International Brotherhood Of Electrical Workers, Local Union No. 2148, Afl-Cio (Newberry Industrial, Inc.)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 746 (N.L.R.B. 1986)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 2148 , AFL-CIO (Newberry
Industrial, Inc.) and Paul W. Eighmey. Case
28-CB-2271
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 15 May 1986 Administrative Law Judge Jer-
rold H . Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions, a sup-
porting brief, and an answering brief, and the Re-
spondent filed a brief in opposition to the cross-ex-
ceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions , cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings , findings,' and conclusions as modified, and to
issue the Order set forth below.
The judge properly found that Gary Cliff, Paul
Eighmey , and Tom Manson were unlawfully by-
passed for referral to the Newberry dam project
and that if the Respondent had operated its hiring
facility in a lawful manner , it would have referred
them to the project on 26 January, 16 February,
and 6 March 1984 , respectively . 2 The judge also
correctly found that the backpay period for Eigh-
mey and Manson ended on 19 September and 23
March, respectively . However, for reasons that
follow , we disagree with his conclusion that Cliffs
backpay period would have ended on 29 February
if he had been referred to the project on 26 Janu-
ary.
The record shows that Cliff was not referred to
the project until 3 April and that he was employed
there until 7 May when he was laid off under the
following circumstances : As the work was danger-
ous, Cliff from the first day on the job expressed
his dissatisfaction on that score to David Deacon,
the project superintendent . Not until a month later
did he tell Deacon that he wanted to leave because
he "thought" the job was "a little dangerous" and
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
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 reversing
the findings.
P All dates below refer to 1984.
that "he had something else lined [up]." Deacon
then prevailed upon Cliff to remain until 7 May in
order to include him in a scheduled layoff. The
judge therefore "inferred" that if Cliff had received
a referral on 26 January , he would have discovered
that the work was very dangerous and, as was the
case after his 3 April referral , Cliff would have de-
cided to quit after working on the project for
about 1 month . The judge concluded for this
reason that the Respondent 's backpay obligation in
Cliffs case would have ended on 29 February,
about 4 weeks after he would have received the 26
January referral to the project.
It is clear that the judge did not give sufficient
weight to the significant fact that Cliff did not
decide to give up his job at the project, despite its
dangerous nature , until he had "lined up" another
job. Under these circumstances , we do not agree
with the judge that it is a fair inference if Cliff had
been referred to the project on 26 January, he
would have left a month later without regard to
whether he had "lined up" another job . Conse-
quently , we cannot adopt the judge 's fording. How-
ever, we agree with and adopt the judge 's first al-
ternative finding that follows customary practice
and restores the status quo ante by terminating
Cliffs backpay period on 3 April when he was, in
fact, referred to the project and performed the
same work under the same terms and conditions of
employment as he would have received had he
properly been referred on 26 January. 3
As we agree with the judge 's finding concerning
the duration of the backpay period of Eighmey and
Manson and the accuracy of the General Counsel's
specifications concerning their backpay and trust
fund contributions, we shall adopt paragraphs (a)4
and (b) of the judge's recommended Order. How-
ever , in view of our fording that the duration of
Cliffs backpay period was from 26 January to 3
April, we shall adopt the General Counsel's specifi-
cation only for the first quarter of 1984 and leave
to compliance a determination as to Cliffs net
backpay and health and welfare and pension contri-
butions for the remainder of his backpay period.
ORDER
The National Labor Relations Board orders that
the Respondent , International Brotherhood of
Electrical Workers, Local Union No. 2148, AFL-
9 We also find no merit in the judge's second alternative finding ex-
tending Cliff's backpay period to 7 May, the day of his layoff, because it
constitutes a departure from the Board 's sound and reasonable practice of
terminating a respondent union 's backpay obligation in these circum-
stances as of the date of referral.
4 We correct the judge's inadvertent error in stating Manson 's backpay
as $1067.37 rather than $2699.37, which is the amount set forth in the
General Counsel 's specification.
281 NLRB No. 112
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
CIO, Page, Arizona, its officers, agents, and repre-
sentatives, shall take the action set forth below.
(a) Make whole Paul Eighmey in the amount of
$27,761.93 and make whole Tom Manson in the
amount of $2699.37 as net backpay, together with
interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977).
(b) Make health and welfare and pension contri-
butions into the appropriate trust funds on behalf of
Paul Eighmey and Tom Manson in the amounts set
forth opposite their names , together with interest
computed in the manner prescribed in Merry-
weather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979), until payment of all the contributions due.
Health &
Welfare
Paul Eighmey .........................................
Tom Manson ..........................................
$654.26
97.11
Pension
$756.72
112.32
(c) Make whole Gary Cliff in the amount of
$9155.89 as net backpay for the first quarter of
1984, together with interest as prescribed in para-
graph (a) and make him whole in an amount to be
determined in further compliance proceedings, plus
interest, for the remainder of his backpay period.
(d) Make the following contributions into the ap-
propriate trust funds on behalf of Gary Cliff for the
first quarter of 1984 : $375.38 for health and welfare
and $335.24 for pensions, together with interest
thereon in the manner prescribed in paragraph (b),
until payment of all the contributions due, and
make contributions , to be determined in further
compliance proceedings, plus interest, for the re-
mainder of the backpay period.
Michael J. Karison, for the General Counsel.
A. D. Ward (Ward & Keenan), for the Respondent.
SUPPLEMENTAL DECISION
JERROLD H. SHAPIRO , Administrative Law Judge. On
18 September 1985 the National Labor Relations Board
(Board) issued an unpublished Decision and Order in this
proceeding, which was based on a settlement stipulation
entered into by and between all the parties: International
Brotherhood of Electrical Workers , Local Union No.
2148 , AFL-CIO (Respondent); Charging Party Paul W.
Eighmey; and the Board's General Counsel. On 25 Octo-
ber 1985 the Court of Appeals for the Ninth Circuit
issued an unpublished judgment enforcing the Board's
Order.'
The Board 's Order, as enforced by the court, directs
Respondent , among other things , to do the following:
' NLRB Y. Electrical Workers IBEW Local 2148, No. 85-7544.
747
Make whole , with interest, for any loss of earnings
and benefits, those registrants in its exclusive hiring
hall's out-of-work lists , all of whom are yet to be
identified , who were bypassed and hence were
denied employment opportunities, as a consequence
of its referral and dispatching to Newberry Industri-
al, Inc., at its dam construction project located at or
near Page , Arizona, of Boyd Hall and Davidson
Butte in or about March 1984. Such amounts are to
be computed on the basis of, and not to exceed, 75
percent of the monies owed as fully determined by
any backpay or compliance proceeding , if neces-
sary.
A dispute having arisen concerning the identity of the
three registrants who were bypassed by Respondent
when it referred Boyd Hall , Jerry Killman, and David-
son Butte to the Newberry dam construction project, the
Board's Regional Director on 5 December 1985 issued a
backpay specification in which he alleged that registrant
Gary Cliff should have received Hall's January 1984 re-
ferral, registrant Paul Eighmey should have received
Killman's February 1984 referral , and registrant Tom
Manson should have received Butte's March 1984 refer-
ral. The specification , as amended during the hearing, al-
leged that to satisfy its backpay obligation under the
Board 's Order, as enforced by the court, Respondent
would have to pay Gary Cliff $26,935.04, Paul Eighmey
$27,761.93, and Tom Manson $1 ,067.37, plus interest, and
pay additional specified amounts on their behalf into the
health and welfare and pension trust funds of the govern-
ing collective-bargaining agreement , plus interest.
On 20 December 1985 Respondent filed an answer to
the backpay specification , which was amended during
the hearing , in which it alleged among other things, that
either Woodrow Killman Jr ., or William Heck, or Roger
Gage , in that order, should have received Boyd Hall's
January 1984 referral; that either Dennis Kirk, or Wil-
liam Heck or Roger Gage should have received Jerry
Killman's February 1984 referral; that Gary Cliff should
have received Davidson Butte's March 1984 referral;
that on 7 May 1984 Respondent's backpay liability con-
cerning Gary Cliff was either ended or reduced, when,
after having been referred by Respondent on 3 April
1984 to the Newberry dam project , Cliff voluntarily re-
moved himself from the project ; that Eighmey was not
entitled to any backpay because he would not have ac-
cepted a referral to the Newberry dam project and, in
any event, the employer would not have hired him. The
answer also alleges, among other things, that Respond-
ent's net backpay liability, as set forth in the specifica-
tion, should be reduced because the alleged discrimina-
tees, Gary Cliff, Paul Eighmey, and Tom Manson, each
failed to make a reasonable search for work during the
backpay period and, with respect to Eighmey , alleges
more specifically that he turned down Respondent's re-
ferrals to the Newberry dam project in 1984 on 23 April,
25, 29 , and 31 May , and that he was unavailable for Re-
spondent's 5 June 1984 referral to an employer named
Boyer, and that on 11 June 1984 he turned down Re-
spondent's referral to Shaum Electric , and that he
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked on a self-employed basis or for an unknown em-
ployer during the backpay period.
On 19-20 February 1986 I conducted a hearing in this
proceeding.
On the entire record ,2 from my observation of the de-
meanor of the witnesses , and having considered the
posthearing briefs, I make the following
FINDINGS AND CONCLUSIONS
A. The Discriminatees' Identities
1. The evidence
During the time material , Newberry Industrial, Inc.
(Newberry), a construction contractor , was repairing the
spillways of a dam located in the vicinity of Page, Arizo-
na (the Newberry dam project). The project began in ap-
proximately July 1983 and lasted until approximately
September 1984.
The electricians employed by Newberry on the New-
berry dam project were represented by Respondent and
were covered by a collective-bargaining contract be-
tween Respondent and the Flagstaff Division, Arizona
Chapter National Electrical Contractors Association.
The governing collective-bargaining contract provided
that Respondent would be the sole and exclusive source
of referrals of applicants of employment to the New-
berry dam project and that Respondent would maintain a
register of applicants for employment divided into four
groups, with those registered in group 1 receiving prefer-
ence in employment . The contract also stated that Re-
spondent "shall maintain an 'out-of-work list' which shall
list the applicants in each GROUP in chronological
order of the dates they register their availability for em-
ployment."
Boyd Hall , Jerry Killman, and Davidson Butte , electri-
cians registered on Respondent's group 1 out-of-work
list , were referred by Respondent to the Newberry dam
project on the following dates : Hall, 26 January 1984;
Killman , 16 February 1984; and, Butte , 6 March 1984. It
is undisputed that, as described in detail supra , they were
improperly referred, out of order.
Respondent referred Hall on 26 January 1984 to the
Newberry dam project, even though there were approxi-
mately 27 other applicants registered ahead of him on
the group 1 out-of-work list. The first five applicants
registered on the group 1 out-of-work list were Wood-
row Killman Jr., Dennis Kirk, Al McNulty, Gary Cliff,
and William Heck, in that order . The General Counsel
contends that Cliff should have received this referral.
Respondent contends that either Killman Jr., Kirk, or
Heck should have received it. The General Counsel and
Respondent agree that McNulty, who had instructed Re-
spondent not to refer him to "out of town" jobs, should
not have received this referral.
Respondent referred Jerry Killman on 16 February
1984 to the Newberry dam project, even though there
were approximately 26 other applicants registered ahead
of him on the group 1 out-of-work list. The first seven
2 The General Counsel 's and Respondent's motions to correct the
record are granted.
applicants registered on the group 1 out-of-work list
were Woodrow Killman Jr ., Dennis Kirk, Al McNulty,
Gary Cliff, William Heck , Paul Eighmey , and Roger
Gage , in that order . The General Counsel contends that
Eighmey should have received this referral . Respondent
contends that either Killman Jr ., Kirk, Heck, or Gage
should have received it. As noted supra, the General
Counsel and Respondent agree that McNulty should not
have received it, and the General Counsel contends that
as Cliff should have received the 26 January 1984 refer-
ral, that he would not have been available to accept this
referral.
