Babcock-Wilcox, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1980

248 N.L.R.B. 1058 (N.L.R.B. 1980)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers,
Local 40, AFL-CIO (Babcock-Wilcox, Inc.)
and Blayne Beatty, Case 9-CB-3677
DECISION AND ORDER
April 9, 1980
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 19, 1979, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent violated Section 8(b)(l)(A) and (2) of the
Act by denying Blayne Beatty job referrals because
he filed a charge against Respondent with the
Board. Respondent excepts to the Administrative
Law Judge's conclusions. We find merit in these
exceptions.
Respondent operates a referral system for boiler-
makers with a number of construction contractors
in an area covering most of Kentucky and part of
Indiana. Referrals are made pursuant to the "Joint
Referral Rules" promulgated by a committee con-
sisting of representatives of the contractors and Re-
spondent. The rules require Respondent to main-
tain an out-of-work list for the registration of men
seeking work. Journeymen on the out-of-work list
are given first priority for job referrals by Respon-
dent. In addition to the out-of-work list, Respon-
dent maintains a manpower availability list. Unlike
those on the out-of-work list, workers on the man-
power availability list have no obligation to report
when offered work nor must they remain available
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Member Penello notes that in rejecting Respondent's contention that
the Board was without jurisdiction in this case, the Administrative Law
Judge relied on General American Transportation Corporation, 228 NLRB
808 (1977), a decision from which Member Penello dissented However,
since Respondent has filed no exception to this finding, Member Penello
finds it unnecessary to address the question as to whether General Amerr-
can Transportation is an issue in this case.
248 NLRB No. 121
to receive telephone referrals from Respondent.
Men on the out-of-work list always are referred
first and the manpower availability list is not uti-
lized until the out-of-work list is exhausted. Re-
spondent keeps written records of the out-of-work
list, but not of the manpower availability list. To be
placed on the out-of-work list a caller specifically
must request to be placed on that list, otherwise
Respondent places him on the manpower availabil-
ity list. The rules provide that referrals are to be on
a nondiscriminatory first-in, first-out basis without
regard to union membership, and that an employer
retains the right to request boilermakers with spe-
cial skills and to reject any job applicant referred
by the Union.
Beatty started working in the boilermaker trade
in 1967 and became a National Transit Member
(NTM) of the International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers. While not a member of Respondent,
Beatty, as an NTM boilermaker, is authorized to
seek referrals from all locals affiliated with the In-
ternational, and between 1967 and 1977 was re-
ferred several times by Respondent to different
jobs. On several of these referrals, Beatty was
either dismissed or rejected for hire because of
drunkenness or absenteeism. In January 1977,
Beatty was dismissed for refusing to perform as-
signed work at a job to which Respondent had re-
ferred him in Madison, Indiana. While Beatty's ter-
mination was being processed, he brandished a
knife and verbally assaulted the supervisor respon-
sible for his termination with epithets. The supervi-
sor later reported this incident to Respondent.
After his dismissal from the Madison, Indiana,
job, Beatty telephoned Respondent several times
between February and late September 1977 seeking
work. He was told each time that there was no
work currently available, although in July Respon-
dent's assistant business manager, Remington, told
Beatty's brother about a jobsite where Beatty
might be able to find work. On September 29,
1977, Beatty filed a charge with the Board alleging
that Respondent was discriminatorily refusing to
refer him for work in violation of the Act. After
filing the charge, Beatty continued to seek referrals
from Respondent, telephonically inquiring about
the availability of work on October 13, 14, and 27
and December 2 and 14. He was told each time
that no work was available. According to the cred-
ited testimony of Remington, each time Beatty
called he was placed on the manpower availability
list but not on the out-of-work list because Beatty
never specifically requested that he be put on the
latter list as required by the rules.
BOILERMAKERS, LOCAL 40 1059
The Administrative Law Judge concluded, and
we agree, that the evidence fails to establish that
Respondent discriminated against Beatty in the op-
eration of its referral system or caused him to be
denied employment before September 29. Indeed,
no exceptions were filed to this conclusion. The
Administrative Law Judge also concluded, howev-
er, that Respondent's failure to refer Beatty after
September 29 was motivated by its desire to retali-
ate against him for having filed a charge with the
Board and, therefore, was violative of Section
8(b)(1)(A) and (2). In so doing, the Administrative
Law Judge found that there existed a strong infer-
ence that on October 13 and 14, when Beatty re-
quested referral and was informed by Respondent
that no work was available, work in fact was avail-
able for men on the manpower availability list at
the Babcock-Wilcox jobsite in Bunside, Kentucky.
In this regard, he relied on the facts that Respon-
dent's records showed that the last man on the out-
of-work list referred by Respondent to the Bab-
cock-Wilcox jobsite was dispatched on October 12,
only 5 days after the job commenced, and that the
project continued well into November, and on
Remington's testimony that he "believed" men
were referred to that job from the manpower avail-
ability list. The Administrative Law Judge further
found that Respondent's various and inconsistent
reasons for not referring Beatty to that job and its
investigation into Beatty's journeyman status after
he filed his charge strengthened the inference that
he was excluded from referrals to that project for
unlawful reasons.
