Tenn Tom Constructors

250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Morrison Knudsen Company, Inc, Brown and Root, Inc , and Martin K Eby Construction Co , Inc severally and as a joint venture known as Tenn Tom Constructors and Edna Jane McDaniel International Union of Operating Engineers, Local 624, AFL-CIO and Edna Jane McDaniel, Be linda D Woodard, Bobby G Downs Cases 26- CA-8546 26-CB-1650 26-CB-1659 and 26- CB-1677 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND JOHANSEN On April 23 1982 Administrative Law Judge William N Cates issued the attached decision The General Counsel filed exceptions and a supporting brief and Respondents Tenn Tom Constructors Inc (the Respondent Employer) and Local 624 International Union of Operating Engineers (the Respondent Union) filed answering briefs The Re spondent Employer also filed cross exceptions and a supporting brief and the General Counsel filed an answering brief The National Labor Relations Board has delegat ed its authority 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 judge s rulings I find ings 2 and conclusions and to adopt the recom mended Order as modified I HIRING HALL We agree with the judge that the General Court sel has not demonstrated that the Respondent Union operated its hiring hall in an arbitrary i In light of our decision we do not reach certain of the General Counsel s exceptions regarding procedural matters Because we find that no discrimination in referrals has been proved we do not consider the exceptions that relate to the referrals themselves The exceptions that relate to the discriminatory fees are discussed further in the decision see fn 11 below 2 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an admintstra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings We note that at 23 LL I of his decision the judge inadvertently re ferred to Martin when he apparently meant Johnson It also appears that contrary to the judge s finding the Respondent Employer withheld money from some employees pay during several weeks in April 1980 designated for EPEC -the Respondent Union s Engineers Political Education Committee Nonetheless the record does not support a finding of a violation in these deductions The record mdi cater that these deductions were made for some but not all members and for some but not all nonmembers of the Respondent Union there is thus insufficient evidence to show that the deductions for nonmembers were not voluntary unfair or discriminatory manner It was shown that applicants were regularly referred out of the order in which they had signed the Union s out of work register but the judge credited the Respond ents witnesses-principally the Employers repre sentative Schiebler and the Union s representative Holloway-that these referrals were in accordance with certain agreed on and legitimate priorities In its exceptions the General Counsel argues that the lack of documentation that these priorities applied to specific referrals requires that the Respondents contentions be discredited The judge found that the Employer often requested employees by name orally and there were no written records of these requests 3 He also found that the Union referred applicants on the basis of their skills and experience as determined in the subjective judgment of Union Representative Holloway 4 These practices may lend themselves to abuse allowing a union to dis guise favoritism or patronage in referrals they are not however sufficient in themselves to prove such abuse 5 There is no evidence here or even any allega tion that the Union preferred its own members or supporters of its incumbent leadership in referral Indeed more than three fourths of the referrals in evidence were of nonmembers Nor is there any evidence of discrimination based on exercise of Section 7 rights or race or sex or on any other impermissible basis There is no credited evidence that the Union s agents favored their personal friends or used their positions in the referral system in a corrupt manner In these circumstances and on this record the determination of the reasons behind the various out of order referrals is essen tially one of credibility and we find no reason to disturb the judge s resolutions The judge found based on the credited testimo ny that the parties unwritten referral agreement required the Union to refer the most qualified indi vidual available at the time of a job opening that Holloway sought in good faith to determine the qualifications of applicants at the hiring hall 6 and 9 See Laborers Local 394 (Wakil Abdunafi) 247 NLRB 97 fn 2 (1980) 4 Cf Asbestos Workers Local 42 (Catalytic Construction) 164 NLRB 916 (1967) (sanctioning unions use of objective test) Electrical Workers IBEW Local 269 (National Electric) 149 NLRB 768 (1964) (same) 5 See Iron Workers Local 433 (AGC of California) 228 NLRB 1420 1437-1438 (1977) 6 Although the Union had no written rules or objective criteria con cerning experience and qualifications of the individuals utilizing the refer ral hall I find that the operation was not left to the unbridled discretion of Holloway or any other union official The determination was ob jectively considered in that a record was made of the individual s qualift cations as stated by the individual in conjunction with [Holloway sl own assessment based on questions he had asked the individual and the referral records which indicated whether an in Continued 291 NLRB No 40 MORRISON KNUDSEN CO that certain specific employees had skills and expe rience that qualified them for the jobs to which they were referred In the circumstances of this case we find that this evidence supports the infer ence that the employees who had such skills and experience were referred for that reason The same is true of employees who were on layoff status because of reductions in force medical leave or other reasons When the credited wit nesses testified that employees in that status were often recalled by oral name request but that recall was discretionary with the Employer the inference is justified that the specific employees who were in that status when they were referred had been re called in that manner A small number of referrals are unexplained on the record either because the Respondents offered no explanation or because their proffered reasons were rebutted by the General Counsel The judge however credited explanations for the vast majori ty of the hundreds of disputed referrals and the unexplained exceptions are insufficient to under mine his finding II FEES Relying on Operating Engineers Local 825 (Homan Co) 137 NLRB 1043 (1962) the judge dismissed the complaint allegations that the Union had discriminated against nonmember employees by charging them more than a pro rata share of the hiring hall costs We disagree with the finding and will remand for further evidence An apparent point of agreement between both the majority and the dissenters in Homan was that a union would violate Section 8(b)(2) and (1)(A) of the Act if the fees that it charged nonmembers for the use of its exclusive hiring hall were such that they represented more than the nonmembers pro rata share of the cost of operating the hiring hall Id at 1044 1048 Accord NLRB v Operating En gineers Local 138 (Hagerty Co) 385 F 2d 874 877 (2d Cir 1967) See generally Teamsters Local 357 v NLRB 365 US 667 676 (1961) (hiring hall prac tices that discriminate between members and non members in a way that encourages union member ship are unlawful) ' Homan held however that the dividual had worked on the waterway in the past Sec III D 2 penultimate paragraph The General Counsel points to the Employer s rejection of several re ferred applicants as unqualified and argues that these cases undermine the above-quoted conclusion We infer instead in the absence of contrary evidence that these cases represent nothing more than good faith errors ' There is no contention that the nonmembers might have had any ob ligation pursuant to a lawful union security clause to support functions of the Union other than a hiring hall because there is no such clause in evidence and in any event this case arises in Mississippi a State gov erned by right to work laws See NLRB v Operating Engineers Local 138 (Hagerty Co) supra 385 F 2d at 877 251 mere fact that the fee paid by a nonmember is roughly equivalent to the monthly dues of a member is not sufficient in and of itself to es tablish that the former has been required to pay more than his fair share for the use and operation of the hiring hall Id 137 NLRB at 1044 Because the General Counsel had shown only a rough equivalency between membership dues and non member fees and had made no attempt to specify the fair cost of [the Union s] referral procedures and the pro rata share of each registrant the Homan majority held that the General Counsel had not proved a violation 8 Here the Union charged every employee a 5 cent an hour service fee when he was working In addition between July 21 1980 and late April 1981 the Union charged nonmember registrants at the hall $10 per week as applicant service dues Before and after that period the Union charged $5 per week as applicant service dues In contrast before July 21, 1980 the Union charged its mem bers quarterly dues of $30 or $36 or $2 30 or $2 77 per week At the same time that the Union doubled the nonmembers weekly dues it raised members dues by $1 per month to a weekly equivalent of $2 54 or $3 When asked if he could explain why the fees for nonmembers were so much higher than the mem bers dues Union Representative Holloway stated that he could not He also indicated that there was no change in services provided to nonmembers when their service fee was doubled in late July 1980 The judge found that the services provided by the hiring hall to members and nonmembers were the same Given that nonmembers paid ap proximately twice the amount of fees as members for the same services we find that the General Counsel has made out a prima facie case that non members are paying more than their pro rata share of the costs of operating the hall and that the burden should shifts to the Union to rebut the in 8 Although the Board in Homan also observed that the General Coun sel had failed to show the fair cost of the respondent union s referral procedures it is not clear that the holding would have been the same had the relative amounts of union dues and nonmember referral fees been sub stantially different If the decision had rested solely on the General Coun sel s failure to make a cost showing the Board would have had no reason to recount the sums that union members paid to the union in addition to monthly dues 9In the period of late July 1980 to late April 1981 the Union also charged members of sister locals $5 per week as travel service dues For the same reason as expressed above regarding the applicant service dues we find that the General Counsel made a prima facie case of dis cnmmation regarding the travel service dues for this period and that the burden should shift to the Respondent Union However in the pen ods before July 21 1980 and after the end of April 1981 the Union charged members of different locals travel service dues of $2 50 per week Inasmuch as this was approximately the same or less than the Local charged its own members we find that the General Counsel did not make out a prima facie case of discrimination by the Union and that the burden should not shift to the Union for these periods 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ference of discrimination raised by the General Counsel 10 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed except as it alleges that International Union of Operating Engineers Local 624 AFL-CIO charged discriminatory fees to nonmembers for the services of its hiring hall and charged discriminato ry travel service dues to members of sister locals between July 21 1980 and late April 1981 IT IS FURTHER ORDERED that this proceeding is remanded to Administrative Law Judge William N Cates for the purposes of reopening the record in light of this decision The judge shall prepare and serve on the parties a supplemental decision con taming credibility resolutions findings of fact con clusions of law and a recommended Order con sistent with the remand Following service of the supplemental decision on the parties the provisions of Section 102 46 of the Board s Rules and Regula tions shall apply MEMBER JOHANSEN dissenting In agreement with the judge I would dismiss the excessive fees allegation against the Union based on the General Counsels failure to produce any direct evidence of the cost of operating the hiring hall as required by Operating Engineers Local 825 (Homan Co) 137 NLRB 1043 (1962) The majority s at tempt to distinguish this case from Homan falls short in that it shows only that there may have been a disparity in the fees charged nonmembers of the Union and members of sister locals for the use of the hiring hall and the dues charged to union members and any disparity may have been greater than in Homan This in no way meets the burden placed on the General Counsel to show the costs of maintaining and operating the hiring hall and that nonmembers paid a discriminatorily dispropor tionate share of these costs As found by the judge members paid dues on a quarterly basis whether working or not whereas nonmembers paid the weekly applicant service fees only when they were actually employed It is also quite possible that members used the hiring hall to a lesser extent be 10 The judges evidentiary rulings relating to the fees issue may be re considered at this hearing We do not here decide the agency status of Sophie Trudeau leaving that issue to the hearing on remand if necessary We do however affirm the judges denial of the General Counsels motion to amend the complaint making the Respondent Employer jointly liable for the discriminatory fees All the evidence establishing the Em ployer s liability if any was available to the General Counsel when the General Counsel alleged the violation by the Union In the circumstances of this case and especially in light of the numerous delays that have at ready occurred it would be unjust to subject the Respondent Employer to a new complaint allegation at this time Sec 102 17 of the Board s Rules and Regulations cause of more permanent employment than non members and the dues and other regular fees they paid more than covered their share of the costs of the hall It can hardly be said that it is more likely than not here that the explanation for the fee dis parity is an unfair labor practice and consequent ly there is no prima facie case Board case law clearly placed the burden to produce evidence on the General Counsel and no attempt to do so was made Coleman Garrett Esq for the General Counsel John S Gannon and Arthur Welhoelter Esqs (Dearborn and Ewing) of Nashville Tennessee for Respondent Tenn Tom Constructors Charles T Sykes Esq of Gulfport Mississippi for the Respondent Union DECISION STATEMENT OF THE CASE WILLIAM N CATES Administrative Law Judge This matter was heard at Iuka Mississippi on May 4 and 5 June 29 September 14 15 and 16 and October 19 20 21 and 22 1981 The hearing was held pursuant to an order consolidating cases consolidated complaint and notice of hearing issued by the Acting Regional Director for Region 26 of the National Labor Relations Board (Board) on November 19 1980 and is based on charges that were filed by various individual Charging Parties The original charge in Case 26-CA-8546 was filed by Edna Jane McDaniel an individual on July 21 1980 A first amended charge in Case 26-CA-8546 was filed by McDaniel on October 31 1980 The original charge in Case 26-CB-1650 was filed by McDaniel on July 31 1980 and amended a first time on October 31 1980 and amended yet a second time on April 22 1981 The ongi nal charge in Case 26-CB-1659 was filed by Belinda D Woodard an individual on August 1 1980 and a first amended charge thereto was filed by Woodard on Octo ber 31 1980 The charge in Case 26-CB-1677 was filed by Bobby G Downs an individual on September 30 1980 An amendment to the order consolidating cases con solidated complaint and notice of hearing issued on April 24 1981 and the consolidated complaint and amendments thereto in substance alleged that Morrison Knudsen Company Inc Brown and Root Inc and Martin K Eby Construction Co Inc severally and as a joint venture known as Tenn Tom Constructors (Compa ny) and International Union of Operating Engineers Local 624 AFL-CIO (Union) at all times material main tamed a practice agreement and understanding that the Union would be the sole and exclusive source for refer ral of employees to employment with the Company It is further alleged that since on or about January 22 1980 the Union has arbitrarily failed and refused to refer in accordance with the practice agreement and understanding to employment with the company em ployees Edna Jane McDaniel Mary Martin Patty John MORRISON KNUDSEN CO son Patsy Robinson Eloise K Payne Bobby G Down and others whose identity was unknown at the time the complaint issued It is alleged that the Union took the action regarding the refusal to refer the above individ uals for reasons that were unfair irrelevant arbitrary in vidious and a breach of the fiduciary duty owed the em ployees It is alleged by such acts and conduct that the Company has discriminated regarding the hire or tenure or terms and conditions of employment of its employees thereby discouraging membership in a labor organization and as such has violated Section 8( a)(1) and (3) of the Act It is alleged that by the same acts and conduct the Union has restrained and coerced employees in the exer cise of their rights guaranteed in Section 7 of the Act and has caused and attempted to cause the Company to discriminate against its employees in violation of Section 8(a)(3) of the Act and the Union thereby has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act It is further alleged that on or about July 24 1980 the Union acting through its agent Benny Splain solicited employee complaints and grievances attempted to coerce employees into withdrawing charges they had filed with the Board promised an employee employment if the employee would withdraw charges filed with the Board and further coerced employees by telling the em ployees to make sure they informed the Board agent that they did not want to sue the Union and they had no complaints or grievances about the Union It is alleged that such conduct on the part of the Union constitutes violations of Section 8(b)(1)(A) of the Act Finally it is alleged that the Union since on or about January 21 1980 in violation of Section 8(b)(2) of the Act has in accordance with the practice agreement and understanding between it and the Company referred em ployees for employment with the Company and has charged all employees referred for employment with the Company hourly and weekly fees as a condition of refer ral and employment and continued employment that such referral fees are not related to the enforcement of any valid union security clause that the fees are substan tially in excess of monthly union dues and are not rea sonably related to the cost of providing the referral serv ice and as such constitute a violation of the Act i The issues were joined by the Union s answer of No vember 26 and the Company s answer of November 28 1980 On the entire record made in this proceeding 2 in The General Counsel in his complaint alleged that Morrison Knud sen Co Brown and Root Inc and Martin K Eby Construction Co in dividually met the Board s jurisdictional standards inasmuch as the Com pany denied that the individual Company Respondents other than collet tively through the joint venture met the Board s jurisdictional standards and further inasmuch as no evidence was presented regarding jurisdic honal information contained in paragraphs 3(b) and (c) of the consolidat ed complaint I granted the Company s motion to dismiss those portions of the complaint that alleged that the three companies individually met any jurisdictional standards of the Board As a result of granting the motion the only remaining Respondent Company was the joint venture I likewise granted a motion to dismiss those portions of paragraphs 2(d) and (e) of the consolidated complaint that read and other contractors on the Tennessee Tombigbee Waterway z The Company s unopposed motion to correct the hearing record dated December 30 1981 is granted and the motion with the corrections is made an exhibit to this proceeding (ALJ Exh 1 ) 253 cluding my observation of each witness who testified and after due consideration of briefs filed by the General Counsel counsel for the Company and counsel for the Union I make the following FINDINGS OF FACT I JURISDICTION At all times material the Company a corporation maintained an office and place of business in Iuka Mis sissippi where it is engaged in construction work per formed on the Tennessee Tombigbee Waterway Project in the State of Mississippi During the year preceding is suance of the order consolidating cases consolidated complaint and notice of hearing the Company in the course and conduct of its business operation purchased and received at its luka Mississippi Tennessee Tombig bee Waterway Project products goods and materials valued in excess of $50 000 directly from points outside the State of Mississippi It is admitted and I find that the Company is and has been at all times material an employer engaged in corn merce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It is admitted and I find that International Union of Operating Engineers Local 624 AFL-CIO is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Brief Background The Tennessee Tombigbee Waterway is a federally funded project that commenced in 1976 The project consists of building an inland water canal from the Ten nessee River on Pickwick Lake to Mobile Alabama The waterway is being built to carry seagoing vessels to inland ports The projected completion date for the project is 1985 That portion of the project involved in the instant case for which the Company is responsible entails excavating 11 7 miles of the proposed waterway project in and around the Iuka Mississippi area at a cost of approximately $300 million B The Issues The principal issues raised by the pleadings are 1 Whether the Company and the Union at all times material maintained a practice agreement and under standing that the Union would be the sole and exclusive source for referral of employees for employment with the Company 2 If the issue described in issue I above is resolved finding an exclusive hiring hall arrangement has the Union in violation of the Act since on or about January 22 1980 arbitrarily and for unfair irrelevant and invidi ous reasons refused in accordance with the exclusive ar rangement to refer to employment with the Company employees Edna Jane McDaniel Mary Martin Patty 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Johnson Patsy Robinson Eloise K Payne and Bobby G Downs9 3 If the issue described in issue I above is resolved finding an exclusive hiring hall arrangement has the Union violated the Act by refusing in accordance with the exclusive arrangement to refer to employment with the Company individuals whose identies were unknown at the time of and not specified in the complaint9 4 If the issues described in issues 2 and/or 3 above are resolved in a manner that establishes that the Union violated the Act is the Company also jointly liable for the violations9 5 If the issue described in issue 1 above is resolved finding an exclusive hiring hall arrangement has the Union since on or about January 21 1980 charged all employees referred for employment excessive and discri minatroy fees as a condition of referral employment and continued employment9 6 Whether the Union on or about July 24 1980 solic ited employee complaints and grievances attempted to coerce employees into withdrawing charges filed with the Board and promised an employee employment if the employee withdrew charges filed with the Board and whether it coerced employees to tell the Board agent they did not want to sue the Union and they had no complaints against the Union C The Hiring Hall Arrangement Whether the Company and Union at all times material have maintained a practice agreement and understand