Respondent referred Davidson Butte on 6 March 1984
to the Newberry dam project , even though there were
approximately 20 applicants registered ahead of him on
the group 1 out-of-work list. The first eight applicants
registered on the group 1 out-of-work list were Wood-
row Killman Jr., Dennis Kirk, Al McNulty, Gary Cliff,
William Heck , Paul Eighmey , Roger Gage, and Tom
Manson , in that order . The General Counsel contends
that Manson should have received this referral. Respond-
ent contends that either Killman Jr ., Kirk, Cliff, Heck, or
Gage should have received it. As noted supra, the Gen-
eral Counsel and Respondent agree that McNulty should
not have received it, and the General Counsel contends
that because Cliff should have received the 26 January
1984 referral and Eighmey the 16 February 1984 referral,
that they would not have been available to accept this
referral.
The General Counsel and Respondent have presented
evidence that they contend is pertinent to the identifica-
tion of the applicants registered on the group 1 out-of-
work list who should have received the above-described
referrals instead of applicants Hall, Killman, and Butte.
This evidence has been set forth immediately below and
whenever there was a conflict of significance, it has been
resolved.
a. Woodrow Killman Jr.
Killman Jr., a member of Respondent, is a member of
its executive board . He has been employed continuously
as an electrician by the Bechtel Corporation at its Palo
Verde Nuclear Power station , which is located approxi-
mately 50 or 60 miles from his home . He commutes to
and from work each day . If he had worked at the New-
berry dam project he would have been unable to com-
mute because the project was more than 270 miles from
his home . He would have had to live in the vicinity of
the project.
Killman's terms and conditions of employment while
employed by Bechtel have been governed by a collec-
tive-bargaining contract between Bechtel and one of Re-
spondent 's sister local unions . During the time material,
Killman was paid a little more than $ 17 an hour plus $11
a day in travel expenses . He worked 40 hours a week
with little, if any overtime. The wage scale at the New-
berry dam project was $20.22 an hour . It appears from
the gross backpay computations in the backpay specifica-
tion that there was significant overtime being worked on
that job.
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
Killman's tenure on the Bechtel job is not governed by
seniority . During his employment , other electricians have
been laid off. Killman was advised by Bechtel 's supervi-
sion that he has been retained because of his ability to do
the job and his superior attitude.
Killman 's employment with Bechtel was outside Re-
spondent 's geographical jurisdiction so he was entitled to
register on Respondent out-of-work list while working
for Bechtel . He has done so since 12 June 1982 . From at
least 14 October 1983 to the date of the hearing, 20 Feb-
ruary 1986 , Killman has been the first applicant regis-
tered on the out-of-work list . He testified that the only
time Respondent contacted him about a job referral since
he has been registered on the out-of -work list while
working for Bechtel was in August 1983 when Respond-
ent offered him a referral to the Newberry dam project,
which he turned down.3
Killman testified that when he refused the August 1983
referral to the Newberry dam project , he understood it
was only for 2 weeks . Respondent 's business manager,
Burns, the person who spoke to Killman about the refer-
ral, did not testify about his conversation with Killman
concerning this referral . The record reveals that on 12
August 1983 , the date Killman refused the referral, Re-
spondent referred group 1 applicants Kenneth Johnson
and Davidson Butte to the Newberry dam project and
that Johnson was still employed there as of 6 July 1984
and that Butte was not laid off until early January 1984.
Killman testified that if he had been offered referrals
to the Newberry dam project on 26 January 1984 or in
February or March 1984 he would have accepted the re-
ferrals because he believed he would have been able to
earn a large amount of money in a short period of time,
inasmuch as he was told there was a lot of overtime on
that job and that the hourly wage was substantially more
than what he was being paid by Bechtel . Killman further
testified that although he did not know how long the job
would have lasted, he believed it would have lasted for
approximately 6 to 8 months, even though he knew that
some of the other electricians on that job, including his
brother , had been recently laid off.
During the Board's investigation of this case , Killman,
when asked whether he would have accepted the 26 Jan-
uary 1984 referral to the Newberry dam project, told the
Board agent that he would have accepted the referral.
However, when the Board agent reduced this statement
into writing in the form of an affidavit and asked Kill-
man to sign it and swear to its truth , Killman refused. He
3 Respondent placed into evidence Killman 's employment register card
maintained by Respondent. It shows that Burns personally spoke to Kill-
man on 28 August 1983 about a referral to Shaum Electric and that Kill-
man turned the referral down . Killman testified that the only time he was
ever contacted by Respondent about a job referral was the one time in
August 1983 concerning the Newberry dam project . I have credited Kill-
man's testimony because the notation for the 28 August 1983 Shaum
Electric referral was not written on Killman 's employment register card
when it was presented to the Board during the investigation of this case
and a comparison of the card , as it looked when introduced into evidence
by Respondent in this proceeding , shows clearly that the card was al-
tered and that the alterations were made presumably for the purposes of
this litigation . Burns, who made these alterations , did not explain why he
altered the card.
749
offered no explanation for his refusal to either the Board
agent or when he testified.
b. Dennis Kirk
Kirk, a member of Respondent, is a member of its ex-
ecutive board . He was employed continuously as an elec-
trician from April 1983 until August 1985 by Southwest
Forest. In approximately September 1983 , after his 6
months' probationary period , he obtained permanent em-
ployee status with that company . While employed by
Southwest Forest he commuted to work from his home
inasmuch as that company 's place of business is located
in Flagstaff, Arizona, where Kirk lives with his family. If
he had worked at the Newberry dam project located in
Page, Arizona, he would not have been able to commute
to work because the project was more than 130 miles
from Flagstaff, Arizona . He would have been forced to
live at the site of the project.
Kirk was not represented by a labor organization
while employed by Southwest Forest . There is no evi-
dence of his hourly rate of pay, but the record reveals
that during the calendar year 1984 he earned $29,000
working there.
Because Kirk's employment with Southwest Forest
was not in the construction industry , he was permitted to
register on Respondent's group 1 out-of-work list during
the entire period of time he was employed by that com-
pany.4 And, from at least 14 October 1983 until the hear-
ing in this case , 20 February 1986, Kirk was the second
registrant on the out -of-work list.
Kirk testified that while he was employed by South-
west Forest that the only referrals Respondent offered to
him were as follows : In approximately August 1983 to
Shaum Electric ; in approximately September 1983 to the
Newberry dam project; in 1984 again to the Newberry
dam project , near the end of the project; in 1985 to
Shaum Electric . Kirk testified that from January through
June 1984 Respondent did not contact him about a job
referral.
The employment register card maintained by Respond-
ent for Kirk shows the following: On 12 August 1983 he
refused a referral to the Newberry dam project; on 28
August 1983 he refused a referral to Shaum Electric; on
13 September 1983 he was not at home when Respond-
ent's business manager , Burns, telephoned to offer him a
referral ; on 29 June and 18 July 1984 he refused referrals
to Burke Electric; on 16 August 1984 he refused a refer-
ral to Shaum Electric ; on 17 August 1984 Respondent
unsuccessfully tried to telephone him at home to offer
him a referral to the Newberry dam project ; and on 24
September 1984 he was not at home when Respondent
telephoned to offer him a referral . As was the case with
Killman Jr.'s employment register card , the record re-
veals that Kirk's card was altered by Business Manager
Burns who added entries to the card between the time it
was submitted to the Board during the investigation of
4 Kirk testified that the reason he registered on the out -of-work list,
even though he was employed by Southwest Forest, was "because if the
job I was on did not work out, I had another job to go to , maybe, or a
better job "
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case and when it was introduced into evidence
during this proceeding.
Kirk testified that when he was offered the Newberry
dam project referral in 1983, that he was informed by
Respondent it was for "temporary power" and might
only last 2 or 3 weeks . He testified that he refused this
referral "because I was under the impression that it was
a temporary and short time job, I did not want to leave
my employment-for a short job." It is undisputed, how-
ever, that in June 1984 Kirk submitted an affidavit to the
Board in connection with the Board 's investigation of
this case and in that affidavit , when explaining why he
refused the Newberry dam project referral , said nothing
about the length of the job , but merely stated , "I turned
the job down because at the time I was employed with
Southwest Forest Industries ." In addition , the record re-
veals that on 12 August 1983 , the date in 1983 on which
Kirk refused Respondent's referral to the Newberry dam
project, Respondent referred group 1 registrants Ken-
neth Johnson and Davidson Butte to the project and that
Johnson was still employed there on 6 July 1984 and
Butte was not laid off from that job until early January
1984.
Kirk testified that he did not know whether he would
have accepted Respondent 's 26 January 1984 referral to
the Newberry dam project, but further testified that if he
had been offered the referral he would have asked "how
long the job was going to last and what the pay scale
was." He testified that before accepting the referral and
quitting his job with Southwest Forest, as a minimum, he
would have had to be assured of 4 months ' employment
and an hourly rate of pay of $20 an hour .5 In his affida-
vit submitted to the Board in June 1984 , in connection
with the investigation of this case , Kirk gave an entirely
different answer to the question of whether he would
have accepted a January 1984 referral to the Newberry
dam project . The affidavit , in pertinent part, states, "Had
I gotten a call from Burns in January 1984 [referring to a
referral to the Newberry dam project] I would have
turned down the job because I was and still am em-
ployed by Southwest Forest."
Board Field Examiner Charlotte Malone testified that
subsequent to Kirk's June 1984 affidavit she spoke to him
over the telephone and questioned him again about
whether, during the period from January through March
1984, he would have accepted referrals to the Newberry
dam project . Malone testified that Kirk, in response to
her inquiries , replied that it would have depended on the
type of assurances he could have gotten about the length
of the job, but that when Malone asked him what assur-
ances he would have needed to accept the referrals, Kirk
was equivocal; he stated 6 months in one breath and I
year in the next.
s I note that Kirk testified that when an electrician employed in the
construction industry is told that he could expect to be employed on a
job for several months , it was a "gamble" to rely on such a representa-
tion . In this regard , he testified that , based on his l8 years of work expe-
rience, he felt there were no guaranteees against being laid off by a con-
struction industry employer , even when on its face a job appeared to be
for several months . He testified that accepting any job in the construction
industry is a "gamble ," and that a lot of electricians accept lower paying
jobs outside of the construction industry in order to obtain regular em-
ployment , and declared , "that's what I've done the last four years."
c. Gary Cliff
Cliff did not testify.6 The sole evidence concerning his
status during the time material , other than the fact that
he was registered on Respondent 's group 1 out-of-work
list and was the fourth applicant from the top of the list,
is that he was unemployed during the time material and
that on 3 April 1984 he was offered a referral by Re-
spondent to the Newberry dam project and accepted it.
Also during the investigation of this case , Cliff told an
agent of the Board , when asked whether he would have
accepted a referral to the Newberry dam project on 26
January 1984, if he had been offered that referral he
would have accepted it.
d. William Heck
Heck, a member of Respondent , lives in Flagstaff, Ari-
zona. On 15 November 1983, after having been unable to
get work for approximately 8 months, he went to work
as an electrician for Sighserex International in Saudi
Arabia and worked there until 24 January 1985
Sighserex paid Heck $41 an hour and doubletime for
working Saturdays and Sundays . It also paid all of
Heck's food , lodging , and transportation expenses. In
1984 Heck earned $125 ,000 working for Sighserex. In
November 1983 , when he first began to work in Saudi
Arabia , he was under the mistaken belief that all of his
earnings were tax free . It was not until approximately
May 1984 that he learned that only his first $80,000 of
earnings were tax free.
During the entire period of his employment in Saudi
Arabia, Heck, by mail, kept his registration current of
Respondent's group 1 out-of-work list .7 Respondent's
group 1 out-of-work lists for December 1983 through
June 1984 show that during this period Heck's name was
among the top five or six applicants registered on the
out-of-work list who were eligible for referral . Neverthe-
less, Heck and Burns testified that Respondent did not
contact Heck while he was employed in Saudi Arabia to
offer him a job referral . Burns also testified that while
Heck was employed in Saudi Arabia Burns never made
an effort to contact him there concerning a job referrals.
a Cliff, who the General Counsel subpoenaed to testify, notified the
General Counsel that he thought this proceeding was a "union busting"
proceeding and that he did not intend to honor the subpoena . The Gener-
al Counsel declined to enforce the subpoena . Respondent's counsel stated
that Respondent was satisfied with the record and did not desire on its
own behalf to subpoena Cliffs testimony. The parties , however, placed
into evidence certain parts of the prehearing affidavit Cliff had submitted
to the Board and stipulated that if Cliff had testified in this proceeding
his testimony would have been identical to the statements contained in
his preheating affidavit, which were placed into evidence.
