Sheet Metal Workers, Local 20

DECISIONS OF NATIONAL LABOR RELATIONS H()OARD Sheet Metal Workers International Association, Local IJnion No. 20, AFL-CIO and Robert Rainey, Jr. and The Employers Association of Sheet Metal Workers and Associated Roofers of Middlesex County, N.J., Party to the Contract. Case 22-CB-4031 October 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MI:MHBLRS JI-NKINS ANI) PNI:IlI.O On June 20, 1980, Administrative Law Judge John C. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a reply. 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 brief and has decided to affirm the rulings, findings, and conclusions1 of the Administrative Law Judge and to adopt his recommended Order. ' Under the exclusis, referral systiem betvween Respordenl and the Employers Associatilon. Rpondet, ith certain exceptnils, refers ernl- ployees to johs i the order that they sign he out-of-work list l'he (ien- eral Counsel estahblished that a large ltumher of individuals who had signed the out-of-w lork list after the Charging Party had been rfeired to work ahead f he Charging Party In addition. Respondenl admitted that not all of these out-of-sequence referrals fell within the exceptions tlo thie firsl-in-first-oul rule of the referral register. Accordingly, in iew of he evidence, we find that the Genelral Counsel established a prima acite case that Respondent violated Sec. 8(b)()(A) and (2) of the Act by discrimin- atorily refusing 1to refer the Charging Party for work However, i agree- ment with the Adminiistraivse L.av Judge we furtlher find that Respolnd- ent rebutted the General Counsel's prima juLcr case by establishing that the failure to refer the Charging Party had not been discriminatorils mio- tivaled. In so finding, we rely primarily on the fidlowing: The alleged discriminatory refusal to refer he Charging 'arty for vwork "v as remollte in time from the Charging Party's protected activity; Respondent re- ferred the Charging Party fr work on a number of tccasiolns after his inv(olvement in proltected activity, Ihe Charginlg Party had fiformed Re- spondent he wiould not he availahle for certain types of referrals,; and fi- nally, although Respondent culd have required the Charging Party to file a withdrawal card from its hiring hall because he was also being re- ferred for work out o'f nrlther hiring hall, Respondent did lt require him it file such a card In his exceptiions to the Administrative Ilaw Judge's Declsiot. the General Counsel contends hat, aside from establishing Respondent's al- leged discriminaltlry motivation, Respondent's arbitrary out-of-sequence referrals constituted an independent violation of Sec. (h)(I)(A) anld (2) of the Act he complainlt, however. did not raise that issue The complaint was narrowly drawn. and alleged only that Respondent violated Sec 8(b)(1)(A) and (2) of the Act by discrinmlnatorily refusing to refer the Charging P'arty for work because he had run fr union office and had testified adversely to Respondent's interest at a prior HBoard hearing At the hearing, the General Counsel made no attempt lo raise or litigate Re- spondent's arbhirary out-of-sequence referrals as a separate violation of the Act. In these circumstances, we find that Respondent was not suffi- ciently put on notice that such an allegationl was an issue to he litigated irl this case Therefire. we find it unnecessary to consider whether Re- spondenl's out-of-sequence referrals constilute a separate and indepenident 253 NLRB No. 18 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 that the complaint be, and it hereby is, dismissed in its entirety. (}aIatIo[I of the Act See. for exaiple. $',itinhruixc Fqu' . ri( (f orpurat-lul. Sma/l .Solor PlantI, 214 N I R It 7 1( 197 3) DI) CISI()N SI A II 11:N I 01 ill CASIE JOHN C. Ml. IR, Administrative Law Judge: This case was heard before me in Newark, New Jersey, on June 28, 1979.1 The complaint alleged that Respondent Union, since July 25, 1978, discriminatorily refused to refer Robert Rainey to employment with employer-mem- bers of the Employers Association of Sheet Metal Work- ers and Associated Roofers of Middlesex County, N.J., because he ran in ant intraunion election for the position of business representative, and testified in an unfair labor practice case against Respondent. Such conduct by Re- spondent allegedly violated Section 8(b)(1)(A) and (2) of the Act. On the entire record in this case, including my obser- vation of the wittiesses and their demeanor, I make the following findings: FIN)INGIN(S O FCI I. J L RISD)CI ION The Employers Association of Sheet Metal Workers and Associated Roofers of Middlesex County, N.J., herein called the Association, is an association of em- ployers engaged in the sheet metal industry in the State of New Jersey. In the course and conduct of their busi- ness operations during the preceding 12 months, employ- er-members of the Association produced and performed sheet metal work valued in