Carpenters Local 370 (Eastern Contractors Assn.)

National Labor Relations Board - Board Decisions

Sep 20, 2000

332 N.L.R.B. 174 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
Local Union 370, United Brotherhood of Carpenters
& Joiners of America, AFL–CIO (Eastern Con-
tractors Association, Inc.) and John Newell Jr.
Case 3–CB–6913
September 20, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On October 25, 1996, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
Background
The facts, as more fully set forth by the judge, may be
briefly summarized as follows. Carpenters Union Local
370, the Respondent Union, was formed in 1985 by the
merger of Carpenters Local Unions 1150 and 117.
Charging Party John Newell Jr. has been a member of
Respondent Union since its formation. Prior to that, the
Charging Party was a longtime member of Local 1150.
He has been active in union affairs. He once served as
recording secretary for Local 1150. In 1990 and 1993,
he unsuccessfully ran for office in the Respondent Un-
ion. He filed internal union charges regarding both these
defeats. After his defeat for office in 1993, he filed
charges with the Department of Labor. He has also filed
charges with the NLRB alleging discrimination regarding
job referrals.
The Respondent Union has operated a nonexclusive
hiring hall.1 Since February 1995, Newell regularly
signed the Respondent’s out-of-work list. According to
Newell, he heard from other members that various indi-
viduals, whose names were lower on that list than his,
were working when he was not. Accordingly, in January
1996, he wrote to Respondent Union requesting informa-
tion about those persons who had been referred, or
worked, at certain construction projects in the Albany,
New York area. The Respondent did not respond to the
Charging Party’s request.
Analysis
The issue in this case is whether the Respondent was
obligated to provide Charging Party Newell with the in-
formation he requested regarding the Respondent’s op-
eration of a nonexclusive hiring hall. The judge con-
cluded that the Respondent violated Section 8(b)(1)(A)
of the Act by failing to provide the Charging Party with
the requested information. For reasons that follow, we
find that, under Board precedent, the Respondent was not
legally obligated to provide the requested information.

1 The complaint alleged, the Respondent admitted, and it is thus un-
disputed that the hiring hall operated by the Respondent is a nonexclu-
sive hiring hall.
As the judge correctly noted, in the context of a un-
ion’s operation of an exclusive hiring hall, it is well set-
tled that a union is obligated to provide those seeking
work through the hall with relevant information regard-
ing referrals so that employees may be assured of fair
treatment. See, e.g., Operating Engineers Local 3 (Kiewit
Pacific Co.), 324 NLRB 14 (1997); Boilermakers Local
197 (Northeastern State Boilermaker Employers), 318
NLRB 205 (1995); and Operating Engineers Local 513
(Various Employers), 308 NLRB 1300 (1992).
Further, in the context of a union’s operation of a non-
exclusive hiring hall, the Board has held that a union
may not retaliate against a member seeking to obtain
referrals because he or she engaged in activities protected
by Section 7 of the Act. See, e.g., Carpenters Local 626
(Strawbridge & Clothier), 310 NLRB 500 fn. 2 (1993);
Carpenters Local 537 (E. I. du Pont), 303 NLRB 419
(1991).
As the judge recognized, in Teamsters Local 460 (Su-
perior Asphalt), 300 NLRB 441 (1990), the Board set
forth the established principle that no duty of fair repre-
sentation attaches to a union’s operation of a nonexclu-
sive hiring hall. As the Board, at 442, stated:

Where a union has a nonexclusive referral ar-
rangement with an employer, the union has no ex-
clusive status relating to potential employees. Indi-
viduals can obtain employment either through the
union’s hiring hall or through direct application to
the employer. Without the exclusive bargaining rep-
resentative status, the statutory justification for the
imposition of a duty of fair representation does not
exist.

