Boilermakers Local 374 (Construction Engineering)

National Labor Relations Board - Board Decisions

Jul 27, 1987

284 N.L.R.B. 1382 (N.L.R.B. 1987)

1382 BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING)
Boilermakers Local No. 374, a/w International
Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-
CIO and August A. Ritter and Raymond Kes-
singer and David Lindsey and Michael Dulimn
and Carlton Long and Paul J. Wirthwein and
Combustion Engineering, Inc., Party of Interest.
Cases 25-CB-5020, 25-CB-5070-2, 25-CB-
5070-3, 25-CB-5070-4, 25-CB-5159-1, 25-
CB-5145, and 25-CB-5272
27 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 31 December 1984 Administrative Law
Judge John H. West issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
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 and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order as modified.3
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established pohcy 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.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C.1 6621. Interest on amounts accrued prior to 1 January
1987 shall be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977).
3 We adopt the judge's findings that the Respondent's treatment of
Raymond Kessinger and David Lindsey violated Sec. 8(3,)(1)(A) and (2)
of the Act as of 31 December 1982. In doing so, we note that at one
point in the judge's analysis, he inadvertently referred to the date of dis-
crimination as "13 December" instead of "31 December."
The judge alternatively found that should it be held that Lindsey was
not unlawfully denied placement on the Respondent's primary out-of-
work list, then the Respondent should still be found to have engaged in
unlawful treatment of Lindsey in violation of Sec. 8(bX1)(A) and (2) of
the Act based on the judge's findings that certain referrals from the Re-
spondent's trainee out-of-work list were improper. In view of our disposi-
tion of the case, and because the General Counsel took the position that
Lindsey was the only trainee bypassed by the Respondent allegedly in
circumvention of its referral procedures, we do not reach and therefore
do not adopt that portion of the judge's decision pertaining to trainee re-
ferrals. Accordingly, we shall modify the judge's Conclusions of Law,
Remedy, and recommended Order.
Since the record evidence that the Respondent already has in place an
adequate recordkeepmg system is not controverted, we further shall
modify the judge's recommended Order by deleting the requirement that
the Respondent initiate and maintain a comprehensive recordkeepmg
system for job referrals, citing the bases on which each job referral is
made.
284 NLRB No. 140
1. The complaint alleged that the Respondent
unlawfully required applicants for referral from its
exclusive hiring hall to post a $100 appeal bond
before processing grievances concerning the oper-
ation of its exclusive hiring hall. The judge found
that the $100 appeal bond which was required by
the Respondent's referral rules breached the Re-
spondent's duty of fair representation, thereby vio-
lating Section 8(b)(1)(A) of the Act. In his view,
the amount of the bond was unconscionably high
and chilled the filing of potentially valid griev-
ances. The judge took into consideration the unem-
ployed status of the referral applicants in conclud-
ing that the dollar amount of the bond was uncon-
scionably high. He found that, unlike the situation
in Coca-Cola Bottling Corp., 4 a case relied on by
the Respondent, the $100 bond requirement here
had not been withdrawn by the Respondent prior
to the filing of the unfair labor practice charges.
Based on the record before us, we agree with the
judge that the $100 appeal bond violated Section
8(b)(1)(A) for the reasons set forth below.
In its exceptions, the Respondent contends that
the $100 appeal bond requirement was not illegal
per se. The Respondent contends that the appeal
bond requirement, which applied to all registrants
alike regardless of union membership, was not un-
lawful because it was limited to referral grievances,
it was an attempt to discourage frivolous griev-
ances, and it levied a reasonable assessment. In re-
sponse, the General Counsel contends that the Re-
spondent violated Section 8(b)(1)(A) either by re-
fusing to discuss the substance of a referral griev-
ance with the registrant prior to the posting of the
$100 appeal bond or by maintaining an overly and
arbitrary impediment to the filing of referral griev-
ances. The General Counsel relied on several refer-
ral grievances, including the one involving regis-
trants Raymond Kessinger and David Lindsey , 5
Briefly, the relevant events commenced on 1 De-
cember 1982. Beginning 1 December 1982, the Re-
spondent maintained referral rules providing regis-
trants with a disputes procedure whereby they
could grieve certain action taken by the Respond-
ent in the operation of its exclusive job referral
system. 6 The referral rules were incorporated in
4 153 NLRB 1425 (1965).
5 This matter is more fully discussed in the judge's decision.
At all times material, the Respondent maintained the following dis-
putes procedure for referral grievances:
Section 4.1 A grievant must first make an earnest effort to resolve
his complaint or dispute with the local union Business Manager who
is responsible for the administration of the Local Joint Referral Pro-
cedures. This must be done within seven (7) calendar days of the
time the grievant becomes aware of the event or events giving rise
to such complaint or dispute If the matter is not satisfactorily re-
solved, the grievant may submit the matter for hearing by a Disputes
Continued
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1383
the collective-bargaining agreements between the
Respondent and the various employers performing
field construction work in the Respondent's geo-
graphical jurisdiction. Section 4.2 of the Respond-
ent's referral rules required a grievant who desired
to process his grievance and be heard before the
disputes committee 7 to deposit with the national
referral committee, "a good-faith cash bond in the
amount of $100.00, which shall be forfeited in the
event the Disputes Committee fmds against the
grievant, in which event the cash bond will be used
to defray in whole or part any expenses incurred in
processing the grievant's case," but "will be re-
turned to the grievant if the Disputes Committee
finds in favor of the grievant.8
On 1 December 1982 union members Lindsey
and Kessinger attempted to register on the primary
referral list. To be eligible for placement on the
primary referral list, each had to establish that he
possessed at least 8000 boilermaker field construc-
tion work hours. The Respondent determined that
Lindsey's and Kessinger's proof of field hours was
insufficient and placed them on the trainee referral
list. Both men disputed the Respondent's determi-
nation. Shortly thereafter, they attempted to file re-
ferral grievances, but without posting the $100
appeal bond. The Respondent advised the men that
if they wanted to treat their individual complaints
as a referral grievance, then they would have to
post the $100 appeal bond before a hearing with
the disputes committee would be convened. No
action on Lindsey's and Kessinger's referral griev-
ances was taken by the Respondent until 12 April
1983, after the instant unfair labor practice charges
concerning the matter had been filed.
By letter dated 12 April 1983, Larry Pennington,
the Respondent's assistant business manager, re-
quested the chairman of the Employer's negotiating
committee and the International Union vice presi-
dent in the area to convene a local joint referral
disputes committee to hold a hearing to consider
both Lindsey's and Kessinger's complaints about
their placement on the trainee referral list. With his
request, Pennington submitted a check in the
Committee. This mint be done by written notice to the Business
Manager within seven (7) calendar days following failure to reach
settlement of the dispute as outlined above. The Business Manager
shall refer the written complaint to the chairman of the Employer's
Negotiating Committee and the Business Manager may be required
to submit, in writing (in advance of the hearing), any information
needed to resolve the dispute intelligently, expeditiously and equita-
bly.
'The disputes committee comprises an employer representative and a
union representative.
In August 1983 the bond required by sec. 4.2 was changed to a good-
faith bond in the amount of $50, returnable to the grievant if he in fact
appeared before the disputes committee or if such appearance was ex-
cused. The $50 appearance bond was not alleged as a violation of the Act
by the General Counsel.
amount of $200 to the Respondent 8 Thereafter, a
hearing before the disputes committee was con-
vened. Both Lindsey and Kessinger attended this
hearing, but under protest. By letter dated 25 April
1983, the disputes committee ruled against both
men.
It is well established that "since a union has such
comprehensive authority vested in it when it acts
as the exclusive agent of users of a hiring hall and
because the users must place such dependence on
the union that there necessarily arises a fiduciary
duty on the part of the union not to conduct itself
in an arbitrary, invidious, or discriminatory manner
when representing those who seek to be referred
out for employment by it." Teamsters Local 519
(Rust Engineering), 276 NLRB 898, 908 (1985).
Thus, it has been repeatedly held that once a union
embarks on the operation of an exclusive hiring
hall it must conduct the hiring hall in a fair and im-
partial manner. This code of acceptable conduct
necessarily extends to the institution of any referral
rules which the union adopts in accord with con-
tractual provisions. In other words, the referral
rules themselves, including any referral grievance
mechanism, cannot be discriminatory or arbitrary.
Laborers Local 304 (AGC of California), 265 NLRB
602 (1982).
To support a finding of arbitrariness "something
more than mere negligence or the exercise of poor
judgment on the part of the Union must be
shown." Rainey Security Agency, 274 NLRB 269,
270 (1985). See also Teamsters Local 92 (Great
Western Unifreight), 209 NLRB 446 (1974). For ex-
ample, in Plumbers Local 40 (Mechanical Contrac-
tors), 242 NLRB 1157, 1161 (1979), the union was
unable to rebut the prima facie showing of arbi-
trariness established by the General Counsel. In
that case, the union's business manager had sum-
marily removed an individual's name from its refer-
ral list. The union defended such drastic action on
the basis that it suspected that the individual's reg-
istration was fraudulent. By striking the registrant's
name from the list, the union, however, disregard-
ed relevant contractual provisions that pertained to
such registration disputes. Moreover, the union did
not explain why its noncompliance with the con-
tract was reasonable.
Likewise, in the instant case, we find that the
Respondent failed to rebut the General Counsel's
prima facie showing of arbitrariness with respect to
the $100 appeal bond requirement. The record
shows that the bond requirement called for an
amount, to be paid in cash only, which was equiva-
lent to wages and fringe benefits exceeding 5 work
'There is no evidence that Pennington's check was ever cashed.
1384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hours, not an insignificant figure for an individual
unemployed at the time. Since the bond require-
ment was tied to whether the grievance was actual-
ly found to be meritorious, it appeared to go
beyond its ostensible purpose of discouraging only
frivolous grievances. In spite of such evidence, the
Respondent failed to demonstrate the bond require-
ment was reasonable in that it was necessary to the
effective performance of its representative func-
tions including the processing of referral griev-
ances. For instance, there is no evidence indicating
the number of grievances filed under the Respond-
ent's referral system, the expenses normally associ-
ated with the processing of such grievances, or
their relationship to the $100 amount. Further, the
Union failed to submit evidence showing any fac-
tors which prompted the institution of the bond re-
quirement or the $100 figure or the circumstances
and reasons underlying the decision to change the
amount and character of the bond in August 1983.
Accordingly, we do not reach the question of
whether bond requirements for referral grievances
are per se unlawful. We simply hold that, based on
the record before us, the Respondent's $100 appeal
bond requirement is arbitrary.
2. The judge found that the Respondent improp-
erly placed Johnson at the bottom of the primary
referral list on 13 July 1983 because he had been
engaged in litigation against the Respondent. The
judge concluded that the Respondent's treatment of
Johnson violated Section 8(b)(1)(A) and (2) of the
Act. Contrary to the judge, we fmd that the Re-
spondent did not violate the Act, but applied its re-
ferral rules in Johnson's situation in a nonarbitrary
and nondiscriminatory fashion.
In March 1983 the Respondent referred Johnson
to a job at Combustion Engineering, Inc. Johnson's
referral was made on the basis of his placement on
the primary out-of-work list, and there is no issue
relating to the propriety of that referral. After
working approximately 48 hours on the Combus-
tion job, Johnson was injured at work on 29
March. Johnson left work to seek medical attention
for his injury. While off the job, Johnson drew
workmen's compensation benefits and received dis-
ability benefits from approximately 30 March until
12 July 1983.
Meanwhile, sometime between 22 and 27 April,
Johnson was arrested and incarcerated. Subse-
quently, effective 3 May, Combustion discharged
him for excessive absenteeism. Johnson admittedly
did not file a grievance over his discharge. Thus, in
accordance with its referral rules, the Respondent
suspended Johnson from the primary out-of-work
list for a period of 15 days because of his discharge
from Combustion.
After his discharge, the first time Johnson came
to the Respondent's hall to sign the out-of-work list
was 13 July. Johnson wanted his placement on the
list to be the position he held prior to his referral
to the Combustion job in March. Johnson claimed
that, pursuant to his interpretation of certain refer-
ral rules, he retained his March position on the list,
irrespective of his intervening discharge from Com-
bustion and his suspension from the list because his
work injury had prevented him from accumulating
the requisite number of work hours which would
have required that his name be placed at the end of
the list.
The Respondent, on the other hand, maintained
that Johnson's placement at the bottom of the list
was consistent with its interpretation of the same
referral rules, which it contended had been uni-
formly and consistently applied. Pennington testi-
fied that there have been several occasions where
an applicant for referral was referred to a 120-hour
job, actually worked less than 120 hours, and was
not permitted to go back to his original position on
the referral list. Pennington was unable to recall
the names of all these individuals but related one
situation involving David Roy. Roy was not in-
volved in the Federal lawsuit with Johnson and the
others against the Respondent. Pennington testified
that Roy had been referred to a 120-hour job on 5
April 1983, but took a voluntary layoff shortly
before the job ended in order to avoid the effect of
section 6.6. Pennington further testified that Roy
was placed at the bottom of the referral list when
he came into the hall to reregister and was upset
about his placement.
The judge found that the dispute concerning
Johnson centered on the interpretation of section
6.6 of the Respondent's referral rules, which pro-
vides:
An applicant that is referred to jobs of less
than one hundred and twenty (120) accumulat-
ed hours duration will retain his place on the
out-of-work list. In order for applicants to
retain his or her original position on the refer-
ral list, applicants must report for re-registra-
tion within one (1) business day after termina-
tion.
The Respondent interpreted section 6.6 to mean
that, regardless of how many hours an individual
actually may work on the job, the number of hours
for purposes of section 6.6 stands for the duration
of the job as set by the employer. Applying the
Respondent's interpretation of section 6.6, Johnson
had reached the 120-hour limit because the dura-
tion of the Combustion job together with Johnson's
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1385
outstanding accumulated hours from other job re-
ferrals exceeded 120 accumulated hours.
Rejecting the Respondent's interpretation of sec-
tion 6.6 as unreasonable, the judge found that the
Respondent did not have a rule which specifically
addressed the type of situation involving Johnson,
i.e., an individual who was precluded from com-
pleting the 120 hours due to a work injury. For
this reason, the judge found that the Respondent
had discretion in handling Johnson's situation and
that the approach taken by it was in retaliation for
Johnson's participation in the Federal lawsuit
against the Respondent filed in September 1979, al-
leging that the Respondent had discriminated re-
garding job referrals against him and other appli-
cants.
The Respondent excepts to the judge's findings
on the basis that Pennington was merely following
its uniform application of a blanket referral rule
which has no provision for an exception based on
work injury. The Respondent also contends that,
although such a rule may seem harsh, the record
° evidence is insufficient to show that the rule was
applied to Johnson's situation for retaliatory rea-
sons. We agree.
A union may hold employees to reasonable inter-
pretations of its hiring hall procedures and prac-
tices. See, e.g., Operating Engineers Local 181 (Ray-
mond Construction), 269 NLRB 611, 628 (1984);
Boilermakers Local Lodge 40 (Envirotech Corp.), 266
NLRB 432 (1983). Basing an employee's eligibility
to retain his place on the out-of-work list on the
duration of the latest job to which he was referred,
rather than on the number of hours he actually
worked in his latest job, is not per se unreasonable.
Indeed, it could serve the Union's legitimate pur-
pose of discouraging employees from rejecting
short-term jobs by providing a significant benefit
for the acceptance of any job that provides less
than 120 hours of work.
Accordingly, we dismiss those allegations of Sec-
tion 8(b)(1)(A) and (2) pertaining to Johnson's
placement at the bottom of the out-of-work list on
13 July 1983.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 6 and 11 of the
judge's decision and renumber the remaining para-
graphs accordingly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth below and orders
that the Respondent, Boilermakers Local No. 374,
aiw International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, Hammond, Dale, and Terre Haute,
Indiana, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening employees with loss of employ-
ment if they do not sign what they are led to be-
lieve are checkoff forms authorizing deductions for
a saving fund.
(b) Discriminating against Raymond Kessinger
and David Lindsey or any other job applicant who
seeks to register on the out-of-work journeyman
list for referral for employment through its exclu-
sive referral system because they have engaged in
litigation against the Respondent or otherwise en-
gaged in protected conduct to which it is opposed.
(c) Requiring its members and other applicants
for referrals from its exclusive hiring hall to post a
$100 appeal bond before processing grievances
concerning the operation of its exclusive hiring
hall.
(d) Refusing to refer Carlton Long for employ-
ment from its hiring hall unless he provided it with
a telephone number at which he could be contact-
ed for referral other than the telephone number of
Paul Wirthwein.
(e) Refusing referral registrants whose employ-
ment opportunities are affected by them the oppor-
tunity to view and copy referral records.
(f) Suspending Paul Wirthwein from the out-of-
work list because he filed unfair labor practice
charges and otherwise engaged in protected con-
duct to which the Respondent was opposed.
(g) In any other manner restraining or coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Maintain and operate the exclusive job refer-
ral system in a nonarbitrary, noncapricious, and
nondiscriminatory manner.
(b) Make Raymond Kessinger, David Lindsey,
and Paul Wirthwein whole for any loss of earnings
suffered as a result of the discrimination against
them by payment of sums of money equal to that
which normally would have been earned as wages
during the period the Respondent discriminated
against them, in the manner set forth in the remedy
section of the judge's decision.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
1386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its business offices, meeting halls, and
dispatch halls, copies of the attached notice marked
"Appendix."" Copies of the notice, on forms pro-
vided by the Regional Director for Region 25,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to members are customari-
ly posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 25,
signed copies of the notice for posting by Combus-
tion Engineering, Inc., if willing, in places where
notices to employees customarily are posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
10 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO 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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with loss of
employment if they do not sign what they are led
to believe are checkoff forms authorizing deduc-
tions for a saving fund.
WE WILL NOT discriminate against Raymond
Kessinger and David Lindsey or any other job ap-
plicant who seeks to register on the out-of-work
journeyman list for referral for employment
through our exclusive referral system because they
have engaged in litigation against us or otherwise
engaged in protected conduct to which we are op-
posed.
WE WILL NOT require our members and other
applicants for referral from our exclusive hiring
hall to post a $100 appeal bond before processing
grievances concerning the operations of our exclu-
sive hiring hall.
WE WILL NOT refuse Carlton Long for employ-
ment from our hiring hall unless he provides us
with a telephone number at which he can be con-
tacted for referral other than the telephone number
of Paul Wirthwein.
WE WILL NOT refuse registrants whose employ-
ment opportunities are affected by them the oppor-
tunity to view and copy referral records.
WE WILL NOT suspend Paul Wirthwein from the
out-of-work list because he filed unfair labor prac-
tice charges and otherwise engaged in protected
conduct to which we are opposed.
WE WILL NOT in any other manner restrain or
coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL maintain and operate the exclusive job
referral system in a nonarbitrary, noncapricious,
and nondiscriminatory manner.
WE WILL make Raymond Kessinger, David
Lindsey, and Paul Wirthwein whole for any loss of
earnings suffered, with interest, as a result of the
discrimination against them.
BOILERMAKERS LOCAL No. 374, A/W
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILD-
ERS, BLACKSMITHS, FORGERS AND
HELPERS, AFL-CIO
M Julya McKenzie, Esq., and Ralph R Tremain, Esq., for
the General Counsel.
