Carpenters Local Union 2020

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local Union 2020, and San Diego County District Council of Carpenters, AFL-CIO (Solana Lumber Company) and Michael Ralph Bailey Case 21-CB-5330 June 14, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On February 19, 1976, Administrative Law Judge Maurice M Miller issued the attached Decision in this proceeding Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to General Counsel's excep- tions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders the complaint herein be, and it hereby is, dis- missed in its entirety i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge s resolutions with respect to credibih ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 ( 1950) enfd 188 F2d 362 (CA 3 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MAURICE M MILLER, Administrative Law Judge Upon a charge filed June 18, 1975, and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing dated August 13, 1975, to be issued and served upon Carpenters Local Union 2020 and San Diego County District Council of Carpenters AFL-CIO, designated as Respondent Unions within this Decision Therein, Respondent Unions were charged with the commission of unfair labor practices affecting com- merce within the meaning of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended 61 Stat 136, 73 Stat 519 Within Respondent Unions' duly filed answer-modified in certain limited respects when this case was heard-various factual statements within General Counsel's Complaint have been conceded Respondent Unions have, however, denied the commission of unfair labor practices Pursuant to notice, a hearing with respect to the issues was held before me in San Diego, California, on October 21, 1975 The General Counsel and Respondent Unions were represented by counsel Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues Since the hearing's close, briefs have been received from General Counsel's representative and Respondent Unions' counsel, these have been duly considered Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Respondent Unions raise no question, at this stage, with respect to General Counsel's jurisdictional claims Upon the Complaint's relevant factual declarations-specifically those set forth in detail within the second paragraph there- of-which Respondent Unions now concede as correct, and upon which I rely I find that Solana Lumber Compa- ny, the concerned Employer herein, was throughout the period with which this case is concerned an employer with- in the meaning of Section 2(2) of the Act, and engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute Further, with due regard for presently applicable jurisdic- tional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives II THE RESPONDENT UNION Carpenters Local Union 2020 and San Diego County District Council of Carpenters , AFL-CIO, designated as Respondent Unions Local 2020 and District Council with in this decision, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act, as amended Throughout the period with which this case is concerned , I find M N `Bud" Long, Local 2020's financial secretary and District Council of Carpenters business representative has functioned as Re- spondent Unions' agent within the meaning of Section 2(13) of the statute III THE UNFAIR LABOR PRACTICES CHARGED A Issues Section 8(b)(2) of the statute provides that it shall be an unfair labor practice for a labor organization or its agents 224 NLRB No 113 CARPENTERS LOCAL UNION 2020 793 to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3), or to discriminate against an employee with respect to whom membership in such organization has been denied or termi- nated on some ground other than his failure to tender the periodic dues and initiation fees normally required as a condition for procuring or retaining membership Herein, General Counsel contends substantially that Re- spondent Unions violated Section 8(b)(2) when Local 2020's dispatcher, consistent with Financial Secretary Long's purpose, refused to dispatch Michael Ralph Bailey, complainant herein, for temporary work, pursuant to re- quests for worker referral which Solana Lumber Company had conveyed, because of his previous failure to maintain union membership, that Respondent Unions had thereby caused or attempted to cause discrimination by Solana di- rected against Bailey for statutorily-proscribed reasons, and that Respondent Unions course of conduct-thus de- scribed-had restrained and coerced Bailey, with respect to his exercise of rights statutorily guaranteed Respondent Unions presently seek determinations, con- trariwise, that Bailey's union membership had been 'law- fully" suspended because of dues delinquency, that Gener- al Counsel's claimed discriminatee had thereafter failed to comply with Local 2020's dispatch procedures, that Local 2020 s dispatch list had not contained Bailey's name when that organizations dispatcher was referring workers for temporary Solana Lumber Company positions, and that Bailey had not been dispatched for work with the firm designated because Solana had not desired his referral With matters in this posture, so Respondent Unions con tend, they cannot legitimately be charged with statutory violations B Background 1 The Employer concerned Throughout the period with which this case is con cerned, Solana Lumber Company, a California corporation (which will be designated Solana hereinafter), has main- tained its principal place of business in Solana Beach, Cali- fornia, some miles north of metropolitan San Diego, where it manufactures and sells lumber, lumber components, and related building materials 2 Respondent Unions and their relevant contracts Currently, both Respondent Unions are privy to a mas ter labor agreement with San Diego Lumber and Wood Products Association, which they had negotiated for a 3- year, 1974-1977, term Solana has also been considered privy thereto because of Association membership Respondent Unions have, further, negotiated a number of comparable "lumber yard contracts which various San Diego County firms, not bound by the master