As the Board further set forth in Carpenters Local 537
(E. I. du Pont), supra at 420, “No duty of fair representa-
tion attaches, however, to a union operation of a nonex-
clusive hiring hall because the union lacks the power to
put jobs out of reach of workers.”
While finding that no duty of fair representation at-
tached to the Respondent’s operation of a nonexclusive
hiring hall, the judge concluded that the absence of that
duty was not dispositive of the issue in this case. He
acknowledged that the issue here was not discrimination
in referrals, but he nonetheless found that the Charging
Party was entitled to information to ascertain whether the
Union was properly referring members.
332 NLRB No. 25
CARPENTERS LOCAL 370 (EASTERN CONTRACTORS ASSN.) 175
In reaching his conclusion that the Respondent vio-
lated Section 8(b)(1)(A), the judge relied on the reason-
ing of a judge in Hi-Way Paving Co., 297 NLRB 835
(1990). In Hi-Way Paving, a judge found that a union, in
the context of a nonexclusive hiring hall, violated Sec-
tion 8(b)(1)(A) by refusing to supply a member with in-
formation about referrals. The Hi-Way Paving judge
found a violation even though he did not find that the
union was retaliating for the member’s Section 7 activity.
However, the respondent union in Hi-Way Paving did
not file exceptions to the judge’s findings. Thus, the
Board adopted the judge’s 8(b)(1)(A) findings on a pro
forma basis and had no occasion to address, or pass on,
the merits of the judge’s findings.2 Thus, we apply the
precedent of Superior Asphalt, rather than the nonprece-
dential holding in Hi-Way Paving.3 Absent either a find-
ing that the Union owed the Charging Party a duty of fair
representation in these circumstances, or a finding that
the Union was retaliating against the Charging Party be-
cause he engaged in Section 7 activity, there is no basis
to conclude that the Union violated the Act by failing to
provide Newell with the requested information.
The judge’s reasoning, that Charging Party Newell
could use the requested information as “a predicate” for
establishing that the Union has engaged in unlawful dis-
criminatory conduct, is an insufficient basis for holding
that the Respondent was obligated to provide the re-
quested information. As the judge himself noted, the
Board, in Carpenters Local 537, supra at 420, explicitly
agreed with, and adopted, the following language from
Teamsters Local 17 (Universal Studios), 251 NLRB
1248(1980): “[I]t is therefore only when a union operat-
ing a nonexclusive referral system ignores one of its
members because he or she engaged in activities pro-
tected by Section 7 of the Act that there is the ‘prohib-
ited’ interference with Section 7 rights within the mean-
ing of Section 8(b)(1)(A) of the Act.” [Emphasis added.]
Thus, to establish an 8(b)(1)(A) violation under this
precedent, the General Counsel needed to establish—as a
predicate to proving a violation of the Act—that the Un-
ion acted as it did toward Newell because Newell had

2 It is well settled that the Board’s adoption of a por tion of a judge’s
decision to which no exceptions are filed is not precedent for any other
case. ESI, Inc., 296 NLRB 1319 fn. 3 (1989); Anniston Yarn Mills, 103
NLRB 1495 (1953).
3 We need not address the Hi-Way Paving judge’s reasoning. We
note, however, that the Hi-Way Paving judge concluded his analysis by
citing Operating Engineers Local 825 (Building Contractors), 284
NLRB 188 (1987), a case involving an exclusive hiring hall.
In joining his colleagues in applying Board precedent to the facts of
this case, Member Hurtgen notes that no party to this proceeding has
challenged, or argued against, the existing precedent that the Board
today applies.
engaged in activities protected by Section 7. However,
the complaint here did not allege, and the judge did not
find, that the Respondent Union denied Charging Party
Newell information because Newell had previously en-
gaged in Section 7 activity.4 Further, the record would
not support any such finding. Contrary to the judge, the
case law, for this sort of violation of Section 8(b)(1)(A),
requires that the General Counsel establish that the Re-
spondent Union acted for a discriminatory motive, i.e., in
retaliation for a member’s protected activity.5 Thus,
even assuming arguendo that the complaint alleged such
a violation, the General Counsel failed to meet his bur-
den. Accordingly, there is no basis to find, under the
established precedent represented by Carpenters Local
537, that the Respondent’s failure to provide Newell with
requested information violated Section 8(b)(1)(A).
The complaint alleged, and the judge ultimately found,
that the Respondent’s denial of information to Newell
was “arbitrary and capricious.” This terminology is
regularly associated with a union’s failure to meet its
duty of fair representation. However, as noted, the judge
found here, and the General Counsel does not dispute
that, under Superior Asphalt, supra, no duty of fair repre-
sentation attached to the Respondent’s operation of its
nonexclusive hiring hall. Accordingly, the duty of fair
representation does not provide a basis for concluding
that the Respondent’s action (or, better stated, its inac-
tion) toward Newell violated Section 8(b)(1)(A) of the
Act.
We find that the General Counsel failed to establish
that the Respondent ignored Charging Party Newell be-
cause Newell engaged in activities protected by Section 7
of the Act. We further find that the Respondent did not
owe a duty of fair representation to Charging Party New-
ell regarding its operation of a nonexclusive hiring hall.
Accordingly, we cannot conclude that the Respondent’s
failure to provide Charging Party Newell with the re-
quested information violated Section 8(b)(1)(A) of the
Act and we shall dismiss the complaint.
ORDER
The complaint is dismissed.

