Great Lakes Construction Co., Local 423, Afl--Cio

National Labor Relations Board - Board Decisions

May 14, 1990

298 N.L.R.B. 498 (N.L.R.B. 1990)

498 DECISIONS OF THE NATIONAL, LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local Union No. 423, AFL-CIO (Great Lakes
Construction Company) and James R. Shoemak-
er. Case 9-CB-7192
May 14, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 5, 1989, Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion in this proceeding. The General Counsel filed
exceptions and a supporting brief and the Respond-
ent filed an answering brief to the General Coun-
sel's exceptions.
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' and to adopt the recommended
Order.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Columbus, Ohio, on June 21,
1989, and briefs subsequently were filed by General
Counsel and the Respondent. The proceeding is based
upon a charge filed January 8, 1989, by James R. Shoe-
maker, an individual. The Regional Director's complaint
dated February 28, 1989,1 alleges that Respondent La-
borers' International Union of North America, Local
Union No. 423, AFL-CIO violated Section 8(b)(1)(A) of
the National Labor Relations Act by the operation of its
exclusive hiring hall under procedures requiring individ-
uals utilizing the hiring hall to be physically present in
order to be referred to employment and by relying upon
the unverified representations of individuals utilizing the
hiring hall in order to maintain the individuals' position
on the referral list.
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
1. JURISDICTION
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and the complaint is dismissed.
1 In adopting the judge's recommended dismissal of the complaint, we
affirm his view of Iron Workers Local 505 (Snelson Anvil), 275 NLRB
1113 (1985), and reject the General Counsel's interpretation of Snelson as
holding that a union's reliance on physical presence as a criterion in
hiring hall referrals is per se unlawful . The General Counsel retied on the
following language from Snelson in asserting that physical presence can
never properly be used in making referrals. "use of this criterion [physi-
cal presence] without more falls short of the objective nondiscriminatory
standard which the Board has held must be the basis for hiring hall refer-
rals." Snelson , above at 1114 (emphasis added). Although the quoted lan-
guage, standing alone, might appear to support the General Counsel's
contention , a reading of the case in its entirety makes clear that it is only
when physical presence is the sole basis for a referral that it is found to
be a nonobjective, unlawful criterion. For example, when no other objec-
tive guidelines exist and presence alone serves as a referral qualification,
there is no nonarbitrary method of selecting among a greater number of
"present" applicants than available jobs. In such a case, a physical pres-
ence referral basis falls short of an objective standard. None of the prece-
dents cited in Snelson support a rule that presence as "a" factor as part of
a multifactor standard is an arbitrary or inherently suspect consideration;
and no case since then has followed so stringent a rule. In any event, to
the extent that any such implication could be discerned in Snelson, we
disavow it Accordingly, we find that the judge has correctly interpreted
applicable precedent and dismiss all allegations against the Respondent.
Damon W. Harrison Jr., Esq., for the General Counsel.
Lawrence M. Oberdank, Esq., of Cleveland, Ohio, for the
Respondent.
The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act and it has had a
long collective-bargaining history with the Central Ohio
Division, Ohio Building Chapter Associated General
Contractors of America, Inc. Employer Great Lakes
Construction Company is an Association member and it
otherwise in the last 12 months engaged in construction
projects in the Columbus, Ohio area and purchasing and
receiving goods and materials valued in excess of $50,000
directly from points outside of Ohio and I find that the
circumstances meet the Board's jurisdictional standards
and it effectuates the policy of the Act to exercise juris-
diction in a case of this nature.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union has operated a hiring hall under the labor
agreement with the Employers Association for approxi-
mately 12 years. This agreement requires that the Union
be the exclusive source of referrals of employees to em-
ployment and Respondent is required to maintain a facili-
ty at which it establishes and maintains employment lists
for use by applicants for employment in its geographic
area.2
At its union offices, Respondent maintains lists utilized
by referral applicants. Initially, an individual must appear
in person at the union hall and complete an application
in order to have his name placed on the hiring hall list.
Thereafter, on subsequent Mondays, between 8 a.m. and
1 p.m., the individual must either appear at the union hall
i All following dates will be in 1988, unless otherwise indicated.
