Missouri Boiler and Sheet Iron Works

National Labor Relations Board - Board Decisions

Feb 16, 1951

93 N.L.R.B. 319 (N.L.R.B. 1951)

MISSOURI BOILER AND SHEET IRON WORKS 319
and Vicinity , the Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8 ( a) (3) of the Act.
3. By the said acts, thereby contributing illegal assistance and support to
Newspaper and Mail Deliverers ' Union of New York and Vicinity, the Respondent
has engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (2) of the Act. -
4. By executing and continuing in full force and effect its contract of October
25, 1948, with Newspaper and Mail Deliverers ' Union of New York and Vicinity,
thereby contributing assistance and support to the said labor organization
through the illegal provisions of the said contract , the Respondent has engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8
(a) (2) of the Act.
5. By the said acts, the Respondent has interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in , and is engaging in, unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
MIssouni BOILER AND SHEET IRON WORKS and J. E. RUSSOM
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 474, AFL
and J. E . RUSSOM . Cases Nos. 10-CA-816 and 10-CB-58.
February 16,1951
Decision and Order
On October 13, 1950, Trial Examiner George A. Downing issued
his Intermediate Report finding, as is set forth more fully in the copy
of the Report attached hereto, that neither of the Respondents had
engaged in the unfair labor practices with which each was respec-
tively charged in the complaint, and recommending that the complaint
be dismissed in its entirety. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief.
The Board I has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner , with the following additions and modifications.
The General Counsel's exceptions go only to the Trial Examiner's
dismissal of the 8 (a) (3) and (1) allegations of the complaint. It
' Pursuant to the provisions of Section 3 (b) of the Act the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Reynolds and Murdock].
93 NLRB No. 21.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the General Counsel's position, as expressed in his brief in support
of exceptions, that the Respondent Company is chargeable with a
violation of Section 8 (a) (1) and (3) of the Act because: (1) It ad-
hered to a policy which, in operation, "deprived job applicants of the
possibility of employment unless they became members of [the Re-
spondent Union] and were referred to the company in response to a
request made to that Union"; and (2) its belief that Russom was not
"referred" by the Respondent Union for an available job caused it,
in accord with the alleged "policy," to refuse Russom employment.
We find no merit to these exceptions, for, like the Trial Examiner,
we are convinced from a review of the record as a whole that the
factual premises upon which such exceptions rest are not supported
by a preponderance of the evidence.
As is noted by the Trial Examiner, and as was conceded by the
General Counsel during the hearing, the record does not establish the
,existence of any contractual undertaking by the Respondent Com-
pany, written or oral, either to hire only members of the Respondent
Union, or to hire only such persons as the Respondent Union "re-
ferred" to it for employment. 2 Nor does the record affirmatively es-
tablish the adoption and application of an extracontractual "policy"
by the Respondent Company to that effect.' That, as the General
Counsel notes, the Respondent Company made use of the Respondent
Union's "employment agency" facilities, and actually hired, on most
occasions, such applicants as were referred to it by the Respondent
Union, is not sufficient proof of the existence of the alleged "policy,."
Nor is such use by an employer of union employment facilities per se
indicative of hiring practices restraining or interfering with rights
guaranteed employees under the Act. A We find, therefore, that the•
Respondent's general hiring practices, as reflected by this record, do
not sustain the 8 (a) (3) allegations of the complaint.
The state of the record with respect to the circumstances surround-
ing Russom's application for employment likewise is such that, like
the Trial Examiner, we cannot predicate upon it a discriminatory, re-
fusal-to-hire finding within the meaning of Section 8 (a) (3). Thus,
an over-all appraisal of what occurred in connection with Russom
shows, at the most, that, although Russom might have believed, because
of Humphries' statement to him, that he could not obtain employment
without referral from the Respondent Union, his failure to obtain
' Cf Daniel Hamm Drayage Company , Inc., 84 NLRB 458.
3 we need not and do not here decide whether and under what circumstances we would
sustain alleged violations of Section 8 (a) (1) or 8 ( a) (3) of the Act upon ' a record
showing that an employer uniformly utilized union referral as a method of obtaining
employees . Suffice it to say that, as we have noted above , the record in this case does
not establish the existence of a factual situation requiring the legal test thus sought by
the General Counsel.