ing that would constitute an exclusive hiring hall ar rangement is a complex and difficult issue to resolve That the agreement was oral and never reduced to writ ing somewhat clouds and complicates any clear under standing of what the agreement may have been The lack of clarity regarding ascertaining what the understanding was is further complicated by the fact that the three principal witnesses who testified regarding the agreement are at times somewhat contradictory and at other times inconsistent The three principal witnesses who gave tes timony concerning the arrangement between the Compa ny and Union and the overall functions and operations of the hiring hall were Union Respresentative James H Holloway Union Secretary Sophie Trudeau and Com pany Labor Relations/EEO Officer Douglas Schiebler Holloway and Schiebler were first called as adverse wit nesses by the General Counsel and later called as wit nesses by the Company and Union Schiebler testified that he in his capacity as labor rela tions coordinator/EEO officer acted as the liaison be tween the Company and the Union on all matter that pertained to labor or EEO on the project Schiebler tes tified he handled complaints of an EEO nature griev ances absenteeisms and was the sole individual author ized to requisition employees from the union hiring hall Schiebler testified the Company conducted three job conferences prior to work on the project with various labor organizations namely the Laborers Carpenters Cement masons Teamsters and the Union These prejob conferences resulted in a Tennessee Tombigbee Waterway Agreement State of Mississippi (G C Exh 2) According to Schiebler s understanding of the agreement referred to as the Stabilization Agree ment it came into existence at the time when the con tractors were putting together their bidding packages to bid for work on the project The Company sought the Union s help in putting together a package for biding purposes that would allow them to be competitive with nonunion firms Schiebler testified it was his understand ing on obtaining employees that basically the Company told the Union that they would give them first shot at supplying the personnel to the project Schiebler testa feed that the arrangement never resulted in a formal or written agreement with the Union Schiebler stated the Company agreed with the Union to secure employees from the Union to work in the various job classifications set out under Schedule A Groups A B and C of the Stabilization Agreement Schiebler testified there were approximately 580 employees who were referred through the Union working for the Company at the time of the trial Schiebler further testified that Schedule A of the Stabilization Agreement which is captioned Inter national Union of Operating Engineers Local Union Heavy Construction Wage Rates Power Equipment Classification contained the job classifications from which the Company would secure employees through the Union to fill those classifications Schiebler testified the Company did not have any employees employed in any job classification listed on Schedule A of the Stabile zation Agreement who were not secured through the Union Schiebler testified that in fact in order for an em ployee to go to work in any classification set out in Schedule A of the Stabilization Agreement the employ ee had to have a referral from the Union as long as the Union could supply employees Further Schiebler testi fled that the Company did not hire employees for those job classifications unless they had referrals from the Union or at least the Company had not as of May 4 1981 when Schiebler first testified Schiebler stated that as long as the Union could supply qualified people the Company would use the Union as a referral Schiebler in his first day of testimony stated that there had been occasions when potential employees had appeared at his office seeking employment in the various job classifications set out in Schedule A of the agree ment and were told they could not be hired by the Company unless they had referrals from one of the labor organizations named in the Stabilization Agreement The Stabilization Agreement did not call for an exclusive hiring hall arrangement Schiebler testified in response to questions from the General Counsel in his first day of testimony that when an individual arrived with a refer ral slip from the Union the individual was hired with only two exceptions namely that mechanics were inter viewed by the superintendent to ensure they were quali feed and second if a person had previously been em ployed by the Company the individuals employment history had to be checked before the individual could be placed on the payroll a second time Schiebler further stated that for an individual to go to work for the Corn pany the individual must have a referral slip from the Union that matched the order he had placed with the Union before the individual could be put to work MORRISON KNUDSEN CO 255 Schiebler testified there had been occasions when some of the five craft unions named in the Stabilization Agree ment had been unable to furnish employees namely the Carpenters and Teamsters and when that matter oc curred the Company utilized an employment service local people who knew others who could do a job and the recruitment training program Schiebler testified he had never had a problem obtaining employees from the Union involved in the instant case Schiebler testified that pursuant to the understanding between the Company and the Union the Company could make name requests for individuals from the Union and requests for minorities females extremely qualified employees employees in layoff status and summer work employees Schiebler testified the Union could refuse to send out a person the Company specifically requested however the Union would run the risk of the Company going ahead and hiring the individuals anyway that they had done so with respect to other unions in the Stabiliza tion Agreement but never with respect to the job classi fications of Schedule A of Stabilization Agreement which pertains to the Union Schiebler testified the Com pany has a goal of obtaining 30-percent minority employ ees and 6 9 percent female employees Some 4 months after his initial testimony in the instant case Scheibler testified it was his understanding that if a name request was made of the Union the Union would honor the request Schiebler testified with respect to seeking referrals from the Union regarding the kind of operator the Company wanted If we needed an experienced hand I told them We ve had a running battle since I ve been here at least over experienced people They would send us people They would not be experienced We d turn right around and would call Mr Holloway and we would have a battle royal on the phone So we came to the point where it s either you send us ex penenced people or we 11 go elsewhere and they in fact made an attempt and at least a well founded attempt to supply us with the qualified people that we asked for Schiebler testified the need for experienced individuals was based on the fact that the Company s equipment was very expensive and highly sophisticated He testified for example the P & H shovels utilized by the Company cost $14 million each and as such it was not possible for the Company to have inexperienced operators handling such costly equipment A further example cited by Schiebler was that a grader cost a $50 million Schiebler testified that the procedure utilized for ob taining individuals from the hiring hall was initiated by his superintendents and supervisors making known to him openings and he in turn would request individuals from the hiring hall Schiebler testified that he specifical ly told the Union he was requesting the most qualified individuals at the time he made a request Schiebler testi feed he also made name requests for specific individuals Schiebler testified he learned of qualified individuals from other contractors who were completing their por tion of construction on the waterway that they would inform him they had certain experienced individuals and as a result he would look at his needs and then name re quest from the Union those individuals whom the other contractors had recommended Further Schiebler testi fled he specifically named requested laid off employees Schiebler testified that the Office of Federal Contract Compliance had set a goal for the Company of 30 per cent minority participation and 6 9 percent female par ticipation and in compliance with those goals he had left an open order with the hiring hall that any time the hiring hall received a person whom they determined to be a qualified minority it was to send that person to the Company Schiebler stated the Company was never able to reach its goal regarding minorities Schiebler testified that to help meet minority goals the Company turned to the recruitment and training program operated under a grant from the United States Department of Labor The recruitment and training program maintained job banks where requisitions and applications in terms of employ ees available all over the country were kept and the Company utilized the services to obtain qualified em ployees In addition Schiebler stated the Company at one time had requests at the union hall for qualified ex perienced mechanics as well as the recruitment training program and the State of Mississippi Job Services a state employment agency In the second phase of Schiebler s testimony he testi feed that mechanics as well as mechanics helpers were interviewed before they were hired According to Schiebler mechanics had to have tools and certain par ticular knowledge of mechanic skills Schiebler testified that on some occasions after he hired mechanics he would send them to the union hall Basically I guess introduce them to the business agent I think I stated earlier the Union itself is bound to represent these individuals They also have their pension benefits and so on that they ad minister and in order I guess for the individual to be fairly represented the Union has to know who he is Schiebler testified various other job classifications uti lized by the Company required that the applicants be interviewed Schiebler testified that there were two types of oilers employed by the Company one being a field service oiler and the other a rig oiler Both classifications of oilers had to go through an interview process at the Company before they were hired The difference be tween a field service oiler and a rig oiler was described by Schiebler to be that a field service oiler had to have tools and at least three times the amount of experience of a rig oiler because the individual had to go into the field to service and lubricate equipment in a very limited period of time so as not to extend the downtime of the Company s equipment Schiebler testified that welders were also interviewed and given a welding test by the Company before they were hired Schiebler described some of the other job classifica tions utilized by the Company The Company utilized three types of dozer operators A rough dozer opera tor was an individual who was qualified enough to push 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD earth from point A to point B The second type dozer operator was a push cat operator A push cat operator was a more critical job classification requiring somewhat more qualifications because a scraper when loaded must be pushed by a dozer and if the push cat operator did not properly line up with the scraper serious mechanical damage could result to the equipment Finally there was a classification of finish dozer operator which usually according to Schiebler required an individual with 15 to 20 years experience to be qualified to operate as a finish dozer operator because the operator must be able to eye ball within inches the heights and elevations of cuts and grades accomplished by dozing Schiebler testified that finish dozer hands were generally recalled from layoffs first because they could operate any of the other dozer job classifications Schiebler testified that the need for experienced opera tors was further accentuated by the fact that the Compa ny had two types of shovel operators One type was the hydraulic special shovel and the other was the articulat ed bucket backhoe of which there were two types one operating on rubber tires and the other operating on tract driven units Schiebler stated the equipment was ex pensive and complicated to operate and as such the Company insisted on experienced operators for its equip ment Schiebler testified that he personally had instructed the Union that the priority for referrals was that when he name requested anyone he wanted that individual sent immediately Further regarding name requests if it was a recall from reduction in force or if he had heard of a qualified individual from another project it was those in dividuals he desired on the project and he would have them with or without the Union s help A second priori ty he had personally relayed to the Union was that he wanted experienced personnel to include prior employees whose work abilities and practices were known to the Company Third the Company was seeking qualified mi norities and fourth the Company then desired individ uals to be referred chronologically from the Union s re ferral list Schiebler described a prior employee in terms of a unknown commodity that is the Company knew the individuals strong points and weak points and in an operation the size of the Company s they would rather have an individual whose strong and weak points they were aware of rather than someone whom they had no prior knowledge of Schiebler testified the Company had to remind the Union at various times that it desired expe rienced individuals for the various categories they em ployed individuals in Schiebler testified in the second phase of his testimony that individuals did not need to have a referral from the Union to come to the Company and to go through the interview process Schiebler testified I must reemphasize at this point that a person need not have a referral to come down and go through the interview process In fact I would say the ma jority of our mechanics do not have referrals when they come in and interview because we reject a great portion of them Schiebler testified that the purpose of sending individ ual s to the hiring hall after they were hired was that the Union needed to know who they were representing and for the employees to attend to such matters as insurance and pension and provide the individual a chance to meet the union personnel On cross examination by the General Counsel Schiebler described in part an April 1 1980 meeting he held with all business agents as follows I told them that I expected the most qualified indi viduals that we could attain would be on this project when other projects wound down and they had qualified operators at those other jobs I wish to have them on my job I wished for them to work for-with us in any manner possible to get these people on the job and on our payroll Schiebler testified that Business Agent Holloway attend ed that meeting Schiebler further testified on cross ex amination I will put it very plainly sir There are instances where an employee is referred by the Union and the employee has a referral slip and is hired in There are also instances where we hire somebody send them to the hall and name request them out Schiebler on cross examination when asked if he was aware that the Union was not obligated to honor name requests stated If they didn t I would hire them anyway sir I ve already done it in other crafts Fur ther Schiebler testified that passing over one individual for another individual whether minority or not did not violate his understanding of the hiring arrangement if the individual the Company sought to have was qualified Schiebler testified on cross examination that the proce dure he used in recalling individuals from a reduction in force was that the superintendent would come to him and indicate the employees the superintendent wished to have back based on experience and qualifications and he would then call the union hall and state that he needed a certain number in a particular skill and that he wished to recall so and so from layoff Schiebler testified that em ployees who were being recalled from an illness were re called based on whether the illness was an industrial injury or not and if it was an industrial injury they were brought back on medical release if not they were brought back if there was an opening for which the indi vidual was qualified Schiebler testified on cross examination regarding the recruitment training program individuals that the Union did not make the initial screening of those individuals that the initial screening was done by the recruitment training program and that the Company made the final screening Approximately 200 employees have been processed through the recruitment training program by the Company in that manner At some point the recruit ment training program individuals were sent to the union hall for a referral slip Schiebler identified certain specific individuals who were hired by the Company and then sent to the union hall for referral He specifically identified Melvin Norris MORRISON KNUDSEN CO ¢ 257 as an individual whose availability was made known to the Company from a south Texas project and according to Schiebler Norris was hired and then sent to the union hall for a referral Further Schiebler identified Marvin Youngblood as being hired on June 3 but referred on June 9 1980 Joe Murray was referred on July 16 but had been hired on July 15 1980 Millard Southern was hired on March 7 and referred by the Union on March 10 1980 Ulysses Smitherman was hired on April 22 and referred by the Union on May 22 1980 Phillip Sanders was hired on November 3 and referred to the Company by the Union on November 4 1980 Union Business Representative James Holloway testi feed he had held that position for a little over 3 years The only person from the Union to assist him is a secre tary who is not an elected official of the Union Holloway testified his understanding of the agreement with the Company was that the Company would ask for employees and he would supply them If the Company name requested individuals they were to be supplied and the individuals referred to the Company were to be qualified Holloway stated he had encountered problems when the employees could not perform the job assign ments given them by the Company Holloway testified that some of the individuals he referred to the Company had referral slips others were sent to the Company and interviewed and if the Company hired them they were then sent back to the union hall for a referral slip Holloway testified the reasoning of whether he provided an individual with a referral when the individual was going for an interview was based on his knowledge of the individuals past work experience and whether he be lieved the individual could pass an interview with the Company Holloway testified in this regard he would go down the out of work list and attempt to get the best qualified individual to refer to the Company Holloway testified that when an individual came in to sign the out of work list if he was told by the individual that the in dividual could operate a particular piece of equipment he would designate that fact by the individuals name Holloway testified that he would further base his knowl edge of the qualifications of a particular individual on whether the individual had worked on any other jobs in the area that he was aware of Holloway testified that he always asked what kind of qualifications an individual had when he or she signed up and that some of the indi viduals signing up would come in you know and tell you a big tale that they can do something they can t do But if you keep on questioning and all you will find out where they had worked and all Holloway testified that the Union however administered no tests nor did they give any examinations to individuals to determine their qualifications or ability to operate any particular equip ment other than questioning the individuals Holloway testified he always honored name requests by the Company Holloway testified he never referred any individual to a job based on friendship nor had he ever referred any individual to the Company purely on a third party coming to him and requesting that someone be referred Holloway testified he had an open order from the Company for any qualified minorities Holloway testified that when he was filling any referrals he tried to go down the list and obtain the best qualified person Sophie Trudeau testified she was the secretary for the Union and that she issued referrals for jobs through her boss (Holloway) Trudeau testified regarding the out of work list that she placed a potential applicants name telephone number and what equipment the individual could operate on the out of work register Trudeau testa fled regarding mechanics helpers that it was not really necessary to put down what experience if any they had However when experience did count she stated that the word of the individual signing the register was taken Trudeau testified that if she got a call for two pump op erators she took the two who had first signed the list in the last 30 days and referred them out She stated how ever the procedure may not always be followed For ex ample there might be requests for minorities or laid off employees or if an individual operator had been fired for no fault of the operator the Union attempted to have that particular individual reemployed as quickly as possi ble Trudeau testified that the top name on the list was not always sent out that it was based on experience Trudeau testified there were occasions when a minority would be sent out and if it was determined the individ ual could not perform the specific job for which he or she was referred the Company would attempt to retain the individual on some other job based on the need for minority employees According to Trudeau the out of work list was purged every 30 days It appears there are some inconsistencies between Schiebler s testimony given at the beginning of the trial and his testimony given some 4 months later as the trial developed For example in the beginning of the trial Schiebler had indicated that no individual was hired without a referral slip from the Union that matched the order he had placed with the Union However his later testimony identified certain individuals who were hired and then sent to the union hall for a referral slip In his earlier testimony Schiebler indicated that name requests could be denied by the Union but that the Company would hire them anyway In his later testimony he stated it was his understanding that the Union would honor name requests In this earlier testimony Schiebler indicat ed that the Company hired those referred by the Union with only two exceptions Those two exceptions he stated were that mechanics were interviewed by a su penntendent or supervisor to ensure that they were in fact qualified and that prior employees employment histories were checked before they were placed back on the payroll but in all other cases individuals referred by the Union who appeared at the jobsite with a referral slip matching the order request of the Company were hired In later testimony Schiebler testified that individ uals were interviewed for the job classifications of me chanics mechanics helpers welders and various other positions before they were hired I do find the inconsist encies in Schiebler s testimony to detract from his overall credibility I am persuaded that in the first testimony Schiebler was stating what the basic understanding was between the Union and the Company and in his latter testimony he was expanding and amplifying what the 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD actual practice or operation was between the Union and the Company I am persuaded from the credited record testimony as outlined above that the following factors constitute in es sential part the arrangement between the Company and the Union regarding the hiring hall The informal un written arrangement between the Company and the Union operated in a manner whereby the Company gave the Union the first shot at supplying personnel for the project regarding those job