labor agree ment previously noted, have separately signed These con- tracts, likewise, provide for 3-year, 1974-1977, terms J A - M A C Construction Company, headquartered in Nation- al City, California, was, throughout the period with which this case is concerned, privy to one such separate "lumber yard" labor agreement The master labor contract for these pattern "lumber yard' contracts contain similar union security provisions They require newly-hired workers to become Union mem- bers "on or after the expiration of thirty-one continuous or cumulative days of employment" and to maintain "mem- bership in good standing" thereafter Inter aha, they pro- vide, further, that employers privy thereto "shall notify the Union of job vacancies" before new, additional, or replace- ment workers may be hired, that such workers, before starting work, shall "obtain from the Union office a refer- ral slip" which must be presented to the requisitioning em ployer or his representative Contractually bound firms have however, been granted entire freedom of selectivity of hiring" save for various commitments, which mutually bind both Respondent Unions and their signatory firms, that referrals will not be refused, nor referred workmen rejected, because of certain specified discriminatory con- siderations, provided that such workmen are sufficiently `skilled and competent" to perform "efficiently" those tasks for which they may have been requisitioned 3 Local 2020's referral procedure To effectuate these contractual provisions, Local 2020 maintains a so-called Official Nondiscriminatory Employ- ment List which qualified workmen who desire employ ment within the local's trade jurisdiction may sign Such workmen need not be union members In practice, workers seeking a job referral may sign Local 2020 s list personally, they may also telephone a request that their name be listed The local s clerical workers, who normally take telephone calls, generally comply with such "call in' requests Lists are maintained weekly New list forms are normal- ly prepared each Monday, when they are laid out for signa- ture The lists maintained during previous weeks are regu- larly retained, however These are used, together with the current week's list, when workers are dispatched, with pref- erence in referral given those workmen who have been list- ed as seeking work for the longest period of time within a 2-month period Workers who may have missed registra- tion, personally or by telephone, for I week, within the 2 month period which the dispatcher may consider, suffer no penalty Further, Local 2020's dispatchers require no specific showing before referrals are made that particular workers considered qualified for referral have been listed within the current week Throughout the period with which this case is con- cerned, Solana, consistently with its contractual commit- ments, has routinely requested workmen whenever they have been needed from Local 2020's hall, those requests have been regularly communicated through telephone calls Credible testimony proffered by Howard Snell, Solana s components division manager, warrants a deter- mination, which I make, that he has frequently requested the names of qualified workmen currently listed for job referrals, and that he has requested referrals of designated workmen known to him 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 Bailey's work history Michael Ralph Bailey, complainant herein, had previ- ously worked for Solana during a 4 year, 1970-73, period, Snell, so the record shows, had considered him a qualified component builder Such workmen normally prefabricate or construct modular wooden subassemblies, known as truss configurations, for subsequent jobsite incorporation within structures under construction During the year last designated, however, Complainant had been discharged for absenteeism, Solana's management, so Snell's credible testimony shows, no longer considered him "eligible" for permanent reemployment During 1974 Bailey had worked for J A -M A C Con- struction Company, for some 8 months before August 1974, he had held a foreman's position In that capacity, he had been authorized to assign work, to permit early depar- tures when workers reported illness, and to hire workers, following conferences with his supervisor He had been considered, inter aka, responsible for directing a 12-man crew Following the conclusion of his period of conceded supervisory service, Bailey remained in J A -M A C's hire, he was then, however, merely a rank-and-file component builder Throughout this period, Bailey had retained his union membership However, he did become a dues delinquent On September 30, 1974, his union membership was sus- pended, complainant had then failed to pay his union dues for 3 months at least During November 1974, when he tried to cure his dues delinquency with a $30 remittance, complainant was notified that he had been suspended and that Local 2020 declared that he would be required to re- join as a new member His initiation fee, so he was told, would be $210 plus $11 75 monthly dues, he was notified, however, that his $30 remittance had been applied toward his initiation fee 5 Bailey's loss of work During February 1975, Bailey lost his J A -M A C com- ponent builder's position, which he had then held for some 5 or 6 months, when that firm suffered a Government clo- sure because of tax delinquencies Following his J A -M A C layoff, however, Bailey re- ceived a substantial termination check, together with his vacation pay His testimony herein, proffered without con tradiction, warrants a determination, which I make, that he visited Local 2020's hall shortly thereafter, he told a secre- tary there that he wished to get `squared away" with re- spect to his financial obligations Complainant was ad- vised, however, that he would not be required to satisfy those financial obligations until he resumed work Thereafter, during the 2 month period which followed, Bailey registered for job referrals with Respondent Local several times His name, so the record shows, was placed on Local 2020 s so-called out-of-work list-sometimes fol- lowing