Contrary to the Administrative Law Judge, we
find the evidence herein is insufficient to establish a
violation of the Act. In this regard, our review of
the record reveals no substantial evidence establish-
ing the necessary nexus between the filing of the
charge by Beatty and the fact that Respondent did
not refer him to the Babcock-Wilcox job. Thus, as
noted above, Beatty's failure to be referred by Re-
spondent prior to September 29 was not unlawful.
The fact that Beatty filed a charge on that date, in
itself, cannot transform Respondent's prior lawful
refusal to refer Beatty into unlawful conduct. Nor
does the fact that Respondent conducted an inves-
tigation after the filing of the charge, as was its
right to do in order to defend against the charge,
establish that its conduct after September 29 was
unlawful.2 Furthermore, we find that the Adminis-
trative Law Judge's conclusion that Respondent
sought to retaliate against Beatty for having filed a
I We specifically disavow the Administrative Law Judge's intimation
that after the charge was filed and Respondent examined its records it
could not rely on information indicating that Beatty did not meet estab-
lished standards for referral as a basis for refusing to refer him to future
jobs.
charge is considerably diminished in light of his
specific discrediting of Beatty's version of his con-
versation with Remington on October 13 in which
the latter allegedly threatened Beatty that he
would not be referred because he had filed charges
against Respondent. Most significantly, however,
there is no evidence demonstrating that anyone
from the manpower availability list in fact was sent
to the Babcock-Wilcox job after Beatty sought re-
ferral on October 13. Thus, as indicated by the Ad-
ministrative Law Judge, there were no records in
evidence to show when the last boilermaker was
referred from Respondent's manpower availability
list to the Babcock-Wilcox job in October. Rather,
the Administrative Law Judge relied on Reming-
ton's testimony that he "believed" some men from
the manpower availability list were sent to Burn-
side, but that he was not sure, to draw an inference
that men "may" have been referred to Burnside
after October 12. However, it is just as likely that
if men in fact were referred to Burnside from the
manpower availability list, and again there is no
evidence that they were, they were referred prior
to Beatty's request for referral on October 13. Fi-
nally, we note that the evidence does not establish
that work was available for Beatty on those subse-
quent occasions in late October and December
1977 when he requested referrals from Respondent.
It is thus clear that the Administrative Law
Judge's finding of a violation here is based on in-
ferences which in turn rest basically on a founda-
tion of speculation and suspicion rather than con-
crete record evidence. However, as we said in
Kings Terrace Nursing Home and Health Related
Facility, 229 NLRB 1180 (1977), "mere suspicion
cannot substitute for proof of an unfair labor prac-
tice." We therefore conclude, contrary to the Ad-
ministrative Law Judge, that the General Counsel
has not established by a preponderance of the evi-
dence that Respondent's failure to refer Beatty
after September 29, 1977, was violative of Section
8(b)(1)(A) and (2) of the Act. Accordingly, we
shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
original charge in this case was filed by Blayne Beatty
on September 29, 1977. The complaint alleges that since
February 14, 1977, Respondent failed and refused to
BOILERMAKERS, LOCAL 40
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refer Beatty to available jobs on an equal basis with
members of Respondent under exclusive referral agree-
ments. The complaint alleges further that Respondent en-
gaged in such conduct because of arbitrary and capri-
cious reasons, because Beatty was not a member of Re-
spondent, and/or because of the Charging Party's oppo-
sition to Respondent's referral policies, thereby violating
Section 8(b)(l)(A) and (b)(2) of the Act.L Respondent
denies the commission of any unfair labor practices.
A hearing was held before me in Louisville, Kentucky,
on March 6, 7, and 8, 1978. At the conclusion of the
hearing, oral argument was waived. The parties have
filed post-hearing briefs.
Upon the entire record in this case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYERS
Babcock-Wilcox, Inc., referred to in this Decision as
B-W, manufactures, sells, erects, and services steam boil-
ers throughout the United States. Its principal place of
business is in Ohio. During a representative 12-month
period, B-W performed services valued in excess of
$50,000 for customers located outside the State of Ohio.
Respondent admits and I find that B-W is an employer
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act for the
Board to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A.Respondent's Contracts and Referral System
At all times material, Respondent has had a collective-
bargaining agreement with a number of contractors,
known as the Ohio Valley Articles of Agreement, 2
which provides that whenever the contractor needs boi-
lermakers, apprentices, and other classifications covered
by the agreement, the contractor shall request the Union
to furnish competent and qualified help in those classifi-
cations. The agreement provides that in the event the
Union is unable to fill requisitions for such jobs within 48
hours the contractors may employ applicants from any
other available source. Further pertinent referral provi-
I The complaint as issued also alleged that Respondent referred mem-
bers of Respondent to available jobs rather than other nonmembers of
Respondent regardless of their relative positions on the referral list and
maintained arrangements with employers requiring membership or clear-
ance by Respondent as a condition of hire by them. At the hearing, the
General Counsel withdrew allegations of discrimination against non-
members of Respondent other than Beatty.