excess of $50,IXX) in States of the United States other than the State of New Jersey. Accordingly, I find that the Association and its constitu- ent members are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is further alleged and admitted that Respondent Union, Local 20, Sheet Metal Workers International As- sociation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and I so find. II. TilE Al I I(;11) UNFAIR ABOR PR-XCTICIS A. Background It is undisputed that Respondent had a contract with the Sheet Metal Association which provided for an ex- At the clise f the hearing, Respndeit's culnsel reqlestel arid as granted unitil July I, h I79, uhmiiion of lale exhibhit As iiil laic exhibits ifr mtiolnli Iherelion were made, Ile record is deetied tin hlVe automati- cally closed ais of July . 197I 166 SHtEEl METAL WORKERS, LOCAL 20I elusive job referral system, i.e., all requests for employ- ees by emploer-mcmbers ,werc to be filled by referrals from the Union. The record also establishes that the out- of-work or job referral list was the responsibility of Arthur Brown, business manager of the Local Union, and that Robert DeBartolo. the business representative, assisted and took orders from Brown on the hiring hall's operations and, specifically, what individuals to call. Except on rare occasions when Brown was unavailable. DeBartolo did not have occasion to check the referral list. The operation of the hiring hall. The referral list was operated on a FIFO (first in, first out) basis, namely. that, subject to certain exceptions noted hereafter, the in- dividual whose name was registered first was referred out first. For example, in theory, an individual registered on the referral list on April 1, 1978, is referred out ahead of an individual registered on April 2, 1978, or thereaf- ter, provided that he is both qualified and available. While occasionally some individuals visited the hiring hall in person, the operation of the hiring hall was essen- tially conducted by telephone. In some instances, the op- eration of the hiring hall was not altogether clear. For example, Brown testified at one point that a number of individuals who were registered on the referral list told him they did not wish to be referred out for various rea- sons and would notify him when they were available. He retained such information solely by memory. When asked if they reverted to their original sign-in date when they became available, he at one point said yes and at an- other point said no, not if others were waiting who had been available. The exceptions which this Local operated under were as follows: (a) An individual requested by name by a con- tractor signatory to Local 20's contract would be referred out irrespective of his place on the referral list. (b) An individual who worked less than a month did not lose his position on the referral list. (c) An individual with unique skill qualifications is requested. (d) An individual who needed to requalify for benefits would be given preference in referral. This pertained to individuals who had not worked for an employer signatory to the contract for so long that they were in danger of losing benefit coverage be- cause no welfare fund payments had been made on their behalf. (e) An individual referred out for a one or two day job on a last minute request by a contractor. Because of lack of prior notice, any individual who was available to report to a job on short notice, would be referred without regard to his place on the referral list. Robert Rainey, Jr., credibly testified that he last signed the out-of-work list in November 1977, and that he was not referred to a job until January 29, 1979. Rainey was a member of the Union since 1961 and a journeyman since 1965 and was qualified as a mechanic and as a welder. Rainey ran for union office on two occasions. In 1973, he had run for the office of executive board of the Union, and in 1976 he ran for the position of business representative, a position held by Robert DeBartolo for some 12 years. Rainey was not successful in either clec- tion and in the 1976 election he ran third behind DeBar- tolo and William Kish. Sr., another union member. Rainey credibly testified that on the day of the election. Robert Jackson, a member of the executive board of Re- spondent, advised him. "You're running for a rough office .... If you lose its going to be a long time before you get some work." On December 6-7, 1976, a National Labor Relations Board hearing was held in which the Union was charged with failing to refer William Kish, Sr., because, inter alia. he had run against DeBartolo five times and because he had filed charges with the International Union which in- volved Brown, the business manager. Rainey appeared as a witness on behalf of Kish and, at this 1979 hearing, cre- dibly testified that Brown asked him what he was doing at the 1976 hearing. Rainey responded he was a witness for Kish. It was those two incidents, Rainey's running for