' Rule 14 of Respondent 's posted hiring hall regulations states: "An ap-
plicant may be working in another jurisdiction and sign the books in this
local provided he furnishes the dispatcher with a number at which he
may be reached within a reasonable length of time."
8 I recognize that the employment register card that Respondent main-
tains for Heck contains notations made by Burns that indicate Burns was
unable to reach Heck with job referrals on three separate occasions, once
on 29 June 1984 and twice on 17 August 1984 , and that on 16 August
1984 Bums offered Heck a job referral to Shaum Electric , which he re-
fused . Burns , whenquestioned about these notations, admitted that the
telephone number on the registration card was Heck's Flagstaff, Arizona
phone number . When asked if he phoned Heck in Saudi Arabia about the
Continued
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
Heck testified that if Respondent had offered him a re-
ferral to the Newberry dam project on 26 January 1984
or in February 1984, he did not know whether he would
have accepted it. He testified that in deciding whether to
quit his job for Sighserex in Saudi Arabia and accept this
refusal, he would have considered the following: His
desire to establish a relationship with his son who was
apparently living with Heck's former wife;9 the expected
length of time that the Newberry dam project would
last;10 and the hourly rate of pay for working on the
project.
Regarding the 6 March 1984 referral to the Newberry
dam project, Heck testified that although he did not
know for a certainty whether he would have accepted it,
he testified that he would have been more inclined to
accept it than the January 1984 and February 1984 refer-
rals "because my contract was coming up and I could
have served my time and gone out ." This was apparently
a reference to the fact that he would have been em-
ployed by his Saudi Arabian employer for 6 months on
15 May 1984 and that when he was hired to work in
Saudi Arabia that his understanding with the employer
was that if after his arrival he found that the work envi-
ronment was satisfactory that he would work for 6
months at which time he could decide whether he de-
sired to stay for another 6 months.
Lastly, the record reveals that on 11 April 1985, when
Heck was questioned by a Board agent in connection
with the investigation of this case, that Heck stated that
during the period from January through March 1984 he
was available for job referrals and would have returned
from Saudi Arabia if Respondent had offered him a job
referral . However when an agent for the Board arranged
to meet with Heck for the purpose of having Heck sign
an affidavit stating this, Heck failed to keep the appoint-
ment.
e. Paul Eighmey
Eighmey , a member of Respondent who is a resident
of Flagstaff, Arizona, was available for employment
during February 1984, having been unemployed for sev-
eral months. He submitted an affidavit to the Board
during the investigation of this case in which he stated
that he would have accepted the 16 February 1984 refer-
job referrals noted on the registration card , Burns ' testimony can only be
characterized as vague and evasive . Eventually, Burns reluctantly testi-
fied that he never spoke to Heck while Heck was in Saudi Arabia and
testified that although he made three or four phone calls to other union
members who were employed there, none of these calls were connected
with job referrals . Finally, when questioned about the Shaum Electric job
referral , which the registration card indicated that Heck had turned
down on 16 August 1984, Burns testified that it was unlikely that such a
job offer was made to Heck on that date.
9 I note that because Heck lived in Flagstaff, Arizona, and the New-
berry dam project was in Page , Arizona , Heck would have been separat-
ed from his son Mondays through Fridays , at the very least, if he accept-
ed a referral to the dam project inasmuch as it was not within commuting
distance to Flagstaff.
10 Heck testified that based on his experience as an electrician in the
construction industry , he realized that Respondent was unable to guaran-
tee him the length of any job referral because regardless of the size of the
job an applicant being referred always lives with the possibility that he
can be selected for layoff at any time . He further testified, "there's no
guarantees in my trade" when it comes to the length of job referrals.
751
ral to the Newberry dam project , and gave identical tes-
timony during the hearing in this proceeding.
Respondent contends that the evidence warrants the
inference that even if Respondent on 16 February 1984
had offered the Newberry dam project referral to Eigh-
mey, that he would have refused it. The evidence relied
on by Respondent conflicts in a number of significant re-
spects with Eighmey's testimony. This evidence has been
set out hereinafter and when it conflicts with Eighmey's
testimony the conflicts have been resolved.
The person responsible for hiring the electricians em-
ployed by Newberry on the Newberry dam project was
Dave Deacon, the project's electrical superintendent,
who is a member of Respondent . As described in detail
infra, early in the seventies Eighmey filed an intraunion
charge against Deacon . Immediately following the hear-
ing conducted in connection with that charge, Deacon
confronted Eighmey and threatened his life if he ever
filed an intraunion charge against him again . Since that
confrontation, Eighmey and Deacon have never worked
with one another. There is no evidence, however, that
they ever had an occasion to work on the same job or
that Eighmey ever refused to work on a job that was
being supervised by Deacon or on which Deacon was
employed. Eighmey testified he would have accepted a
job referral to the Newberry dam project, despite his
confrontation with Deacon, because he had been out of
work for several months, and testified that he would
have told this to Deacon and assured him there would be
no problems if he worked and would have asked Deacon
if they could forget about their past differences and be
friends.
Since at least 1 June 1983, Eighmey has been regis-
tered on Respondent 's group 1 out-of-work list. Re-
spondent's business manager, Bums, testified that late in
October 1983 Eighmey visited him and asked about the
availability of work. Burns testified he told Eighmey,
among other things, that Deacon had been hiring men
sporadically for the Newberry dam project. In response,
Burns testified that "[Eighmey] said something to the
effect of, 'Daddy Dave,' and 'sort of grinned' and 'sort
of shook his head no."' Eighmey denied having a con-
versation with Burns in which Deacon 's name was men-
tioned. He also testified that the only conversation he
ever had with Burns about securing work from Respond-
ent's hiring hall was when, as described infra, he spoke
to him in June 1984 after having filed the unfair labor
practice charge in this case . Eighmey denied ever stating
to Burns that he would not work for Deacon or "Daddy
Dave." I have credited Eighmey's testimony and reject-
ed Burns' because Eighmey 's testimonial demeanor was
good , whereas Burns' was poor.
On 10 December 1983, during a meeting of Respond-
ent's membership being held that evening , Burns spoke
to Eighmey and offered him a referral to Shaum Elec-
tric, which Eighmey refused. Burns testified that he did
not mention the length of the referral and testified that
Eighmey stated his reason for refusing the referral was
that he was going to a gauge school in Texas . Eighmey
testified that Burns told him the referral was for 2 weeks
and that he did not give Burns any reason for his refus-
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al 11 I credit Eighmey's testimony and reject Burns' be-
cause Eighmey 's testimonial demeanor was good , where-
as Burns' was poor.
Mary Lou Slayton, an office clerical employed by Re-
spondent , testified that in December 1983 while talking
with Eighmey about the work situation , that she men-
tioned that the only employer in town who was hiring
electricians from Respondent 's hiring hall facility was
Shaum Electric and that there also had been some out-
of-town work at the Newberry dam project. Slayton tes-
tified that at the time of this conversation there were no
job referrals for Eighmey and that Eighmey as a matter
of fact was not asking for a job referral, but was just in-
quiring about the work situation in general . According to
Slayton, Eighmey responded to her assessment of the job
situation by stating that he was having trouble with his
knees, that one of them had previously been operated on
and that he needed to have surgery on the other one,
and because of the dampness of the tunnel at the New-
berry dam project that he could not work there, and told
Slayton he was going to Texas to attend a gauge school
and wanted to get into that line of work.
Eighmey testified that approximately 1 week after his
10 December 1983 refusal of the Shaum Electric referral,
while talking with Slayton, she mentioned there was
work at Shaum Electric and that there possibly might be
some work at the Newberry dam project. Eighmey testi-
fied in effect that he did not make the Pemarks about his
knees attributed to him by Slayton, but that while talking
with Slayton about the Newberry dam project he stated
that the dampness there would not affect him, but would
affect a person who had knee problems. t a Eighmey also
testified he told Slayton that he had been offered a refer-
ral to Shaum Electric on a Saturday night , referring to
the night Respondent 's 10 December 1983 membership
meeting was held, and, in his opinion , it was improper to
accept a referral at that time because Respondent 's hiring
11 Respondent's records show that group I out-of-work list registrants
Leslie Tacheene and Jim Lester went "out" to Shaum Electric on 12 De-
cember 1983 and that Tacheene was "in " on 24 January 1984 and Lester
was "in" on 10 January 1984. The record reveals that the references to
the dates they were "in" from the job could refer to either the dates they
re-registered on the out-of -work list or the dates they were terminated by
the employer . The group I out-of-work lists for the relevant period show
that Jim Lester (referred to on the out-of-work lists as "L. Jim") and
Leslie Tacheene never lost their respective places on the out-of-work list
as a result of their referrals to Shaum Electric , thus warranting the infer-
ence that these referrals were expected to be short referrals of no more
than 40 hours , inasmuch as Respondent 's posted hiring hall policy is that
a registrant loses his place on the out-of-work list if he accepts a referral
of more than 40 hours Although Bums testified that there are certain
limited exceptions to this policy , no evidence was presented to show that
either Tacheene 's or Lester's referral to Shaum Electric fits into one of
these exceptions.
' In 1974 Eighmey injured his left knee at work and surgery was per-
formed on it. As a result of a claim , which Eighmey filed with the State
of Arizona concerning this injury , in 1976 the State concluded that he
had suffered a "25% functional loss of the left leg " and awarded him
"permanent disability benefits" of $500 a month for 12-1 /2 months. Eigh-
mey testified that since 1983 he has never been incapacitated from per-
forming any work for physical reasons . There is no evidence that Eigh-
mey has been unable to work at his trade in the construction industry due
to his knee injury . Since 1980 Eighmey has been jogging at least 4 to 6
miles daily and also lifts weights and spends a significant amount of time
swimming.
hall was closed . 13 Eighmey also testified that he told
Slayton he had been selected by the Victor Torch Com-
pany to take a tour of its plant that was located in Texas
and that he had been waiting for a long time to take this
tour.14
I have credited Eighmey's above-described testimony,
rather than Slayton 's, because Eighmey 's testimonial de-
meanor, which was good , was better than Slayton's. In
evaluating their credibility, I have taken into account the
fact that Eighmey was an interested witness, whereas
Slayton, who was not employed by Respondent at the
time of the hearing, was a disinterested one. Eighmey,
however, seemed to me to be a sincere and conscientious
witness whereas my impression of Slayton was unfavor-
able.
Burns testified that on 23 April 1984 he telephoned
Eighmey and offered him a referral to the Newberry
dam project and that Eighmey refused the referral and
gave no explanation for his refusal . Burns' testimony is
corroborated by Eighmey's employment register card
which contains a notation in Bums' handwriting stating
in effect that on 23 April 1984 Eighmey refused Bums'
offer of a referral to the Newberry dam project. Eigh-
mey testified he received no such referral . His testimony
is corroborated by the fact that there is no notation on
his calendar for 23 April 1984 indicating that on that
date Respondent had offered him a job referral.15 I
credit Eighmey's testimony and reject Burns' because
Eighmey 's testimonial demeanor was good , whereas
Bums' was poor.16
On 25 May 1984 Burns telephoned Eighmey at ap-
proximately 11 a.m . and offered him a referral to the
Newberry dam project , which he refused . Burns testified
that he did not mention the length of the referral. Eigh-
mey testified that Burns told him it was a "two week
call." His testimony is corroborated by his handwritten
notation on his calendar for 25 May 1984 , stating that
"Burns called me for two weeks at dam 11:05 in the
morn."1 7 I have credited Eighmey 's and discredited
13 Respondent 's posted hiring hall rules state , "dispatching will begin
at 2pm or as soon thereafter as reasonably possible, monday through
friday."
14 The Victor Torch Company manufactures welding equipment at its
plant in Texas . One of Eighmey's hobbies for the last 10 to 15 years in-
volves working with welding equipment Also in 1982 he was employed
by a company to do work , which required that he use welding torches.
Several years ago he submitted an application to the Victor Torch Com-
pany asking that it consider him for the annual tour of its facility that is
given to several members of the public . In 1983 Victor Torch informed
him that he had been selected as one of the persons to take this tour, and
late in December 1983 Eighmey in fact toured the company 's facility.