4 Cf Northern Indiana Public Service Company, 91 NLRB 172.
MISSOURI BOILER AND SHEET IRON WORKS 321
employment did not in fact have any connection with the Union. On
the contrary, the record indicates that if such union "referral" had in
fact been a condition imposed by the Respondent Company for award-
ing employment, it was Russom, rather than Kilpatrick, who would''-
have been employed. 5
For all the foregoing reasons, and in view of the absence of excep-
tions to the Trial Examiner's disposition of the 8 (b) (2) and 8 (b)
(1) (A) portions of the complaint, we hereby adopt the Trial Ex-
aminer's recommendation that the complaint be dismissed in its
entirety. It is so ordered.
Intermediate Report and Recommended Order
Mr. John C. Carey, Jr, for the General Counsel.
Mr. E. Ormonde Hunter, of Anderson, Connerat, Dunn and Hunter, Savannah,
Ga, and Mr. L. Jo/tn Weber, of St. Louis, Mo, for the Respondent Company.
'Mr. A. TV. Dowell, of Savannah, Ga, for the Respondent Union.
Mr.'Robert J. Swords, of Savannah, Ga., for J. E. Russom.
STATEMENT OF THE CASE
Upon separate charges filed on August 30, 1949, by J. E. Russom against Mis-
souri Boiler and Sheet Iron Works, herein called Missouri and the Company,
and International Union of Operating Engineers, Local 474, AFL, herein called
the Union, the General Counsel of the National Labor Relations Board, herein
called the General Counsel and the Board, respectively, by the Regional Director-
for the Tenth Region (Atlanta, Georgia), issued on July 21, 1950, an order-
consolidating said cases and a consolidated complaint The complaint alleged
that the Company had engaged in unfair labor practices affecting commerce
within the meaning of Section S (a) (1) and (3) and Section 2 (6) and.
(7) of the National Labor Relations Act, as amended, 61 Stat 136, herein-
called the Act, -and that the Union had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (b) (1) and (2) and Section
2 (6) and (7) of the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that on or about March 1, 1949, the Company and the Union enteied into an_
agreement under which the Company would employ as operating engineers in
all its building and construction work only members of the Union referred to,
it. by the Union ; that pursuant to said agreement the Company had followed
the practice since March 1, 1949, of employing as operating engineers only mem-
bers of the Union referred to it by the Union ; that thereafter the Union referred
to the Company for employment as operating engineers only members of the
Union; that on May 16, 1949 (as amended orally at the hearing), J. E. Russom
applied to the Company for employment as an operating engineer on its con-
struction operation at Savannah, Georgia ; that the Company failed and refused
G We do not agree with the implication of the Trial Examiner that Humphries' state-
ment to Russom that the latter would not be hired without a referral card, is, as a matter
of law, not attributable to the Respondent Company, because of any lack of express au-
thority of Humphries to bind the Company. Although we would normally hold such a
statement to be coercive, we do not believe, in view of its isolated nature in a context of-
activity not found to be violative of the Act, and the Respondent's policy of not requiring
a referral card, that it would effectuate the policies of the Act as a whole, to issue an 8,
(a) (1) order predicated upon this statement alone
943732-51-22
:322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employ Russom because of the aforesaid agreement and practices and in
Corder to encourage membership in the Union ; and that the Union caused and
;attempted to cause the Company to discriminate against Russom as aforesaid.
The Respondents filed separate answers. The Union made a general denial
of all allegations of the complaint. The Company specifically denied that it
had any agreement or understanding of whatever nature with the Union rela-
tive to the employment of operating engineers and denied the commission of
-any unfair labor practices.