2 B-W is a signatory to a different agreement, known as the Boiler
Manufacturers National Construction Agreement which also provides for
exclusive referral. The copy of that agreement in evidence appears to be
out of date. Insofar as appears, the same referral procedures and rules
apply to B-W referrals as to referrals to employer signatory to the Ohio
Valley Agreement.
sions of the agreement found in its Appendix B are as
follows:
Section 2. Registration:
The local union shall establish and maintain an
appropriate registration facility for qualified con-
struction boilermakers, helpers, and apprentices
available for employment. Applicants shall be regis-
tered on the appropriate out-of-work list for each
classification in the order of time and date of regis-
tration. Each applicant shall be required to furnish
such data, records, names of Employers and licenses
as may be deemed necessary and each applicant
shall complete such form or registration as shall be
submitted to him. Applicants shall also list any spe-
cial skills that they possess.
Applicants shall reconfirm their availability for
job referral at least every two (2) weeks and be
available by telephone within a reasonable time
(four hours) in order to maintain their place on the
out-of-work list.
Section 3.
(a) Qualified Construction Boilermakers:
Boilermakers shall be qualified for registration on
a boilermaker's out-of-work list who can satisfacto-
rily establish that they have had at least four (4)
years' actual practical working experience in the
boilermaking trade as a foreman, subforeman or boi-
lermaker in the building and construction industry,
or who either
1. Have successfully served an apprenticeship at
the trade of field construction boilermaker under
an apprenticeship program approved by the U.S.
Bureau of Apprenticeship Training or State Divi-
sion of Apprenticeship Standards, or
2. Have successfully passed a competency exami-
nation that adequately tested the degree of skill
and training necessary to be a competent con-
struction boilermaker. Any question as to what
constitutes a "competency" examination shall be
resolved by the Joint Referral Committee re-
ferred to hereinafter.
(b) Construction Boilermaker Trainee:
Employees who have not established their qualifi-
cations as Field Construction Boilermaker Journey-
man or Field Construction Boilermaker Apprentice
under provisions of Appendix "B" may be hired
under the classification Construction Boilermaker
Trainee as follows:
(A) Construction Boilermaker Trainees will be
assigned by management to perform any work
normally performed by Field Construction Boi-
lermakers that comes within the capabilities of
the employee.
(B) Any employer who fails or refuses to hire
Field Construction Boilermaker Apprentices
BOILERMAKERS, LOCAL 40 1061
when available in accordance with the agreed
upon ratio of apprentices to journeymen, will not
be allowed to employ Construction Boilermaker
Trainees.
(C) The rate of pay for a Construction Boiler-
maker Trainee will be 75% of the Boilermaker
Journeyman rate.
(D) Construction Boilermaker Trainees, after
completing 8,000 hours of practical working ex-
perience as Boilermakers, shall become eligible
for examination by the exclusive referral commit-
tee and possible advancement to Journeyman
Classification.
(E) When qualified Boilermakers and/or ap-
prentices are on the local out-of-work list and are
willing and available to accept the referral offer,
Construction Boilermaker Trainees shall not be
referred to the job until the out-of-work list is ex-
hausted.
(F) Field Construction Boilermaker Trainees
shall be subject to all other terms and conditions
of the Ohio Valley Articles of Agreement includ-
ing all provisions of Appendix "B." (Appendix
"B" - Exclusive Referral of Men)
(c) Qualified Boilermaker Apprentices:
Boilermaker Apprentices shall be qualified for
registration who can establish that they are inden-
tured and serving an apprenticeship as field con-
struction boilermakers under an apprenticeship pro-
gram approved by the United States Bureau of Ap-
prenticeship Training or State Division of Appren-
ticeship Standards.
Section 4. Referral of Men:
Upon request of the Employer for foremen, assis-
tant foremen, boilermakers, boilermaker helpers or
boilermaker apprentices, the Union shall immediate-
ly refer competent and qualified registrants to the
Employer in sufficient number required, in the
manner and under the conditions set forth in this
Appendix, from the appropriate out-of-work list, on
a first-in, first-out basis; that is, the first name regis-
tered shall be the first name referred, provided that:
1. Request by the Employer for key men to act
as foremen shall be honored without regard to
the requested man's place on the out-of-work list.
However, when the work for which he was re-
quested is completed, his continued employment
on the job will not involve the replacement of
another employee.
2. Bona fide requests by the Employer for boiler-
makers with special skills and abilities will be
honored, and persons possessing such skills and
abilities shall be referred in the order in which
their names appear on the out-of-work list. The
decision of the dispatching agent in referring
such registrants is appealable to the Joint Referral
Committee, as hereinafter provided.
Section 5. Nondiscriminatory Referral:
The Union and the Employer agree that the re-
ferral of construction boilermakers, helpers and ap-
prentices shall be on the following basis:
(a) Selection of applicants for referral shall be on
a nondiscriminatory basis and shall not be based on,
or in any way affected by union membership, by-
laws, rules, regulations, constitutional provisions, or
any other aspect or obligation of union membership,
policies or requirements.