the office of union business representative for which an elec- tion was held in June 1976, and his testifying on behalf of Kish and against the Union in a Board proceeding on December 6 or 7, 1976, that allegedly prompted the re- fusal to refer Rainey to jobs from November 1977, and thereafter. Rainey conceded that in 1976 he primarily worked out of the Pipefitters union hall (not the Sheet Metal Work- ers hall) and earned approximately $12,000 in that year. According to welfare fund records of Respondent (which reflect payments to the fund on his behalf), Rainey was referred by Respondent Sheet Metal Work- ers in 1977 as follows: (a) A & P Sheet Metal - in April 1977 for 6 days (b) Casal Sheet Metal - July 1977 (c) Westfield Sheet Metal - July 24, 1977 for 2 weeks (d) ABC Sheet Metal - August 1977 for I week (e) A & P Sheet Metal - October 1977 for 2-3 weeks (120 hours) (f) A & P Sheet Metal - November 1977 for I week (g) Metcon, Inc. - November 1977 for 2 weeks Rainey testified that he earned approximately $3,500 as a sheet metal worker in 1977, while welfare fund records indicated specific earnings of $4,358. Rainey also worked a number of months for a contractor named Schawlgi (an employer not a signatory to the contract) in 1976. Rainey did recall working for employers Westfield, ABC Sheet Metal, and Metcon in 1977, but could not specifi- cally recall working for the other employers. Rainey's claim that he made no earnings on the basis of referrals from Respondent's hiring hall in 1978 stands undisputed on this record, although he did earn some $8.000 from jobs he secured on his own. With respect to 1978 (the complaint alleged discrimi- natory refusal to refer from July 25, 1978, on), Rainey testified that during 1978 he personally went to the union 16h7 I)ECISIO)NS OF NAIIO(NAL LAB()R RELATIONS t()ARI) hall five or six times, and that he called the union hall about once a month to see if work was available. He also slated that he talked personally to Brown on three or four occasions to find out if work was available. As to an incident on January 24, 1979, Rainey visited the union office and, after complaining to Brown about the lack of job referrals, demanded to see the referral list. Rainey discovered some 16 pages of names of individuals who were placed on the referral list after him, many of whom had been referred to jobs. When Rainey discovered this, he confronted Brown with this information and threat- ened to file charges with the National Labor Relations Board. Brown claimed that Rainey was not interested in short-term jobs and also stated that Rainey had told him he would notify Brown when he was available. Rainey did, in fact, file charges with the Board's Regional Office on January 25, 1979, which were served on the Union on January 26, 1979. On January 29, 179, Rainey received a job referral. Rainey further testified that at the time he discussed with Brown about having Schawlgi pay into the welfare fund, which was ultimately established as having oc- curred in December 1976, he had advised Brown that since he still had a good job with Schawlgi, he was not interested in a job at that time and would let him know when he was available. Although Brown initially placed this conversation about Rainey's availability as occurring in December 1977, he later recanted and affirmed that the welfare fund payment on behalf of Rainey and relat- ed conversation on availability was made in December 1976.2 Respondent contends that Rainey had informed Brown that he was not available for work and when be became available he would notify the Union. The Union claims he did not notify the Union of his availability until No- vember 1978, and that he was referred out in late Janu- ary 1979, when a job became available. Brown further testified that Rainey had informed him he was not inter- ested in 2, 3, or 4 day jobs, and Rainey conceded that he had so advised Brown. Rainey quit a job with Anderson Roofing in 1979 and went to work as a pipefitter. B. Contentions of the Parties The General Counsel contends that a violation is es- tablished by Rainey's credible testimony that he had made himself available for work after registering for work on November 18, 1977, and further that the testi- mony of Rainey and his wife that no calls were received or referrals made from the union hall from late 1977 until January 29, 1979, is also creditable. He further contends that the General Counsel's Exhibit 3, the hiring hall re- ferral list, establishes that Respondent referred out nu- merous employees to jobs who registered after Rainey and contends that the Union has the burden of showing why such individuals were referred out of chronological order ahead of Rainey. Finally, the General Counsel contends that the failure to refer was motivated by Rain- ey's intraunion election campaign in June 1976, and his I While witness Brion retreated again from the 1976 date. I cannot credit that testimony. not only because of