The trip to Victor Torch Company's Texas facility , including the travel
time, lasted 2 days . While touring the plant, Eighmey demonstrated his
competency in using the company 's welding equipment and was issued a
certification stating that he was qualified to operate their welding equip-
ment.
15 Eighmey has a practice of making a notation on his home calendar
about various matters, including offers of job referrals and actual refer-
rals.
16 As I have noted elsewhere in this decision , it is clear that on at least
two occasions Bums altered applicants' employment register cards for
purposes of this litigation . Burns did not explain why he did this. Under
the circumstances, I was reluctant to give Burns' notation on Eighmey's
card any weight.
17 As noted supra , Eighmey has a practice of making written notations
on his calendar concerning referrals and other matters.
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
Burns' testimony because Eighmey 's testimonial demean-
or was good , whereas Burns' was poor. 18
Eighmey's credibility concerning his 25 May 1984 con-
versation with Burns is not impugned by the inconsisten-
cy between his testimony and the statement contained in
his prehearing affidavit about his reasons for refusing the
25 May referral to the Newberry dam project. Eighmey
testified he refused the referral because he would have
lost his place at the top of the out-of-work list and been
placed at the bottom of the list for taking what he had
been told was only a 2-week referral, 19 and that he
knew Burke Electric intended in the immediate future to
start constructing a motel in Flagstaff, and that this job
would last for approximately 5 or 6 months and he was
sure of being referred to it if he remained among the top
applicants on the out-of-work list. 20 Eighmey testified
that the fact that the referral was made to him outside of
the hiring hall's regular dispatch hours was not a reason
for his refusal, but testified that "he was just cautious" of
that fact. However, in a prehearing affidavit submitted to
the Board, Eighmey stated that he refused this referral
because it was only for 2 weeks and if he accepted it he
would have been placed at the bottom of the out-of-
work list, and also stated that another reason for his re-
fusal was that it was offered to him outside of the hiring
hall's regular dispatch hours. I am of the opinion that the
inconsistency between Eighmey 's testimony that he was
cautious about accepting the 25 May referral because it
was made to him outside of the hiring hall 's dispatch
hours is not the type of inconsistency , when viewed in
the context of Eighmey's good testimonial demeanor and
Burn's poor testimonial demeanor , which warrants the
18 Respondent's hinng hall records show that group I registrants
Begody , Byars, G. Charleston, Tacheene , Reeves, and Butte went "out"
to the Newberry dam project from Respondent 's hiring hall during the
period 29 May through 31 May 1984 . These dates are not the actual dates
on which Bums contacted the registrants and offered them the referrals.
Rather Burns apparently contacted them about the referrals several days
prior to the "out" dates written on Respondent's hiring hall records.
Thus, in the only instance where there is evidence of the date which ap-
pears on the referral slip given by Respondent to an applicant in connec-
tion with these referrals, the Begody's referral slip, the parties stipulated
that the Begody 's referral slip was dated 25 May 1984, even though, as
noted previously , Respondent 's hinng hall records state he went "out" to
the dam project on 29 May 1984. Under the circumstances , I find that it
was about 25-26 May 1984 that group I registrants Begody , Byars, G
Charleston , Tacheene , Reeves , and Butte accepted their referrals to the
Newberry dam project. The record also reveals that the Byar's, G.
Charleston 's, and Tacheene's referrals lasted approximately 7 to 10 days,
that Begody's referral lasted approximately I month , and that due to the
lack of an employer termination notice for Reeves and Butte, it is not
possible to determine whether their referrals were for a month or longer,
as Respondent's record indicates, or were for a shorter duration. The
foregoing circumstances , in my view , are not inconsistent with Eighmey's
testimony, nor do they otherwise discredit his testimony.
19 Respondent 's posted hiring hall policy is that applicants are moved
to the end of the out-of-work list if they accept a referral of more than 40
hours. Burns testified that he makes certain exceptions to this rule on an
ad hoc basis . There is no evidence , however, that Eighmey was aware of
this or reasonably should have known of this , or was advised that Burns
was prepared to make an exception to the usual rule in the case of his
referral.
20 Earlier in May 1984 Eighmey learned that Burke Electric intended
in the immediate future to start building a motel in Flagstaff and that the
job would last approximately 5 or 6 months . On 29 June 1984 Eighmey
was in fact offered a referral to this job by Respondent , which he accept-
ed. He worked on this job as the electricians' foreman for 5 months and
was paid $ 11 an hour.
753
rejection of Eighmey's and acceptance of Burn 's testimo-
ny.
Mary Lou Slayton, Respondent's office clerical, testi-
fied that on either Friday, 13 April 1984, or Friday, 11
May 1984, the day before Respondent 's monthly mem-
bership meeting, while having a casual conversation with
Eighmey, in the presence of Respondent 's vice president,
Eighmey mentioned he was having knee and back prob-
lems. Slayton testified that Eighmey stated that because
of these physical problems he hoped that perhaps some-
day he would be able to retire and live off of his income
and he intended to try to take his money out of Re-
spondent 's pension program in order to invest it more
prudently than it was currently being invested. Eigh-
mey's version of this conversation is that he casually
mentioned to Slayton that he had hurt his back the pre-
vious evening while exercising at the university and that
it was still very sore and also during this conversation
asked her whether it was possible for him to get a state-
ment showing the amount of pension benefits, which had
accrued to him, and asked whether an electrician could
get his pension benefits in one lump sum if he chose to
go to work in another trade , but told Slayton that be-
cause he was only 49 years old he doubted whether this
would be possible in his case . Eighmey also testified that
during this same period of time he asked Bums to get
certain information from the pension trust fund for him
pertaining to his pension benefits, and either Burns or the
pension trust fund wrote him a letter furnishing the in-
formation . Eighmey testified that when he spoke to
Burns and Slayton about his pension benefits it was not
with the intent of retiring from the trade at that time, for
he realized he was not old enough to retire, but it was
his intent to find out what options were available to him
in the future when he became eligible to retire. As I
have indicated supra, Eighmey's testimonial demeanor,
which was good, was better than Slayton 's. Accordingly,
I have credited Eighmey's testimony with respect to his
above-described conversation with Slayton.
On 1 June 1984 Eighmey filed the charge in this case.
The charge alleges that Respondent violated the Act "by
referring Boyd Hall and Jerry Killman to work for New-
berry Electric Company instead of properly referring
Paul Eighmey or other individuals to work for said em-
ployees."
About 1 June 1984, after filing the charge , but before
Burns received a copy, Eighmey visited Respondent's
office to examine Respondent's hiring hall records. While
there he spoke with Burns and advised him about the
filing of the charge . This much is not in dispute ; howev-
er, what was stated during the remainder of their con-
versation is in dispute . The testimony of Burns and Eigh-
mey is set forth immediately below.
Burns testified that Eighmey told him the reason he
had filed the charge was that he had been informed by
friends that Boyd Hall had been bragging that Bums in
referring Hall to the Newberry dam project had by-
passed Eighmey . Burns testified that Eighmey stated he
intended "to put a stop to it," and that when Burns asked
how the filing of the charge would put a stop to Hall's
bragging , Eighmey replied , "it just will ." Bums also tes-
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tified that he asked why Eighmey had filed a charge
when Burns, on several occasions , had offered him refer-
rals to the Newberry dam project , which Eighmey had
refused . Eighmey, according to Burns, did not answer
this question.
Eighmey testified that he told Burns he understood
that applicants who were registered below him on the
out-of-work list had bypassed him by being referred to
the Newberry dam project , and stated that he had been
told this by friends employed on that job, who had also
told him that individuals employed on that job had been
bragging about the money they were making and of
having bypassed other registrants on the out -of-work list.
Eighmey testified that he told Bums he was sick and
tired of hearing this and that when he asked whether
Bums had in fact bypassed him on the out-of-work list,
Bums responded by admitting he had "messed up" and
indicated to Eighmey that certain registrants had been
referred back top the Newberry dam project out of
order. Eighmey also testified that Burns stated he had
spoken in January 1984 to Eighmey about a referral to
the Newberry dam project, and that when Eighmey re-
plied that Burns had contacted him in May 1984, not
January 1984, Burns acknowledged Eighmey was cor-
rect.
I have credited Eighmey's above-described testimony
about his conversation with Burns and rejected Burns'
testimony because Eighmey 's testimonial demeanor was
good, whereas Burns' was poor.
On 11 June 1984 Burns telephoned Eighmey and of-
fered him a referral to Shaum Electric , which he refused.
Burns testified that he did not mention to Eighmey the
length of the referral . Eighmey testified Burns told him
that the referral was for a job, which was expected to
last 2 weeks, and that it paid $10 an hour . 21 I credit
Eighmey 's and reject Bums' testimony because Eigh-
mey's testimonial demeanor was good , whereas Burns'
was poor.
Eighmey testified that between 16 February 1984, the
date the backpay period began , and the date of the hear-
ing in this case , 20 February 1986, he worked for Burke
Electric for 5 months, starting on 29 June 1984, and
worked 6 days in December 1984 for PCI Instrument
Company , a Texas company , and took a 2-day referral
for Cochise Electric Company in November 1985, and
testified that these two jobs were within commuting dis-
tance of his home in Flagstaff.
Respondent did not question Eighmey about his efforts
to secure work during the backpay period or during any
period, but did question him at length about a business
operated by Shirley Eighmey, Eighmey 's wife . In this
regard the record reveals that Shirley Eighmey works
full time during the school year (8-1/2 months) as a reg-
istered nurse for the Flagstaff School District and since
21 Burns testified that the Shaum Electric referral was for the job' of
driving one of Shaum Electric 's service trucks and that every applicant
on Respondent 's out-of-work lists whom Burns offered the referral to,
turned it down . Burns further testified that in view of Respondent's in-
ability to fill the referral from its out -of-work lists , Shaum Electric was
permitted to hire someone for this job from off the street, and that the
person whom Shaum Electric hired was still employed by it in February
1986, when the hearing in this case was held.
the middle of 1982 has done business under the name of
Air Equipment Repair Company , repairing small torches
used for making jewelry . She has operated this business
in her name as a sole proprietorship . Paul Eighmey testi-
fied that his wife does all the work connected with the
business and that his only connection is to polish "a
torch or two" for something to do, and further testified
that he has never received any money from his wife's
business. There is no evidence that Eighmey has ever re-
ceived any money from this business . The record reveals
that for the calendar year 1984 the business lost money.
f. Roger Gage
Gage, a member of Respondent , lives in Flagstaff, Ari-
zona. From 12 November 1983 until he was laid off on 4
October 1984, he was employed as an electrician in
Saudi Arabia by Sighserex International.
Sighserex paid him $40 an hour for working a 60-hour
week and also paid for all of Gage 's food , lodging, and
transportation expenses.
During the entire period of his employment with Sigh-
serex in Saudi Arabia , Gage , by mail , kept his group 1
registration current on Respondent 's out-of-work list.
Gage testified that he kept his registration current "so
that I could get employment when I got back . . . if
there's a job that came up in Flagstaff I would have
work at home ." It is undisputed, however , that during
the approximately 11 months Gage was employed in
Saudi Arabia that Respondent never once contacted him
about a job referral or otherwise contacted him about
employment even though the record reveals that there
were several job referrals offered to other group 1 regis-
trants listed below Gage on the out-of-work list.
Gage testified he did not know whether he would
have accepted a referral from Respondent to the New-
berry dam project during the period from January
through March 1984. He testified that his sole consider-
ation in deciding whether to take such a referral would
have been whether he liked his job in Saudi Arabia, and
testified that because he did not like living in Saudi
Arabia , although he got along fine with his employer, he
"probably" would have accepted a referral to the New-
berry dam project , even though he would have had no
way of knowing the length of the referral.
During the Board 's investigation of this case, Gage
told a Board agent that he would have accepted a refer-
ral to the Newberry dam project during the time materi-
al if it had been offered to him . When the Board agent
then asked him to incorporate this statement in an affida-
vit, which he would sign and swear to, Gage refused to
meet with the Board agent to do this and refused to even
give the Board agent his address or state how he could
be contacted other than through Respondent.
g. Tom Manson
Manson did not testify . 22 The sole record evidence
concerning his status during the time material , other than
22 Respondent did not object to Manson 's failure to testify and did not
seek to subpoena him to testify
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
the fact that he was registered on Respondent's group 1
out-of-work register and was the eighth registrant from
the top, is that he was offered a referral to the Newberry
dam project in April 1984 by Respondent, which he ac-
cepted.