(b) The Employer retains the right to reject any
job applicant referred by the Union.
(c) The Union and the Employer shall post in
places where notices to all employees and appli-
cants for employment are customarily posted all
provisions relating to the functioning of the referral
provisions of this Appendix.
The agreement also provides for establishment of a
Joint Referral Committee to establish job-referral rules,
hear and determine disputes and grievances arising out of
the referral system, and to establish examinations for
qualification of journeymen and helpers. It provides that
deadlocks over referral disputes may be appealed to an
impartial umpire.
Pursuant to the agreement, the Joint Referral Commit-
tee has promulgated Joint Referral Rules for Respondent
which incorporate and amplify the provisions of the
agreement. In amplification of the 4 years of experience
required by the agreement for qualification for registra-
tion as a boilermaker, the rules provide that boilermakers
can qualify for registration on the out-of-work list upon a
showing of at least 8,000 hours of working experience in
the trade.
The rules also provide conditions under which a regis-
trant may be suspended or removed from the out-of-
work list. Failure to report after accepting a referral,
quitting a job, and two consecutive refusals of referrals
in the absence of excuse or approval result in 15 days'
suspension from the out-of-work list for the first offense
and 30 days' suspension for each subsequent offense
within a 1-year period. Discharge from a job for cause
results in suspension from the referral list for 15 days.
Registrants are suspended from the out-of-work list for
90 days for supplying false data or information to estab-
lish qualification for registration, two consecutive dis-
charges for cause within a 6-month period, assault on a
jobsite, involvement in an unauthorized work stoppage,
failure to return to work when instructed by the union,
insistence on recognizing unauthorized picket lines, and
interference with administration of referral procedures.
Permanent removal from referral lists may result from
violations disruptive of the industry such as acts of vio-
lence, sabotage, or serious chronic violations of referral
rules.
Although the agreement and the rules refer only to an
out-of-work list, in practice Respondent maintains an
out-of-work list of journeymen and trainees, and in addi-
tion, what Respondent calls a manpower availablity list.
Telephone calls to Respondent's local are usually an-
swered by a secretary who keeps a log of all callers to
BOILERMAKERS, LOCAL 44~) 1
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office. If a caller asks to be put on the out-of-work
list, the secretary notes the name of the caller and gives
it to Assistant Business Manager Lloyd Remington who
maintains the out-of-work list. Callers are put on the out-
of-work list only if they specifically request it. If a caller
does not ask to be put on the out-of-work list, but asks
about the availability of work and furnishes his telephone
number and qualifications, the secretary usually lists him
on the manpower availability list. Unlike those on the
out-of-work list, those on the manpower availability list
have no obligation to report, if offered available work,
or to be available to receive telephone calls.
Journeymen of the out-of-work list are the first re-
ferred to jobs by Respondent, but when that list is ex-
hausted, Respondent may refer trainees and those on the
manpower availability list. When the out-of-work list has
been exhausted, Respondent sometimes directly refers
callers to jobs without even having listed them. When a
caller seeks work without asking to be placed on the out-
of-work list, Respondent take his word as to his qualifi-
cations and experience at face value, but when an appli-
cant wants to be referred regularly by Respondent from
the out-of-work list, it requires that he fill out an applica-
tion form listing among other things his qualifications
and experience.
Respondent's parent International Union, referred to
herein as the International, has in addition to its constitu-
ent local unions a National Transit Division which main-
tains agreements with certain contractors engaged in
construction work throughout the United States. Boiler-
makers who work regularly for the same employer and
move with the work are eligible for direct membership
in the National Transit Division without joining any
local affiliate. National Transit Division members, known
as NTM members, may seek work through the Interna-
tional's local affiliates as well as their own division.
B.The Charging Party's Employment Through
January 1977
Blayne Beatty started to work as a boilermaker in June
1967 and became an NTM member of the International.
From then until January 1977, Beatty worked on a
number of jobs to which he was referred by as many as
25 different local unions, including Respondent. In 1968,
Respondent referred him to the John Sherman Cooper
Powerhouse jobsite at Burnside, Kentucky, where he
worked for a month or two as a high rigger. In 1968 or
1969, Respondent referred him to a job at Dix River
where he worked for an indeterminate period of time. In
1970, 1971, 1975, and 1976, Respondent referred him to
work at a TVA plant at Paradise, Kentucky. On the last
occasion, he was rejected for hire at the jobsite because
he had quit his job there on the two prior occasions. The
superintendent told him that he was going to teach him a
lesson by keeping him off the job at that time, but that
there was another job coming up and that he would hire
Beatty if Beatty could get Respondent to send him back
there. Beatty did not go back to that site, but there is no
indication that he sought further referral there from Re-
spondent.
