living " Nine of the sixteen lived in Louisiana, however, and two of these nine actually lived in Baton Rouge, Louisiana' The fact is also that Clark did not complain of any cold in Baton Rouge , Louisiana. different employers are involved; namely, Ebasco Services, Turner-McCoy, Ace Plumbing, and Natkins Company. It would seem unnecessary, if not pointless, to discuss, however, each of the alleged refusals in detail. As Clark was not really in the labor market until May 25 at the earliest, there could not have been any refusals to refer him prior to that date Indeed, Clark's availability for employment on any specific date thereafter is firmly established only as of September 9, and as of the dates on which he was actually referred to jobs. On the dates of some of the alleged refusals to refer him, Clark was, moreover, actually working, so far as Bottoms knew, and no refusals could have occurred, therefore, during these periods. On other dates Clark was actually holding out for better referrals and declining these offered to him. Counsel for the General Counsel complains particularly of the refusals to refer Clark to the Ebasco Services jobs that involved heavy rigging at great heights, and, despite Clark's claims that he was qualified to perform such work, there is impressive evidence to the contrary. Counsel for the General Counsel also stresses as discriminatory Bottom's failure to refer Clark to Natkins & Company as a welder's helper but it is clear that Clark was not good at that kind of work, and that in any event it was customary in the industry for pipe welders to insist on having their own helpers." It may be, to be sure, that Bottoms in operating the referral system, which was not rigid, on occasion made referrals that constituted favored treatment of particular members of Local 454. But this is not the issue in the case. The issue is whether the referrals were connected with Bottoms' supposed animus against Clark arising from the latter's alleged union activities and were motivated by Bottoms desire to punish Clark because of them. I find no satisfactory evidence that they were so motivated. The respondent can only be found guilty of violating Section 8(b)(l)(A) and (2) of the Act for the reason or reasons alleged in the complaint, which does not raise any issue of general favoritism. Such a wide issue was neither framed in the pleadings nor fully litigated. CONCLUSIONS OF LAW 1. Plumbers, Pipe Fitters, and Refrigeration Local Union 454, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, the respondent in the present proceeding, is a labor organization within the meaning of Section 2(5) of the Act. 2. Ebasco Services , Inc., Turner-McCoy, Inc., Ace Plumbing Company , and Natkins Company are employers engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 3 By refusing to refer Ellis B. Clark to the jobs specified in paragraph 8 of the complaint, and on the approximate dates specified therein , the respondent has not committed any unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) of the Act. RECOMMENDED ORDER In view of my findings of fact and conclusions of law, I recommend that the Board enter an order dismissing the complaint. "This custom is reflected in Lipsey. Inc, 172 NLRB No. 171