International Union of Operating Engeineers, Local 150

National Labor Relations Board - Administrative Judge Opinions

Dec 13, 2007

33-CB-004215 (N.L.R.B. Dec. 13, 2007)

JD(ATL)-36-07
Utica, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO
and Case 33-CB-4215
RICHARD CHIADO, An Individual
Deborah A. Fisher, Esq. for the General Counsel.
Dale D. Pierson, Esq., of Countryside, IL for
the Respondent.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Peoria, Illinois, on
October 1 and 2, 2007.1 The charge was filed on March 14, and it was amended on June 18.
The complaint, which was issued on May 31, alleges that International Union of Operating
Engineers, Local 150, AFL-CIO (Respondent) violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended, (Act) by, since about February 52 failing and refusing to properly
refer Richard Chiado to employment with Minnesota Limited, Inc. in violation of its established
hiring hall rules, and by on about February 12 threatening to deny work to Richard Chiado if he
tried to do anything about Respondent's refusal to refer him to employment on about February
7.3 Respondent denies violating the Act as alleged.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by Counsel for General Counsel and the Respondent, I make
the following
Findings of Fact
I. Jurisdiction
Minnesota Limited, Inc. (ML), a corporation with a job site located, inter alia, Pontiac,
Illinois, has been engaged in the business of pipeline excavation. The complaint alleges, the
Respondent admits, and I find that during the calendar year before the complaint herein was
issued, a representative period, ML, in conducting its business operations, derived revenues in
excess of $50,000 from the performance of services directly to customers located outside the
State of Illinois; that at all material times, ML has been engaged in commerce within the

1 All dates are in 2007 unless otherwise indicated.
2 At the end of the trial herein Counsel for General Counsel's motion to amend the complaint
to change the date in paragraph 5(d) of the complaint from February 7 to February 5 was
granted.
3 As noted above, the earlier reference in the complaint to February 7 was amended to
February 5.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
2
meaning of Section 2(2), (6), and (7) of the Act; and that the Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Respondent operates in Indiana, Illinois, and Iowa representing mostly heavy equipment
operators and other employees in heavy highway, building, and pipeline construction. It
operates hiring halls in its eight geographic districts. Each maintains an out-of-work list. When a
member registers for work, the member's name is placed on the bottom of out-of-work list. The
member fills out a work card on which the member indicates what equipment they can operate
and what qualifications they have. Members are referred from the top of the out-of-work list, if
they are qualified for the position. Employers seek qualified employees by submitting a work
order to Local 150. The work order is recorded. The Union's dispatcher then will then identify
the member who is at the top of the out-of-work list and qualified to do the work. However, (a) if
a member is already working for the involved employer, the employer can move that member to
a new job site without going to the out-of-work list, and (b) if a member worked for an employer
within the last 6 months that employer can request that member for a new job regardless of the
member's place on the out-of-work list.4 The employer has the final say on whether the member
referred out is qualified to perform the involved work.
With respect to pipelines, the National Pipeline Agreement (General Counsel's Exhibit
6), which is negotiated by the International Union of Operating Engineers, is administered by the
locals, including Local 150. Under the National Pipeline Agreement employers are permitted to
bring their regular employees to staff any job up to 50 percent of the number of employees
required for the job. Usually there is a pre-job conference involving the employer and Local 150.
What is involved, including the staffing of the project, would be discussed at this conference.
Dan Regan, who is assistant to the President of Local 150 and the Director of Pipeline and
Distribution, testified that under the National Pipeline Agreement a member of Local 150 cannot
solicit work directly with an employer signatory to that agreement and if he did, he could be
disciplined.
Counsel for General Counsel and the Respondent stipulated that Respondent's offices,
with respect to its referral procedure under the Building Agreement (General Counsel's Exhibit
2) and the Heavy and Highway and Underground Construction Agreement (General Counsel's
Exhibit 4) - with regard to construction work, operate as exclusive hiring halls; and Respondent
stipulated that the local's offices do refer individuals from the same lists to other industries but in
other industries that are not construction it cannot be an exclusive hiring hall by law but rather it
has to be considered a referral hall, and the Heavy Highway and Building and the Pipeline
Agreements are all construction agreements.5
When called by Counsel for General Counsel, Regan testified that he oversees the
Business Agent in pipeline; that each of the eight districts of Local 150 has a referral office; that

4 This is known as call back rights. By using it, the employer avoids having to "shake down"
(test) a new employee and train the new employee.
5 On brief Respondent indicates "[a]t the hearing the parties stipulated that the National
Pipeline Agreement … is a construction agreement and that the referral system operates as an
exclusive hiring hall.1
______________
1 Local 150's stipulation was with the caveat that under the National Pipeline
Agreement employers can obtain employees outside the Union's hiring hall (Tr. 22.)."
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
3
District 5's office is located in Utica, Illinois; that Article II, Section 7 of the Building Agreement
refers to Addendum No. 1 (General Counsel's Exhibit 3) of the Agreement, which Addendum
sets forth the procedures to be followed by the referral offices in making referrals to employers
who are signatory to the Building Agreement; that Article XII of the Heavy and Highway and
Underground Construction Agreement refers to Addendum No. 1, which is the same Addendum
referred to in the Building Agreement and which, as noted above, sets forth the procedures to
be followed by the referral offices in making referrals to employers who are signatory to the
Heavy and Highway and Underground Construction Agreement6; that in each district the same
referral office is used for both the Building Agreement and the Heavy and Highway and
Underground Construction Agreement; that Article II (I) of the National Pipeline Agreement,
which - as noted above - is General Counsel's Exhibit 6, provides that an employer has the right
to employ and bring onto the job men who are regular employees of that employer, with the
limitation that the employer cannot bring on more than 50 percent of the employees on the job;
that Article II(N) of the National Pipeline Agreement provides that in the event a valid non-
discriminatory exclusive referral procedure has been established by collective bargaining
between a local of the Union and an association of highway and heavy contractors in the area in
which the job is to be done, the employer agrees to utilize such referral procedures; that the
referral procedure that Article II(N) of the National Pipeline Agreement refers to is set forth in
Addendum No. 1 (General Counsel's Exhibit 3); that the pre-job is also "part of it" (transcript
page 32); that Article II(N)(a) reads "Nothing in this Agreement shall affect the Employer's
inherent right to determine the competency and qualifications of his employees and his right to
reject and discharge men accordingly"; that paragraph 9 of Addendum No. 1 (General Counsel's
Exhibit 3) provides "The Employer may reject any registrant dispatched by a Referral Office for
employment. The Employer shall determine the registrant's ability and competence to
satisfactorily perform the work prior to on the job employment." (This paragraph goes on to
indicate "Such determination shall not be the responsibility of the Union."); that each district
referral office maintains its own separate list; that Addendum No. 1 provides that all registrants
are to be dispatched in the order of registrant's date of registration as available for work, and in
accordance with their experience; that the dispatchers are the individuals who determine who is
to be referred and who make the referrals under Addendum No. 1; that the dispatchers review
the work history cards and the employment history of registrants to determine their capabilities;
that all of the dispatchers in the eight offices report to Pauline Leitzell, who is the dispatch
supervisor and who is located in Local 150's Countryside, Illinois office; that as of February
2007 there was no separate pipeline referral list; that the dispatchers referred members to the
pipeline jobs from the same list from which they made referrals under the Building Agreement
and Heavy and Highway Agreement; and that Roddie Thomason, who has been Respondent's
Pipeline Business Representative for 13.5 months, has his office in Countryside.
Leitzell testified that she has been the Dispatch Supervisor for 5 years; that it is her job
to make sure that all of the District offices of Local 150 are run the same; that she was a regular
dispatcher for 3 years and before that she was the office manager for the Apprenticeship Office
of Local 150; that she has worked for Local 150 for 21 years; that she works in District 1 in
Countryside, which is in the Chicago, Illinois area, and she fills work orders for her area; that
Local 150 dispatchers fill work orders and send people to work; that Addendum No. 1 are the