Paul T. Berekowitz Esq., and Bernard M Mamet, Esq.
(Bernard M Mamet and Associates, Ltd), of Chicago,
Illinois, for the Respondent.
Joseph A. Yocum, Esq. (Yocum and Hahn), of Evansville,
Indiana, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Pursuant
to a charge in Case 25-CB-5020 filed on October 29,
1982, by August Ritter against Boilermakers Local No.
374, a/w International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO (Boilermakers), a complaint (G.C. Exh. 1(d))
was issued alleging that the Boilermakers violated Sec-
tion 8(b)(1)(A) of the National Labor Relations Act in
that about September 29, 1982, acting through a named
steward, it threatened employees with loss of employ-
ment if they did not sign checkoff forms authorizing de-
ductions for a savings fund; that since about September
1, 1982, the Boilermakers has caused employers who are
signatory to the collective-bargaining agreement with it
to deduct certain sums from the pay of their employees
and to remit the sums to the Boilermakers Federal Credit
Union, notwithstanding that the employees had not au-
thorized such deductions from their wages, and has rati-
fied the employer's conduct in doing so; 1 and that since
This and the following allegations were made m an amendment to
the complaint dated March 28, 1983. G.C. Each. 1(gg).
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1387
September 1, 1982, the Boilermakers has maintained an
agreement, practice, and understanding with the employ-
ers who are signatory to its "working agreement" requir-
ing employees of the employers to contribute to the Boil-
ermakers Local 374 Federal Credit Union as a condition
of employment by causing the employers to deduct con-
tributions from the employees' pay with or without the
employees' consent. Subsequently, separate charges
against the Boilermakers were filed by Raymond Kes-
singer, David Lindsey, and Michael Dullum, all on De-
cember 10, 1982, in Cases 25-CB-5070-2, 25-CB-5070-3,
and 25-CB-5070-4, respectively. On February 28, 1983,
an order was entered (G.C. Exh. 1(w)) that consolidated
all the above-described cases, and alleged that the Boiler-
makers and Combustion Engineering (Combustion),
among others, entered into an exclusive agreement on
September 1, 1982, and that thereafter the Boilermakers
violated Section 8(b)(1)(A) and (2) of the Act, collective-
ly, because it (1) failed and refused to use the contrac-
tually provided exclusive referral procedures criteria for
establishing the qualifying experience to be placed on an
out-of-work list and discriminatorily denied such qualify-
ing experience credit to, as pertinent, employees Kes-
singer and Lindsey who have worked for nonunion em-
ployers or engaged in litigation against the Boilermakers;
(2) refused to refer for employment or register for refer-
ral Kessinger and Lindsey; (3) refused to explain to Kes-
singer and Lindsey the basis of its rejection of their claim
of qualifying experience; (4) improperly placed Robert
Johnson, an applicant for referral, at the bottom of the
out-of-work list because Johnson had engaged in litiga-
tion against the Boilermakers; 2 (5) refused to provide
access by DuIlum, as requested, to its out-of-work lists,
referral and other records reflecting all applications for
referrals from its hiring halt s and (6) required its mem-
bers and other applicants for referral from its exclusive
hiring hall to post a $100 appeal bond before processing
grievances concerning the operation of its exclusive
hiring halls. Additional charges were filed against the
Boilermakers on March 29, 1983, in Case 25-CB-5145 by
Paul Wirthwein and on April 11, 1983, by Carlton Long
in Case 25-CB-5159-1. On May 26, 1983, an order was
entered consolidating all the above-described cases and
alleging violation of Section 8(b)(1)(A) that the Boiler-
makers since about March 14, 1983, arbitrarily refused to
refer Long from its hiring hall unless he provided the
Boilermakers with a telephone number at which he could
be contacted for referral other than the , telephone
number of Wirthwein because Wirthwein had engaged in
litigation with the Boilermakers and otherwise engaged
in conduct to which the Boilermakers was opposed; and
that about December 29, 1982, Wirthewein made an oral
request that the Boilermakers allow him to examine
and/or copy the out-of-work lists, referral, and other
records reflecting all applications for referrals from its
hiring hall and the obligation to provide such inform-
2 The amendment to the consolidated complaint (G.C. Exh. 1(bbb))
was entered August 16, 1983.
3 At the hearing, the General Counsel successfully moved for the
amendment of the complaint so that this conduct was no longer specifi-
cally alleged to be a violation of the Act. The conduct alleged was left in
the complaint, however, apparently for background.
tion. (G.C. Exh. 1(uu).) And pursant to a charge filed
August 25, 1983, against the Boilermakers by Wirthwein
in Case 25-CB-5272 a complaint was issued October 3,
1983, alleging that about June 6, 1983, in violation of
Section 8(b)(2) and (1)(A), collectively, the Boilermakers
suspended Wirthwein from its out-of-work list for a
period of 15 calendar days, and thereby deprived him of
any opportunity of being referred for employment during
that period; and that this action was taken because
Wirthwein had engaged in litigation with the Boilermak-
ers and had filed charges and given testimony under the
Act. (G.C. Exh. 1(iii).) The Boilermakers denies violating
the Act.
A hearing was held August 23-26, October 17-21, and
November 14-17, 1983, in Evansville, Indiana. Briefs
were filed by the parties by March 23, 1984.
On the entire record in this proceeding, including my
observation of the witnesses and their demeanor, and
after considering the aforementioned briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Party of Interest Combustion Engineering, Inc. (Com-
bustion) has been engaged as a general contractor in the
building and construction industry constructing, as here
pertinent, a power plant at Petersburg, Indiana. The
complaint alleges, the Respondent admits, and I find that
Combustion is now and has been at all times material an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that the Re-
spondent is now and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Savings Fund
Local 374, which has jurisdiction throughout Indiana,
maintains its principal office in Hammond, Indiana, and
two similar offices in Dale and Terre Haute, Indiana. It
has shop and field construction members, and the collec-
tive-bargaining agreements covering shop and field con-
struction differ. The involved field construction working
agreement was reached in early September 1982, and it
was retroactive to September 1, 1982. (R. Exh. 1.) As
here pertinent, in its final form, it contains, at 28-29, the
following:
ARTICLE XXVI
Savings Fund
Effective September 1, 1982, the Contractor shall
deduct fifty (50t) cents per hour for each hour paid
all employees covered by this Agreement to the
Local 374 Federally Chartered Credit Union, Char-
ter Number 13918.
Authorization for said deduction shall be ob-
tained by the Union in cooperation with the Federal
Credit Union.
1388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union shall furnish the necessary itemized
forms in duplicate, one copy to be retained by the
contractor and the other forwarded to the Credit
Union.
The itemized listing of the Savings Fund pay-
ment shall include the names of all employees,
Social Security Numbers, number of hours and the
amounts paid and is to include the job site address.
The Contractor agrees that said listing shall be
made for each job on a weekly basis showing the
amounts paid and shall be remitted within fifteen
(15) days following the last payroll period of each
calendar month.
Checks are to be made payable to Boilermakers
Local 374 Federal Credit Union and mailed to 6333
Kennedy Avenue, Hammond, Indiana 46323-1097.4
Larry Pennington, the assistant business manager of
Local 374, testified that the printed copy of the working
agreement was not available until November 1982 or
later; that in early September 1982, when the agreement
was reached, the language regarding the savings clause
was not finalized; and that the first time he saw the
credit union clause language in its fmal form, was when
he received the printed copy of the working agreement.
During the last week in September, Joseph Gosciniak,
a boilermaker working at Combustion, had a conversa-
tion with James Reed, a steward at Combustion who was
also a supervisory committee member of the involved
credit union, about the involved savings fund deduction.5
More specifically, Reed approached Gosciniak at the
jobsite and asked him to sign an application for member-
ship in the credit union. (G.C. Exh. 5.) Gosciniak re-
fused. Regarding the conversation, Gosciniak testified
that Reed made it clear that "that was the thing to
checkoff"; that signing the membership application was
not mandatory, but the deduction would be made
anyway. Gosciniak asked Reed if it could cost him his
job, and Reed said it was a possibility. Gosciniak then
told Reed that he was going to record the conversation
and, after the tape recorder was turned on, Reed told
Gosciniak that it was a possibility if he would go on to
another job. In his affidavit to the Board, Gosciniak
stated that "[d]uring that conversation, Reed was in-
structing—insisting that! sign a checkoff, and I told him
that I wouldn't sign, even if it cost me my job. He said
that it was possible, if I went on another job, and didn't
sign one." Although an appearance was entered herein
for Reed, he did not testify.
4 On July 16, 1982, a ballot was mailed out to Local 374's field con-
struction members with a cover sheet that indicated that negotiations
were due to start for field construction very soon; and that several mem-
bers had expressed a desire for a payroll deduction to be deposited in the
federally chartered Credit Union of Local 374, which would be an inter-
est paying savings plan. The ballot indicated that the majority would
rule. G.C. Exh. 29.
5 Pennington conducted a meeting with the Boilermakers in the fall of
1982 to explain the new contract. As here pertinent, August and Ronald
Ritter testified that Pennington told the members at this meeting that (1)
a majority had voted for the savings fund; (2) it was mandatory that all
in Local 374 become members of the credit union; and (3) 50 cents an
hour would be deducted from the members' pay.
g As indicated above, the form was an application for membership. Au-
thorization forms were not made available to stewards until January
Before the printed copy of the agreement was avail-
able, employers began to deduct for the savings fund
even though field construction boilermakers had not
signed authorizations for the deduction. Edward Sneden,
the office manager of field construction at Combustion's
Petersburg generating station, cited General Counsel's
Exhibit 2, which is a summary of what had been tenta-
tively agreed on by Local 374 and boilermaker contrac-
tors on September 9, 1982, -as justification for Combus-
tion beginning the deduction on October 1, 1982. The
summary includes the above-described article XXVI
word for word except for the entire second paragraph
thereof, which speaks to authorization. Sneden received
the summary from his own company and he knew that
the summary did not necessarily reflect what would be
in the final agreement:7
When Gosciniak and Ronald and August Ritter ques-
tioned the deductions the first time, it was taken Sneden
spoke to some unidentified person at one of Local 374's
halls and was told that the savings fund was voted on, it
was in the contract, and Combustion would have to con-
tinue making these deductions. Sneden did not believe
that he advised the union representative over the tele-
phone that some employees did not want the deductions
made, but rather just asked about the status of the sav-
ings fund. Sneden testified that he might have told Reed
about August Ritter's complaint about the deduction.
Combustion continued to deduct for the savings fund
until Pennington wrote to it, as described infra, about
this matter in November 1982.
In October 1982 when Mid-Valley, Inc. hired some
boilermakers its chief timekeeper, James Skiles, called
Local 374 to find out what their pay rate was In re-
sponse Local 374 forwarded what was received herein as
General Counsel's Exhibit 32. The document is (1) on
Local 374's letterhead, (2) dated September 20, 1982, (3)
titled "Wage Rates for Apprentice Boilermakers effective
Sept 1, 1982," and (4) indicates in part, as here pertinent:
"P.S. Credit Union Deductions Will be the Same for all
Employees, 50$ per Hour" and "Article XXVI, Savings
Fund 50$ per hour shall be deducted from the hourly
rate ($18.83) Agreement booklets will be distributed at
1983. See C.P. Exh. 1. August Ritter, who was present during this con-
versation, also refused to sign the memberslup application. He testified
that Gosciniak asked Reed "[qf we don't sign this card, what's going to
happen to us?" And Reed replied, "In all probability you'll be fired."
August Ritter's affidavit to the Board indicates that Reed told them that
they "could probably both lose [their] jobs over it." The affidavit also
erroneously indicates that this portion of the conversation was recorded
by Gosciniak. Gosciniak testified that at one point he told Reed that if
the money was deducted it should go to the sick and distressed or some-
one who was in need. After the savings fund deductions commenced,
Goscinia' k again made this suggestion to Reed who responded that he had
discussed the matter with Pennington who said it could not be done.
Reed also asked Ronald Ritter, August Ritter's son, to sign the applica-
tion for membership, and Ronald Ritter understood from Reed that if he
signed it the deduction would be made. When Ronald Ritter refused to
sign the card, Reed said he could not make him sign. Pennington testified
that he did not direct Reed or any other steward in the area to solicit
signatures on credit union application forms.
Sneden testified that he believed that if it is in the contract you can
deduct it without an authorization; that he makes deductions for the pipe-
fitters for a vacation fund without authorizations. It is Combustion's prac-
tice to make such deductions without signed authorizations on short-term
work that lasts less than 90 days.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1389
the nearest date." Skiles never asked and no one from
the Union ever told him that the deductions should not
be made without signed authorizations.2
A copy of the above-described General Counsel's Ex-
hibit 32 was also received by Dan Felker, who owns
Sterling Boiler and Mechanical, Inc. (Sterling). Felker
began making deductions for the savings fund about Oc-
tober 1, 1982, notwithstanding the fact that he did not
have any signed authorizations. (G.C. Exhs. 34(a)-(ee).)
Felker testified that he did not receive any verbal in-
structions from the Union that he should not deduct
money for the savings fund unless he had signed authori-
zation forms.°
When the credit union began receiving the payroll de-
ductions, passbooks were issued along with a printed an-
nouncement (G.C. Exh. 6), which reads, in part, as fol-
lows:
In accordance with the Union Working Agree-
ment, effective October 1, 1982, all persons working
under the jurisdiction of Local #374 will automati-
cally become members of the Boilermakers' Federal
Credit Union.
Each person, who is not already a member of the
Credit Union, will sign the application card and put
their registration number in the section marked
"Membership Eligibility." This will help to avoid
any confusion if two people have the same name.
The contractors will deduct 500 per hour and
send the money directly to the Credit Union. Con-
tractors will have until the 15th of the following
month to get this money in.
Sixty (60) days must elapse before money can be
withdrawn, and the maximum would be $100.00
each time. Full amounts may be withdrawn after
each dividend period—January 1st and July 1st.
The Board of Directors declares the rate of divi-
dend.
All other money in member's account (not in-
cluding payroll deductions) is available to the
member as before.
On October 29, 1982, August Ritter filed the above-de-
scribed charge with the Board against Local 374 at its
Hammond, Indiana address alleging that despite his re-
fusal to authorize such deductions Local 374 caused
Combustion to deduct for the savings fund. (G.C. Exh.
1(a).)
Pennington, who works out of the Dale office, testi-
fied that he did not remember anyone telling him that a
charge had been filed by August Ritter claiming that
these deductions were being made illegally before Reed
advised Pennington late in November 1982 during a
daily steward report that August Ritter complained that
a G.C. Exhs. 33(a)-(i) demonstrate that Mid-Valley, Inc. began making
such deductions in October 1982 and it continued the deductions through
July 1083. Page 3 of G.C. Exh. 33(a) is a check from Mid-Valley, Inc. to
Boilermakers Local 374 FCIJ dated November 1, 1982, for the sum of
$335.75. Sidles testified that his company makes deductions for the iron-
workers (vacation fund), pipefitters, and painters without authorizations.
a Deductions are made by Felker for savings or vacation funds for the
ironworkers, bricklayers, and pipefitters without signed authorizations.
money was being withheld from his paycheck without
his authorization.
On November 24, 1982, Pennington forwarded the fol-
lowing leter (G.C. Exh. 3) to Combustion:1°
Please be advised that I have been contacted by
Jim Reed, Boilermaker Steward, concerning August
Ritter, REG#1102747, SS#213-12-8211, field con-
struction boilermaker employed at your job site.
This concerns the withholding of the 50 cents per
hour savings fund which we recently negotiated
into our field construction labor agreement. Al-
though this provision is desired by almost all our
members, a withholding authorization must be
signed before withholding is legal.
Mr. Ritter has expressed his desire not to have
the 50 cents withheld from his check. Please return
all money withheld from Mr. Ritter's wages that
have not already been forwarded to the Credit
Union to his home address, which is: August Ritter,
R.R. 1 Box 28, Petersburg, IN 47567.
By letter dated November 26, 1982, Ronald Ritter ad-
vised Lucas, whose office is in Hammond, and Combus-
tion (G.C. Exhs. 52 and 53), respectively, that he did not
and would not sign "a checkoff for Local #374's credit
union."11-
Sneden testified that Combustion stopped making the
involved deduction from August Ritter's paycheck after
it received the above-described November 24, 1982 letter
from Pennington. When he received this letter, he did
not have a copy of the final working agreement. Ronald
Ritter's deductions were continued by mistake until
August 1983 and, when Gosciniak was terminated in the
middle of November 1982, the deductions were returned
to him because they had not yet been forwarded to the
credit union.12
Combustion did not forward the deductions to the
credit union until January 1983 because, according to
Sneden, the forms required to remit money to the credit
union were not available until that time.
10 Although Pennington sent a carbon copy of this letter to his super-
visor, Business Manager Clayton Lucas, and to the Union's attorney, Ber-
nard Mamet, none was forwarded to August Ritter. Pennington also for-
warded a similar letter to the involved credit union. R. Exh. 3. The treas-
urer of the credit union, Margaret Brashears, testified that the credit
union did not have any money to return to August Ritter at that time,
and that she never received any other letter from the Union asking her to
refund money to anyone other than August Ritter.
11 The language in the letters differs slightly and the quote is taken
from the latter. Also, the latter requests that the deductions cease al-
though the former requests a refund. The former does not in any way
refer to the latter. Sneden testified that he did not recall that the Union
ever contacted Combustion and request that it stop making this deduction
from konald Ritter's paycheck or return his money to him.
12 Gosciniak then worked at General Electric (G.E.) at Mount
Vernon, Indiana, for Babcock and Wilcox, and although he did not sign
an authorization for this deduction on that job, the deduction was made.
When Gosciniak complained, the union steward, Joe Sereno, said that he
had to do what the hall told bun to do. After August Ritter was fired at
Combustion he worked at Mid-Valley, Inc. and, although he was not
asked to sign an authorization, money was deducted from his paycheck
for the involved savings fund. G.C. Exh. 33(c). Subsequently, this money
was returned to August Ritter.
1390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Felker testified that on a job worked over the 1983
New Year's holiday, August Ritter, Wirthwein, and
Johnson complained about the deduction for the savings
fund. August Ritter testified that he was not asked to
sign an authorization for the savings fund when he
worked for Sterling at the G.E. project in Mount
Vernon. When this deduction was made he spoke to
Felker who advised him that another paycheck could be
drafted in a day or two. Johnson and Ritter discussed the
matter and Ritter then advised Felker that it was not
necessary; that he would do what was necessary to get
his money back.
At some unspecified point in time Felker received
checkoff authorization forms from the Union (C.P. Exh.
1). Pennington's secretary, Cindy Greulich, telephoned
Felker and asked him to distribute the forms to his em-
ployees and the union steward would later pick them up.
Felker testified that he distributed the forms and he did
not ask his employees to do anything regarding the
forms. He did not say "[y]ou'd better sign this, or you'll
be fired"; and he did not make the signing of this form a
condition of continued employment. The Union never
told him to do that.
In June 1983 Combustion requested and received
copies of signed deduction authorization forms from the
Union for the credit union savings fund. Sneden testified
that "[t]aking a sample of the forms that I have available
the earliest one I can find will be January 3, 1983"; and
that "it would appear that none of them were signed
prior to November 24th when the union wrote . . .
[Combustion] saying 'You shouldn't be deducting with-
out an authorization."