demeanor and inconsistency but because certain critical testimony was elicited by leading questions by Respondent's counsel or by counsel's recapitulation of testimony. testifying in a Board proceeding against Respondent in December 1976. Counsel for Respondent contends that Rainey had told Brown he would notify him when he became available and did not do so until November 1978, and therefore it was proper and lawful to refer other members ahead of Rainey until he became available. Thus, Respondent con- cedes that other individuals were referred out ahead of Rainey due to Rainey's alleged unavailability and alleges further that Rainey's testimony in the 1976 Board pro- ceeding differed from the testimony here. Alternatively, it is contended that even if there were an error in not referring Rainey out, it was not prompted by his election activities or testimony which occurred in 1976, and therefore was not violative of the Act. C. Issues (I) Was there credible testimony establishing that Robert Rainey was available for employment subsequent to November 1977 and extending to January 29, 1979? (2) If (I), above, is answered affirmatively, does Re- spondent's admission that it referred other individuals to jobs ahead of Rainey establish a prima facie case of a vio- lation of the Act? (3) Assuming, arguendo, that Rainey was available and Respondent failed to refute the General Counsel's prima facie case, does the evidence establish that the refusal to refer was discriminatorily motivated? D. Discussion and Resolution of the Issues (1) Was Rainey available for job referrals subsequent to November 1977, and more particularly, since July 25, 1978?I: The General Counsel's Exhibit 3 establishes and Re- spondent conceded that Rainey did in fact register on the out-of-work list on November 18, 1977. 1 also credit Rainey's testimony that he did call and visit the union hall at various times throughout 1978 and that the Union did not call him or refer him to any jobs. Accordingly, I conclude that Rainey was available for referral subse- quent to his registering on the out-of-work list in No- vember 1977, and particularly after July 25, 1978. 4 (2) Has a prima facie case been established against Re- spondent? Counsel for the General Counsel contends that if Rain- ey's testimony is credited that he was registered and available for work, and Respondent concedes that others were referred out-of-order ahead of Rainey, a prima facie case has been established; and Respondent is required to justify or prove that such other individuals fell within some recognized exception to the referral rules. Admit- tedly, Respondent has neither contended nor proved that the individuals referred out ahead of Rainey fell within :' At the hearinlg the ieneral Counsel noted that Sec I(Nb) limited the period of alleged discrimination back to Jul) 25 1978. and not Nosemher 1977. rIn so concluding. I credit the testimotny of Edv ina Rainey, the wife of Rbert Rainey. that during the pertinent period neither Brown nor )eBartolo attempted Io call her husband about as'ailahle johs It nleces- ,arily fll os that I do nt credit Brown or D)eBartolo to the extent they testified tli the contrary SHEET METAL. WORKERS, I.()CAL 20 some recognized exception to the first-in, first-out rule. Having rejected Respondent's contention that Rainey was not available, at this juncture, therefore, I agree with the General Counsel that a prima Jacie case of a violation exists." (3) Was the refusal to refer Rainey discriminatorily motivated? (a)Factors tending to establish a discriminatory motive. The record establishes that Rainey did run for the union office of business representative against incumbent Robert DeBartolo in June 1976. There were three candi- dates for the office that year and DeBartolo won, with William Kish, Sr., finishing second and Rainey, third. Subsequent to the election and for the balance of 1976, Rainey worked for a mechanical contractor named Schawlgi as a welder and had secured a job by referral through the Pipefitters union hall. Consequently, Rainey had no occasion to use the Sheet Metal Workers referral hall for 1976 and apparently the first part of 1977. In December 1976, Rainey testified as a witness on behalf of William Kish, Sr., who had brought a charge against Respondent similar to the one here, namely, that he had been denied referrals because, inter alia. he had run against DeBartolo, the union business agent. In that decision,6 the Administrative Law Judge and the Board dismissed allegations that Respondent had discriminated against Kish. As noted previously, Rainey's testimony that Brown inquired what he was doing at the hearing was undisputed and credible. Accordingly, I find that Respondent, specifically Brown, was aware that Rainey testified on behalf of Kish at a Board proceeding in De- cember 1976. Lastly, the large number of individual referrals who were referred out ahead of Rainey over a 14-month period of time renders it