2. Discussion and conclusions29
a. The 26 January 1984 referral
On 26 January 1984 Respondent bypassed applicants in
referring applicant Boyd Hall to the Newberry dam
project. The first four applicants who were registered on
that date on the group 1 out-of-work list were Woodrow
Killman Jr., Dennis Kirk, Al McNulty, and Gary Cliff,
in that order. These applicants should have been offered
this referral in the order of their registration. Respondent
should have contacted or attempted to contact Killman
Jr., Kirk, and Cliff, in that order, on 26 January 1984
concerning the referral to the Newberry dam project.24
The question to be decided is which one of them would
have received this referral. Killman Jr. or Kirk, as con-
tended by Respondent, or Cliff, as contended by the
General Counsel.25 I find, for the reasons set forth here-
inafter, that Cliff would have received this referral.
The record establishes that Killman Jr. would not
have accepted the 26 January 1984 referral to the New-
berry dam project. The objective considerations, which
establish this, are as follows: (1) In order to accept the
referral, Killman Jr. would have had to quit his employ-
ment as an electrician with the Bechtel Corporation for
whom he had been employed for almost 4 years on a job
that paid him good money, $ 17 an hour. (2) On the date
of the referral Killman Jr. knew that electricians Jerry
Killman and Boyd Hall had only recently been laid off
from the Newberry dam project . (3) Killman Jr. com-
muted to and from his employment with Bechtel , where-
as he would have had to live in the vicinity of the New-
bery dam project, a substantial distance away from his
family, and pay the extra expenses for his food and lodg-
ings. (4) On 12 August 1983, when Respondent offered
Killman Jr. a referral to the Newberry dam project, he
turned it down.26 These factors, taken together, per-
23 In determining which of the applicants registered on Respondent's
group I out-of-work list on 26 January 1984, 16 February 1984, and 6
March 1984 should have received the referrals to the Newberry dam
project on those dates, I have presumed that, as required by its hiring
hall rules, Respondent would have offered the referrals to the applicants
in the order of their registration and that the applicants offered the refer-
rals would have accepted them and been employed on the project. It was
for the General Counsel or Respondent , as the case may be, to rebut
those on the out-of-work list, Respondent would not have offered the ap-
plicant the referral or, if offered , the referral would have been rejected
or, if offered and accepted, that Newberry would have refused to employ
the applicant.
24 It is undisputed that McNulty would not have been offered this re-
ferral because he had previously informed Respondent that he was un-
available for out-of-town work.
25 The significance to Respondent of the applicant 's identity is that if
the General Counsel prevails Respondent 's backpay liability will be sub-
stantially more than if Respondent prevails.
26 Killman Jr. testified that he "understood" that the 12 August 1983
referral would only last 2 weeks. However , Burns, who spoke to Killman
Jr. about this referral, did not corroborate his testimony, and Respond-
ent's hiring hall records show that the two applicants who Burns referred
to the project on 12 August 1983 worked there for several months before
755
suade me that Killman Jr. would have refused the 26
January 1984 referral to the Newberry dam project if
Respondent had offered it to him.27
In concluding that Killman Jr. would not have accept-
ed the 26 January 1984 referral, if it had been offered to
him, I have considered that during the Board 's investiga-
tion of this case, that Killman Jr. told the Board agent he
would have accepted the referral if it had been offered
to him, 2 s and that, when called as a witness by Respond-
ent in this proceeding, he likewise testified that he would
have accepted the referral if it had been offered to him.
However, the subjective and speculative nature of this
testimony-if Respondent approximately 2 years ago had
offered Killman Jr . a referral to the Newberry dam
project that he would have accepted it, even though it
would have meant quitting his job with another employ-
er that paid good wages and benefits and for whom he
had been working almost 4 years-makes it too unreli-
able, especially as the objective evidence indicates that
Killman Jr. would not have accepted the referral, and
there was a lack of objective evidence indicating that he
would have accepted the referral.29 I also note that in
addition to the highly subjective and speculative nature
of Killman Jr.'s testimony, it was given by someone who
was not a completely disinterested witness, inasmuch as
Killman Jr., besides being a member of Respondent, is a
member of its executive board.
The record establishes that Kirk would not have ac-
cepted the 26 January 1984 referral to the Newberry
dam project. The objective considerations , which estab-
lish this, are as follows: (1) To accept the referral, Kirk
would have had to quit his employment with Southwest
Forest for whom he had worked as an electrician for ap-
proximately 8 months on a job that paid him $29,000
during the calendar year 1984 . (2) Kirk commuted to and
from his employment with Southwest Forest, whereas he
would have had to live in the vicinity of the Newberry
dam project, a substantial distance away from his family,
and pay the extra expenses for his food and lodgings. (3)
On 12 August 1983 , when Respondent offered Kirk a re-
ferral to the Newberry dam project, he turned it
down.S° These factors taken together persuade me that
being laid off. Under the circumstances and because of my impression
from Killman Jr.'s testimonial demeanor that he was not telling the truth
when he testified that he understood the 12 August 1983 referral was for
only 2 weeks , I have rejected his testimony.
ar Because Killman Jr. was working for the Bechtel Corporation on 26
January 1984 , there is also a serious doubt whether Respondent would
have been able to reach him to offer him the referral In this respect, the
record reveals that in 1983 and 1984 Respondent tried to contact Killman
Jr. about referrals on six separate occasions and was only able to reach
him once.
2a The Board agent asked Killman Jr. to submit an affidavit under oath
incorporating his statement that he would have accepted the referral;
Killman Jr . in effect refused this request . He offered no explanation to
the Board agent for his refusal nor did he offer an explanation when he
testified in this proceeding.
29 The fact that Killman Jr., while employed by the Bechtel Corpora-
tion, registered on Respondent 's out-of-work list, and kept his registration
current, does not warrant the inference that he was interested in quitting
his job with Bechtel if he was offered a job referral. A more logical or
just as logical inference is that he wanted to stay at the top of the out-of-
work list in case Bechtel laid him off.
so Kirk's testimony that he refused the 12 August 1983 referral because
he was under the impression it was a "temporary and short time job," is
Continued
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kirk would have refused the 25 January 1984 referral to
the Newberry dam project if Respondent had offered it
to him.31
In concluding that Kirk would not have accepted the
25 January 1984 referral if it had been offered to him, I
have considered his testimony that he did not know
whether he would have accepted it if it had been offered
to him. However, as I have indicated supra , an appli-
cant's testimony about what he would have done almost
2 years ago if he had been offered a specific job referral
is so subjective and speculative that it is too unreliable to
have significant probative value , 32 especially when, as
here, the objective evidence contained in the record indi-
cates that the applicant (Kirk) would not have accepted
the referral, and there is a lack of objective evidence in-
dicating that he would have accepted it.33 Moreover, in
a prehearing affidavit that Kirk submitted to the Board,
he unequivocally stated that if Respondent had offered
him a referral to the Newberry dam project in January
1984, he would have turned it down because he was em-
ployed by Southwest Forest . When considered in the
context of the objective evidence , which indicates Kirk
would not have accepted the 26 January 1984 referral, I
am of the opinion that his prehearing affidavit is more
reliable than his testimony.
Having found that the record establishes that Killman
Jr. and Kirk would not have received the 25 January
1984 referral to the Newberry dam project , the question
is whether Cliff would have received this referral . In this
regard, the record establishes that Cliff would have been
offered the referral inasmuch as he qualified for it be-
cause he was registered on the group 1 out-of-work list,
and was the next available registrant after Killman Jr.
and Kirk , who, as I have found supra, would not have
received the referral . Also the record establishes that
Cliff would have accepted the referral because he was
not credible. In the prehearing affidavit that he submitted to the Board
Kirk did not mention the expected length of the referral as a reason for
his rejecting it; rather he merely stated , "I turned the job down because
at the time I was employed with Southwest Forest Industries ." More-
over, Burns , who spoke to Kirk about this referral, did not corroborate
his testimony, and Respondent 's hiring hall records show that the two ap-
plicants whom Burns referred to the project on 12 August worked there
for several months before being laid off. Under these circumstances, and
because of my impression from Kirk's testimonial demeanor that he was
not telling the truth when he testified that he understood the 12 August
referral was for only 2 weeks, I have rejected his testimony.
31 I also note there is a serious question whether Respondent would
have even offered Kirk the referral . In this regard, the evidence shows
that since October 1983 Kirk has been the second registrant from the top
on the group I out-of-work list eligible for referral , but that Respondent
did not contact or attempt to contact him for referrals from August or
September 1983 until 29 June 1984, even though Respondent during that
period was contacting and attempting to contact applicants registered
below Kirk on the group I out -of-work list
32 In addition to the highly subjective and speculative nature of Kirk's
testimony, I also note that it was presented by someone who was not a
completely disinterested witness. In this regard, the record reveals that
Kirk, besides being a member of Respondent , is a member of its executive
board.
as The fact that Kirk , while employed by Southwest Forest , registered
on Respondent 's out-of-work list, and kept his registration current, does
not warrant the inference that he was interested in quitting his job with
Southwest Forest if he was offered a referral . A more logical, or just as
logical, inference is that he wanted to stay at the top of the out-of-work
list for insurance purposes , namely, if he suddenly lost his job with
Southwest Forest or became dissatisfied with his employment there.
unemployed and less than 2 months later accepted a re-
ferral to the Newberry dam project. The aforesaid objec-
tive factors persuade me that the General Counsel has es-
tablished that Cliff would have received the 26 January
1984 referral to the Newberry dam project.
The backpay specification alleges that Cliffs backpay
period began 26 January 1984, the date he should have
been referred to the Newberry dam project and ended 26
September 1984, the date on which Newberry laid off
Boyd Hall, the applicant who improperly received the
referral . As I have indicated supra , on 3 April 1984 Cliff
accepted a referral from Respondent to the Newberry
dam project and was employed there from 3 April until
7 May 1984, when he was laid off. Respondent contends
that his layoff was tantamount to a voluntary quit. I
agree. I am also persuaded that Cliff's employment histo-
ry for the approximately 1 month he worked at the
project warrants the conclusion that if had been referred
to it earlier , on 26 January 1984 , that he would have quit
his employment there on 29 February , at the end of the
same number of days that he actually worked there after
his eventual referral . The circumstances surrounding
Cliff's 7 May 1984 termination and my reasons for con-
cluding that if he had received the 26 January 1984 re-
ferral he would have quit on 29 February are as follows.
It is undisputed that the work environment of the elec-
tricians who were employed at the Newberry dam
project was very dangerous because of the nature of the
work and that because of this, Cliff, from his first day of
employment , expressed his dissatisfaction with the job.
Subsequently , on approximately 3 or 4 May 1984, Cliff
told David Deacon , the project's electrical superintend-
ent, he intended to quit because of the dangerous work
environment and also mentioned that he thought that he
had another job lined up . Deacon responded by stating
there was a layoff of electricians scheduled in a few days
and that if Cliff remained on the job until then Deacon
would include him in the scheduled layoff. Cliff agreed.
On 7 May 1984 Deacon laid off Cliff with one or two
other electricians . Based on the foregoing , I find that the
record establishes that although Cliff was laid off he, in
effect voluntarily terminated his employment. -- -
Deacon testified Cliff was a good worker who would
not have been selected for layoff 7 May 1984 if he had
not told Deacon he intended to quit work if he was not
laid off. The record also reveals that electricians were
not laid off by seniority, but that they were selected by
Deacon for layoff based solely on their work perform-
ance.
Like most of the other electricians who were em-
ployed on the project during the time material to this
case, Hall and Cliff were assigned to a multitude of dif-
ferent tasks, as needed ; they were not permanently as-
signed to any particular job or jobs . (Tr. 224, 365-366.)