As noted above, regarding the involved savings fund,
it is alleged that the Boilermakers violated the Act by (1)
threatening employees with loss of employment if they
did not sign checkoff forms authorizing deductions for a
savings fund, (2) causing employers who are signatory to
the involved collective-bargaining agreement with it to
deduct for the savings fund even though employees had
not authorized such deductions, and ratifying the em-
ployers' conduct in doing so, and (3) maintaining an
agreement, practice, and understanding with employers
who are signatory to its "working agreement" requiring
since September 1, 1982, employees of the employers to
contribute to the involved credit union as a condition of
employment by causing the employers to deduct contri-
butions from the employees' pay with or without the em-
ployees' consent.
With respect to the first of these allegations, the Gen-
eral Counsel contends that although the application for
membership was not technically an authorization for de-
ductions, Reed initially led Gosciniak and Ronald Ritter
to believe that signing this form would result in money
being deducted; Respondent failed to demonstrate that
there were any contradictions between the pretrial affi-
davits and the testimony of Gosciniak and August Ritter;
and it should be inferred from Reed's failure to testify
that if called he would have corroborated the testimony
of August Ritter and Gosciniak concerning this threat.
Respondent contends that Reed distributed the credit
union membership application "[a]cting solely in his
FCU role" Federal credit union role, viz, as a member of
one of its governing committees (R. Br. 14); and that
Reed never threatened or attempted to coerce the two
Bitters and Gosciniak into signing the involved applica-
tion for membership.
The testimony of August Ritter and Gosciniak regard-
ing this matter is credited. Reed did not testify to refute
it. And to the extent their pretrial affidavits may vary
from their testimony, such variance does not materially
adversely affect their credibility resulting in their im-
peachment.
Reed was not acting solely for the credit union. The
involved conversation must be viewed in the light of the
following: (1) the Boilermakers took a vote of its in-
volved members on whether they wanted a savings fund;
(2) Pennington held a meeting of the members and ad-
vised them that it was mandatory that all in Local 374
become members of the credit union; and (3) the Boiler-
makers and the involved employees agreed to include
language in the involved collective-bargaining contract
dealing with the savings fund. Nowhere in the record
was it indicated that Reed acting strictly as a representa-
tive of the credit union, solicited signatures from mem-
bers who were not employees of Combustion at the time.
Reed was the union steward at Combustion. Although
Pennington denied that he directed Reed to solicit signa-
tures on credit union application forms, as pointed out in
Electrical Workers Local 601, 180 NLRB 1062, 1069
(197Q):
It is an elementary rule of agency law that a princi-
pal is responsible for the acts of its agents done in
furtherance of the principals interest and within the
scope of the agent's general authority, even though
the principal may not have authorized the specific
act in question. As the Board held in Hampton Mer-
chant Association, 151 NLRB 1307, 1308, in passing
on a situation similar to the present one, "It is
enough if the principal has empowered the agent to
represent it in the general area in which the agent
acted."
Checkoff authorizations must be made voluntarily and
an employee has the right under Section 7 of the Act to
refuse to sign a checkoff authorization card. Any con-
duct, express or implied, which coerces an employee in
his attempt to exercise this right clearly violates those
Section 7 rights. When Gosciniak and August Ritter re-
fused to sign the application for membership card at least
one of them was under the impression, conveyed by
Reed, that it was a checkoff authorization. Reed's state-
ment that Gosciniak and August Ritter could possibly
lose their jobs over it restrained and coerced them in the
exercise of rights guaranteed by Section 7 of the Act.
Respondent is responsible for Reed's threat, which was
made while Reed was soliciting signatures in furtherance
of Respondent's interest. Reed's statement to Gosciniak
and August Ritter was "reasonably calculated to imply
that the Union would take measures leading to the loss
of employment if the employees failed to sign the appli-
cation for membership form and Respondent thereby
violated Section 8(b)(1)(A). Electrical Workers Local 601,
supra at 1066. It does not matter, as determined, infra,
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1391
that the Act itself would not require signed authoriza-
tions for this deduction.
With respect to the second and third above-described
allegations regarding the savings fund, the General
Counsel contends: The involved contract, as originally
negotiated by the Respondent, contained no provision
for authorization of the savings fund deduction. General
Counsel's Exhibit 2 demonstrates that when the agree-
ment was negotiated, prior to August Ritter's filing a
charge with the Board over the savings fund deduction,
there was no intention of having employees sign authori-
zations for the savings fund deduction, and that language
was not added until afterwards. The Boilermakers Sep-
tember 20, 1982 letter notified contractors of the credit
union deductions along with the wage rates, health, wel-
fare, and pension contributions without mentioning that
the deduction either should be made only for those who
authorized it or was not to begin until some later date
when authorization forms were available. By negotiating
and maintaining a contract calling for such deductions
without provision for the necessary authorizations, the
Respondent caused these unlawful deductions to be
made. The unauthorized deductions were made with the
Respondent's knowledge and consent, and that in failing
to prevent or stop those deductions, the Respondent rati-
fied these actions. Although the involved contract in
final form made Respondent responsible for obtaining au-
thorizations, Respondent notified employers to begin the
deductions for the credit union without notifying them
that authorizations for this deduction had not been ob-
tained. Although Respondent had both constructive and
direct knowledge that the deductions were being made,
it took no action to prevent the deductions on a general
basis. The letter finally written on behalf of August
Ritter demonstrates that such deductions would not have
continued without Respondent's acquiescence. Even
after Respondent finally began to obtain some authoriza-
tions in January 1983, it took no steps either to police the
contract itself and only after Combustion made specific
request in June 1983 were copies of authorizations pro-
vided. The remaining employers , who are signatory to
the contract still have no inforniation about which of
their employees have authorized the savings fund deduc-
tion and as a result, even at the time of hearing, unau-
thorized deductions continued;" that the involved fund
is treated differently than other moneys on deposit with
the credit union and, therefore, for purposes of adminis-
tering this fund the credit union acts as an agent of the
Union." By causing and ratifying these unauthorized de-
15 On brief, Respondent points out that August Ritter, Goscimak,
Wirthwein, and Johnson are among at least 387 other individuals who are
working in Local 374's jurisdiction without having signed a savings fund
checkoff authorization; and that Long and Dullum are among at least 212
individuals who have signed the savings fund checkoff.
14 The General Counsel points out that membership in the credit union
is available only to those who can demonstrate "a connection" with Re-
spondent and that the governing body of the credit union is made up
from among members of Local 374 so that perforce, its directors have
connections with the Respondent. In addition to Reed, Charles Bostick is
on the credit union's supervisory committee and is a member of Respond-
ent's executive board. Also, Guy Seydel Jr., who is on the credit union's
board of directors, is the Respondent's recording secretary.
ductions, Respondent made such contributions a condi-
tion of employment and in doing so violated Section
8(b)(1)(A) of the Act.
Respondent contends that: The Union's September 20,
1982 notice made no mention of any checkoff authoriza-
tion or any of the mechanics of the fund, e.g., mail to
who, when, where, how, but rather noted that the final-
ized contract agreement booklets would be distributed as
soon as possible. Apparently some of the involved em-
ployers began making payroll deductions following their
own internal practices without waiting for a finalized
agreement and without written authorizations. When
Sneden told Reed about August Ritter's complaint about
the deduction, Reed "then" spoke to Pennington who
wrote the above-described November 24, 1982 letter to
Combustion. At no time did the Union tell Combustion,
Mid-Valley, Inc., or Sterling that they had to deduct
moneys as a condition of employment or that employees
would have to be fired if they did not sign the authoriza-
tion form. The first checkoffs were signed January 3,
1983. The involved credit union is 20 years old and is a
Federally chartered and monitored corporation that, al-
though it is located in the Union's building in Hammond,
is completely autonomous from the Union. Albeit certain
individuals hold an office or serve on a committee of the
credit union and also serve as union officers, the posi-
tions are totally independent. The Union was not con-
sulted regarding the credit union rule that money depos-
ited in an individual's account through the savings fund
checkoff can only be withdrawn 60 days after deposit to
a maximum of $100 and the entire amount except for $5
can be withdrawn twice a year after the payment of the
semiannual dividend. Anyone who wishes to drop out of
the credit union need only notify it and any money on
deposit would be returned. Several hundred people have
not signed the checkoff authorization without anything
occurring to them and those who have requested to help.
Absent the imposing of the signing as a condition of em-
ployment, the propriety of an employer checking off
moneys for a Federal credit union without a written au-
thorization is not the subject of an unfair labor practice,
but rather it is subject to Section 302 of the Act, which
is enforceable only by the Attorney General.
In my opinion Respondent did not violate the Act
with respect to the above-described remaining two alle-
gations involving the savings fund. The General Coun-
sel's theory with respect thereto is based on Section
8(b)(1)(A) of the Act that, as her pertinent, states that
"fiit shall be an unfair labor practice for a labor organi-
zation or its agents . . . to restrain or coerce . . . em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 . . . ."15 It is conceded by the General Counsel
15 Sec. 7 states:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any or all
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3).
1392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that apparently the Board has never passed specifically
on the issue of a union's causing unauthorized deductions
from employees' pay for a savings fund. The General
Counsel, however, cites some cases where unions were
found to have violated Section 8(b)(1)(A) of the Act for
causing deductions of dues and other union assessments
that the General Counsel describes as "similar." Obvious-
ly in those situations the moneys were remitted to the in-
volved unions. Here the moneys are remitted to a credit
union. In an attempt to overcome this difference, the
General Counsel takes the position that here the credit
union is controlled by Respondent. Notwithstanding the
fact that a few individuals hold office in both Respond-
ent and the credit union, it was not demonstrated that
Respondent controls the credit union. The cases cited by
the General Counsel in support of the contention that in
the situation at hand the credit union acts as an agent of
the Union are not controlling in that they deal with trust
funds with trustees who the Board found were acting as
agents for each party to the collective-bargaining agree-
ment for purposes of accepting contributions that are
made to comply with a backpay award" or who joined
the involved union in pursuing the union's own unlawful
interest." The involved savings fund is not a trust fund
and it was not demonstrated that the credit union was in
any way pursuing Respondent's interest. This savings
fund could have been arranged with any bank. It is just a
matter of circumstances that the arrangement was made
with the involved credit union. The General Counsel
failed to demonstrate that Respondent either had the
right of control or exercised control over the credit
union or that the credit union is acting for the Respond-
ent. Consequently, other than the allegation that Re-
spondent threatened employees with loss of employment
if they did not sign what one employee was led to be-
lieve was a checkoff form, the above-described allega-
tions that Respondent violated Section 8(b)(1)(A) of the
Act should be dismissed.
B. Exclusive Hiring Hall
Another new provision in the bargaining agreement
that became effective in September 1982 (R. Exh. 1),
reads as follows:
ARTICLE III
Exclusive Referral of Men
Section 1. Effective on or before December 1,
1982 Joint Referral Rules will be instituted which
will be and shall remain in compliance with the Na-
tional Joint Rules and Standards governing oper-
ations of Exclusive Referral Plans.
Section 2. The Employer shall, under the terms
of this agreement, request the Union to furnish all
competent and qualified field construction boiler-
makers, boilermaker apprentices and boilermaker
trainees. In requesting the Union to furnish such ap-
plicants, the Employer shall notify the Union either
16 Longshoreman ILA Local 1593 (Caldwell Shipping), 243 NLRB 8
(1979), and Jacobs Transfer, 227 NLRB 1231 (1977).
17 Teamsters Local 449 (Universal Liquor), 265 NLRB 1539 (1982).
in writing or by telephone, stating the location,
starting time, approximate duration of the job, the
type of work to be performed and the number of
workmen required.
Section 3. In the event the Union, is unable to fill
the requisition for applicants within forty eight (48)
hours, the Employer may employ applicants from
any other available source.
Section 4. Non-Discriminatory Referral: The
Union and Employer agree that referral of all classi-
fications of construction boilermakers shall be on
the following basis:
4.1 Competent and qualified registrants shall be re-
ferred from the out-of-work lists in a non-discrimi-
natory manner. This shall be done immediately
and in accordance with the requirements of the
Employer's job.
4.2 Selection of applicants for referral shall be on a
non-discriminatory basis and shall not be based
upon, nor in any way affected by, Union member-
ship; by-laws, rules, regulations, constitutional
provisions, or any other aspect or obligation of
Union membership, policies or requirements.
4.3 The Employer retains the right to reject any job
applicant referred by the Union. In any event the
Employer does reject the job applicant, his posi-
tion on the out-of-work list shall not be affected.
44 The Union and the Employer shall post, in
places where notices to all employees and appli-
cants for employment are customarily posted, all
privisions relating to the functioning of these
Rules and Standards.18
In September 1979 a lawsuit was filed in the United
States District Court Southern District of Indiana against
the Union and then Assistant Business Manager Joseph
Bradley alleging, inter alia, that the Union was, in effect,
unlawfully operating a de facto exclusive hiring hall and
discriminated regarding referrals against plaintiffs there-
in, Dulhun, Johnson, Long, August and Ronald Ritter,
Wirthwein, Kessinger, Lindsey, and Ronald Bergner."
In 1979, before the lawsuit was filed, Wirthwein
through Attorney Joseph Yokum personally correspond-
ed with Bradley in an attempt to become a member of
Local 374. (G.C. Exhs. 56 and 58, respectively.) Subse-
quently, Wirthwein filed a charge with the Board against
Local 374 alleging that it discriminated against him re-
garding the application of its hiring procedures and by
refusing him membership in the local on the same terms
and conditions as other applicants for membership even
though he was qualified for membership.
Regarding referrals made after the lawsuit was filed,
Kessinger testified he was referred to jobs in 1979, 1980,
16 At the same informational meeting at which he told members about
the savings fund, fn. 5, supra, Pennington indicated that the hall would
become an exclusive hiring hall and that there would be an out-of-work
list to sign', and those on it would be referred out in the 'order in which
they signed up.
G.C. Exh. 42, Hairy Crowe , v. Boilermakers, Cause o. EV 79-151-
C. Pennington later became a defendant in the actionby reason of the
fact that he became assistant business manager in July 1981.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1393
1981, and 1982 by Local 374 with his last referral on
April 18, 1982. Johnson testified that Bradley sent him
out on jobs in 1980 and 1981 and one job lasted for over
a year, which, it appears, is unusual in this trade. Lind-
sey testified that he received referrals from Local 374 in
1980, 1981, and 1982 with the last job he was referred to
terminating October 13, 1982. August and Ronald Ritter
were referred to a long-term job at Combustion in June
1982.
Wirthwein wrote a letter to Harold Bony, the Interna-
tional president of the Boilermakers, in the fall of 1981
when Pennington referred people to the I & M plant at
Rockport, Indiana. In the letter Wirthwein, in effect, in-
dicated that he had been promised, along with Dullum,
that they would be the first to be sent out and Penning-
ton had sent between 85 to 100 people to Rockport.
When Wirthwein asked Pennington about this matter, he
told Wirthwein that he, Pennington, did not have to send
Wirthwein out and that he was working for Local 374
and those would be the people sent out because they
paid his wages. Wirthwein was told to go hire in at the
gate. When he attempted to do this, he was told that all
hiring had to be done through the hall.
Just before Christmas 1981, Wirthwein asked Penning-
ton if he was not going to refer him, could he have writ-
ten permission to work nonunion. Pennington said that
he would discuss the matter with Business Manager
Clayton Lucas and get back to Wirthwein. When he did
not, Wirthwein called Pennington either late in Decem-
ber 1981 or the beginning of January 1982 and Penning-
ton told Wirthwein that if he worked nonunion, Penning-
ton would have Wirthwein's union book pulled and
Wirthwein would not be able to work on union jobs any-
more. 20 On March 15, 1982, Wirthwein wrote Buoy
complaining about the treatment he was receiving at the
hands of Larry Pennington. (G.C. Exh. 70.)
As here pertinent, the Joint Referral rules mentioned
above (G.C. Exh. 11), read as follows:
ARTICLE 5.
Registration
Section 5.1 Lodge No. 374 shall establish and
maintain an appropriate non-discriminatory registry
facility for qualified construction boilermakers, ap-
prentices and boilermaker journeyman trainees, as
defined under the Agreement, who are available for
employment and wish to register for referral. An
applicant shall not be considered available for em-
ployment and eligible for registration if he is em-
ployed or registered on any other registration list.
Section 5.2 Place of registration. The registry for
referral shall be the offices of Boilermaker Lodge
No. 374 at 6333 Kennedy Avenue, Hammond, Indi-
ana, 46323 and at Boilermaker Lodge No. 374 at
400-B Margaret Avenue, Terre Haute, Indiana
47802 and at Boilermaker Lodge No. 374 at 10
20 Kessiager also testified that prior to December 1, 1982, he asked
Pennington about working nonunion and Pennington replied that he
would do everything he could to get Kessinger's union book pulled if he
worked nonunion.
North Washington Street, Dale, Indiana 47532.
Each registry office shall maintain appropriate out-
of-work lists for applicants to be referred within its
zone. Applicants wishing to move their names from
one zone to another, must immediately notify both
effected zone offices.
Section 5.3 Registrar-Dispatcher. The registrar
and dispatcher for the exclusive referral system of
Lodge No. 374 shall be the Business Manager of the
Lodge or his designated representative.
Section 5.4 Order of Registration. All qualified
applicants shall be registered on an out-of-work list.
It has been jointly determined that to qualify for
registration on an out-of-work list, a registrant must
meet and satisfy the criteria established under the
National Joint Rules and Standards as follows:
5.4.1 Qualified Construction Boilermaker. Boiler-
makers shall be qualified for registration on a boiler-
makers out-of-work list who can satisfactorily estab-
lish that they have had at least 8,000 hours actual,
practical working experience in the boilermaking
trade in the building and construction industry or
who have satisfactorily served an apprenticeship in
the trade field construction boilermaker under an
apprenticeship program approved by the United
States Bureau of Apprenticeship Training or State
Division of Apprenticeship Standards.
5.42 Qualified Boilermaker Apprentice. Boilermaker
apprentices shall be qualified for registration who
can establish that they are indentured and serving
an apprenticeship as field construction boilermaker
under an apprenticeship program approved by the
United States Bureau of Apprenticeship Training or
State Division of Apprenticeship Standards.
5.4.3 Other Applicable Classifications. Construction
boilermaker journeyman trainees shall be qualified
for registration who can satisfy the requirements of
Appendix B of the Local No. 374 Collective Bar-
gaining Agreement. The number of trainee regis-
trants at any one time shall not exceed a 1 to 12
ratio of qualified construction boilermakers regis-
tered or working within the referral system of the
local.
Section 5.5 When an applicant wishes to register
and does not qualify as a boilermaker journeyman
or apprentice, he may be registered on the out-of-
work list established for this purpose in accordance
with Section III.B of the National Joint Rules and
Standards, and referred for work under the terms
and conditions of the applicable collective bargain-
ing agreement.
Section 5.6 Confirmation of Availability. All ap-
plicants must confirm their availability for work
every two (2) weeks in person. A registrant for re-
ferral from the out-of-work list must be available
for contact within one (1) hour or he will be by-
passed and the next registrant will be called.