classifications set forth in the Stabilization Agreement referred to elsewhere in this de cision The record further clearly demonstrates that the parties understood that certain priorities were to be fol lowed Based on the testimony of Schiebler and Holloway and in accordance with the understanding and agreement name requests were honored Further indi viduals who had previously been employed by the Re spondent were to be given priority in referrals both when their unemployed status was as a result of a reduc tion in force by the Company or whether the individuals were otherwise prior employees Additionally requests for qualified minorities and females were to honored in the agreement between the Company and the Union Thereafter individuals on the referral list were to be re ferred on a first in first out basis with the qualifications and experience of the individuals to be taken into consid eration concerning referral inasmuch as the agreement between the parties was that the Union would refer to the Company the most qualified individual for the job classification requested Further it was understood that certain categories of employees would be interviewed by the Company before they were hired Finally the total record evidence would indicate that the understanding was that at some point an individual had to have a refer ral from the Union to continue employment with the Company notwithstanding whether the interview by the Company or the referral from the Union came first Under the Act a union hiring hall arrangement is a matter of negotiation agreement or understanding be tween the parties There is no express ban on hiring hall arrangements in any provision of the Act Teamsters Local 357 v NLRB 365 U S 667 (1961) A company and union may agree that a hiring hall arrangement will be the exclusive method of recruitment or they may agree that it will be nonexclusive In both the exclusive and nonexclusive arrangements an employer is free to refuse or reject individuals referred to it by a union However under a nonexclusive arrangement an employer may consider for employment and/or hire from sources other than the union hiring hall The initial key issue in the in stant case is whether the oral hiring hall arrangement as implemented in practice was exclusive or nonexclusive That the agreement or understanding was never reduced to writing is not in any way dispositive of the issue whether the arrangement was exclusive or nonexclusive In Marquett Cement Mfg Co 213 NLRB 182 (1974) and by the adoption of the administrative law judge s deci sion in Carpenters Local 1092 (C F Braun & Co) 230 NLRB 1045 (1977) the Board continued to adhere to its long established principle that an exclusive referral system need not be established in writing but may be in ferred from evidence of an oral understanding or of a course of conduct The Company contends hiring was not dependent on a referral from the Union It contends individuals were interviewed and selected before they were given referral slips by the Union and in fact in some instances they were hired by the Company and then sent to the union hall to obtain referral slips Under a strict definition of hired the Company s contentions are correct if hired is defined as meaning a commitment to employ There are specific instances in the instant case when the Company interviewed made a commitment to employ and in some cases actually employed individuals before they were sent to the union hiring hall for a referral slip However the bottom line in the instant case is that for all employees to continue their employment with the Company it appears they needed to obtain a referral slip from the union hiring hall The instances of individuals being hired and then referred to the Union for a referral slip appear to be infrequent except in the special circum stances involving individuals from the recruitment train ing program There is record evidence that the Company obtained information about qualified individuals from other con tractors on the waterway as well as other contractors in various locations across the country However even though such individuals were recruited by the Company and at least in a few instances hired by the Company before going to the Union such individuals were re ferred to the Union for a referral as they continued to be employed by the Company Those individuals obtained by the Company through the recruitment training pro gram were obtained from a federally assisted training program and as such would in my opinion constitute special exceptions to the arrangement that would not de stroy the exclusive nature of the hiring hall arrangement Those individuals obtained by the Company through the recruitment training program were in fact at some point sent to the Union for a referral Further the Company on occasion utilized the State of Mississippi employment agency as the Recruitment Training Program However I view each if those instances to either to be special cir cumstances or infrequently utilized arrangements such as not to detract from the overall exclusive nature of the hiring agreement The fact that there may have been some infrequent exceptions and other special exceptions to the exclusivity of the arrangement does not adversely affect my determination that the arrangement was an ex clusive one See (Laborers Local 394 Building Contrac tors) 247 NLRB 97 (1980) The Company s contention that the individuals who were hired first and then sent to the Union were sent there primarily so the Union could determine who it was responsible for representing and allow the individuals to take care of insurance and other programs is without merit If the only reason the individuals were sent to the Union was so the Union would know who it represented the Company could for that matter have sent to the Union a printed list of its employees on a daily weekly or monthly basis and as such provided the Union with the type information it contended it was sending the indi MORRISON KNUDSEN CO 259 viduals to the Union for The Company s further conten tion that the purpose in sending the individuals to the Union was to provide them an opportunity to meet the union officials I find totally unpersuasive It is unbeliev able that a company would send an individual to the Union away from work after the individual had been hired merely for the purpose of the individual meeting the union officials There can be no doubt in the instant case that continued employment with the Company de pended on union sponsorship at some point The Compa ny in part contends that the instant case should be con sidered in light of and governed by the Board s decision in Teamsters Local 74 (Totem Beverages) 226 NLRB 690 (1976) in that under the agreement in the instant case the Company was not precluded from considering for employment or in fact hiring individuals who had not been referred by the Union and as such it did not have an exclusive hiring arrangement with the Union In Totem Beverages the Board concluded that an agreement between the company and union therein which required the company to provide the union 3 days notice when additional employees were needed and granted the union the right to nominate individuals for employment during a 3 day period and required the company therein to give fair consideration to the union s nominees did not constitute an exclusive hiring hall arrangement The Board concluded that the arrangement placed substantial restrictions on the company s freedom in hiring but that the provisions did not preclude the company from con sidering for employment or in fact hiring applicants who had not been nominated by the union The Board con cluded that the language of the agreement did not invest the union with the exclusive right of referral The Board did however find that the practice between the compa ny and the union in Totem Beverage was such that the company felt it had no alternative other than to hire the union s nominees In the instant case I find that the agreement both by its understanding and practice did more than place substantial restrictions on the Company regarding hiring It went further in that it required all employees of the Company in the classifications set forth in the Stabilization Agreement referred to earlier to obtain at some point a referral from the Union to contin ue employment with the Company Again as stated ear her the facts of the instant case demonstrate that some employees were considered and hired prior to their being sent to the Union for a referral slip however all em ployees at some point had a referral slip from the Union The complaint did not allege that the hiring hall agree ment or understanding was illegal The fact that the very existence of a hiring hall encourages union membership does not invalidate a hiring hall agreement In my view the Company and the Union had an oral agreement or understanding for an exclusive referral or hiring system in which individuals were either referred to the Company by the Union at the Company s request or if they were hired directly were required to clear through the Union to continue their employment with the Company See Laborers Local Union 213 223 NLRB 561 (1976) That the arrangement or understanding between the Company and the Union spelled out certain priorities for referral does not make an otherwise valid exclusive hiring hall arrangement invalid The priorities established in the understanding between the parties have been ap proved by the Board For example company name re quested priorities have been approved by the Board See Laborers Local 663 (Treuner Construction) 205 NLRB 455 (1973) Priority in hiring hall arrangements for re calls from reduction in force and recalls of individuals who were otherwise in a prior employee status have met with Board approval See Operating Engineers Local 406 (Associated General Contractors) 189 NLRB 255 (1971) Also Board precedent allows for priority for referrals based on experience or special skill See Asbestos Workers Local 22 (Rosendahl Inc) 212 NLRB 913 (1974) The General Counsel stated he was not seeking any violation of the Act based on the fact that priority for referral was given to miniorities and females in order to help the Company attain its goal regarding minority hiring set by the Federal Contract Compliance Office In summary I find the Company and Union main tained a valid exclusive hiring hall arrangement as al leged in the complaint D The Alleged Refusal to Refer Specifically Named Individuals The General Counsel in its complaint alleges that the Union since on or about January 22 1980 has arbitrarily failed and refused and continues to fail and refuse to refer in accordance with the practice agreement and understanding it had with the Company to employment with the company employees Edna Jane McDaniel Mary Martin Patty Johnson Patsy Robinson Eloise K Payne and Bobby G Downs The complaint further al leges that the Union took the action regarding the named individuals for unfair irrelevant arbitrary and invidious reasons and in breach of the fiduciary duty the Union owed to the employees Having found that the agreement and understanding constituted an exclusive hiring hall arrangement and having further determined that the agreed on criteria for out of work referrals were valid on its face the key issue then remains whether the action of the Union was in any manner arbitrary invidious irrelevant unfair or in breach of the fiduciary duty the Union owed the individ uals utilizing the hiring hall In making such a determina tion it will be necessary to examine many factors includ ing whether the criteria utilized by the Union in deter mining that one individual was better qualified for a posi tion than another were based on objective standards It is settled law that a labor organization that under takes to operate a hiring hall pursuant to an arrangement with an employer as the exclusive source of employees is obligated to refer individuals without regard to their union membership or lack thereof Furthermore under the concept of fair representation as outlined in Miranda Fuel Co 140 NLRB 181 (1962) enf denied 326 F 2d 172 (2d Cir 1963) a union acting as statutory bargaining representative of employees is prohibited from making referrals on the basis of unfair irrelevant or invidious considerations Discrimination based on the foregoing 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has been held to violate Section 8 (b)(1)(A) and (2) of the Act The General Counsel contends in brief that to deter mine whether the Union has arbitrarily refused referrals to the specifically named individuals in accordance with the hiring hall arrangement a comparison need be made of the names on the out of work register with the mdi viduals who were actually referred The General Coun sel states that in those instances when individuals were not referred in the order they had signed the out of work register it would further be necessary to determine whether any of the out of order referrals were occa sioned by requests of individuals specifically name re quested by the Company The General Counsel stated it does not contend out of order referrals pursuant to name requests or because the applicants were known to be ex perienced or were requested to fill employer goals for miniority or female employees constituted a violation of the hiring hall agreement The General Counsel con tends however that valid consideration should be given only to those name requests that the Company could document by a personnel name requisition request Fur ther the General Counsel contends that out of order re ferrals pursant to name requests for minorities and fe males although not necessarily violative of the hiring hall agreement would be in those instances in which mi nonties and/or females were skipped over in order to refer other minorities and/or females Finally the Gener al Counsel contends that for any individual to be eligible for referral the individuals name must appear on the out of work register within 30 days of the date of refer ral The Company and Union contend that even assuming there was an exclusive hiring hall arrangement that was valid on its face they did not deviate from that arrange ment and there was no discriminatory motive in any re ferral that each of the alleged out of order referrals was for legitimate business reasons I will consider the referrals pertaining to each of the specifically named individuals in the order that they appear in the complaint 1 Edna Jane McDaniel McDaniel testified at the time of the trial that she was employed by the Company as a stiger operator McDan iel stated she was first referred to the Company by the Union in July 1979 as a dozer operator McDaniel in formed the Union at the time of her referral that she was not a dozer operator that she could move one around from place to place but was really not a dozer operator McDaniel testified she informed company personnel that she could not operate a dozer that she was either an oiler or a stiger operator McDaniel testified she was ini tially placed for about 6 weeks as an oiler on a drag line The Company did a major overhaul on the drag line at the end of her first 6 weeks and at that time she began operating a stiger and continued to do so until she left work ill in September 1979 McDaniel stated that she was not employed by the Company from September 1979 until July 1980 McDaniel testified she was under a doctor s care as a result of her illness from September 1979 until January 2 1980 and she had a leave of ab sence from the Company for illness McDaniel testified she received a pink colored layoff slip from the Compa ny that indicated she was laid off due to illness McDan iel testified that on January 2 1980 she returned to the jobsite to go back to work McDaniel testified that on January 2 a superintendent at the Company wrote her out a pink colored slip that indicated she was laid off for lack of work She was told she would be called back whenever the operators were returned to work that almost everyone was in a laid off status McDaniel testified she signed the out of work register on January 3 1980 and did not return to work until July 14 1980 McDaniel testified that between January 2 and July 14 1980 other employees were referred to work as stiger operators McDaniel testified that an individual named Charlie Smith was referred as a stiger operator after she had signed the out of work register and that she was sure that Smith had not signed the out of work reg ister ahead of her because he was not even in the State of Mississippi for at least a month before he was referred out McDaniel testified there were others who were re ferred ahead of her namely Tom Bates Tommy Swane and Walter Smith however she did not know exactly when the individuals had been referred or whether their names were ahead of hers on the list McDaniel first tes tified that she filed charges with the National Labor Re lations Board prior to July 14 1980 regarding the failure to be returned to work after being off for her illness However when questioned further McDaniel acknowl edged she did not file Board charges until after she had been referred by the Union to the Company in July 1980 McDaniel testified she continued working as a stiger op erator after she was referred and employed on July 14 1980 until January 6 1981 at which time she was laid off as a result of a reduction in force McDaniel testified she maintained a current referral position with the Union and was referred to the Company on March 13 and com menced work on March 17 1981 Certain claims McDaniel made in her testimony simply are not borne out by the record evidence It appears that McDaniel was not placed in a laid off status on January 2 1980 following her release from illness but rather was terminated on October 2 1979 The pink colored termi nation slip provided her at the time indicated her separa tion was for an illness of 6 weeks or more (R Exh 1) It is therefore clear that McDaniel was not in the status of an employee eligible for recall based on a reduction in force but rather was a prior employee who had been terminated as a result of an extended absence from work The fact that McDaniel was terminated in October is further substantiated by the credited testimony of Com pany Labor Relations/EEO Officer Schiebler who testi feed that McDaniel because of her extended absence due to illness was removed from the Company s payroll and terminated and her status for reemployment was that of a prior employee and not that of an individual laid off due to a reduction in force The General Counsels con tention based on McDaniel s testimony that McDaniel signed the out of work register on January 3 1980 and was not referred until July 14 1980 is not supported by the record as a whole The out of work register (G C MORRISON KNUDSEN CO 261 Exh 13) reflects that McDaniel signed the out of work register on March 3 and April 7 1980 The record evi dence does not support McDaniel s testimony that an in dividual named Charlie Smith was referred ahead of her notwithstanding the fact he had signed the register after she did During the 30 day period following McDaniel s first having signed the out of work register there were four individuals referred as stiger operators none of whom was Charlie Smith The four in question will be discussed infra Following McDaniel s having signed the register on April 7 1980 there were three individuals re ferred as stiger operators within the next 30 day period however Charlie Smith was not among those referred General Counsel Exhibit 13 indicates that McDaniel only signed the out of work register on the two dates set forth above prior to her bring referred to employment with the Company on July 14 1980 Following McDaniel s having signed the out of work register on March 3 1980 the four individuals referred within 30 days thereafter were Charles Allen who was referred on March 4 1980 Riley Bennett who was re ferred on March 21 1980 and Keith Stevens and Regina Austin who were referred on April 3 1980 Following McDaniel s having signed the out of work register on April 7 1980 three individuals were referred as stiger operators within the next 30 day period Rodney Chap pell and Billy Martin were referred on April 8 1980 and Milton Walker was referred on April 11 1980 Company Labor Relations/EEO Officer Schiebler tes tified that Charles Allen who had signed the out of work register on February 4 1980 as a dozer and scrap er operator was referred ahead of McDaniel because he was a minority recall from a reduction in force Schiebler testified that the Stabilization Agreement re ferred to earlier in this decision did not require that re calls from reduction in force be by seniority nor did it require that recalls be made in the order that individuals were laid off but rather recalls were made based on the experience of the individuals who were in a laid off status According to Schiebler the individual selected for recall from a reduction in force status came about as a result of either a superintendent or supervisor of the Company coming to him with a request for a particular individual based on the experience of that individual which experience was known to the supervisor or super intendent and then the individual was name requested from the Union by the Company The name requests for recalls from reduction in force were normally orally made in that the Company would call the Union and say that it needed certain individuals to be referred who were laid off as a result of the reduction in force Schiebler testified and I credit his testimony that the Company had placed an open order with the Union for minorities Schiebler testified that Allen was recalled per the understanding that the Company had with the Union regarding recalls from reduction in force as well as the Company s request for minority employees Schiebler testified that Bennett who it appears had not signed the out of work register within 30 days of his re ferral was referred ahead of McDaniel because he was a minority and the Company had an open order with the Union for minorities Schiebler testified the spring season was the time of year when the Company was again start ing up its major operations and as such needed all the minority employees it could obtain both by recall from reduction in froce and by having the Union refer any other qualified available minorities to it in order for it to meet the Office of Federal Contract Compliance guide lines regarding minority employment Schiebler testified that Stevens who it appears had not signed the out of work register within 30 days of his re ferral was recalled ahead of McDaniel because he was a recall from reduction in force status and had been orally name requested based on the procedure that the Compa ny and Union utilized concerning the recall of employees from a reduction in force status Schiebler could not recall specifically what any particular superintendent or supervisor had said to him regarding the selection of Ste vens for recall however Stevens was recalled in that manner Schiebler testified that Regina Austin who it appears had not signed the out of work register within 30 days of her referral was also a recall from a reduc tion in force status and that she was name requested in accordance with the procedure and agreement between the Union and the Company Schiebler testified that Rodney Chappell who had signed the out of work register on March 10 and 17 1980 was recalled ahead of McDaniel because he was a minority recall from a reduction in force status Schiebler stated that Chappell was referred to the Company by the Union pursuant to a minority order that called for two qualified minorities As a result of that requisition by the Company Chappell was referred as a minority who was returning from a reduction in force status Billy Martin who it appears had not signed the out of work register within 30 days of his referral was referred to the Com pany by the Union in response to that same request for two qualified minority stiger operators Martin was a mi nonty referral Schiebler testified that Milton Walker who had signed the out of work register on April 7 1980 was referred ahead of McDaniel because he was a minority recall from a reduction in force status and was orally name requested in accordance with the procedure utilized to