In May 1976, Respondent referred Beatty to work as a
certified welder for contractor Brock and Blevins on a
Laurel River project at London, Kentucky. Although
Beatty had previously worked as a welder, he failed to
pass the welding test and was terminated at the end of
his first day. Respondent was notified of his termination
and asked to send a replacement for him. Thereafter, Re-
spondent did not refer him to any other jobs as a certi-
fied welder. However, after that experience another local
referred Beatty to a job in Petersburg, Indiana, where he
passed a welding test and worked as a welder. He did
not, however, advise Respondent at that time that he had
passed the test.
In 1975 or 1976, another local referred Beatty to a
TVA plant in Tennessee where he was discharged after
working 4 days.
On three occasions, in 1975, 1976, and January 1977,
Respondent referred Beatty to work at the Clify Creek
Powerhouse in Madison, Indiana. In 1976, Respondent
sent him to the jobsite to be steward on the job, but he
was not hired because he was deemed to be intoxicated
when he reported for work.
In January 1977, Beatty worked for B-W at the Clify
Creek jobsite for several weeks. A few days before the
job ended, the day-shift general foreman, Combs, termi-
nated Beatty because Beatty was not on his job and ob-
jected to the work to which he was assigned. As Combs
was processing his termination, Beatty took out his
pocket knife to clean his fingernails. After he finished, he
placed the open knife flat against his arm with the handle
cradled in his fingers and put his hand in his pocket with
the knife still open. After Combs gave Beatty his termi-
nation check, he followed Combs out the door and told
Combs he was a "no good s.o.b." Combs ignored him,
and there was no further incident. Thereafter Combs told
Respondent's assistant business manager, Remington,
what had happened.3
C.Beatty's Efforts To Obtain Work Through
Respondent After January 1977
Since Beatty was terminated by B-W at Clifty Creek,
Respondent has not referred Beatty to any further work.
In February, a week or two after Beatty left the Clify
Creek job, Beatty called Assistant Business Manager
Remington to ask if there was any work available for
him. Remington said that there had been trouble on the
last job he referred him to and mentioned the knife inci-
dent. Beatty said that Remington should check the facts,
and Remington said that he did not need men like
Beatty. Beatty said that Remington needed more men
like him who were good union men who would stand up
for their rights. Remington said that he had no work
available for him at that time and the conversation
ended. 4
3 These findings are based upon the testimony of Combs corroborated
by Remington. Beatty denied that he used the knife as described by
Combs. However, he testified variously that he was laid off, that he was
terminated, and that he quit that job, and it is clear even from Beatty's
testimony that Combs had reported a knife incident to Remington before
Beatty next spoke to Remington. As there is no apparent reason for
Combs to have fabricated his report at that time, I have credited Combs
and Remington as to this incident and Combs' report to Remington.
4 Beatty and Remington both testified to this conversation, with Beatty
testifying in greater detail. The only conflict between their testimony in
Continued
BOILERMAKERS, LOCAL 40 1063
The evidence is in dispute as to efforts made by Beatty
to seek work thereafter through Respondent and as to
what he was told when he called. According to Beatty,
from then until late September 1977, he called Respon-
dent's hall about every other week, asked if there was
work available, and received a negative reply.
5
Although Beatty identified September 13 and 14 as
two dates on which he called the union hall, he later
corrected that testimony when shown records of his
long-distance calls to Respondent's hall and testified that
those calls were made on October 13 and 14. The re-
cords otherwise showed calls to the hall on February 16,
May 2, 10, and 13, October 13 and 14, and December 2
and 14, 1977.
Remington testified that he recalled no telephone con-
versations with Beatty between February and October.
Respondent's records of incoming telephone calls show
that calls were received by its secretary from Beatty
May 2 and 13, October 14 and 27, and December 2,
1977.6 During this period Beatty's name did not appear
on the out-of-work list, and it was entered on the man-
power availability list only once, on October 13, 1977.
On one occasion in July, when Remington referred
Beatty's brother to a job, his brother asked Remington to
send Beatty to the job as well. Remington replied that he
could not because he had too many people on the out-of-
work list to be referred before he could refer Beatty. He
told Beatty's brother that there was an NTM job at an-
other location that needed men and gave him the name
and telephone number of the job foreman. Remington
mentioned to Beatty's brother the problems they had on
Beatty's last couple of jobs and suggested that Beatty
should go on the NTM job to see if he could get himself
straightened out. According to Beatty, he telephoned the
job foreman and left his name but was never called to
the job. 7
During the period from February to October 1977,
Respondent referred between 400 and 1,000 men to jobs.
In October, a B-W job arose at the John Sherman
Cooper powerhouse at Burnside, Kentucky, which re-
quired approximately 30 boilermakers, the majority of
them skilled welders, to work on two shifts. The job
started on October 7 and ended on November 24. All the
boilermakers on the job were referred by Respondent.
The last boilermaker referred to the job from Respon-
dent's out-of-work list was sent to the job on October 12,
this regard concerns whether during this conversation Beatty asked to
have his name placed on the out-of-work list, as Beatty testified. Beatty
testified to no other occasion when he made such a request, and in his
general descriptions of his conversations with Remington and Respon-
dent's secretary he mentioned asking only if there was work available. I
have credited Remington's denial that Beatty asked him to put his name
on the out-of-work list in this or any other conversation.