6 Addendum 1, the IUOE Local 150 Hiring Procedures, refers to a number of referral lists for
journeymen. It goes on to state, at page 6, that "… all registrants on Lists 1 through 4 shall be
dispatched in the order of registrant's date of registration as available for work and in
accordance with their experience as Operating Engineers in the Construction Industry, i.e., the
earliest registered individual with the required experience first, as established by the written
statement of the registrant, … and thereafter in order of date of registration."
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
4
rules of dispatch; that when a contractor calls in and asks for an operator of a specific piece of
equipment, the dispatcher goes to the first member on the out-of-work list whose work card
indicates that the member can operate that equipment; that the fact that the member can
operate the involved piece of equipment has to be on the member's work card before the
dispatcher can call that member; that a business agent has no role in dispatching members to
work; that District 5 has fewer members on its out-of-work list and it is not as busy as District 1;
that there is usually a pre-job conference with a pipeline job; that the stewards on a pipeline job
have the right to call the union hall and place an order for the contractor instead of having the
contractor do it; that there is no other way she would take a request from an employer for
employees; and that the employer has to call and place a work order.
Frank Studer, who has been a member of Local 150 for 20 years, testified that he is a
journeyman and he went through the apprenticeship program; that he was appointed a
Business Representative of Local 150 from 1994 until 2006; that as a Business Representative
he was involved in approximately 100 pipeline pre-job conferences; that he is familiar with the
referral system under the National Pipeline Agreement which has two facets to it in that either
the union is a non-discriminatory referral hall or the union keeps a pipeline list that contractors
are allowed to choose from; that in Local 150's case, the Union has a non-discriminatory out-of-
work list, a referral system that is negotiated in the Union's Heavy and Highway collective
bargaining agreement and in the National Pipeline Agreement, and dispatchers fall under that
rule; that the referral system under the Heavy and Highway Agreement is the same as the
referral system under the National Pipeline Agreement, and Addendum No. 1 applies to both;
that employees in Local 150's jurisdiction can not go out and find his own job in Local 150's
jurisdiction; that under the National Pipeline Agreement under Local 150's jurisdiction a member
who wants to work has to sign up on the various out-of-work lists in the different district where
work would be available and wait for the dispatcher to call him; that according to the mainline
Pipeline Agreement, if a local has an exclusive hiring hall procedure that is negotiated within its
Heavy and Highway Agreement, which in Local 150's case is Addendum No. 1, then all
dispatches after the company hires its regular employees, are to come through that procedure;
that when he was a Business Representative covering pipeline jobs, Thomason was the
steward on many of those jobs; that in 2005 he had a conversation with Thomason outside the
hall at Local 150's District 2; that at the time Thomason was working under him as the steward
on a small pipeline job; that Thomason had come to the hall to place a work order for a side
boom operator that he needed the next day; that the next operator, Mike Goodwin, was
available but Thomason did not feel that Goodwin was qualified to handle the side boom that he
was going to be sent out on; that he told Thomason that the dispatcher makes the call, the
dispatcher said that Goodwin was the next qualified guy, 'He has got side boom on his card,
Roddie. He is the next guy that is going to go' (transcript page 180); and that
… Roddie had said to me that the particular side boom that Mike was going to
run was going to need someone who was able to work without counting on other side
boom operators to pick up his slack. He is not going to be between other guys picking up
a piece of pipe that required more than one. There were valves involved that were very
heavy, and close to capacity for that machine, and he felt it was over Mike's ability.
I said to Roddie that 'If Mike says he can do the work, it is not for us to decide.
The contractor is going to have to make that call, Roddie.
Roddie said that if Mike was any kind of a guy, he would refuse the job, because
he knows he is not qualified to do it.
I then said to Roddie, … 'Roddie, we are not building an all-star team. If the guy
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
5
says he can do the job, we have to send him.'
At that point, Roddie produces a copy of the Pipeline Agreement to me, and went
over parts of the agreement that cover areas of the country where locals do not have
exclusive hiring halls, where locals have to provide a list of operators that are qualified to
do work and the contractors are allowed to pick from that list. Roddie felt that that was
the system that we should be using here.
I told Roddie, 'If you read a little further into the agreement, it says in the
agreement, that if you have an excusive hiring hall, that prevails,' and Roddie said that
he didn't believe that that should be the case.
I told Roddie, at that point, 'I will go straight to Bill Dugan [who was at the time
and still is President of Local 150] and get an answer for you. I will go right to the top.'
The next day I called Bill's office, and I asked Bill if he had time for me to stop up
and talk to him about … an interpretation of the agreement.
Bill said I could stop up that afternoon. [Transcript pages 180 and 181]
Studer further testified that he met with Dugan; that he told Dugan about the question and
Dugan, without hesitation, said 'we have never allowed contractors to pick their own people.
Addendum No. 1, the hiring hall, prevails on that.' (transcript page 182); that in his presence
Dugan, using a speaker phone so that he could also hear what was being said, telephoned two
International Vice Presidents who were also Business Managers of other Locals of the
Operating Engineers; that the two Vice Presidents, Gerald Ellis and Fred Durschek, told Dugan
that they never allowed the contractor to pick, their hiring hall prevails, the contractor has to take
the member in order off the list, and it is up to the contractor to decide whether or not they are
qualified after the Union refers the member to the job; that Dugan then told him that he had his
answer not only from him but also from the two other International Vice Presidents; that the next
time he talked to Thomason he told him what Dugan and the two International Vice Presidents
had said; and that he told Thomason
Roddie, I took it to Bill, and Bill says Addendum No. 1 rules, and our dispatches
are going to come in order. Whoever the dispatcher says is up, that is who you are going
to get, and the contractor is going to have to make the decision as to whether or not they
are qualified. [Transcript page 185]
And Studer further testified that it is the job of the dispatcher in the referral hall to decide who
has the qualifications for the job and should be sent out.
On cross-examination Studer testified that it is not true, in his experience, that even
under Addendum No. 1 the pre-job conference can modify the hiring hall provisions, the actual
taking of men off of the list in rank order; and that he knows of no case where in the pre-job
conference a signatory contractor or a Business Agent is allowed to renegotiate the National
Pipeline Agreement. Subsequently, Studer testified that in the approximately 100 pre-job
conferences he participated in not once did either the contractor or the business agent approach
what was going on in terms of the pre-job conference being able to modify Addendum No. 1.
General Counsel's Exhibit 15 is the out-of-work lists from Respondent's Utica office
during the period January 5 through February 9. On page 2 of the out-of-work list for January
26, Richard Chiado is number 95, with a call in date of "12/13/2006" and David Waters is
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
6
number 108, with a call in date of "12/22/2006."
General Counsel's Exhibit 10 is an "I.U.O.E. PIPELINE PRE-JOB CONFERENCE
REPORT" dated "1-12-07." The contractor named on the form is ML. The job location is
Pontiac, Illinois. The equipment checked off is back hoe and truck crane for a total of "2." The
"Job to Start" date is "1-10-07." Under the "Remarks" section of the form the following is
handwritten: "O.Q. Qual. Stewart [sic] gets $50.00 a day truck payroll and fuel, operators $40.00
and no fuel, Mechs [$]10.00 an hour truck pay fuel and maintenance."7 (Emphasis added)
Thomason signed the form for the Union. Regan testified that he did not participate in this pre-
job conference; that this is the pre-job conference report which led to the referral of Dave
Waters which is in question in this proceeding; that he saw this report before in that all the pre-
job reports are filed in his office; and that it is indicated "O. Q. Qual[ified]" in the "Remarks"
section of the report and "sometimes" (transcript page 60) the parties indicate those items which
are agreed upon with respect to the job in question in the remarks portion of the report. Regan
testified that there is nothing on the pre-job report about a dozer operator.
Thomason testified that he became a pipeline Business Agent for Local 150 about 14
months before he testified at the trial herein; that before that he was a part-time instructor at
Local 150's training site since 2001 over the Pipeline Division; that he taught side boom, which
are pipe layers, backhoes, and angle blade dozers; that he has worked in pipeline in about a
total of 15 named States since 19698; that he served as a pipeline union steward from 1989 to
2006, working part time as an instructor; that a union steward on a pipeline project (a) attempts
to get as many of his fellow members out on the job as possible, as opposed to individuals from
other locals, (b) makes sure that the first operator sent out is the very best and will not be
rejected because this can increase the percentage of operators that Local 150 gets to dispatch,
and (c) calls in work orders to have the union refer out members; that non-union contracting
companies are increasing their market share in the pipeline industry; that the contractor can call
in to the Union hall and then make anyone referred out to the job do a proficiency test on the
equipment involved before the contractor ever lets the member who was referred out on the
right-of-way; that he did the pre-job on the BP large storage Tank Farm project in Pontiac, it was
supposed to be a 24- or 25- month project, and it involved refurbishing the facility; that the
general contractor on the job was ML, which is a national pipeline contractor that he had worked
for before; that since the manifolds were inside the tank farm it meant that product was going
into the tank farm at mainline pressure; that there was no metering stations outside or inside the
tank farm; that part of the refurbishing involves replacing pipe, namely replacing all of the
branch and lateral lines which feed the tanks inside the tank farm itself, which is work
customarily done under the Pipeline Agreement; that if there was a metering station outside of
the tank farm itself, then what goes on the going away side of the metering station comes under
distribution; that it would not come under Building and Trades anyway, not taking up and
relaying the pipe; that pre-jobbing pipeline projects is part of his current responsibilities as
Business Agent; that as Business Agent he has attended at least 100 pipeline pre-jobs; that his
objective at the pipeline pre-job conference is to get as many Local 150 members on the job as
possible; that in the winter of 2005-2006 ML did some work at the involved tank farm and Dave
Waters, who was working on the project9, would call him because he was not familiar with the

7 As noted below, "OQ Qual[ified]" is a course the Union offers at a training site where the
operator takes tests and is taught safety regulations and different forms of safety, and methods
of pipelining.
8 Thomason testified extensively about pipeline construction.
9 Thomason testified that he thought the guy "was the steward, that pre-jobbed it under the
Building Agreement, and that wasn't the steward …." (transcript page 306)
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
7
agreement; that he called Brian Borwig, who works out of District 8 and who worked for ML
before, asked him if he was interested in being the steward at the tank farm, and Borwig
accepted; that General Counsel's Exhibit 10 is the "1/12/07" pre-job under the National Pipeline
Agreement which he signed for the involved project; that Borwig and Local 150 boom truck
operator Craig Walker, who is considered a key man for ML since he is never off their payroll,
also attended the involved pre-job; that Gary Norris, who is ML's General Superintendent, and
Ron Reed, who is a Company foreman under Norris, attended the pre-job; that "this is one of
the very pre-jobs that I didn't go into decisions and clarifications and attach it to the pre-job"
(transcript page 312); that it was agreed at this pre-job that Local 150 would supply 100 percent
Local 150 members; that it was proposed that there would be up to six operators within a week
and one half if the material came in; and that there was a shortage of pipeline material in this
country at the time.
On cross-examination Thomason testified that, with respect to his testimony that an
objective of his is to get as many Local 150 members as he can on a job, under either the
Building Agreement or the Heavy and Highway Agreement a business agent wants to minimize
the number of key men that an employer brings in with it; that he is not that familiar with
Addendum No. 1 but he thought he read it; that, in his opinion Addendum No. 1 does not apply
to pipelines but rather "the most experienced applies on pipeline jobs" (transcript page 340);
that in 2005 - 2006 it was Dick Waters, who is Dave Waters' father, who called him about the
ML Pontiac tank farm project which had been pre-jobbed under the Building Agreement10; and
that it was totally wrong to pre-job the 2005 - 2006 ML Pontiac tank farm project under the
Building Agreement.
On recross Thomason testified that he only put backhoe and truck crane on the pre-job
conference report, General Counsel's Exhibit 10, because no one knew the situation with the
material and the project was shut down three times because they did not have the material.
In response to Respondent's counsel's questions, Regan testified that the objective of
the Union in a pre-job conference on a pipeline job is to secure a percentage higher than the 50-
50 that the contract provides for; and that the pipeline employer is allowed to cherry-pick or
select whatever members they choose from the out-of-work list.
General Counsel's Exhibit 9 is a work order. As here pertinent, the printed portion of the
form reads as follows:

10 Transcript page 344. That being the case, it is not clear why, in response to Respondent's
attorney's questions on direct , Thomason gave the following testimony:
Q Who is he?
A Dave Waters
Q Dave was at the Minnesota Limited project before?
A Yeah.
Q Working for - - when was this, now?
A In 2006, the winter of 2005 - 2006. [Transcript page 306]
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
8
Date____________________Time______________By________
Contractor__________________________________________________
Location of Job______________________________________________
__________________________ City_________________________
What is Wanted_____________ Equipment___________________
__________________________ Time: ______
__________________________ Sent_____________By: ________
When Wanted_______________
Call From___________________
Phone No.__________________

As here pertinent, the following handwriting appears on the first line of the form: "1/24/07,"
"2:30," and "SB." "Minnesota Ltd" is written on the second line of the form. "Pontiac (Tank Farm)
- B & B State Rt … 23" is written on the third line of the form. "Brian Borwig - Steward 150 -
641/990-6086" and "Pontiac" is written on the fourth line of the form. On the lines for "What is
Wanted" the following is written: "Experienced High Tread 5 Dozer - OQ, clean up - Right away
[sic], Back Fill, Shade Pipe Final Finish."11 The "OQ" is crossed out and the following is written
next to it: "per Roddie does not need OQ." "Mon 7:00 2/5" is written on the "When Wanted" line
and "Roddie Thomason" is written on the "Call From" line. "2/1 Dave Waters per Roddie
Thomason" and "SB" are written in the "Sent" line. Regan testified that he probably saw the
document before he testified at the trial herein because it goes through his office but he could
not say for certain; and that he did not believe that he saw the document by the time he met with
Richard Chiado, his father Ronald Chiado, Randy Hill and the others on February 28, which
meeting is described below.
Sheila Brewer, who was a dispatcher at Local 150's District 5 referral hall in Utica for 21
years until August 23, testified that she ran the whole office at District 5, including dispatching
members to jobs; that she reported to Business Agents Randy Hill, Terry Waldron, and Kevin
Trolio; that when she served as dispatcher the contractors would call the hall when they needed
an operating engineer; that she would go down the out-of-work list looking at the members skills
and qualifications and dispatch members to the jobs; that she is familiar with the Building
Agreement, the Heavy and Highway Agreement, and Addendum No. 1 which is the procedures
the dispatchers follow as they go down the out-of-work list and dispatch members; that the
Building Agreement and the Heavy and Highway Agreement both refer to Addendum No. 1; that
when she made referrals under the National Pipeline Agreement she followed Addendum No. 1
in making those referrals; that for the members to obtain work under any of these three
agreements, the members had to call in or stop in at the referral hall and have their name place
on the out-of-work list according to their call in date and time; that the same procedure was
followed for all three of these agreements, including the National Pipeline Agreement; that the
referral list was posted in the referral hall in the reception area so that the members could
review it; that Karen Milano worked with her as a dispatcher for about 1 year; that when
someone calls in to register for referral the dispatcher records the name, date and time of the
call on the out-of-work register; that the register is updated on the computer daily and a printed
copy is posted weekly; that when she needs to make a referral she starts at the lowest number
and looks to see whether they have the experience and qualifications; that in the District 5 office
the dispatcher actually makes the referral; that she is the one who makes the decision whether
or not the individual is qualified, after looking at the member's work cards and sometimes calling

11 Thomason testified that shading is putting enough backfill on top of the pipe so that if there
are any rocks in the ditch dirt which goes on top of the backfill, when it all is compacted the
rocks or other debris will not make contact with the pipe.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
9
and asking the member about his skills; that, as here pertinent, she always went to the main list
first, which list contained the names of members who had their card for 4 or more years; that
she would go according to Addendum No. 1; that when she made the decision on who to send
to the job she would telephone the member and tell the member to go to the job; that General
Counsel's Exhibit 15 are out-of-work lists of District 5; that, as noted above, on the out-of-work
list dated January 26 Richard Chiado is number 95 and David Waters is number 108; that the
name of David Waters is not on the out-of-work list dated February 9 because he was
dispatched out; that all of the handwriting on General Counsel's Exhibit 9, the January 24 work
order described above, is hers, and the "SB" at the top right hand corner are her initials; that
she became aware on January 24 that ML had a job in District 5 at a tank farm in Pontiac when
Thomason telephoned; that when Thomason first called she was not in the office and he spoke
with Debbie Cargill, who was a 1-week sub (Cargill normally works as a dispatcher in District 2
in Joliet, Illinois.) because Molina was on vacation; that when she returned from lunch Debbie
told her that Thomason called; that Thomason called later that day at 2:30 p.m. and she spoke
with him at that time; and that
He [Thomason] called regarding a job in Pontiac, and immediately mentioned
Dave Waters' name, and I told him that Dave was, at that time, was 109 on our list, and
he did not have pipeline OQ.
Roddie [Thomason] just kept insisting that no one else could perform this work.
….
I just said, I am supposed to follow my out-of-work list, and I even gave him the
names, because he is familiar with all of the pipeliners.
The job wasn't supposed to start for a couple of weeks, and then, I read the
names. I read Stan Shevokas, Jim Shannon, Richard Chiado … I started naming all of
my names that were ahead of Dave Waters on the out-of-work list.
….
I just explained to him that there were several members that had pipeline OQ
ahead of Dave Waters, on the out of work list, and he said that the job was two weeks
away, and that he insisted that he needed Dave Waters, that he had the skills that he
needed for this particular job, and that he would call me back in two weeks. [Transcript
pages 202-207]
Brewer further testified that she got the names she gave Thomason by going down her out-of-
work list, seeing who had pipeline OQ and dozer work; that when she came back from lunch on
January 24 Debbie told her that Thomason had called, what Thomason said regarding what he
wanted, and Debbie told Thomason that he would have to call back when Shelia Brewer was
there; that Debbie did not write a work order when she spoke with Thomason; that as indicated
by the time on the work order, "2:30," she, Brewer, wrote the work order when Thomason called
back; that she wrote "OQ" on the work order because she thought that every pipeline job
required the operator to have OQ, because she thought why do we have the training, that was
the whole point; that she crossed "OQ" out when Thomason told her that he did not need it; that
as indicated on the work order, she sent Dave Waters to the tank farm job in Pontiac on "2/1"
and she initialed this; that when Thomason called her back on about February 1 they repeated
the January 24 conversation and Thomason also told her that if anybody had any question,
because she was still concerned about going that far down the list, they should speak with him;
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
10
that this is why she put the "per Roddie Thomason" on the work order; that she knew that Dave
Waters was not OQ because she asked him and he told her that he was scheduled to take OQ
on February 3 so she felt a little bit better; that Dave Waters did not take pipeline OQ on
February 3; that in giving the names of members to Thomason she reviewed the out-of-work list,
work cards and the employment history of the various people who signed the out-of-work list
and were ahead of Dave Waters; that Steve Joiner was number 44 on the January 26 out-of-
work list, Jim Cavallini was number 64, Stanley Shevokas was number 84, and Richard Chiado
was number 95; that she did not type " Fin - Pipeline" under the catagory "DOZER" on the last
page of David Waters' work card, General Counsel's Exhibit 11, but rather Debbie put that on
the card the week she was there "[a]fter all these calls with … Thomason [on January 24]"
(transcript page 217); that she saw Dave Waters' work card as of January 24 and " Fin -
Pipeline" under "DOZER" was typed on the last page; that she did not write "Right Away,
cleanup, Shading" on the last page of Dave Waters' card and she did not know whose
handwriting it is and when this was written on the card, and she does not put qualifications down
in the "CLASSIFICATIONS" area of the card where this handwriting is found; that the "HAZMAT
3-1404" at the top of the last of Dave Waters' card looks like the handwriting of Molina; and that
with respect to the entry "PIPELINE OPERATOR QUAL., 12/5/," the entry is not complete but at
the time of the involved referral she knew that Dave Waters' pipeline OQ had expired.12
Thomason testified that sometime after the involved pre-job conference the steward at
the Pontiac tank farm job, Borwig, called him and asked him if he knew a good pipeline dozer
operator in District 5 that knew how to topsoil, right-of-way, backfill, and clean up; that he gave
Borwig two names, Tom Walgenbach and Dave Waters, both of whom he considered to be do-
all dozer operators; that he told Borwig that he needed somebody who knows how to shade the
pipe so the there would not be a lot of debris on it; that he called District 5 in Utica from District
2 in Joliet and spoke with Debbie Cargill, who at the time was filling in for Karen Molina who was
on vacation; that Debbie Cargill is a dispatcher from District 2; and that
A I explained to her what Brian needed and she started going down the list - -
Q What list?
A Whatever list District 5 has.
Q The District 5 out-of-work list?
A Yeah.
Q And did she give you names of operators?
A Yes
Q How many operators did she identify for you?
A Three.
Q Do you remember who they were?