1394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Registration began December 1, 1982. There were ap-
proximately 30 people on line to register at 8 a.m. at the
aforementioned Dale office. Pennington testified that of
the total of 66 boilermaker field construction lodges
across the country, Local 374 was the last one to become
an exclusive hiring hall and this occurred only after the
International threatened to impose the exclusive referral
provisions on Local 374. Assistant Business Manager
Pennington is in charge of the Dale office. 21 On the
morning of December 1, 1982, he personally handled
registration. The procedure included members filling out
in application form, i.e., General Counsel's Exhibits 17
and 23, which requested, as here pertinent, the following
information: name, address, whether applicant was a con-
struction boilermaker with a minimum of 4 years' experi-
ence, 22 whether the applicant was especially skilled in
specified phases of boilermaker field construction work,
and a listing of the companies for whom applicant
worked and could submit documentary evidence of the
work applicant performed for them gaining the 4 years'
experience as a construction boilermaker." During the
registration period, Pennington also referred to a com-
puter printout (R. Exh. 51), which assertedly gives the
Boilermaker National Pension Trust (union) hours and
the amount contributed up to the period ending Septem-
ber 30, 1982.
Lindsey was one of the first in line on December 1,
1982. When he filled out the application form (G.C. Exh.
17), he initially checked the "yes" box indicating that he
was a construction boilermaker with a minimum of 4
years' experience. When Pennington explained to Lind-
sey that he needed 8000 hours in field construction,
Lindsey checked the "no" box. Lindsey's application lists
the following "companies for whom [he] worked and
can submit documentary evidence of the work [he] per-
formed for them in gaining the four (4) years experience
as a Construction Boilermaker": Combustion Engineer-
ing (welder), Global Erectors (welder), Flame Refractors
(welder), and Ruglen (welder). He also checked off that
21 The office consists of two rooms. Pennington occupies one. His sec-
retary, Cindy Greulich occupies the other. The access door to the suite is
split and the bottom portion is used as a counter with members usually
standing in the hall outside the suite.
22 Pennington testified that the requirement of 8000 field hours' experi-
ence to be on a journeyman list is required nationally. Shop hours are not
considered as qualifying experience
25 Some of the applicants were not required to fill out this portion of
the application. Wirthwein testified that Pennington told him that it was
not necessary to fill that part of the application out or submit proof of
the 8000 hours because Pennington knew Wirthwein had the 8000 hours.
Pennington testified that he did this because he knew Wirthwein worked
the 8000 hours and he, Pennington, did not "want a hassle" from Wirth-
wein who had already filed charges against Local 3743. Pennington
could not rernll allowing other applicants to register who did not submit
proof of their hours. Goscmiak, who had over 20,000 field construction
hours—a majority of which was in Local 374—testified that he was not
asked for any proof when he filled out his application. When August
Ritter registered for the out-of-work list on December 6, 1982, he did not
submit proof of his hours and he did not list the companies that he had
worked for. When DuIlum went into the Dale office to sign the out-of-
work list about 1 week after it began, Pennington told him that he knew
where Dullum had worked and it was not necessary to fill out that part
of the application. Dullum did not submit proof of his hours. On the
other hand, Long was requested to prove that he had 8000 hours and his
name was placed on the primary list only after he brought his pension
report to the union hall, which report showed that he had 24,000 hours.
he was especially skilled at the following: layout, fitter,
rigger, tube rollers, certified arc welder, and certified
stainless steel welder.24 At that time Lindsey had a com-
puter printout dated November 18, 1982, showing his
Boilermaker National Pension Trust history (G.C. Exh.
19), but it did not show 8000 field construction hours.
Lindsey testified that he told Pennington that he had
worked for a nonunion boiler company located in Louis-
ville, Kentucky, gave Pennington the name of the com-
pany, told him the type of work he did for the company,
and indicated that he had tax records to support his
claim and that if there were any questions the owner of
the company, Jim Shearer, could verify it. Because Lind-
sey was not able to establish at that time that he had the
8000 field construction hours his name was not placed on
the primary (journeyman) out-of-work list, but rather on
the trainee list.25
24 Although, as treated mfra, Lindsey was an experienced tube welder,
he testified that he did not note this on the "Other" special skills line be-
cause he was "hot" about the 8000 hours and he checked "tube roller"
thinking it meant "tube welder." Before December 1, 1982, when Lind-
sey requested to be referred to jobs, he was classified as a journeyman.
The address Lindsey placed on his application was his in-laws residence.
25 Johnson, who overheard the Lindsey-Pennington conversation, tes-
tified that Pennington told Lindsey that the burden of proof was on him
and that Lindsey would be put on the secondary list and, whenever he
brought in proof of 8000 field construction hours, his name would be
placed on the primary list. Lindsey testified that at one point in the con-
versation Pennington said the only hours that he would accept at the
time were Lindsey's umon hours. Lindsey conceded that his January 12,
1983 affidavit to the Board does not include this assertion. In testifying
about what he recalled about the conversation, Johnson did not testify
about this assertion. The allegation is denied by both Pennington and
Greulich, who was present on December 1, 1982. Moreover, the Union
accepted the nonunion hours of other members as qualifying experience,
i.e., James Wayne and Randy Friedman. In these circumstances, Lind-
sey's assertion is not credited. It is noted that Pennington received the
following letter from Wayne, G.C. Exh. 15(a):
TENNESSEE VALLEY AUTHORITY
Paradise Steam Plant
Post Office Box 800
Drakesboro, KY 42337
July 28, 1983
TO WHOM IT MAY CONCERN:
James H. Wayne, Social Security No. 404-62-7213, has worked
7,283 hours as a boilermaker welder while employed at this plant.
Very truly yours
TENNESSEE VALLEY AUTHORITY
R.D. Yeargan
Power Plant Superintendent
Along with the following breakdown of hours, G.C. Exh. 15(b).
01609-4/23/76-6/2/76 397
Annual-11/30/77-8/29/80 6145
01043-10/16/80-12/24/80 384
01288-3/18/81-5/12/81 356-1/2
728-1/2
The following letter, G.C. Exh. 14, was submitted on the letterhead of
Foster Wheeler Energy Corporation:
March 28, 1983
TO WHOM IT MAY CONCERN
Mr. Randy Friedman was employed with Foster Wheeler Energy
Corporation doing Boilermaker work, durmg the time of June 1977
Continued
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1395
When Kessinger registered later on December 1, 1982,
he had no proof of his field construction hours. His ap-
plication (G.C. Exh. 23) indicates that he has 4 years' ex-
perience in boilermaker construction and lists Daniels,
Greenville, South Carolina as his employer for 8 years.
Kessinger testified that: Pennington told him that he had
to prove he had 8000 hours in Boilermaker Construction
work. Pennington told him that he would hold his spot
on the list if he could prove his hours. He left the hall,
went home, and got his tax papers, and he took them
back to Pennington: Pennington said he was not going to
do Kessinger's homework for him and that Pennington
did not look the records over. 26 Kessinger went home
with Wirthwein and reviewed the tax papers and check-
stubs.27 After he figured out how many hours he had, he
took his handwritten notes (G.c. Exh. 24) regarding his
hours to the union hall, but did not bring his records.28
He did not speak to Pennington, but rather left the notes
at the union hall. A few days later he went back to speak
to Pennington, who said that if he could prove he had
8000 hours he would be placed on a primary list. Pen-
nington said Kessinger's list was not acceptable, and that
later he received a letter from Pennington indicating that
the list was not acceptable and that he had the burden of
proof.
By letter dated December 2, 1982, Pennington advised
Kessinger, after giving the pertinent portion of Section
5.4.1 of the Joint Referral Rules, that he had the burden
of proof; that the pencil-written list was not acceptable
as proof that Kessinger qualified as journeyman field
construction boilermaker; and that if he disagreed he
could file a dispute according to the Joint Referral
Rules, article 4—Disputes Procedure.29
through May 1978. I, Randy Friedman worked 40 hrs. per week.
[the second sentence was handwritten.]
R.R. Raulerson
Project Manager
28 It was conceded by Kessinger that some of the copies he had of his
tax records, G.C. Exhs. 77(a) through (k) were illegible and that it was
quite a job to review the records. There were two or three people behind
Kessinger in line when he asked Pennington to conduct the review.
27 In reviewing his records, Kessinger looked at, inter aha, G.C. Exh.
76, which is a Boilermakers-Blacksmith Pension Trust plan contribution
statement covering the period from April 1975 to September 30, 1982,
which shows that Kessmger had 4679 hours. Kessmger testified that ap-
proximately 4000 of these hours were in field construction.
28 The note shows a total of 12,376 hours for the period 1969 through
1982 with 2495 hours for 1969 with Daniel Construction Co. For the
years 1978 through 1982, the note reads merely "Union Boilermaker
work out of Local 105, 40, and 374. . . 4000." Kessinger testified that, in
preparation for the trial, he went back through his records and unsuc-
cessfully attempted to figure how he arrived at the 12,376 hours. He testi-
fied that when he originally figured the hours he did not count those
covered by tax forms he could not read.
29 The pertinent portion of G.C. Exh. 11 reads as follows:
ARTICLE 4.
Disputes Procedure
Section 4.1 A grievant must first make an earnest effort to resolve
his complaint of dispute with the local union Business Manager who
is responsible for the administration of the Local Joint Referral Pro-
cedures. This must be done within seven (7) calendar days of the
time the grievant becomes aware of the event or events giving rise
to such complaint or dispute. If the matter is not satisfactorily re-
solved, the grievant may submit the matter for hearing by a Disputes
Committee. This must be done by written notice to the Business
On December 3, 1982, Pennington forwarded the fol-
lowing letter (G.C. Exh. 18) to Lucas:
Please be advised that David Lindsey,
REG#1799298, SS#304-58-6300, did come to the
office to sign the out-of-work list. He claims to
have the required hours to get on the primary list
(8,000 hrs), but he has only proved a total of 6996.0
total hours (including shop hours) so I refused to
put him on the primary list. Our records indicate
that he was referred to his first field construction
job at Riley Stoker, Merom, IN, on Aut. [sic] 14,
1980. He has since accumulated 2772.5 field hours,
636 hrs. in 1980, 1012.5 hrs in 1981 and 1124 hrs in
1982.
If you require additional information, please feel
free to call.
Regarding this letter, Pennington testified that Lindsey
had already submitted his pension fund report: 30 he ar-
Manager within seven (7) calendar days following failure to reach
settlement of the dispute as outlined above. The Business Manager
shall refer the written complaint to the chairman of the Employers'
negotiating committee and the International vice president of the
area. The grievant and the business manager may be required to
submit, in writing (m advance of the hearing), any information
needed to resolve the dispute intelligently, expeditiously, and equita-
bly.
Section 4.2 Dispute Bond—Forfeiture or Refund
Grievants must deposit a good-faith cash bond in the amount of
$100.00, which shall be forfeited in the event the Disputes Commit-
tee finds against the grievant, in which event the cash bond will be
used to defray in whole or in part any expenses incurred in process-
ing the grievant's case. The bond will be returned to the grievant if
the Disputes Committee fmds in favor of the grievant.
3° G.C. Exh. 19. As here pertinent the report reads as follows:
BOILERMAKER-BLACKSMITH NATIONAL PENSION
TRUST DATE: 11/18/82
EMPLOYEE PENSION HISTORY
PAGE: 1
EMPLOYEE NAME
SOC-SEC-NBR
LAST WORK DATE
HOURS
DJ LINDSEY
304-58-6303
09/82
CONTRIBUTIONS
1974 697.25 139.45
1975 968.75 206.75
1976 782.00 739.90
1977 530.00 576.75
1978 333.00 33303
1979 912.50 1,160.34
1980 636.00 854.30
1981 1,012.50 1,429.40
1982 1,124.00 1,809.50
TOTAL-6,996.00 7,249.39
Regarding the hours, Pennington testified that those listed for 1976
through 1979 would also be field construction hours because the contri-
bution for shop work is only 25 cents an hour.
1396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rived at the 2772 hours by looking at stewards reports on
hours worked in Pennington's jurisdiction to substantiate
the hours as being field construction hours; he received
the letter back from Business Manager Lucas' Hammond
office with only "4421 Field Hours" noted at the bottom:
he did not know who put this notation on the letter; he
did not remember whether he sent Lindsey's pension
fund report to the Hammond office for its consideration;
that he did not know how the Hammond office came up
with the 4421 hours; he never checked to see where
Hammond came up with the 4421 field hours; and (in
subsequent testimony) with respect to the 4421 field
hours, Hammond obtained the information from Kansas
City.
About December 3, 1982, Kessinger, after receiving
Pennington's above-described December 2, 1982 letter,
went to the union hall in Dale. Pennington told Kes-
singer that his above-described note was not sufficent
proof and that if he did not like the decision, he could
put up $100 and take it before the dispute committee.
Kessinger testified that he asked Pennington what proof
he wanted, and Pennington said he did not want more
proof; and when he told Pennington that he, Kessinger,
would not put up the $100, Pennington said "no $100 no
committee."
Lindsey contacted James Shearer II, who was former-
ly president of Dixie Boiler Works, and asked him for a
confirmation of Lindsey's hours. Shearer forwarded the
following (GC. Exh. 20):
December 15, 1982
Mr. David Lindsey
R.R. 1, Box 155
Tell City, Indiana 47586
Dear Mr. Lindsey,
This letter is to certify that David Lindsey was em-
ployed by Dixie Boiler Works, 1500 S. 10th, Louis-
ville, Kentucky, as a boilermaker. The following is
a breakdown of hours worked per year:
1978-784 hours
1979-1144 hours
1980-885 hours
1981-193 hours
TOTAL-3006 hours
As a boilermaker Mr. Lindsey field erected water
tube boilers, expanded tubes, performed ASME cer-
tified welding, installed tubes in boilers, set drums
and tanks, set smoke stacks and breeching and per-
formed other types of work associated with boiler-
makers.
Mr. Lindsey has a good attitude, is reliable and is
an excellent boilermaker. I feel certain he will per-
form any work assigned him in a professional
manner.
The correspondence had no letterhead, it had no return
address, it was signed by Shearer who did not designate
his past or present position, and it was notorized in
Kansas. Lindsey took the letter, along with his tax
records, to Pennington who told Lindsey he could not
accept the letter because it did not have a letterhead and,
in Pennington's opinion, it was not proof. Lindsey told
Pennington that Shearer was the president of Dixie
Boiler Works and that he, Lindsey, had his tax records.
Pennington told Lindsey that he would forward the
Shearer letter to Lucas. Pennington testified that he did
not accept the 3006 hours because there was no letter-
head, he could not locate Dixie Boiler Works when he
attempted to obtain its telephone number and because the
letter was notorized in the State of Kansas while Lindsey
lived in Indiana and Dixie Boiler Works allegedly was
located in Kentucky. Pennington could not recall wheth-
er he spoke to Local 40 in Louisville to determine if they
knew about Dixie Boiler Works. He conceded regarding
the December 15, 1982 letter to Lindsey from Shearer
that the work described in that letter is boilermaker
work but Pennington went on to testify that he could
not fmd Shearer to verify any of this, and at the time of
the hearing herein he still suspected the 3006 hours Lind-
sey claimed for Dixie Boiler Works in view of the avail-
ability of union boilermaker work at the time. According
to Pennington, 1978 through 1980 was a period of ex-
tremely high employment in the Local 374 area.
With respect to the above-described December 15,
1982 letter, Pennington forwarded the following (G.C.
Exh. 35) on December 28, 1982:
David Lindsey
R.R. 1 Box 155
Tell City, IN 47586
Dear David,
I checked with the Business Manager, Clayton
Lucas, and have sent him a copy of the letter you
submitted. This is not sufficient proof of field con-
struction boilermaker hours. Our records still indi-
cate that you have less than 8,000 hours. Therefore,
you will not be allowed to sign the primary list.
If you feel you have a legitimate complaint you
may file a dispute according with Article 4, of the
joint referral rules.
Lindsey responded to Pennington by letter (G.C. Exh.
35(1)) dated December 31, 1982, which states, in part, as
follows:
Perhaps you and Mr. Lucas could outline just ex-
actly what I do need as proof which you failed to
do in the letter. In effect I am according to article 4
giving you written notice that I do dispute your
ruling. If we cannot resolve this I would like a
meeting or hearing before the Disputes Committee.
Pennington later advised Lindsey that if he wanted to
treat the matter as a grievance, he would have to post a
$100 bond to go before the dispute committee.
As noted above, to maintain their status on the out-of-
work list, members were requited, as here pertinent, to
resign or reregister every 2 weeks. Kessinger went to the
Dale hall to confirm his availability for the out-of-work
trainee list for the last time on December 14, 1982.
Also, on December 14, 1982, Wirthwein quit a job at
Combustion. Wirthwein was referred out to the job, took
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1397
and passed a welding test, and then was told something
else. Wirthwein refused and walked off the job. 31 Pursu-
ant to the referral rules, he was suspended from the out-
of-work list for 15 days. (G.C. Exh. 61.)
Dullum and Wirthwein testified that about December
18, 1982, the former in the presence of the latter, asked
Greulich to see the journeyman out-of-work list and for
the first time she refused to show it to him.
The following day Wirthwein sent letters to Lucas and
Pennington contesting his above-described 15-day sus-
pension from the out-of-work list. (G.C. Exh. 62.) Wirth-
wein and DuIlum then spoke with Pennington about
filing a grievance and Pennington said they had to "put
up" $100—"No $100 no grievances."
On December 20, 1982, Wirthwein and Dullum for-
warded a letter (G.C. Exh. 64) to Lucas that indicates
that they were filing a dispute with the Joint Referrals
Disputes Committee in accordance with article 4 of the
Joint Referrals Rules; that they would not pay the $100
deposit; that Pennington did not keep the out-of-work
list in order; and that Wirthwein was suspended for 2
weeks from the out-of-work list unreasonably because he
was sent out as a heliarc welder and was put on high rig-
ging, which he is not qualified to do. Subsequently,
DuIlum and Wirthwein personally delivered a copy of
the letter to Pennington who said, "I don't want to hear
it, no $100 no grievance."
Lucas forwarded a letter to Wirthwein on December
22, 1982 (G.C. Exh. 65), enclosing a copy of Local 374
Local Joint Referral Rules and noting that the dispute
could not be filed until all procedures under article 4,
sections 4.1 and 4.2, are followed. A similar letter was
also forwarded by Lucas to Kessinger on the same day.
On December 29, 1982, Wirthwein asked Pennington
if he could see the out-of-work list. Pennington showed
him a typed list with about 50 names on it. 32 After
Wirthwein copied the names of the last two people on
the list, Pennington took it from Wirthwein. Wirthwein
said that he was not through with it and Pennington told
him he was No. 8. Long, who witnessed and testified
about this occurrence, was one of at least two or three
members standing in line behind Wirthwein.
Greulich testified that on January 7, 1983, she received
a request for a referral at the Dale office while Penning-
ton was in Hammond. She telephoned Pennington and
discussed the matter with him. Pennington then called
the next man on the out-of-work list, Wirthwein. Pen-
nington testified that he spoke to a female and requested
that Wirthwein return the call to Hammond and not to
Dale. According to Greulich's testimony, Wirthwein
31 Combustion's separation notice, R. Exh. 31, states that Wirthwein
quit for no reason. Wirthwein testified that he was referred out as a he-
Narc welder and because of a back problem he could not do the work
assigned, viz, high rigging that required lifting heavy objects; that Com-
bustion knew this; and that when he filled out the application, G.C. Exh.