I Beatty testified that up to a certain point he spoke to Remington
when he called but that after that Remington refused to take his calls.
His testimony is somewhat confused as to when Remington's refusals
began. As Beatty described conversations with Remington after February
and up to October 13, it would appear any refusals by Remington to take
Beatty's calls did not occur before October 13.
' None of the entries show that Beatty spoke to Remington on any of
these occasions, and all but the last indicate that he was looking for
work.
I have credited Remington as to his conversation with Beatty's
brother. While Beatty testified to what his brother told him about the
conversation, his brother was not called as a witness.
but Respondent also referred men from the manpower
availability list, and may have done so after October 12.
Its records do not show when the last referral from the
manpower availability list occurred.
On October 13 and 14, Beatty called Respondent's hall
looking for work and spoke with Remington on at least
one of those 2 days. Beatty testified that in one of these
calls Remington told him "to grab me an armful of
Greyhound Buses" and said that if he filed charges he
would never work out of Respondent's hall again as long
as he lived.
According to Remington, Beatty asked for a job at the
Burnside site, and he advised Beatty that he could not
send him on the job because it was filled."Remington tes-
tified that he did not recall Beatty mentioning that he
had filed charges, and Remington denied that he made
any statement about grabbing an armful of Greyhounds
to Beatty.
At some point after the job started Beatty also spoke
with B-W General Foreman Carroll who told him that
B-W was going to call the hall for more men, but the
record does not show the date of this conversation or
when it occurred in relation to Beatty's October 13 and
14 telephone calls to Respondent. Beatty was never re-
ferred to the job.
After Beatty filed the charge in this case Respondent
initiated inquiries about Beatty's background and qualifi-
cations." According to Respondent's business manager,
Neville, as a result of that investigation, he discovered
that Respondent had referred Beatty as a journeyman
boilermaker; that he had only 6,000 hours of work as a
boilermaker; that he had failed to show up at a job to
which he had been referred, and that he had been in-
volved in the knife incident at Clifty Creek. According
to Neville, they concluded that Beatty was therefore not
a qualified journeyman boilermaker and could be re-
ferred in the future only as a trainee. Neville testified
that until the information about Beatty's prior experience
in the trade was received from Respondent's pension
fund in the spring of 1978, no determination was made to
stop referring Beatty as a qualified mechanic.
D.Concluding Findings
The General Counsel contends that since March 1977,
6 months before the charge was filed, Respondent has re-
fused to refer Beatty to any job because he is not a
member of Respondent, because of his opposition to Re-
spondent's referral policies, and because of his filing of
I Beatty initially placed these conversations after he filed his charges,
then testified that they were in September and must have been before he
filed the charges, and then after seeing his telephone bills testified that
the calls he was referring to occurred on October 13 and 14.
9 Although Remington testified that he believed he might have re-
ferred boilermaker Swift to the job after that conversation, Respondent's
records show that Swift was referred to the job on October 12.
to Carroll testified that he was at Beatty's home when Beatty tried un-
successfully to telephone Respondent's hall. The record does not show
whether the call was completed to any extent or reflected on Beatty's
telephone bills.
It Respondent's business manager, Neville, testified that it was not
unusal for Respondent to investigate after a man made a complaint to
find out who was making it and what information they had about him.
He testified that until a problem arises, the information that a man gives
Respondent on the telephone is taken at its face value.
BO uER AKR so d n LOCAL 40 ere 1063o te a po e
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charges in this case. Respondent contends that the
Board has no jurisdiction because Beatty failed to ex-
haust his intraunion remedies, that it had no duty to refer
Beatty because he failed to comply with proper referral
procedures and did not ask to be placed on the out-of-
work list, and that it had no duty to refer Beatty because
he was not qualified for referral.
Respondent relies on N.L.R.B. v. Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO, et
al. [United States Lines Co.], 391 U.S. 418 (1968), for its
contention that the Board is deprived of jurisdiction in
this case by Beatty's failure to exhaust internal remedies.
However, Respondent reads more into that decision than
I am able to find. The issue in this case is discrimination
in referral for employment, not enforcement of union
membership obligations, and the Board does not require
exhaustion of contractual remedies before asserting juris-
diction over alleged discrimination. 2
In considering the remaining contentions there are two
periods which require separate treatment, the period
before September 29, 1977, when Beatty filed his charge,
and the period after that date. Before that date retaliation
for filing charges could not have been a factor in Re-
spondent's treatment of Beatty, and there is no evidence
that Beatty's alleged opposition to Respondent's referral
policies played any role in Respondent's failure to refer
Beatty.
While there is a suggestion that Respondent deliberate-
ly withheld referrals from Beatty after he was terminated
from the Clifty Creek job, I am not persuaded as to the
persistence of Beatty's efforts during that period, and in
any event the record indicates that any refusal to refer
Beatty was more likely caused by Beatty's record when
he worked out of Respondent's hall than by his nonmem-
bership in Respondent.