12 Page two of General Counsel's Exhibit 17 shows that Dave Waters received his OQ
pipeline qualification on "12-5-02." The parties stipulated that the OQ qualification is good for 3
years.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
11
A Yes, because Jim Shannon was the first name that she called, and I said, 'Well, that
can't be, because he is in West Monroe, Louisiana working for Sheehan Pipeline. He
has been there six months, and he still is,' which they called, and he was and the second
- -
Q Who came next?
A Stanley Shevokas, or something like that.[13]
….
Q So, was Mr. Shevokas available?
A No, the way I understood it, he was on vacation.
Q Okay, and so who came next?
A Dave Waters
Q Did he fill the experience requests of Mr. Borwig, on behalf of Minnesota Limited?
A Yes, yes, he did.
Q And what happened next?
….
A … [the dozer] was supposed to come in [to the tank farm], but it was delayed.
Q Okay, so how did that affect the dispatch of Mr. Waters to the project?
A He had to wait four or five days to come … out [to the job]. [Transcript pages 318 -
320]
Regarding Richard Chiado, Thomason testified that he worked with him in 1996 or 1997
in District 7 of Local 150 in Maryville, Indiana on a Coolset pipeline project; that at the time he
was running a side boom for tie-ins and Richard Chiado was oiling on a backhoe; that he did not
see Richard Chiado operate any equipment on that job; that he has worked with Richard Chiado
on a total of four or five jobs; that in 2000 he was a steward on the Vector job for Sheehan and
he called Richard Chiado out as an oiler on behalf of the contractor; that he next worked with
Richard Chiado in 2002 on the Guardian project for contractor H. C. Price when he, Thomason,
was a steward and Richard Chiado was originally assigned to operate a hoe pulling the backfill
and topsoil our of the fields; that allegedly he received complaint from the foreman regarding
Richard Chiado's performance (The foreman who allegedly complained was not called as a
witness by the Respondent.) and he moved Richard Chiado to another position on the job; that
subsequently Richard Chiado quit the Guardian project; that he thought that he succeeded in

13 J. Michael Shannon is number 101 on the January 26 out-of-work list and Shevokas is
number 84 on that list. . Michael Shannon is number 108 on the January 19 out-of-work list and
Shevokas is number 90 on that list.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
12
getting Richard Chiado a lay-off on the Guardian project so that he could draw unemployment;
that when he went about securing a dozer operator for the ML tank farm project in early 2007 he
did not consider Richard Chiado and the dispatcher did not offer Richard Chiado as a candidate,
his name never came up; that based in his experience with Richard Chiado, he did not believe
that Richard Chiado had the skills to run a finish dozer on the ML pipeline project, especially
with respect to right-of-way or clean up because Richard Chiado "just hadn't been around it
enough. It is something you have got to be around several years before you can do it by
yourself" (transcript page 329); that based on his 30 years of experience, he believed that it
takes an otherwise skilled operator a "good eight to ten years" (Id.) to become a good pipeline
finish dozer operator and, to his knowledge, Richard Chiado did not have such experience
(Thomason then conceded that, to his knowledge, Dave Waters also did not have such
experience. Subsequently, it appears that Thomason changed his answer to yes Dave Waters
did have such experience.); that, in his opinion, Dave Waters was qualified for the finish dozer
operator job at the ML tank farm project; that even a highly skilled non-pipeline dozer operator
can not operate a clean-up dozer on a pipeline because on a pipeline the only stakes are on
each side of the right-of-way; and that there would be a risk involved in having someone who is
not a clean up trained, pipeline dozer operator "[d]epending on if you are working over or
around a bunch or existing loaded gas lines…." (transcript page 336)
On cross-examination Thomason testified that the Pontiac tank farm job involved
removing old pipe; that when the old pipe is removed it is no longer pressurized; that you could
not remove a live line; that on the H. C. Price Guardian job in 2002 when Richard Chiado came
to the job he told Richard Chiado that he was going to operate an excavator; that he did not
think that Richard Chiado told him that he had never operated an excavator on a pipeline job
before; that he had never seen Richard Chiado operate an excavator on a pipeline job before;
that the complaints were about Richard Chiado's operation of the excavator and not about any
operation of a dozer on that job; that he did not remember if Richard Chiado had been sent out
to operate a dozer on that job; that he could not remember if on that job Richard Chiado asked
for a layoff from the H. C. Price job; that he does not know how many years Dave Waters has
got on a dozer; that he looked at Dave Waters' work history card on February 13; that the card
shows that Dave Waters on "5/17/2000" worked 'Dozer with Murphy Brothers'; that Dave Waters
worked less than 2 months on that job; that while the cards indicate that Dave Waters worked
as a dozer operator for T. J. Lambrecht - a road and heavy highway contractor, they do not
show that Dave Waters worked as a dozer operator on any other pipeline job other than the
aforementioned May 17, 2000 Murphy Brothers job; that Debbie Cargill is still employed by
Local 150 as a dispatcher in District 2 in Joliet; that Debbie Cargill has been a dispatcher since
the 1990s; that other than the one occasion when Debbie Cargill was substituting as a
dispatcher in the District 5 Utica office, he had never known her to work at the District 5 office
before; that he did not have conversations with Shelia Brewer the same day he spoke with
Debbie Cargill at the District 5 office; and that he did have conversations with Brewer about a
week later.
On redirect Thomason testified that Dave Waters card, General Counsel's Exhibit 11,
also has an entry dated "7/10/02 Dist 2 Price, Rockdale Dozer" and Price is a pipeline
contractor.14
And on recross Thomason testified that while the entry on Dave Waters' work card
shows "11/30/01 Dist 3 U.S. Pipe - oiler," Dave Waters was not an oiler very long on this job,

14 Some other entries were referenced but Thomason either testified that the entry involved
oiling or the entry indicated oiling.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
13
and after a couple of days Dave Waters went on clean-up dozer. The next entry on Dave
Waters' card is "4/15/02 … RI." According to the testimony of Leitzell, "RI means reported in, to
put his name on the list." (transcript page 356)
On rebuttal Richard Chiado testified that District 5 Business Agent Terry Waldron
referred him to the aforementioned H. C. Price job telling Chiado that he was dispatched out to
operate a dozer on final clean up; that when he got to the job he reported to the steward,
Thomason; that Thomason put him on an excavator even though he told Thomason that up to
that point in time he, Chiado, did not have any experience running an excavator; that Thomason
said 'That's okay, we will take care of you, and everything will be all right. We will put you in an
easy spot' (transcript page 387); that he was never made aware of any complaint by H. C. Price
about his operation of the excavator; that he left that job because it was over 100 miles from his
home, he had worked on the job for about 4 months, he was raising his daughter on his own,
and after 4 months of living away from his house he felt he needed to get home; and that he
asked Thomason if he could be laid off, if at all possible, and that is what took place.
On cross-examination Brewer testified that Thomason called on February 1 to confirm
Dave Waters referral on February 5 to the Pontiac tank farm job; that in February 2007
Business Agents Hill and Waldron were no longer business agents, and Business Agent Trolio
was no longer working out of District 5; that it always used to be that the business agent was
her immediate supervisor; that she is supposed to report to Leitzell who is the Head Dispatcher;
that if a member is referred to a job, the contractor may reject that member since the contractor
has the final say on who is qualified; that as described in Addendum No. 1, List No. 1 is the list
of journeymen members who have been operators for more than 4 years, List No. 2 is the list of
members who have been operators for more than 4 years but they are out of District members,
List No. 3 is the members who have been operators for less than 4 years, List 4 is out of District
under 4 years, List 5 are the operators with permits, and List 6 are the apprentices; and that
Thomason argued with her that only David Waters could do the work and he kept insisting that
David Waters was the most qualified.
Richard Chiado testified that he first saw General Counsel's Exhibit 9, which is the
above-described work order called in by Thomason on January 24 which was taken by Brewer,
when he found out he was passed on the out-of-work list in February 2007; that back fill is
burying the pipe; that if shading is required, the operator puts a foot of rock free material on top
of the pipe to pad against the rocks touching the pipe before filling the ditch with any kind of dirt,
except black dirt; that clean up the right-of-way is putting the ground back to the way it was
before the ditch was originally dug; that final finish is the same thing as clean up the right-of-
way; that finish work in the Heavy and Highway trade is much harder to do than it is in pipeline
because with the former the operator has to cut the ground to within a tenth of an inch, and
there are grades all over the ground on grade stakes and the operator has to be able to match
those grades and cut it accordingly; that to do final finish in the pipeline industry the operator
just matches the two sides of the right-of-way together in the filed and make it look natural like it
used to look, which is pretty simple; that he is familiar with the Pontiac tank farm jobsite in that
he has been by it many times; that there are tanks, valves, pipes sticking out of the ground, and
berms around the entire tank farm; that he has operated a dozer on berms along a creek
crossing and slopes similar to the involved berms; that he has operated an angle dozer on
pipeline work and in the heavy and highway industry; that he has done finish work under the
Heavy and Highway Agreement, and in his opinion such finish work is much more difficult than
pipeline finish work because with the Heavy and Highway finish work the operator is cutting to a
tenth of a foot whereas on the pipeline the operator is just matching two sides of a field together,
making sure that there are no low spots; that he has worked on pipeline jobs with Dave Waters,
who also started out as an oiler and then became a dozer operator; and that he has worked with
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
14
Thomason on pipeline jobs, namely, on a Coolset job where Thomason was just a normal
operator on the job, on a Sheehan job where Thomason was the steward, on an H. C. Price
pipeline where Thomason was a steward, and on the Murphy Brothers pipeline where
Thomason was just an operator.
When called by Counsel for General Counsel, Regan testified that in February 2007 ML,
which has been a signatory to the Pipeline Agreement for over 30 years, was working on a
pipeline job within the confines of a tank farm in Pontiac, Illinois; that Thomason did the pre-job
conference on behalf of Local 150 on this job; that member Dave Waters was referred to this job
by Local 150 to operate a bulldozer for ML; that subsequently he became aware that another
Local 150 member, Richard Chiado, claimed that he was ahead of Waters on the referral list, he
was qualified to do the job, and he - if not others ahead of him on the list - should have been
sent out to that job; that Brewer and Milano were the dispatchers at the District 5 referral office
in Utica; and that Pontiac is located within District 5.
As noted above, General Counsel's Exhibit 11 is David Water's work history card. The
last two entries on the fourth page of the exhibit read as follows: "2/13/07 [in the 'DATE'
column], 2:00 [in the 'TIME' column], [and] Op removed from job per P.L. Back on [in the
'REMARKS' column]" and "2/14/07, 3:26, Cancel CI per R.T. opr still @ MN," respectively.
With respect to their qualifications on a work card, Regan testified that the individual
member can put down whatever he wants on the card; that on the last page of David Waters
card, General Counsel's Exhibit 11, Dozer is checked and "Fin - Pipeline" is typed above the
word; that to him this means that Waters is a finished pipeline dozer operator; that on the same
page under "CLASSIFICATIONS" 150 is typed and "Right of way, cleanup Shading" is
handwritten; and that this handwritten entry indicates that Waters does the finished right-of-way
work with a dozer.
Richard Chiado, who has been a member of Local 150 for approximately 14 years,
testified that he is a member in good standing; that at all times in 2007 his dues and initiation
fees have been paid up; that he has been a journeyman for about 10 years15; that he can
operate a bulldozer, excavator, track-hoe, loader, front-end loaders, combination hoes, belt
placers, concrete pavers, and a grease truck; that he has worked on eight to ten pipeline jobs
under the Pipeline Agreement, which jobs involved pressurized gas lines; that "Operator
Qualification" (OQ), as noted above, is a course the Union offers at a training site where the
operator takes tests and is taught safety regulations and different forms of safety, and methods
of pipelining; that General Counsel's Exhibit 7 is his card which shows that he has OQ and
some other qualifications; that he received the card in 2006 when he took the course and it
expires on "2/25/2009"; that Thomason, who was a steward on a pipeline at the time, was one
of the training site instructors for the OQ class; that Thomason and the other instructors told him
that he would not be allowed on pipelines unless he had the OQ class; that his home referral
office in Local 150 is District 5 but he receives less than 50 percent of his referrals from this
District; that he also receives referrals from Local 150's Districts 1, 2, 4, and 7; that he is
registered on List 1, the journeymen's list, at the District 5 office; that he has been signing the
journeyman's list for about 13 years; that the dispatcher adds the name of someone who
contacts the Utica office to register for referral; that the names on the out-of-work list are
numbered and members are referred out to jobs in the order that they appear on the list if they