60, to register for the out-of-work list on December 1, 1982 he wrote
"NOT HIGH" after "3. Rigger" on the form. Pennington testified that
he later determined that Wirthwein refused to install U-bolts on sonic of
the headers, which is, according to Pennington, a comparatively easy job.
32 Although what Pennington showed Wtrthwein represented the out-
of-work list, Peruungton actually uses cards and a rack to keep track of
who is on the out-of-work list, and job referrals, etc. Pennington testified
that the out-of-work situation changes constantly and the typed list might
be out of date when a member is looking at it.
called her at the Dale office and refused the job due to
back problems. Wirthwein testified that sometime in Jan-
uary he received a message that the union hall had
called—his wife told him but the time to respond had
elapsed. Nonetheless, he called the Dale office and spoke
with Greulich; the message he received did not request
that he call the Hammond office; he told Greulich that
he was returning the call and asked if Pennington was
there and Greulich said Pennington is not in; when he
asked Greulich if Pennington left a message, she said no.
Greulich did not offer him a job at Mid-Valley on that
occasion, nor did he offer him a job anywhere during
that telephone conversation. He did not tell Greulich on
that occasion that he would not take a referral because
his back was messed up. Wirthwein's out-of-work refer-
ral card (G.C. Exh 84) includes the following entry: "1-
7-83 Refused job at Mid Valley due to back prob-
lems."33 Greulich did not make this entry. Because Pen-
nington testified that he was not in the Dale office on
January 7, 1983, he made the entry at a later time. As
noted by Greulich, this entry is written below the last
line on the card "squeezed in between the last line and
Wirthwein's name." General Counsel's Exhibit 87, which
is Pennington's spiral notebook covering calls made for
referrals, includes the following:
1-7-82 [sic]
• " •
9:12 A.M. Called Paul Wirthwein not available was
given 1 hr. to return call, he did not call back.
Called back and said that his back was messed up
& refused the referral.'"
10:25A.M. Called Joe Frantz—answered and accept-
ed referral.
Greulich testified that she wrote all but the last sentence
of the 9:12 a.m. entry, which Pennington testified he
wrote some time after January 7, 1983.
On January 17, 1983, Wirthwein went to the Dale hall
to resign so as to maintain his place on the out-of-work
list. (R. Exh. 62.)
The following entry (R. Exh. 60) appears in Penning-
ton's aforementioned spiral notebook.
1-27-83
12 35pm—called Paul Wirthwein to refer him to
MIDW at Gibson County. A woman answered and
said that he had to deliver a load of corn to New-
berg, Ind and that he would be back in 1/2 hour. I
told her that I had a job for Paul and that he had
one hour in which to contact me.
2:35p. Wirthwein did not return the call.
The following entry appears on sheet 2 of the Wirth-
wein's out-of-work referral card (G.C. Exh. 84): "1-27-
83 Called for Medco (Gibson County) a lady said he was
33 Actually the written date looks more like "1-9-83," which would
have been a Sunday. However, no one made an issue of this.
34 The page covering entries for "1-7-82" was received as G.C. Exh.
87.
1398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
delivering corn. 12:35 p.m." It was not made on the lines
provided for such entries but rather squeezed in between
the topic headings and the first line for entries. Seeming-
ly this would indicate that the 1-27-83 entry was made
on the card after the entry on the first line provided for
such entries. The first entry in the proper space is
1/31/83. This entry appears on both General Counsel's
Exhibit 84 and Charging Party's Exhibit 9. Although the
latter is also a photostat of Wirthwein's out-of-work re-
ferral card, it, unlike General Counsel's Exhibit 84, does
not have an entry for 1/27/83. Consequently, it would
appear that the 1/27/83 entry was made after the
1/31/83 entry.35
Wirthwein testified that he sells corn and, sometimes,
he delivers it himself. He has delivered it to Newburg. In
January 1983, while he was delivering corn to Newburg,
someone called and he either returned the call later, or
he went over to the hall in person. Greulich told him
that Pennington was not there and he was not offered a
job. He asked Greulich to see Pennington and she said
that Pennington was gone.
The aforementioned "1-31-83" entry on Wirthwein's
out-of-work/referral card reads as follows: 1-31-83
MIDCO PRINCETON (Refused) under Doctor's care."
(G.C. Exh 84.) And a page of Pennington's spiral note-
book (R. Exh. 61), contains the following:
1-31-83
1:10 p.m. Paul Wirthwein came to the office. He
was told to go to Gibson County for MIDCO he
refused referral. Said he was still under doctor's
care.
Wirthwein testified that sometime in January 1983 he
went to the hall to give them a copy of his doctor's dis-
charge summary (G.C. Exh. 66), and while he was there
Greulich told him to report to a job in Princeton, a 4- or
5-day job. He turned the job down because he told her
he had a doctor's appointment for a checkup on his back.
He told Greulich that he was going to a doctor for a
checkup and he was having problems. He might have
brought the medical report on the same day that he
turned the job down that Greulich offered him He gave
the medical report to Greulich because he wanted to es-
tablish that he did have a back operation and that he was
not lying about what he told Pennington in the past.
Greulich testified that she had received a request for
men and contacted Pennington about it, and while she
was speaking with Pennington on the phone Wirthwein
came into the office to register. Wirthwein was next on
the list so Pennington said since he was there, refer him
out. She told Wirthwein about the job, but he refused to
go because he was under the doctor's care. Wirthwein
had re-signed the list and it was after she told him where
the job was he refused. She then told him that he could
not sign unless he was available for work and he said
that he was available for work. Wirthwein then handed
her a medical report but he still said he was available for
work even though he was refusing that job. When
Wirthwein turned this job down or refused it, he said
35 C.P. Exh. 9 does include the entry for "1-7-83."
that he had back problems and had a doctor's appoint-
ment and he brought a slip in. She was not sure whether
Wirthwein told her that he had a doctor's appointment
and the job was so short that it would not be worth it if
he had to take time off for the doctor's appointment.
Wirthwein never told her that he was trying to claim
medical disability and was not able to work. Wirthwein
later testified that when he went in to sign up he refused
a referral from Greulich to Princeton because after he
asked her how long the job was going to last, namely, 4
or 5 days, he told her that he had a doctor's appointment
to have his back checked that very same week. It was
only a 4- or 5-day job and he was going to miss a day to
go to the doctors, and with the hours that he had accu-
mulated he would have gone to the bottom of the out-of-
work list, he had the right to turn down one job; and
that he gave the doctor's report, including a photostatic
copy of a February 25, 1980 transcript relative to his
medical condition (G.C. Exh 66) to Greulich on January
31, 1983, because "there seemed to be an awful lot going
on about his back like there wasn't nothing [sic] wrong
with me."
On February 1, 1983, Pennington forwarded the fol-
lowing letter to Wirthweine (G.C. Exh. 67):
This is to inform you that you are being removed
from our out-of-work list in accordance with Arti-
cle 5, Section 1, of the local joint referral rules,
which reads: Lodge No. 374 shall establish and
maintain an appropriate non-discriminatory registry
facility for qualified construction boilermakers, ap-
prentices and boilermaker journeyman trainees, as
defined under the Agreement, who are available for
employment and wish to register for referral. An ap-
plicant shall not be considered available for employ-
ment and eligible for registration if he is employed
or registered on any other registration list.
As you are under doctor's care, you are not
available for employment.
On February 14, 1983, Wirthwein went to the Dale
hall to re-register for the out-of-work list."
86 On February 14, 1983, Pennington gave an affidavit (R. Exh. 55), to
the Board in Chicago, Illinois, which reads, as here pertinent, as follows:
I sent him [Wirthwein] out again on January 7, 1983 but he refused
the referral because he allegedly had back problems from the Com-
bustion Engineering job in Petersburg. This referral was for Alcoa
and Mid Valley unloading trucks. He missed yet another job on Jan-
uary 27 when I called his home and left a message but he did not
return the call. He refused yet another referral on January 31 to
Midco at Gibson County and submitted a doctor's slip. I took him
off the list because of his contention of having physical problems.
Subsequent to that I sent a letter to Wirthwein to that effect.
Wirthwein gave an affidavit to the Board on January 12, 1983. In it he
stated that the last referral he received at the time he gave the affidavit
was on December 31, 1982, and that between that time and the date of
the affidavit he had not refused any referrals. In a September 26, 1983
affidavit to the Board, Wirthwein stated that the only job he refused in
January 1983 was when he went to the Dale hall and Greulich offered
him a 4- or 5-day job at Princeton. But Wirthwein conceded that he did
give an affidavit to the Board on Apnl 13, 1983, in which he mistakenly
stated that he did not receive any referral during January 1983 from the
Dale hall.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1399
Pennington forwarded the following letter (G.C. Exh.
68), to Wirthwein on February 16, 1983:
On February 14, 1983 at 9:56 a.m. you came to
my office in order to maintain your position on our
out-of-work list. At the present time you are not
registered on our out-of-work list.
If you remember, January 31, 1983, while I was
out of town you brought several medical documents
to my office that indicated that you are not phys-
ically fit. We did not solicit these documents, nor
did we encourage you to submit them, however,
you saw fit to do so.
Since the documents indicated that you have
trouble bending, lifting, work in tight places, etc.
• . . I removed you from the out-of-work list in ac-
cordance with Article 5, Section 1, which states in
part: ". . . who are available for employment." At
that time I advised you by letter on February 1,
1983, that since you are under doctor's care you are
not available for employment, I then removed you
from the out-of-work list.
In order for you to again be eligible to register
on our out-of-work list for a job referral, you are
physically able to do all work required of a field
construction boilermaker. There are no provisions
for light duty assignments in field construction.
If you do not agree with this determination you
may file a dispute in accordance with Article 4 of
Local 374's Joint Referral Rules.
When Long went to the Dale hall to confirm his avail-
ability on March 1, 1983, he was advised that the Union
was unable to contact him at the telephone number he
had designated, namely, his wife's parent's home in Fer-
dinand, Indiana. Long then gave the Union his grand-
mother's telephone number in Shannon, Mississippi (G.C.
Exh. 45(b)). When Long went to the Dale hall to re-sign
for the out-of-work list on March 14, 1983, he was ad-
vised that the Union had been unable to contact him
using his grandmother's telephone number. Long then
placed "Ferdinand Ind" on the address line and "362
4534" on the phone number line on his confirmation of
availability slip. The telephone number was Wirthwein's,
but Long did not tell the Union this. Regarding this
matter, Pennington testified that he had a conversation
with Long when Long came in and put Wirthwein's
number on his, Long's, registration slip. He had been ad-
vised by his attorney not to talk to any of the people in-
volved in the Federal lawsuit unless it concerned a job
referral. He was hesitant to dial Wirthwein's number be-
cause he might have to talk to Wirthwein and it would
not involve a job referral for Wirthwein. He probably
told Long that his, Pennington's, secretary would call
Wirthwein's number and that Long would have to return
the call. He did not tell Long that he would have to
supply a number other than Wirthwein's. Greulich testi-
fied that she attempted to contact Long at the number he
left in Ferdinand, Indiana, and at the Mississippi number.
When he next came in she told him that they had been
trying to contact him and no one knew where he was at
the numbers he had given the Union. She told him that
she needed a current phone number and he then filled
out the slip but left the phone number blank saying that
he would be back in a couple of minutes, and he came in
later and put a phone number on it. Long then left and
nothing else was said. She went back to put the number
on the card and Pennington was back there and she told
Pennington that Long left a different number because
Pennington had been trying to get him. Pennington
looked at the signup slip and he said that he recognized
it as Wirthwein's number. Pennington did not tell her not
to call Long at that number. She called Long at the
number and spoke to a boy who said he did not know
Long and she then asked to speak to the boy's mother.
She told the boy's mother that she wanted to leave a
message for Long to call the union hall back. That Long
did call back and she told him that there was a job for
him.
With respect to this referral Long testified that Wirth-
wein called him in Mississippi and told him that the
Union had called Wirthwein and wanted Long to call
back as soon as possible. He called the hall and spoke to
Pennington who told him to report to the Tuhlen Con-
struction Co. at Rockport, Indiana. Pennington said "that
if he had lcnowed [sic] that it was Wirthwein's telephone
number, that he wouldn't have called me in the first
place, but he recognized it as being Wirthwein's number,
but in the future, to use a different number and a differ-
ent address"; and that Pennington "said he wouldn't
have worked me at all if he had knowed [sic] it was
Wirthwein's number; that—when his first—when his sec-
retary had called Wirthwein's house the first time."
About 1 month later, April 18, 1983, Long, who had
been laid off at the Ruhlen Construction Company job at
Rockport, Indiana, went to the hall to confirm his avail-
ability. (G.C. Exh. 45(c).) Long had filed a charge with
the Board over his previous conversation with Penning-
ton regarding Long's use of Wirthwein's telephone
number and Pennington asked Long on April 18 why he
filed the charge. Pennington then denied the above-de-
scribed conversation. The matter was discussed for about
45 minutes and at one point Long told Pennington that
maybe he did not tell him not to use Wirthwein's tele-
phone number. Long testified that he believed that if
Pennington was emotionally upset it was best to agree
with him on anything he wanted to say.
On April 12, 1982, Pennington forwarded the follow-
ing (R. Exh. 6):
Tom Cooper
International Vice-President
10510 West Cermak
Westchester, IL 60153
International Employers' Negotiating Committee
C/O Babcock and Wilcox
29 South La Salle St.
Chicago, IL 60607
Dear Messrs. Cooper and Fife:
As you know, for the first time we began operat-
ing an exclusive hiring hall on Dec. 1, 1982. We are
trying to operate it exactly in accordance with the
1400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Joint Referral Rules. However, a Mr. Ray-
mond Kessinger and a Mr. David Lindsey are com-
plaining with respect to the operation of the exclu-
sive hiring hall. Both contend that they should be
on the primary list. Lindsey, on the other hand, sub-
mitted an application (copy enclosed) that states
that he does not have a minimum of four years ex-
perience as a field construction boilermaker. Lind-
sey is a member of Local 374 but is a shop member.
On Dec. 3, 1982 Lindsey came into my office claim-
ing that he had worked the 8,000 hours necessary
for the primary list. However, he could only prove
that he worked 6,996 hours, far short of the 8,000
hour requirement (see enclosed copy of his pension
report). Only 2,772 of the 6,996 hours were in field
construction, the balance were shop hours (copy at-
tached of my Dec. 3, 1982 letter providing this in-
formation to Business Manager Lucas). On Dec. 20,
1982, Lindsey came to my office and submitted a
letter, on plain bond paper (no letterhead), from
somebody in Louisville, Kentucky, claiming Lind-
sey had worked certain hours. The letter bore a
notary in the State of Kansas and I felt that it was
totally inadequate (copy of letter attached). On
Dec. 28, 1982, I wrote Lindsey advising him that
the letter he submitted was not sufficient proof of
the field construction boilermaker required 8,000
hours. I told him in the letter, of which I am en-
closing a copy, that if he felt he had a legitimate
complaint, he could file it under Article IV of the
Joint Referral Rules. He had already been given a
copy of the Joint Referral Rules. On Dec. 31, 1982,
Lindsey wrote me. I am enclosing a copy of his
letter which is in long hand, but I have had it re-
typed so as to make it more legible. Lindsey asked
for a hearing before the Disputes Committee, but
refused to put up the $100 good faith bond.
With respect to Raymond Kessinger, I am en-
closing a copy of a letter to Mr. Kessinger dated
Dec. 2, 1982, which really spells out his case. Mr.
Kessinger gave me a long handwritten list of hours
which I am also enclosing. I found that the list did
not satisfy the requirements and I also advised him
that he could take an appeal under the Joint Refer-
ral Rules, a copy of which he has. Our file showed
even that on Oct. 9, 1978, he was working as an
ironworker on permit (copy of letter from Kes-
singer enclosed). Mr. Kessinger is a member of
Local 374, but is a shop member. I might add that
again on Dec. 22, 1982, Business Manager Lucas
wrote Kessinger reminding him that he could file a
grievance under the procedures. Nothing was heard
from Mr. Kessinger with respect to filing a dispute.
Even though Mr. Lindsey refused to put up the
cash bond and Mr. Kessinger made no effort to
treat the matter as a dispute and appeal. I would
like a determination and Business Manager Lucas
has authorized me to submit this letter to both of
you. I feel that these two individuals are trying to
set me up and I feel that the decisions were appro-
priate. Obviously, if the decisions were inappropri-
ate I must be told and corrections made. I also feel
that I am obligated to all persons and that I am
doing an injustice to others if I place anybody on
the primary list who should not be there. It is for
this reason that I have put my own money and I
have sent a $200 check to Local 374, $100 for each
of the individuals so that their dispute should be
heard.
I would appreciate your convening a Local Joint
Referral Disputes Committee to hold a hearing as
soon as possible. I ask that the two men be given
notice of the hearing and asked to attend. Raymond
Kessinger's home address is R.R. 1, Evanston, IN
47531 and David Lindsey's home address is 15
Rosewood Dr., Jeffersonville, IN 47130.
A copy of this letter is being sent to Messrs. Lindsey
and Kessinger. Also per your request I am submitting
copies to Hollis Dague and to Ken Kolkmeier.
Very truly yours,
Larry D. Pennington
LDP/clg
cc: David Lindsey
Raymond Kessinger
Clayton Lucas
Hollis Dague
Ken Kilkmeier
Express Mail
Lindsey received his copy of Pennington's above-de-
scribed April 12, 1983 letter at his home in Gatchel, Indi-
ana, since he had filed a change of address with the post
office. Kessinger also received a copy of the letter.
On April 18, 1983, Pennington called Kansas City and
determined that Kessinger had 4629 pension fund hours.
Because the total was not 8000, Pennington did not sepa-
rate field and shop hours.
On April 20, 1983, Kessinger telephoned Lindsey
about the dispute committee hearing to be held on the
following day. Lindsey did not know about it.
Pennington, along with Cooper, attended the disputes
committee hearing on April 21, 1983, as an observer.
The committee consisted of Kolkmeier, who represented
the employers and who is a vice president of construc-
tion of the Nooter Corporation, which is located in St.
Louis, Missouri, and Dave, who represented the
Union's International president. After speaking with
Yokum, both Kessinger and Lindsey attended, tendering
a letter to the committee that indicated that it did not
have jurisdiction and their presence did not confer juris-
diction. 37 Regarding the meeting, Lindsey testified that
the committee had a copy of his above-described pension
fund report and the above-described December 15, 1982
Shearer letter. They advised the committee that all his
hours since he left Maxon Marine Industries (in 1975)
were field hours. Kolkmeier asked if it was possible to
speak to Shearer; that he called Shearer and put Kolk-
31 Upon calling the committee on April 21, 1983, about the meeting,
Yokum discovered that Lindsey's grievance was also to be heard.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1401
meier on the phone." He then spoke with Shearer who
said, "I believe I know what they need now, and
send you the information"; 39 and that, after he finished
speaking to Shearer, he went back into the hearing room
where the committee was reviewing and discussing the
evidence presented by Kessinger.
Kessinger testified regarding the dispute hearing held
on April 21, 1983. He said the papers he presented were
reviewed and it was concluded that he had done iron-
worker work with Daniel Construction Co. (Daniel).