Pursuant to notice a hearing was held at Savannah, Georgia, on August 21,
1050, before George A. Downing, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. All parties were represented by counsel ;
all were afforded full opportunity to be heard, to examine and cross-examine
-witnesses, and to introduce evidence relevant to the issues. At the conclusion
of the General Counsel's case, the Company moved for a dismissal of the
-complaint as to it; the motion was denied. At the conclusion of the hearing
-the Company renewed its motion, and ruling thereon was reserved Said mo-
tion is disposed of by the findings and conclusions hereinafter stated. The
-parties were also afforded an opportunity to make oral argument and to file
,briefs and proposed findings of facts and conclusions of law. Oral arguments
were made by all parties except the Union. Briefs have been received from
,the Respondents and have been considered
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
-Missouri Boiler and Sheet Iron Works is a Missouri corporation with its
principal office and plant at St. Louis, Missouri, where it is engaged in the
fabrication and erection of steel products for industrial plants. During the
year prior to the filing of the complaint the Company purchased steel and other
raw materials valued in excess of $250,000, approximately 75 percent of which
originated outside the State of Missouri and was shipped in interstate commerce
to the St. Louis plant. During the same period the Company sold finished
products and rendered services valued in excess of $1,000,000, approximately
25 percent of which represented products shipped to and services rendered for
customers outside the State of Missouri.
During times material to the issues herein, the Company was engaged at
Savannah, Georgia, in the installation and erection of a steel stack for Savannah
Electric and Power Company. In the course and conduct of that construction
.operation, in or around March 1949, the Company fabricated and transported
a steel stack valued in excess of $14,000 to Savannah, Georgia, from points
.outside the State of Georgia. The Company rendered services to said Savannah
Electric and Power Company valued in excess of $9,000 by installing and erecting
the aforesaid steel stack in Savannah.
On these facts it is hereby found that the Company is engaged in commerce
within the meaning of the Act. Cf. Precast Slab and Tile Co., 88 NLRB 1237.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 474, AFL, is a labor organ-
ization admitting to membership employees of the Company.
MISSOURI BOILER AND SHEET IRON WORKS
III. THE UNFAIR LABOR PRACTICES
323
A. Introduction; preliminary issues
From April 18 to July 9, 1949, the Company was engaged in the erection of
.a steel stack on the roof of the powerhouse of the Savannah Electric Light and
Power Co., at Savannah, Georgia. The stack was the draft stack for a new
boiler which was being installed by Stone & Webster Engineering Co., for whom
the Company was a subcontractor. Another subcontractor on the main project
was Combustion Engineers. Missouri employed from 7 to 12 employees, one
of whom was an operating or hoisting engineer, and the remainder, boiler-
makers.
The Company was a party to a contract with the Boilermakers Union (Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of Amer-
ica) under which it agreed to employ as boilermakers and helpers men who
were referred by that union. There is no issue in the present proceeding con-
cerning the validity of that agreement nor of the employment practices there-
under. It did not cover the operating engineers' job, and the-Company did not
have, with the Respondent Union nor with any one else any agreement, oral
or written, that it would employ on the latter job only members of the Respondent
Union or of any other union'
The Savannah project had been set up and begun on April 18 under the
immediate supervision of Fred E. Schaeffer, the Company's vice president in
charge of field operations, who had hired the original crew, including James E.
Lovejoy as erector or field superintendent. Lovejoy took over the supervision
of the project upon Schaeffer's return to the home office on April 25. Schaeffer
did not return to the project, and his only knowledge of the subsequent events
was based on reports from Lovejoy, who served until May 24, which was after
the alleged refusal to hire Russom.
Immediately under the field superintendent was the position of foreman or
"lead mechanic,"' which was held by M. D. Jenkins until May 3 and by Alfred
Humphries thereafter. A preliminary issue is whether Humphries during his
tenure as foreman qualified as a supervisor within the meaning of the Act.
The evidence is in conflict. The Boilermakers' contract provided that lead
mechanics were not understood to be supervisors "within the accepted meaning
,of that term." 3 Schaeffer testified similarly to the effect that the lead mechanics
were not supervisors and that sole supervisory authority over the job was
vested in the field superintendent or erector. However, Schaeffer had no per-
sonal knowledge of the manner of job performance during Humphries' tenure.
-Neither the contract nor Schaeffer's testimony can, therefore, be determinative
of Humphries' status, which must be revolved in the light of the evidence as
to the actual manner in which Humphries performed, and was permitted to
perform, his duties.