Although Beatty claimed to have called Respondent's
hall every other week from February to October, neither
his telephone bills nor Respondent's records of incoming
telephone calls indicate such frequency or regularity.
While neither seems to be a complete record of Beatty's
calls, Beatty's overall performance as a witness indicated
both confusion and inaccuracies in memory casting doubt
on his testimony. I conclude that Beatty did not call the
hall with any greater frequency or regularity than the
combined telephone records show.
Although Beatty's name never appeared on the out-of-
work list, it is clear from his testimony and that of Rem-
ington's that his standard procedure was simply to ask if
work was available and not to ask to be placed on the
out-of-work list. I agree with Respondent's contention
that it was not obligated to place persons on the out-of-
work list who called and simply inquired the availability
of work, and there is no evidence that Beatty was treat-
ed differently from others in this regard.
However, the fact that Respondent had no duty to
place Beatty on the out-of-work list does not mean that
it had no further duty toward him, for it did refer per-
sons other than those on the out-of-work list to jobs
when the out-of-work list was exhausted, and it had the
12 General American Transportation Corporation, 228 NLRB 808 (1977).
See also International Union of Operating Engineers, Local 400 (Hilde Con-
struction Company), 225 NLRB 596 (1976).
duty not to treat him differently from others for unlaw-
ful reasons in making these referrals.
During the relevant period Respondent referred a
large number of men to jobs, but there is no evidence
that at the time of any of the known calls by Beatty to
Respondent's hall the out-of-work list had been exhaust-
ed or that referrals were made of others who were not
on that list. Thus, the record does not establish that
Beatty was in fact denied referrals during this period at
any time when work was available.
Nonetheless, there is indication that Respondent was
not disposed to refer Beatty during this period, even if
work were available when he called. Thus, from Rem-
ington's own testimony as to his conversation with
Beatty in February after Beatty was dismissed from the
Clify Creek job and as to his conversation with Beatty's
brother in July, Remington appeared disturbed by Beat-
ty's work record and indicated a need for Beatty to
straighten himself out. These conversations, coupled the
absence of Beatty's name on the manpower availability
list during this period, indicate that Respondent was not
disposed to refer him during this period. However, they
also indicate that the reason was concern over the inci-
dent on the Clify Creek job that had been reported to
Remington and Beatty's work record rather than any im-
permissible consideration. While the referral rules im-
posed specific suspensions from the out-of-work list for
discharge for cause and other offenses, there is no indica-
tion here that Beatty's treatment before September 29
under the less formal procedures of referral from the
manpower availability list was so different from that pro-
vided under the work rules as to warrant an inference of
some other motive.
I conclude in these circumstances that the evidence
fails to establish that Respondent discriminated against
Beatty in the operation of its referral system or violated
Section 8(b)(2) of the Act by causing him to be denied
employment before September 29, 1977.
Turning to the period after September 29, when
Beatty filed his charge, the evidence leads to a different
result. While there are no records in evidence to show
when the last boilermakers were hired on the Burnside
job in October, I find that the evidence is sufficient to
show that Respondent referred men to that job after Oc-
tober 13 and 14 when Beatty was told no work was
available. Thus, Remington testified that he believed men
were sent to the job from the manpower availability list
whose referrals were not shown by Respondent's re-
cords. As the last man sent from the out-of-work list was
sent on October 12, only 5 days after the job started, as
the job continued well into November, and a sit is un-
likely that the out-of-work list was exhausted before Oc-
tober 12, the inference is strong that men were referred
to the job from the manpower availability list after Octo-
ber 12.
The record also establishes that after Beatty filed his
charge Respondent sought to make a case to justify re-
fusing to refer Beatty and as a result thereof took the po-
sition that it no longer considered Beatty a qualified boi-
lermaker. Respondent contends that it routinely conducts
an investigation of a man's qualifications whenever a
grievance or charge is filed, and obviously some investi-
BOILERMAKERS, LOCAL 40 1065
gation is warranted to determine both whether a charge
has merit and how to defend against it. But the charge
filed by Beatty was that Respondent had refused to refer
him since January 1977, because he was not a member of
Respondent and because he had engaged in other pro-
tected concerted activity. The merits of the charge and
the defense to it neither involved nor required any inves-
tigation into any facts not within the knowledge of Re-
spondent's agents at the time of Respondent's alleged re-
fusal to refer Beatty, since any refusals to refer Beatty
which may have occurred could only have been based
on what Respondent's agents knew at that time. While
Beatty had been rejected from one job for failure to pass
a welding test, it was not uncommon for journeyman to
fail such tests. None of Beatty's other job problems in-
volved lack of qualification to perform journeymen's
work, and his charge raised no issue as to his qualifica-
tions as a journeyman. Yet after having referred Beatty
as a journeyman intermittently for a number of years,
Respondent used the filing of his charge as a reason to
inquire as to Beatty's total reported hours of work at the
trade and relied on the results of that investigation to
deny Beatty further consideration for referral as a jour-
neyman. The nature of the investigation and the applica-
tion of its results supports an inference that Respondent
sought not merely to defend itself but to retaliate against
Beatty for filing the charge. 13
That inference, if anything, is strenghtened by the tes-
timony of Respondent's business manager, Neville, as to
the reasons Beatty was not referred to the Burnside job.
