Iron Workers Local 167

National Labor Relations Board - Board DecisionsAug 29, 1975

220 N.L.R.B. 70 (N.L.R.B. 1975)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Local Union No. 167, International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Mid-Steel, Inc.) and Don W. Brown. Case 26-CB-920 August 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On April 29, 1975, Administrative Law Judge Ben- jamin K . Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed limited exceptions and brief in sup- port thereof, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . He recognizes that it is the Board's estab- lished policy not to overrule such credibility resolutions unless the clear preponderance of all the relevant evidence convinces the Board that the resolutions are incorrect . See, Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). He contends , however, that certain aspects of the present case require that some of the credibility find- ings be reversed . We have, however, carefully examined the record and find no substantial basis in the record before us for reversing the Administrative Law Judge's credibility findings. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Administrative Law Judge: The charge was filed on August 22, 1974 ,1 and amended on October 21. The complaint was issued on October 24. The hearing was held in Memphis , Tennessee, on December 16 and 17 and January 27 and 28 , 1975. The issue litigated was whether Respondent violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, by refusing to refer the Charging Party to available jobs with Mid-Steel on August 14 and again on August 22. For the 1 Dates are 1974 unless otherwise indicated reasons set forth below , I find that Respondent did not. Upon the entire record, including especially my observa- tion of the demeanor of the witnesses , and after due con- sideration of briefs , I make the following: FINDINGS OF FACT 1. JURISDICTION Mid-Steel , Inc., is engaged in the building and construc- tion industry as a steel subcontractor. While it performs some steel erection work, the overwhelming majority of its contracts call for the placing of steel rods on projects where poured concrete structures are being built . It has an office in Memphis . In the 12 months just prior to issuance of the complaint in this case , it performed services valued in ex- cess of $50,000 in Tennessee and other states. On Decem- ber 16, the opening day of the hearing, it had under way two projects in Pennsylvania , one in Florida, one in Texas, one in Indiana , and one in Tennessee. If. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Mid-Steel is party to a collective-bargaining agreement with Respondent which provides for an exclusive hiring hall operated on nondiscriminatory principles. The con- tract calls for registration and referral of applicants on the basis of four groups distinguished by such criteria as expe- rience in the trade. Applicants are placed in Group A, the highest classification , for example , if they have worked as mechanics or apprentices for the past 4 years , passed a journeyman's examination administered by an Iron Work- ers local, worked 1 of the last 4 years for an employer who is signatory to the contract, and lived for the past year in the "geographical area constituting the normal construc- tion labor market." Group D, on the other hand, is made up of applicants who have merely worked at the trade for more than 1 year. Paragraphs 6, 7, and 8 of the referral clause read: 6. The Union shall maintain each of the separate Group lists set forth above which shall list the appli- cants within each Group in the order of the dates they registered as available for employment. 7. Employers shall advise the Union of the number of applicants needed . The Union shall refer applicants to the Employer by first referring applicants in Group "A" in the order of their places on said list and then referring applicants in the same manner successively from the lists in Group "B", then Group "C", and then Group "D". Any applicant who is rejected by the Em- ployer shall be returned to his appropriate place with- in his Group and shall be referred to another Employ- er in accordance with the position of his Group and his place within the Group. Upon a registrant being referred for employment and actually employed on a job more than three (3) days, such registrant's name shall be removed from the list until such time as his employment has been terminated at which time he 220 NLRB No. 19 IRON WORKERS LOCAL 167 71 shall be registered at the bottom of the appropriate list under which he is entitled to be registered. If a registrant, upon being referred in regular order, refuses to accept the referral , such registrant's name shall be placed at the bottom of the appropriate list under which he is entitled to be registered. 8. The order of referral set forth above shall be fol- lowed except in cases where Employers require and call for employees possessing special skills and abili- ties in which case the Union shall refer the first appli- cant on the register possessing such special skills and abilities. There is no provision for referral of men requested by an employer by name in situations where the special skills and abilities contemplated by paragraph 8 are not a factor. Paragraphs 7, 8, and 9 of the complaint , the parts which frame the issues litigated at the hearing, read: 7. Respondent maintains , by contract or arrangement with the Employer , an exclusive referral system in the job classifications represented by Respondent. 