Those circumstances are disclosed mainly by the testimony of Humphries
and Lovejoy. It is clear that Lovejoy exercised immediate and general super-
vision of the project, and that he transmitted through Humphries orders and
i The General Counsel conceded at the hearing that there was no evidence of any oral
or written agreement between Respondents and stated that he was relying on a custom or
practice.
2 Though the term "lead mechanic" was used in the contract between the Company and
the Boilermakers Union and by the witness, Schaeffer, who testified by deposition ; the
witnesses at the hearing consistently used the term "foreman."
3 However, another clause provided that where six or more men were employed on a job,
the lead mechanics should "not work with the tools , but [should ] act in an instructive
capacity."
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directions as to many details of the erection project; and it is undisputed, that
only Lovejoy had authority to hire and discharge the men on the job. It is also
clear, however, that Humphries had, and exercised, authority effectively to
recommend the hiring and firing of employees and that he also responsibly
directed the employees in making job assignments and transfers. Humphries
so testified. Lovejoy did not deny Humphries' testimony, but testified that
only he had the right to hire and fire and that when any final action was taken
in hiring and firing men, he did it himself.
Under the foregoing circumstances it is concluded and found that Humphries
during his tenure as foreman qualified as a supervisor within the meaning of
Section 2 (11) of the Act.
B. Main events and issues
As has been found, the General Counsel disclaimed, and the evidence failed,
to establish, the existence of any contract or agreement between the Respondents.
as alleged in the complaint. Neither does the evidence establish that any cus-
tom or practice existed as claimed. Certainly there was none generally as to all
of the Company 's building and construction work ; nor does the evidence estab-
lish a custom or practice on the Savannah job. The evidence shows only the
following :
When starting a construction project.' the Company would call on the Boiler-
makers Union to furnish competent men for the boilermaker jobs, pursuant to its
contract with that union. To fill the single job of hoisting or operating engineer,
it usually (though not always) requested the job steward for such engineers
union as served the general contractor and other subcontractors on the main
project to refer to it qualified men for employment. It had followed that practice
because its field superintendents were usually strangers in the community, un-
familiar with a source of supply and with the qualifications of local applicants
and because it had found the job steward on the main project to be ordinarily
a reliable source for supplying operating engineers ." However , there was no,
agreement or understanding that the Company would employ only members of
such union or only applicants referred by its job steward. Nor was there any
understanding or requirement that an applicant should furnish clearance by way
of referral cards or other identification from the union,'
The foregoing practice was followed on the Savannah job. Respondent Union
represented the hoisting engineers of Stone & Webster and of the subcontractor,
These findings are based on the testimony of Schaeffer and Lovejoy, which are in-
record. To the extent that Humphries ' testimony is directly or by inference in conflict,
it has not been credited . Humphries admitted that neither Lovejoy nor any one else
had informed him what system Respondent would follow in fining hoisting engineers,
and Humphries ' testimony was based on his conclusion that since Respondent had a con-
tract with the Boilermakers , the job was a " union job," and that such fact required
Respondent to follow a hiring procedure in obtaining engineers corresponding to that
followed in the case of boilermakers
5 There were no contacts , so far as is shown by the evidence , with the union s business
agents or other officers.
6 Humphries admitted on cross-examination that a stranger in Savannah could hope
to locate an experienced hoisting engineer only by contacting the local of the Operating-
Engmeers.
' Lovejoy admitted that he assumed that men so referred were probably members of
the referring union , but testified that he put no inquiries to the applicants , requested no,
ieferial cards, and required the showing of no credentials . 'McDonald , Smith , Kilpatrick,
and Russom were all members of the Operating Engineers.
Lovejoy and Schaeffer both testified to instances where the Company had hired as
hoisting engineers men who were not union members, and Lovejoy testified that he had
hired as many as 25 or 30 men who had not been referred by the job steward.