The General Counsel 's use of 29 September 1984 as
the cutoff date for Cliffs backpay period is presumably
based on the well-established legal principle that al-
though the use of Hall 's tenure of employment on the
project to measure the duration of Cliffs backpay period
is not free from uncertainty, that any uncertainty in this
respect should be resolved against the wrongdoer, the
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
Respondent , whose illegal referral of Hall on 26 January
1984, instead of Cliff, has made certainty impossible. I
am persuaded , however, that Respondent has presented
sufficient evidence to make a prima facie showing that if
Cliff had received the 26 January 1984 referral to the
Newberry dam project that he would have voluntarily
quit his employment there after approximately 1 month
because of the dangerous work environment , just as he
quit his employment there on 7 May 1984. In this regard,
the record shows that the project's inherently dangerous
work environment remained the same at all times materi-
al and that the work Cliff was assigned during his em-
ployment at the project was the same kind of work as-
signed to Hall during his tenure of employment there-
they were assigned a multitude of jobs wherever needed.
Under the circumstances , it is fair inference that if Cliff
had received the 26 January 1984 referral, instead of
Hall, just as was the case when he received his 3 April
1984 referral to the project, Cliff would have discovered
that the project's work environment was very dangerous
and, just as was the case after his 3 April 1984 referral,
Cliff would have decided to quit due to the dangerous
work environment after working approximately 1 month.
It is for this reason that I find Respondent 's backpay ob-
ligation in Cliffs case ended 29 February 1984, approxi-
mately 4 weeks after he would have received the 26 Jan-
uary 1984 referral to the Newberry dam project.34
In the alternative , in case I have erred in finding that
Respondent's backpay obligation toward Cliff ended 29
February 1984, I fmd that it ended 3 April 1984 when he
was eventually referred to the Newberry dam project. In
this regard, the record establishes that Cliffs work, work
environment , wages, and other employment benefits-his
terms and conditions of employment-while employed at
the project as a result of his 3 April 1984 referral were
the same as they would have been if he, instead of Hall,
had received the 26 January 1984 referral . Also, it is
plain from the record that the length of Cliff's 3 April
1984 referral , like the length of Hall 's 26 January 1984
referral , depended on how Electrical Superintendent
Deacon regarded their work performance in comparison
with other electricians employed on the job; if Deacon
believed Cliff's and Hall's work performances were
better than those of other electricians employed on the
project, they would have received lengthy referrals, as
Hall in fact did, if not, they would have been selected
for layoff. Under the circumstances , I find that the
record establishes that Respondent's 3 April 1984 referral
of Cliff to the Newberry dam project was sufficient to
restore the status quo ante in Cliffs case-other than his
loss of earnings from 26 January to 3 April 1984-and
terminated Respondent 's backpay liability.
94 I have considered that when Cliff told Deacon he was quitting be-
cause of the dangerous work environment , he also mentioned he thought
he had another job lined up . It is clear from the whole record , however,
that the motivating factor in Cliffs decision to quit was the dangerous
work environment . Although the evidence to this effect may not have
been overwhelming , it was sufficient , in my opinion , to make a prima
facie showing that the dangerous nature of the job would have caused
Cliff to quit , after working the same amount of time as he worked after
his 3 April 1984 referral , thereby requiring the General Counsel to call
Cliff to rebut this inference. As I have indicated, supra , Cliff refused to
testify.
757
In the alternative , in case I have erred in finding Re-
spondent's backpay obligation in Cliffs case ended either
on 29 February 1984 or on 3 April 1984 , I further fmd
that it terminated on 7 May 1984 , when he voluntarily
terminated his employment at the Newberry dam
project . For, as I have indicated supra, Electrical Super-
intendent Deacon regarded Cliff as a good worker
whom he would not have laid off, but would have con-
tinued to employ . The uncertainty about the duration of
Cliffs employment after 7 May 1984 was not caused by
Respondent 's conduct; rather, it was caused by Cliffs
conduct of quitting his job. Absent evidence to the con-
trary, I find that Cliff would have continued in New-
berry's employ at the project for the remainder of the
backpay period . In reaching this conclusion , I note that
the usual principles that apply when a discriminatee vol-
untarily terminates his interim employment are not appli-
cable in the instant situation . Here Cliffs employment at
the Newberry dam project from 3 April to 7 May 1984
constitutes something more than merely interim employ-
ment in the usual sense of that term . For, on 7 May 1984,
when he voluntarily terminated that employment, he was
employed by Newberry for whom , absent Respondent's
unfair labor practice, he should have been employed on
26 January 1984. The record reveals that his terms and
conditions of employment were no different during his
employment with Newberry from 3 April to 7 May 1984
from what they would have been if he received the 26
January 1984 referral.
In its answer to the backpay specification , Respondent
did not specifically allege , as I have found supra , that its
backpay liability in Cliffs case should end either approxi-
mately 1 month after the 26 January 1984 referral, inas-
much as he would have quit at that time if he had been
referred, or, in the alternative, on 3 April 1984, the date
he was eventually referred to the Newberry dam project;
rather it alleged in effect that its backpay liability should
end as of 7 May 1984 when Cliff, in effect , voluntarily
terminated his employment at the Newberry dam
project. Also, in their posthearing briefs, both Respond-
ent and the General Counsel agree that Cliffs backpay
period should end 7 May 1984 , when he voluntarily ter-
minated his employment at the Newberry dam project.
In view of the foregoing , I recognize that I can reason-
ably be accused of engaging in a frolic of my own in
concluding that Cliffs backpay period ended prior to 7
May 1984 . However, I am persuaded that the issues on
which my finding is based were fully litigated and that
under the particular circumstances of this case , including
Cliffs refusal to participate in this proceeding , it would
be inappropriate to extend his backpay period beyond
the period from 26 January through 29 February 1984.
b. The 16 February 1984 referral
On 16 February 1984 Respondent bypassed applicants
in referring applicant Jerry Killman to the Newberry
dam project . The first seven applicants who were regis-
tered on that date on the group 1 out-of-work list were
Woodrow Killman Jr., Dennis Kirk, Al McNulty, Gary
Cliff, William Heck , Paul Eighmey, and Roger Gage, in
that order . These applicants should have been offered
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this referral in the order of their registration . Respondent
should have contacted or attempted to contact Killman
Jr., Kirk, Heck, Eighmey, and Gage , in that order, on 26
January 1984 concerning this referral . a s The question to
be decided is which one of them would have received
this referral ; Killman Jr ., Kirk, Heck, or Gage, as con-
tended by Respondent , or Eighmey , as contended by the
General Counsel.36 I find , for the reasons set forth here-
inafter, that Eighmey would have received this referral.
The record, for the reasons I have set forth previously
in connection with my discussion of the 26 January 1984
referral , establishes that Killman Jr. and Kirk would not
have accepted the 16 February 1984 referral if Respond-
ent had offered it to them.
The record establishes that Heck would not have been
offered the 16 February 1984 referral and, even if it has
been offered to him , he would have rejected it. The ob-
jective considerations that establish this are as follows:
(1) Despite the fact that during his 14 months of employ-
ment in Saudi Arabia , from 15 November 1983 to 24 Jan-
uary 1985 , Heck's name was among the top five or six
registrants on the group 1 out-of-work list , Respondent
did not contact him or attempt to contact him about a
single job referral, even though Respondent was contact-
ing and attempting to contact applicants registered below
Heck on the out-of-work list about referrals .37 (2) In
order to accept the 16 February 1984 referral Heck
would have had to quit his employment as an electrician
for an employer for whom he had been working 3
months, and who paid him $41 an hour , twice as much
as would have been paid on the Newberry dam project,
and who also paid him for his food, lodging , and trans-
portation expenses; a s (3) Heck testified that his experi-
ence in the construction industry had taught him that
there were no guarantees in his trade with respect to the
length of the job referrals and testified in effect that he
realized he could have been abruptly laid off by New-
berry soon after quitting his Saudi Arabian job and ac-
cepting a referral to the Newberry dam project. These
factors taken together persuade me that Heck would not
have been offered the 16 February 1984 referral to the
Newberry dam project and that , in any event, if offered
the referral , would not have accepted it.
as It is undisputed that McNulty would not have been offered this re-
ferral because he had previously told Respondent he was unavailable for
out-of-town work . Also Cliff, who, I have found , should have received
the 26 January 1984 referral, would not have been available to accept this
referral.
86 The significance to Respondent of the applicant 's identity is that if
the General Cousnel prevails Respondent's backpay liability will be sub-
stantially more than if Respondent prevails.
84 Respondent's failure to explain why it failed to contact or attempt
to contact Heck about job referrals while he was employed in Saudi
Arabia, warrants the inference that its reason for not doing so was that it
reasonably believed he was not interested in a referral because of the
money he was being paid by his Saudi Arabian employer . I also note that
the logistics of Heck quitting his Saudi Arabian job and transporting him-
self from Saudi Arabia to the State of Arizona would have made it
almost impossible for Respondent to have expeditiously filled a referral
by offering it to Heck while he was employed in Saudi Arabia.
as Heck , who earned $ 125,000 from his employment during the calen-
dar year 1984 in Saudi Arabia , during the period of time material to this
case, January through March 1984 , believed, as I have previously noted,
that all these earnings were exempt from being taxed by the United
States.
In concluding Heck would not have accepted either
the 16 February 1984 or 6 March 1984 referrals to the
Newberry dam project, I have considered his testimony
that he did not know whether he would have accepted
these referrals, but that he would have been more in-
clined to accept a referral in March 1984 than in Febru-
ary 1984 . As I have done almost 2 years ago if he had
been offered a specific job referral is so subjective and
speculative that it is too unreliable to have significant
probative value, especially when, as here, the objective
evidence indicates that the applicant (Heck) would not
have accepted the referrals , and there is a lack of objec-
tive evidence indicating he would have accepted them.39
The unreliability of such testimony is illustrated in
Heck's case by the fact that in April 1985 , during the
Board 's investigation of this case , Heck unequivocally
told a Board agent that he was available for a job refer-
ral during the period of January through March 1984
and would have quit his job in Saudi Arabia if he had
been offered a referral during that time period . 40 Heck
failed to explain why, when he spoke to the Board agent
in April 1985 , he was so sure that he would have accept-
ed a referral and left his job in Saudi Arabia , whereas in
February 1986 , when he testified in this proceeding, he
was so uncertain about what he would have done.
The record establishes that Gage would not have been
offered the 16 February 1984 referral and that even if it
had been offered to him , he would have rejected it. The
objective considerations that establish this are as follows:
(1) Despite the fact that during his 11 months of employ-
ment in Saudi Arabia, from 12 November 1983 to 4 Oc-
tober 1984, that Gage's name was among the top regis-
trants in the group 1 out-of-work list eligible for referral,
Respondent did not contact him or even attempt to con-
tact him about a single job referral , even though Re-
spondent was contacting and attempting to contact appli-
cants registered below Gage on the out -of-work list
about referrals;41 and (2) in order to accept this referral,
Gage would have had to quit his employment as an elec-
trician for an employer for whom he had been working 3
months, and who paid him $40 an hour, almost twice as
much as he would have received for working at the
Newberry dam project , and who also paid him for his
food, lodging , and transportation expenses . These factors
39 The fact that Heck while employed in Saudi Arabia registered on
Respondent's out-of-work list, and kept his registration current , does not
warrant the inference that he was interested in quitting his Saudi Arabian
job and returning to the State of Arizona if he was offered a job referral.
A more logical, or just as logical, inference is that he wanted to stay at
the top of the out-of-work list in anticipation of the day when he was laid
off by his Saudi Arabian employer and had to return to Arizona and find
work there.
40 Heck refused to submit this statement to the Board agent in the
form of an affidavit given under oath.
41 Respondent's failure to explain why it did not contact or attempt to
contact Gage about job referrals while he was employed in Saudi Arabia
warrants the inference that the reason for not doing so was that it reason-
ably believed that Gage was not interested in a referral because of the
extraordinary amount of money he was earning in Saudi Arabia. I also
note that the logistics of Gage's quitting his Saudi Arabian job , and then
transporting himself from that country to the State of Arizona, would
have made it very difficult for Respondent to expeditiously fill a referral
to the Newberry dam project by offering it to Gage, while he was still
employed in Saudi Arabia.
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL) 759
persuade me that Gage would not have been offered the
16 February 1984 referral to the Newberry dam project
and that in any event, if offered the referral , would not
have accepted it.