One of the documents he presented (G.C. Exh. 74),
which is a letter from Gene Dameron dated March 22,
1983, to whom it may concern indicating that while em-
ployed with Daniel in 1969 to 1970 Kessinger fabricated
and erected duct work; pots for the potlines; small tanks
stacks and breeching; and welding. He presented the
handwritten list of hours that he had previously present-
ed to Pennington. He presented General Counsel's Ex-
hibit 75, which is a letter dated March 9, 1983, to Kes-
singer from Sharon Palmer, data control clerk personnel
of Daniel, verifying the employment history of Kes-
singer. Palmer's letter gives the jobs, the dates, and the
classifications. The classifications are as follows: Iron-
worker journeyman, M and M equipment operator, and
ironworker foreman. The Daniel letter only goes back as
far as 1975 because the Company only kept records back
that far, and although he submitted General Counsel's
Exhibits 74 and 75 to the committee, he did not explain
what his duties were as listed on General Counsel's Ex-
hibit 75 to either the committee or to Pennington and
that the first time he fully described his duties, as listed
on General Counsel's Exhibit 75 as field construction
boilermaker's duties (Daniel did not have a separate clas-
sification for a boilermaker) was at the hearing.
Pennington testified that although he saw Kessinger
give some letters to the committee during the hearing, he
was not shown the paperwork and Kessinger did not
specifically describe in any respect the nature of his
work while he discussed the matter with the committee;
and that Kolkmeier told Kessinger that they could not
count ironworker hours.
Subsequently, Shearer forwarded the following (G.C.
Exh. 21):
Oswego, Kansas
April 22, 1983
David Lindsey
Route 1, Box 155
Tell City, Indiana 47586
Dear Dave,
The following is a summary of the projects you
worked on as a Boilermaker for Dixie Boiler
Works, Inc:
1) Burlington Northern project, Alliance, Nebraska.
The project was started and completed in 1978.
Dixie Boiler Works was a sub-contractor to Inter-
national Boiler Works (IBW), East Stroudburg,
38 Kessinger testified that the committee mdicated that it did not have
sufficient proof that there was a Dixie Boiler Works.
39 Shearer also testified about this telephone call.
Pa. Our scope of work was to install three IBW
water tube boilers, three stokers, three I.D. and
F.D. fans, three mechanical dust collectors and all
interconnecting breeching.
2) Monsanto Chemical project, Luling, Louisiana.
This project was started in 1978 and completed in
early 1979. Dixie Boiler Works was a subcontrac-
tor to Henry Vogt Machine Co. Louisville, Ken-
tucky. Our scope of work was to retube one
120,000 PPH water tube boiler, replace some
casing and repair breeching.
3) State Prison project, Rawlings, Wyoming. This
project was started and completed in 1978. Dixie
Boiler Works was a subcontractor to IBW. Our
scope of work was to install two watertube boil-
ers, two bag houses, I.D. and F.D. fans, two
stacks and all interconnecting breeching.
4) Cargil Co. project, Gainsville, Georgia. This
project was started and completed in 1979. Dixie
Boiler Works was a subcontractor to Henry Vogt
Machine Co. Our scope of work was to erect one
60,000 PPH water tube boiler complete.
5) Brown & Williamson Tobacco Corp. project,
Macon, Georgia. This project was started and
completed in 1979. Dixie Boiler Works was a sub-
contractor to Henry Vogt Machine Co. Our scope
of work was to erect one 60,000 PPH water tube
boiler, complete.
6) ARCO Black Thunder Mine project, Reno Junc-
tion, Wyoming. This project was started in late
1979 and completed in early 1980. Dixie Boiler
Works was a subcontractor to IBW. Our scope of
work was to install one water tube boiler, one
baghouse, one stack, I.D. and F.D. fans and all
interconnecting breeching.
PAGE "2"
OSWEGO, KS.
APRIL 22, 1983
7) University of Wyoming project, Laramie, Wyo-
ming. This project was started in late spring of
1980 and completed in the summer of 1981. Dixie
Boiler Works was a subcontractor to IBW. Our
scope of work was to erect three (3) 60,000 PPH
water tube boilers, baghouse system, three stacks,
I.D. and F.D. fans, stokers and all interconnecting
breeching.
I hope the proceeding [sic] list helps you. If you
should need any further information or verification,
please contact me.
Very truly,
James C. Shearer
(Former President)
Dixie Boiler Works, Inc.
Louisville, Kentucky
Pennington testified that he still did not give Lindsey
credit for his hours because the April 22, 1983 letter did
not indicate what work Lindsey actually did on these
jobsites and how many hours Lindsey spent on each job.
1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lindsey testified at the hearing that he worked on
each of the jobs listed on General Counsel's Exhibit 21
and he went on to describe the type of work he did on
the involved jobs; and all the work was field boilermaker
work. He reviewed the letter with Shearer before it was
sent in, and they discussed various jobs that Lindsey
worked on refreshing each other's memory over the tele-
phone. He brought Shearer's April 22, 1983 letter to the
hall shortly after receiving it.4°
Regarding the April 22, 1983 letter, Shearer testified
that he spoke to Lindsey about demonstrating that Lind-
sey did boilermaker field construction work for Dixie
and reviewed the various jobs Lindsey worked on with
Lindsey reminding him about one of the jobs, namely,
the Monsanto job. General Counsel's Exhibit 21 accu-
rately reflects the jobs that Lindsey worked on. When
Dixie Boiler filed a bankruptcy petition and had to
vacate its premises some of its records were apparently
disposed of. When he spoke with Lindsey and wrote
both leters, namely, General Counsel's Exhibit 20 and 21,
he was in Oswego, Kansas. Dixie Boiler Works, Inc. had
a contract with Local 40 Boilermakers in Louisville,
Kentucky. It performed work in the rest of the United
States on a nonunion basis. Lindsey worked for Dixie
Boiler on and off from 1978 to 1981. Shearer said he vis-
ited each jobsite where Lindsey worked. Lindsey
worked as a boilermaker and as a boilermaker foreman.
Although Dixie had a shop, Lindsey never worked in it
but, rather, all his work for Dixie was field work. Shear-
er was unable to find any of the payroll records or time-
sheets for Dixie. He did take pictures of Lindsey while
he was working (see G.C. Exhs. 79(a)-(k)). The pictures
show Lindsey doing boilermaker field consturction
work. When Lindsey first called him, he made an inde-
pendent check to verify Lindsey's earnings by looking at
his 1981 W-2 and his 1978 W-2. (Both matched the fig-
ures that Lindsey read off to Shearer over the phone.)
Lindsey worked very little overtime for Dixie because
he worked primarily on new installations and that was
primarily straight time. He did not hear from Lindsey
after the December 15, 1982 letter until the hearing in
April 1983.
With a cover letter dated April 25, 1983 (G.C. Exh.
37(a)), Kolkmeier forwarded the results of the Joint Re-
ferral Disputes hearing (G.C. Exh. 37(b)), to Lindsey and
Kessinger, among others. As here pertinent the decision
reads as follows:
After careful consideration of all evidence pre-
sented at the hearing and examining documentation
submitted, we did not fmd evidence to support
David Lindsey's and Raymond Kessinger's claims
of being eligible to be on the primary out-of-work
list. To the contrary, they did not meet the criteria
40 Although as pointed out by counsel for Respondent, Shearer's April
22 1983 letter, G.C. Exh. 21, is stamped "RECEIVED May 20, 1983
Boilermakers Local #374" it is noted that Lindsey indicated in a griev-
ance letter, G.C. Exh. 40(a), mailed May 16, 1983, to Pennington and re-
ceived by his secretary the following day (see receipt dated 5-17-83 ac.
Exh. 40(b)) "Mau have yet to make a ruling on the last letter from Jim
Shearer concerning my hours with Dixie Boiler Works"; and that Lind-
sey also sent a copy of Shearer's April 22 1983 letter to Respondent's
Hammond, Indiana office.
established by the parties to the collective bargain-
ing agreement, as outlined in 5.4.1 of the Local
Joint Referral Rules. Neither could establish proof
that they had worked 8000 hours as a field con-
struction Boilermaker or satisfactorily served an ap-
prenticeship in the trade of field construction Boi-
lermaker, as required by the Local Joint Referral
rules 5.4.1.
The grievants were advised that if they, at any
time, in the future, can produce proof of having ac-
quired at least 8,000 hours actual, practical working
experience in the Boilermaking trade in the building
and construction industry to Lodge #374, the evi-
dence would be evaluated by the Local Union #374
and if found to be in order they Would then be
placed on the primary out-of-work list.
Lindsey testified that: On May 20, 1983, he went into
the local union hall to register with Darryl Muncie at 11
o'clock, only to be told by Pennington that he was going
to lunch and Lindsey would have to come back at 1
o'clock. At 1 p.m. he told Muncie to wait around the
corner because he feared that if Pennington saw Muncie
with Lindsey he might not allow Muncie to sign the list,
but instead would tell him it was full. Initially he asked
Pennington to discuss the grievance that he filed and
Pennington said, "I don't have to discuss nothing with
you"; he then reminded Pennington that he was sup-
posed to try to resolve it. Pennington then said, "I'm not
your business agent your business agent is Clayton Lucas
633 Kentucky Avenue, Hammond, Indiana." Pennington
repeated this over and over and the secretary sat at her
desk laughing. He then told Pennington that he had a
witness to the conversation and Pennington then went
over and got the list and let Lindsey see it and sign it.
Earlier in his second conversation with Pennington on
this day he had asked to see the list and Pennington re-
sponded that he did not have to show Lindsey anything.
Only after he lost his temper did Pennington show him
the list.41
Lucas forwarded a letter (G.C. Exh. 38) to Lindsey on
May 31, 1983, pertinent portions of which read as fol-
lows:
You must realize the letter dated April 22, 1983
does not give me any more proof than the one
dated December 15, 1982 so far as proving any
hours worked that can be credited toward your
8,000 hours experience for putting your name on
the local prime referral list. I have prepared for you
a complete record of your proven field construction
hours.
1980 636.0 hours
1981 1012.5 hours
1982 1124.0 hours
2772.5 hours
You have been given no credit for any hours
worked for Dixie Boiler, simply because you have
41 Muncie corroborated Lmdsey.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1403
failed to prove that there was ever a Dixie Boiler
Workers, Inc. properly licensed and insured to do
boilermaker work. If this could be established, you
must furnish proof beyond any doubt that you were
employed by such company and worked exclusively
in a classification of work that would be considered
journeyman-boilermaker work and not in a catch-all
classification that would not prepare you to be an
all-around boilermaker journeyman. Also, you
would need time sheets, work schedules, and other
documentation proving the exact number of hours
you were employed on each job doing exclusively
boilermaker work. So far you have not furnished
anything to fulfill your obligation of proof that you
have any creditable hours worked with this so-
called employer. As a result you will not be permit-
ted to sign the prime list. However, you will contin-
ue to be eligible to sign the sub-journeyman list.
Wirthwein and Dullum went to the hall on June 6,
1983, and spoke to Pennington about signing for the out-
of-work list. Pennington asked Wirthwein whether he
would sign a paper to the effect that he was physically
able to go back to work and he said he would but that
he would not sign a paper indicating that he was able to
do all the Boilermakers work. Subsequently, Wirthwein
received a letter from Pennington dated June 6, 1983
(G.C. Exh. 69), indicating that Wirthwein was being sus-
pended in accordance with article 7, section 7.1.3 for a
period of 15 days from the out-of-work list and that he
would be eligible for referral on June 20, 1983.
Wirthwein testified that: The involved section refers to
turning down two consecutive jobs, which assertedly he
did not do;42 from February 1 until June 6, 1983, Wirth-
wein was not on the list supposedly for medical reasons.
Pennington did not offer him a job on June 6, 1983, and
during the period between the Sterling Boiler job of the
New Year's weekend and February 1, 1985, he only
turned down one job and that was the one that Greulich
42 Art 7, sec. 7.1 of the Local Joint Referral Rules, G.C. Exh. 11,
reads:
Section 7.1 Registrants shall be suspended form the out-of-work list
and therefore not referred for employment for: A period of fifteen
(15) calendar days for first offense or, A period of thirty (30) calen-
dar days for the second similar offense and each offense thereafter
within a one (I) year period, for any of the following reasons:
1.Any registrant who accepts a referral and does not report to the
job ready for work at the appointed time unless he has a reasonable
and acceptable excuse approved by the Business Manager.
2. Quitting or leaving an employer's job, unless approved by the
employer and the Business Manager. Such approval will not be ins-
reasonably withheld by either party.
3. Two consecutive refusals of offered employment within the
Local, unless reasoanble excuse exists which is acceptable to the
Business Manager. The excuse or excuses must be noted each time of
occurrence on the registrant's referral record. A registrant shall have
the right to refuse a job outside of the zone he is registered on
except for circumstances when the adjacent zone has exhausted its
list.
4. A registrant wishing to be excused under Section 7.1 rules 1 and
3 shall be required to make application for excuse in writing, giving
the Business Manager the reasons upon which he seeks to establish
an acceptable excuse.
5. A registrant wishing to obtain approval to quit under rule 2 of
Section 7.1 shall request such approval in writing to the Employer
and the Business Manager.
offered him at Priceton, Indiana. He did turn down an-
other job on December 5 and 6 the day after his barn
burned down, but the two turndowns were not these
turndowns. When he went to sign the out-of-work list on
June 6, 1983, Pennington did not tell him at that time
that he was going to be suspended for refusing work.
On July 12, 1983, Lindsey amended his application at
the Dale union hall. (R. Exh. 4.) Specifically, Lindsey
changed his address and crossed out the "No" box and
rechecked the "Yes" box for "I am a Construction Boi-
lermaker with a minimum of 4 years experience," and
added under "Other" qualifications the following: "certi-
fied heavy wall for Cargill Co. Stainless Steel Gainsville,
Georgia."
Lindsey also gave the following to Pennington: (1) the
articles of incorporation of Dixie Boiler Works Inc.
dated February 1975 which, under article III thereof, de-
scribes the purpose of the business, viz, to, among other
things, manufacture, assemble, buy, distribute, sell, in-
stall, and generally deal in boilers, (2) an annual report of
corporations to the State of Kentucky filed by Dixie
Boiler Works, Inc. in February 1981, which indicates
that reports were due for 1976, 1977, 1978, 1979, 1980,
and 1981 and (3) a copy of its monthly report of state
income tax withheld, dated August 14, 1980, Pennington
forwarded this material to Lucas (Snuffy) with a cover
letter dated July 18, 1983. (G.0 Exh 22,)
On July 13, 1983, Johnson discussed signing for the
out-of-work list with Pennington, who advised him that
he would be on the bottom of the list. It was Johnson's
position that because he was injured on a job and, there-
fore, he did not work a total of 120 hours (Johnson esti-
mated that he had accumulated 107 hours) even though
the job went over 120 hours, he should not go to the
bottom of the list. Article 6, section 6.6 of the Local
Joint Referral Rules (G.C. Exh. 11) reads as follows:
Section 6.6 An applicant that is referred to jobs
of less than one hundred and twenty (120) accumu-
lated hours duration will retain his place on the out-
of-work list In order for applicants to retain his or
her original position on the referral list, applicant
must report for re-registration within one (1) busi-
ness day after termination.
Johnson testified that he received disability benefits from
the Boilermakers from March 30, 1983, until July 11 or
12, 1983.43 Regarding this matter, Pennington testified:
Johnson's card was taken from the out-of-work list after
the job at Combustion went over 120 hours, and the card
was placed in a separate work file. Johnson was referred
to the involved job at Combustion on March 21, 1983.
How many hours Johnson worked on the job was of no
consequence because if an employee is injured on the job
and the job continues to run, even though the employee
is not working, Pennington will consider that the em-
42 Johnson argued at the hearing herein that he could not work and
draw workmen's compensation at the same time; and that when an indi-
vidual is drawing workmen's compensation, it is not counted as local
hours because the employer is not paying into the health and welfare
fund.
1404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee's 120 hours are running; 44 and that he could not
cite another instance of an employee who worked less
than 120 hours because of a job injury and yet was
placed on the bottom of the list because the job went
over 120 hours.
After working 48 hours on the Combustion job begin-
ning March 21, 1983, Johnson injured his fingers and,
when he went hack to work with a splint, the employer
advised him that there was no light-duty work and he
would have to go on workmen's compensation. Al-
though the splint was removed April 22, 1983, his doctor
advised him that he would not be released for work for
at least 1 more week. Before the week was up, however,
Johnson was arrested and incarcerated. When his wife
visited him on April 27, 1983, he assertedly asked her to
call Combustion and indicate that he was still under doc-
tor's care and he would call and get back to work as
soon as possible. When he was released on May 2, 1983,
Johnson told Pennington about the incarceration and
asked him if he still had his job. Pennington responded
that as far as he knew Johnson did. Johnson called Com-
bustion on May 3, 1983, and indicated that he did not
have a release from his doctor yet. 45 He was advised
that he had been terminated. Subsequently, he received a
separation notice from Combustion, which indicates that
he was discharged May 3, 1983, for excessive absentee-
ism. (G.C. Exh 51.) Although Johnson conceded that he
knew that he had 5 days to file a grievance over this
matter, he admitted that he did not.
By letter dated May 9, 1983, Pennington advised John-
son that he was being suspended from the out-of-work
list in accordance with section 7.2 of the Joint Referral
Rules (G.C. Exh 11), for a period of 15 days."
Johnson had surgery on his fmgers. After his discharge
from the hospital, he read the joint referral rules and re-
alized that if he received another termination within a
certain length of time he could be automatically suspend-
ed for 90 days. Subsequently, on May 27, 1983, he wrote
Pennington (G.c. Exh. 48), asking why he was suspend-
ed when he was on compensation from a "loss time acci-
dent." Pennington forwarded the following letter to
Lucas on June 8, 1983 (R. Exh. 9):
Enclosed please find a copy of a letter that I re-
ceived from Robert Johnson, REG#1640278,
SS#232-60-8483.
Bob was penalized 15 days for violation of the
Exclusive Referral Rules, (terminated for absentee-
44 Respondent stipulated that the steward's report for the involved job,
C.P. Exh. 4, indicates that beginning With the week of 3/28/83 to 4/1/83
Johnson was out with an injury.
45 Later that day Johnson saw his doctor who informed him that the
fingers were worse and he would need surgery.
46 The rule reads as follows:
Section 7.2 Any registrant who has been discharged for just and
sufficient cause shall not be referred from the out-of-work list to any
job for a penod of fifteen (15) calendar days followmg said dis-
charge.
Pennington testified that on May 3 he received a telephone call from
Combustion and was advised that Johnson was being terminated for ab-
senteeism because a female called Combustion on Thursday, April 28,
1983, and indicated that Johnson had personal business and he would not
be in until Friday April 29, 1983. When Johnson did not appear for work
the next 3 working days he was discharged.
ism) and was notified in writing of the suspension.
He was not returned to this office to reregister since
his suspension ended.
I hesitate to answer letters like this because I feel
that the Exclusive Referral Rules are self-explanato-
ry. If you feel he deserves an answer in writing,
please advise.
When Johnson came to the hall on July 13, 1983, as
treated, supra, Pennington showed him the June 8, 1983
letter to Lucas.
As noted above, Kessinger did not confirm his avail-
ability for referral from the trainee list after December
14, 1982.47 Lindsey, on the other hand, did. He was
fourth on the list." Nonetheless, up to the time of the
hearing herein, Pennington never attempted to contact
Lindsey to refer him from the trainee list. Others whose
names appeared on the trainee list below Lindsey's, and
in at least one instance did not even appear on the train-
ee list, were referred out during this period.