15 If his permit time was considered as journeyman time, it would be 14 years. Richard
Chiado testified the he was never an apprentice. Instead he put two to three thousand hours in
on a permit and then became eligible for his card.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
15
are qualified for the job; that dispatchers Brewer and Milano, who work in Local 150's District 5
office in Utica, have personally contacted him and sent him out to work; that when he is laid off
from a job he telephones the Union hall and tells the dispatcher that he has been laid off and his
name is placed on the bottom of the out-of-work list; that if the job does not last for more than 10
days, he does not lose his seniority or his place on the out-of-work list; and that he is not aware
of any differences in the referral procedure under the Building Agreement, the Heavy and
Highway Agreement, and the Pipeline Agreement.
With respect to his work history, Richard Chiado testified that General Counsel's Exhibits
8(a) and (b) are his work card and work history, respectively; that the Utica dispatchers have
access to these documents and they know what jobs a member can handle; that he has done
pipeline work for Murphy Brothers, Coolset, Sheehan, Brandenburg Drainage, H. C. Price, and
ARB; that, as indicated in General Counsel's Exhibit 8(a), on "12/3/96" he was dispatched to
Coolset as an oiler; that this was his first pipeline job (natural gas), it lasted 3 to 4 months, and
he also worked as a excavator on the job; that he was dispatched on "11/10/98" by District 2 to
ARB (the work card entry refers to "ARBY."), it involved a high pressure pipeline, the job lasted
less than a month, and he was an oiler and ran a crane and a directional bore for a little while
on this job; that on "7/2/99" he was dispatched to Murphy Brothers to work as a mechanic
(grease truck) on a big pipeline job which lasted 4 or 5 months; that on "10/11/99" (Actually the
last digit in the entry is "5" but it is obviously a mistake in that the entry was made between
"10/11/99" and "12/6/99.") he was dispatched to Brandenburg Drainage for a couple of months
to run a dozer final finishing the farmer's fields on a repair job where the dirt had settled around
a pipeline and tiles had been broken; that on "12/13/99" he was dispatched to Murphy Brothers
to work on the same pipeline he had worked on earlier in the year, he was called back as an
oiler, and he ended up, after oiling for a week, running a dozer for about a month clearing the
right-of-way for some creek crossings and some road bores, back filling the ditch, and putting
the right-of-way back for the creek crossing and road bore; that on "5/1/00" he was dispatched
to Murphy Brothers for a couple of months to operate a dozer clearing right-of-way, backfilling
the ditch, and taking piles of black dirt and putting the black dirt on the field to restore it to its
original condition; that on "8/22/02" he was dispatched to H. C. Price to be a dozer operator,
Thomason, who was the steward on the job, had him running a hoe on final clean up for 4 or 5
months; and that, as set forth in General Counsel's Exhibit 8(b) on "7/3/2000" he was
dispatched to Sheehan/Monee as an oiler on the Vector Pipeline job, he oiled a crane, and the
job did not last too long (He took another job.) because he was too far away from home.
On cross-examination Richard Chiado testified that the next entry on his work card after
"12/3/96 Dpd. Dist.7, Coolset, Oiler" is "1/16/97 … CI"; that he could not recall if he was oiling
for Coolset for maybe 6 weeks; that with respect to the "7/2/99 … Dpd Murphy Grease Trk
Princeton" entry on his work card, he was on and off that Alliance pipeline job for Murphy
Brothers and he, at that time, worked for Murphy Brothers until September 16, 1999; that with
respect to the "11/10/98 … Dist. 2, Arby" entry, he next called in to the union on "11/30/98" so
he worked that job for 20 days; that he was dispatched again to Murphy Brothers for the
Alliance Pipeline on "12/13/99"; that the next entry on his work card shows that he called into
the Union on "1/7/00" which means that this time he worked for 3 weeks on the Alliance
Pipeline; that from "5/1/00" to "7/8/00" he worked for Murphy Brothers stripping and cleaning up
the right-of-way; that he operated a D-5 dozer on his "10/11/99" dispatch to Brandenburg in
Hillsdale and the job involved working under the Pipeline Agreement fixing broken field drain
tiles and doing finishing work; that the "8/22/02" H. C. Price job, where he operated a backhoe
for 4 months, was the last pipeline job he worked on; that on jobs after this he operated different
kinds of equipment, including dozers, but none of it was pipeline work; that he went to the
training site to take the OQ class, he took a written test, he took practical tests in the field,
including spotting defects in pipe and the way a ditch looked, but he did not do practical tests on
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
16
equipment; that on the "OPERATOR QUALIFICATION TRAINING VERIFICATION" page of
Respondent's Exhibit 1, which is the documentation for his OQ class, where he indicates that he
has 10 years experience in natural gas and other gas he meant that he worked on and off over
a 10 year period; that he did not have 10 years transmission mainline experience; that a
member gets to put on his work card what equipment he can operate proficiently; that "12/13/07
… mbr in to upgrade card - Fin Dozer" appears on the first page of General Counsel's Exhibit
8(a); that on February 13 he went to District 5's union hall and added finish dozer to his card;
that on February 27 he had his work card indicate, with respect to all makes of backhoe, that he
did all rough work and no pipeline work; that while Dave Waters is a very good dozer operator,
they had equal experience; that he could not say whether Waters was a better finish dozer
operator than he was since he had not worked with him for a while; that the steward on a
pipeline job is the one who basically calls in for operators; that on a pipeline job there could be
up to 12 separate crews and the steward can move people from one crew to another; that on
the H. C. Price job Thomason was the steward; and that on the H. C. Price job he was switched
from one final crew to a different final crew, and then he was switched to testing at the end so
that he could stay on the job until the end.
On redirect Richard Chaido testified that he operated a finish dozer for T. J. Lambrect for
a good solid 4 years doing road construction; that he operated a D-6 LGP wide path dozer for
this company doing final finish grade on landfill cells; that a D-6 LGP wide path dozer is a low
ground pressure dozer that is used for doing finish work most of the time; that he has also
finished roads, house pads, and bridge cones but none of that was under the Pipeline
Agreement; and that he has quite a bit of experience with dozer finishing.
Brewer testified that she knew from Richard Chiado's work card, General Counsel's
Exhibit 8(a), that he had worked pipelines before; that Coolset, ARB, Murphy Brothers,
Brandenburg, Sheehan, and H. G. Price are pipeline contractors; that since District 5 is a
smaller District she got to know the members' skills; that she knew from Richard Chiado's work
history that prior to February 2007 he operated a dozer on a pipeline job; that, in her opinion, it
showed that he was qualified to do the pipeline work requested by ML; and that it was the same
with Robert Joiner, James Cavallini, and Stanley Shevokas.
On cross-examination Brewer testified that on the first page of Richard Chiado's work
card, General Counsel's Exhibit 8(a), she wrote "2-13-07 Finish no GPS" after "DOZER" and
she wrote "2/13/07, 12:00, mbr in to upgrade card - added Fin Dozer"; that she knew that
Richard Chiado could run a finish dozer before these entries were made on his work card; that
she would have asked Richard Chiado if he could run a finish dozer on pipeline; that she also
looks at the members work history and Richard Chiado was dispatched on a dozer to Murphy
Brothers, which is a pipeline company; that she would just assume that Richard Chiado has run
pipeline on a dozer, the member goes out and performs the job, and if he does not make it, he
is let go; that she would ask the member if he ran a finish dozer on a pipeline and she would
take the member at his word; that she knew that Richard Chiado had run a finish dozer and she
would have asked him if he ran a finish dozer on a pipeline; that nowhere on Richard Chiado's
work card is it indicated that he operated (a) a finish dozer on pipeline projects, (b) a dozer on
the right-of-way of a pipeline project, or (c) a dozer shading pipe on a pipeline project; and that
on January 24, based on the information on Dave Waters' work card (General Counsel's Exhibit
11), David Waters qualified for dispatch to the ML Pontiac work project as the work order was
written in January 24.
On redirect Brewer testified that she knew that Richard Chiado had done finish dozer
work on non-pipeline jobs.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
17
Richard Chiado testified that on February 12 his father, Ronald Chiado, who was a
Business Agent for Local 150 for about 20 years before he retired in 2002, telephoned him and
told him that he had been passed over on the out-of-work list by Dave Waters for a job in
Pontiac at a tank farm for ML; that his father told him that he was number 95 on the list and
Waters was number 109; that he then telephoned District 5 union hall and asked Brewer why he
was passed over for this job on the out-of-work list; that Brewer told him that she had nothing to
do with it and he should contact the Business Agent about it; that he spoke with Business Agent
Joe Steichen who told him that he did not know why he had been passed over, he did not blame
him for being unhappy about being passed over on the out-of-work list, but it was not his
department or his call and he should call Thomason; that Brewer told him that she had talked to
Thomason, the Pipeline Business Agent, and told him that there were other people on the list
before the man who was dispatched, Dave Waters, and Brewer told him that Thomason said
that "he didn't care, and that is who he wanted to send out to the job" (transcript page 102); that
he telephoned Thomason and left a message; that later that same day he went to District 5
union hall with his father and looked at the list himself; that he was 95th on the list and David
Waters was 109 on the list; that the dispatchers then told him that they told Thomason, who
requested Waters, that there were other people on the out-of-work list who were eligible for this
job and Thomason said "he didn't care and he wanted to send this man" (transcript page 104);
that on page 2 of the out-of-work list dated January 26, General Counsel's Exhibit 15, his name
is 95th and Dave Waters name is 108th; that Thomason returned his telephone call later that
day; that he told Thomason that he was very unhappy about being passed over on the list; that
Thomason told him that he was not qualified for the job; that he told Thomason that he was
qualified for the job, he had OQ training, and an operator is not supposed to be allowed out on a
job unless the operator has it; and that he told Thomason that he planned on doing something
about it and Thomason said "I was fucking with the wrong cat, … I wasn't going to see very
much pipeline work anymore … [and] he was going to make a fool out of me" (transcript page
106).
On cross-examination Richard Chiado testified that in February 2007 Steichen had not
been a business agent for very long and he did not have any pipeline experience.
Ronald Chiado testified that on February 13 Thomason telephoned him at home; that he
had not telephoned Thomason first; that Thomason said that he did not consider his son
Richard qualified to run the dozer on the pipeline; that he argued with Thomason over that,
telling Thomason that over the last 4 years Richard had been operating a finishing dozer for T.
J. Lambrect, a road and heavy highway contractor, and that Richard was qualified to do the job;
and that
[Thomason] said he saved my boy's ass on the one job that he had, as an operator,
several times, and I told him that nobody had to save his ass on the Lambrect job,
running [a] dozer, and that I considered him qualified to run [a] backfill dozer on that
project.
He then said, if I didn't back off, I didn't know what kind of cat I was … fucking
with, but if I didn't back off, my boy would never see another pipeline. He also called me
a burned out Business Agent, and … [then] I hung up on him. [Transcript pages 166 and
167]
Thomason testified that he got an anonymous phone call and he was given a phone
number to call Richard Chiado so he called the number and ended up speaking with Business
Agent Randy Hill; that Hill gave him Richard Chiado's telephone number; that when he
telephoned that number he got Ronald Chiado; that Ronald Chiado said "Why are calling me?
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
18
You need to be talking to my boy. My boy is a lot better dozer hand than Dave Waters."
(transcript page 331); that Ronald Chiado gave him Richard Chiado's telephone number; and
that he did not tell Ronald Chiado that Richard Chiado would not work pipeline again.
Thomason testified that after getting Richard Chiado's telephone number from Ronald
Chiado, he telephoned Richard Chiado; that Richard Chiado said you jumped me on the out-of-
work list; that he then said
'Richard, your name never came up. There were only three names called to me. One
guy was working for Sheehan Pipeline, one guy was on vacation, and Dave Waters,' I
had had him on right-of-way dozers, etc., all the from [sic] front to back, and I said '[y]our
name never came up,' and it didn't.
….
…Well, I don't think he believed me. I told him to call Debbie, because Debbie is the one
who placed the order. She is the one that was looking down the list when I called to
place the order. [Transcript page 332]
Thomason further testified that he never told Richard Chiado that he would not work in the
pipeline industry again; and that he never told anyone that Richard Chiado would not work in
pipeline again.
Ronald Chiado testified that he worked for 40 years as a journeyman out of Local 150
and he was a Business Representative for this Union from 1986 to 2002; that when he last
worked as a Business Representative his office was at District 5 in Utica; that Brewer was a
dispatcher in District 5 since 1986 until she was laid off or fired recently; that Molano had
worked as a dispatcher in District 5 about 5 months in February 2007; that on February 12 he
went to the Local 150 District union hall with Randy Hill, who is an ex-Business Agent; that
when he looked at the out-of-work referral list which was posted in the lobby, he noted that his
son Richard Chiado was number 95 on the list and David Waters was 109; that Randy Hill had
told him that Dave Waters said that he had been sent to the Pontiac tank farm as a dozer
operator; that he asked Brewer why she sent Waters ahead of his son, as well as other
operators on the out-of-work list that were qualified, and she said that she would have sent
someone else but "Thomason told her that she must send Dave Waters. She questioned the
fact that Dave Waters was not OQ qualified, which is operator qualified, and … [Thomason] said
'It didn't matter. OQ was not necessary' and that he was the Business Agent now and she must
send Dave Waters" (transcript page 165); that Brewer told him that she told Thomason that she
thought there were other people on the out-of-work who should be sent out first; that General
Counsel's Exhibit 9 is the work order Brewer showed him concerning Waters being sent out to
the Pontiac tank farm job; that he requested a copy of the work order and Brewer gave it to him;
that after he looked at the work order he asked Brewer about the fact that the call had come in
from Thomason whereas the contractor should be calling for a man, and Brewer said "Well, …
[Thomason] called for it and when it was called in … he changed it from operator qualified to
non-qualified" (transcript page 166); that he then went to District 5 Business Agent Dale
Letterley and complained to him; and that Letterley told him that he had nothing to do with the
project and he would have to talk with Thomason.
On cross-examination Ronald Chiado testified that as a Business Agent he, unlike most
members, was aware that there was a work order; that it is not common to give members copies
of work orders; that any dozer operator could backfill a pipeline; that he himself never worked on
a pipeline when he was an operator but he was the Business Agent over several pipeline jobs
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
19
which were performed under the Pipeline Agreement; that the involved job was not a pipeline
but rather it was a tank farm, and they were running what would be gas mainline high pressure
lines between the tanks within the perimeter fence; that "in the Pipeline Agreement, … it doesn't
say high pressure or anything else. It says 'tank farms.' It is immaterial with Addendum No. 1"
(transcript page 173) because Addendum No. 1 would apply, in one way or another, to pretty
much any dispatch from a dispatch hall; that when he served as Business Agent on pipeline
projects he sat in on the pre-job conferences, mostly as an assistant to Joe Ward, who would
usually pre-job it; that one of the objectives of a pre-job, in a pipeline project, is to try to get a
bigger percentage than the 50-50 split provided by the contract; and that the union and the
contractor can modify the staffing percentage.
Brewer testified that Ronald Chiado came to the District 5 referral hall in February 2007
after Dave Waters was sent out to tank farm job in Pontiac; that she spoke with Ronald Chiado
when he came to the hall; that Ronald Chiado asked her who got sent out to the tank farm job
and she told him that it was Dave Waters; that she did not think that she told Ronald Chiado
about her conversation with Thomason; that she did speak with Debbie about Thomason
wanting Dave Waters out at the tank farm because she was very upset about the whole thing;
and that when Molina came back from vacation Molina heard her, Brewer's, second
conversation with Thomason about Dave Waters being sent out to the tank farm job ahead of
other members on the out-of-work list.
On cross-examination Brewer testified that she did not give a copy of the January 24
work order, General Counsel's Exhibit 9, to Ronald Chiado; that it is not customary for the
dispatcher to give copies of work orders to members, even members who are former business
agents; that a business agent at the office at the time can look at a work order; and that it is not
customary to give a work order to a former business agent.
On February 13 Richard Chiado telephoned Local 150's Head Dispatcher, Leitzell, and
told her that he had been passed on the out-of-work list by Dave Waters because Thomason
wanted Dave Waters on the job. Leitzell told him that she would look into it and get back to him.
Leitzell testified that she first learned that there was a problem with a referral to the
Pontiac tank farm project when Ronald Chiado, whom she had known for almost 20 years,
telephoned her in early February 2007 in Countryside and asked her if she was aware that there
was a job in Utica and his son had been skipped for the job and somebody else was sent to the
job; that she told Ronald Chiado that she did not know anything about the situation but she
would check it out and call his son back because his son was the involved member; that Ronald
Chiado put his son on the telephone and she told him that she would check it out and call him
back; that she then called District 5 and asked Brewer about the situation; that Brewer then said
'Oh, I knew this was going to be a problem' (transcript page 366); that she asked Brewer why
she did not tell her about the situation; that Brewer said that "Roddie had told her to send him,
to send this other guy, and he pretty much - - 'He intimidated me into sending the other guy
ahead of Richard'" (Id.); that she had Brewer fax her a copy of the involved work order; that she
then called Brewer back and asked her who else was on the list who had finished dozer on their
card; that Brewer told her that Stanley Shevokas was on vacation and Jim Cavallini was the
next member up for this job; that she told Brewer to send Cavillini to the job; that she asked
Brewer "okay, you knew the one guy wasn't there, so why couldn't you just go down the list like
you normally would, and fill this order, with the first guy that has got finish dozer on his card" (Id.
at 367); that Brewer told her 'I don't know. Roddie scared me … and I didn't know what to do'
(Id.); that she told Brewer 'You can't skip someone on the out-of-work list, and if you do that
again, you will be fired'; and that she asked Brewer where Richard Chiado was on the list and
Brewer told her that Richard Chiado did not have finished dozer on his card.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
20
Leitzell testified that after speaking with Brewer she went to the second floor of the
Countryside office and spoke with Local 150's President and Business Manager, Dugan; that
after looking at the faxed copy of the work order, Dugan pointed out to her that it was a pipeline
contractor; that before that it had not "dawned on me that it was a pipeline" (transcript page
370)16; that Dugan told her to talk with Regan; that Regan called Thomason in her presence but
they had a bad phone connection, and Regan told her that he would try to speak with
Thomason later and get back to her; that Thomason came into the office later that day and she
met with both Regan and Thomason; and that
Roddie pretty much told me that he had pre-jobbed this, where they would get --
where we would get a hundred percent of the -- we would staff the project with a
hundred percent of 150 guys, and that was why he was asking for Dave Waters,
because he knew that he had -- he had experience and he could do the job. [Transcript
page 372]
Leitzell further testified that any contractor can name their own people in a pre-job; that it is okay
to send a member under these circumstances because "[i]t is part of … Addendum [No.1], that
any contractor can come in and pre-job" (Id.); that this is not limited to pipeline and it applies to
all agreements; that pre-jobs would allow contractors to pick their people under the Heavy and
Highway or Building Agreements; and that contractors are allowed to pick their referrals
regardless of the position of individuals on the list.
Brewer testified that with respect to the "2/13/07" entry on the last page of Dave Waters
work card, General Counsel' Exhibit 11, the entry was made because she got a call from
Pauline Leitzell on February 13 to remove Dave Waters from the tank farm job in Pontiac and
"go down my list and do it right" (transcript page 213); that she had not discussed the Dave
Waters referral with Pauline prior to this date; that she telephoned Dave Waters and explained
to him what she had to do; that she then went down her out-of-work list and called Steve Joiner
who had a death in the family and did not want the job17; that she then called Jim Cavallini and
he took the job; that the entry for "2/14/07" reads "Cancel ci per R.T. Opr still @ Mn." means
cancel call in per Thomason and the operator was still at Minnesota Limited; and that Molina
made this entry, Molina spoke with Thomason on this occasion, and Molina told Thomason that
he was going to have to telephone Cavallini and explain the situation to him because Cavallini
had already been dispatched.
General Counsel's Exhibit 12 is the work history card for James Cavallini, who is a
member of Local 150. The following two entries appear on the second page of the exhibit:
"2/13/07 [in the 'DATE' column], 3:00 [in the 'TIME' column], [and] Dpd Minnesota Ltd, Pontiac
Fin Dozer" [in the 'REMARKS' column] and "2/14/07, 3:24, put on owl per R.T. give opr. RT,"
respectively.