a personal visit to the Union's hall and sometimes pursuant to his mere telephone request-both on March 6 and 27, 1975 Further, Bailey was likewise registered on April 3 as still seeking work During this period, so I find, Complainant had tele- phoned Solana several times seeking work, when he could not speak with Division Manager Snell directly, he left messages My factual determination in this connection de- rives from Snell's credible testimony When presented with General Counsel's leading question, in this connection, Bailey had first confirmed Snell's recital Then, following Respondent Unions protest, when I requested him merely to state "how many times" he had been 'in touch with somebody at Solana" with regard to work during the two- month period now in question, the Complainant had re- plied, `Not at all " Subsequently, when queried by General Counsels representative with regard to his contradictory testimony, Bailey claimed that he had misconstrued my question, he declared, then, that he had communicated with Snell seeking a possible job some four or five times With matters in this posture, I have not considered Bailey's shifting testimony reliable Sometime during the last week in April, complainant re- portedly learned from a friend, Ralph Bhsh, currently in Solana's hire, that some temporaryjob opportunities would possibly be developing there Blish suggested that Bailey would be well advised, therefore, to keep his name current on Local 2020's dispatch list since Solana would probably be seeking workers within a week Bailey, when first questioned by General Counsel's rep- resentative, declared that, thereafter, he had, consistent with Bhsh s suggestion, telephoned Local 2020 during April's last week with a request that his name be placed on the Local's job referral list However, when produced for review during hearing of this case, the Local's dispatch lists, either for the full calendar week which began Mon- day, April 21, or the week which began April 28 did not contain complainants name The record reveals that Bailey's name had previously been properly listed - with telephone "call in" notations whenever relevant - consis- tent with his March 6 and 26, and April 3 requests Noth- ing herein suggests that Local 2020 s secretaries would have failed or refused to list complainant's name, had a telephone request for such listing indeed been received during the last week of April Bailey, when questioned, could not account for the fact that April 3 was shown as his sole registration date during the month now under con sideration With matters in their present posture, within my view no determination would be warranted that Local 2020's clerical workers had deliberately or negligently failed to record Bailey's name His testimony that he had "called in" during April's penultimate or final week-with a request that he then be listed for dispatch carries no per- suasion C Respondent Locals Failure To Refer Bailey 1 Solana's May 5 request for temporary workers On Monday, May 5, 1975, Solana s components division manager, Howard Snell, did telephone Local 2020's hall CARPENTERS LOCAL UNION 2020 and spoke with Dorothy Sanchez, Respondent Local's of- fice secretary Sanchez was requested to refer `three or four or five" component builders Snell, though clearly a neutral disinterested witness, could provide nothing more than a generalized somewhat confused recital with respect to his May 5 telephone call First, he could not recall clearly whether he had telephoned Local 2020 on May 5 or 6, and when prompted with a calendar reference, he conceded finally that May 5 was "probably" the correct date Secondly, he could not recall whether Local 2020's secretary, when she responded, had proceeded to name various workers qualified as compo nent builders who were then listed for dispatch During his direct testimony, however, Snell conceded that previously he had "sometimes" been provided with the names of reg- istered men and had requested workers by name Thirdly, he testified "I believe I said I would take Bailey if he was on the list " However, when queried subsequently with re- spect to whether he had rather declared that he would "even" take Bailey, Snell conceded that his statement could have been phrased either way Respondent Local's secretary did tell him, so he recalled, that Bailey was not listed Complainant herein, when summoned as General Counsel's witness directly following Snell's testimony, de- clared, categorically, that he, himself, had telephoned Lo- cal 2020 sometime during the morning of May 5 with a request for registration, he could not say, however, wheth- er his "call in" request had preceded or followed Snell's telephone contact, noted herein When given Respondent Local's dispatch list, however, Bailey found no record with respect to his purported May 5 registration, Local 2020's record merely showed a subsequent May 7 registration, which will be considered heremaf per Nevertheless, despite his failure to locate his claimed May 5 registration Bailey reiterated his prior testimony He declared that to the best of [his] knowledge" he thought" he had telephoned Re- spondent Local on Monday, May 5, he conceded, howev- er, that he could not be positive In my view, based on this record, Bailey's testimony with regard to his purported May 5 registration must be rejected, the record, considered in totality, warrants a determination which I make that he was not currently listed for referral when Local 2020 s sec- retary received Snell's dispatch request While a witness, Solana's division manager was ques- tioned further with regard to a telephone conversation with complainant herein, which he testified had taken place "sometime" during the period with which we are now con- cerned Snell could not recall, however, whether he had called Bailey or whether complainant had called him, nei- ther could he recall, initially, whether they had conversed `before or after" his [Snell's] request for component build- ers When queried by General Counsel's representative, Solana's division manager testified, finally, that Bailey had called himfollowing his [Snell's] telephone request for com- ponent builders, that Bailey had, during their conversation, reported a prior visit to Local 2020's hall, and that com- plainant had, further, reported Respondent Local's refusal to dispatch him because of his dues delinquency record Subsequently, when queried by Respondent's counsel, Snell could not recall the substance of his telephone con- versation with Bailey, more particularly, he could not re- 795 list Bailey, when queried subsequently, proffered no cor- roboration with respect to Snell's less than positive recol- call whether complainant had reported that he was told his name could not be found on Local 2020's current dispatch lections, instead, he denied any telephone conversation on May 5 with Solana's division manager With matters in this posture, Snell's testimonial sugges tion that his telephone conversation with Bailey could have taken place on May 5, shortly following his conceded re- quest for component builders, must be rejected While a witness, Solana's division manager conceded that, since he was then "running two plants' while "moving around" fre- quently, he had not considered Bailey's telephone call par- ticularly worthy of note When summoned in Respondent Union's behalf, San- chez conceded that she had received Snell's May 5 tele- phone request She testified that Snell had then requested her to designate, by name, various component builders reg- istered on Local 2020's referral list, that she had, there- upon, reviewed Respondent Local's current "out-of-work' list, together with her file of retained April registration lists, and that Solana's division manager had thereafter been provided with ten names (which Sanchez specified for the present record) from which he could freely designate those whom he wished dispatched or those whom he might wish referred for prehire consultation Sanchez' procedure in this connection, so she testified, comported with her past practice Previously, when Snell had requested referrals, Local 2020's clerical staff had pro- vided him with the names of those qualified workers who were currently available, Snell had then designated those whom he wished dispatched Respondent Local's person- nel would telephone the workers designated, notifying them that they were being dispatched The workers she named, so Sanchez testified, had either personally or by telephone previously registered for work on various dates scattered throughout Respondent Local's retained April dispatch lists Snell, when given their names, had rejected some, however, he had requested Local 2020's secretary to dispatch several of those designated Inter alia, Sanchez had (so her proffered recollections show) reported Bailey s resignation of April 3 When queried about Snell's reply, Sanchez testified "He told me that he would consider Mike Bailey if I didn't fill the order' Local 2020's secre- tary was then questioned, without objection from General Counsel's representative, with respect to whether Snell's comment, within her view, meant that he would consider Bailey's hire if she could not "fill [Solana's] order" with other workers whose referral had been requested Sanchez declared that she had thus construed Snell's remark With due regard for Snell's pervasive failures of recollec- tion, General Counsel's present contention in his brief that Solana s division manager had specifically requested Bailey's referral, cannot be considered, in my view, prepon derantly sustained Rather, Sanchez' relevant testimony, which General Counsel's witnesses have not persuasively controverted and which I credit in this connection, war- rants a determination, which I make, that Snell had de Glared his willingness to merely consider" Bailey's hire, such a tentative declaration reflects nothing more than his conditional acquiescence with regard to Bailey s possible referral 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Respondent Local's referrals Within a period of 3 days-between Monday, May 5, and Wednesday, May 7, specifically-five workers re- ceived dispatch slips from Sanchez, pursuant to Snell's prior indication that their referral would satisfy Solana's requirements Three of those dispatched were subsequently hired Gary Martinez, who had-so the record shows- registered for dispatch on both April 21 and 28, was dis- patched on May 5, he began work with Solana the follow- ing day Ralph Ochesky and James Ramirez were dis patched on May 5 and 6, respectively However, neither seems to have worked for Solana thereafter, their dispatch slips were subsequently voided Wayne Holt, who had, in- ter aha, registered for work on April 14, was dispatched on May 7, he began work that very day Frank Gonzalez who had signed Local 2020's out-of-work list on both April 1 and 17, likewise received a May 7 dispatch slip, with the following day shown as his starting date Shortly thereafter, Sanchez referred a sixth worker, Manuel Canizales, who was likewise hired The record provides no definitive date with regard to his date of dispatch, Solana's payroll record, however, reveals that, like Gonzalez, he began work on Thursday, May 8, presumably pursuant to Local 2020's prior referral 3 Bailey's registration for work On Wednesday, May 7, as Local 2020's relevant records show, Bailey finally registered for work However, his testi- mony herein-particularly with regard to his method of registration, and that registration's circumstantial con- text-reflects a significant lack of certainty, further, with respect thereto, Local 2020's business representative and clerical dispatcher have proffered recollections which, tak- en at face value, materially contradict Bailey's testimony as a witness a Bailey s testimony When summoned as General Counsel's witness, Bailey initially testified that sometime close to 10 15 on the morn- ing of May 7, Snell had telephoned him, that Solana's diva sion manager had then declared that his firm had tempo- rary work which would last a month or more for three or four people, and that he [Snell] had further declared he wanted Bailey to come to work Complainant replied-so he presently claims-that he would have to call