Tenn Tom Constructors

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 250 (N.L.R.B. 1988)

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