virtually impossible that all the jobs in question were short-term jobs of 3 or 4 days or less, or that they fell within some particular exception to the general rule of first-in, first-out rule of the union hiring hall. Nor, it should be noted, does the Union con- tend that individuals referred out ahead of Rainey fall within any special exception. An examination of the General Counsel's Exhibit 3, which is a copy of Re- spondent's referral or out-of-work list, discloses Rainey's registration as of November 18, 1977. In the 6 months that followed, some 217 names were registered on the list after Rainey. The General Counsel notes that over 400 individuals signed the register after Rainey did on November 1X, 1977, many of whom he claims were re- ferred out to jobs that Rainey would have accepted. Alleged threat conveyed by Robert Jackson. I have con- sidered and credited Rainey's testimony that Jackson told him that because of his election attempt, it would "be a long time before you get some work." While it is a factor and a part of the factual context to be considered, ' Cf Sheet .ertal W'orAIr International 4ssiatlron Lal 20. Ak1.- CIO, the Emplover .s.oiatn of Sheet .Meial i,rcr,, and 4visciatcd Roofers ofM,iddleiex. C'ounr' NJ, 233 NLRB 732, 735. fn 11 (1977) While the burden f proof never shifts from the General Counsel, the burden of the proceeding shifts to Respondent to rebut his prima Jacii case, either hby showing that such referrals fell wllthin legitimate excep- lions to the hiring hall rules r, alternatively, that the failure to refer as not discriminator-ly motivlted e Supra. fn 5 Jackson even though an executive board member, had nothing to do with the operations of the job referral system, and I find it merely reflected his personal view, speculative at best, at what might occur later. Since the election in June 1976, was 1-1/2 years after the claimed discrimination occurred in November 1977, it was too remote to be meaningful. Moreover, as recounted else- where, Rainey finished a distant third in the 1976 elec- tion and was not, therefore, a meaningful threat to De- Bartolo's continuance in office. (b) Factors indicating nondiscriminatory motivation in the failure to refer Rainey for some 14 months. Remoteness. There is no claim here that Rainey was discriminatorily denied referral in 1976 or approximately 11 months in 1977. In 1977, Rainey received a number of referrals, and there is no claim or contention that Rainey was discriminatorily denied referral from approximately March to November 18, 1977. Yet nothing occurred during that period to exacerbate relations between Rainey and Brown or Rainey and DeBartolo. It would appear more logical that Rainey would have been dis- criminated against in the period following the Board hearing in December 1976. Under the General Counsel's theory, some 11 months after the Board hearing, the union representatives, Brown and DeBartolo, were sud- denly discriminatorily motivated to not refer Rainey to jobs. 7 Dismissal of similar allegations by William Kish, Sr. Kish had run for the office of business agent five times. In a similar Board proceeding," the evidence was found lacking to sustain allegations that Kish was discriminator- ily denied referrals because of his intraunion activities in running for union office, and his disputes with Brown, the business manager. Since Rainey ran only once for business representative and finished third of three candi- dates in 1976, it is arguable that there was even less probability of any animosity or ill will being generated against Rainey than against Kish. Limitations on availability. Brown testified and Rainey conceded that he had informed Brown that he was not interested in referrals to 2, 3, and 4 day jobs. Conse- quently, Rainey had effectively removed himself from a portion of available referrals by his request that he only be considered for longer term jobs. It was also an ac- cepted practice in this Local that anyone referred out to jobs lasting less than a month did not lose their position on the referral list. Alleged inconsistency in testimony by Rainey. In his testi- mony at the first Board hearing in 1976, Rainey stated that he had not been referred by Respondent from Janu- ary until December 6, 1976. It appears that Rainey's tes- timony was incomplete and in part misleading since he was employed for most of 1976 as a welder with Schawlgi, a mechanical contractor not an employer- member of the Association, and was not actively seeking 7 he General Counsel notes that the Hoard Decision against this same tinion. upra. fn 5, issued November 22. 