Local 2020, that he would have to get "squared away" with that organization, and that he would call Snell right back Solana's division manager, testifying previously, had, how- ever, recalled no such conversation I find Snell's complete failure to corroborate Bailey's testimony, with respect to this matter particularly, significant The record shows that Solana's division manager, though concededly cognizant of Bailey's previously manifested desire for work, did not consider him personally "eligible' for permanent reem- ployment Presumably though, he would have tolerated Lo- cal 2020's referral of Bailey for temporary work, within my view, he would hardly have been likely to suggest or solicit his former subordinate's application Due regard for the record, considered in totality, per- suades me that Bailey's recollection, with particular refer- ence to Snell's purported telephone call during the early morning hours of May 7, merits rejection However, sometime during the morning of May 7, pre- sumably close to 10 30, Bailey, himself, did telephone Lo- cal 2020's office Inter aha, he testified he spoke with Re- spondent Local's financial secretary His proffered recollections, with regard to their conversation, read as fol- lows I called him on the phone and told him I had a job offer from Howard Snell And he said I could not go to work because I was no longer a member of the Union, and I had to start out at the bottom of the list and the reason I was no longer a member was because of a $2 50 strike fund [assessment] which I didn't pay sometime in the middle of '74 [emphasis supplied] During his direct testimony, Bailey mentioned nothing fur- ther with regard to the course of this telephone conversa- tion The record, however, reflects his subsequent conces- sion that another subject was probably" covered and that certain developments transpired, those developments will be considered further hereinafter Bailey testified that directly following his conversation with Local 2020's financial secretary he telephoned Solana's division manager, his testimony, with regard to what Snell was told during their 10 44 a in conversation, reads as follows I told him that Bud [Long] would not let me go to work because of my back dues and the strike fund and that I would appreciate it if he called me again some- time Maybe I would have things straightened out According to Bailey, Solana's division manager gave no indication during their May 7 conversation that Local 2020 had already dispatched several men-certainly four, and possible five-pursuant to his prior request Bailey testified that after his conversation with Snell, Bailey promptly telephoned Long again, he notified Re- spondent Local's financial secretary of his desire to "come down and talk' with him Long concurred with complainant's suggestion, commenting that he would show him Local 2020's records When Bailey, shortly thereafter, reached Respondent Local's office, Long did, inter alga, show him his dues rec ord That record, so credible testimony herein shows, re- vealed that Bailey's last previous dues payment had been made on June 21, 1974, his dues had been 3 months in arrears, therefore, when he had received his September 30 suspension Bailey's further testimony with regard to their conversation, summarized in relevant part, reads as fol- lows What I can remember he had my records open on top of his desk, and we sat down at the desk, and he was showing me in the records where I had not paid the $2 50 strike fund and he told me I was three months behind in my dues when I was suspended from the union, and it wasn't because of the dues, it was because of the strike fund That was his reasoning for not sending me to Solana Lumber I offered to CARPENTERS LOCAL UNION 2020 797 pay the strike fund and the initiation fee and all my back dues, and he would not accept it He said he did not want me in the union and that I should find an- other profession He said he did not want me in the union, and as I left, I signed the list, and he said he would go back into weeks' list [sic] before he would send me out on a job He would find someone else before he would send me out [Emphasis supplied ] When queried, further, by Respondent Unions' counsel, Bailey reiterated his prior testimony that Long had re- buffed his declared willingness to pay a new initiation fee because he did not want complainant's Local 2020 mem- bership renewed Bailey was queried subsequently, howev- er, with respect to whether it was possible that Long had really proffered nothing more than a suggestion that he would not be required to pay a new initiation fee or satisfy any further financial obligations, that "all [he] had to do was get [his] name" listed with Local 2020 for referral, and that he could then be dispatched for work Confronted with this formulation , complainant initially commented that he did not "understand" counsel's question When challenged further, however , Bailey declared that he could not "remember" such remarks by Local 2020's financial secretary b Long's testimony With respect to Bailey's May 7 visit, however, Long's proffered recollections provide a significantly disparate picture Although Respondent Local's financial secretary did initially concede a failure of recollection regarding the precise date of Bailey's visit, he finally testified, with his memory refreshed following a reference to Local 2020's referral records, that Bailey had consulted him while San- chez was still dispatching component builders pursuant to Solana's request Respondent Local's records do show that by May 7 three men had been dispatched while two more had presumably been contacted preliminary to referrals Long reported that when Bailey reached Local 2020's of- fice he declared that he had some work prospects, presum- ably with Solana, and that he desired a prompt referral there, but that, despite a prior May 7 telephone conversa- tion with Respondent Local's clerical personnel, he had not been given a dispatch slip According to Respondent Local s financial secretary, Bailey reiterated his desire to go to work right then" that very day, but was told