MISSOURI BOILER AND SHEET IRON WORKS 325
Combustion Engineers, on the main project. Schaeffer had, on or about April
21 or 22, requested the job steward on that project to refer to him a qualified man
for the stack job The steward complied, and Schaeffer hired William Mc-
Donald on April 25. McDonald was discharged on May 12, because he had
allowed a load of materials to fall. Thereupon Lovejoy requested Cribbs, who
was then job steward, to refer another hoisting engineer. As a result, Lovejoy
hired Jonathan Smith on May 13. Smith was discharged on the same day,
also because he had allowed a load to drop ; and Lovejoy again requested Cribbs
to refer an engineer.'
This led to the Russom episode, the evidence as to which is, in certain respects,
somewhat confusing and incomplete. Russom, Cribbs, and Humphries testified
for the General Counsel, and Lovejoy and J. W. Smith for the Respondents.
Cribbs' testimony is that he called the local's office and in the absence of J. W.
Smith, business agent, talked with Smith's secretary. The secretary informed
-him that there was only one steam operator on the waiting list ° and gave him
Russom's telephone number. Cribbs then called Russom's wife and told her to
inform Russom that he should be in the next morning. Later, remembering that
.it was Friday, Cribbs told Mrs. Russom that Russom need not report until
Monday. Cribs also told her that Russom would not hav eto have a referral card
.because Lovejoy had not asked for any and had not asked for a union man.
Cribbs went to the union office on Saturday and told Smith what he had done.
Smith informed him that there were other members on the waiting list ahead of
Russom, that for that reason he would not be able to give Russom a referral card,
but that Russom might, if he wished, apply for work and be hired without it.
Cribbs testified that he stayed on at the union office on Saturday for the purpose
of meeting Russom and giving him the message, but that Russom, who was
returning from Daytona Beach, did not come in.
Smith confirmed Cribbs' testimony as to their conversations on Saturday con-
cerning Russom. Smith explained that since Russom had already been notified
by Cribbs to appear he felt the secretary's mistake should be permitted to stand,
although it meant bypassing the usual procedure under which he referred the
man whose name was at the head of the list. Smith had, therefore , requested
'Cribbs to explain to Russom why he was unable to issue a referral card and that
Russom might go to work without one.
Russom testified that he went to the job about 7: 30 Monday morning ; that
Cribbs came to the gate and told him that he did not think that Russom would
need a referral card or that he could get one later and that when someone,
whom Russom assumed to be Lovejoy, came in, "he would see me and get me
,on the job ." Humphries later came up, inquired if Russom had a referral card
and when he replied in the negative Humphries said, "I don't know about you
going to work until you get a referral card." Russom replied that that could
probably be straightened out.
Russom testified further that around 10 minutes of 8, Cribbs brought up
Lovejoy 10 and Henderson, one of whom inquired if he had a referral card. When
he replied in the negative, either Lovejoy or Henderson expressed uncertainty
8 Cribbs testified that only one request was made of him by Lovejoy . Lovejoy's testi-
mony , which was corroborated by Humphries, is credited.
° The Union maintained a "loafing list" of unemployed members, whose rank thereon
-was governed by the length of unemployment.
10 Russom's identification of Lovejoy was somewhat uncertain . His testimony was fur-
ther weakened by his inability to state whether it was Lovejoy or Henderson who made
She various statements and the alleged telephone call to Smith now to be referred to.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Russom should go to work without one." Russom then requested "one
of them" to call Smith and "one of them" left to do so and came back and reported
that Smith had stated that he would not give Russom a referral card. Russom
then stated that he did not want to go to work without being cleared by the
Union and by the Company and that he thereupon left to see Smith at the union
office. There is no evidence, however, that Russom actually saw Smith or had
any conversation with him.
Humphries testified that Russom reported on Monday morning and asked
him about the job ; that he inquired whether Russom had been sent by the Union;
and that when Russom replied in the negative he informed Russom that "we
couldn't use him." Humphries also testified that Lovejoy had told him early
that morning that arrangements had been made to get Leonard C. Kilpatrick
from Henderson (the erector on the Combustion Engineers job), and Humphries
was under the impression that Kilpatrick had been hired and had already started
to work before his conversation with Russom. Humphries admitted that he
was without authority to make the statements which he had made to Russom,
and he did not explain why he had done so in the face of Lovejoy's statement
that Kilpatrick was taking the job. Humphries also testified that Kilpatrick
had got the job through Lovejoy and Henderson, and that so far as he knew
Cribbs was not involved in the transfer.