8. Respondent, by its agent, Varner Roberson, on or about August 14, 1974, caused or attempted to cause, the Employer not to hire Brown by refusing to refer him to an available job with the Employer because of a prior dispute between Brown and Roberson con- cerning Brown's allowing carpenters to do steel work. 9. Respondent , by its agent , Varner Roberson, on or about August 22, 1974, refused to refer Brown to an available job with the Employer after he was specifi- cally requested. Don Brown is a member of Iron Workers Local 426 in Detroit where , apparently, his father is a steel contractor. However, for several years, off and on, prior to 1974 he lived with his mother and children in Trumann , Arkansas, and worked as a union ironworker in and around Mem- phis , the geographical jurisdiction of Respondent . During this period he obtained work through Respondent's hiring hall without incident. Ironworkers come in assorted types, depending on their skills . Their union books reflect this, at least in part , since some show that a man is a journeyman and thus presumably capable of doing structural, detail, or rod work indiscriminately while others show more limited qualifications. (While the record is a little obscure in this area , I gather that welding is a skill unto itself and even a man carrying a journeyman's book is not referred to a job when the call is for a welder .) Brown is a rodbuster only, that is, the only type of job he seeks when he utilizes Respondent's hiring hall is one involving the placing of steel rods to reinforce poured concrete. Respondent struck on June 4. At that time Brown was working for Mid-Steel. The event which the General Counsel contends explains Respondent's motive for the August violations took place in May, some 2 or 3 weeks before the strike began. There is no significant disagreement about what happened at that time. The strike lasted for 30 days. During this period, Brown worked at his trade in the Detroit area . When he returned to Memphis after the strike, he sought to return to work for Mid-Steel. This case turns on what happened on three dif- ferent occasions in August. There is no real conflict about what happened on August 20. It is impossible to reconcile the testimony of the witnesses as to what happened on August 14 and 22. As to those 2 days, the testimony of the General Counsel's witnesses and the testimony of Respondent's witnesses present a head-to-head credibility conflict. B. May Mid-Steel had a three-man crew working in May on a football stadium being built at the Arkansas State Univer- sity campus in Jonesboro. Jeff Blankenship was the fore- man. Don Brown and Arthur O'Neal White were under him. White was the steward. Blankenship took a few days off. He asked Brown to mind the store for him while he was gone. Mid-Steel sent a final check to the project for White and instructed Brown to give it to him. Mid-Steel understood that White would move over to the payroll of the general contractor on the project for the few days Mid- Steel did not have enough work for him. Brown simply handed White his check and told him he was laid off. White called Respondent and protested that he had been laid off illegally while Brown continued to work since he was the steward on the job. Respondent telephoned Mid- Steel, and the misunderstanding was quickly straightened out. A day or two later Brown was working in a hole placing U-shaped rods around which concrete would be poured to form the base of a light tower. White saw a carpenter hand a rod or two to Brown. White went to a nearby construc- tion office and called Respondent. He told Varner Rober- son, Respondent 's business agent , that Brown was letting carpenters do ironworkers work. Roberson asked to speak to Brown. A labor foreman who was standing outside the office hollered for Brown to come to the phone. Brown cursed, jumped out of the hole, grabbed a piece of pipe, and stormed into the office. As he picked up the telephone he banged the pipe on the desk. There followed an argu- ment between Brown and Roberson so horrendously pro- fane that no witness could be persuaded at the hearing to state explicitly just what words were used. In substance, Roberson yelled at Brown for letting carpenters do iron- workers work; Brown yelled at Roberson for making a mountain out of a molehill. A day or two later James (Sonny) Hawkins, Respondent's assistant business agent, met Jerry Cole, an official of Mid-Steel, at the jobsite. They conducted a brief investigation of what had happened. When it was over, Cole assured Brown that everything was all right. C. August 14 Brown returned to Trumann from Detroit sometime in early August. He began his quest for work on August 13, when he telephoned Cole. The head-to-head credibility conflicts start with the testimony as to this conversation 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and become critical , because of the allegations in para- graph 8 of the complaint , with respect to the events of the next day . The conflicts pit Brown against Cole , Blanken- ship, and Roberson . Compared to the testimony with re- spect to the events of August 22 , they are relatively easy to resolve, for Brown displayed on the witness stand a memo- ry so selective as to make him a reliable witness only where the significant parts of his account are corroborated in some way. Time after time when pressed for details about the glibly given bare bones of his story , he