that he would not be dispatched `ahead of the people previously registered on Local 2020's regular employment list Fur ther, Long reported that Respondent Local had already dispatched some workers to Solana, that more were being referred for "interviews" with Solana's division manager, and that he "thought" those workers who had previously been dispatched and/or referred would suffice to satisfy Solana's requisition Further, Long, while a witness, claimed that [Bailey] offered me to pay a new initiation fee if I would dispatch him to work, and I said no, and I re- fused to take his money I told him to get on the out- of-work list and wait his turn, and he would be dis- patched in order I told him that we are dis- patching people to Solana, and we have people re- ferred out for interviews I figured that they was sufficient I did say that I wouldn t dispatch him to Solana at that time, to get on the list and wait his turn These people were ahead of him Previously that morning, when Local 2020's financial sec- retary learned that Bailey would be coming to see him, he concededly removed complainant's dues record card from Respondent Local's file When Bailey arrived, Long had that record on his desk During Bailey's visit, so Long's testimony shows, the component builders dues delinquen- cy and consequent September 30 suspension were re- viewed Respondent Local's financial secretary claims he reminded Bailey that he had been permitted to continue working at J A -M A C Construction Company until that firm's business operations were suspended, despite his Sep- tember 30 suspension, that J A -M A C had in fact re- tained him for a component builder's work, despite a so- called "removal slip" which Local 2020 had sent that firm, bottomed upon his dues delinquency, and that J A - M A C 's regular trust fund contributions, bottomed upon his continued employee status, had been routinely credited, despite his suspension from membership Further, Long re- called that Complainants failure to pay a strike fund as- sessment, which had been levied upon Local 2020's mem- bers, was mentioned Concededly, however, Bailey was not dispatched pur- suant to Solana's prior requisition His visit, which lasted almost one hour, terminated without result so far as his dispatch or proffers calculated to settle his financial obliga- tions were concerned c Respondent Local's out-of work list Previously, within this decision, Bailey's direct testimony that he signed Respondent Local's dispatch list personally, directly following his May 7 conversation with Local 2020's financial secretary, has been noted When produced for complainant's perusal, however, Respondent Local's relevant employment" list concededly revealed his name, recorded in someone else's handwriting, with a parentheti- cal `Called In" notation Confronted therewith, Bailey fi- nally testified as follows I thought I signed the list when I left, but it was on the list already It had been called in earlier that morning By me Howard Snell had called me that morning I had then called Bud Long on the phone I probably had my name put on the list then I am not sure if I said it that morning, but on the records it shows that, that I did call in Well, I must have called it in that morning when I talked to Bud earlier [emphasis supplied] On Respondent Local's May dispatch list, produced for the record, Bailey's name stands eighth, within a group of 16 "out-of-work" registrants with May 7 registration dates Sanchez' testimony, which I credit in this connection, re- veals that Local 2020's office customarily opens for busi- ness at 8 o'clock She thought the position of Bailey's name on Respondent Local's dispatch list signified that his tele phone call had `probably been received 1 hour later 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d Discussion The testimonial conflicts herein between Bailey and Fi- nancial Secretary Long present the central problem of this case, their resolution, clearly, will be determinative Considered in totality-with due regard for the logic of probability, and those contributory factors which triers of fact may properly and reasonably consider when making credibility determinations-the present record, within my view, will not support Baileys proffered version with re- spect to these relevant May 7 developments Previously, within this decision, part of his testimony, with regard to Division Manager Snell's purported 10 15 telephone call, has specifically been rejected Further, his testimony as a witness, when summoned as General Counsel's witness, clearly reflects a significant failure of recollection with respect to his "call in" registration for work, during his first May 7 telephone contact with Local 2020's personnel When Bailey finally conceded, during cross-examination, that he might have" requested regis- tration, that he had "probably" done so, and that he "must have called [his name] in" during his first telephone con- versation with Respondent Local's clerical workers and fi- nancial secretary, he was not questioned further with re- gard to whether his registration request had preceded or followed Long's purported declaration that he "could not go to work" because he was no longer a Union member If complainant's registration had, in reality, preceded the fi nancial secretary's comment, his failure to mention that registration, coupled with his failure to protest Long's pur- ported declaration that his listing for dispatch would be futile, seems inexplicable If, however, Bailey's request for registration followed the financial secretary's dictum, his determination to register nevertheless, despite the fact that he had presumptively been given reason to believe such registration would be futile, cannot readily be rationalized Further, his subsequent failure to recall a work registration, possibly requested under such circumstances, necessarily generates doubt with respect to his testimony's reliability generally Finally, Bailey's direct testimony that he personally signed Local 2020's so-called employment list directly fol- lowing a conversation with Financial Secretary Long dur mg which he had