Anthony Construction Co.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1095 (N.L.R.B. 2006)

PLUMBERS LOCAL 32 (ANTHONY CONSTRUCTION CO.)
346 NLRB No. 95
1095
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada, Local 32 (Anthony
Construction Co., Inc.) and William Stone. Case
19–CB–9181
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 9, 2005, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Association of Jour-
neymen and Apprenticed of the Plumbing and Pipefitting
Industry of the United States and Canada, Local 32, Ta-
coma, Washington, its officers, agents, and representa-
tives shall take the action set forth in the Order.
Susannah C. Merritt, Esq. and Irene Botero, Esq., for the Gen-
eral Counsel.
Richard H. Robblee and Jacob H. Black (Rhinehart & Rob-
blee), of Seattle, Washington, for the Respondent.
Michael J. Davis, Esq., of Tacoma, Washington, for William
Stone.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Seattle, Washington, on October 18, 2005. On
September 28, 2004, William Stone (Stone) filed the original
charge alleging that the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 32 (Respondent or the Union)
committed certain violations of Section 8(b)(1)(A) of the Na-
tional Labor Relations Act (the Act). Stone filed the amended
charge on November 2, 2004. On June 30, 2005, the Regional
Director for Region 19 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing against
Respondent, alleging that the Union violated Section 8(b)(1)(A)
of the Act by failing and refusing to provide Stone with a pho-
tocopy of the Union’s hiring hall’s welder out-of-work list.
Respondent filed a timely answer to the complaint, denying all
wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find that at all times material, Re-
spondent has been a labor organization within the meaning of
Section 2(5) of the Act.
Mechanical Contractors Association of Western Washington
(MCAWW) is a multiemployer association of employers en-
gaged in the mechanical contracting business including, inter
alia, Anthony Construction Co., Inc. (Anthony).
At all times material, Anthony has duly authorized
MCAWW to represent it in collective-bargaining negotiations
with the Union. Anthony in the course and conduct of its busi-
ness, annually sells and ships goods from its facilities within
Washington State, to customers outside Washington, or sells
and ships goods to customers within Washington, which cus-
tomers are themselves engaged in interstate commerce by other
than indirect means, of a total value in excess of $50,000. Ac-
cordingly, Respondent admits and I find that Anthony is en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At the times material, Respondent and the MCAWW were
parties to a collective-bargaining agreement, effective by its
terms from June 1, 2002, to May 31, 2005. The agreement
includes a hiring hall administered by the Union. Article I of
the hiring hall rules and procedures of the collective-bargaining
agreement requires signatory employers to obtain their employ-
ees performing plumbing and pipefitting work exclusively from
Respondent by means of a referral system operated by Respon-
dent. Respondent maintains several hiring hall lists pursuant to
rules and procedures set forth in the bargaining agreement.
The collective-bargaining agreement provides:
All Employers utilizing the Hiring Hall have the right to call
from the “A” List any person covered by this agreement.
However, for each person called for work in this manner, the
Employer’s next request for that craft must be filled from the
first available qualified person from the “A” List.
In June 2004, Stone, a member of Respondent-Union, was
registered on the hiring hall “A List” or out-of-work list for
welders. On June 8, when Stone went to check on his place on
the out-of-work list, he discovered that the computer where he
would normally see the out-of-work list was not working.
However, the most recent printed copy of the list was posted on
a bulletin board in the hiring hall. Stone found his name on the
list along with the names of 16 other welders. However, the
printed list included an additional column not shown on the
computer screen that Stone usually reviewed. The additional
column, not usually seen by persons viewing the list on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
computer, listed job classifications. Stone observed that every
welder on the list was classified as a steamfitter but that he was
classified as a pipefitter. Stone testified that pipefitters do not
have as much training as steamfitters and that he was concerned
that being classified as a pipefitter may have adversely affected
his employment opportunities.
Stone first expressed his concerns to the secretary. He asked
for a copy of the out-of-work list and was told that he could not
have one. Stone spoke with Wayne Steadman the Union’s
dispatcher. Steadman told Stone that he had corrected the mis-
take and that Stone was reclassified as a steamfitter. He tried to
explain that the mistake had made no difference because no-
body would normally see the classification and that employers
asked for, and were dispatched, welders. Stone asked for a pho-
tocopy of the out-of-work list, “for [his) records.” Steadman
answered that it was the Union’s policy not to supply photocop-
ies to anyone. In fact, the Union had a policy, in effect for at
least 4 years, prohibiting the photocopying, mailing, and/or
faxing of its out-of-work lists.
There is no dispute that the information desired by Stone was
posted on the bulletin board. Stone has never been denied ac-
cess to information regarding the out-of-work list. Under nor-
mal conditions, Stone or any employee or employer can access
the out-of-work list from the computer at the union hiring hall.
1

The Union contends that Stone, any employee, or any employer
is free to copy the out-of-work list. However, the Union con-
tends that in an attempt to lessen the amount of by-name re-
quests by employers, particularly out-of-town employers, it
requires employers to come in to the hiring hall to see the out-
of-work list. The Union will not read the list to an employer
over the phone nor will it fax a copy of the list. However, an
employer may come to the hiring hall and hand copy the list.
The Union states that it does not want employees to bring a
copy of the list to an employer in an attempt to solicit a job.
The Union prefers that the employers seek referrals from the
top of the out-of-work list rather than using by-name requests.
The Union’s position is that by refusing to photocopy its hiring
hall lists, the Union is discouraging employers from exercising
their contract rights to call employees by name. By refusing to
furnish photocopies to employees, the Union is preventing em-
ployers from obtaining photocopies of the out-of-work lists
from employees.
B. Analysis and Conclusions
Section 8(b)(1)(A) of the Act provides that it shall be an un-
fair labor practice for a labor organization “to restrain or coerce
. . . employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.” The proviso to Section 8(b)(1)(A) states that
the Section “shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or reten-
tion of membership therein.”

1 As stated earlier, on June 8, 2004, the computer was not working.
A union’s duty of fair representation includes an obligation
to provide access to job referral lists to allow an individual to
determine whether his referral rights are being protected. Oper-
ating Engineers Local 324, 226 NLRB 587 (1976); Boilermak-
ers Local 197, 318 NLRB 205 (1995). Thus, a union violates
Section 8(b)(1)(A) when it arbitrarily denies a member’s re-
quest for job referral information, when that request is reasona-
bly directed towards ascertaining whether the member has been
fairly treated with respect to obtaining job referrals. NLRB v.
Carpenters Local 608, 811 F.2d 149, 152 (2d Cir. 1987), enfg.
279 NLRB 747 (1986). When a member seeks photocopies of
hiring hall information because he reasonably believes he has
been treated unfairly by the hiring hall, the union acts arbitrar-
ily by denying the requested photocopies, unless the union can
show the refusal is necessary to vindicate legitimate union in-
terests. Carpenters Local 608, supra at 755–757. See also Car-
penters Local 35 (Construction Employers Assn.), 317 NLRB
18 (1995). The record shows that Stone reasonably believed
that he might not have been properly referred under the Union’s
hiring hall referral procedure and he requested photocopies of
the referral records. The record contains no evidence that the
request was overbroad that it would be burdensome to provide
the information, or that Stone’s concern about hiring hall pro-
cedures was unreasonable. Therefore, the burden shifts to Re-
spondent to show that its prohibition on photocopying served
some legitimate union interest. Boilermakers Local 197, 318
NLRB 205 supra; Local 102 (Millwright Employers Assn.), 317
NLRB 1099 (1995). See also Letter Carriers Branch 758
(Postal Service), 328 NLRB 952 (1999).
Respondent’s defense raised to its refusal to allow photo-
copying in this regard is that its no-photocopying rule discour-
ages employers from “cherry picking” from the out-of-work
list. In this context, cherry picking refers to an employer’s
practice of hiring only employees it wants from the list and
possibly avoiding employees it does not want, who may be at
the top of the list. Respondent relies on the Board decision in
Electrical Workers Local 3 (Fairfield Electric), 331 NLRB
1498, 1501 (2000). In that case, the complaint alleged that the
respondent-union violated the Act by posting the out-of-work
list without listing the names of applicants. The out-of-work list
posted in the hiring hall did not contain names of applicants,
only their numbers. The respondent-union contended that it
started posting the list without names because contractors and
their representatives were coming into the hall to see who was
at the top of the list before making a request for employees. If
they did not like the individual at the top, they would delay
their request until someone they wanted to hire reached the top
of the list. Although the posted out-of-work list only contained
the applicants’ referral numbers, the out-of-work books in
which employee-applicants registered contained their names
and numbers and that these books were available for review
and inspection at times other than when they were being used
by the referral officer for dispatch purposes. Thus, employees
had ample opportunity to review this information if they be-
lieved they were being treated unfairly with respect to obtaining
job referrals.
PLUMBERS LOCAL 32 (ANTHONY CONSTRUCTION CO.) 1097
The Board found that the respondent-union had a legitimate
reason for omitting names from the posted out-of-work list. In
this regard, I note that the Board found that the respondent-
union started posting the list with only the applicants’ referral
numbers because of the practice of some contractors of “cher-
rypicking” off the list. This reason was given to the employees
when they requested that names be posted on the out-of-work
list. The Board reasoned that “A union that operates an exclu-
sive hiring hall has a legitimate interest in ensuring that work
opportunities are available to all registrants and that employers
do not circumvent the hiring hall procedure in order to favor
some employees over others.” Accordingly, the Board dis-
missed this allegation of the complaint.
I find Electrical Workers Local 3 distinguishable. In the in-
stant case there is no evidence that employers sought to cir-
cumvent the hiring hall procedure. Rather, Respondent sought
to limit employers’ use of by-name requests which are provided
for in the collective-bargaining agreement.2 Respondent argues
that no-photocopying discourages employees from hustling
their own jobs. However, there was no evidence that such a
practice took place. Further, with hand copying of the list and
by-name requests permitted, employees could easily hustle
their own jobs. Most important, in Electrical Workers Local 3
the Board found that, additional information, the names of em-
ployees did not need to be posted and made available to em-
ployers, where the information was otherwise available to em-
ployees in the respondent’s books. Here, the information was
available to both employees and employers. The Union’s re-
fusal to make a photocopy did not serve a legitimate interest.
As stated earlier the right to photocopy is a corollary to the
right of access to referral records. When, as here, a member
seeks photocopies of hiring hall information because he rea-
sonably believes he has been treated unfairly by the hiring hall,
the union acts arbitrarily by denying the requested photocopies,
unless the union can show the refusal is necessary to vindicate
legitimate union interests. Boilermakers Local 197 (Northeast-
ern State Boilermaker Employers), 318 NLRB 205 at fn. 2
(1995); Operating Engineers Local 3 (Kiewit Pacific Co.), 324
NLRB 14 (1997). I do not find the Union’s desire in limiting
employers’ contractual use of by-name requests to qualify as
“necessary to vindicate legitimate union interests.” I note Re-
spondent is not being asked to give employees or employers
any additional information, it is simply being asked to give a
photocopy to an employee under circumstances where that
employee has a reasonable belief that he has been treated un-
fairly by the hiring hall. I therefore find and conclude that Re-
spondent violated the Act as alleged.
CONCLUSIONS OF LAW
1. Mechanical Contractors Association of Western Washing-
ton (MCAWW) is a multiemployer association of employers
engaged in the mechanical contracting business including, inter
alia, Anthony Construction Co., Inc. (Anthony).

2 It appears that if anyone was seeking to circumvent the agreed
upon hiring hall procedure it was the Union.
2. At all times material, Anthony has duly authorized
MCAWW to represent it in collective-bargaining negotiations
with the Union.
3. Anthony Construction Co., Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
4. United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local 32, is a labor organization within the meaning
of Section 2(5) of the Act.
5. Respondent violated Section 8(b)(1)(A) of the Act by de-
nying an employee request for a photocopy of referral records
of its exclusive hiring hall under circumstances where the em-
ployee had a reasonable belief that he had been unfairly treated
by the hiring hall.
6. Respondent’s acts and conduct above constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I recommend that Respondent be ordered to cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Upon the foregoing findings
of fact and conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I issue the following rec-
ommended:3
ORDER
The Respondent United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 32, Tacoma, Washington, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Denying requests for photocopies of referral records from
employees who are registered for referral from its exclusive hir-
ing hall and who reasonably believe they have been improperly
denied referrals.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
(a) Within 14 days after service by the Region, post at its hir-
ing hall, meeting rooms, and offices in Tacoma, Washington,
copies of the attached notice marked Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for Region
19 after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees and members are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material.
(b) Within 14 days after service by the Region, sign and re-
turn to Regional Director for Region 19 sufficient copies of the
notice for posting by the employer-members of Mechanical
Contractors Association of Western Washington (MCAWW) if
willing, at all places where notices to employees are customar-
ily posted. Further, Respondent-Union shall duplicate and
mail, at its own expense, a copy of the notice to employees and
members, to all former bargaining unit employees employed by
the employer-members of MCAWW at any time since June 8,
2004, and to all current bargaining unit employees employed at
any worksite at which the employer-members of MCAWW are
unable for any reason to post the notice to employees and mem-
bers.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT arbitrarily deny requests for photocopies of re-
ferral records from employees who are registered for referral
from our exclusive hiring hall and who reasonably believe they
have been improperly denied referrals.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed by Section 7
of the Act.
WE WILL provide William Stone with a photocopy of the
Welder’s referral list of June 8, 2004.
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CANADA,
LOCAL 32 (ANTHONY CONSTRUCTION CO.)