In concluding that Gage would not have accepted
either the 16 February 1984 or 6 March 1984 referrals to
the Newberry dam project, I have considered his testi-
mony that he did not know whether he would have ac-
cepted these referrals , and his further testimony that be-
cause he did not like living in Saudi Arabia, although he
got along fine with his employer , that he "probably"
would have accepted them , even though he would have
had no way of knowing their length.42 As I have indi-
cated supra, an applicant 's testimony about what he
would have done almost 2 years ago if he had been of-
fered a specific job referral is so subjective and specula-
tive that it is too unreliable to have significant probative
value, especially when , as here , the objective evidence
indicates that the applicant (Gage) would not have ac-
cepted the referral, and there is a lack of objective evi-
dence indicating that he would have accepted it.43 The
unreliability of such testimony is illustrated in Gage's
case by the fact that during the Board 's investigation of
this case he unequivocally told a Board agent that if one
had been offered to him he would have accepted a refer-
ral to the Newberry dam project during the time materi-
al.44 Gage failed to explain why, when he spoke to the
Board agent during the investigation of this case, he was
so positive that he would have quit his highly lucrative
Saudi Arabian job in order to accept a referral to the
Newberry dam project, whereas in February 1986, when
he testified in this proceeding , he was so uncertain about
what he would have done.
Having found that the record established that neither
Killman Jr ., Kirk, Heck, nor Gage would have received
the 16 February 1984 referral to the Newberry dam
project, the question is whether Eighmey would have re-
ceived it. In this regard, the record establishes that Eigh-
mey would have been offered the referral inasmuch as he
was qualified for it because he was registered on the
group 1 out-of-work list, and was the next available reg-
istrant after applicants Killman Jr ., Kirk, and Heck, who,
as I have found supra , would not have received this re-
ferral. Also the record establishes that Eighmey would
have accepted the referral. Thus, he was unemployed
and when he discovered that Respondent had bypassed
him on 16 February 1984 by referring Jerry Killman he
filed the unfair labor practice charge in this case, which
42 Gage's testimony that he would have quit his job in Saudi Arabia,
which was paying him an extraordinary amount of money, in order to
accept a referral to a job that so far as he knew could have lasted only a
few weeks does not ring true.
49 The fact that Gage , while employed in Saudi Arabia , registered on
Respondent's out-of-work list and kept his registration current, does not
warrant the inference that he was interested in quitting his job in Saudi
Arabia and returning to Arizona if he was offered a job referral. A more
logical , or just as logical , inference is that he wanted to stay at the top of
the out-of-work list in anticipation of the day when he was laid off by his
Saudi Arabian employer and had to return to Arizona and find a job
there.
44 Gage refused to give to the Board agent an affidavit incorporating
this statement. Indeed he refused to even give the Board agent his ad-
dress or state how he could be contacted , other than through Respond-
ent.
in effect alleges that by engaging in this conduct Re-
spondent violated the Act.45 The aforesaid objective fac-
tors persuade me that the General Counsel has estab-
lished that Eighmey would have received the 16 Febru-
ary 1984 referral to the Newberry dam project.
In concluding that Eighmey would have received the
16 February 1984 referral , I have rejected Respondent's
contention that the record establishes Eighmey would
not have accepted it. In support of this contention Re-
spondent presented evidence that in the early seventies
Eighmey filed an intraunion charge against Deacon, the
project's electrical superintendent , at which time Deacon
threatened to kill him if he ever filed another such
charge; in 1974 Eighmey had surgery performed on his
left knee and the State of Arizona in connection with his
claim for compensation concluded that he had suffered a
"25% functional loss of the left leg"; that Eighmey re-
fused to accept referrals to the Newberry dam project on
22 April and 25 May 1984 and to Shaum Electric on 10
December 1983 and 11 June 1984 ; that in October 1983
Eighmey "sort of shook his head no " when Bums told
him that Deacon had been sporadically hiring men for
the Newberry dam project; that in December 1983 Eigh-
mey informed Slayton he was having problems with
both of his knees and would have to have surgery done
on the one that had not been operated on, and stated that
the dampness at the Newberry dam project made it im-
possible for him to work there, and that in view of his
physical disability he wanted to get into another line of
work and was going to Texas to attend a gauge school;
and, that in the spring of 1984 Eighmey told Slayton that
he was having knee problems.
The reasons I have rejected Respondent 's contention
that the above-described evidence is sufficient to estab-
lish that Eighmey would have turned down the 16 Feb-
ruary 1984 referral are as follows : The filing of Eigh-
mey's intraunion charges against Deacon and Deacon's
threat occurred at least 10 years before the events mate-
rial to this case and there is insufficient evidence from
which to infer that because of what happened between
them more than 10 years ago, Eighmey would have
turned down the 16 February 1984 referral , even though
he had been unemployed for several months; Eighmey
testified that despite the injury to his left knee he was
not physically incapacitated from performing work
during the time material , and the record as a whole does
not impugn his testimony .46 There is no evidence that
Eighmey has turned down a job because of his physical
condition or has turned down a referral to the Newberry
dam project because Deacon was the project's electrical
45 Respondent contends that in filing the charge Eighmey was not
upset about being bypassed by Jerry Killman on 16 February 1984, but
was only upset about the fact that he had been told that the applicant or
applicants who had bypassed him were bragging to other people about it.
This contention is based on Burns ' description of his 1 June 1984 conver-
sation with Eighmey about Eighmey's charge . However, as described in
detail supra, I have rejected Burns' version of this conversation in favor
of Eighmey's, who impressed me as a more credible witness.
49 The fact that since 1980 Eighmey has been jogging several miles
daily and also lifts weights regularly indicates that his left leg is not a
physical impediment to his working at his trade . I also note that there is
no showing that during the time material to this case that Eighmey was
not making a search for work in his trade in the construction industry.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent . As described supra, I have discredited
Burns' testimony that on 23 April 1984 Eighmey turned
down a referral to the Newberry dam project. As de-
scribed supra, I have concluded that Eighmey 's refusal
to accept the 25 May 1984 referral to the Newberry dam
project was not unreasonable in view of the fact that he
had been told by Bums it would be only a 2-week refer-
ral, which meant that if he had accepted it he would
have lost his place among the registrants at the top of
the out-of-work list . As described supra , I have discredit-
ed Burns' testimony that Eighmey "sort of shook his
head no" when Burns told him that Deacon had been
hiring applicants for the project . As described supra,
Eighmey did not refuse the 10 December 1983 and 11
June 1984 Shaum Electric referrals because of any physi-
cal disability , rather he was told in each instance that the
referrals were only for 2 weeks, which would have
meant that if he accepted he would have been moved
from the top to the bottom of the out-of-work list. And,
as described supra , I have rejected Slayton 's testimony
concerning her above-described conversations with
Eighmey.
Respondent's final contention concerning the 16 Feb-
ruary 1984 referral is that even if the evidence shows
that Eighmey would have received this referral Re-
spondent has established that Eighmey would not have
been hired by the employer . The evidence relevant to
this contention and an evaluation of the evidence fol-
lows.
David Deacon , Newberry's electrical superintendent,
was responsible for hiring the project 's electricians.
Deacon is a member of Respondent and was referred to
the project by Respondent . Early in the 1970s Eighmey,
who is also a member of Respondent , filed intraunion
charges against Deacon .47 Immediately following the
hearing concerning these charges, Deacon confronted
Eighmey outside the building where the hearing was
held and threatened to kill him if he ever filed charges
against Deacon again . Eighmey did not respond. Eigh-
mey's charges were ultimately found to be without merit.
Eighmey and Deacon , since the above-confrontation,
have not had an occasion to work with one another and,
until the hearing in this case, they have never come into
contact with each other except at Respondent 's member-
ship meetings , where they did not speak to one another.
Under the governing collective -bargaining contract,
Deacon could reject any applicant Respondent referred
to the project . However, Deacon did not reject any of
the approximately 20 applicants referred by Respondent
to the project . As a matter of fact, during his more than
50 years of employment in the construction industry as
an electrician , Deacon , while employed as a foreman or
superintendent , never rejected an applicant referred by
Respondent.
Deacon testified that if Eighmey had been referred
during the time material by Respondent to the Newberry
dam project Deacon would not have hired him because
he disliked Eighmey for having filed the above -described
intraunion charges against him , and because of "other
47 The record does not reveal the nature of these charges.
little incidents ."48 This testimony was qualified signifi-
cantly by Deacon , when he later testified that if Eigh-
mey had personally spoken to him and indicated he
needed a job and wanted to forget their past differences,
Deacon would have changed his mind about not employ-
ing Eighmey and would have hired him.
Eighmey testified he had a conversation with Deacon
during a recess in the hearing of this case , and that they
shook hands and talked about mutual friends and fishing
and jobs that were scheduled to begin in the future.
Eighmey testified that the tone of this conversation was
friendly . His testimony was undenied.
Burns, who testified as Respondent 's witness, was not
asked by Respondent 's counsel whether Deacon ever in-
dicated to him that he did not want Eighmey referred to
the Newberry dam project . When asked this question by
counsel for the General Counsel , Bums testified that
Deacon, during the early stage of the Newberry dam
project, indicated to him that he did not want Eighmey
referred to the project . It is undisputed that despite Dea-
con's alleged indication to him that he did not want
Eighmey referred to the project , Burns went ahead and,
on 25 May 1984, offered Eighmey a referral. Burns testi-
fied that the reason he ignored Deacon's statement was
because "[Deacon is] a little hot tempered . Later on you
can talk him into something different."
Deacon, who testified as Respondent's witness, was
not asked by Respondent's counsel if he had ever indicat-
ed to Burns that he did not want Eighmey referred to
the project. When asked this question by counsel for the
General Counsel, Deacon testified, "I can't tell you for
sure on that , but I may have said that . . . . I would not
want to say for sure on that."49 In his prehearing affida-
vit submitted to the Board under oath . Deacon stated, "I
never told the Union not to refer Paul Eighmey."
Burns' above-described testimony that Deacon told
him not to refer Eighmey to the Newberry dam project
is rejected because Burns' testimonial demeanor was
poor; his testimony was not corroborated by Deacon;so
and his testimony was contradicted by Deacon's prehear-
ing affidavit in which Deacon stated under oath that "I
never told the Union not to refer Paul Eighmey."
I am not persuaded that Respondent has established
that Deacon would have refused to employ Eighmey. As
described supra, Deacon testified that if Eighmey had
spoken to him about working on the damn project, after
receiving the referral , that Deacon would have changed
his mind about not employing him and would have hired
him. Consistent with Deacon 's testimony is the testimony
of Burns, that Bums thought that Deacon , who he de-
48 When asked to be more specific about the "other little incidents,"
Eighmey testified , "It's been so long I forgot them."
49 Because Deacon , in his long career as a foreman and superintendent,
never previously refused to employ an applicant referred by Respondent,
his professed inability to remember whether he indicated to Burns that he
did not want Respondent to refer Eighmey to the Newberry dam project
does not ring true.
ao Considering Deacon's poor testimonial demeanor and implausibility
of his professed inability to remember whether he had told a representa-
tive of Respondent not to refer Eighmey to the project , I am persuaded
that Deacon's preheanng affidavit given under oath , which states that "I
never told the Union not to refer Paul Eighmey ," is more reliable than
his testimony.
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL)
scribed as being "a little hot tempered," would have
changed his mind about not employing Eighmey be-
cause, as Burns testified, "you can talk him into some-
thing different." Moreover, there are several objective
factors that indicate it was more than likely that Deacon
would have hired Eighmey. These objective factors are
as follows: Eighmey's conduct that had caused Deacon
to dislike him occurred at least 10 years before the
events material to this case;51 there is no evidence that
during the intervening time that Eighmey said or did
anything to give Deacon any reason to view him with
disfavor;52 during his more than half a century in the
construction industry, Deacon never rejected an appli-
cant referred by Respondent to a job on which Deacon
was either foreman or superintendent and, in connection
with the Newberry dam project, Deacon did not reject
any of the approximately 20 applicants whom Respond-
ent referred, and did not inform Respondent that he did
not want Eighmey referred. The foregoing consider-
ations have persuaded me that Respondent failed to
prove that Newberry would have refused to employ
Eighmey on the Newberry dam project. Rather, the
record reveals that at most it is uncertain whether New-
berry would have refused to employ him. In this regard,
the law is settled that this uncertainty must be resolved
against the wrongdoer, Respondent, whose illegal refer-
ral of Jerry Killman instead of Paul Eighmey made cer-
tainty impossible. NLRB v. Miami Coca Cola Bottling
Co., 360 F.2d 569, 572-573 (5th Cir. 1966).
c. The 6 March 1984 referral
On 6 March 1984 Respondent bypassed applicants in
referring applicant Davidson Butte to the Newberry dam
project . The first eight applicants who were registered
on that date on the group 1 out-of-work list were Wood-
row Killman Jr., Dennis Kirk , Al McNulty, Gary Cliff,
William Heck, Paul Eighmey, Roger Gage , and Tom
Manson, in that order . Respondent should have contact-
ed or attempted to contact Killman Jr ., Kirk, McNulty,
Cliff, Heck, Eighmey , Gage, and Manson, in that order,
on 6 March 1984 concerning this referral . However, it is
undisputed that McNulty would not have been offered
the referral because he had previously informed Re-
spondent that he was not available for out -of-town work.