retreated into the shell of "I don't remember ." The testimony as to Au- gust 14 differs in another important respect from the testi- mony as to August 22 . As the following summary of what each testified makes clear , even if I were to credit Brown over Cole , Blankenship , and Roberson , the only evidence that Roberson refused to refer Brown on August 14, as paragraph 8 alleges , would be Brown 's account of what Blankenship allegedly told him about a telephone conver- sation Blankenship allegedly had with Roberson and thus hearsay. On August 13, according to Brown , Cole told him to go to Respondent 's hall and Cole would put in a request for him by name . According to Cole , he told Brown to go to Jonesboro and talk to Blankenship to find out whether Blankenship needed any men. In a subsequent call to Blankenship , according to Brown , Blankenship instructed him to come directly to Jonesboro instead of going to the hall and Blankenship would get the hall to send a referral slip to the project . Blankenship denied that he talked to Brown on the telephone at all. On August 14, late in the day, Brown went to the site in Jonesboro where Mid-Steel was working on a building for Craigshead Memorial Hospital . According to Brown, Blankenship said he needed two men and then made a telephone call to the hall , out of his presence , and talked to Roberson . When he came back from the telephone , he told Brown that Roberson had refused to send a referral slip to Jonesboro for Brown , "he [Roberson ] didn't give a damn if he [Blankenship ] didn't get a man , that I [Brown] couldn't work in his area-I couldn't work in Jonesboro ." Accord- ing to Blankenship , Brown arrived at the jobsite just as he was laying off the men he already had on the project be- cause they had temporarily run out of steel. Brown , appar- ently , divined for himself that there was no work available because he did not even ask for a job . The sum total of their conversation was social pleasantries , including the of- fer of a beer to Blankenship from a six-pack which Brown was carrying, an offer which Blankenship politely declined. Blankenship did leave Brown after Brown first spoke to him, go into the office , and return while Brown was still there . However , Blankenship 's purpose in going into the office was not to call the hall and he did not make a tele- phone call while he was there . Roberson testified that he received no call from Blankenship for men that day. (Respondent's retained copies of all the referral slips it is- sued during August are in evidence along with those from dates before and after August . Among them is one dated August 14 and signed by Roberson which indicates an ironworker named David Huddleton was referred to Mid- Steel at its Jonesboro hospital project. No witness was asked about it during the hearing, presumably because counsel did not notice it among the mass of papers which was put into evidence . I have no reason to doubt the testi- mony of Cole and Blankenship , elicited in another context, that Cole and not Blankenship usually called the hall when Mid-Steel needed men. That somebody called for a man early in the day is not inconsistent with Blankenship 's testi- mony that work had run out temporarily near the end of the day.) I find that Cole's, Blankenship 's, and Roberson 's version of these events is accurate . Since Mid-Steel had no jobs open in Jonesboro when Brown showed up and did not request Roberson to refer him , it follows that Respondent did not cause or attempt to cause Mid -Steel not to hire Brown on August 14 "by refusing to refer him to an avail- able job with the Employer because of a prior dispute be- tween Brown and Roberson concerning Brown's allowing carpenters to do steel work." D. August 20 When Brown returned home on August 14 he tele- phoned Roberson at the hall and accused Roberson of re- fusing to refer him to the Mid -Steel job in Jonesboro. Ro- berson simply said he could not refer Brown because the hall was full of men looking for work . By hanging up on Brown , he refused to be drawn into an argument. Brown thereupon telephoned Dick Wheeler , business agent of Local 426, in Detroit, and asked Wheeler to inter- cede with Roberson for him so that he could get a job. Wheeler called Roberson . Wheeler said he was calling be- cause Brown 's father , a good friend , had asked him to see if he could do anything for his son . Wheeler explained that Brown 's wife had left him with two children , that Brown was working in the Memphis area because he had taken the children to his mother in Trumann , and that Brown was subject to epileptic seizures . He asked Roberson to help Brown any way he could . Roberson told Wheeler he would do his best but could not promise anything because rod work was slow. A few days later Brown 's father telephoned him and told him that Wheeler said Roberson wanted to see him. Brown went to the hall on August 20. He bumped into Hawkins in the public part of the hiring hall and asked to see Rober- son. Hawkins took him into the inner office which Rober- son and Hawkins share . The only difference between Brown 's version of the conversation which followed on the one hand and Roberson 's and Hawkins ' on the other lies in Brown 's efforts to paint Roberson as the aggressor who started an argument by bad-mouthing him from the mo- ment he walked into the room . Since I have already dis- credited Brown generally I have relied , with respect to this incident , on the testimony of Roberson and Hawkins. (Brown , of course, testified before Roberson and Hawkins did. He answered the General Counsel 's question "What was said?" with quotes which made Roberson 's first words an attack on him. The General Counsel then asked if any- thing else was said . Brown 's indirect answer-"And then the situation came up about O'Neal White [ ,] and me let- ting carpenters [do] steel work over at the football stadi- um"-is, I think , a good example of the lack of candor which made Brown an unreliable witness. Roberson and IRON WORKERS LOCAL 167 73 Hawkins agreed that Brown , not Roberson , brought up the subject of the carpenters incident in May.) Just as in May, Brown and Roberson got into a loud, profane argument , so loud and so profane that Roberson rebuked Brown for speaking in a manner that could be overheard by and would be offensive to his female secre- tary, at work in the next room. Brown's ire was aroused by the way the conversation began. Brown said he was there because Wheeler said Roberson wanted to see him . Rober- son said that was not the message he had given Wheeler; what he had said was that he would talk to Brown if Brown wanted to see him, and added, "As far as my wanting to talk to you, I don't care nothing about talking to you." Brown asked why Roberson would not put him to work. Roberson said because he did not have any rod work right then . Brown lost his temper . He accused Roberson again of refusing to refer him to Mid -Steel on August 14 after Blankenship called for him by name . Roberson denied that he had done any such thing. Brown said Roberson was refusing to refer him to jobs because Roberson had it in for him as a result of the layoff of White and the carpenters incident in May. Roberson denied this also. Hawkins asked if it were true that Brown had already been to the Board's Regional Office in Memphis to complain about being discriminated against by Respondent . Brown said he had been there and discussed the situation with a Board agent but had not yet filed a charge. The conversation end- ed when an angry Don Brown walked out of the office of an angry Varner Roberson. E. August 22 The credibility conflicts as to the events of August 22 are different in kind from those as to August 14 , for here the General Counsel presented direct evidence which, if be- lieved, would establish that Roberson refused a request that he refer Brown to another Mid-Steel project. The con- flicts pit Brown and Donald (Donnie) Elmore, on the one hand , against Roberson , Hawkins , and Joe Pittman, on the other . Elmore is an ironworker and sometime foreman for Mid-Steel. On August 22 Mid-Steel put him in charge of a 1-day job installing a concrete slab at an Executive Inn under construction in Memphis. Pittman is a trustee of Re- spondent who is in charge of its apprentice training pro- gram. According to Brown and Elmore , Brown was in the hall looking for work sometime before 8 a.m. when Elmore came in looking for men . Brown told Elmore he was hav- ing trouble getting a referral because Roberson was mad at him over the ruckus they had had in Jonesboro. Elmore said he would help Brown by asking for him by name when he went in to see Roberson. When Elmore came out, he told Brown that Roberson had refused to refer him, saying Elmore did not pick the men to be referred to jobs, Rober- son did . Once again, of course , Brown's testimony is only hearsay as to what went on inside Roberson 's office. Elmore's , however, is not. Elmore testified there were three persons besides himself in the office when the conversation took place . He identi- fied them as Roberson, Hawkins, "and I don't know who the other person was." He was confronted , on cross-exami- nation, with Pittman and testified that he did not recognize Pittman as the third man. Hawkins testified he was not there. Roberson and Pittman testified that they were the only persons other than Elmore in the room during the conversation. Pittman testified that he left to get a cup of coffee while Elmore was still in the office and Elmore was gone when he returned. (Since Elmore's version of the con- versation puts his mention of Brown in the first words he spoke, Pittman's leaving the room before Elmore has no significance.) Elmore was asked to relate his conversation with Rober- son by both the General Counsel and Respondent. On di- rect examination, he testified: Q. Did you talk to Mr. Roberson? A. Yes, I did. Q. What did you say to him? A. I went in his office and I told him I needed Don Brown and another good man. Q. And what did he say? A. He said he wasn't going to send me Don. Q. Did he say why? A. Yes, he said that-about the ruckus they had in Jonesboro. Q. Was anything else said in this conversation? A. Well, he told me-he said I wasn't the business agent, that he was running things, that I wasn't. Q. All right. Did you get any men that day you went up there? A. Yes, sir, I got two men. He said, I got you two good-said I got you two good men here, so I said, well, all right. Q. What else happened? A. Well, of course, I didn't know the men, you know. Q. All right. Did you say anything else to Mr. Ro- berson, was there any further conversation between the two of you? A. Well, I asked why he wouldn't send Don. On cross, he testified: Q. All right. Now, what was it that you first said to Robby or Robby first said to you when you were at the Union Hall that morning? A. What I told him, what I said to him? Q. Yes, sir, what he said to you? A. What is Don Brown doing in here. Q. That is what you said to Robby? A. Yes, sir. Q. All right, sir. What did he say to you? A. He didn't say nothing. I told him I needed him and another good man. Q. You needed- A. Him and another good man. Q. Don Brown , did you call him by name? A. I called him Don Brown. Q. And another good man? A. And another good man. Q. What did Robby say to you then? A. He said I can't send you Don. Q. What else did he say to you? 