been told that his renewed Union mem bership was no longer desired, that he should find another profession, and that Respondent Local's list would be searched for "someone else" who could be dispatched for available work before he would be referred, strains creduh ty Though complainant, when confronted with Respon- dent Local's documentary record, subsequently retracted part of his testimony-particularly with reference to his purported personal registration for work during the course of his Local 2020 visit-his proffered recollections, taken at face value, would suggest a disposition to pursue futile gestures Rather than credit Bailey with such less-than-rea- sonable behavior, I conclude that his testimony as a wit- ness derives from memories which have been colored by post hoc rationalization rather than verifiable recollections With Bailey's testimony thus discounted, Financial Sec- retary Long's generally contradictory recital-particularly with reference to their conversation's tenor, which San- chez, testifying in relevant part, corroborated- remains Though his witness chair behavior reflected some lack of certainty, with respect to various details, I find myself con- strained to generally credit his proffered recollections 8 Subsequent developments Within a week following his failure to procure a Solana Lumber referral, Bailey again visited Respondent Local's office and renewed his prior registration for work Local 2020's so-called employment list shows his May 13 registra- tion, though Bailey could not recall with certainty whether he had then signed the list in question personally Sanchez testified credibly that no Local 2020 clerical worker had subscribed his name Thereafter, complainant twice re- newed his registration, on May 21 and 27, with telephone "call in" requests Sometime in July 1975, Bud Blish, Local 2020's Solana shop steward, notified Bailey that a foreman's position might soon be open" with that firm Complainant confer red thereupon with Respondent Local's financial secretary His testimony with regard to their conversation-proffered without challenge or contradiction-reads as follows I think I checked into the Union with Mr Long if he would send me out as a foreman if Solana had called for a foreman's job He said he would if he had a call for a foreman If there wasn't anyone on the list [ahead of me] [in the foreman classification] he would send me out Snell, Solana s division manager, subsequently told Bailey, however, that Solana s current employees were then per- forming "lead man" functions and that he (complainant) therefore would not be hired for a leadman's or foreman's position During the month which followed, Bailey was dis- patched for work with the Dixie Line Lumber Company, then a signatory party bound by Respondent Unions' pat- tern "lumber yard" contract, previously noted Since pro- curing his present position, Complainant has completed his initiation fee payments which Respondent Local requires, likewise, he is currently "squared away' with respect to dues payments However, when this case was heard, he had not yet been "sworn in" formally as Respondent Local's member D Conclusions Upon this record, no Board determination that Bailey was improperly denied dispatch can reasonably be consid- ered warranted General Counsel's presentation, consisting of Bailey s less-than-coherent testimony and Snell's less than-positive corroborations, carries no persuasion My conclusion rests upon several grounds First The documentary record precludes a determina- tion, consistent with Bailey's testimony, that when Respon- dent Local received Solana's call for three or four or five temporary workers he [complainant] was currently regis- tered for dispatch Nor will it sustain a determination that SOLANA LUMBER COMPANY 799 he had previously been recently registered True, Respon- dent Local's retained employment list reflected his April 3 registration, that "call in" listing, however, had never been renewed prior to, or contemporaneously with, Snell's May 5 requisition Several workers qualified as component builders had, however, registered for work, and had there- after renewed their registrations between April 3 and May 5 Second Snell's qualified testimony, within my view, pro- vides no preponderantly sufficient warrant for a determi- nation that Bailey's referral had been specifically request- ed Previously herein Sanchez' testimony with regard to their May 5 telephone conversation has been noted While a witness she declared without qualification that Solaria's division manager had been provided with some 10 workers' names, taken from Local 2020's April-May employment lists She recalled he had rejected some of those mentioned but had suggested that others could be dispatched or re- ferred for job interviews With respect to Sanchez testimo- ny in this connection, Snell conceded a failure of recollec- tion, he could not proffer a categorical denial Respondent's secretary, while a witness, reported that Bailey's April 3 registration had, inter alga, been mentioned when she was listing Respondent Local s referrable work ers for Solana's division manager Before Sanchez testified, Snell had declared, while a witness, his "belief" that when he declared he would take Bailey, should the latter be reg- istered, he was told complainant was not listed I am satis- fied, however, that while Snell may have been told Bailey was not currently listed, he was notified, inter aha, with respect to complainant's previous April 3 registration The record, considered in totality, warrants a determination, bottomed upon Sanchez' testimony-which I have found within its total context worthy of credence-that Solana's division manager had, thereupon, merely declared his will- ingness to consider Bailey's hire That declaration can hardly be considered a straightforward request for Bailey's prompt referral Third General Counsel's presentation herein, within my view, warrants no determination that Bailey, despite his failure to register for work between April 3 and May 7, should nevertheless have been considered a prime candi- date for dispatch Three workers whom