Robert A. Ellison, Esq., for the General Counsel.
Dominick Tocci, Esq., for the Respondent.
4 Thus, significantly, the judge did not find that the Respondent
failed to provide the information to the Charging Party because the
Charging Party had in the past engaged in protected activity including,
inter alia, filing charges with the NLRB against the Respondent.
5 See, e.g., Longshoremen ILA Local 20 (Ryan-Walsh Stevedoring
Co.), 323 NLRB 1115, 1116–1117 (1997) (union violated Sec.
8(b)(1)(A) by denying a member’s request (i.e., O’Rourke’s request)
that he be added to a referral list in retaliation for the member’s pro-
tected activity).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
Peter Henner, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Albany, New York, on September 16, 1996.
The charge was filed on January 16, 1996, and was amended on
February 20, 1996.1 The complaint, which issued on April 29,
alleges that Charging Party John Newell Jr., an individual, was
arbitrarily and capriciously denied information that he re-
quested from Local Union 370, United Brotherhood of Carpen-
ters & Joiners of America, AFL–CIO (the Respondent), in vio-
lation of Section 8(b)(1)(A) of the Act. Respondent’s timely
answer admitted all jurisdictional allegations. It denied that
Newell requested information and that Respondent had refused
to provide information.
On the entire record, including my observation of the de-
meanor of the witness, and after considering the oral arguments
made by all parties at the hearing I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a labor organization that maintains a con-
tract with Eastern Contractors Association, Inc., an organiza-
tion of employers engaged in the building and construction
industry which annually purchases and receives goods and
services valued in excess of $50,000 at various jobsites in the
State of New York directly from points located outside the
State of New York. The Respondent admits and I find that the
Employer is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Respondent Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are not in substantial dispute. Charging
Party John Newell Jr., is and has been a member of the Re-
spondent Union since its formation in 1985. The Respondent
Union was formed that year when Local Unions 1150 and 117
merged. Newell was a member of Local 1150 for some 13
years, thus he now has a total of 24 years membership. Newell
had been the recording secretary of Local 1150 before the
merger and ran unsuccessfully for this office in 1990 and again
in 1993 in the merged Local 370. He filed internal charges
regarding both defeats and, following his unsuccessful internal
challenge to the 1993 election, he filed charges with the Labor
Department. Additionally he has filed numerous unfair labor
practice charges with the Regional Office of the Board alleging
discrimination regarding referrals.
The complaint alleges and the Respondent admits that it op-
erates a nonexclusive hiring hall.
The instant case arises from the Respondent’s failure to pro-
vide information to Newell pursuant to a request for informa-
tion by letter dated January 16. Every 3 weeks since February