recall employees who were in a laid off status as a result of a reduction in force General Counsels Exhibit 12 reflects that there were two additional individuals referred on May 22 1980 as stiger operators namely James Solomon and Robert Or chard however they were referred at a time when McDaniel was not current on the out of work register The record reflects that McDaniel was referred as a stiger operator on July 14 1980 McDaniel like various other individuals who were referred was not current on the out of work list at the time she was referred to the Company by the Union however McDaniel was re ferred pursuant to a specific name request by the Compa ny Inasmuch as the Union honored company name re quests and inasmuch as the Company had specifically name requested McDaniel as it had others I find it would have been unnecessary for McDaniel or the others to have proceeded to the union hall to sign the out of work register last or at the bottom of the list and 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then have the Union skip over each name that was signed above on the list in order to honor the priority arrangements between the Company and the Union just to satisfy the formality of being on the out of work list at the time of referral There is no question but that an mdi vidual could sign the list last and then be referred first if the individual was name requested or requested to fill minority hiring goals therefore I conclude it is unneces sary for an individual to go through the technically cor rect requirement of signing the list moments before being referred in order to make it a valid referral I am per suaded that under certain circumstances such as are present in the instant case individuals may technically and legally be referred to a company through a union hiring hall without having been on or current on an out of work register Regarding specifically alleged discnmmatee McDaniel I conclude and find that each of the out of order refer rals was for justifiable business reasons in accordance with the referral priorities agreed on between the Com pany and Union There has been no showing that any of the bypassed referrals were based on illogical business objectives discriminatory motives or arbitrary and/or unfair conduct After the Company explained each of the business justifications for each of the out of order refer rals or referrals of individuals not current or on the list the General Counsel failed to demonstrate that any of the business reasons advanced by the Company were pretextual and failed to demonstrate that there was any lawful motivation or arbitrary and/or unfair conduct on the part of the Union and Company regarding the refer rals that were made ahead of McDaniel I also conclude there was no violation of the Act concerning McDaniel being referred on July 14 1980 at a time when she was not current on the out of work list inasmuch as she was specifically name requested as a prior employee Al though the instant case there has not been adherence to the operation of a textbook type referral hall it appears to me that all actions taken by the Union and Company were for legitimate reasons within the framework of their agreement for priority referrals and as such the re ferrals did not violate the Act as alleged in the com plaint I therefore recommend dismissal of that portion of the complaint that alleges that the refusal to refer McDaniel was for unfair irrelevant arbitrary or invidi ous reasons or a breach of the fiduciary duty owed the employee 2 Mary Martin The record establishes that Mary Martin signed the out of work register on May 12 June 9 and 14 1980 She signed the register as an oiler/pump operator The record indicates there were two types of oilers-a field service oiler and a rig oiler The Company interviewed applicants for both positions before they were filled by individuals referred from the Union A field service oiler had to be able to go into the field and in a specified time be able to service and lubricate every piece of equipment allocated to him It was necessary that the individual know where the lube fittings were and how to service the equipment in the field The field service oilers had to have tools and according to Schiebler at least three times the amount of experience of a rig oiler The rig oilers simply oiled pieces of equipment utilized by the Company The General Counsel contends that the only pump op erator referred after Martin signed the register was Patty Johnson an individual who was name requested by the Company on May 14 1980 The General Counsel further contends there were 25 oilers who were referred ahead of Martin between May 13 and June 24 1980 The Gen eral Counsel contends that Martin should have been re ferred to some of the positions filled prior to her referral on July 24 1980 The Company and Union contend that no referrals made at any time involving Mary Martin were made for arbitrary or unfair reasons but rather were made for justifiable business reasons After Martin signed the register on May 12 1980 there was one referral to a pump operator position which was filled on May 14 1980 by Patty Johnson Johnson had signed the out of work register on April 14 and 21 1980 and was recalled from a reduction in force status Schiebler testified Martin was recalled in accord ance with the arrangement between the Company and Union with respect to recalling individuals who were in a laid off status as a result of a reduction in force that is a supervisor or superintendent would come to Schiebler and request an individual by name and he then would orally make such request of the Union that the individual in question be referred to the Company Martin had not been employed by the Company prior to her July 24 1980 referral There were 17 individuals referred to oiler positions between May 12 and June 12 1980 Sue Harris who had signed the register on May 5 was referred on May 13 1980 as a name requested recall from reduction in force according to the credited testimony of Scheibler Jerry Richardson who had signed the list on May 5 was re ferred on May 14 1980 ahead of Martin according to Schiebler because Richardson was more experienced was hired as a field service oilers and was requisitioned for that position Schiebler testified that David Brad dock who it appears had not signed the out of work reg aster within 30 days of his referral on May 14 1980 was referred ahead of Martin because he was specifically name requested (G C Exh 42 22) David R. Palmer who had signed the list on April 14 1980 had been on the list longer than Martin and he was more experienced in that he had operated a grease truck for Eby Construc tion Company The information regarding Palmer s expe hence had been relayed to Schiebler from Eby Construc tion Company Project Manager Melvin Huffman and that information had been made known to the Union and at the same time the Union was apprised that the Company wanted experienced personnel Schiebler testa feed that Randy Odle who signed the list on April 14 1980 was referred on May 14 1980 ahead of Martin be cause Odle was a qualified minority who was name re quested Schiebler testified that James Rhodes who it appears had not signed the out of work register as an oiler within the 30 day period prior to his referral was an experienced individual hired as a field service oiler based on his experience Thomas Bray who it appears MORRISON KNUDSEN CO was not current on the out of work list was referred on May 16 1980 ahead of Martin based on experience Bray was a field service oiler and Schiebler testified he had made a specific request of the Union for a field serv ice oiler Martin could not perform the task of a field service oiler Schiebler testified that E Steve McNatt who it appears had last signed the out of work register on April 21 1980 was referred on May 29 1980 ahead of Martin because he was name requested from reduc tion in force recall Schiebler testified that Franklin W Kennedy who had signed the out of work register on May 5 1980 was referred on May 30 1980 ahead of Martin because he had been on the register longer and was an experienced employee from the Tennessee Valley Authority where he had obtained valuable experience regarding the type of work the Company was perform ing According to Schiebler Ardell Scott Jr who had signed the register on May 19 and was referred on June 2 1980 was referred ahead of Martin because he was an experienced field service oiler who had operated a grease truck for Eby Construction Company The information regarding Scott s experience had been provided to the Union by Schiebler Peggy Daniels who had signed the out of work register on May 12 1980 was referred on June 4 1980 ahead of Martin because Daniels was a recall from a reduction in force and was name requested Chris Cass who had signed the register on May 19 1980 was specifically name requested on June 6 1980 by Schiebler Schiebler testified that James Henley who it appears had not signed the register within 30 days of his June 10 1980 referral was referred ahead of Martin pursuant to a standing order of the Company with the Union for qualified minorities of which Henley was Henley was registered however as a mechanic with tools on the out of work register Schiebler testified that Kathy Sanders who it appears had not signed the out of work register as an oiler within 30 days of her June 10 1980 referral was specifically name requested (G C Exh 43 8) Sanders was specifically name requested by Schiebler at the behest of Company Lube Superintendent McGehee Mark Turner who it appears had not signed the out of work register within 30 days of his June 10 1980 referral was a recall from a reduction in force and his recall was conducted in the same manner according to Schiebler as all other recalls from reduction in force had been in that Schiebler made an oral request of the Union for Turner Schiebler testified that Randy Odle who had again signed the out of work register on June 9 1980 was referred on June 10 1980 ahead of Mary Martin because he was name requested Schiebler testi feed that this was the same Odle who had been referred on May 14 1980 and situations of Odle s type came about according to Schiebler when the individual would return to a particular locality to move his family or take care of matters of that nature and that the Com pany would try to accommodate him by name requesting him from the Union when the individual returned to the area Ellis Wright who had signed the register on June 9 and referred on June 10 1980 was recalled ahead of Martin in that he was a recall from a reduction in force and was name requested 263 Martin next signed the out of work register on June 9 1980 and in the following 30 day period there were no pump referrals During the 30-day period following June 9 there were eight individuals referred as oilers Betty Armstrong who had signed the list on June 9 and re ferred on June 16 1980 was referred ahead of Martin because she was a minority female who was name re quested from a reduction in force status Schiebler testi fled he personally remembered placing the call to the Union asking for Armstrong because she was a minority female whom he had spoken to Lube Superintendent McGehee about Schiebler testified that Tommy Taylor who had signed the register on May 27 and referred on June 16 1980 was referred ahead of Martin because he was a minority who was being recalled from a reduction in force and as such orally name requested Schiebler testified he specifically recalled orally requesting Katie Phifer from the union hall on June 16 1980 Phifer had signed the out of work register on May 27 1980 Larry Thrasher who had signed the out of work list on May 19 and referred on June 17 1980 was referred ahead of Martin because he was a more experienced field service oiler The Company had requested a field service oiler at the time Thrasher was referred Brenda Gianola who had signed the register on May 27 and referred on June 19 1980 was referred ahead of Martin because Gianola had been on the register for a longer period of time Demmon Russel who had signed the out of work regis ter on May 19 and referred on June 19 1980 had been on the register longer than Martin according to Schiebler Schiebler testified that Charles Percy was a Company requested craft change that is Percy was al ready employed on June 23 1980 and was simply under going a craft change from a teamster employee to an em ployee referred by the Union It was strictly a craft change according to Schiebler Denise Henry who had signed the register on June 16 and referred on June 24 1980 had been a prior employee and was recalled ahead of Martin according to Schiebler for that reason Mary Martin was referred on July 8 1980 to a job on the waterway with Bristol Steel The records indicate she declined the referral Martin next signed the out of work register on July 14 1980 and in the 230 day period following that signing there were no pump referrals made There were four oiler referrals made prior to Martin being referred to the Company on July 24 1980 Martin was name requested at the time of her referral John Goodvin who had signed the register and was referred July 14 1980 was referred ahead of Martin because he was specifically name requested from the Union Schiebler testified he wrote a letter to the union hall requesting Goodvin be cause he was a prior trainee with experience and his father also worked for the Company Schiebler testified he wrote the letter to the union hall requesting Goodvin so that the Company could further train him to become an operator Schiebler testified that Larry Hyder was re ferred ahead of Martin because he had been recommend ed to the Company by Union Representative Holloway Schiebler stated that Holloway had informed the Compa ny that he had a very experienced oiler whom he highly 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recommended for any future openings with the Compa ny that the individual would be well worth his pay The records disclose that Hyder who was referred on July 16 had signed the out of work list on July 7 1980 Johnny Holland who it appears had not signed the out of work register within 30 days of his July 22 1980 re ferral was referred ahead of Martin as a prior employee with more experience according to Schiebler Harold McNair who had signed the register on June 23 and re ferred on July 23 1980 was referred ahead of Martin be cause he was requested by a subcontractor of the Corn pany by the name of H B Wilhite Schiebler testified that Wilhite had informed the Union of McNair s qualifi cations The General Counsel does not contest that Patty John son was name requested as a pump operator on May 14 1980 The General Counsel however contends that Schiebler s testimony regarding Sue Harris being name requested as an oiler on May 13 should be discredited in asmuch as Schiebler failed to provide documentation to specifically prove that he had placed a call asking for Harris by name Schiebler was the most knowledgeable witness who testified regarding the operation of the hiring hall ar rangement between the Company and Union Schiebler s testimony was logical and in many instances supported by documentation Schiebler testified about many unre futed reasons which indicated his memory was accurate and as such I credit Schiebler s testimony regarding Harris as well as his other testimony set forth herein The General Counsel contends that no reliance should be placed on the testimony that Jerry Richardson was more qualified than Mary Martin in that he was a field service oiler I am persuaded the record evidence mdi cates that Richardson was the more qualified of the two The General Counsel contends that assuming arguendo Richardson was more qualified Martin should have been referred to the positions filled by either David Braddock or Randy Odle on May 14 1980 I reject the General Counsels contention inasmuch as Braddock and Odle were name requested The General Counsel further con tends that Martin should have been referred to the posi tions filled by either Braddock Rhodes Bray or McNatt inasmuch as they were not on the out of work register as an oiler within 30 days of their referral As I have indi cated elsewhere in this decision I find it would be an un necessary act to require that an individual who had been specifically name requested or who had been requested based on experience to have to sign the out of work reg ister just prior to being referred to make the referral legal under any of the validly established priorities agreed on between the parties I therefore reject the General Counsels contention that Martin should have been referred to one of the positions filled by the four individuals mentioned above inasmuch as Braddock was name requested Bray was asked for as a field service oiler Rhodes was more experienced than Martin and McNatt was a prior employee Finally the General Counsel contends that since Union Representative Holloway did not know the quali fications of all applicants Martin should have been re ferred to fill one of the positions that Donald Powell Leroy Bickerstaff Brenda Gianola or Richard Bowen filled It is apparent that the General Counsel takes these names from Union s Exhibit 4 A close examination of the entire record indicates that Union s Exhibit 4 should not have great reliance placed on it inasmuch as General Counsels Exhibit 12 reflects that Donald Powell was re ferred to the Company on June 6 1980 as a mechanic s helper rather than an oiler General Counsels Exhibit 12 also indicates that Leroy Bickerstaff was referred to the Company on June 2 1980 as a mechanics helper and Richard Bowen was referred on July 22 1980 as a me chanic s helper The record evidence indicates that Brenda Gianola had been on the referral register for a longer period of time than Martin I therefore reject the General Counsels contention that Martin should have filled one of those four positions The General Counsels contention that Union Repre sentative Holloway did not know the qualifications of all applicants and therefore reliance should not be placed on his determination regarding any individuals qualifica tions or experience is without merit It is true that the Union did not administer any tests to individuals signing the out of work register to determine their qualifications However in evaluating an individuals qualifications and level of experience Holloway testified he would place in the register any qualifications an individual informed him that they had and additionally if the individual had uti lazed the Union s hiring hall in the past he would have knowledge as to their past experience and work ability Holloway further testified and I credit his testimony in this respect that it was his practice to inquire of individ uals signing the out of work register about their qualifi cations by asking them various questions about the equip ment they indicated they could operate Holloway stated that some individuals would tell him a big tale about being able to do something they could not do Holloway testified that when he continued questioning the individ ual he would find out whether they really knew what they were talking about Although the Union had no written rules or objective criteria concerning experience and qualifications of the individuals utilizing the referral hall I find that the operation was not left to the unbn dled discretion of Holloway or any other union official The determination regarding qualifications and expen ence of an individual was objectively considered in that a record was made of the individuals qualifications as stated by the individual and then further considered in conjunction with the questions asked by and the re sponse provided to the Union In the instant case Holloway not only had the qualifications of an individ ual as stated by the individual but he also had his own assessment of the individuals ability based on questions he had asked the individual and he also had the referral records which indicated whether an individual had worked for any particular contractor on the waterway in the past The instant case is clearly distinguishable from Laborers Local 394 (Wakil Adbunafi) 247 NLRB 97 (1980) in which the Board found that the union had vio lated the Act by operating its exclusive hiring hall with out any objective criteria or standards for the referral of employees I conclude and find that the method utilized MORRISON KNUDSEN CO by Holloway in the instant case ensured fairness and im partiality with respect to the referral of individuals by the Union to the Company based on the individual s qualifications and experience I therefore conclude and find that the out of order re ferrals regarding Mary Martin were not made for any ar bitrary or unfair reason but rather were made for legiti mate business reasons and for no other purposes 3 Patty Johnson Patty Johnson signed the out of work register as a pump operator on March 17 and April 21 1980 Between March 17 and April 17 there were four individuals re ferred to pump operator positions (G C Exhs 12 and 13) In the 30 day period following Johnson s having signed the out of work register on April 21 there were six referrals to pump operators positions Johnson was referred on May 14 1980 as a pump operator (G C Exhs 12 and 13) Schiebler testified that Junior Ray McAllister who it appears had last signed the out of work register on Feb ruary 11 1980 in the category of pump operator was referred on April 1 1980 ahead of Johnson because he was more qualified and was a name requested recall from a reduction in force status Schiebler testified that McAl lister s superintendent had stated to him that McAllister was far more qualified than Johnson According to Schiebler McAllister s superintendent had a list of all the individuals who had been laid off over the 1979-1980 work season and as he went over the list he picked the individuals he wanted back one of whom was McAllis ter therefore Schiebler orally name requested McAllis ter Schiebler testified that Cleston Barns who had last signed the out of work register on January 14 1980 as a pump operator and was therefore not current on the list was referred on April 3 1980 ahead of Johnson be cause he was a recall from a reduction in force and was specifically verbally name requested from the Union Schiebler testified that Patsy Robinson who it appears had only once signed the out of work register back in November 1979 was referred on April 11 1980 ahead of Johnson because she was a recall from a reduction in force and as such was verbally name requested from the Union Schiebler testified he specifically remembered Robinson s qualifications being taken into consideration by her individual superintendent at the time the Compa ny was requesting pump operators from the laid off list Schiebler testified that he specifically name requested Fred Stevens on April 17 1980 Stevens had signed the out of work register on March 31 1980 Stevens was a recall from a reduction in force and as such was verbal ly name requested from the Union There were six individuals who were referred to pump operator positions after April 21 but before May 14 1980 which was the time Johnson was referred to and accepted by the Company as a pump operator Schiebler testified that Dwayne Hull who had signed the out of work register on April 21 was referred on April 25 1980 ahead of Johnson because he was a name requested recall from a reduction in force Denise Henry referred on April 25 1980 she had signed the out of work regis ter on March 17 and April 7 1980 Schiebler testified 265 that Henry had been on the out of work list longer than Johnson at the time she was referred to the Company Eloise K Payne who had signed the out of work regis ter on March 17 24 and April 21 was referred on April 25 1980 ahead of Johnson because she was specifically name requested as a prior employee Schiebler testified he could specifically recall her being name requested in that she had been in his office several times prior to her actual referral Schiebler testified that Jerry Steeley was referred on May 5 1980 because he had more expen ence and was a better qualified employee for the job than was Johnson Steeley had previously worked for the Tennessee Valley Authority as a pump tender and was more experienced than Johnson The record reflects