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. He said he had the ass for him .2 Q. He said what? A. He had the ass for him. Q. Who had the ass for him? A. That is what Robby said. Q. Robby said-tell me that again. A. He had the ass for him, a-s-s. Q. Oh, he had the ass for him, a-s-s. A. Yes. Q. That is what Robby said? A. Right. Q. Okay. What else did he say? A. I asked him why, you know. Q. Yes. A. So he said about-about his behavior on the Jonesboro job before the strike. Q. What did he tell you about that? A. He didn 't tell me about nothing. Q. Well, what did he tell you about his behavior? A. He said he started a bunch of ruckus in Jones- boro that's all I knowed about. Q. All right. Did you tell him that you had been on that job, but you hadn't heard anything about this ruckus? A. I was on the job way before the strike. I worked-wait a_minute, I worked one day and I went back to Memphis cause I got a ticket on the highway patrol, that is why I know. Q. What else did Varner say? A. He wasn't going to send him out, that's all. Q. All right. Did his assistant say anything? A. Didn't nobody say nothing. Q. Did the other man who was in there say any- thing else? A. Nobody said nothing. I left. I had a job to put in. Q. All right. What did Mr. Roberson say about the men that he was sending out with you? A. Oh, he said, well, I got you two good men right here. Q. You were looking for good men and he had good men, is that right? Is that what he told you? A. Yes. One man lasted about two hours and I give him his money. Roberson and Pittman placed Elmore's arrival at the hall closer to 10 a.m. than 8 a.m. They deny that there was any mention of Brown or of the May incidents at the Jonesboro football stadium project. Rather, they remember the conversation because it struck them as odd that El- more , known to them as just another ironworker ,3 claimed 2 Elmore subsequently corrected this detail . He said it was Brown who used the having ass expression to explain Roberson's attitude and explained that he was momentarily confused when he put it in Roberson's mouth at this point. 7 Included among the referral slips in evidence is one dated August I which indicates that Elmore was referred to Process Contracting Co. as a foreman . It is signed by Hawkins , not Roberson. to be a foreman and that he would leave a job which he indicated was an urgent one to come to the hall for men rather than telephone . Because Roberson was dubious about Elmore's authority to put men on Mid-Steel's pay- roll, he tried to place a phone call to Mid-Steel's office before making a referral but was unable to get through. This was the point at which Pittman walked out of the office. This record abounds in suspicion but is short on certain- ty. First, there is the matter of the referral slips which are in evidence. Elmore said Roberson gave him two men when he went to the hall. Roberson said he gave him only one, Charles McKee. Elmore said one of the two men was an old drunk who only lasted 2 hours. Mid-Steel's payroll re- cords indicate that McKee only worked for 2 hours. El- more testified he may have gotten two more men by calling the hall later in the day. There are three slips dated August 22 which show men referred to Mid-Steel. One, which names Lennie Cofer and Charles Terrell, is for a project other than Executive Inn. The other two are for Executive Inn. One bears the name of Charles McKee. The other bears the name of Danny Glasscock, Jr. If Elmore really did get a total of four men from the hall that day, where are the other two referral slips? If he got only two and took both of them with him in the morning, why are McKee's and Glasscock's names not on the same slip , like Cofer's and Terrell's? Next is the matter of Respondent 's sign-in pad. Respon- dent keeps a pad in the hall which persons looking for work are supposed to sign and which Roberson and Haw- kins are supposed to consult when they make referrals. A new list is started each morning . The pad which was used from July 15 through October 15 is in evidence. Brown's signature appears under only two dates, August 20 and August 27. Roberson and Pittman testified they did not see Brown in the hall on the morning of August 22. Brown testified the absence of his signature proved nothing, men still got referrals even when they failed to sign up and Ro- berson and Hawkins did not rely on the list anyhow. They insisted they did, but somewhat less than vigorously. There are 18 names on the August 22 page of the sign-in pad. Eleven of them, including Cofer, Terrell, McKee, and Glasscock, are listed on referral slips dated August 22. (In fact, one man who signed up-H. Boyett-got two refer- rals that day.) Only two slips dated August 22 contain names not found on the pad . One of them indicates the man referred is an apprentice, apparently a category which requires special handling under Respondent 's referral pro- cedure. If Brown really went to the hall that morning look- ing for work, why did he not sign up? If his name did not appear on the pad at all, there could be no significance to its absence on August 22. But why