1 All dates are 1996 unless otherwise indicated.
1995, Newell signed the Respondent’s out-of-work list. He
heard, through conversations with other members, that various
individuals whose names were below his on the out-of-work list
were working at various locations. This prompted him to send
the letter of January 16 in which he requested the names of all
persons who had been referred to and/or worked at 10 named
construction projects in the Albany area. He never received any
response.
B. Contentions of Respondent
Counsel for Respondent contends that there is no obligation
on the part of the Respondent to provide Newell the informa-
tion he requested. In this regard he initially argued that there
was no legal authority that required the requested information
be given and, therefore, the complaint fails to allege a violation
of the Act.2 He later argued that there was no obligation to pro-
vide the information since this case involves a nonexclusive
hiring hall and there has been no finding that Newell had actu-
ally been discriminated against. In this regard he pointed out
that Newell has filed several charges with the Regional Office
of the Board; however, no allegation of a discriminatory or
retaliatory failure or refusal to refer him has been found to have
merit.
Counsel also sought to raise a question regarding the suffi-
ciency of the information request. Thus, upon cross-
examination of Newell, he called paragraph 5 of the out-of-
work list procedure to Newell’s attention and questioned
whether persons could still appear on the list if they had been
working for 10 weeks. Newell agreed that they could. Counsel
then questioned Newell regarding why he had not asked for
information regarding the duration of employment. Newell
responded that he had made a subsequent request that sought,
inter alia, the duration of employment of members who had
been referred. This letter is dated April 4. Even if I were to find
that Newell’s initial request was incomplete, which I do not, the
information requested in the January 16 letter would establish
whether any person below Newell had been referred regardless
of the duration of the employment. Indeed, anyone working for
over ten weeks should not appear on the list either below or
above Newell’s name. I find the request clear and sufficient.
Newell sought information relating to all referrals made in the
last six months as well as any information regarding persons
known by Respondent to be working at any of the named pro-
jects.
C. Analysis and Concluding Findings
The issue presented in this case concerns the obligation of a
union to a member in the context of a nonexclusive hiring hall.
It is well settled, in the context of an exclusive hiring hall, that
a union is obligated to provide an employee seeking work
through the hall with requested data relating to referrals it has
2 Counsel moved for dismissal of the complaint on this ground at the
beginning and end of the hearing. This would appear to represent a
change in the Respondent’s position since Respondent did not file a
Motion for Summary Judgment pursuant to Sec. 102.24 of the Rules
and Regulations of the Board, but filed an answer to the complaint it
which it denied the paragraphs that alleged Newell’s request and its
failure to respond to the request.
CARPENTERS LOCAL 370 (EASTERN CONTRACTORS ASSN.) 177
made so that the employee may be assured that he is being
fairly treated. See Operating Engineers Local 513 (Various
Employers), 308 NLRB 1300, 1303 (1992).
The Board, in Teamsters Local 460 (Superior Asphalt), 300
NLRB 441 (1990), reiterated the established proposition that no
duty of fair representation attaches to a union’s operation of a
nonexclusive hiring hall. It is clear, however, that the absence
of a duty of fair representation does not preclude finding viola-
tions of the Act for unlawful mistreatment of members. The
Board has held in numerous cases that where there is discrimi-
nation against members in retaliation for their protected activi-
ties, Section 8(b)(1)(A) of the Act is violated. See Carpenters
Local 626 (Strawbridge & Clothier), 310 NLRB 500 fn. 2
(1993). The most recent restatement of this principle appears in
Carpenters Local 1102 (Detroit Edison Co.), 322 NLRB 198
(1996), where the Board, in the context of a nonexclusive hir-
ing hall, states that a union may violate Section 8(b)(1)(A) by
failing to act evenhandedly, that is, without discrimination
against members based on the exercise of Section 7 rights. Id.
at fn. 3.
Thus, the absence of a duty of fair representation is not dis-
positive of the issue in this case. If a union were to discriminate
or retaliate against a member, even in the context of a non-
exclusive hiring hall, the Act would be violated.3
The issue in the instant case is not discrimination in regard to
referral. Rather it is a refusal to respond to a request for infor-
mation that would, at least initially, establish whether members
whose names appeared on the out of work list after Newell’s
name had been referred to jobs whereas he had not. If they had
not been, he would be assured that there had been no discrimi-
nation or retaliation against him; if they had been, he could try
to determine whether the referrals were, nonetheless, proper or
whether he should seek redress for the improper referrals. I find
it immaterial that prior charges of discrimination were not
found meritorious. The last charge filed prior to the current one
was in 1994. As noted above, Newell testified that he had
signed the out-of-work list every 3 weeks since February 1995
without receiving a referral. He received information that
members whose names were below his were working. He
sought to assure himself that the Union was properly referring
members by seeking information from the Union.4