Cribbs testified that he did not see Russom until about 9 a. in., on Monday
morning, and that Lovejoy had already gotten, or had made arrangements to get,
Kilpatrick from Henderson. He testified that so far as he knew Russom failed
to get the job only because "they had got somebody else," and that neither
Lovejoy, Henderson, nor anyone else, had sought through him union approval
of Kilpatrick. However, he testified that during the previous week and before-
either McDonald or Smith was fired, Henderson had inquired whether "it would
be ok to loan Mr. Kilpatrick to Mr. Lovejoy, so that he could get him back when
he got through if he needed him."
Smith denied that anyone had called him Monday about Russom and denied
that he was consulted by anyone about Kilpatrick's transfer." He testified
further that he had assumed Russom had taken the job and did not learn other-
wise until a week or two later.
Lovejoy denied engaging in or hearing any of the conversations testified to,
by Russom, denied that he called Smith, denied knowing that Russom had ap-
plied for employment until informed of the filing of the charges, and testified
that he had never seen Russom before the hearing.
Lovejoy further testified that after he fired Jonathan Smith on Friday, he
requested Cribbs to refer another competent hoisting engineer. Cribbs ques-
tioned his right to fire Smith and Lovejoy informed Cribbs that Smith had
already been fired and that if Cribbs did not want to furnish a man, he would
seek a man of his own desire for Monday morning.
Lovejoy testified further that :
On Monday morning is when Kilpatrick came over and told me he was
going to run the hoist. I didn't ask him who had told him to come over, or
anything ; where he assumed that from I don't know. But I did know from
previous conversation with Mr. Henderson that Mr. Kilpatrick was a reliable
11 Russom also testified that Cribbs had participated in the discussion with Lovejoy
and Henderson ; that Cribbs had said he thought it would be all right for Russom to go to
work without a referral card, but that "Henderson and Lovejoy didn't know."
12 Kilpatrick was currently employed, and his name was , therefore, not on the referral
list.
MISSOURI BOILER AND SHEET IRON WORKS 327
engineer. So, so long as I knew I was getting a man on the rig that was-
reliable I didn't pursue it further as to where he came from or his reasons'3
Lovejoy testified that Kilpatrick had reported at 8 a. in. and was put to work.
at that time.
The chief conflict in the testimony relates to the alleged conversation testified
to by Russom with Lovejoy and Henderson. The incident and the conversations
were flatly denied by Lovejoy. Russom's uncertain identification of Lovejoy
and his inability to state which of the participants in the alleged conference had',
made the various statements and the telephone call he testified to, plus Smith's
denial of having received such a call and Cribbs' failure to corroborate Russom
that a call was made, all militate against the adoption of Russom's version of
the incident. It is, therefore, found that Lovejoy was not present and that he
made none of the statements testified to by Russom.
If, then, such an incident occurred, there is no evidence that anyone partici-
pated who had authority to bind the Company. And insofar as the Union was
concerned, Russom admitted that Cribbs had agreed that he might take the job-
without a referral card. Furthermore, there is no evidence that Kilpatrick was
referred to the Company by the Union or that either Cribbs or Smith had any
hand in effecting his transfer from Combustion Engineers.
C. Concluding findings
Insofar as the complaint against the Union is concerned, to state the evidence-
or the lack of it-is to decide the case. Thus there is no showing on the record
that the Union caused or attempted to cause the Company to discriminate against
Russom. The record is devoid of evidence that the Union resorted to pressure
or coercion of any kind, or even to persuasion Instead, the entire initiative
and impetus came from the Company, which to serve its own convenience volun-
tarily sought out the job steward on the main project and requested the referral
of qualifletb engineers. The steward's compliance was without seeking or obtain-
ing any agreement, commitment, or understanding that the Company would
hire only applicants referred by the Union" Of. Northern Indiana Public
Service Company, 91 NLRB 172. Nor does the evidence establish that the Union
had any hand in referring Kilpatrick to the Company and that it did so to fore-
stall Russom's application.