16 As noted above, the work order which was faxed to Leitzell referred to "Tank Farm," and it
indicated, among other things, that what was wanted was someone who could "Shade Pipe"
(emphasis added) and that the call came from Thomason, who is Local 150's pipeline Business
Agent. In these circumstances, it is difficult to believe that Leitzell was not aware, at least from
the time she received the faxed work order, before she spoke with Dugan, that the situation
involved a pipeline.
17 General Counsel's Exhibit 16, the work card for Robert S. Joiner, has the following entry
on the second page of the exhibit: "2/13/07, 2:13, Called for Minnesota, Ltd. - Refused."
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
21
General Counsel's Exhibit 13 is a work order card dated "2/13/07" which is initialed by
"SB." As here pertinent, the contractor is ML, the location of the job is Pontiac, "What is wanted"
is "Replace Dave Waters per Pauline L., Fin Dozer - OQ", "When" is "ASAP," "Call From" is
"2:00 Per Pauline - Pull Dave Waters from job in Pontiac, and "Sent" is "Jim Cavallini."
Cavallini testified that he has been a journeyman in Local 150 for 26 years; that he can
operate just about every piece of equipment involving the movement of dirt, except a crane; that
in February 2007 he was OQ; that he typically uses the Union's District 5 referral hall in Utica;
that he has registered there for 26 years; that members cannot go out and find their own work;
that members get their work from the out-of-work list; that they are chosen based on their
position on the out-of-work list, except when you are qualified and the member above you on
the list is not qualified; that he was on the out-of-work list in February 2007 when Brewer
telephoned him and asked him if he wanted to go to the tank farm job and run a dozer; that he
told her he wanted the job; that Brewer told him that the job called for OQ qualified; that Brewer
gave him the telephone number of the steward on the job, Brian Borwig, and told him to
telephone the steward; that Borwig told him that he did not need him on the job and he told
Borwig that the dispatcher told him that he was dispatched to this job; that Borwig told him that
he would talk to Thomason and he should call back in half an hour; that when he called Borwig
back he could not get him; that there was a snowstorm that day and he was not able to get
Brewer when he telephoned her, and he was not able to get an answer at District 2's hall or
Thomason's company number; that the following day he went to the tank farm job in Pontiac
because he was not sure what to do and it was a good job; that he spoke with Borwig on the job
site and Borwig telephoned Thomason; that Borwig then told him that "there was no work for
me. He said they already had somebody for the job, and he said Dave Waters was on the job
and he had the job. He said there was no work for me, and to go home." (transcript page 159);
that on his way home he telephoned Brewer, she was not in, and he spoke with Molina who said
she would find out what was going on; that Molina called him back gave him Thomason's
number and told him to telephone Thomason; and that when he telephoned Thomason he said
"I should listen to the steward, … [y]ou are not really qualified for this job. … [you] were never
on a pipeline before, so that is the reason, but if he hired more people than just one, that he
would maybe have took [sic] me in with a group of guys" (transcript page 160).
On cross-examination Cavallini testified that he has never worked on a natural gas
pipeline but he has done sewer and water, which is done under the Union's Heavy and Highway
and Underground Contract; and that he has never worked under the pipeline agreement.
Ronald Chiado testified that on February 14 he and his son went to the Union's District 5
referral hall; that they spoke with Brewer and Milano with Brewer repeating that Thomason
insisted that Dave Waters be sent and that they argued over OQ and Dave Waters' place on the
list in relation to other operators who were higher up on list and were qualified on the dozer
enough to send out to the tank farm; that Milano agreed with everything that was said, saying
that is exactly what happened; and that he looked at the out-of-work list again that day and his
son was number 95 and Waters was number 109.
Brewer testified that one day Richard and Ronald Chiado came to District 5's referral hall
and she spoke with them.
On February 14 Leitzell telephoned Richard Chiado back. Richard Chiado testified that
Leitzell told him that she had looked at his work card and as far as she knew he was not
qualified for that job; and that he told Leitzell that he was qualified for the job and she would be
hearing more from him.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
22
Leitzell testified that she called Richard Chiado back and told him that she had talked
with Brewer who indicated that he did not get skipped because he did not have finished dozer
on his card, but there were other people on the list that did have that; and that Richard Chiado
told her that he ran dozers and he named contractors but that she just got off the phone with
Shelia and it did not indicate finish dozer on she told him his work card.
When called by Counsel for General Counsel, Regan testified that he met with Brewer
and Milano in Utica but it was not as a result of Waters' referral to ML; and that he met with
Brewer because she said that she felt intimidated by his Business Agent, Thomason.
Subsequently, Regan testified that he believed that Leitzell reported that Brewer told her that
she was intimidated by Thomason.
Subsequently, in response to questions of Respondent's counsel, Regan testified that
the first of two meetings he attended at Respondent's Utica office included dispatchers Brewer
and Molina, Thomason, and Leitzell; that the two dispatchers had made an accusation that they
were intimidate by Thomason; and that
When I got down there, I got them all in a conference room, and I am a firm
believer in getting everybody face to face, and ask them point-blank, I said ,'You made
accusations that Roddie intimidates you. I want to know in what way does he or doesn't
he, and in what way, and I want to resolve this matter.
….
They said that he did not intimidate them, that they just felt they weren't doing
their job correctly, and that he was trying to interfere with their work. [Transcript page 69]
Regan further testified that the referral in question in this meeting was the referral of Waters to
the pipeline job at the tank farm in Pontiac; that the fact that Ronald Chiado's son felt that he
should have went out before Waters was discussed at this meeting; that he gave the
dispatchers copies of the pipeline agreement since they said that they never had a copy of the
pipeline agreement at the Utica office; and that he told the dispatchers at this meeting that
pipeline contractors had the right to cherry-pick the out-of-work list "they can ask for individuals
at a pre-job conference" (transcript page 72).
Brewer testified that Regan, Thomason, and Leitzell came to District 5's referral hall; that
she met with these individuals; that they discussed what happened and Thomason went on and
on about how Dave Waters was the only one who could do this job; that she told them that she
was not doing what she was trained to do, namely follow her out-of-work list and call the
member the way she was supposed to do it; that they told her about a 50 percent rule regarding
the Pipeline Agreement; that it was her understanding that the 50 percent rule only applied if an
operator had worked for that company in the last 6 months; that "it was like changing the rules in
the middle of the game, that I had always known" (transcript page 216); and that during this
meeting she was not shown anything in writing which changed the procedure that she normally
followed, namely, referring to Addendum No. 1.
On cross-examination Brewer testified that during this meeting Leitzell asked her if
Richard Chiado had finished dozer on his card (apparently referring to when the involved
referral was made) and she told Leitzell that he did not18; that she understood at the time she