2 Respondent also has a contract with the Ohio Contractors Associa-
tion known as the Heavy Highway Agreement and in making referrals to
employers signatory to or bound by either contract, Respondent utilizes
the same referral procedures
298 NLRB No. 68
LABORERS LOCAL 423 (GREAT LAKES CONSTRUCTION)
or call in by telephone, in order to have his name
checked off in order to remain current on the referral list
(on Mondays which are holidays an automatic checkoff
is given to everyone on the list for the week).
Union agents call the out -of-work list, beginning with
the first person on the A list each morning when jobs are
available and applicants understand that they must be
physically present to be referred to work. Those who are
absent do not loose their position on the appropriate out-
of-work list, nor do applicants who are present in the
hall and refuse to accept employment . The hiring hall
procedures also allow applicants to accept jobs that last
less than 7 days without fear of loosing their position on
the out-of-work list, and union officials accept their
word on this question unless they have objective reason
to believe otherwise . If an individual has worked more
than 7 days, his name will be placed at the bottom of the
appropriate out-of-work list . Otherwise, Respondent gen-
erally does not conduct any sort of investigation or make
inquiry of employers to verify the information which the
individual supplies in order to have his name placed back
on the list.
The referral list is available for inspection by persons
wishing to see it and the list is prepared and maintained
by and kept in the possession of union officials at all
times . The Union does not telephone or contact persons
at home for referrals , the referral list does not have the
individuals' telephone numbers listed, and Respondent
does not, in its regular course of business , maintain a list
of telephone numbers of the individuals utilizing the
hiring hall.
When an applicant is referred to employment from the
list, a notation of the employer to which the individual is
referred is made beside his name. Individuals may be re-
called by an employer if they have worked for that em-
ployer in the past year and these employers may contact
individuals directly without going through the union
hall. On occasion , an employer may contact the union
hall in order to locate an individual for recall and if that
person is present , the union representative will advise
him/her of the recall. Although the written rules pro-
vides that if an individual referred to work is employed
less than 3 days his name will remain on the referral list
in the position it was prior to that referral, in its regular
practice Respondent does not remove a referred individ-
ual's name from the list unless he has worked at least 7
days.
The record shows that individuals B. F. Woolum and
N. W. Rawlins were referred to work with Henkles &
McCoy on a pipeline job in the Deer Creek Reservoir
area on September 13. Their names do not appear on the
referral list for the weeks of September 19 or 26. Their
names appear again on the referral list of October 3, at
spots 12 and 13, respectively, approximately the same lo-
cations they were on the list prior to being referred to
Henkles & McCoy.
The September monthly reports filed by Henkles &
McCoy show that Woolum worked 120 hours and that
3 Monthly reports are filed by employers with the Laborers ' District
Council's Fringe Benefits Funds in Columbus, Ohio, which show the
number of hours that employees worked during the previous month so
499
Rawlins worked 117 hours in September , numbers that
mathematically would indicate that they worked in
excess of the number of hours that would allow their re-
tention in the same position on the out-of-work list.
III. DISCUSSION
Here , there is no assertion or showing that the Charg-
ing Party or any particular individual was denied referral
for any discriminatory reason or that preferential refer-
rals were arbitrarily or pretextually given to, others.4 As
noted by the Respondent, the Charging Party otherwise
is shown to have received timely referrals to jobs lasting
over 7 days, including one in September 1988 to Great
Lakes Construction that lasted approximately 13 clays,
after which he was placed back on the list in accordance
with the regular procedures . Accordingly, the two issues
presented here are (1) whether Respondent violated the
Act by operating its exclusive hiring hall under proce-
dures requiring individuals utilizing the hiring hall to be
physically present in order to be referred to employment
and (2) by operating without objective referral criteria in
that it relies upon the unverified representations Of indi-
viduals utilizing the hiring hall in order to maintain the
said individuals ' position on the referral list.
The General Counsel relies upon the decision in Iron
Workers Local 505 (Snelson-Anvil), 275 NLRB 1113, 1114
(1985), in which the Board said that the respondent's re-
liance on a registrant's physical presence in the hiring
hall to justify out-of-sequence referrals was misplaced,
saying: "It is well established that the use of this crite-
rion, without more, falls short of the objective, nondis-
criminatory standard which the Board has held must be
the basis for hiring hall referrals" and citing Plumbers
Local 619 (Bechtel Corp.), 268 NLRB 766 (1984), specifi-
cally and Polls Wallcovering Co., 262 NLRB 1336 (1982).