The following are the involved pertinent rules (G.c.
Exh. 11):
ARTICLE 6.
Non-Discriminatory Referral
Section 6.1 The Union and the Employer agree
that referral of all classifications of construction
boilermakers shall be on the following basis:
6,1.1 Selection of applicants for referral shall be
on a non-discriminatory basis and shall not be
based on, nor in any way affected by, union
membership, by-laws, rules, regulations, constitu-
tional provisions, or any other aspect or obliga-
tion of union membership, policies, or require-
ments.
. . . .
Section 6.2 Competent and qualified registrants
shall be referred and employed exclusively from the
out-of-work lists in a non-discriminatory, fair and
equitable manner. This shall be done immediately
and in accordance with the requirements of the em-
ployer's job.
Section 6.3 Requests by contractors for key men
to act as foremen shall be honored without regard
to the requested man's place on the out-of-work list.
Section 6.4 A bona fide request by contractors
for boilermakers with special skills and abilities shall
be honored and filled in accordance with Sec. 6.2.
Section 6.5 Due to the extensive knowledge re-
quired of the steward in the application of the bar-
gaining agreement, jurisdiction, etc., the steward
shall be appointed by the Union without regard to
his position of [sic] the referral list.
47 It would appear that no trainees were referred out during the period
Kessinger's name was on the out-of-work list.
45 Pennington testified that because there is a built-m ratio that limits
the Umon to having 1 trainee for every 12 journeymen either working or
on the out-of-work list, most of the time there are 46 individuals on the
out-of-work trainee list.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1405
Pennington testified that he did not follow the practice
of referring individuals from the list in the order in
which they signed up when it was an emergency situa-
tion. In those instances Pennington allegedly referred in-
dividuals based on their skills and how close they were
to the location of the emergency. Also, pursuant to two
specified collective-bargaining agreements, namely, the
General President's Agreement and the National Power
Generator Maintenance Agreement (C.P. Exh. 16), Pen-
nington testified that he allowed employees to request
people by name limited in the later agreement to six
people (including the foreman) per job from the top one-
half of the out-of-work list.
Although a number of referrals were reviewed at the
hearing herein, the General Counsel chooses five in-
stances on brief in support of the allegation that there
were improper referrals or, in other words, that Re-
spondent unlawfully refused to refer, as here pertinent,
Lindsey for employment. Chronologically the first in-
volves the referral of Allan Donner in March 1983 to
Sterling at its job at the G.E. plant in Mount Vernon.
Although Donner was 38th on the trainee list, according
to Pennington's testimony, he was referred ahead of
Lindsey because Felker of Sterling requested him by
name because he had previously passed a welding test
for Felker at that jobsite. Pennington testified that the in-
volved job, which required a 10 p.m. referral, was an
emergency. At another point in his testimony, Penning-
ton conceded that Donner's referral card, which covered
referrals back to 1976, did not show that Donner worked
for Sterling at G.E.'s Mount Vernon facility before.
Felker testified that, as here pertinent, he requested
Donner by name; that the involved job was done under
the National Power Generation Agreement, which
allows him to request men by name from the first half of
the out-of-work list whether it is an emergency or not;
the involved job was an emergency because with the
boiler down production had to be cut back; Donner had
previously tested for Sterling Boiler Mechanical and had
done a good job; 49 certifications are good for 6 months;
that he requests a person out of order on the out-of-work
list mostly in October 1982.
when we have a repair job that is of an emergency
type, where we have a very short amount of time
to get a certain amount of work done so they can
refire the unit. And a lot of times this requires that
we have some certified welders on the site. And
usually, they want people that have been certified
with our company.
And under those kind of circumstances, I'll call
and ask for people that have already taken the test
for us so that we can get the job done on time, be-
cause if we had to retest them, it would take as long
as two days to get everything completed and we
May only have one day to get the job done; and
that Pennington has denied his request to refer a
named person when that person was so far down on
the list and there were other people in front of him
49 According to Donner's referral card, he last worked for the compa-
ny
who were really qualified to do the work and had
worked for Sterling Boiler Mechanical in the
past.5°
and that Pennington has denied his request to refer a
named person when that person was so far down on the
list and there were other people in front of him who
were really qualified to do the work and had worked for
Sterling in the past.
On the morning of April 20, 1983, Pennington referred
Joseph Warner and his son Tim, whose name was on the
trainee list below Lindsey's, to the Yokum Corporation
at Petersburg, Indiana, to load equipment on a truck be-
cause the employer had laid off its personnel too early.
Although Pennington conceded that this did not require
a special skill, he asserted that it was an emergency and
that both Warners lived in Petersburg. When Yokum
Corporation requested two referrals (not by name) at
9:30 p.m. on April 19, 1983, the word emergency was
not used. At the outset of the hearing herein before he
characterized the above situation as an "emergency,"
Pennington testified that in an emergency situation he
would not have to go through the list in the order that
people signed up. In that situation he would call some-
one who is closest to the job and had the sidlis necessary
to do the work. Having a tube blow out on a boiler is
the only emergency situation he has had and that if there
were a case of a contractor running out on their deadline
on the contract and they just needed extra men in a
hurry he would not consider that an emergency but
rather a company oversight. The determination whether
a situation is an emergency is left to his discretion and it
is not written any place.
On an April 27, 1983 job, Donner was requested by
name by Felker. The job involved repairing a heat ex-
change scrubber of A. B. Brown, which Felker conced-
ed was not an emergency. Felker cited the National
Power Generation Agreement. (C.P. Exh. 16.) As noted
above, Donner was 38th on the trainee out-of-work list
as of April 20, 1983. Pennington testified that Donner's
name is neither typed nor written on the list, which
would have been considered current on April 27, 1983.
The following letter (R. Exh. 53) was forwarded to
Pennington by Kenneth Silkey or Flakt, Inc. on May 27,
1983:
Dear Sir:
I am requesting one David Silkey to be employed
as summer help during his summer recess from Col-
lege.
I would appreciate your help in the above
matter.
Regarding this matter, Pennington testified: He referred
David Si'key to a job at Flakt, Inc. on June 1, 1983, and
he was terminated August 9, 1983. David Silkey was on
50 The job Involved boiler tube repairs and although Felker contended
that certified welders should be used on such work, he conceded that
certifications were not required; and that although the customer can re-
quire that certified welders be used, here the customer only wanted to
know if Sterling Boiler Mechaincal could get the job done.
1406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the trainee list at the time; however, he could not find
David Silkey's name on the May 31, 1983 trainee out-of-
work list shown to him at the hearing. David Silkey's
application was signed on May 31, 1983, and Silkey was
not on the primary or journeyman list. Silkey was re-
quested by name because all the apprentices were work-
ing and under the contract provisions they could then re-
quest a trainee that section 6.4 of the referral rules, as de-
scribed above, states that a bona fide request by contrac-
tors for boilermakers with special skills and abilities shall
be honored and filled in accordance with section 6.2 of
the referral rules. Although he did not know if Silkey
had any special skills or abilities, he "always honored
contractors' requests when they requested people by
name, and . . . [he] didn't treat this one any different.
[He] . . . treated it the same." Silkey's referral card indi-
cates that he was referred out as a mechanic, and a me-
chanic is not a specially skilled boilermaker. The exclu-
sive referral rules provide that if all the apprentices were
employed, contractors could request trainees on a ratio
of 1-to-12 and they could request by name. Kenneth
Silkey is David Silkey's uncle.
On July 27, 1983, Pennington referred Brian Zoll and
Joseph Keller to a job. Zoll, whose name appeared
below Lindsey's on the out-of-work trainee list and
Keller were at the hall to sign up. Zoll was referred as a
mechanic. Four journeymen who were on the primary
list, and who were not in the hall when the contractor
called, were also referred to the same job. Pennington
did not believe that he went down the list, but rather he
called people who lived close to the job. Pennington tes-
tified that it was an emergency job in that a boiler
sprang a leak and the contractors needed someone imme-
diately. The manpower requests, which were maintained
by Greulich, gives the following for the nature of the
work: "weld sample probes and duct work. . . [als soon
as possible." Pennington conceded that the manpower
request does not indicate that the boiler sprang a leak.
Pennington testified that although the men were request-
ed for 1 day, they worked 41.5 hours straight. When
later asked what the emergency nature of the job was,
Pennington responded that it was a 1-day job and they
wanted people as soon as possible.
Analysis
As noted above, it is alleged that, regarding Lindsey
and Kessinger, Respondent (1) refused to apply the
proper criteria for establishing the qualifying experience
to be placed on an out-of-work list and discriminatorily
denied them credit for such qualifying experience, (2) re-
fused to explain to them the basis of its rejection of their
claimed qualifying experience, and (3) refused to refer or
register them for referral. On brief the General Counsel
contends that there can be no question but that Lindsey's
pension report establishes at least 5329 hours of union
field-construction experience and on the witness stand
Pennington conceded that Lindsey's pension fund report
reflected field hours for 1976 through 1979. Pennington
used other pension reports as a primary source of proof;
and Pennington did not himself credit Lindsey for union
field hours reflected on the pension report that were
worked outside Local 374's jurisdiction; to the extent
Lindsey was eventually credited with 4421 union filed
construction hours on his pension fund report it is not
clear, as Pennington admits, exactly who came up with
this figure and how it was derived. When the 5329 field
hours reflected on the pension report are added to the
over 3000 hours Lindsey worked for Dixie, he has over
the 8000 hours required to be placed on the out-of-work
journeyman list. Although Pennington would not give
guidance to Lindsey and Kessinger, he called another
local to verify hours orally claimed by members and sat
down with two other members and went over their
proof assisting them in their calculations. The nonunion
hours submitted by Wayne and Friedman, as described in
footnote 24, supra, were accepted by Pennington with
minimal substantiation. Friedman's letter does not specify
where he worked or what specific work he had done
and, aside from Friedman's representation, does not even
verify the number of hours he worked during the period.
Although Respondent admitted at the hearing that Kes-
singer had satisfactorily established that he had 8000
hours' experience as a field construction boilermaker,
Kessinger presented no startling evidence herein and had
previously demonstrated a willingness to provide the Re-
spondent with whatever they wanted, had they given
him any indication at all what that was. Pennington
never suggested to Kessinger that he submit to Respond-
ent the additional proof he gave to the disputes commit-
tee. Neither Pennington nor the committee ever asked
Kessinger exactly what he did at Daniel. Respondent's
intransigence regarding Lindsey was demonstrated at the
hearing herein by Pennington who, despite sworn testi-
mony from Lindsey and Shearer, indicated that he
would not accept Lindsey's hours with Dixie because it
seemed unlikely that Lindsey would work nonunion for
$9 per hour when union scale was higher and conse-
quently his hours must be less than claimed. It is also
contended by the General Counsel that even in the ab-
sence of any illegal motivation, Respondent violated the
Act by failing in its duty to represent and deal fairly
with Lindsey and Kessinger.
With respect to referrals, the General Counsel con-
tends that the five above-described referrals, especially in
view of Pennington's subsequent attempts to cover them
up, cannot be considered as merely mistakes or misinter-
pretations of the referral rules. The Board has consistent-
ly found such referrals in violation of a union's exclusive
referral procedures, even in the absence of animus
toward the bypassed individuals.
Respondent contends, on brief, that underlying the sit-
uation with respect to both Lindsey and Kessinger, the
point is that the Union required documentation from all
applicants, it accepted nonunion hours, it uniformly fol-
lowed and applied its written objective policies with the
result that even union members with 7800 plus hours
could not get on the primary list" and that the General
At Br. 33, Respondent asserts that Pennington told Kessinger that if
he wanted he could bring his supporting evidence back later and they
could look at them. Tr. 1848 is cited in support of this assertion. This
testimony does not support this assertion. Rather, Kessinger testified that
Pennington did not hold out such an offer.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 14137
Counsel has not identified a single instance when the
policy was not followed.
With respect to the referrals of trainees, Respondent
contends that in those rare instances when such referrals
were made, they were made on the basis of a request for
a specific named individual pursuant to a contractor's
right under one of the specialty agreements, there was an
emergency situation, or the individual had a special skill.
Allegedly the basis for each trainee referral was docu-
mented in the Union's records which demonstrates that
the referral rules were being strictly adhered to.
During the hearing herein, Respondent announced that
in view of the documentation introduced herein by Kes-
singer and in view of his testimony explaining his duties
at Daniel, he was being placed on the primary list. It is
my opinion that Respondent's treatment of Kessinger up
to that point, and its continuing treatment of Lindsey,
violated its duty of fair representation.
The mosaic pieced together by the General Counsel is
one of utter frustration. Whether this frustration on the
part of Kessinger and Lindsey is attributable in part to
the attitude and personality of an individual, Pennington,
vis-a-vis Respondent's position, is of no consequence for
Pennington was acting as agent for Respondent. More-
over, his actions were affirmed by Lucas.
Respondent seeks refuge in the fact that the rules re-
quire the boilermakers to "satisfactorily establish that
they have had at least 8000 hours. In the words of Pen-
nington, the applicants had the burden of proof. And
Lucas describes the burden in his May 31, 1983 letter to
Lindsey when he wrote "you must furnish proof beyond
any doubt." Although it might be understandable for Re-
spondent to have doubts about Dixie because it was not
an ongoing entity in December 1982 and 1983 like TVA
and Foster Wheeling, Lindsey did submit documentation
demonstrating that Dixie was indeed an ongoing entity
during the period pertinent to his qualifications. This, ac-
companied by the shifting testimony and evidence re-
garding whether Lindsey had 2772 or 4421 qualifying
hours on his pension report and the Union's apparent re-
fusal to verify this although verifying others leads to the
conclusion that the Union was not interested in dealing
with the merits of the situation. Although a union can
seek verification in this type of a situation, it cannot use
the need for verification as an improper impediment al-
lowing it to refuse to register a qualified applicant. As
pointed out by the General Counsel, Pennington demon-
strated his willingness to work with others regarding the
documentation they submitted in an attempt to demon-
strate they had the required hours. Contrary to the mis-
leading impression Respondent's attempts to convey on
brief, Pennington did not offer to review with Kessinger
his supporting evidence. Indeed, Pennington did not
offer to review with Kessinger his supporting evidence.
Indeed, Pennington offered no real assistance to either
Kessinger and Lindsey. As noted above, Lindsey what
was needed as proof. Pennington did not. Rather he told
Lindsey that he would have to post a $100 bond to go
before the disputes committee. If Respondent had ful-
filled its duty to fairly represent, it is my opinion that
Kessinger and Lindsey would have been able to demon-
strate whether they were qualified within a reasonable
period after December 13, 1982. In its treatment of Kes-
singer and Lindsey, Respondent violated Section
8(b)(1)(A) and (2) of the Act.52
As noted supra, it is alleged that Respondent has un-
lawfully required its members and other applicants for
referral from its exclusive hiring hall to post a $100
appeal bond before processing grievances concerning the
operation of its exclusive hiring hall. The General Coun-
sel contends that by refusing to discuss the substance of a
grievance with the grievant prior to the posting of the
$100 bond, the Respondent has used the bond require-
ment to arbitrarily restrict access to the grievance proce-
dure, and to refuse even perfunctory processing of griev-
ances. The Respondent has, in effect, required the griev-
ant to make an independent assessment of his grievance
in order to determine whether the grievance is sufficient-
ly meritorious to warrant the deposit of the $100 bond—
a bond which will be forfeited if the grievant decides in-
correctly. Not only does the Respondent refuse to assist
and advise the grievant in this determination, but, by re-
fusing to discuss the substance of the grievance, especial-
ly where the grievances concern the Respondent's oper-
ation of its referral procedures, the Respondent deprives
the grievant of information that the Respondent has and
the grievant needs in order to make an informed deci-
sion. By acting in this manner the Respondent violates its
fiduciary duty to those it represents and, despite this ob-
ligation, the Respondent has placed the burden of deter-
mining the merits of the grievance solely on the grievant,
while depriving him of the information necessary to that
determination—conduct that the Board has held "de-
prived one of the unit members of his grievance repre-
sentation which belongs to him as a matter of right,"
thereby violating Section 8b(I)A) of the Act. Boiler-
makers Local 72 (Combustion Engineering), 260 NLRB
232 (1982). Even if Respondent was willing to discuss
these grievances prior to requiring the posting of the
bond, the bond requirement nevertheless breaches the
union's duty of fair representation inasmuch as it arbi-
trarily discourages potentially valid grievances. Although
a union may have a legitimate interest in discouraging
frivolous grievances and a wide latitude of discretion in
52 In my opinion, the General Counsel demonstrated that Peruungton
and Lucas were motivated by the fact that Kessinger and Lindsey were
plaintiffs in the above-described lawsuit against Respondent. Although
there were no referrals from the out-of-work trainee list during the 4
weeks Kessinger was on it, the General Counsel, as set forth above, dem-
onstrated that Pennington disregarded the expressed exclusive referral
procedures on a number of occasions while Lindsey was on the list, Le.,
the above-described referrals of David Silkey, Donner, Tim Warner, and
Zo11.
As pointed out in Painters Local 1178 (Roland Painting), 265 NLRB
1341, 1343 (1982):
[a] union perhaps may depart from literal adherence to the terms of
an exclusive referral system where "it's actions [are] necessary for
the effective performance of its functions as bargaining representa-
tive . . ." [Citation omitted.] Such occasions at best are exceptional,
however, and the present plainly is not among them.
The mstances described above similarly were not exceptional and conse-
quently they were, for the reasons given by the General Counsel, im-
proper referrals. As such they violated Sec. 8(bX1)(A) and (2) of the Act.
It is appreciated that Lindsey could not be on both the primary and train-
ee out-of-work lists at the same time. The above findings regarding the
latter are, therefore, made in the alternative with respect to Lindsey.
1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
determining whether to pursue a grievance, it surely
cannot be privileged to determine such matters based on
a grievant's ability or willingness to pay $100. The
amount of the bond is arbitrarily established and, by its
nature, bears no relation to the actual expenses incurred
in processing the grievant's case. Even when the Union
provides both the information and advice necessary for
the grievant to make an informed decision, the grievant
may still be forced to abandon a valid grievance because
he cannot afford to post the bond. Consequently, the
effect of the dispute bond requirement is impermissibly
broad in that its effect is not limited merely to discourag-
ing frivolous grievances, but rather it also serves to
present a substantial impediment to potentially valid
grievances as well. Therefore, by maintaining such a re-
quirement, the Respondent breaches its duty to fairly
represent employees in the processing of grievances,
thereby violating Section 8(a)(1)(A) of the Act; and that
Respondent's attempt to escape liability by, after the
charges were filed, "putting up" the bond for Kessinger
and Lindsey do not constitute an adequate remedy for
the bond, which there is no contention has been applied
or created in a disparate manner, was instituted by and is
paid to the National Referral Rules Committee—the
money does not go to the Union. The same committee in
August 1983 changed the character of a bond to an ap-
pearance bond returnable on the individual's appearance
at the hearing (as opposed to returnable only on winning
the appeal and lowered the amount from $100 to $50. It
is hornbook law that a union may charge a reasonable
fee for the use of its referral office and, here, there is no
charge for the registration and the referral and for proc-
essing nonreferral grievances under the collective-bar-
gaining agreement even though there could be. The joint
committee came from all over, they were not involved in
the day-to-day operations of the hiring hall, they were an
appellate review body composed of International and
employer representatives, and it makes good sense to re-
quire a good-faith deposit and the amount, given a wage
rate of $18.83 per hour, was not unreasonable. The $100
bond was not used as a disguised assessment of dues
against nonmembers because the bond was required of
everyone—member and nonmember—so as to discourage
frivolous appeals; it was not illegal per se. With respect
to Lindsey and Kessinger, the bond has no application
because Pennington put up the money and there was an
appellate hearing. There is no allegation or contention
that Respondent was part of the appellate tribunal, con-
trolled it in any respect, or Lindsey and Kessinger did
not receive a fair hearing despite their contention that
they were really not there and that the tribunal did not
have jurisdiction.