18 This raises a question in that, as noted above, Leitzell testified that the first time she
Continued
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
23
testified at the trial herein that the contractor is allowed to staff the job under the Pipeline
Agreement; that before this meeting she had never seen a printed copy of the Pipeline
Agreement; and that she used to get to see copies of the pre-job conference report but she did
not see the one for the involved job.
Subsequently, Brewer testified, after reading the pre-job conference report for the
Pontiac tank farm job (General Counsel's Exhibit 10) while on the witness stand, that there was
nothing in that pre-job conference report which indicates that the Union and the contractor
agreed that the normal rules that she followed, Addendum No. 1 (General Counsel's Exhibit 3),
would not be followed in this situation; and, as noted elsewhere herein, that she was not given
anything in writing that she should not follow the normal rules set out in Addendum No. 1 with
respect to the involved February 2007 referral to the Pontiac tank farm job.
Leitzell testified that the day after she first found out about the situation at District 5
regarding Dave Waters being sent to the tank farm job she, Regan, Thomason, Brewer, and
Molina met at District 5's Utica office; that
[I] [b]rought copies of the [Pipeline] agreement, and I talked to both of them
[Brewer and Molina], and I explained that sometimes there are reasons why this would
have been done, and also, it - - because Shelia had mentioned that Roddie had
intimidated her into sending this guy there, and I made it perfectly clear that a Business
Agent cannot tell you what to do. You have got to have a legitimate reason for doing it,
and if a - - as a Business Agent, he doesn’t have any right to tell you who you are
dispatching. [Transcript page 375]
Leitzell further testified that Regan asked Brewer and Molina if Thomason intimidated either one
of them and they both said "no"; and that Brewer and Molina were glad to receive a copy of the
Pipeline Agreement because they did not have one before that.
Brewer testified that a couple of weeks after her meeting with Regan, Thomason, and
Leitzell, Thomason came to District 5's referral hall and got copies of work card and he had
Molina fax copies of work cards; and that this occurred on about February 13 or 14.
When called by Counsel for General Counsel, Regan testified that he met with Leitzell,
Thomason, Richard Chiado, and his father, Ronald Chiado, in February 2007; that he did not,
either before the meeting or at the meeting, look at the out-of-work list to see where Richard
Chiado and Waters were on the list; that Richard Chiado claimed that he was ahead of Waters
on the list but he, Regan, did not know whether he was or was not; that he never checked out
the out-of-work list to determine whether Richard Chiado was ahead of Waters on the list; that
Randy Hill, who is a former Business Agent, also attended this meeting; that before this meeting
Thomason told him that Waters was referred because the contractor wanted a qualified finish
dozer operator and it was a very dangerous place in this tank farm; that the contractor asked for
Dave Waters and Thomason does not make the decision who to refer out to the job; that
Thomason did not tell him that he, Thomason, made the decision that Waters was the individual
to be sent out to the tank farm job; that at the time of this meeting he did not know whether
Thomason had looked at Waters' work history card, and Thomason did not tell him that he,
_________________________
telephoned Brewer about this situation Brewer told her that Richard Chiado did not have
finished dozer on his card. If that testimony is credible, it is not clear why sometime later at her
meeting with Brewer in Utica Leitzell would be asking Brewer if Richard Chiado had finished
dozer on his card.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
24
Thomason, had looked at any other registrant's card; that he was aware that there was a
problem in the Utica office regarding the Waters' referral; that he was not really aware that the
dispatchers took the position that there were other qualified individuals that were being passed
over when Waters was sent out; that he did not know that Leitzell on February 13 tried to get
someone other than Waters sent to the tank farm job; that he did not know that member
Cavallini was sent to the job to replace Waters; that he did not recall whether Brewer attended
this meeting; that there is not separate pipeline referral list; that he did not make any changes to
Waters' referral as a result of this meeting or at any other time; that neither before nor after this
meeting did he take any steps to determine if Richard Chiado or anyone else ahead of Richard
Chiado on the District 5 out-of-work list had experience as a dozer operator on a pipeline job;
that he oversees Thomason; that he does not - as opposed to could not - alter any decision that
Thomason has made; and that he does not have authority to oversee dispatch.
Subsequently, in response to questions of Respondent's counsel, Regan testified that he
held a second meeting at Respondent's Utica office; that he, Richard and Ron Chiado, Hill, who
was a former business agent, Thomason, and Leitzell were present; that he thought that Brewer
was in the room part of the time but he was not sure; that the purpose of the second meeting
was to make peace; that he "couldn't understand what everybody was making a big to-do over
this, when it was done properly and correctly, through the pre-job." (transcript pages 91); and
that while Richard Chiado, at this meeting, said that he ran a dozer, he could not recall if
Richard Chiado said that he was qualified to run a finish dozer.
Richard Chiado testified that on February 28, at 9:30 a.m., there was a meeting at
District 5's union hall; that his father informed him of the meeting; that he, his father, Leitzell,
Regan, Thomason, Randy Hill, and Ed Reich attended this meeting; that the participants
debated whether members had been wrongfully passed over when Dave Waters was
dispatched to the tank farm job in Pontiac; that Regan and Pauline admitted that the dispatch
was wrong but they said that it was Brewer's fault because she should have stood up to
Thomason, she should not have let him pick the guy he wanted, and it is the dispatcher's job to
dispatch in order ; that when the subject of an exclusive pipeline list came up, Pauline said that
there was no such thing as an exclusive pipeline list out of District 1; and that he and his father
told the group that Brewer told Thomason that there were other people that should have been
dispatched before Dave Waters.
On cross-examination Richard Chiado testified that the February 28 meeting got a little
heated and there might have been some cuss words used but he did not swear at Thomason,
he did not tell Thomason that he was fat, and he did not call Thomason a "SOB"; and that he did
state during the meeting that he needed that job because he had missed all of his insurance
hours.
Ronald Chiado testified that on either February 28 or 29 he attended a meeting with his
son Richard, Regan, Leitzell, Thomason, Reich, who is an operator, and Hill at the District 5
referral hall; that Regan asked him to attend the meeting; and that, at the meeting,
We discussed first off, the fact that … [the tank farm job] was being done under
Pipeline rather than Building Trades, because in previous years, that tank job was
always done under the Building Trades agreement, as well as - - I mean, as it shown in
the Pipeline Agreement, showing that tank farms are under Building Agreements. They
said they changed it, so I said 'Okay you changed it.'[19]