that Steeley had apparently last signed the out of work register on March 31 1980 as a concrete pump operator Schiebler testified that B R Holland who had signed the out of work register on April 14 1980 as an oiler roller and stiger operator was referred on May 6 1980 ahead of Johnson because he was an orally name request ed recall from a reduction in force W J Dewberry who had signed the out of work register as a pump oper ator on April 28 was referred on May 9 1980 ahead of Johnson because he was a name requested recall from a reduction in force Patty Johnson herself was referred as a recall from a reduction in force status on May 14 1980 She was name requested by Schiebler I conclude and find that the General Counsel has failed to establish that any of the out of order referrals made regarding Patty Johnson were made for any reason other than legitimate business reasons As stated else where in this decision when an individual was name re quested by the Company from a reduction in force status or when an individuals specific training and/or qualifica tions made them better qualified for a position it did not violate the hiring hall arrangement nor did it violate the Act for the Union to refer them out of order As indicat ed elsewhere I have concluded that individuals who were name requested by the Company would not be re quired to place their name at the bottom of the out of work register on the day they were referred in order to make their referral legitimate even when they had not been on the list were not current on the list or when they were listed under some other jobs classification preference The General Counsel in brief contended that Patty Johnson should have been referred to the job filled by Junior Ray McAllister on April 1 1980 The General Counsel further contended that McAllister was not name requested and that his name did not appear on the out of work register as a pump operator during the 30 day period prior to his referral The General Counsel con tends that Schiebler testified he did know why McAllis ter was referred ahead of Johnson on April 1 The Gen eral Counsel also contends that the record is void of any evidence either from the Union or the Company to justi fy McAllister s referral ahead of Johnson The General Counsels contention that Schiebler did not know why McAllister was referred ahead of Johnson appears to be an inadvertent misstatement of the record When Schiebler testified that he did not know why McAllister 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was referred ahead of Johnson he was so stating based on the fact that he did not have his records and notes in front of him at the time Thereafter from further ques tioning by the General Counsel Schiebler testified that McAllister was a recall from a reduction in force and that he and McAllister s supervisor had specifically dis cussed McAllister s qualifications as they related to John son and it was determined by the superintendent that McAllister was far more qualified than was Johnson for the job I therefore reject the General Counsel s conten tion that because McAllister was referred out of order the General Counsel need not address himself to any re ferrals after McAllister s April 1 1980 referral The Gen eral Counsel in brief also alludes to the fact that Rondal Brock and James Mitchell were referred ahead of John son The evidence reflects that Brock was referred as a mechanics helper on April 28 and Mitchell was referred as a mechanics helper on May 5 1980 (G C Exh 12) In summary regarding employee Johnson I find there is no showing that the action of the Union in referring the individuals it did ahead of Johnson was discrimina tonly motivated nor did the Union act in an arbitrary or unfair manner concerning referrals made as they relate to Johnson 4 Patsy Robinson Patsy Robinson testified that she commenced woriing for the Company in August 1979 and that prior to her employment she had registered on the out of work reg ister at the Union Robinson testified she was referred and worked as a pump operator for the Company and that she had prior pump operating experience with A B Construction Company Robinson testified she was laid off from the Company due to a reduction in froce on November 30 1979 Robinson testified she went to the union hall the same morning she was laid off and signed the out of work register Robinson testified she remained in a laid off status until April 2 1980 when she was re called Robinson testified that she kept her name current on the out of work register between November 1979 and April 1980 Robinson testified she was referred to the Company as a pump operator on April 2 1980 Robin son s employment with the Company has continued at least until the trial The record evidence does not support Robinson s testa mony The record indicates that Robinson last signed the out of work register on November 26 1979 and did not thereafter sign the register prior to her being referred on April 11 1980 Pursuant to the understanding between the Company and the Union Robinson s name would have been purged from the out of work register on De cember 26 1979 Robinson was referred as a pump oper ator on April 11 1980 pursuant to an oral name request from the Company based on her status as laid off due to a reduction in force employee Inasmuch as Robinson was name requested I do not consider that she failed to first sign the out of work list on April 11 1980 immedi ately before she was referred to make her referral unlaw ful I find that Robinson was referred for legitimate busi ness reasons as a recall from a reduction in force status and not for any unfair or arbitrary reason 5 Eloise K Payne Eloise K Payne testified that she first commenced work for the Company on May 15 1979 as an oiler She testified she was referred through the Union and worked as an oiler for approximately 2 weeks at which time she was changed over to a pump operator Payne testified she was terminated from her employment at the Compa ny on September 21 1979 and remained so until April 25 1980 Payne testified she signed the out of work reg ister on September 21 1979 as a pump operator/oiler and that she kept her name current on the out of work list from September 21 1979 to April 25 1980 Payne testified there was not a time at which her name was not current on the out of work register An examination of the record reflects that Payne signed the out of work register on March 24 1980 as an oiler and pump operator and on April 21 1980 as a pump operator only Payne was referred to the Compa ny as a pump operator on April 25 1980 1 specifically discredit Payne s testimony that she remained current on the out of work register at all times from September 21 1979 until April 1980 The record evidence simply does not bear out Payne s contention in that respect The record reflects and Payne acknowledges that she was referred by the Teamsters to the Company as a truck driver on April 4 1980 Payne testified she made one haul with the truck she was assigned to before she quit because she refused to drive the particular truck without training Payne testified she could drive a truck but she did not desire to drive for the Company without some training As a result of her refusal to drive Payne was terminated from her employment with the Company on April 4 1980 An individual could not remain current on the out of work register while employed by a contractor on the waterway Therefore when Payne became em ployed by the Company on April 4 1980 such action would have removed her from the out of work register Her next effective registration after April 4 1980 would have been when she signed the register only as a pump operator on April 21 1980 Between the period from March 24 until April 4 1980 the record reflects there were two individuals referred as pump operators and two as oilers Junior Ray McAllister who it appears was not current on the out of work register in that he had last signed on February 11 was referred on April 1 1980 as a pump operator ahead of Payne because according to Schiebler whose testimony I credit McAllister was an orally name requested recall from a reduction in force Cleston Barns was referred on April 3 1980 as a recall from a reduc tion in force and as such orally name requested Barns had last signed the out of work register on January 14 1980 The two oiler operators who were referred ahead of Payne prior to her being given a job on April 4 1980 were Naomi Smith and Bill Chappell Smith was referred on March 26 1980 ahead of Payne as a recall from a reduction in force and was orally name requested of the Union Chappell was referred on March 31 1980 and was referred ahead of Payne because he was a recall from a reduction in force and Schiebler specifically re called asking for Chappell by name It does not appear MORRISON KNUDSEN CO 267 that either Smith or Chappell were current on the out of work list at the time of their referrals As with McAllis ter and Barns however when the individuals are specifi cally name requested I find it would have been unneces sary for them to have gone by the union hall and sign the out of work register before being referred to the Company inasmuch as the parties were honoring name requests The record reflects there were no pump referrals made between April 21 and the time that Payne was offered and accepted a pump operator position with the Compa ny on April 25 1980 I therefore conclude and find that the General Counsel has failed to establish that there was any discriminatory motive or unfair or arbitrary action on the part of the Union and Company concerning the referrals as they pertained to Eloise K Payne 6 Belinda Woodard The record reflects that Belinda Woodard signed the out of work register on April 21 and 28 May 12 and 19 June 2 July 14 and 21 and August 7 1980 (G C Exh 13) Woodard signed as an oiler pump operator Between the period of April 21 and July 2 1980 there were 7 pump referrals and 34 oiler referrals made (G C Exh 12) Woodard was referred to the Company as an oiler on August 13 1980 Dwayne Hull who signed the out of work register on April 21 was referred as a pump operator on April 25 1980 Hull was referred ahead of Woodard according to Schiebler because Hull was a recall from a reduction in force The procedure followed for a recall from a reduc tion in force has been fully described elsewhere in this decision Denise Henry who signed the list on April 7 and was referred on April 25 1980 as a pump operator had been on the out of work list longer than Woodard Eloise K Payne who had signed the list on April 21 was referred on April 25 1980 as a pump operator be cause according to Schiebler Payne was name request ed as a prior employee Jerry Steeley who it appears had not signed the out of work register within 30 days of his May 5 1980 referral as a pump operator was re ferred according to Schiebler because he was more ex perienced than Woodard Schiebler testified he learned of Steeley s experience from the Tennessee Valley Au thonty where Steeley had previously worked The infor matron came to Schiebler through the union hall at a time when Schiebler requested experienced pump opera tors B R Holland who signed the out of work register on April 14 was referred on May 6 1980 as an oiler ahead of Woodard because he was name requested as a recall from a reduction in force according to Schiebler Schiebler testified that W J Dewberry who signed the out of work register on April 28 and was referred as a pump operator on May 9 1980 was referred ahead of Woodard as a name requested recall from a reduction in force Patty Johnson who signed the out of work regis ter on April 21 was referred on May 14 1980 as a pump operator because according to Schiebler she was a recall from a reduction in force and was name request ed Jerry Harris who had signed the out of work register under the category of grease truck on April 7 was re ferred as an oiler on April 21 1980 because he was a name requested recall from a reduction in force status according to Schiebler Wayne Martin who signed the out of work register on April 21 was referred as an oiler on April 22 1980 ahead of Woodard because according to Schiebler he was more qualified than Woodard Schiebler stated that Martin s qualifications were reflect ed on the out of work register where Martin had dem onstrated that he had performed jobs as an operator of backhoes and swing rigs and as such he would be far more qualified than anyone else to be an oiler on a unit that he had operated Bill Wiggins it appears had not signed the out of work register within 30 days of his April 23 1980 referral as an oiler however he was re ferred ahead of Woodard because he was a name re quested recall from a reduction in force General Coun sel s Exhibit 12 lists a John McGaughy as having been referred to the Company as an oiler on April 25 1980 Schiebler testified that the Company s records did not re flect anyone as having been hired or any referrals having been refused on that date David Moore who had signed the out of work register on April 21 was referred on April 30 as an oiler ahead of Woodard because he was specifically name requested Freddie Farr who signed the out of work register on April 21 was referred on May 2 1980 as an oiler ahead of Woodard because ac cording to Schiebler he was a recall from a reduction in force and was name requested per the procedure estab lashed for recalls of individuals who were in a layoff status due to a reduction in force John E Williams who had signed the out of work register on April 7 and 14 and May 5 was referred as an oiler on May 5 1980 ahead of Woodard according to Schiebler because Mr Williams was represented as an experienced minority Paul McKee who it appears had not signed the out of work register within 30 days of his May 6 1980 referral was referred as an oiler ahead of Woodard Schiebler testified that he learned from Al Johnson Construction Company that McKee was a field service oiler and was extremely experienced Schiebler testified he called the superintendent of Al Johnson Construction Company and verified McKee s experience level and then imme diately called the Union hall and informed them of that fact [McKee s experience] Shortly after apprising the Union of McKee s extremely experienced status he was referred to the Company Danny Gardner who signed the out of work register on April 14 as a rig oiler was referred as an oiler on May 6 1980 and according to Schiebler Gardner had been on the out of work list longer than Woodard and for that reason was referred ahead of Woodard Sue Harris who had signed the out of work register on April 7 21 and May 5 was referred as an oiler on May 13 1980 ahead of Woodard because she was a recall from a reduction in force who accord mg to Schiebler was name requested Jerry Richardson who had signed the out of work register on May 5 as a grease truck operator was referred on May 14 1980 as an oiler According to Schiebler Richardson was far more experienced than Woodard David Braddock who had not signed the out of work register within 30 days of his May 14 1980 referral as an oiler was specifically 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD name requested by the Company Randy Odle who signed the register on April 14 and was referred on May 14 1980 as an oiler was a specifically name requested minority according to Schiebler James Rhodes and Thomas Bray had not signed the register within 30 days of their May 15 and 16 1980 referrals to the Company Schiebler testified that Rhodes and Bray were hired as field service oilers after a requisition was placed with the Union for field service oilers Schiebler testified that a field service oiler must have tools mechanical ability knowledge and experience in the classification he is being hired for Schiebler testified that Woodard was not qualified as a field service oiler Schiebler testified he learned of the experience level of Rhodes and Bray through the interview process Rhodes and Bray filled positions Woodard could not perform E Steve McNatt who it appears had last signed the out of work register on April 21 was referred on May 29 1980 as an oiler ahead of Woodard because according to Schiebler McNatt was a recall from a reduction in force and was name requested Franklin W Kennedy who had signed the out of work list on May 5 was referred on May 30 1980 as an oiler ahead of Woodard in that the out of work register indicated Kennedy had experience at the Tennessee Valley Authority Schiebler testified that he could not be sure what was in the mind of the Union at the time it referred Kennedy however he was hopeful that they had followed the criteria outlined in supplying experienced personnel to the Company in making refer rals Ardel Scott Jr who signed the out of work list as a grease truck operator on May 19 was referred on June 2 1980 ahead of Woodard according to Schiebler be cause Mr Scott had more experience as verified by a telephone call to the Eby Company He was sent as a field service oiler to a position that Miss Woodard was not qualified to fill The Union was apprised of that that he was being considered for employment Peggy Daniels who had signed the register on May 12 and 27 was referred as an oiler on June 4 1980 ahead of Woo dard because she was a recall from a reduction in force and according to Schiebler was name requested Chris Cass who had signed the register on May 19 and June 2 was referred as an oiler on June 6 1980 ahead of Woo dard because he was a specifically name requested indi vidual Schiebler testified that it was a general practice in the construction industry that the sons of superintendents would work on the projects with their fathers Chris Cass had previously worked with his father on the Bosco job which preceded the project herein Cass father asked the superintendent if Chris Cass would be qualified to work as an oiler The superintendent agreed he would be and asked Schiebler to specifically name request Chris Cass which he did James Henley it appears had not signed the out of work register within 30 days of his June 10 1980 referral Schiebler testified that Henley was a minority request Schiebler testified the Company had a standing order with the Union for qualified minon ties The out of work register reflects that Henley was registered as a mechanic with tools thus indicating a high degree of qualification David R Palmer who had signed the register on April 14 and 28 and May 5 as a grease truck operator was referred on May 14 1980 Schiebler testified that the resident manager of Eby Con struction Company had instructed Palmer to come to the Company about employment Schiebler testified that Palmer was interviewed when he got to the Company s worksite The superintendent found him to be quite qualified and Schiebler s best recollection was that Palmer was hired and then sent to the union hall for a referral Kathy Sanders who it appears had not signed the out of work register within 30 days of her June 10 1980 referral was referred ahead of Woodard because she was a recall from a reduction in force and was spe cifically name requested Sanders had been specifically asked for by Lube Superintendent McGehee according to Schiebler Mark Turner it appears had not signed the out of work register in the 30 days prior to his June 10 1980 referral Schiebler testified that Turner was a recall from a reduction in force and was name requested per the arrangement with the Union regarding orally name requesting reduction in force returnees Randy Odle who signed the register on June 9 was referred on June 10 1980 as an oiler ahead of Woodard because accord ing to Schiebler he specifically name requested that Odle be referred to the Company Schiebler testified he specifically remembered calling the union hall for Odle because Odle had encountered a problem moving his family into the area of the Company and after 3 days of absence was terminated and when Odle finally was able to get his family into the area he informed his supenn tendent and the superintendent asked Schiebler to call the Union and specifically request Odle Ellis Wright who had signed the register on June 9 was referred on June 10 1980 ahead of Woodard because according to Schiebler he was a recall from a reduction in force and was name requested in accordance with the procedure the Company and Union followed concerning the recall ing of individuals who were in a laid off status as a result of a reduction in force by the Company Betty Arm strong who signed the register on June 9 was referred on June 16 1980 ahead of Woodard because she was a recall from a reduction in force and was a minority female who was specifically name requested Woodard had never worked for the Company prior to August 13 1980 Schiebler testified he specifically recalled discuss ing Armstrong with his superintendent McGehee be cause his listing of those who were laid off due to a re duction in force indicated that she was a minority female and he was attempting to meet certain goals and timeta bles regarding minority employment at the time Tommy Taylor who had signed the list on May 27 and June 9 was referred on June 16 1980 ahead of Woodard be cause according to Schiebler he was name requested from a reduction in force status and was also a minority Katie Phifer who signed the out of work register on May 27 was referred as an oiler on June 16 1980 Phifer was referred ahead of Woodard according to Schiebler because she was a recall from a reduction in force Schiebler specifically remembered calling the union hall and asking for Phifer in that he had previously hired an individual with the same last name and he was wonder ing if it was the same individual and had discussed the matter with his superintendent Larry Thrasher who MORRISON KNUDSEN CO signed the register on May 19 was referred on June 17 1980 as an oiler ahead of Woodard because the requisi tion was for a field service oiler and Thrasher was in fact a field service oiler Thrasher was placed in a position to perform a function that Woodard could not perform Brenda Gianola was referred on June 19 1980 ahead of Woodard because according to Schiebler Gianola had been on the out of work list longer than Woodard Demmon Russell was referred as an oiler on June 19 1980 Schiebler testified that Russell was referred ahead of Woodard because Russell had been on the out of work list longer than Woodard A perusal of the out of work list indicates that Russell last signed the out of work register on May 19 1980 in the dozer and scraper categories In my perusal of the out of work register (G C Exh 13) I could not otherwise locate Russell s name with respect to an oiler referral The General Counsel who examined Schiebler at length regarding each of the individuals did not present any additional evidence to demonstrate that Russell had not in fact been on the list longer than Woodard The out of work regis ter indicates that Russell had been laid off from an em ployer on the waterway project in December 1979 It is therefore clear that Russell was in fact an experienced employee There is some difficulty in determining who had and had not signed the out of work register at a par ticular time inasmuch as the names are handwritten There were four different out of work listings and when individuals had been referred their name on the out of work register had been lined through The copies uti lazed as exhibits were reduced from legal size to letter size paper Thus it may be conceivable that Russell had in fact validly been on the out of work register longer than Woodard Charles Perry who was referred as an oiler on June 23 1980 was in fact not a new hire at all according to Schiebler He was a requested craft change from a teamster to an operating engineer and he had been on the payroll prior to June 23 and was on the pay roll on June 23 and continued his employment thereafter Schiebler testified that he sent Perry to the union hall to get a referral for the craft change Denise Henry who had signed the register on June 16 as a pump operator was referred on June 24 1980 as an oiler ahead of Woo dard because she was a prior employee She had previ ously been employed by the Company in an oiler classifi cation before her referral on June 24 1980 (as set forth supra Henry was referred on April 25 after having signed the register on April 7 1980 