3 This principle is specifically discussed in Carpenters Local 537 (E.
I. du Pont), 303 NLRB 419 (1991), where the Board found no 8(b)(2)
violation since the union therein was operating a nonexclusive hiring
hall. In the decision the Board stated it agreed with, and quoted with
approval, language from Teamsters Local 17 (Universal Studios), 251
NLRB 1248 (1980). That language noted the absence of any obligation
to nonmembers stating “it is therefore only when a union operating a
nonexclusive referral system ignores one of its members because he or
she engaged in activities protected by Section 7 of the Act that there is
the prohibited ‘interference’ with Section 7 rights within the meaning
of Section 8(b)(1)(A) of the Act.” Id. at 420. The discussion by the
administrative law judge in Universal Studios makes clear that, with
regard to members, the union, although not having a duty of fair repre-
sentation, does have an obligation to act in an evenhanded manner
without discrimination based on the exercise of Sec. 7 rights. Supra at
1257.
4 When dealing in the realm of potential violations of Sec. 8(b)(2),
the legal ramifications of a failure to refer differ when the union is the
The Board, in Hi-Way Paving Co., 297 NLRB 835 (1990),
found a violation of Section 8(b)(1)(A) in the context of a non-
exclusive hiring hall where a union denied a “dissident” mem-
ber access to referral lists without evidence of discrimination on
the basis of the member’s dissident activities.5 It adopted the
following language of the administrative law judge:

Thus, the evidence substantiates a wrongful denial of access
to critical job referral data. Even if the hiring arrangement
were nonexclusive, the list remained as the means for ascer-
taining nondiscriminatory job priorities. Thus, as indicated,
ranking on the list determines who is referred whenever the
Union receives a blanket, unqualified request for labor. The
fact that employees are free to shop their own jobs, and that
the list may also be bypassed through an employer’s request
by name, does not limit an employee’s right to verify the list
against any information he might have bearing upon the
proper administration of the Union’s hiring authority. In this
regard, lists from the recent past, as well as that for the current
month, might provide a useful, if not conclusive tool, for de-
termining whether the member had been treated fairly. The
denial of access was a reminder of the Union’s power, and no
less an influence upon the membership than would be true in
the case of an actual discriminatory referral. Id. at 838.6

There was no requirement that the denial of a good-faith re-
quest for relevant information be shown to be discriminatorily
motivated. This is true because Section 8(b)(1)(A) of the Act
does not require proof of a discriminatory motive. Rather, the
prohibited conduct is action which either restrains or coerces
employees in the exercise of Section 7 rights. Insofar as a dis-
criminatory refusal to refer interferes with the exercise of Sec-
tion 7 rights, the denial of information that would be a predicate
for establishing such discrimination is, as was found in Hi-Way
Paving, coercive. The Respondent presented no evidence that
responding to Newell’s request would be unduly burdensome.
It never responded to his request in any manner whatsoever. I
find such behavior to be both arbitrary and capricious, as al-
leged in the complaint. This union member was not even given
the courtesy of a response. At hearing the Respondent con-

exclusive source of all referrals. The issue herein is, in the context of an
alleged. 8(b)(1)(A) violation, whether a union’s obligation to its mem-
bers regarding a good-faith request for information is dependent upon
the type of contract it has signed, i.e., whether it is operating an exclu-
sive or nonexclusive hiring hall. As discussed above, even in the ab-
sence of a duty of fair representation, Sec. 8(b)(1)(A) prohibits a union
from engaging in actions that restrain or coerce employees in the exer-
cise of their Sec. 7 rights.
5 In addition to the failure to provide information, Newell had, in the
instant case, alleged a retaliatory filing of internal charges against him
by the Respondent and failure to refer him. The dismissal of that aspect
of the charge has no bearing upon the Union’s obligation regarding the
information request.
6 Counsel for Respondent noted that the request in Hi-Way Paving
involved access to the out-of-work list, which was provided in the
instant case. A close reading of Hi-Way Paving reveals that the access
sought therein was to referral data and the conclusions of law specifi-
cally note the union’s refusal to permit review of “hiring hall referral
lists.” Id. at 838 and 845. In the instant case the out-of-work list pro-
vides no information regarding referrals actually made.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
tended it had no obligation to respond to Newell. The precedent
discussed and cited above holds otherwise. I find that the Re-
spondent’s failure to provide the requested information has
restrained and coerced its member in violation of Section
8(b)(1)(A).
CONCLUSIONS OF LAW
1. Eastern Contractors Association, Inc., is an employer en-
gaged in commerce with the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to provide John Newell Jr. with
requested information relating to referrals that it had made the
Respondent has restrained and coerced Newell and other mem-
ber employees in the exercise of rights guaranteed in Section 7
of the Act and has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically the Respon-
dent shall provide Newell with the information regarding refer-
rals that he sought in his request of January 16.
[Recommended Order omitted from publication.]