Initially, when called as a witness by the General Coun-
sel, Neville testified there were several reasons-that
Beatty had just failed to report to the NTM job after re-
ferral; that the Burnside job was filled when Beatty
called in; that he had not called in during the previous 2
weeks; that Respondent checked his record and found
that it was poor; and that Neville felt they could find
more qualified people than Beatty to send to the job. De-
spite the reasons stated by Neville, he testified that if
Beatty had asked to be put on the out-of-work list at that
time, he would have been placed on that list as a jour-
neyman on the strength of his word. Later, when Neville
was recalled as a witness by Respondent, he testified that
after Beatty refused the NTM job, Respondent had no
jobs available to refer Beatty to from the manpower
availability list and that Respondent did not determine
that Beatty lacked qualifications until after its investiga-
tion was completed in early 1978.
Neville's initial testimony is inconsistent with his later
testimony, and the multiplicity of reasons given by Ne-
ville initially do not withstand scrutiny. The NTM job
which Remington mentioned to Beatty's brother in July
was not a referral by Respondent, and Beatty's failure to
work on it, whatever the cause, was not comparable to a
failure to respond to a referral. Beatty's failure to call
la While Respondent contends that it could no longer refer Beatty
under its agreements after discovering he lacked 8,000 hours of experi-
ence, Respondent never challenged the representations of any person
who sought work as to his experience unless it had cause to doubt his
representations or possibly unless he sought to be placed on the out-of-
work list. Beatty's charge gave no cause to doubt his experience, and but
for the filing of the charge Respondent would have continued to take his
representations at face value
during the previous 2 weeks had nothing to do with re-
ferrals from the manpower availability list. If there was
no work available, there was no occasion to consider
whether persons more qualified than Beatty were avail-
able, and Neville's testimony that Beatty would have
been put on the out-of-work list if he had asked is incon-
sistent with his testimony that a reason Beatty was not
referred to Burnside was his belief that Respondent
could find more qualified people to refer to Burnside.
Neville's later testimony that he did not check Beatty's
qualifications at that time eliminated that inconsistency
while giving rise to another. His later testimony altering
the significance of Beatty's alleged rejection of referral
to the NTM job is inconsistent with Remington's testi-
mony that there were referrals from the manpower avail-
ability list in October long after Remington told Beatty's
brother about the NTM job.
The conclusion to be drawn is that Neville's testimony
as to the reasons Beatty was not referred to the Burnside
job cannot be believed, and the very fact that Neville
proffered inconsistent and demonstrably false reasons for
not referring Beatty to that job indicates that Respondent
had some other reason for its action which it sought to
conceal.
There remains for consideration the disputed testimony
of Beatty that when he spoke with Remington in Octo-
ber Remington threatened not to refer Beatty because he
had filed charges and made a remark about grabbing "an
armful of Greyhound buses," an apparent reference to
traveling some distance for work. Beatty's testimony is
not without its problems. He initially placed the conver-
sation in September and displayed confusion as to wheth-
er it was before or after he filed his charge. He described
Remington's threat as a threat not to refer him if he filed
a charge although he later testified that the conversation
occurred after the charge was filed. As indicated else-
where, Beatty appeared to be confused at times, and dis-
played an uncertain recollection. I have not credited his
version of his termination at Clifty Creek or his claim
that in February he asked to be placed on the out-of-
work list. Although the evidence otherwise indicates that
Respondent did retaliate against Beatty for filing his
charge, I am not persuaded that Beatty's testimony as to
Remington's alleged threats was sufficiently reliable to
be credited and do not rely on this testimony.
I find nonetheless that Respondent's treatment of
Beatty after he filed his charge was motivated by the
filing of the charge and that Respondent thereafter re-
fused to refer Beatty and sought to make a record to jus-
tify that refusal by investigating his employment history.
I find that Respondent's refusal to refer Beatty as a jour-
neyman after September 29 was based on his filing of
charges against Respondent and violated Section
8(b)(l)(A) and (b)(2) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (b)(2) of the Act, I shall recom-
mend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
BOILERMAKERS, LOCAL 40
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have found that Respondent discriminated against
Blayne Beatty after September 29, 1977, by denying him
referral to jobs because he filed charges, I shall recom-
mend that Respondent be required to make Beatty whole
for any loss of earnings he may have suffered by reason
of the discrimination against him with interest to be com-
puted in the manner provided in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).14
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
14 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (9162).
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Babcock-Wilcox Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. By attempting to cause and causing Babcock-Wilcox
Company, Inc., and other employers to discriminate
against Blayne Beatty because he filed charges with the
National Labor Relations Board, Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Sections 8(b)(1)(A) and (b)(2) and
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]