sign up on some occa- sions and not others? Then there is the matter of the sequence of Brown's visits to the Board's Regional Office . Brown was vague about the dates on which he went to the hall after returning from Detroit, including the date on which he happened to bump into Elmore. When the sign-in pad was called to his atten- tion, he thought the latter event might have occurred on IRON WORKERS LOCAL 167 75 August 27. However , there can be no doubt that it oc- curred (if, in fact, it ever occurred) on August 22, for the culmination of Brown's conversation with Elmore after El- more came out of Roberson 's office was Brown's an- nouncement that he was going back to the Board and file a charge . The charge in this case was filed on August 22. Presumably , when Brown went to the Regional Office the first time and discussed his problem with a Board agent, the ingredients of a hiring hall violation of the Act were explained to him . Did he and Elmore then stage the August 22 incident in order to create evidence that would prove Respondent was discriminating against Brown? If that is so, would it not provide support for Elmore's version of the conversation rather than Roberson 's and Pittman 's? Surely a man involved in a conspiracy to create evidence would not refrain from speaking the crucial words at the crucial moment? Or would he? Did Brown really want a job or was he engaged in a vendetta against Roberson? If the latter, then Elmore's really asking for Brown would spoil the game if Roberson acquiesced . Suspicions along this line are silly and sterile. In short , I can find nothing within the four corners of the transcript and the exhibits to resolve the question of what Elmore said to Roberson and Pittman and what they said to him. Of the three, only Pittman impressed me as a total- ly reliable witness. I rely on his testimony, therefore, to find that Elmore did not ask Roberson on the morning of August 22 to refer Brown to Mid-Steel 's Executive Inn pro- ject. It follows that Respondent did not refuse "to refer Brown to an available job with the Employer after he was specifically requested." er" in paragraph 7 made the pleading sufficiently precise to satisfy due process. Since Respondent does not concede that any such practice exists-and, in fact, strenuously liti- gated the point-the General Counsel still has the burden of proving that it does. Having found that Mid-Steel did not ask Respondent to refer Brown to it, I do not reach this issue. The record in this area is as murky as it is with respect to what Elmore and Roberson said to each other on August 22. The General Counsel called three witnesses whose testi- mony went only to this point. I granted Respondent's mo- tion to strike as to Purvis Simpson, construction superin- tendent for American Bridge Division of United States Steel Company, because his testimony was irrelevant. Ben- nie Wells, a foreman for Southern Steel, testified that he requested a man by name once and got him but the man turned out to be a welder to whom the provisions of para- graph 8 of the referral clause of the contract would pre- sumably apply. Gene Warmath, general foreman for Mid- South Erectors, testified he requested a man by name once and got him but the man turned out to be an apprentice, another special category. The testimony of witnesses such as Roberson, Hawkins, Elmore, and Blankenship who were asked about this as well as other points is inconclusive at best. Therefore, if I were to reach this issue, I would find that the General Counsel has failed to establish by a pre- ponderance of the evidence that any such practice exists. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW F. The Other Issue A major part of the hearing was devoted to an issue posed by paragraph 7 of the complaint. The referral proce- dure set forth in the contract between Respondent and Mid-Steel imposed no duty on Respondent to refer Brown to Mid-Steel under the circumstances which existed on Au- gust 14 or August 22. There is no claim that Brown had been out of work longer than any other ironworker in his group or that no member of a group higher than Brown's was looking for work. (The record does not contain enough information to determine what group Brown falls into.) Rather, the General Counsel's theory is predicated on the existence of a practice supplementing the written docu- ment under which ironworkers such as Brown who possess no special skills or abilities are regularly and routinely re- ferred from the hall if an employer requests them by name at a time when they are available for work. When this first became apparent during presentation of the General Counsel's case , counsel for Respordent objected that the complaint contained no such allegation and thus his client had been denied due process . I ruled against Respondent on the ground that inclusion of the word "arrangement" in the phrase "by contract or arrangement with the Employ- 1. Mid-Steel, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Iron Workers Local Union No. 167, International As- sociation of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent vio- lated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Don Brown to available jobs with Mid-Steel on Au- gust 14 and August 22, 1974, have not been sustained. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 The complaint is dismissed in its entirety. ° In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order , and all objections thereto shall be deemed waived for all purposes.