The following footnote appears at page 85 of Re-
spondent's brief:
145 In Coca-Cola Bottling Corp. 153 NLRB 1425 (1965), the
issue was the charging of a fee for the processing of a senionty
grievance. The AU found no violation, and the Board adopted the
decision. The ALT stated ". . . in the absence of any contention or
proof that the charge was being discriminatorily assessed as be-
tween employees represented by Local 235 or that the amount of
the fee being charged was so unconscionably high as to create sus-
picions that it amounted to something more than for services ren-
dered . . . in prosecuting the grievance . . . I find no coercion
upon or restrain of employees in their exercise of . . . (their rights
under the Act)." Coca Cola, 153 NLRB 1425, 1437.
The actual language reads as follows:
But in the absence of any contention or proof that
the charge was being discriminatorily assessed as
between employees represented by Local 235 or
that the amount of the fee being charged was so un-
conscionably high as to create suspicions that it
amounted to something more than compensation for
services rendered, and where the fee-charge was
withdrawn prior to the filing of the instant unfair
labor practice charge I find no coercion upon or re-
straint of employees in their exercise of self-organi-
zational rights.
In my opinion the $100-bond requirement violated
Section 8(b)(1)(A) of the Act. Here, unlike Coca-Cola
Bottling Corp., supra, the bond was not withdrawn prior
to the filing of the unfair labor practice charge. Here the
amount, when one takes into consideration the fact that
some of those involved were out of work and did not
have this kind of money to spare, was "so unconscion-
ably high" as to create suspicions that it amounted to
more than its ostensible purpose. Here it amounted to an
unlawful impediment. And the fact that an employee
could be right, as Kessinger was, and still lose the $100
simply because he was not sophisticated enough to ap-
preciate the situation and what was required could only
be chilling. (Certainly in view of the fact that he ten-
dered his letters, Kessinger did not wittingly withhold
information about his exact duties from the disputes com-
mittee.) The bond requirement breached the Union's
duty of fair representation.
As noted above, it is alleged that about March 14,
1983, Respondent arbitrarily refused to refer Long for
employment from its hiring hall unless he provided the
Respondent with a telephone number where he could be
contacted for referral other than the telephone number
of Wirthwein. This is a factual question with the General
Counsel contending, in effect, that the proof is in the fact
that Long stopped using Wirthwein's telephone number
and address after his conversation with Pennington, and
with Respondent contending that Pennington knew it
was Wirthwein's telephone number before the involved
referral call was made. Pennington's and Greulich's testi-
mony conflict. If the former is believed, he talked to
Long when Long put Wirthwein's telephone number on
the registration slip, he was hesitant to call Wirthwein's
telephone number, and "probably" advised Long that
Greulich would call Wirthwein's telephone number. If
Greulich is believed, Pennington did not talk to Long
when he placed Wirthwein's telephone number on the
registration slip and Pennington only after looking at the
signup slip declared that he recognized it as Wirthwein's
number. As pointed out by the General Counsel, Pen-
nington did not corroborate Greulich's testimony, which
was given in response to leading questions. Long is cred-
ited. By threatening to refuse to refer Long if he used
Wirthwein's telephone number, Respondent violated Sec-
tion 8(b)(1)(A) of the Act.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1409
Another factual question is whether Pennington re-
fused access to the out-of-work list. On brief, the Gener-
al Counsel at pages 30-31, contends as follows:
The Board has consistently held that unions have
a duty to permit applicants for referral to examine
and/or copy the referral records. Local 324, Inter-
national Union of Operating Engineers, 226 NLRB
587 (1976); Laborers' Local 252, 233 NLRB 1358
(1977); Boilermakers No. 154, 253 NLRB 747 (1981);
Carpenters Local 1080, 255 NLRB No. 114; Bartend-
ers Local 165, 261 NLRB No. 67 (1982). As the Ad-
ministrative Law Judge noted on similar facts, in
Local 324, International Union of Operating Engi-
neers, supra, at 598,
where an employee seeks information from his
collective-bargaining agent in a "matter affecting
his employment," and the Union establishes on
the record no arguably reasonable basis for refus-
ing to supply that information, I must conclude
that the Union's conduct is arbitrary.
The union there had advanced a claim similar to
that of the Respondent in this case that preparation
of the list was unduly burdensome. The Board gave
that claim short shrift:
. . . Respondent's claim that preparation of a list
of out-of-work-employees would be unduly bur-
densome is totally undermined by its admission
that out-of-work indices. . . are in the possession
of its business agents and it was Respondent who
refused to permit [Charging Party] Carlson to
make his own list.
The Board concluded that the Respondent in that
case unjustifiably refused to furnish job-referral in-
formation in violation of Section 8(b)(1)(A) of the
Act. A similar finding should be made in this case.
Respondent contends that "the one alleged refusal to let
Wirthwein continue to copy names after he had written
out 50 names because of the time constraints does not
rise to the level of a violation" (emphasis added) and that
even if true, an isolated incident does not constitute a
violation of the Act. This was not the first time Re-
spondent denied access to the out-of-work list. Greulich's
testimony regarding whether she denied Duffium access
to the list is not credited. In my opinion she was less
than candid with regard to at least one other incident,
namely, Long's above-described registration slip with
Wirthwein's telephone number and address. This was not
an isolated incident. Respondent's other assertion, that
Wirthwein had already copied about 50 names, raises a
question, namely, if he had copied 50 names why not let
him copy the few remaining names. But Wirthwein's tes-
timony was that he had only copied 2 of the approxi-
mately 50 names when Pennington took the list. He was
entitled to know who was below him on the referral list
so he would know if he was being bypassed. Being told
that he was eighth on the list was not sufficient. In deny-
ing Wirthwein full access to the out-of-work typed list
Respondent violated Section 8(b)(1)(A) of the Act.
As noted above, it is alleged that on July 13, 1983, Re-
spondent improperly placed Johnson at the bottom of
the out-of-work list. On brief, the General Counsel con-
tends: Respondent's claimed uniform policy to count the
time that the job ran rather than the time that the indi-
vidual worked in determining whether an individual was
entitled to retain his former position on the out-of-work
list was not so uniformly enforced as "Pennington would
have us believe" (G.C. Exh. 27). Those who quit jobs or
who failed their welding tests retained their position on
the out-of-work list notwithstanding the fact that the
jobs ran over 120 hours. Pennington administered the re-
ferral rules in an inconsistent manner and exercised dis-
cretion to retaliate against those who crossed him like
Johnson, who was a plaintiff in the above-described law-
suit. The Respondent could identify only one employee,
other than Johnson, who was sent to the bottom of the
list based on hours not actually worked, and that individ-
ual had been referred to a 120-hour job, and took a vol-
untary layoff 1 day before the end of the job in order to
avoid the effect of the rule, which is significantly differ-
ent from Johnson's case, where he was off work,
through no fault of his own, due to an on-the-job injury.
The so-called uniform policy that the Respondent ap-
plied to Johnson is not spelled out in writing, it was not
explained to Johnson at the time it was applied to him—
nor at any time before the hearing in this case, and it has
not been applied to any other employees in similar situa-
tions; and, under those circumstances, the uniformity of
the policy is somewhat difficult to perceive. The General
Counsel contends that Johnson's removal from the out-
of-work list was discriminatory and not in accordance
what the Respondent's published rules; Respondent dis-
criminatorily placed Johnson's name at the bottom of the
list on July 13, 1983, because of his lawsuit against the
Union. As the administrative law judge noted in Plumb-
ers Local 598 (Columbia Contractors), 250 NLRB 75, 83
(1980):
[lit is not necessary to show motivation where the
Union, as here, departs from its lawful contractual
hiring hall rules and the admitted standards of refer-
ral in denial of employment. Such action, standing
alone, is discrimination which inherently discour-
ages [sic] union membership. [Emphasis added.]
In denying Johnson opportunities for employment in
contravention of its established referral rules, the Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act.
Respondent, on brief, contends: The only fair way to
administer the referral procedure is to use the hours
which the job runs, otherwise someone would have to
keep track of hours and determine whether a person who
missed worktime due to illness, vacation, etc., had a
valid reason. It has not been demonstrated that the 120-
hour rule has been applied differently to anyone. Usually
a person receiving a workman's compensation can return
to his job when able. Even accepting Johnson's interpre-
tation, he did not return to the union office within 1
business day after leaving the job, so he lost his position
on the out-of-work list. "General Counsel would substi-
tuite its judgment for the International and the National
1410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joint Rules Committee" (R. Br. 79). The Board has rec-
ognized the union's right to adopt and follow its own
rules to guarantee the integrity of the system. The parties
have the right to establish their own referral rules and, as
pointed out in Pacific Maritime Assn., 155 NLREB 1231,
1234 (1965), "[I]t is not the Board's function to weigh
the wisdom of the Union's stated objective." The Gener-
al Counsel can identify no instance when this standard
policy was not uniformly applied.
Respondent's position in July 1983 (before the rule
change) regarding an individual who is fired from a job
even though that job then runs over 120 hours was: If
the individual came to the hall within 1 business day
after being fired and reconfirmed his availability, he did
not lose his place on the out-of-work list and in fact ad-
vanced on the list as those above him were sent out
during the 15 days he was suspended (first firing) and
could not be referred. And notwithstanding Peimington's
general statement to the contrary, it would appear that,
in light of the fact that Wirthwein was eighth on the out-
of-work list on December 29, 1982, even though he quit
a job on December 14, 1982, the same was true with re-
spect to a person who, at least in one instance, quit a job.
It is noted that in one other instance an individual who
intentionally attempted to curcumvent the 120-hour rule
by requesting and receiving a voluntary layoff within
hours of the 120-hour deadline went to the bottom of the
list when he subsequently registered. Johnson was fired
but he could not reconfirm his availability because he
was under a doctor's care. Johnson was not trying to cir-
cumvent the 120-hour rule. This is a situation where i
man was injured on the job and was precluded from
completing the 120 hours. The Respondent stipulated
that it had notice of the injury. It does not have a rule
which specifically speaks to the situation at hand.
Rather, it was an exercise of discretion on Pennington's
part. In my opinion his interpretation was not reasonable
and the General Counsel has made a sufficient showing
that it was made in retaliation for Johnson's role in the
concerted protected activity, the lawsuit against the Re-
spondent.
Finally, as noted supra, it is alleged that on June 6,
1983, the Respondent unlawfully suspended Wirthwein
from its out-of-work list for a period of 15 days. The sus-
pension allegedly was the result of Wirthwein refusing
two consecutive job offers. Wirthwein, however, denies
that he refused a job offer on January 7, 1983. The Gen-
eral Counsel points out that because a copy of Wirth-
wein's referral cards (C.P. Exh. 9) contains an entry for
January 31, 1983, but not the January 7, 1983 entry, the
entry for the latter date was made well after the entry
for January 31, 1983; and that the spiral notebook entries
about the matter are inconsistent. It is contended by the
General Counsel that even apart from the inconsistencies
between Respondent's records and the testimony of its
witnesses, Wirthwein's version of the incident is simply
inherently more credible because it is unlikely that
Wirthwein would have called back specifically to refuse
the referral when simply not calling would have
achieved the same result with less effort and no possible
penalty. Respondent contends that the testimony of
Greulich and the inconsistent affidavits of Wirthwein all
demonstrate that Wirthwein did refuse a job on January
7, 1983.
At page 2339 of the transcript, Greulich testified that
when Wirthwein refused the referral on January 7, 1983,
she "then had to get back to Larry [Pennington]. He had
to send someone else." As noted above, the following
appears in Pennington's spiral notebook:
1-7-82 [sic]
. . . .
9:12 a.m. Called Paul Wirthwein—not available was
given 1 hr. to return call, he did not call back.
Called back and said that his back was messed up &
refused the Referral
10:25 a.m. Called Joe Frantz—answered and accept-
ed referral
If Greulich's entry for 9:12 a.m. (disregarding what Pen-
nington later added) is correct, by about 1 hour after
9:12 a.m., Wirthwein had not called in. And if Greulich's
above-described testimony, namely, she "then had to get
back to Larry. He had to send someone else" is accepted
and her next above-described entry is correct, Wirthwein
would have had to call her between the end of his 1-
hour period and the time that Frantz was referred out at
10:25 a.m. This raises a question, namely, why would she
then, when she subsequently made the 10:25 a.m. entry,
not modify the entry she made just before that? Wirth-
wein impressed me as being a credible witness. That is
not the case with Greulich. 53 Respondent's position re-
garding this matter, in my opinion, was little more than
an afterthought that occurred sometime between January
31 and February 14, 1983. In suspending Wirthwein from
the out-of-work list on June 6, 1983, Respondent violated
Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1.Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Combustion Engineering, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. By threatening employees with loss of employment
if they did not sign what they were led to believe were
checkoff forms authorizing deductions for a savings
fund, Respondent engaged in an unfair labor practice
within the meaning of Section 8(b)(1)(A) of the Act.
4. The Respondent and the Employer have been par-
ties to a collective-bargaining agreement requiring that
Respondent be the sole and exclusive source of referrals
of employees to employment with the Employer and
with the other Employers who are signatory to the
above-described agreement.
5. By failing and refusing to use the same criteria or
the contractually provided criteria for establishing the
requisite 8000 hours of qualifying experience, by refusing
53 At one point OrenItch was asked whether it was the same day, Jan-
uary 7, 1983, when Wirthwein called her about the job offer to which
she responded: "It—it must have been." This alone does not make me
doubt Greulich. Rather, she did not impress me as being a credible wit-
ness regarding this and other matters dealt with herein.
BOILERMAKERS LOCAL 374 (CONSTRUCTION ENGINEERING) 1411
to refer for employment or register for referral Raymond
Kessinger and David Lindsey, and by refusing to explain
to these two individuals the basis for rejection of their
qualifying experience Respondent has (1) violated its
duty to fairly represent Raymond Kessinger and David
Lindsey and thereby violated Section 8(b)(1)(A) of the
Act, (2) violated its contractual and statutory obligation
to operate the contractual exclusive referral procedures
in a nondiscriminatory manner, and thereby violated Sec-
tion 8(b)(I)(A) of the Act, and (3) has caused the Em-
ployer and signatory employers to discriminate against
Raymond Kessinger and David Lindsey in violation of
Section 8(a)(3) of the Act because they have engaged in
litigation with Respondent and have otherwise engaged
in conduct to which Respondent was opposed and Re-
spondent thereby has been engaged in unfair labor prac-
tices within the meaning of Section 8(b)(2) of the Act.
6. By improperly placing Robert Johnson at the
bottom of the out-of-work list on July 13, 1983, because
the employee had been engaged in litigation against the
Respondent or otherwise engaged in activities opposed
by the Respondent, Respondent has violated Section
8(b)(I)(A) of the Act, it has violated its duty to fairly
represent its members and employees in the unit it repre-
sents, it has violated its contractual and statutory obliga-
tions to operate the contractual exclusive referral proce-
dures in a nondiscriminatory manner, and it has caused
the Employer and signatory Employers to discriminate
against Robert Johnson in violation of Section 8(aX3) of
the Act because Robert Johnson engaged in litigation
with Respondent and had otherwise engaged in conduct
to which Respondent was opposed, and Respondent
thereby has been engaged in unfair labor practices within
the meaning of Section 8(b)(2) of the Act.
7. By requiring its members and other applicants for
referral from its exclusive hiring hall to post a $100
appeal bond before processing grievances concerning the
operation of its exclusive hiring hall, Respondent has re-
strained and coerced, and is restraining and coercing,
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and Respondent thereby has been
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
8. By arbitrarily refusing to refer Carlton Long for
employment from its hiring hall unless he provided the
Respondent with a telephone number at which he could
be contacted for referral other than the telephone
number of Paul Wirthwein because he engaged in litiga-
tion with Respondent and has otherwise engaged in con-
duct to which Respondent was opposed, Respondent has
restrained and coerced, and is restraining and coercing,
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and the Respondent thereby has
been engaging in unfair labor practices within the mean-
ing of Section 8(bX1)(A) of the Act.
9. By refusing full access to its out-of-work list not-
withstanding its fiduciary obligation to provide such in-
formation Respondent engaged in an unfair labor prac-
tice within the meaning of Section 8(b)(1)(A) of the Act.
10. By suspending Paul Wirthwein on June 6, 1983,
from the out-of-work list for 15 days and thereby depriv-
ing him of any opportunity of being referred for employ-
ment during that period because he had filed charges and
given testimony under the Act, and has otherwise en-
gaged in conduct to which the Respondent was opposed,
Respondent has caused and attempted to cause, and is
causing and attempting to cause, an employer to dis-
criminate against its employees in violation of Section
8(a)(3) of the Act, and the Respondent thereby has been
engaging in unfair labor practices within the meaning of
Section 8(b)(2) of the Act, and the Respondent has re-
strained and coerced, and is restraining and coercing,
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and the Respondent thereby has
been engaging in unfair labor practices within the mean-
ing of Section 8(bX1)(A) of the Act.
11.By improperly making referrals from the above-de-
scribed trainee list in deliberate circumvention of the re-
ferral procedures, Respondent has been engaging in
unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act.
12.The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(b)(1)(A) and (2) of the Act as set forth above, it will be
recommended that it be ordered to cease and desist from
such conduct and take affirmative action designed to ef-
fectuate the policies of the Act. As it has been found that
Respondent violated the Act by denying employees the
opportunity to see and copy the names from the out-of-
work list, Respondent will be ordered to make referral
records available for viewing and copying by any bona
fide referral registrant whose employment opportunities
are affected by them.
Having found that Respondent unlawfully denied con-
sideration for referral and referral to Raymond Kessinger
and David Lindsey it shall be ordered to make them
whole for any loss of earnings suffered as a result of the
discrimination against them by payment to them of sums
of money equal to that which they normally would have
earned as wages from the date of discrimination against
them until such time as Respondent properly refers them
to employment pursuant to the lawful operation of its re-
ferral system, less net earnings during such period.
Having found that the Respondent unlawfully placed
Robert Johnson at the bottom of the out-of-work list and
unlawfully suspended Paul Wirthwein, they too shall be
made whole for any loss of earnings suffered as a result
of these actions in the same manner as described above.
Similarly, those unlawfully bypassed on the trainee list
should be made whole. Backpay and interest thereon is
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).
In view of the number and seriousness of the unfair
labor practices found, I shall recommend that the Board
adopt a broad order requiring the Respondent to cease
and desist from infringing in any manner on employee
rights guaranteed by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
1412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, Respondent shall be ordered to operate its ex-
clusive job-referral system in a nonarbitrary and nonca-
pricions =men
[Recommended Order omitted from publication.]