as a pump referral) One of the priorities set forth by Schiebler as it pertained to the understanding between the Company and the Union was that employees who were recalled from a re duction in force as well as prior employees would be given a preference inasmuch as prior employees were a known commodity to the Company and new employees were not Woodard next signed the out of work register on July 14 and 21 and August 7 1980 During the period of time from July 14 until August 13 1980 which was the time Woodard was referred to the Company and accepted as an oiler there was one pump referral and six oiler refer rals W J Dewberry who had signed the register on July 14 was referred as a pump operator on August 6 269 1980 ahead of Woodard because according to Schiebler he was a prior employee who had been terms nated for health reasons Larry Hyder who it appears had not signed the out of work register within 30 days of his July 16 1980 referral as an oiler was referred ahead of Woodard because he was recommended to the Corn pany by Holloway of the Union when Holloway called Schiebler and informed him that Hyder was a highly rec ommended experienced oiler The Company according to Schiebler requested an experienced oiler be referred and Hyder was then referred by the Union Johnny Hol land who it does not appear had signed the register within 30 days prior to his July 22 1980 referral as an oiler was referred ahead of Woodard according to Schiebler because he was a prior employee Harold McNair who had signed the register on June 23 was re ferred on July 23 1980 ahead of Woodard because he was specifically name requested by a subcontractor of the Respondent namely B H Wilhite According to Schiebler Wilhite had specifically name requested McNair and McNair came to the Company and worked on its payroll however he was actually performing work for subcontractor Wilhite Johnny Mock who it does not appear had signed the register within 30 days of his July 28 1980 referral was referred ahead of Woo dard according to Schiebler in that he was an expen enced field service oiler and the request of the Company to the Union was for a field service oiler Woodard was not capable of performing the function of a field service oiler Schiebler testified he learned of Mock s experience in that Mock had been to the project several times and had talked to the lube superintendent and although he was unable to testify precisely what was in the Union s mind at the time Mock was referred he did state that the Company had requested the Union provide them with experienced personnel and it was his belief that the Union was complying with that request when they re ferred Mock Leon Cliff it appears had not signed the out of work register within 30 days of his July 29 1980 referral as an oiler Schiebler testified that his request of the Union was for a field service oiler and that Cliff was capable of performing field service oiler duties however Woodard was not Carlos Austin who had signed the out of work register on July 14 as a grease truck opera tor was referred as an oiler on August 4 1980 Schiebler testified that Austin was a field service oiler that he had learned of Austin s qualifications from Project Manager Melvin Huffman of Harbert Construction Company Huffman had informed Schiebler that Harbert Construc tion Company was about ready to lay off some individ uals and informed Schiebler of Austin s qualifications Schiebler testified he personally informed the Union of Austin s qualifications shortly after he had spoken with Huffman Austin was then referred on August 4 Schiebler testified that Woodard was referred on August 13 1980 that she was not name requested and he did not know why the Union referred her except that he would assume she was the best qualified individual for referral as an oiler at the time The General Counsel in brief contends that the Com pany s position as indicated by the testimony of 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schiebler that employees were referred ahead of Woo dard as pump operators because they were recalls from reduction in force layoffs prior employees or because they had more experience is not borne out by the record The General Counsel agrees that Denise Henry was on the out of work register longer than Woodard and that Patty Johnson was name requested The General Coun sel however contends the Company s position that Jerry Steeley who was referred on May 5 had more expen ence than Woodard is not borne out by the record evi dence The General Counsel contends that Steeley was not name requested nor had he signed the out of work register within 30 days of his referral in the pump opera tor classification The General Counsel contends the evi dence is conclusive that Woodard was skipped over on the out of work register and that Steeley was back doored ahead of her The General Counsel contends that because the evidence demonstrates that Woodard was not referred as a pump operator in the order that she should have been it was unnecessary for the General Counsel to go into an indepth analysis of the 34 oilers referred ahead of Woodard between April 21 and June 24 The General Counsel contends that it would be im possible for Bill Wiggins Paul McKee David Braddock James Rhodes Thomas Bray E Steve McNatt James Henley Kathy Sanders Mark Turner or Charles Perry to have been legitimate referrals inasmuch as their names did not appear on the out of work list according to the General Counsel in the oiler classification dunng the 30 day period prior to their referral The Company and Union contend that the facts of the instant case particularly regarding Woodard demon strate that over and again the Union attempted to satisfy its hiring hall arrangement with the Company to honor agreed on referral priorities and to refer the most quali feed persons available at the time in accordance with the legitimate business requirements of the Company The Company and Union contend that the referrals to the Company by the Union regarding Woodard were be cause the individuals were either callbacks were call backs from a reduction in force were name requested or were extremely experienced thus requiring their referrals ahead of Woodard It is evident from the testimony and the record that the hiring arrangement agreed on by the parties and as carved out by custom and practice met the business needs of the Company and was uniformly observed I am persuaded that no consideration whatsoever was given to union membership or to any other factors unrelated to job qualifications There might in some instances be a degree of dispute regarding the job qualification judg ments exercised by the Union (the General Counsel did not refute those qualification judgments) but there can be no quarrel with the conclusion that the motivating force in deciding referrals was the desire to obtain the best qualified employee available at the time within the established and mutually understood priorities It does not appear that any of referrals that were made ahead of Woodard were made for any unlawfully moti vated reason nor is there any evidence that the Union acted in an unfair irrelevant arbitrary or invidious manner nor is there evidence that the Union breached its fiduciary duty owed by it to the employees The General Counsels contention that Jerry Steeley was referred out of order for no valid reason does not withstand scrutiny As Schiebler testified and I credit his testimony the Company had been informed of Steeley s work experience by the Tennessee Valley Authority and the Union had also passed the information regarding Steeley s qualifications onto the Company when the Company had requested of the union hall experienced pump operators I am persuaded that those individuals who were re ferred who had not signed the register within 30 days of the time of their referral were referred in accordance with the priority referral arrangements agreed on be tween the Company and the Union I am also persuaded that when the Union and/or Company learned of the qualifications of individuals such as McKee that infor mation was made known to and utilized by the other party I am also persuaded that when individuals such as Braddock were name requested the Company was at tempting to meet its minority goals with respect to its work force being composed of a certain percentage of minority and female employees In such instances for the Union to require the individual to sign the bottom of the list before being referred out under the pnonty referral arrangements would have been an unnecessary act I am convinced based on the credited testimony of Schiebler that the Union was making every reasonable effort to supply the Company with the various referral priorities it had agreed on namely to help the Company employ ex penenced qualified employees name requested employ ees recalls from reduction in force recalls minority and female employees I conclude and find that the General Counsel has failed to establish any unlawful motivation concerning any referrals made ahead of Woodard or to establish that the Union acted in an unfair or arbitrary manner I therefore recommend dismissal of that por tion of the complaint that pertains to the referral of Woodard 7 Bobby G Downs Bobby G Downs signed the out of work register in the dozer and scraper classifications on May 27 and June 16 1980 (G C Exh 13) From the period May 27 until July 16 1980 there were 18 dozer operator referrals and 21 scraper referrals made Dale Cagle who had signed the out of work register on March 31 April 21 and 28 and May 19 had been on the out of work register longer and was referred on May 23 1980 ahead of Downs according to Schiebler for that reason Wayne Lauderdale who it appears had not signed the out of work register within 30 days of his June 2 1980 referral was referred ahead of Downs be cause he was a prior employee Marlin Hill who had signed the register on May 27 and June 2 as a finish dozer operator was referred on June 2 1980 as a dozer operator Schiebler testified that he did not know why Hill (Holt) was referred ahead of Downs however Hill was discharged the same day he was hired in that he was unqualified for the job Sanders Walker was referred MORRISON KNUDSEN CO 271 ahead of Downs although it appears he had not signed the out of work register within 30 days of his June 3 1980 referral Schiebler testified that Walker was a prior employee who had performed satisfactorily for the Com pany in the past which indicated to him that Walker was experienced and as such was referred to the Company as an experienced prior employee however he could not specifically state what was in the Unions mind at the time it referred Walker ahead of Downs Cary McCor kle who signed the register on June 9 and was referred on that date because according to Schiebler he was re quested to complete a father son work team Schiebler testified that father and son teams are unique in the con struction industry in that a father trains his son from the time he is old enough to be around a dozer to oil it maintain it take care of it and eventually to operate it Schiebler testified that the Company attempted to use father son teams at any time it could and after the father had recommended that his son be brought out to work the Company did so because the father was able to keep a close rein on the son with respect to absenteeism poor work habits or things of that nature Schiebler testified that Harold Haston and Ken P Christensen both of whom signed the register on June 9 1980 were referred on that date because they were specifically name request ed Gene Bollinger was referred on June 10 1980 Schiebler did not state any reason why Bollinger had been referred on that date Bollinger was terminated that same day June 10 as an employee unqualified to operate a dozer Charles Walmer who signed the out of work register on May 5 12 19 and 27 1980 was referred on June 10 as a dozer operator ahead of Downs because ac cording to Schiebler he was an experienced name re quested prior employee who was a minority Wood Ray Warren who it appears had not signed the out of work register within 30 days of his June 17 1980 referral was according to Schiebler specifically name requested of the Union Harry Price who signed the out of work reg aster on June 16 was referred ahead of Downs on June 20 1980 because according to Schiebler he was a recall from a reduction in force and was also a trainee Schiebler testified that during the previous fall the Union and the Company trained a number of individuals During the winter months when work was slow the trainees as well as qualified regular employees were laid off Price was one of those trainee employees who was recalled from a reduction in force and as such was name requested Garland Fisher who signed the register on June 23 and was referred on June 24 1980 was accord ing to Schiebler a known qualified minority John Ben nett who it does not appear had signed the out of work register within 30 days of his June 24 1980 referral was referred ahead of Downs according to Schiebler whose testimony I credit because he was a known qualified mi nority Gary L Walker and James Smith both signed the out of work register on June 23 and were referred on July 1 1980 ahead of Downs because according to Schiebler both were recalls from a reduction in force and were name requested Harold A Dixon who signed the out of work register on June 9 was referred on July 1 1980 ahead of Downs according to Schiebler be cause he was a name requested recall from a reduction in force Alford Donald who signed the out of work regis ter on July 7 as a loader crane operator and scraper op erator was referred on July 9 1980 as a dozer operator ahead of Downs because he was name requested as an employee in a laid off status due to a reduction in force by the Company James R Armstrong who had signed the out of work register on July 17 was referred on July 9 1980 as a dozer operator before Downs was referred because according to Schiebler he was an experienced employee who had previously worked for the Tennessee Valley Authority and such experience was made known to the Company There were 21 scraper operator referrals made be tween May 27 and July 16 1980 David Emmons who had signed the register on May 12 and 19 was referred on May 27 1980 ahead of Downs because according to Schiebler Emmons was a minority and the Company was still in the Office of Federal Contract Compliance stage regarding the employment of minorities Schiebler testified he had ridden the Union excessively to have it refer qualified minority personnel to the Company Schiebler testified We were grabbing at every qualified minority we could get our hands on Charles Walmer who had signed the out of work register on May 19 and 27 was referred on May 27 1980 Walmer was name re quested as a recall from a reduction in force Johnny Nunley who had signed the out of work register on May 12 (G C Exh 13 22) was referred on May 28 1980 ahead of Downs Schiebler testified that Nunley was known to have experience in that he had previously worked for the Tennessee Valley Authority and it was his belief that the Union gave consideration to his prior work experience in referring him to the Company Nunley would have also been on the register longer than Downs R H Taylor who had signed the register on June 2 was referred on June 9 1980 ahead of Downs because according to Schiebler he was name requested George Hays who signed the out of work register on June 2 was referred on June 9 1980 ahead of Downs Schiebler testified that Hays was a name requested mi nority Marvin Youngblood who it appears had not signed the register within 30 days of his June 9 1980 re ferral was according to Schiebler an experienced minor ity Carl Gebauer who had signed the out of work regis ter on June 2 and 9 was referred on June 9 1980 Schiebler testified that Gebauer was known to be experi enced at the Tennessee Valley Authority The Company learned of Gebauer s experience in a telephone call from the union hall in which call the Union informed the Company that individuals were being laid off or moving from place to place and did the Company have any place it could utilize experienced hands Clifton Hill who had signed the register on May 19 and June 2 and 9 was re ferred on June 9 1980 Schiebler testified that Hill was an experienced minority Charlie Clark who signed the register on June 2 and 9 was referred on June 10 1980 ahead of Downs because according to Schiebler he was a minority Tom Duke III who had signed the register on June 2 was referred on June 10 1980 ahead of Downs according to Schiebler because he was a minori ty recall from a reduction in force and was name re 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quested David Garrett who it does not appear had signed the list within 30 days of his June 11 1980 refer ral was referred according to Schiebler ahead of Downs because he was a minority prior employee James Barnett who signed the out of work register on June 2 and was referred on June 11 1980 was a minority em ployee Ellis Erving who signed the register on June 9 as a finish dozer operator was referred on June 12 1980 as a scraper operator Schiebler testified that Erving was a minority employee and the Company at that time was going through a compliance review and was attempting to bring into the Company as many qualified minorities as it could employ Eddie Henley who had signed the out of work register on June 2 and 9 was referred on June 13 1980 as a scraper operator ahead of Downs be cause according to Schiebler he was a minority recall from a reduction in force and was orally name requested in accordance with the procedure between the Company and the Union with respect to the recall of employees who had been laid off as a result of a reduction in force George Jones who it appears had not signed the out of work register within 30 days of his June 19 1980 referral as a scraper operator was an employee known to have experience with the Tennessee Valley Authority Mau rice Ray King who signed the out of work register on June 9 was referred on June 20 1980 because accord ing to Schtebler King had been on the out of work reg ister longer than Downs Schiebler on cross examina tion however acknowledged that Downs had signed the out of work register on May 27 and June 16 1980 and therefore King would not have in fact been on the regis ter longer than Downs William Williams who had signed the out of work register on June 9 and 16 was re ferred on June 23 1980 as a scraper operator ahead of Downs because according to Schiebler he was orally name requested as a recall from a reduction in force and was also a minority trainee Isaiah Simmons who signed the out of work register on June 23 was referred on June 24 1980 ahead of Downs because he was a quali fled minority Schiebler testified he had been discussing with the Union and the project manager for the Compa ny the need for employment of any qualified minorities the Company could obtain James D Markwell Jr who signed the out of work register on June 2 and 23 was re ferred on July 1 1980 ahead of Downs as a scraper op erator because he was a name requested recall from a re duction in force Chester Junior who signed the out of work register on June 2 as a blade dozer grader opera tor was referred on July 2 1980 ahead of Downs be cause according to Schiebler he was a name requested recall from a reduction in force layoff Joe Murray who signed the out of work register on June 23 as a finish blade operator was referred on July 16 1980 ahead of Downs because according to Schiebler he was specifi cally name requested by the Company Downs signed the out of work register on August 4 and 18 1980 Downs was referred to Harbert Construc tion Company on August 18 and he accepted employ ment with that company at that time Between August 4 and 18 1980 there were one dozer referral and seven scraper referrals made Arthur L Tice was referred on August 14 1980 as a dozer operator Schiebler testified that Tice had been on the out of work register longer than Downs The General Counsel stated during cross examination of Schiebler that Tice had not signed the out of work register until August 11 1980 which would indicate that Tice could not have been on the out of work register longer than Downs I have been unable to find in the record any indication that Tice had signed the out of work register within 30 days of his referral to the Company by the Union The following seven individuals were referred as scraper operators between August 4 and 18 1980 James Phifer who signed the out of work register on July 21 was referred on August 5 1980 ahead of Downs ac cording to Schiebler because he was the only individual who had signed the out of work register with an indica tion that he was qualified to operate a paddle wheel scraper and that the request by the Company to the Union on the date in question was for a paddle wheel scraper operator Billy Clyde Gates who had signed the out of work register on July 28 as a finish dozer and finish blade operator was referred on August S 1980 according to Schiebler because Gates had been on the out of work register longer than Downs Willis Lee Ras berry who both signed the out of work register and was referred on August 11 1980 as a scraper operator was referred ahead of Downs because according to Schiebler he was specifically name requested Jackie Grisham who had signed the out of work register on August 4 and 11 was referred on August 12 1980 ahead of Downs because according to Schiebler he also was specifically name requested Ray Hendrix was referred ahead of Downs on August 12 1980 Schiebler stated Hendrix was more experienced than Downs Schtebler testified that Union Representative Holloway had in formed him that Hendrix was being laid off from another employer and that he was highly experienced Schiebler informed Holloway to send Hendrix to the Company whenever he was in fact laid off from his other employ er There is some conflict which I find unnecessary to resolve in Schiebler s testimony whether he actually spoke with Hendrix before he was referred to the Com pany Willie Lee Jasper and Floyd Patterson both of whom signed the out of work register on August I1 were both referred on August 15 1980 ahead of Downs because according to Schiebler they were experienced minorities Schtebler testified that the Company had asked the Union to search for qualified minorities and refer them to the Company Following his employment with Harbert Construction Company Downs again signed the out of work register on September 9 1980 in the dozer and scraper operator positions On September 15 1980 Downs signed the out of work register in the finish dozer classification Be tween September 9 and 14 1980 there were no dozer re ferrals however during that same period there were three scraper referrals made Kevin Younger who signed the out of work register on September 8 was referred on September 11 1980 as a scraper operator Schiebler tes tified that Younger was discharged the same day he was referred by the Union to the Company as not being qualified and immediately a replacement was requisi MORRISON KNUDSEN CO tioned for Younger George Lambert who signed the out of work register on August 11 and September 10 was referred on September 11 1980 as a scraper opera tor ahead of Downs because according to Schtebler he was specifically name requested Stanley Setzer it ap pears had not signed the out of work register within 30 days of his September 11 1980 referral Schiebler testi fled that Setzer was referred ahead of Downs because of Setzer s prior experience Schtebler testified he received a telephone call from Project Manager Howard Dyer Smith of Eby Construction Company who informed him that Setzer among others was being released from Eby and that he was a push cat operator Schiebler testified that when he learned of the qualifications and experience of Setzer he called the union hall and told them of Setzer s qualifications Downs signed the out of work register as a finish op erator on September 15 1980 Between September 15 and 22 1980 there were six referrals made Downs again signed the out of work register on September 22 1980 as a finish dozer operator and he accepted a referral on September 24 1980 Between September 22 and 24 1980 there no finish