Sanchez did dis- patch-Martinez, Holt and Gonzalez-had been registered with Respondent Local subsequent to Bailey's April 3 reg- istration Complainant had, however, maintained no com- parable Local 2020 contacts Previously, within this decision, Respondent Local's preparation of dispatch slips for two more workers, Ralph Ochesky and James Ramirez-has been noted Possibly, Bailey could have been deemed "eligible" for prior referral With respect to Ochesky, however, Local 2020's current employment list revealed a May 5 telephone registration, his dispatch slip bore the same date, and he had been regis- tered, previously within the month, on April 21 With re- spect to Ramirez, Respondent Local's record does show a May 7 telephone registration subsequent to Bailey's re- quest for listing He (Ramirez) had, however, been given a dispatch slip previously on May 6 With due regard for Sanchez' testimony-wherein she described without chal- lenge or contradiction Local 2020's customary dispatch procedures-I have concluded that Ramirez must have been dispatched, like Ochesky before him, because Re- spondent Local s retained "out-of-work" list reflected his prior registration sometime within the last 2 weeks of April Certainly, General Counsel's representative, though given a chance freely to review Local 2020's complete April- May referral list, has made no showing whatsoever which would warrant a contrary determination Further, he has proffered no contention, herein, that Bailey's lone month- old registration had been disregarded for some statutorily proscribed reason, when Ochesky and Ramirez were being given their dispatch slips True, Respondent Local's rec- ords show that Manuel Canizales received a Friday, May 9 dispatch slip, subsequent to Bailey's May 7 registration, which bore a notation that he would be starting work three days later Solana's payroll records however, show Thurs- day, May 8 as Canizales' first working day Thus, whatever the circumstances may have been which precipitated his dispatch slip's belated preparation, I conclude that Cani- zales must have been notified with regard to his May 8 starting date through some prior telephone contact Gener- al Counsels representative has made no showing which would call for a contrary conclusion Considered in totali- ty, therefore, his presentation provides no substantial basis for a determination that Bailey should have been properly considered "eligible" for prior dispatch Fourth General Counsel's presentation, with respect to Bailey's May 7 Union contacts, provides no persuasive warrant within my view for a determination that he was being denied dispatch because of his prior financial delin- quencies, or because of his consequent suspension from Union membership True, when Complainant finally did visit Local 2020's hall, Financial Secretary Long was de- termined to review, then and there, his failure to satisfy a strike fund assessment previously levied, together with his dues delinquency record Within its total context, however, Bailey's further testimony with regard to their conversa tion-that Long refused his request for dispatch, specifical- ly because of his prior defaults and consequent suspension, while rejecting his promptly vouchsafed declaration of will- ingness to satisfy, forthwith, Respondent Local's various financial requirements-has been rejected I am satisfied, of course, that Bailey was told during his conversation with Respondent Local's financial secretary, that he would not be dispatched And, he may very well have declared his willingness, thereupon, to pay Local 2020's regular initia- tion fee, dues, and strike fund assessment, with the hope that he could, thereby, procure dispatch Testimony which I have credited, however, warrants a determination, within my view, that Long's refusal to direct Bailey's dispatch de- rived, not from statutorily proscribed considerations, but from his reasonably based belief that Solana's requisition had already been satisfied or that it would be satisfied with qualified workers who had previously been referred In this connection some reference should be made to Respondent Local's subsequently demonstrated readiness to list Bailey for possible work referrals Throughout the month his successive weekly registrations, whether by tele- phone or personal visit, were recorded without question During July 1975, he was promised dispatch for a possible supervisory position should Local 2020 be requested to re- 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fer someone for such work and should there be no quali- fied workers registered "ahead of him" with prior referral rights Later, during August, Bailey was dispatched for work with the Dixie Line Lumber Company When this case was heard, he was still working there Concededly, Financial Secretary Long's July declaration that Bailey could conceivably be dispatched for a supervisory position followed the service of his (Bailey's) June 18 unfair labor practice charge, filed herein Nevertheless, the financial secretary's course of conduct, within my view, provides some collateral support, however slight, for a determina- tion that complainant herein was never really disfavored for dispatch because of statutorily proscribed consider- ations 2(2) of the Act, engaged in commerce and business activi- ties which affect commerce within the meaning of Section ;(6) and (7) of the Act, as amended 2 General Counsel has not , herein, produced substan- tial, reliable, or probative evidence sufficient to justify a determination that Respondent Union refused to dispatch Bailey for available work which he was qualified to per- form because of statutorily proscribed considerations Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended , I hereby issue the following recommend- ed ORDER' CONCLUSIONS OF LAW 1 Solana Lumber Company, the business enterprise with which Michael Ralph Bailey hoped to find work dur- ing the period with which this case is concerned, was then, and remains , an employer within the meaning of Section The complaint is dismissed in its entirety 1 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes