Associated General Contractors

National Labor Relations Board - Board Decisions

May 26, 2000

331 N.L.R.B. 259 (N.L.R.B. 2000)

LABORERS LOCAL 294 (AGC OF CALIFORNIA)

259
Laborers International Union of North America,
AFL–CIO, Local No. 294 (Associated General
Contractors of California, Inc.) and Donnell
Williams. Cases 32–CB–4457, 32–CB–4487, and
32–CB–4560
May 26, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On September 10, 1996, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
General Counsel filed exceptions and the Respondent
filed cross-exceptions and a supporting 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 record in
light of the exceptions, cross-exceptions, and brief and
has decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this Deci-
sion and Order.1
The judge found, inter alia, that the Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by dis-
patching three individuals out of order to jobsites,
thereby violating its contract with employers and the
published and posted rules governing operation of its
exclusive hiring hall.2 In so concluding, the judge, inter
alia, rejected the Respondent’s affirmative defense that
the Board should defer to two arbitration decisions. The
judge declined to defer because she found that the Spiel-
berg3 “fairness” criterion had not been met. For reasons
given below, we find deferral appropriate.
The consolidated complaint alleges that the Respondent
dispatched three individuals to jobsites, in violation of its
contract and hiring hall rules, and thereby bypassed other
employee-registrants who were entitled to the dispatch.
Specifically, the allegations concern the dispatch of Noah
Batts and Thomas Lucas to the Valley Fence job and the
dispatch of Kevin McDaniel to the Fresno Paving job.
The facts, as more fully set forth by the judge, may be
briefly summarized as follows. The relevant contractual
hiring hall provision generally provides that persons shall
be referred in the order in which they are registered on
the out-of-work list. There are certain exceptions under
which an employer may request that a specified individ-
ual be referred.
Regarding the Valley Fence dispatch, on September 6,
1995, David Cash, a part owner of Valley Fence, a sig-
natory to the contract with the Union, called Union Rep-
resentative Cook and asked him to dispatch two experi-
enced link fence builders. On the following day, Batts
and Lucas reported from the hiring hall. They did not
have referral slips with them. Later that day, Union
Representative Cook called Cash and stated that he
needed to request the dispatched individuals by name.
Cash replied that he had no names. Cook then faxed
Cash two dispatch slips. In return, Cash added a hand-
written notation to his letter of September 6, 1995, stat-
ing, “P.S. Artis Cook informs me that Noah Batts and
Thomas Lucas have substantial experience in chain link
fence construction. Based on this information I am re-
questing them at Central High School.” Cash faxed this
letter to Cook on September 7.

e letter as he did.

1 We modify the judge’s recommended Order in accordance with our
decision in Indian Hills Care Center, 321 NLRB 144 (1996). In addition,
in view of the violations that we find in this case, we conclude that a nar-
row cease-and-desist order, rather than the broad order recommended by
the judge, is appropriate, and we modify the Order accordingly.
2 The judge also found violations regarding certain conduct involv-
ing a fourth individual (Charging Party Williams). There is no arbitral
award as to these matters, and we affirm the judge’s findings.
3 112 NLRB 1080 (1955).
In regard to Fresno Paving, William Anderson, the
owner of Fresno Paving, a signatory to the contract with
the Union, called the hiring hall on July 20, 1995, and
requested that a raker be referred to the job on the
following day. According to Anderson, he did not
specify any particular employee by name. Kevin
McDaniel reported the following day with a dispatch slip
from the Union. On July 24, 1995, Union Representative
Cook called Anderson and asked him to send a written
request for McDaniel for the raker position. Anderson
complied, dating his letter July 20, 1995, the date of his
request for a raker. However, he actually sent the letter
on July 24. According to Anderson, Cook did not
request him to date th
The General Counsel alleges that other employees
should have been dispatched to the Valley Fence and
Fresno Paving jobs, and that by bypassing them, the Re-
spondent violated Section 8(b)(1)(A) and (2). The judge
found these violations.
In urging that the complaint allegations regarding the
dispatches be deferred, the Respondent introduced two
arbitration awards.4 In regard to referrals to the Valley
Fence job, employee-grievants Manual Molina and Roger
Stephenson filed grievances against Respondent Union.
They alleged that the Union, by dispatching Batts and
Lucas, had improperly bypassed them for referral. At the
arbitration proceeding, the employee-grievants were rep-
resented by independent counsel. The arbitrator ruled that
Molina and Stephenson were improperly denied referral
to the Valley Fence job to which Batts and Lucas were
referred. The arbitrator found that the employee-
grievants had lower numbers on the out-of-work list than
Batts and Lucas. Therefore, the arbitrator sustained the
grievance. As a remedy, the arbitrator awarded the griev-
ants the pay that Batts and Lucas received for their days
of work. Since both Batts and Lucas worked only 1 day
at Valley Fence before being laid off, the arbitrator
4 The awards were pursuant to the contract between the Respondent
and the Employers. An employee can arbitrate disputes with the union
if the dispute grows out of a claim grounded in the contract.
331 NLRB No. 28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

260
awarded the employee-grievants 1-day’s wages and bene-
fits at the same rate paid to Batts and Lucas.
Regarding referral to the Fresno Paving job, employee-
grievant Everardo Hernandez filed a grievance against
Respondent Union. Hernandez alleged that he had been
improperly bypassed for referral. At the arbitration hear-
ing, he was represented by independent counsel. The
arbitrator denied Hernandez’ grievance. The arbitrator
found that grievant Hernandez was not a qualified raker
and therefore was not entitled to any relief with respect
to the dispatch of McDaniel to the Fresno Paving job.
The arbitrator noted that the practice of the Union was to
dispatch individual registrants in order of the date regis-
tered, as long as the employees were registered on the
out-of-work list and had qualified themselves for the
position. The arbitrator found that grievant Hernandez
was not qualified on his registration as a raker. Thus, the
arbitrator concluded that the union’s dispatcher had
properly proceeded to the first qualified raker on the out-
of-work list (i.e., McDaniel).
Analysis
At issue is whether the Board should defer to the two
arbitration awards. To resolve this issue, we look to the
standards for deferral set forth in Spielberg Mfg. Co., 112
NLRB 1080 (1955), and Olin Corp., 268 NLRB 573
(1984). Under Spielberg/Olin, (1) the arbitration pro-
ceedings must have been fair and regular; (2) all parties
must have agreed to be bound; (3) the arbitral decision
must not be clearly repugnant to the Act; (4) the contrac-
tual issue before the arbitrator must be factually parallel
to the unfair labor practice issue; and (5) the arbitrator
must have been presented generally with the facts rele-
vant to resolve any unfair labor practice.5 Under Olin,
the burden of proof is on the party or parties who seek
nondeferral to the arbitration award.6
Here, the judge concluded that deferral to arbitration
was not appropriate. She focused on the “fairness” crite-
rion set forth in Spielberg. Finding a lack of fairness, she
declined to defer to the arbitration decisions. She found
it unnecessary to decide whether there was any other
basis for declining to defer to the arbitration awards.
In assessing fairness, the judge noted that where there
is hostility or an adverse interest between a union and the
employee/grievant, the Board will not defer. In regard to
hostility or adverse interest, the judge relied on cases
where the union represents the grievant before the arbi-
trator, and yet the union’s interests are adverse to the
grievant.7 However, in the instant case, the grievants

5 As set forth in Olin, the final two factors are reviewed to ensure
that the arbitrator has adequately reviewed the unfair labor practice
issue.
6 In the instant case, those parties are the General Counsel and the
Charging Party.
7 See, e.g., Ross Togs, Inc., 253 NLRB 767 (1980). There, the union
represented discharged employees in their grievances protesting their
discharge by the employer. Because the union’s interests were adverse
pursued grievances against the Union and were repre-
sented by independent counsel. Thus, while the union’s
interests were adverse to the grievants, the Union did not
represent the grievants. There is no showing that inde-
pendent counsel failed to fully support and advocate the
grievants’ positions and hiring hall rights.
The judge further suggested that the arbitrations were
not fair because the issues to be resolved were dependent
on the cooperation of the Union and access to the hiring
hall records. The judge thus implied that the arbitrator
rendered his decisions without the necessary records.
Based on our review of the arbitration awards, we find it
clear that the arbitrator had all the relevant records to
permit a fair resolution of the issues. There is no evi-
dence that any records were withheld. We note particu-
larly that the employee-grievants’ independent counsel
(and ultimately the arbitrator) had access to the out-of-
work list, which access gave counsel an opportunity to
demonstrate that registrants were dispatched out of order.
In these circumstances, we see no basis for finding that a
lack of relevant evidence prevented a fair resolution of
the issues.
Finally, the judge reasoned that fairness was lacking
because Charging Party Williams was not a party to the
arbitration proceedings. However, Williams’ rights and
interests were not shown to be at stake in the arbitration
proceedings. There is no allegation before us that Wil-
liams was improperly bypassed for referral. Thus, Wil-
liams was not a necessary party for purposes of the
Spielberg fairness criterion.
Based on the above, the proceedings before the arbitra-
tor appear to have been fair and regular. We conclude
that the Spielberg fairness criterion has been met. Ac-
cordingly, we reverse the judge on this issue.
Turning to the other Spielberg/Olin factors,8 we find as
follows. All parties to the arbitrations agreed to be bound
by those arbitrations. Again, as Charging Party Williams
was not a party to either arbitration, there is no issue re-
garding whether he agreed to be bound. The parties to
the arbitrations—the Respondent Union and the em-
ployee-grievants—agreed to be bound and the criterion is
satisfied.
The contractual issue before the arbitrator was factually
parallel to the unfair labor practice issue. The arbitrator, in
both cases before him, noted that the issue involved the
“application and interpretation of a collective–bargaining
agreement which regulates the hiring hall practices of the
Union and sets forth the rights of grievants to use that hiring
hall.” The arbitrator considered and resolved the issue of
whether the Union—in making dispatches to Fresno Paving
and Valley Fence—ignored the hiring hall rules and im-
properly bypassed other employee-registrants who were
more entitled to the dispatch. The General Counsel’s com-

to those of the employee-grievants, the Board refused to defer to the
arbitration awards.
8 We shall save for last our consideration of the repugnancy issue.
LABORERS LOCAL 294 (AGC OF CALIFORNIA)

261
plaint alleged that the Respondent Union, in violation of
Section 8(b)(1)(A) and (2), dispatched certain individuals to
jobsites “in violation of the Agreement and Rules, and
thereby bypassed other employee-registrants who were enti-
tled to such dispatch.” The General Counsel’s unfair labor
practice theory was based on an allegation that the Union
ignored the hiring hall rules in making the Valley Fence and
Fresno Paving dispatches. The critical point of both the
contractual grievance and the unfair labor practice was that
the Respondent Union violated the hiring hall rules in mak-
ing specific dispatches to Valley Fence and Fresno Paving.
Thus, the arbitrator considered substantially the same issue
as that raised by the General Counsel’s complaint.
The arbitrator also had before him and reviewed the
same facts that would be relevant to the unfair labor prac-
tice. As reflected in his arbitral awards, the arbitrator re-
viewed the contract, the hiring hall rules, and the out-of-
work list. Significantly, employer officials from Fresno
Paving and Valley Fence testified at the arbitration pro-
ceedings regarding the circumstances of the dispatches.
Thus, witnesses who were not a party to the arbitrations
provided a full factual account of the dispatches. Other
critical facts—all before the arbitrator—provided a basis
for determining who was dispatched from the hiring hall,
where those dispatched individuals were on the out-of-
work list, what the circumstances of the dispatches were,
and whether the grievants were lower on the out-of-work
list and nonetheless bypassed for referral. The arbitrator’s
awards demonstrate—and the General Counsel has not
established otherwise—that the arbitrator had full access to
these relevant facts and that he fully considered the same
facts as those that would be relevant to resolving the unfair
labor practice.
Finally, there is the difficult issue of repugnancy. The
“clearly repugnant” standard does not require that the arbi-
trator’s award be totally consistent with Board precedent.
Rather, the Board will refuse to defer if an arbitrator’s deci-
sion is “palpably wrong” and “not susceptible to an inter-
pretation consistent with the Act.” See Olin, supra.
As noted, the arbitrator denied the grievance in the Fresno
Paving referral. The arbitrator concluded that it was:

the practice of the [Union] to dispatch individuals in
order of their position on the out-of-work list based on
their qualifications. Since Mr. Hernandez was not
qualified as a raker, it was appropriate for [the Union]
to skip over Mr. Hernandez and proceed to the first
person on the out-of-work list who was qualified.

In resolving the grievance, the arbitrator specifically found
that the Union in fact dispatched the first qualified raker.
Thus, the arbitrator concluded that the Union ultimately
complied with its hiring hall rules and no registrant entitled
to a dispatch was bypassed. In these circumstances, the
award was not clearly repugnant to the purposes and poli-
cies of the Act.9
The Valley Fence arbitration award is more trouble-
some. As noted, the arbitrator sustained this grievance.
He found that the Union, in dispatching to this job, ig-
nored the hiring hall rules and improperly bypassed the
grievants who were lower on the out-of-work list and
therefore entitled to the dispatches. The arbitrator’s find-
ing of a contractual violation was substantially the same
as the 8(b)(1)(A) and (2) violation sought by the General
Counsel. Thus, the arbitral award’s finding of a violation
of hiring hall rules is certainly not clearly repugnant to
the purposes and policies of the Act.10
However, there is a substantial issue regarding whether
the arbitrator’s remedy is repugnant to the Act. Deferral
may be appropriate even where an arbitrator has not im-
posed the same remedy that the Board would impose.
Here, the question is whether the Valley Fence award’s
remedy is repugnant because it may not extend to those
registrants most entitled to a remedy. That is, the arbitra-
tor noted—as do we—that the two grievants in the Val-
ley Fence arbitration, while lower on the out-of-work list
than those dispatched, were not the lowest on the list.
Thus, there may have been other registrants on the out-
of-work list who were more entitled to the dispatch than
the grievants.
In American Commercial Lines, 291 NLRB 1066,
1072–1076, and fn. 44 (1988), the Board found deferral to
arbitration inappropriate. In so doing, the Board reasoned
that the remedial portion of an arbitration board’s award—
which dealt with alleged employer violations of hiring hall
requirements—was “arbitrarily limited.” The arbitration
board had sought to remedy only alleged hiring hall viola-
tions occurring during the term of the parties’ contract.
The arbitration board viewed its authority as limited by the
contract’s expiration date and it did not address post-
contract violations. However, the Board had before it the
issue of postcontract statutory violations and the Board
was called on to remedy those violations. Given the “arbi-
trary” nature of the arbitration board’s remedy, the Board
found it inappropriate to defer to the arbitration award.
Nonetheless, the Board added that it would not automati-

9 In ruling on the merits of the General Counsel’s allegation regarding the
Fresno Paving dispatch, the judge found a violation of Sec. 8(b)(1)(A) and
(2). Essentially, the judge relied on Union Representative Cook’s soliciting
a request for a name dispatch from Fresno Paving. The judge found that
Cook’s action was contrary to the hiring hall rules. However, in our view,
the arbitrator could reasonably conclude from the same facts that the Union
complied with the hiring hall rules. That is, regardless of Cook’s solicita-
tion, the Union ultimately dispatched the proper individual pursuant to the
hiring hall rules. As the Board observed in Andersen Sand & Gravel Co.,
277 NLRB 1204 fn. 6 (1985):
Deferral recognizes that the parties have accepted the
possibility that an arbitrator might decide a particular
set of facts differently than would the Board. This
possibility, however, is one which the parties have
voluntarily assumed through collective bargaining.
10 The judge’s finding of a statutory violation was parallel to the ar-
bitrator’s finding of a contractual violation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

262
cally refuse to defer to arbitration awards that contain in-
complete remedies or remedies otherwise not fully consis-
tent with Board precedent.11
On the other hand, in Specialized Distribution Man-
agement, 318 NLRB 158 (1995), the Board deferred to
an arbitrator’s award involving the discharge of employ-
ees. The arbitrator, finding a contractual violation,
awarded reinstatement but no backpay. In excepting, the
General Counsel argued, inter alia, that the arbitrator’s
failure to grant backpay rendered the decision repugnant.
The Board affirmed a judge’s conclusion that the arbitra-
tor’s remedy did not make deferral inappropriate.12
Having carefully considered this matter, we cannot
conclude that the arbitrator’s remedy in the Valley Fence
arbitration was clearly repugnant to the Act. First, regis-
trants Molina and Stephenson, the two grievants in the
Valley Fence case, were part of the same class of persons
as those for whom the General Counsel would seek a
remedy. That is, they were hiring hall registrants who
were lower on the out-of-work list and more entitled to a
dispatch than the individuals dispatched. Second, on the
record before us, we simply do not know if any other
employee-registrant lost work because of the union’s
Valley Fence dispatches. Although there were regis-
trants lower on the out-of-work list than the grievants, we
do not know if any lower-down registrant was in fact
qualified13 and available for work at Valley Fence and
would have accepted a dispatch. Thus, on this record, it
is speculative whether any other registrant is more enti-
tled to a remedy than the grievants. Unlike in American
Commercial Lines, supra, we cannot conclude here that
the arbitrator’s remedy was “arbitrarily limited.” In
American Commercial Lines, the General Counsel estab-
lished before the Board that there were in fact statutory
violations not remedied by the arbitration board’s award.
Here, the General Counsel has failed to demonstrate any
statutory violations that have not been remedied. The
General Counsel has not shown that any other hiring hall
registrant, who was lower on the hiring hall out-of-work
list than grievants Molina and Stephenson, was qualified

11 For a similar result, see also Cone Mills Corp., 298 NLRB 661
(1990). (The Board found repugnancy and declined to defer to arbitration.
The Board noted, inter alia, that the arbitrator’s decision was “inherently
inconsistent” and failed to award backpay to a discharged employee.)
12 For a similar result, see Crown Zellerbach Corp., 215 NLRB 385
(1974). (The Board deferred to arbitration and rejected the General
Counsel’s argument that an arbitral award was repugnant because its
backpay remedy did not “measure up” to Board standards.)
See also Malrite of Wisconsin, 198 NLRB 241 (1972), enfd. in rele-
vant part 494 F. 2d 1136 (D.C. Cir., 1974). There, the Board deferred
to arbitration. An arbitration panel sustained a union grievance filed
against an employer. However, the employer failed to comply with that
award. The Board rejected the General Counsel’s argument that defer-
ral was inappropriate because of the employer’s noncompliance with
the award. Here, there is no allegation that the Respondent has failed to
comply fully with the arbitrator’s Valley Fence award.
13 As previously noted, Valley Fence requested experienced link fence
builders. In sustaining the Valley Fence grievance, the arbitrator found that
grievants Stephenson and Molina were experienced fence builders.
and available to accept the Valley Fence dispatch. As the
party seeking nondeferral has the burden of showing re-
pugnancy, we conclude that the burden has not been met.
Accordingly, we shall defer to the arbitrator’s awards.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Laborers International Union of North
America, AFL–CIO, Local No. 294, Fresno, California,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing to fairly represent employees and job refer-
ral applicants utilizing the hiring hall by implying that it
would not dispatch Donnell Williams from the Visalia
subhiring hall in retaliation for a statement he made re-
garding operation of that subhiring hall.
(b) Failing to fairly represent employees and job refer-
ral applicants utilizing the hiring hall by refusing to per-
mit Williams to examine the Fresno hiring hall dispatch
book for the preceding 3 months.
(c) Failing to fairly represent employees and job refer-
ral applicants utilizing the hiring hall by refusing to per-
mit Williams to examine and take notes from the busi-
ness agent reports.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Respond timely, fairly, and completely to requests
for relevant information from represented employees or
referral applicants concerning the referral process and
requests to take notes from referral documents. Re-
sponses to such requests shall:
(i) Indicate whether the information sought exists or
not and, if not, what information and or records do exist.
(ii) Provide any additional information or explana-
tion necessary to not mislead or unreasonably confuse
the requesting individual regarding the information re-
quested, and
(iii) Provide information concerning copies of and/or
access to all requested information which is relevant to
employee and or referral applicant management of their
affairs respecting their current or potential employment
in a represented unit.
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying job registration and referral records and any
other documents or records showing job referrals and
14 Member Hurtgen has substantial doubts concerning the procedural is-
sues of: (1) whether the General Counsel properly raised the issue of “re-
pugnancy” before the judge, and (2) if it was so raised, whether it was
properly raised by exceptions to the Board. However, on the merits, he
agrees with the disposition of the “repugnancy” issue, i.e., he agrees that
the General Counsel has not established “repugnancy.” Accordingly, he
does not pass on the procedural issues.
LABORERS LOCAL 294 (AGC OF CALIFORNIA)

263
work assignments, and the basis for making such refer-
rals and assignments of members, employees, job appli-
cants, and registrants, which are necessary to compute
and analyze the amount of backpay and benefits due un-
der the terms of this Order.
(c) Within 14 days after service by the Region, post at
its business offices, hiring halls, and meeting places in
Fresno and Visalia, California, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

After a trial before an administrative law judge at
which we appeared, argued, and presented evidence, the
National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and ordered us to
post and abide by this notice.
Accordingly, we give our members and job referral
applicants the following assurances:
The National Labor Relations Act provides that a labor
organization which operates a hiring hall or referral
process which is an exclusive source of employment re-
ferrals to positions with employers and which represents
employees of employers must fairly represent such em-
ployees by referring them for jobs in a manner consistent
with the contract and with the hiring hall rules without
acting arbitrarily, discriminatorily, or in bad faith and by
providing them with: (1) requested information concern-
ing the operation of the hiring hall, its rules, procedures,
and such other information as is necessary to determine
the requesting individual’s position or priority of dis-
patch within the referral system and to further determine
whether the referral process is being operated properly
and (2) an opportunity to take notes from dispatch re-

allegations that the Union has violated Section 8(b)(1)(A) and
15 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.”

cords when an employee reasonably believes that dis-
patches have been improper.
WE WILL NOT fail to fairly represent employees and
job referral applicants utilizing the hiring hall by imply-
ing that we would not dispatch Donnell Williams or any
other employees from the Visalia subhiring hall in re-
taliation for a statement he made regarding operation of
that subhiring hall.
WE WILL NOT fail to fairly represent employees and
job referral applicants utilizing the hiring hall by refusing
to permit Donnell Williams to examine the Fresno hiring
hall dispatch book for the preceding 3 months.
WE WILL NOT fail to fairly represent employees and
job referral applicants utilizing the hiring hall by refusing
to permit Williams to examine and take notes from the
business agent reports.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL fairly, timely, and completely respond to
requests for information from users of our referral proc-
ess concerning the rules governing and the general opera-
tion of our referral process, explaining as necessary what
records exist and do not exist, so as to allow users to un-
derstand the process, determine where their position in
the dispatching process is and determine how the process
has operated and WE WILL permit users of our referral
process to take notes from these records.
LABORERS INTERNATIONAL UNION OF NORTH
AMERICAN, AFL–CIO LOCAL NO. 294

Barbara D. Davison, Esq., for the General Counsel.
Paul D. Supton, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in Fresno, California, on July 9, 1996. The
charge in Case 32–CB–4457 was filed by Donnell Williams, an
individual, against Laborers International Union of North
America, AFL–CIO, Laborers Local No. 294 (the Union or the
Respondent) on April 17, 1995,1 and complaint issued on May
24. The charge in Case 32–CB–4487 was filed by Williams
against the Union on July 5, and the complaint issued on Au-
gust 7, together with an order consolidating it with Case 32–
CB–4457. A bilateral settlement agreement in Cases 32–CB–
4457 and 32–CB–4487 was approved on October 17. The
charge in Case 32–CB–4560 was filed by Williams against the
Union on February 9, 1996. Approval of the bilateral settle-
ment agreement was rescinded on March 21, 1996, and an or-
der consolidating Cases 32–CB–4457, 32–CB–4487 and 32–
CB–4560 and a reissued, consolidated complaint issued that
date.2 Set forth in the consolidated complaint are various
1 All dates are in 1995 unless otherwise indicated.
2 Cases 32–CB–4126 and 32–CB–4228 were consolidated with Cases
32–CB–4457, 32–CB–4487, and 32–CB–4560 by order of March 21, 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

264
gations that the Union has violated Section 8(b)(1)(A) and (2)
of the Act in the operation of its exclusive hiring hall by failing
to permit Williams to examine dispatch books, implying that
Williams would not be dispatched in retaliation for his state-
ment regarding operation of a hiring hall, bypassing registrants,
and preparing a false dispatch request.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the counsel for the General Counsel and counsel for the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Associated General Contractors of California, Inc. (the Asso-
ciation) has been an organization composed of various employers
engaged as contractors in the construction industry, one purpose
of which is to represent its constituent employer-members in ne-
gotiating and administering collective-bargaining agreements with
various labor organizations, including the Northern California
District Council of Laborers. During the 12 months preceding
March 21, 1996, the constituent employer-members of the Asso-
ciation collectively purchased and received goods or services
valued in excess of $50,000 directly from suppliers located out-
side the State of California. The Respondent admits and I find
that the Association and each of its constituent employer-members
are an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Northern California District Council of Laborers (the District
Council) has been an organization composed of various labor
organizations, one purpose of which is to represent its constitu-
ent member-labor organizations in negotiating and administer-
ing collective-bargaining agreements with various employers
engaged in the construction industry in California, including the
Association. At all times the Union has been a constituent
member-labor organization of the District Council. The Dis-
trict Council and the Union each have been a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Background
The District Council has been the designated exclusive col-
lective-bargaining representative of an appropriate unit of the

By order of June 20, 1996, Cases 32–CB–4126 and 32–CB–4228 were
severed and postponed indefinitely.
3 The Union did not present any testimonial evidence in this case but
alleges certain affirmative defenses including deferral to arbitration,
laches, failure to exhaust contractual and administrative remedies, and
contractual and statutory time bars. The Union objected to proceeding
with its defense because it did not want an individual who remained in
the hearing room to have the benefit of hearing its testimony. I refused
to exclude this individual from the hearing room. Although the wit-
nesses were sequestered, this unidentified individual was not among
those to be called as a witness. Accordingly, I allowed this individual
to remain in the hearing room. Although an administrative law judge
has the discretion to close a hearing to the public pursuant to Rule
102.34, the Union did not specifically request that all members of the
public be excluded. Rather, the Union wanted one individual excluded.
In any event, because the union’s concern about this individual’s pres-
ence was based on its objection that she hear their evidence and be-
cause the transcript of this proceeding would have been available a
short time after the hearing, I find that no cause existed, assuming this
individual should have been deprived of pretrial discovery in other
litigation, for excluding her from the actual hearing.
employees of the constituent employer-members of the Asso-
ciation. The District Council has been recognized as such rep-
resentative by the Association and its constituent employer-
members and has accepted such recognition. This recognition
has been embodied in a collective-bargaining agreement effec-
tive by its terms for the period June 16, 1992, to June 30, 1997.
The District Council, by virtue of Sections 9(a) and 8(f) of the
Act, has been and is now the exclusive collective-bargaining
representative of the employees in the unit for the purpose of
collective bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment.
Artis Cook occupied the position of Respondent’s business
manager until approximately June 4, 1996, and was an agent of
the Respondent within the meaning of Section 2(11) of the Act.
The contract contains a provision requiring that the District
Council, through its constituent member-labor organizations, be
the sole and exclusive source of dispatches of employees to unit
employment and calls for the operation of exclusive hiring halls
by the District Council. Included among the hiring halls is one
located in Fresno, California, and a subhiring hall located in
Visalia, California. These halls are operated by the Respondent
as an agent of the District Council. The Respondent has pub-
lished and posted written rules governing the operation of the
hiring halls including rules setting forth registration, priority,
and referral procedures.
Section 3(B)(6) of the contract provides,

The appropriate hiring hall of the Local Union of the
Union having work and area jurisdiction will furnish in
accordance with the request of the individual employer
such qualified and competent workers of the classifica-
tions needed from among those entered on said lists to the
individual employer by use of a written referral in the fol-
lowing order of preference:
Persons shall be referred in the order in which they are
registered if their registration indicates that they are qualified
for and desirous of taking such referral, unless they are not
available for referral, subject to the following conditions:
First, (a) notwithstanding any other provision of this
Agreement, the individual employer may request a person
by name, out of order, and such person must be dispatched
if such person is registered on the out-of-work list and if
such person was employed previously by such individual
employer or member of a joint venture within 3 years prior
to such request within the territorial jurisdiction of the ap-
propriate Local Union of the Union.
(b) In addition to requests permitted by the provision
of subsection 6(a), the individual employer may request
any person registered on the out-of-work list out of order
for any reasons; provided, however, that at no time shall
any job contain more than 50 percent of persons requested
under subsection 6(b). It will not be a violation of this
agreement for an owner (one person) to perform laborers’
work when needed, provided that said owner is performing
work with at least (one) additional laborer on the jobsite.
Statutory Framework
The consolidated complaint alleges violations of Section
8(b)(1)(A) and (2) of the Act. Those provisions are:

It shall be an unfair labor practice for a labor organization or
its agents—
(1) to restrain or coerce (A) employees in the exercise
of the rights guaranteed in section 7 [section 157 of this ti-
tle]: Provided, that this paragraph shall not impair the right
LABORERS LOCAL 294 (AGC OF CALIFORNIA)

265
of a labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership;
(2) to cause or attempt to cause an employer to dis-
criminate against an employee in violation of subsection
(a)(3) [of subsection (a)(3) of this section] or to discrimi-
nate against an employee with respect to whom member-
ship in such organization has been denied or terminated on
some ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a condi-
tion of acquiring or retaining membership.

Section 8(a)(3) provides in relevant part:

It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment to encour-
age or discourage membership in any labor organization.

In Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied
326 F.2d 172 (2d Cir. 1963), the Board held that the doctrine of
fair representation applied to unions when acting in a statutory
representative capacity. Accordingly, it is an unfair labor prac-
tice in violation of Section 8(b)(1)(A) and (2) for a union to
take action against an employee for irrelevant, invidious, or
unfair reasons. 140 NLRB at 185. Moreover, in the context of
operation of an exclusive hiring hall, the union’s additional
powers give rise to additional responsibility. Breninger v.
Sheet Metal Workers Local 6, 493 U.S. 67, 89 (1989). As the
Board stated in Operating Engineers Local 406 (Ford, Bacon
& Davis Const. Corp.), 262 NLRB 50, 51 (1982), enfd. 701
F.2d 504 (5th Cir. 1983):

Even assuming the absence of specific discriminatory
intent, a violation must be found in the circumstances of
this case. The Board has held that any departure from es-
tablished exclusive hiring hall procedures which results in
a denial of employment to an applicant falls within that
class of discrimination which inherently encourages union
membership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A) and
(2), unless the union demonstrates that its interference
with employment was pursuant to a valid union-security
clause or was necessary to the effective performance of its
representative function.
(footnote omitted).

With these statutory and legal precepts in mind, each of the
alleged violations will be discussed seriatim.
Alleged Implication that Respondent would not Dispatch Wil-
liams in Retaliation for a Statement by Williams about Opera-
tion of the Hiring Hall
The consolidated complaint alleges that on or about March 6,
1995, at a monthly meeting of members conducted at the
Fresno hiring hall, Cook, in retaliation for a statement by Wil-
liams regarding operation of the Visalia subhiring hall, implied
that Williams would never be dispatched from the hall thus,
violating Section 8(b)(1)(A) of the Act.
Donnell Williams testified that he attended a regular mem-
bership meeting of the Union on the first Monday in March.
Another member attending the meeting, Joe Velasquez, sug-
gested to President Angel Padilla that the list of people who had
been dispatched be posted at the Visalia hall as well as the
Fresno hall. Williams told Padilla that Larry Guinn, the secre-
tary/treasurer, said he had no problem with posting the list in
Visalia but he would not commit to doing so. Cook interjected,
“Donnell, you don’t have to worry about it, you’ll never get a
job off that out-of-work list.” Williams testified that Cook then
mumbled, “F—k you, Donnell,” and walked away. Williams
asked Cook to repeat what he had said but Cook declined.
Another member present at that meeting, Olan Ray Reese, re-
called that Cook stated to Williams that he would never work in
this hall again. I credit the unrebutted testimony of Williams
and Reese on this point.
In March, at the time of this conversation, Williams was not
registered at the Visalia hall. The employees were required to
register at either Fresno or Visalia. They could not register at
both places. Williams was registered in Fresno, and since
March he had not tried to switch his registration. However,
employees could switch their registrations at any time. Wil-
liams had been registered from Fresno for 15 years. For a brief
period in the 1980s, Williams had been registered from Visalia.
Both Williams and Reese testified that the exchange between
Williams and Cook was heated. I find that Cook’s statement
cannot be construed, under those circumstances, to simply state
the obvious fact that Williams would not be referred from
Visalia because he was not registered there. Rather, I find that
the import of the statement was an implication that Cook was
not going to dispatch Williams from Visalia if Cook decided to
switch his registration there.
Based on the above-credited testimony, I find, as alleged,
that the Union violated Section 8(b)(1)(A) by implying that it
would not dispatch Williams from the Visalia subhiring hall in
retaliation for a statement he made regarding operation of the
Visalia subhiring hall. As noted above, the duty of fair repre-
sentation in connection with operation of an exclusive hiring
hall requires that no arbitrary actions adversely affect dispatch.
Moreover, a union’s refusal to dispatch an employee because
he questions the dispatch policy is violative of the Act. Operat-
ing Engineers Local 406 (Ford, Bacon & Davis Const. Corp.),
262 NLRB 50 (1982). In accord, I find that Cook’s statement
to Williams implying an intent to dispatch arbitrarily, is viola-
tive of Section 8(b)(1)(A).
Alleged Refusal to Permit Examination of Dispatch Books
in June 1995
The consolidated complaint alleges that on or about June 26
and 27, 1995, Williams orally requested permission to examine
the dispatch book for the Fresno hiring hall. It further alleges
that Respondent has refused to allow this examination in viola-
tion of Section 8(b)(1)(A).
Williams testified that on June 26 he went to the union hall
between 7 and 9 a.m. Manny Molina, a member of the execu-
tive board, was also present about 15 feet away from the con-
versation which ensued between Williams and Cook. Williams
asked Cook to let him see the dispatches for the last 3 months.
Cook replied, “If you want to see any dispatching records, you
can see the names posted on the bulletin board. That’s all I’m
going to let you see.” Williams responded that he wanted to
see the regular dispatching records. Cook walked away from
the service window of the office to his private office. Molina
substantially corroborated Williams’ testimony.
Williams testified that the dispatch record on the bulletin
board, referred to by Cook, was a list of the names of people
who had been dispatched to various jobs without supporting
documentation. He testified that he needed to see the actual
dispatch records in order to be certain that no manipulation of
the system had occurred. He also stated that the dispatch re-
cords were more up to date than the list on the bulletin board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

266
Williams returned on June 27 between 7 and 9 a.m. Jose
Aquino was present as well. When Williams approached the
service window saying, “Hey Artis, I’d like to talk to you,”
Cook walked away into a private office. Williams asked Ra-
chel Lone, the secretary in the office, to tell Cook that he
wanted to see the dispatch records for the past 3 months. Lone
went toward the private office and came back, waived her arms
in the air, palms up, with some body language which caused
Williams to ask, “Rachel, are you ignoring me to see the dis-
patching records?” Lone responded by shaking her head up
and down. Aquino substantially corroborated this testimony.
Respondent objected to any actions or statements of Lone
being used against it. Counsel for the General Counsel noted
that Lone was not alleged as an agent of the Respondent and
stated for the record that the actions of Cook constituted suffi-
cient denial of the request for the records because Cook was
well aware of the reason for Williams approaching the window
and asking to speak with him. Counsel for the General Counsel
also argues in brief that such conduct by a clerical employee
demonstrates apparent authority to speak for the agent, relying
on Albertson’s Inc., 307 NLRB 787 (1992). In addition, coun-
sel argues that the fact that Cook did not personally deny access
does not mitigate the alleged violation, relying on Tyson Foods,
311 NLRB 552, 560–561 (1993). Were it necessary to utilize
Lone’s actions to find a violation, I would find that it was rea-
sonable for Williams and Aquino to conclude that Lone was
conveying a negative response to the dispatch request pursuant
to Cook’s instructions. However, in agreement with Counsel
for the General Counsel, I find that in the context of the other
discussions between Williams and Cook about seeing the dis-
patch books, Cook’s walking away to a private office consti-
tuted a refusal to allow the inspection.
A union must, on request, disclose referral system rules.
Plumbers Local 198 (Jacobs/Weise), 268 NLRB 1312, 1320
(1984). Moreover, a union must disclose records of hiring hall
operations sufficient to determine if the system is operating
fairly and, in addition, must disclose records sufficient to de-
termine what a particular individual’s place in the system is and
when his referral is likely to occur. Electrical Workers IBEW
Local 575 (Coleman Electric), 270 NLRB 66 (1984); Bartend-
ers Local 165 (Nevada Resort Assn.), 261 NLRB 420 (1982);
and Operating Engineers Local 324 (Michigan Chapter, AGC),
226 NLRB 587 (1976). I find that Williams was seeking to
ascertain whether he and other members had been fairly treated
with respect to obtaining job referrals. By refusing to provide
this information to Williams, the Union violated Section
8(b)(1)(A) of the Act.
Alleged Dispatches in Violation of the Contract and Rules,
thus, Bypassing Other Employee Registrants; Alleged Request
of a False Written Dispatch Request
The consolidated complaint alleges that Respondent dis-
patched three individuals to jobsites in violation of the contract
and published and posted written rules governing operation of
the hiring hall thereby bypassing other employee-registrants
who were entitled to the dispatch. Specifically, the allegations
concern dispatch of Batts and Lucas to the Valley Fence job
and dispatch of McDaniel to the Fresno Paving job. Respon-
dent contends that these allegations should be deferred to two
arbitration decisions. Counsel for the General Counsel argues
that deferral is inappropriate because the interests of the Union
were adverse to the interests of the employees.
Deferral
Pursuant to Spielberg Mfg. Co., 112 NLRB 1080 (1955), the
Board will defer to an arbitration award when the proceedings
appear to have been fair and regular, all parties have agreed to be
bound, and the decision of the arbitrator is not clearly repugnant to
the Act. The Spielberg “fairness” criteria is at issue here. The
Board has consistently refused to defer in advance of arbitration
where the union representative is hostile to the grievant. See, e.g.,
Amsted Industries, 309 NLRB 860 fn. 3 (1992); and Consolidated
Edison Co., 286 NLRB 1031, 1038 (1987). Moreover, the Board
has refused to defer to arbitration awards when the union’s inter-
ests were adverse to those of the employees. Russ Togs, Inc., 253
NLRB 767, 768 fn. 8 (1980); and cases cited therein; cf., Bailey
Distributors, 278 NLRB 103 (1986).
In support of deferral, the Union introduced two arbitration
awards. In one case, the arbitrator found that the two individual
grievants, Molina and Stephenson, were improperly denied
referral to the Valley Fence job to which Batts and Lucas were
referred. Molina and Stephenson were awarded 1 day’s wages
and benefits. In the other case, the arbitrator found that griev-
ant Hernandez was not a qualified raker and therefore was not
entitled to any relief for the dispatch of McDaniel to the Fresno
Paving job. The grievants were represented by counsel. How-
ever, the issues in the arbitration were dependent on coopera-
tion of the Union and access to hiring hall records for their
success. Finally, Williams, the charging party, was not in-
volved in the grievance proceedings. Accordingly, I find that
the Spielberg criteria have not been met and refuse to defer to
the arbitration award.
Moreover, the arbitrator found in both proceedings that the
Union had failed to follow its rules by inducing employers to
name employees rather than following the listing order. Were I
to defer to this finding, the Union requests that I defer to the
remedy of the arbitrator as well. There has been no determina-
tion at this point regarding which individuals may have been
entitled to the referrals. At the compliance stage, the General
Counsel will seek to show that other applicants were denied the
referrals even though available and qualified. See, e.g., Iron
Workers Local 433 (AGC of California), 228 NLRB 1420,
1438 (1977), enf. 600 F.2d 770 (9th Cir. 1979), cert. denied 445
U.S. 915 (1980); Boilermakers Local 101 (Stearns-Roger
Corp.), 206 NLRB 30 (1973). At the compliance stage, it will
be determined who would have been referred and how much
any such individuals are entitled for the work. If it is deter-
mined that grievants Molina and Stephenson are discriminatees,
any payments to Molina and Stephenson by the Union would
be relevant at that point.
My refusal to defer is based on the Spielberg fairness criteria.
Without passing on whether the arbitral contractual issue was
factually parallel to the unfair labor practice at issue here,4 I note
that the arbitrator appeared to be deciding the personal rights of
the grievants to the specific referrals at issue rather than the statu-
tory issue of failure to refer pursuant to the contract and rules,
thus, bypassing unnamed registrants. However, the arbitrator did
decide that Valley Fence was “induced to name [Batts and Lucas]
by the representations of Mr. Cook which is inconsistent with the
intent and practice of an open hiring hall.” The arbitrator also
decided, utilizing a Wright Line5 analysis, that grievant Hernandez
who was first on the out-of-work list at the time of the Fresno

4 See Olin Corp., 268 NLRB 573, 574 (1984).
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
LABORERS LOCAL 294 (AGC OF CALIFORNIA)

267
Paving referral was not a qualified raker and, thus, not qualified
for the referral. The arbitrator found that the next person on the
out-of-work list qualified for the referral was, in fact, the em-
ployee referred, McDaniel.
Were the Spielberg fairness criteria not a reason to refuse to
defer, deferral would be a much more difficult issue. It is clear
with regard to the Valley Fence referral that the arbitrator did
not attempt to find out who was ultimately qualified for the
referral. Rather, the arbitrator decided that the grievants were
more qualified than the employees referred. Indeed, the arbitra-
tor noted, “There may have been other individuals on the out-
of-work list who had better claim to the work than either Ste-
phenson or Molina, but Stephenson and Molina were the only
two individuals to file a grievance protesting the Union’s ac-
tion.” However, with regard to the Fresno Paving referral, the
arbitrator’s decision does determine that McDaniel was ulti-
mately qualified for the referral. At this point in the proceed-
ings, without knowing whether the arbitrator was provided all
the information necessary to make his decision, there is no
evidence regarding which individuals may have been ultimately
qualified and whether there were any referents whose rights
were superior to those of the grievants. Accordingly, it appears
that the factual parallelism issue as to the remedy is not capable
of resolution.
1. July 20 and 24
The consolidated complaint alleges that on or about July 20
Respondent dispatched Kevin McDaniel to a jobsite in violation
of the contract and published and posted written rules governing
operation of the hiring hall thereby bypassing other employee-
registrants who were entitled to the dispatch. It is further alleged
that on or about July 24 Respondent asked for a false written
dispatch request regarding the July 20 dispatch. These actions
are alleged as violative of Section 8(b)(1)(A) and the dispatches
are alleged as violative of Section 8(b)(2) as well.
William J. Anderson Jr., owner of Fresno Paving Company, a
signatory to the contract, called the hiring hall on about July 20
and requested that a raker come to a job on the following day.
Anderson testified that he did not specify any particular em-
ployee by name. Kevin McDaniel reported on the following day
with a dispatch slip from the Union. Anderson received a call
from Artis Cook on July 24 asking that Anderson send a written
request for Kevin McDaniel for the raker position. Anderson
complied, dating the letter July 20, the date of his request for a
raker, although he actually sent the letter on July 24. Anderson
was not requested by Cook to date the letter as he did.
I find, as alleged, that Respondent dispatched McDaniel in
violation of the contract and published and posted written rules
governing operation of the hiring hall and thereafter requested a
false written dispatch record of Anderson thus, violating Sec-
tion 8(b)(1)(A) and (2).
2. September 6
The consolidated complaint alleges that on or about Septem-
ber 6, Respondent dispatched Noah Batts and Thomas Lucas to
a jobsite in violation of the contract and published and posted
written rules governing the operation of the hiring hall.
Valley Fence Company was a signatory to the contract. On
September 3 or 4, David Cash, part owner of Valley Fence,
spoke with Artis Cook about qualified fence installers in the
Union. Cook stated that he had some qualified fence installers.
Cash expressed pessimism. However, on September 6, Cash
called Cook and asked him to dispatch two experienced chain
link fence builders. Cook said he would do so. Cash sent a
letter confirming the conversation that same day. The letter
stated, “This letter is to request two (2) laborers to work at the
Central High School for Valley Fence Company. This letter is
to request that the two (2) laborers have substantial experience
in the construction of Commercial Industrial chain link fence.”
The following day Noah Batts and Thomas Lucas reported
from the hiring hall. They did not have referral slips with them.
Cook called Cash later that day and said that Cash needed to
request the dispatched individuals by name. Cash said he had no
names and Cook faxed Cash two dispatch slips. In return, Cash
added a handwritten notation to his letter of September 6 stating,
“P.S. Artis Cook inform me that Noah Batts and Thomas Lucas
have substantial experience in chain link fence construction.
Based on this information I am requesting them at Central High
School.” Cash faxed this to Cook on September 7.
I find that Respondent violated Section 8(b)(1)(A) and (2) by
dispatching Batts and Lucas in violation of its written hiring
hall rules thereby potentially bypassing other employee regis-
trants who were entitled to dispatch.
Alleged Refusal to Permit Examination of the Dispatch Books
in March 1996
The consolidated complaint alleges that the Respondent has
refused to provide the “business agent report” to Williams pur-
suant to his request on or about March 1, 1996. This report sets
forth employee-registrant dispatch numbers after roll call. The
complaint further alleges that Respondent denied Williams’
request to take notes from the reports. Both actions are alleged
to violate Section 8(b)(1)(A).
Williams testified that he asked Cook for the dispatch re-
cords and Cook gave him a box with several years of records
from 1994 to 1996. Williams made an attempt to take notes
from the documents he was examining and Cook told him he
could not copy. Williams asked if this meant no notes and
Cook said, “Yeah, no copying.” Williams argued that he had
permission from the Board to take notes and Cook replied that
he was told not to allow any notes. Williams then asked for the
business agent report which he understood showed what any
particular member’s out-of-work number is after each roll call.
Cook said he didn’t have any of those documents. Williams
said, “Artis, I want the documents that show what a person’s
roll call number is after each roll call.” Cook responded that he
did not have anything like that. Williams argued, “Artis, you
know what I’m talking about, I’m talking about what the per-
son’s number is after each roll call.” When Cook ignored him
and began speaking with someone else, Williams said, “Artis, I
know you understand English, I says, I want to see the
dispatching records and if you don’t let me see them, I’m going
to file a charge against you. And he says, you’re going to do
that anyway and he just ignored me and I left.”
I credit the testimony of Williams and find that Williams was
seeking access to the job referral information in order to deter-
mine that referral rights were being protected. By failing to
provide the business agent reports and allow Williams to take
notes from those reports, the Union has violated Section
8(b)(1)(A) of the Act. Boilermakers Local 197 (Northeastern
State Boilermaker Employers), 318 NLRB 205 (1995) (union
acts arbitrarily by denying a member’s request for job referral
information and by denying photocopies of hiring hall informa-
tion). No legitimate union interests were shown to require that
Williams not be allowed to make notes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

268
CONCLUSIONS OF LAW
1. By implying that it would not dispatch Williams from the
Visalia subhiring hall in retaliation for a statement he made re-
garding operation of that subhiring hall, the Union has engaged in
unfair labor practices affecting commerce within the meaning of
Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
2. By refusing to permit Williams to examine the Fresno hir-
ing hall dispatch book for the preceding 3 months, the Union
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and Section 2(6) and
(7) of the Act.
3. By dispatching employees in violation of the contract and
hiring hall rules and by requesting a false written dispatch request
as to one of those dispatches, the Union has engaged in unfair
labor practices affecting commerce within the meaning of Section
8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.
4. By refusing to permit Williams to examine and take notes
from the business agent reports, the Union has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated the Act by
unlawfully referring Kim McDaniel, Noah Batts, and Thomas
Lucas in violation of the contract and hiring hall rules, I shall
recommend that any registrants who should have been referred
be reimbursed for any loss of earnings and benefits suffered as
the result of the Respondent’s unlawful referral of McDaniel,
Batts, and Lucas. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Because the Respondent has a proclivity for violating the Act
(see, e.g., Laborers’, Local 294, approved by Order of July 6,
1995, enforced by Order of November 9, 1995 (9th Cir.), and
because of the serious nature of the violations demonstrating a
general disregard for the employees’ fundamental rights in the
context of an exclusive hiring hall, I find it necessary to issue a
broad Order requiring the Respondent to cease and desist from
infringing in any other manner on rights guaranteed employees by
Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]