dozer referrals and only one scraper refer ral made Junior West signed the out of work register on August 25 as a dozer scraper tract and backhoe opera tor he signed the register on September 8 1980 as a backhoe blade loader and scraper operator he signed on September 9 as a backhoe operator and he signed the register on September 15 1980 as a finish dozer opera tor Schiebler testified that West had been on the out of work list longer than Downs and as a result was re ferred ahead of him Gilbert Cromwell Jr who had signed the out of work register as a dozer operator on September 15 was referred on September 16 because he was a prior employee Ed Bates who had signed the out of work register on September 15 and 16 as a crane op erator was referred as a finish dozer operator on Sep tember 16 1980 ahead of Downs Schiebler testified that Bates was a prior employee Bobby Cagle who it ap pears had not signed the out of work register within 30 days of his referral on September 17 1980 was accord ing to Schiebler a prior employee of the Company Ran dolph McPherson who signed the out of work register on September 16 as a dozer operator was referred on September 19 1980 ahead of Downs according to Schiebler as a prior employee James E Walker who had signed the out of work register on August 25 and September 5 and 16 as a finish dozer operator was re ferred on September 19 1980 because Walker had been represented to Schiebler as an experienced hand from the Peter Kiewitt and Sons Company Project Manager Butch Hill of Peter Kiewitt informed Schiebler who in turn informed the Union of Walker s experience and qualifications Schiebler testified he had requested that the Union supply as many employees to the Company as it could from the list of individuals who were being laid off by Peter Kiewitt and Sons Company Robert E Goo dall who had signed the out of work register on Septem ber 22 1980 as a blade and finish dozer operator was referred on that date as a scraper operator according to Schiebler based on Goodall s experience which he (Schiebler) had personally discussed with the Union 273 Schiebler testified that Goodall was a utility hand which meant he was able to operate more than one piece of equipment Schiebler testified that there were five basic types of equipment in the category that Goodall worked namely dozer scraper backhoe crane and motor grader The value of having an employee like Goodall according to Schiebler was that during bad weather when one type of equipment was unable to operate a second type of equipment could be utilized and as such the Company could make use of the utility employee to operate equipment without having to call additional help in and send other help home Schiebler testified that Downs was specifically name requested on September 24 1980 based on a recommendation by the U S Corps of Engineers because Downs was a qualified dozer oper ator Schiebler testified that Downs in his employment was found by the Company not to be qualified as a finish dozer operator In his brief the General Counsel states that he is in agreement with the Company that Dale Cagle had been on the out of work list longer than Downs and should have been referred ahead of him on May 28 1980 The General Counsel contends however that Downs should have been referred to one of the positions filled by either Wayne Lauderdale or Mann Hill on June 2 1980 The General Counsel contends there is no evidence that either Lauderdale or Hill was name requested The Gen eral Counsel further contends there have been no validly stated reasons why the Union referred Lauderdale or Hill ahead of Downs The General Counsel contends that although close scrutiny of the record demonstrates that other employees were referred ahead of Downs in violation of the hiring hall arrangement it was not neces sary to so analyze the record because of his contention that no valid or legitimate reason existed or was given for Lauderdale being referred out of order The General Counsel contends that Lauderdale s name was not on the out of work records as a dozer or scraper operator during the 30 day period prior to his referral The Gen eral Counsel further argues the fact that Hill may have been discharged the day he was referred which not only fails to justify his out of order referral but refutes any argument that may be made regarding Hill s experience or qualifications The General Counsel further contends that the record shows that Gene Bollinger Harry Price Garland Fisher Charles Walmer and John Bennett were not on the out of work list at all at the time they were referred ahead of Downs to dozer operator positions The General Counsel further contends that John Nunley George Hays Marvin Youngblood George Jones Wil ham Williams and Joe Murray were not on the out of work list as scraper operators during the 30 day period prior to their referral ahead of Downs as scraper opera tors The Company contends that assuming arguendo an exclusive hiring hall arrangement existed between the Company and the Union legitimate business reasons ex isted for all the referrals made in the classifications that Downs designated by his signature i e that were made in accordance with agreed on priorities such as recalls or experience name requests names on the register longer 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD minority requests and personally recommended individ uals from other contractors on the waterway The Com pany further contends that any out of order referrals during the period involving Downs were justified ac cording to the referral priorities agreed on between the Company and the Union It is my opinion that the General Counsel has failed to establish that any of the referrals made ahead of Bobby G Downs were for any unlawfully motivated reasons or for reasons that were unfair irrelevant arbitrary invidi ous or a breach of the fiduciary duty owed by the Union to the individuals involved In examining various of the contentions the General Counsel raised regarding certain individuals being referred ahead of Downs I have con cluded there was nothing unlawful in the referral of Wayne Lauderdale ahead of Downs in that Lauderdale was a prior employee of a known level of experience to the Company and as such qualified as one of the prior ities for referral agreed on between the Company and the Union Marlin Hill (Holt) had signed the out of work register the same day as Downs Downs had signed the register 5th from the top on May 27 1980 whereas Hill had not signed until the 40th individual from the top on that same day however Hill had indicated by his name the expertise level of a finish dozer operator Therefore I conclude that it is not unreasonable to infer that the Union felt Hill was better qualified for the job than Downs and as such I conclude and find that the General Counsel has failed to show that Hill was referred ahead of Downs for any unlawfully motivated or arbitrary or unfair reason Although Schiebler could not specifically state what was in the mind of the Union in refernng individuals such as Sanders Walker it does appear from the facts surrounding his referral as related by Schiebler that those facts negate any unlawful motive or arbitrary action on the part of the Union in referring Walker ahead of Downs Regarding the McCorkles I conclude and find nothing unlawful in the Company requesting and the Union hon oring a father son work team for the valid justifiable business reasons testified to by Schiebler with respect to the McCorkles Although there was no valid reason advanced for the referral of Gene Bollinger as a dozer operator and Kevin Younger as a scraper operator ahead of Downs they were rejected as being unqualified the same day they were referred by the Union and requisitions were made through the Union for their immediate replacement Therefore little if any harm could have been done to others being referred even if the two individuals were re ferred for unlawfully motivated or arbitrary reasons Again it appears the Company and Union had justifi able business reasons for referring and employing ahead of Downs trainees such as Harry Price in that trainees qualifications and experience levels were known to the Company and Union The General Counsel stated at the trial on numerous occasions that he was not seeking any findings of a viola tion of the Act with respect to the Company attempting to fill minority goals in giving priority to the referral of minority employees It would appear that the Company had very justifiable reasons in attempting to secure and obtain qualified minority employees to meet the Office of Federal Contract Compliance requirements it had re garding minority employees particularly as it pertains to the referral of Emmons Youngblood and others Maurice Ray King it appears had not been on the out of work list longer than Downs Schiebler testified on September 15 1981 that King had been on the out of work list longer and gave that as the Company s ex planation for the out of order referral of King On Octo ber 20 1981 however under cross examination by the General Counsel Schiebler acknowledged that King was not on the list longer At that point Schiebler did not further explain any reasons known to the Company for Kings referral I am persuaded that what I view as a mistake regarding whether King was on the out of work list longer does not in and of itself establish a pattern of unlawfully motivated conduct or arbitrary or unfair acts on the part of the Union and Company regarding the hiring arrangement between them Again the record reflects that Arthur Tice had not been on the out of work list longer than Downs Howev er the record does reflect that Tice had worked for Eby Construction Company and Harbert Construction Com pany and as such had plenty of experience Therefore I do not attribute any unlawful conduct on the part of the Union or Company concerning the referral of Arthur Tice Yet another example of what demonstrated in my opinion the justifiable business considerations which considerations negate any finding of arbitrary or unfair conduct on the part of the Union for the referral of indi viduals ahead of Downs was the referral of James Phifer who was the only individual indicated as capable of op erating a paddle wheel scraper and as Schiebler credibly testified the equipment was very complicated to operate and extremely expensive to purchase and as such very qualified individuals were needed to operate the equip ment Further I find nothing unlawful in the Company learning of the qualifications and experience of an em ployee from another employer on the waterway such as in the case of Stanley Setzer Schiebler testified he had learned of Setzer s qualifications and experience from Eby Construction Company and that he had made this known to the Union Thereafter Setzer was referred out by the Union to the Company as a qualified employee In summary I find that the General Counsel has failed to establish that any of the actions taken by the Compa ny and Union with respect to the referral of Bobby G Downs were for any unlawfully motivated or unfair it relevant arbitrary or invidious reasons or conduct that would constitute a breach of the fiduciary duty owed by the Union to the employees I therefore recommend dis missal of that portion of the complaint that alleges the Company and the Union violated the Act by refusing since on or about January 22 1980 to refer Bobby G Downs in accordance with the practice agreement and understanding they had between them MORRISON KNUDSEN CO 275 E The Unnamed Discriminatees The General Counsel at paragraph 7(b) of the com plaint alleged as discriminatees certain specifically named individuals and then added to the same complaint paragraph and others whose identity is at this time un known The General Counsel at the trial presented evi dence regarding the named discriminatees and through out the trial and by way of his brief attempted to identify whom he considered to constitute additional discrimina tees whose identity had not been made known in the complaint At various stages during the trial the Compa ny and Union moved to have that portion of the com plaint dismissed that dealt with unidentified and unnamed discriminatees I denied the parties motions to dismiss with respect to that portion of the complaint and al lowed evidence to be developed for the specific reason that during the presentation of the evidence at trial I was unable to determine if in fact the General Counsel had established a pattern of unlawful conduct attributable to the Company and the Union regarding the hiring hall at rangement After naming in his brief certain individuals who he contended were discnminatees as a result of indi viduals being referred and not on the register or referred out of the proper order on the register he stated Gen eral Counsel is unable at this time to identify the remain ing discriminatees that resulted from the out of order re ferrals to be discussed infra because of time and person nel restrictions The General Counsel further contends that in addition to the time and personnel restrictions it has had to operate under further identity of unnamed discriminatees is complicated by the fact that the out of work register (G C Exh 13) reflecting the names of the other contractors whom the Union referred applicants to and the dates the applicants were referred is rot very legible The General Counsel contends that consideration of the unnamed discnminatees in the instant case is man dated by law and that further identification of the un named discnminatees can be continued in subsequent compliance proceedings In support of such a proposi tion the General Counsel would rely on the case of Iron Workers Local 433 228 NLRB 1420 1438 (1977) in which the administrative law judge noted Though not identified there were many applicants for employment who were on the out of work list were present at the hall and were eligible for dis patch under the hiring hall procedures Those appli cants who would have been referred for work but for Respondents circumvention of the hiring hall procedure are discriminatees That is so even though they are not specifically identified in the complaint The General Counsel would also rely on in support of his proposition a quotation the administrative law judge in Iron Workers Local 433 had taken from Standard Fruit & Steamship Co 211 NLRB 121 (1974) which quote is as follows Although there is no evidence in the instant case that any employee who would have normally been dispatched to work for Respondent Employer was denied such employment as a result of Respondent s [Union s] unlawful preferential treatment of certain employees this is a matter that affects the scope of the remedy rather than the nature of the violation Finally the General Counsel contends that footnote 8 in the Boards decision in Iron Workers Local 45 235 NLRB 211 (1978) dictates that consideration be given to the unnamed and unidentified discriminatees Footnote 8 of Iron Workers Local 45 states in part Accordingly the class of similarly situated discri minatees entitled to relief by this Decison and Order shall include any nonmember applicant for referral identified by the General Counsel in subse quent compliance proceedings as an individual in preference to whom a member applicant designated requested has been nonchronologically referred with the provision that Respondent may attempt of firmatively to defend any requested referral des ignation by production and verification of the afore mentioned documents or other evidence of suffi cient probity The Company has taken the position throughout the proceedings that the understanding between the Compa ny and the Union in the instant case did not constitute an exclusive hiring hall arrangement but if an exclusive hiring hall arrangement were to be found that there has been no showing on this record that any bypassing of re ferrals regarding the specifically named discnminatees was discriminatory but rather that the referrals were for legitimate business reasons and as a result the Company and Union could not be liable for discrimination against unnamed discriminatees inasmuch as there had been no showing of any pattern of arbitrary invidious irrelevant or unfair conduct on the part of the Union and Compa ny In my opinion I am precluded from giving consider ation to or making any findings regarding the alleged un named discriminatees Fundamental fairness procedural due process and case law preclude the scatter gun ap proach of investigation by trial that the General Counsel attempted in this proceeding There has been no showing of any widespread discrimination regarding the operation of the hiring hall in the instant case such as to allow con sideration of unnamed and at the time of the issuance of the complaint unidentified discriminatees Each of the cases relied on by the General Counsel is clearly distin guishable In the case of Iron Workers Local 433 supra that the General Counsel would rely on for the proposi tion that individuals not specifically identified in the complaint may be considered and remedied even in the compliance stage of the proceedings involved a situation in which the union had utterly disregarded the hiring hall procedure and its disregard had been massive in scale open and with a deliberate intent to engage in backdooring even to the extent of utilizing threats of vio lence to protect the deliberate effort the union had made to continue its engagement in backdooring applicants to work with the company therein In Iron workers Local 433 supra the General Counsel had estabished that 76 specific individuals were backdoored to jobs in violation 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the hiring hall procedure On those factual holdings the Board approved the administrative law judge s con clusion that individuals were entitled to relief even though they were not identified in the complaint The administrative law judge in Iron Workers Local 433 supra found support for his position in the prior Board case of Standard Fruit & Steamship Co 211 NLRB 121 (1974) in which it was stated that although there was no particular identification of who would have been dis criminated against by being denied employment the fail ure to so identify would affect the scope of the remedy rather than the nature of the violation However in Standard Fruit & Steamship Co supra there was a find ing by the Board that the respondent employer as well as the union had violated the Act by unlawfully giving preference in employment to certain employees In Iron Workers Local 45 supra relied on by the Gen eral Counsel the Board concluded that there had been a continuing and widespread pattern of unlawful conduct against nonmember applicants who had registered at the hiring hall The Board concluded the action of the union constituted a consistent pattern of discrimination against all similarly situated nonmember applicants The Board found after an examination of the referral books that the union specifically committed unfair labor practice viola tions with respect to specifically named individuals The Board in footnote 8 of its decision (Iron Workers Local 45) on which the General Counsel relies found that the respondent had failed to produce certain documents or explain its failure to produce them to meet the burden of proving its defense to facially discriminatory referrals Then the Board stated Accordingly the class of Simi larly situated discriminatees entitled to relief by this De cision and Order shall include any nonmember applicant for referral identified by the General Counsel in subse quent compliance proceedings with the provision that the respondent may attempt to affirmatively defend any requested referral designation by production and ven fication of documents or other evidence of sufficient pro bity The General Counsel failed to give consideration to or at least failed to address himself to footnote 9 of the Board s decision in Iron Workers Local 45 supra in which the Board stated that the complaint not only al leged that the respondent had violated the Act with re spect to named discrminatees but also alleged more broadly that respondent had unlawfully discriminated against other of its applicants for employment The Board then stated in footnote 9 In view of our finding herein that Respondent has engaged in a pattern of widespread discrimination against nonmember applicants seeking employment through its hiring hall and in light of our previous findings in Ironworkers Local 373 supra and Iron workers Local 45 supra we find it appropriate to provide restitutional relief to the named discnmina tees as well as to other as yet unidentified discn minatees for any loss of earnings they may have suf fered by reason of Respondents discrimination against them It is quite clear that the Board intends to provide relief to unnamed and unidentified discnminatees only in those cases in which the General Counsel has established un lawful acts with respect to named discriminatees and fur ther the unlawful acts regarding named discnminatees must have been such that would constitute a pattern of widespread discrimination engaged in by the parties charged with unlawful conduct I am persuaded and find that consideration may not be given to whether the Act has been violated with respect to unnamed and/or unidentified discnminatees inasmuch as there has been no showing in the instant case of any pattern of widespread discrimination on the part of the Union and Company regarding the named discnminatees I shall therefore recommend dismissal of that portion of the complaint alleging that the parties discriminated against unnamed and unidentified discriminatees See also Iron Workers Local 373 235 NLRB 232 233 fn 8 (1978) F The Allegations of Excessive Fees The General Counsel at paragraphs 7(d) (e) (f) (g) and (h) of the amendment to the consolidated complaint alleges that since on or about January 21 1980 the Union in accordance with the practice agreement and understanding of the hiring hall arrangement had re ferred employees for employment with the Company and that since that date the Union had charged all em ployees referred for employment with the Company s hourly and weekly fees as a condition for referral em ployment and continued employment and that the refer ral fees were not related to the enforcement of any valid union security clause and that the referral fees were ex cessive and discriminatory in that they were not reason ably related to the cost of providing the referral service The conduct of the Union was alleged to violate Section 8(b)(2) of the Act The referral slip provided to the individual by the Union for referral to the Company authorized certain items to be deducted from the individuals pay while the individual was working for the Company Prior to July 21 1980 and after May 1981 the weekly applicant serv ice dues charged nonunion members were $5 per week Between late July 1980 and early May 1981 the weekly applicant service dues for nonunion members were raised from $5 to $10 Additionally the referral slip prior to July 1980 and after May 1981 provided for a $2 50 weekly travel service dues charged to engineers from other locals of the Union That fee was raised to $5 during the period of time between late July 1980 and early May 1981 During the entire time period both members and nonmembers alike were charged a 5 cent an hour service fee The referral slips also contained a weekly travel service dues for apprentices from other locals however the record reflects that deduction was never utilized Further nonunion members referred by the Union to the Company signed an EPEC checkoff authorization Engineers Political Education Committee form which authorized certain deductions however there is no evi dence that any sums were ever deducted from any indi vidual s pay for that particular purpose (G C Exh 7) MORRISON KNUDSEN CO The fees paid for the weekly applicant service dues and the service fees were deducted from nonunion mem bers only during that period of time they were actually employed by the Company The Company did not deduct union dues for union members inasmuch as the members paid their dues directly to the Union Members of the Union pay $36 quarterly as dues Journeymen op erators purchased a $36 quarterly book whereas appren tice operators purchase a $30 quarterly book Journey men operators pay a $283 50 initiation fee which in cludes 3 months union dues Each union member pays the quarterly dues whether employed or not Each union member while employed pays a 5 cent an hour service fee When the weekly application service dues of non union members were increased from $5 to $10 in July 1980 the dues of union members were increased by $1 per month The services provided by the hiring hall to union and nonunion members are the same The General Counsel contends that the 5 cent an hour service fee the $5 and alternatively $10 per week ap plicant service fee for nonunion members and the $2 50 and alternatively $5 per week travel fee for members of other locals were excessive and discriminatory The General Counsel contends that the fees are excessive to the extent that they are not related to the value of the services rendered by the Union and discriminatory in that they are mandatory for all but union members in order to receive referrals and also nonmembers of Local 624 are required to pay fees higher than dues paid by members of Local 624 The General Counsel contends that the Union has failed to show in any way that the fees charged the nonmembers are related to the cost of operating the union hiring hall The General Counsel contends that the burden of showing the fees to be rea sonable and related to the cost of the hiring and referral system is on the Union In support of that proposition the General Counsel quotes a portion of footnote 8 of the Boards decision in J J Hagerty Inc 139 NLRB 633 (1962) The General Counsel contends that it was precluded from putting on any evidence with respect'to demonstrating the excessive nature of the fees charged in that the Union refused to produce subpoenaed docu ments related to the issue The General Counsel contends that under these circumstances Respondent Union should be required to reimburse all nonmembers of Local 624 for the fees deducted within the 10(b) period The Union contends that the General Counsel has failed to meet its burden of establishing that the fees charged were excessive The Union contends that the record is void of any showing of what a union member paid as compared to what a nonunion member paid on a monthly basis and thus no basis to establish that the fees were in fact excessive because a member paid monthly dues whether employed or not whereas a nonmember only paid service fees while actually employed The Union contends that the burden to be met by the Gener al Counsel which in the instant case it failed to do was clearly outlined in the Board s decision in Operating En gineers Local 825 (Homan Co) 137 NLRB 1043 (1962) I am persuaded that the General Counsel has failed to meet its burden of establishing the fair cost of the Union s referral procedures and the pro rata share of 277 each registrant The burden of proving that a referral fee is reasonably related to the cost of hiring and referral fee is not on the Union as contended by the General Coun sel in his reliance on a quoted portion of footnote 8 of the Boards decision in J J Hagerty Inc 139 NLRB 633 (1962) The General Counsel lifted that portion of the quote in his brief out of context The Board in J J Hagerty made a very limited holding in that it stated at 636 Because the exclusive hiring and referral system was discriminatorily operated the Respondent could not lawfully exact a fee for its use It is for this reason that we find the charging of the permit fee unlawful and we find it unnecessary to consider or adopt the trial examiners additional reason for holding such fee unlawful The footnote to which the General Counsel alludes in its totality reads as follows Like the trial examiner Members Rodgers and Leedom would also find a permit fee discriminatory where the permit fee was equal to union dues absent evidence that such fee was reasonably related to the cost of the hiring and referral system The burden of proving that such fee is reasonably related to the cost of the hiring and referral system is on the union where a fee equal to union dues is charged since union members receive other benefits as the result of membership including the right to partici pate and vote in union affairs Moreover $2 of the monthly permit fee was remitted to the Internation al Union Cf H John Homan Company supra It is clear that Members Rodgers and Leedom would have made a broader finding than the Board actually did in J J Hagerty Further Members Rodgers and Leedom in footnote 8 asked that comparison be made to the H John Homan Co case in which case Members Rodgers and Leedom dissented It is clear from the Board s hold ing in H John Homan Co that the burden is on the Gen eral Counsel to establish that a nonunion member had been required to pay more than his fair share for the use and operation of the hiring hall The Board stated in H John Homan Co at 1044 Other than to recite a number of expenses which appear to him [the General Counsel] to be totally unrelated to the operation of Respondents hiring hall the General Counsel has made no attempt to specify the fair cost of this Respondents referral procedures and the pro rata share of each registrant We cannot agree that this is a matter to be left to the compliance stage of this proceeding nor do we agree with our dissenting colleagues that the burden is on the Respondent to disprove a generalized alle gation that the fees paid by nonmember registrants are in fact a disproportionate sum for Respondent s services in securing and maintaining sources of em ployment under contractual terms and conditions 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel has failed in the instant case to show that the fees charged to nonmembers during the time they are working are excessive or discriminatonly disproportionate to those paid by the union members who pay dues whether working or not and who are sub ject to fines and assessments that may be imposed by the Union whereas the nonmember is not I reject the General Counsels contention that it would have had evidence and introduced such to show that the fees were excessive but for the Union s refusal to produce subpoenaed documents relative to the issue The Union did not make an outright refusal to supply the records but rather indicated to the General Counsel that if the matter could be settled the records would not need be produced at that particular time The General Counsel and Union were never able to settle the matter and the General Counsel did not thereafter exercise his available legal rights with respect to obtaining the mate rial he sought I therefore find that his argument that he would have produced evidence had the subpoenaed doc uments been supplied to be without ment The Board in a more recent case Teamsters Local 667 (Spector Freight System) 248 NLRB 260 ( 1980) as indi cated by its comments in footnote 3 adheres to its hold ings in Operating Engineers Local 825 (Homan Co) 137 NLRB 1043 (1962) In the Spector Freight System case the Board sets forth the findings of the administrative law judge in which he determined fees to be excessive on two grounds the second ground of which was that the union raised the referral fee in that case by $2 per month coincident with an increase in union dues without providing any evidence of increased expenses in operat ing the referral hall to justify the increased fee In other words the administrative law judge appears to have con cluded that the burden was on the union to justify any increase in referral fees charged However the Board did not rule on that particular issue but rather found any fee charged by the union in that case to be excessive be cause the union did not operate a bona fide referral system for which the casual employees should have been required to pay any referral fee Considering that the Board only outlined what the adminstrative law judge had held in Spector Freight System and at the time re ferred at least with tacit approval to its decision in Homan Co I have concluded that the burden outlined in the Homan Co case is still valid Board law I find the General Counsel has failed to meet his burden of estab lishing the fees charged nonmembers in the instant case were excessive or discriminatory I shall therefore rec ommend dismissal of that portion of the complaint in its entirety G The 8(b)(1)(A) Allegations The complaint at paragraphs 8 and 9 alleges that the Union acting through its agent Benny Splain at Cor inth Mississippi on or about July 24 1980 solicited em ployee complaints and grievances attempted to coerce employees into withdrawing charges filed with the Board promised an employee employment if the em ployee withdrew charges filed with the Board and co erced employees by telling these employees to make sure they told the Board agent that they did not want to sue the Union and that they had no complaints or grievances about the Union Such conduct on the part of the Union is alleged to have violated Section 8(b)(1)(A) of the Act The General Counsel did not address the above out lined 8(b)(1)(A) allegations in his brief however the General Counsel did not call Eloise K Payne Edna J McDaniel and Patsy Robinson to testify regarding the allegations Patsy Robinson testified that she participated in the filing of charges against the Union and Company with the National Labor Relations Board She testified that the charges she had reference to were filed to the best of her recollection either in June or July 1980 and that after those charges were filed she had a conversation about them with certain officials of the Union She testi feed that the conversation in question took place at the coffeeshop of the Ramada Inn Motel in Corinth Missis sippi Robinson testified the conversation took place within a couple of weeks of the date that the charges were filed with the Board Present for the Union at the meeting according to Robinson were Glenn Stroupp Benny Splain and James Holloway Robinson testified that the meeting came about as a result of Eloise K Payne asking Benny Splain at the union meeting if they could meet with him the next night Eloise K Payne was also present at the Ramada Inn meeting according to Robinson Stroupp was not present when the meeting first started Robinson testified that Splain asked her and Payne why they had sued the Union Robinson testified she told Splain that to the best of my knowledge I have not sued the Union and he said that paper that we signed was suing the Union and I told him I thought it was for an investigation into the union matters as to why we were not being represented Robinson testified that Splain then asked her if he brought the man down to see them on the jobsite would she tell him that she was not suing the Union Robinson testified I told him that if he would bring the man down to the jobsite that I would tell him that the papers that I had signed was for an investigation into the Union and not suing the Union Robinson testified she was working for the Company at the time Robinson stated Splain told her that she had gone over his head when she filed the grievance with the Board Robinson asked Splain what she was supposed to have done and that he told her that she should have come to him personally and he would have handled the matter Robinson testified she had a conversation with Benny Splam the morning before the Ramada Inn meeting re garding Mary Martin going to work with the Company The meeting took place in the C parking lot at the company jobsite According to Robinson Eloise K Payne Mary Martin Charlie Slaton (Mary Martin s hus band) Benny Splain and herself were present Accord ing to Robinson Splain asked Martin why she had signed her name on the list Robinson stated Splain was referring to the list involving an investigation of the Union by the National Labor Relations Board Robinson testified that Splain asked Martin what the Union had ever done to her for her to put her name on the list MORRISON KNUDSEN CO Robinson testified that Martin said it was not what the Union had done against her but what they had not done that she had set at the hall and had not been sent out on the job Robinson stated Splain then asked her if she had a job would it make any difference about her being on the list According to Robinson Martin said if she had a job if she was asked as far as she was concerned she-it was awful hot weather and she could have been signing for the temperature Robinson testified she did not remember anything else being said in that conversa tion Robinson testified she saw Martin at the Company at work the next day Eloise K Payne testified that she attended a meeting in July 1980 at the Ramada Inn in Corinth Mississippi 1 day after a union meeting Present at the meeting for the Union were Benny Splain James Holloway and Glenn Stroupp Payne testified that Patsy Robinson was also present Payne testified that she had asked Splain to meet with her and Robinson because she wanted to discuss the fact that they had been getting the runaround on over time pay at the Company Payne testified that when the group met at the Ramada Inn they went to the coffee shop ordered coffee and carried on a conversation of a general nature for a period of time Payne testified that Splain asked He said Girls have you all sued the Union? We said No sir we haven t sued the Union He said You ve filed papers I said We filed the papers to have the Union investigated with Jane McDan iel He said All right if you hadn t sued the Union then I would bring the man on the jobsite tomorrow and you tell him in your own words that you haven t sued the Union Payne testified that Splain did not state what man or person he was talking about Payne testified that Holloway at that point left the conversation stating that he had to call his lawyer to tell him that no one was suing the Union Payne testified that Holloway rejoined the group in a few minutes and then asked to be excused stating his ulcers were bothering him Payne testified that Splain also asked her and Robinson about their gripes regarding the Union Payne stated Splain told her and Robinson that if they had any more gripes or any thing he would take care of them personally Payne tes tified she told Splain that as far as she knew they did not have any more gripes other than that they would like to have the overtime matter settled Payne testified Splain told her he would take care of the matter Payne testified that Splain asked her why they had done this and she told him I said Mr Splain I ve not went behind your back with anything I said I don t care if you know that I m suing the Union I m having the Union investigated and I am going to file a lawsuite [sic] for sex discrimination and I said I in not going behind your back or anybody else s back to tell you this According to Payne they further discussed general matters pertaining to the waterway and the conversation ended Payne testified that she was present at a meeting at the company parking lot which probably took place some time in July 1980 Present at the meeting were Charles Slaton Patsy Robinson Glenn Stroupp James Holloway Benny Splain and Mary Martin Payne testi fled that she and Robinson drove into the parking lot 279 where Mary Martin was standing Payne walked up to a truck in the parking lot where Splain Holloway and Stroupp were sitting and said Mr Splain this lady here needs a job Splain asked who the individual was and Payne told him her name is Mary Martin If she had gone to work six weeks ago it would have been too late at that time Splain according to Payne stated he would see what he could do for her that he was owed a favor by someone at the shop Splain asked Martin to meet him the next morning in the parking lot Payne stated that Martin went to work for the Company the next day Edna J McDaniel testified she had a conversation with certain individuals from the Union namely Benny Splain James Holloway and Glenn Stroupp McDaniel was not sure whether the conversation took place on the Monday before or after she had filed charges with the Board but she believed it was the Monday after McDaniel testified that Stroupp called her on a Saturday and asked if he along with Holloway and Splain could come and talk to her She agreed they could The three visited her on a Monday afternoon in mid July 1980 and according to McDaniel Splain did most of the talking McDaniel testified Splain asked her if she had filed charges against the Union McDaniel told Splain she had filed a grievance with the Board McDaniel testified Splain told her that he had already talked to the other women who had signed the charges and they were going to drop their charges McDaniel stated that Splain sug gested she should do likewise McDaniel told Splain and the others she felt like she had a right to object to the way she had been treated Benny Splain testified he held a meeting in July 1980 at the Ramada Inn in Corinth Mississippi with Eloise Payne Patsy Robinson James Holloway Glenn Stroupp and himself The meeting was held at the re quest of Eloise Payne and Patsy Robinson Splain testi feed that when Payne and Robinson came into the restau rant at the Ramada Inn in Corinth they sat at a table and talked for a while discussing various subjects Splain testified regarding the meeting as follows I asked them specifically what problem they had with the Local Union They said they had none I said that is not what the papers from the NLRB says which I guess to go back and clarify a ques tion that you asked earlier-that being the case the meeting was held after charges had been filed with the NLRB but prior to the time that it came to court here They said they had no problem with the Local Union at all and we reminded them-I did that this isn t what the letter from the NLRB said- they said no the problem that we have is with the Company Splain testified that he did not make any promises or threats in any way shape form or fashion Splain tes tified he did not ask Payne or Robinson to withdraw the charges against the Union Splain testified further that he did not ask Payne or Robinson to tell the Board agent that they did not want to sue the Union Splain testified The only statement that was made on my behalf and I 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was careful to choose words was that when they said they had no problem with the Local Union was the fact that that is not what the letter from the NLRB indi cates Splain testified he was president of the Union at the time Until February 1981 and for an unspecified period of time prior to that Stroupp had served as a job steward for the Union James Holloway testified that he was present at the meeting at the Ramada Inn and he described the meet ing as follows We sat down and were just talking for a while drinking coffee and Benny Splain asked them what was going on you know about the complaint and they said well we don t have anything against the Union or anything and that was all-just mostly dis cussed things like that-it didn t last long Holloway testified that Splain did not ask anyone to tell a Board agent they did not want to sue the Union or that they had no complaints or grievances against the Union According to Holloway Splain made no promises to anyone with respect to having them withdraw any charges filed with the Board I find unbelievable that portion of Patsy Robinson s testimony that she attributes to Splain as having taken place in the C parking lot of the Company for a number of reasons Eloise K Payne who was also present tells a substantially different version of the same conversation in that Payne makes no mention of any co ments by Splain concerning whether it would make a difference to Martin if she had a job Stroupp testified es sentially the same as Payne The General Counsel did not call Martin or Charlie Slaton (Martins husband) to testify concerning the conversation I therefore con elude and find that the Union through Splain did not violate the Act in any manner with respect to Splain s conversation with Payne and Robinson regarding the employment status of Martin in the Company s parking lot in July I shall therefore recommend dismissal of that portion of the complaint Regarding the meeting among certain of the union in dividuals Payne and Robinson at the Ramada Inn in July 1980 I credit Splain s version of the events In ob serving Splain testify it appeared he was very anxious to tell his version of the events and that he was doing so truthfully I find Patsy Robinson s testimony when con tradicted to be unreliable For example her testimony that she kept her name current on the out of work regis ter from November 1979 until April 1980 was not borne out by the record evidence Further Robinson s testimo ny with respect to the conversation she attributes to Splain about asking employee Martin if she had a job would it make a difference whether she brought charges against the Union also proved to be unsupported and un believable I therefore conclude that at any place Rob inson s testimony is contradicted it is not worthy of belief I specifically credit Splain s statement that he did not ask anybody at the Ramada Inn meeting to tell the Board agent that they did not want to sue the Union I likewise credit his testimony that he did not make any promises or threats at the meeting not did he ask Payne or Robinson to withdraw their charges against the Union It is my opinion that the Ramada Inn conversa tion was nothing more than a meeting at two employees request to discuss problems relating to the Company and that no part of the conversation or conduct on the part of the Union or its agents violated the National Labor Relations Act I likewise find the Union through it agents engaged in no unlawful conduct in the conversa tion between McDaniel and Splain at McDaniel s home I therefore recommend that the allegations of para graphs 8 and 9 of the complaint be dismissed in their en tirety In summary after careful consideration of each of the General Counsels arguments (including those not ex pressly mentioned) I conclude that the Company and Union have not violated the Act in any manner alleged in the complaint CONCLUSIONS OF LAW 1 Morrison Knudsen Company Inc Brown and Root Inc and Martin K Eby Construction Co Inc a joint venture known as Tenn Tom Constructors is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Union of Operating Engineers Local 624 AFL-CIO is a labor organization within the mean ing of Section 2(5) of the Act 3 The Company and Union at all times material maintained a practice agreement and understanding that the Union would be the sole and exclusive source of re ferrals of employees to employment with the Company 4 The Company and Union have not since on or about January 22 1980 arbitrarily failed and refused to refer in accordance with the practice set forth in para graph 3 above to employment with the company em ployees Edna Jane McDaniel Mary Martin Patty John son Patsy Robinson Eloise K Payne Bobby G Downs Belinda Woodard and others whose identities are un known in violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act 5 The Union did not on or about July 24 1980 un lawfully solicit employee complaints and grievances at tempt to coerce employees into withdrawing charges filed with the Board promise employees employment if the employees withdrew charges filed with the Board or coerce employees by telling these employees to make sure they tell the Board agent they did not want to sue the Union and had no complaints or grievances about the Union 6 The Union has not since on or about January 21 1980 in accordance with the agreement set forth in para graph 3 above charged employees referred for employ ment with the Company hourly and weekly fees as a condition of employment and continued employment that were excessive and/or discriminatory in violation of the Act 7 The Company and Union have engaged in no unfair labor practices violative of the Act MORRISON KNUDSEN CO 281 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER It is recommended that the consolidated complaint and amendments in Cases 26-CA-8546 26-CB-1650 26-CB- 1659 and 26-CB-1677 be dismissed in their entirety 8 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation the United States Court of Appeals Enforcing an Order of the National al Labor Relations Board shall read Posted Pursuant to a Judgment of Labor Relations Board