In brief, the evidence does not establish a violation of Section 8 (b) (2). The
derivative Section 8 (b) (1) allegations also fall. It is, therefore, concluded'
and found that the Union did not engage in unfair labor practices as charged
in the complaint.
The complaint against the Company is not substantially more difficult of
decision. Though the Company sought to obtain competent engineers through
the job steward on the main project, its use of the steward was as a source of
skilled labor not otherwise easily procurable. Its voluntary seeking of men,
through the Union was without commitment or agreement to hire only union
men. Cf. Northern Indiana Public Service Company, supra. Though the Com-
>s Lovejoy 's testimony as to the circumstances of Kilpatrick 's hiring was far from
candid. It is inconceivable that Lovejoy would have hired Kilpatrick off the Combustion
Engineers ' job without first clearing with Henderson . Humphries and Cribbs testified
that Lovejoy admitted having done so, and their testimony is credited.
14 In the absence of a contractual obligation , the Union had not considered it necessary
to follow its normal procedure of referring formally by card from the top of the waiting
list. Because of that fact and because of the secretary's error , Smith had acquiesced in
Cribbs' referral of Russom.
'328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany could and did assume that the job stewards would refer only union mem-
bers, its complete independence was demonstrated by the frequent instances in
-which it had hired nonunion men, as well as by Lovejoy's statement to-Cribbs
at the time of the Jonathan Smith discharge.
The Company was, of course, without knowledge of Cribbs' efforts to procure
=Russom or of the Cribbs-Smith conversations relating thereto. Nor would such
knowledge, if inferred, affect the result, since Smith had agreed that Russom
might take the job and Russom admitted that Cribbs had so informed him.
'Though the Kilpatrick hiring occurred under suspicious circumstances, there is
no evidence that the Union inspired it or that Lovejoy effectuated it for the pur-
pose of encouraging membership in the Union.
Humphries' unexplained and unauthorized statements to Russom do not estab-
lish that Russom was being denied employment. That conclusion is supported
by the following alternative circumstances : First, as is shown by Russom's
testimony, he understood that Lovejoy was the one who would actually place
him on the job, and he expressed to Humphries his expectation of straightening
out the matter of the referral card. Second, the preponderance of the evidence
is that Kilpatrick's transfer had been arranged, if not actually consummated,
before Russom applied for the job Third, though the Union was willing for
_Russom to take the job without a referral card and though no one representing
the Company had refused to hire him without one, Russom admitted that he
declined to consider employment without first obtaining a referral card from the
Union, and that he left to seek out Smith.
In sum, whatever view is taken of the confused happenings which followed
Russom's appearance, it cannot be said that more than a suspicion has been
shown that the Company's refusal to employ Russom was discriminatorily
motivated But "a violation of the Act cannot be established on `suspicion
.alone' and in the absence of a `preponderance of evidence to show that Respond-
ent was [unlawfully] motivated' " Strachan Shipping Company, 87 NLRB 431,
citing Punch d Judy Togs, Inc., 85 NLRB 499. And see The Texas Pompaivg, 80
NLRB 862. The General Counsel has not here carried the burden of proof of
,establishing that the Company was illegally motivated in refusing to hire Russom,
W. C. Nabors Company, 89 NLRB 538; and it is therefore found that the Company
has not engaged in unfair labor practices as alleged in the complaint.
It will, therefore, be recommended that the complaint be dismissed in its
entirety.
Upon the basis of the foregoing findings of fact and upon the entire record
-in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Missouri Boiler and Sheet Iron Woiks is engaged in commerce within the
meaning of Section 2 (6) of the Act.
2. International Union of Operating Engineers, Local 474, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. Missouri Boiler and Sheet Iron Works has not engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act. International
Union of Operating Engineers, Local 474, AFL, has not engaged in unfair labor
practices within the meaning of Section 8 (b) (1) and (2) of the Act.
[Recommended Order omitted from publication in this volume ]