A review of these decisions clearly shows that no per se
rule exist regarding the invalidity of any hiring hall rule
which requires a participant's physical presence. The ap-
plicable criteria requires a showing that the hiring hall
arrangement , as administered by the Union, ignored ob-
jective criteria or standards for the referral of employees
and allows referrals under circumstances which might
accord arbitrary preference to some class of participant.
Here, the record shows that the, hiring hall operates
under objective rules, which include the weekly placing
of names on comprehensive lists which are maintained in
an orderly and updated manner . Information about a par-
ticipant's place on the lists, and the rules and procedures
for retaining one's position on the lists are made avail-
able. In addition , the Respondent 's practice over the last
12 years has been to call the out-of-work list for avail-
able job referrals each morning and it is required that
those listed be physically present to accept a referral to
work . Otherwise , no attempt is made to phone those
listed but not present, however, they do not loose their
that those organizations can keep track of hours worked for pension fund
and benefit purposes Respondent routinely, and in the regular course of
business, receives copies of these reports
4 There also is no allegation that the practice of allowing retention of
position on the list for persons employed 7 rather than 3 days is discrinu-
natory or otherwise improper
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
position on the list and refusal to accept a particular job
likewise does not alter one's position on the list. There is
no showing or indication that the requirement regarding
physical presence has been the cause of any problem or
that it has caused or resulted in any discriminatory refer-
rals, arbitrary or pretextual preference to some individual
or class of participant, or that significant deviations oc-
curred in the administration of its procedures.
After a comprehensive examination of a number of un-
derlying records, including monthly reports of hours
worked, from employers' filings with the union benefits
fund (reports which generally are not used by the local
union in monitoring its referral system), the General
Counsel discovered two 5 significant potential deviations
which demonstrated that two separate individuals
worked 120 and 117 hours, respectively, during Septem-
ber yet maintained their same place on the referral list
for early October even though their names were not on
the list for the last 2 weeks of September and it would
appear from the total number of hours worked that they
likely could have worked more than 7 days.
The record otherwise shows that the Union's agents
generally accept the verbal word of employees who
report back to the hiring hall that their job referral have
lasted less than 7 days and that such individuals are then
given their former spot on the referral list without any
other action on the part of the Union to confirm the
truthfulness of the statement. Otherwise, the Union indi-
cated that agents regularly check jobsites on a daily basis
and are generally familiar with the persons on the job
and if a possible abuser is suspended or brought to their
S A few other possible deviations were reviewed which showed some
named workers with, for example 62 hours of work on a job, without
loss of position on the list, however, the Respondent's witness explained
that some rush and emerging type jobs require weekend work and as
many as 12-15 hours a day and that a total of 62 hours would not neces-
sarily reflect more than 7 days of work.
attention, further checks are made, however, no such
checks were made in the first 6 months of 1989.
Here, I find that at the most the Respondent is shown
to have failed to catch two instances of deception or mis-
take on the part of participants in the hiring hall which
may have resulted in their names being retained at a high
spot on the referral list rather than being placed at the
bottom. The accuracy of this speculation is not otherwise
confirmed by any specific payroll records or any testi-
mony from these individuals or a representative of the
Employer involved.
I find that the mere existence of a, practice which re-
quires the physical presence of participants for referral
from the hiring hall list standing alone is not shown to be
invalid.
Under these circumstances, I further conclude that the
evidence of any impropriety on behalf of the Respondent
is more speculative than persuasive and, in the absence of
any showing of past problems or some pattern of abuse
in the Union's administration of its hiring hall, I find that
the record is insufficient to demonstrate a lack of objec-
tive standards and reasonable adherence to those stand-
ards that would be arbitrary or capricious or otherwise
would be violative of Section 8(b)(1)(A) of the Act. Ac-
cordingly, I find that the General Counsel has failed to
persuasively show that the Respondent has violated the
Act, as alleged, and I therefore will recommend dismissal
of the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The complaint is dismissed in its entirety.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purpose.