1977. affirming the dismissal of charges against the Union. and that thereafter Raiiey as not referred out to jobs hto eCSer the Dcclsion f the Admlnistratite l.a" Judge issued in FhruarN 1977 .Supru. fn 5 DECISIONS OF NATI()NAL IAB()R REIlA'IIONS BOARI) referrals through the Sheet Metal Workers hiring hall. In effect Rainey had worked in 1976 as a pipefitter and not a sheet metal worker. In 1976, Rainey earned approxi- mately $12,000 as a pipefitter-welder, which was close to his average annual earnings as a sheet metal worker in the period from 1972-75. Job refjirrals through two hiring halls. Rainey testified that when jobs were short and he was unable to get job referrals through the Sheet Metal Workers hiring hall, he did seek employment on his own as well as at the Pipe- fitters hiring hall. At the earlier Board proceeding, Re- spondent here noted that despite the fact that Rainey had worked as a pipefitter in 1976, it had not insisted on Rainey taking a withdrawal card, despite his extensive work in another craft. While Rainey had the right to seek employment on his own as well as through the hiring halls of Pipefitters and Sheet Metal Workers locals, it does reflect on his availability for referral through Respondent's hiring hall, and Brown's percep- tion of his availability. 111. SUMMARY AND CONCL USIONS I have found that alleged discriminatee Rainey had signed the out-of-work list on November 18, 1977, and had made himself available for work during the period from November 1977 through January 29, 1979. In so doing, I have credited Rainey and his wife that Respond- ent, through Brown or DeBartolo, did not make any at- tempts to refer Rainey for employment during such period. Conversely, I reject Respondent's defense and do not credit Brown9 that Rainey had informed Brown that he would let him know when he was available for em- ployment and did not do so until November 1978. I further conclude, however, that the refusal to refer was not discriminatorily motivated, i.e., was not caused by Rainey's participation in an intraunion election in June 1976, nor his participation in a Board proceeding in December 1976, at which he testified against the Union. In so concluding, I am persuaded by a combination of factors which include: the period of the alleged discrimi- natory refusal to refer, namely, November 1977 to Janu- ary 1979, was remote in time from the alleged protected 9 ron at one point testified that Rainey was not referred out be- cause he had told Brown that he would let him know when he was avail- able At another point, in response to a leading question by his counsel he affirmed that on six or possible less occasions he had attempted to contact Rainey by telephone for job referrals and was unsuccessful See also fn 2 intraunion activity which occurred in June and Decem- ber 1976 the limitations on Rainey's availability, i.e., his acknowledged refusal to accept 2, 3 or 4 day jobs; the fact that during the period of March through early No- vember 1977, there is no contention that Rainey was dis- criminatorily denied referral, and welfare fund records established at least seven job referrals in the period fol- lowing his testimony against the Union; Rainey ran against DeBartolo for union office, not Brown and it was Brown who controlled the hiring hall operation; Rainey also worked out of two union hiring halls. In addition to Respondent Sheet Metal Workers hiring hall, Rainey sought and was occasionally referred to employment from the Pipefitters Union. Lastly, while there was knowledge of Rainey's activities, there is little or no evi- dence of animus (apart from the alleged refusal to refer) or animosity toward Rainey on the part of Brown or De- Bartolo. Brown, for example, suggested and assisted Rainey in December 1976, in extending his qualifications for welfare fund benefits. Upon consideration of all the above factors, I am not persuaded that the failure to refer Rainey was discrimin- atorily motivated and find that the prima facie case has been rebutted and that no violation of the Act has oc- curred. 1 0 Accordingly, I shall recommend dismissal of the complaint. ORDER ' The complaint alleging that Robert Rainey was discri- minatorily denied job referrals on and after July 25, 1978, and that Respondent thereby violated Section 8(b)(1)(A) and (2) of the Act, is hereby dismissed. "' Whether or not the failure to reter Railey was prompted by Brown's perceplion that Raline Aa, uuail l eniploicd someahere and was notl sitting around is speculali e as it Is nt clear ,hether Ihe failure to refer was inadvertent or as hased (ii Brlnrl's mistaken belief that Rainey was to notify hint or was employed elsewhere as opposed to other individuals on the list ssah rre 1(not employed at all In iea of Rainey's working through he 'ipcfiltters luiring hall as "aell as his scour ing employment on his own. either possibility is feasible I d rlot reach ior decide whether the refusal to refer an idividual who is otherwise em- ployed outside the trade over an individual who is not employed at all is discriminatory absent specific evidelce of discriminatory intent It In the event no exceptins are filed as provided hby 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. ad Order, and all objections thereto shall be deemed waived fir all purposes 170