Also Cliff, who I have found would have received the
26 January 1984 referral , and Eighmey , who I have
found would have received the 16 February 1984 refer-
ral, would not have been available to accept the referral.
The question to be decided is which one of the above-
named applicants who were available for referral would
have received the 6 March 1984 referral. Killman Jr.,
B1 As a matter of fact , the intraunion charges filed by Eighmey against
Deacon were filed so long ago that Deacon testified, "I can 't even re-
member what they were."
68 Deacon's testimony that he disliked Eighmey because of "other
little incidents" in addition to his filing the intraunion charges is not cred-
ible. When asked to be more specific about the "other little incidents,"
Deacon testified , "It's been so long I forget them ." Deacon's testimonial
demeanor was poor and I received the impression from his demeanor that
it was not time that had dulled his memory , but that he had exaggerated
the basis for his dislike of Eighmey in an effort to aid Respondent 's case.
In any event, there is no showing that the alleged "other little incidents"
occurred after the filing of the intraunion charges.
761
Kirk, Heck, or Gage, as contended by Respondent, or
Manson, as contended by the General Counsel. I find,
for the reasons set forth hereinafter, that Manson would
have received this referral.
The record, for the reasons I have already set forth in
connection with my discussion of the 26 January 1984
and 16 February 1984 referrals, establishes that Killman
Jr., Kirk, Heck, and Gage would not have received the 6
March 1984 referral to the Newberry dam project.
Having found that the record establishes that Killman
Jr., Kirk, Heck, and Gage would not have received the 6
March 1984 referral, the question is whether Manson
would have received it. In this regard, the record reveals
that Manson would have been offered the referral inas-
much as he qualified for it because he was registered on
the group 1 out-of-work list, and was the next available
registrant after registrants Killman Jr., Kirk, Heck, and
Gage, who, as I have found supra, would not have re-
ceived this referral. Also the record shows that Manson
would have accepted the referral inasmuch as there is no
evidence that he was employed by another employer and
the evidence reveals that he in fact accepted a referral to
the Newberry dam project approximately 1 month later.
The aforesaid objective factors persuade me that the
General Counsel has established that Manson would
have received the 6 March 1984 referral to the New-
berry dam project.
B. Respondent's Contention That Neither Cliff,
Eighmey, nor Manson Made a Reasonably Diligent
Search for Employment During Their Backpay
Periods and That, in Any Event, Eighmey's Backpay
Should Be Reduced by the Amount He Would Have
Earned Had He Not Refused Referrals and Been
Available to Accept a Referral
In its answer to the backpay specification, Respondent
affirmatively alleged that neither Cliff, Eighmey, nor
Manson made a reasonably diligent search for suitable
employment during their respective backpay periods, and
further alleged that their backpay "should be tolled ac-
cordingly." This allegation is without merit. Respondent
did not question either Cliff, Eighmey, or Manson about
their efforts to secure employment during their respec-
tive backpay periods and there is otherwise insufficient
evidence in the record to establish that any of them
failed to make a reasonably diligent search for suitable
employment during their backpay periods.53 I therefore
find that this allegation is without merit.
as As I have noted supra , Cliff and Manson did not testify and Cliff
refused to comply with the requests of the General Counsel to be present
at the hearing in this case . However, Respondent did not object to their
absence or its inability to examine them about their efforts to secure em-
ployment during their respective backpay periods . Eighmey , who was ex-
amined by Respondent , was not questioned about his efforts to secure
employment during his backpay period , and to the extent that dung the
backpay period he refused to accept job referrals and was unavailable to
receive a referral, the record , as I have found infra , establishes that his
conduct was not unreasonable and does not demonstrate either a willful
loss of employment or a lack of reasonable diligence in seeking employ-
ment.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Likewise, I find without merit Respondent 's conten-
tion , as alleged in its answer to the backpay specification,
that Respondent's backpay liability in Eighmey's case
should be reduced by the amount of money he would
have earned during the backpay period if he had accept-
ed, instead of rejected, referrals to the Newberry dam
project on 23 April, 25 May, 29 May, and 31 May 1984,
and to Shaum Electric on 11 June 1984 , and had made
himself available on 5 June 1984 for a referral to an em-
ployer named Boyer . These contentions are without
merit for the following reasons.
There is no evidence that Respondent offered to refer
Eighmey to the Newberry dam project on either 29 May
or 31 May 1984 and, as I have found supra, Eighmey
credibly denied having received such an offer of referral
on 23 April 1984.
On 25 May 1984, however, Eighmey admittedly re-
jected Respondent's offer of a referral to the Newberry
dam project . As I have found supra, Eighmey was told
by Bums that this referral was for 2 weeks. Also, as I
have found supra, Eighmey 's principal reason for reject-
ing the referral was his reasonable belief that under Re-
spondent's hiring hall rules he would be moved from
among the top several registrants on the out-of-work list
to the very bottom of the list for taking what he had
been told was only a 2-week job referral, and this he be-
lieved would have prejudiced his chances of getting a 5-
to 6-month job referral to the Burke Electric motel job,
which was supposed to start in the immediate future.54
Eighmey's reaction was a reasonable one and, under the
circumstances, his rejection of the tendered job was fully
consistent with an inclination to work and be self-sup-
porting ; it does not establish a willful loss of employment
or a lack of reasonable diligence in seeking employment
during the backpay period.
Regarding the 11 June 1984 Shaum electric referral,
which Eighmey rejected, the record establishes, as I
have found supra, that Eighmey was told by Respond-
ent's business manager , Burns, that the referral was for
only 2 weeks. The referral, which was to work on a
service truck, was turned down by every applicant on
Respondent's out-of-work list who was offered it. Burns
testified that eventually Shaum electric had to hire some-
one off of the street to fill the position.55
The record shows, as I have found supra, that when
Eighmey rejected the 11 June 1984 referral to Shaum
Electric he reasonably believed that under Respondent's
hiring hall procedures he would have been moved from
among the top registrants on the out-of-work list to the
very bottom of the list for taking what he had been told
was only a 2-week referral and that this would have
prejudiced his chance of getting a 5- to 6-month referral
to the Burke Electric motel job, which was supposed to
start in the immediate future . 66 Eighmey 's reaction was a
54 As a matter of fact , as described supra , Eighmey did receive a 5-
month referral to the Burke Electric motel job on 29 June 1984.
56 Burns also testified that the person Shaum Electric hired to fill the
position was still employed by that employer as of the date of the hearing
in this proceeding.
66 As a matter of fact , as I have found supra , Eighmey did receive a 5-
month referral to the Burke Electric motel job on 29 June 1984.
reasonable one and, under the circumstances , his rejec-
tion of the tendered job was fully consistent with an in-
clination to work and be self-supporting ; it does not es-
tablish a willful loss of employment or a lack of reasona-
ble diligence in seeking employment during the backpay
period.
Regarding the 5 June 1984 job referral to Boyer, the
record reveals that on 5 June Burns telephoned Eighmey
for the purpose of offering him this job referral. Burns
was not able, however , to reach him . This referral was
ultimately offered to and accepted by group 1 registrant
Spencer Charleston who worked for the employer for
approximately 1 to 2 months.
As I have noted supra , Respondent did not question
Eighmey about his effort to secure interim employment
and failed to otherwise present evidence , which estab-
lished that Eighmey did not make a reasonable effort to
secure such employment . Under the circumstances, the
fact that during the backpay period that Eighmey was
not available on one occasion to receive Respondent's
offer of a referral to a job does not establish a willful loss
of employment or a lack of reasonable diligence in seek-
ing employment during the backpay period.
C. Respondent 's Contention That During the Backpay
Period Eighmey Was Employed on a Self-Employed
Basis or by an Unknown Employer
In its answer to the backpay specification , Respondent
alleged that the specification understated the amount of
Eighmey's interim earnings because it did not include his
earnings derived from his self-employment or from his
employment by an unknown employer . In support of this
allegation Respondent presented evidence , described in
detail supra , that Eighmey's wife owned and operated a
business, as a sole proprietor, which repaired small torch-
es used to manufacture jewelry, that she had operated
this business since the middle of 1982, that during 1984
she operated the business from a comer of Miller
Marine, a business owned by a very close friend of Eigh-
mey, with whom Eighmey visited on a daily basis.
Eighmey 's credible and uncontradicted testimony is
that his wife did all the work connected with the busi-
ness, that his only connection with it was to polish one
or two torches "for something to do," and that he never
received any money from the business . As a matter of
fact, the record reveals that the business lost money
during the calendar year 1984.
It is clear from the foregoing that Respondent's allega-
tion that Eighmey was either self-employed or employed
by an unknown employer and that the specification un-
derstates his interim earnings by not including his earn-
ings from this employment has no support in the record.
D. Conclusions
I have found that if Respondent had operated its
hiring facility in a lawful manner 26 January 1984 it
would have referred Garry Cliff, instead of Boyd Hall,
to the Newberry dam project ; on 16 February 1984 it
would have referred Paul Eighmey , instead of Jerry Kill-
man, to the project; and on 6 March 1984 it would have
ELECTRICAL WORKERS IBEW LOCAL 2148 (NEWBERRY INDUSTRIAL) 763
referred Tom Manson, instead of Davidson Butte, to the
project.
The backpay specification alleges and Respondent's
answer admits that Eighmey 's backpay period began 16
February 1984 , the date of Killman's referral, and ended
19 September 1984 , the date if Killman 's layoff, and al-
leges that Manson's backpay period began 6 March 1984,
the date of the Butte 's referral, and ended 23 March
1984, the date of Butte's layoff. Regarding Cliffs back-
pay period, there is no dispute that it began on 26 Janu-
ary 1984, the date of Hall's referral , but there is a dispute
about when it ended . I have found , supra, that Cliff
would not have remained employed on the Newberry
dam project from 26 January until 29 September 1984,
the date of Hall's layoff, as alleged in the specification;
rather, as I have found, supra, the record establishes that
on 29 February 1984 Cliff would have voluntarily quit
his employment.
As I have found supra, Respondent did not prove that
Cliff, Eighmey , or Manson incurred a willful loss of em-
ployment or failed to make a reasonably diligent search
for interim employment during their respective backpay
periods.
Last, there is no dispute about the method of computa-
tion and the computations contained in the backpay spec-
ification with respect to Cliffs, Eighmey's, or Manson's
gross backpay , interim earnings , and the amounts of
health and welfare and pension trust fund contributions,
which would have been made by Newberry on their
behalf during their respective backpay periods.
Based on the foregoing , I find that the amended back-
pay specification properly sets out Respondent's backpay
liability with respect to Eighmey and Manson , but be-
cause I have found that Cliffs backpay period, which
began 26 January 1984 , would have ended 29 February
1984, not 29 September 1984 , as alleged in the specifica-
tion, it is not possible for me to accurately compute
Cliffs net backpay or the amount of the health , welfare,
and pension contributions Respondent is obligated to
make on his behalf. I therefore shall recommend that the
parties resolve this matter by themselves , but if they are
unable to agree within a reasonable period of time about
Cliffs net backpay and about the amount of Respond-
ent's fringe benefit contributions owed on his behalf, the
Board's Regional Director should submit to me a revised
specification consistent with this Supplemental Decision
and Order.
[Recommended Order omitted from publication.]