19 It is noted that the National Pipeline Agreement, General Counsel's Exhibit 6, contains the
Continued
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
25
Then, we argued the fact of my boy's capabilities as a dozer operator, and again,
we went through the fact that he has been running a dozer, an operator, as a finish
operator for T. J. Lambrect for four years, doing grade work, ditch work, all kinds of finish
work, bringing it down within a tenth, and that backfilling a pipeline wouldn't be that - - I
mean, it wasn't out of the ordinary. Just about any dozer operator could do it.
We never got anything settled on that, but in the interim, Roddie [Thomason]
brought up the fact that, 'Well, I couldn't have sent him anyway, because he wasn't on
the pipeline list.'
At that Pauline [Leitzell] did mention the fact, that there is no such thing as a
pipeline list.
….
… after a little bit further argument, one way or the other, Pauline and Dan
Regan said, 'Well, we will admit that that dispatch was wrong,' that someone else should
have been sent out there before Dave Waters, but it was pretty well Sheila's [Brewer]
fault, her being the dispatcher and not anyone else's fault, but they would not come to a
satisfactory solution. They gave no solution as to how anything could be fixed.
They just said, 'Well, we were wrong, let's go on from here.'
….
[They said Brewer] is the dispatcher and she should not have let … [Thomason]
tell her what to do. [Transcript pages 169 and 170]
Ronald Chiado further testified that at the February 28 meeting he showed the copy of the
involved work order, General Counsel's Exhibit 9, that he had to those in attendance; and that
They again said that Sheila should not have sent him, and that Roddie also said
that OQ wasn't necessary on this project. I said, 'Well, it is funny the other guys had to
have it, and this guy doesn't,'
He [Thomason] said, 'Well, it is not necessary. It is just something that has got to
be done.' [Transcript page 171]
Leitzell testified that on February 28 she attended a meeting at District 5's office in Utica;
that Ronald and Richard Chiado, Randy Hill, Regan, Thomason, and a member of Local 150
who she did not know were also present at this meeting; that Thomason and Regan
_________________________
following language:
I. COVERAGE
….
F. Such pipe line construction, installation, repair, replacement or reconditioning as
may be combined with or associate or comprising an integral part of other work more
particularly and usually defined as engineering or building construction, or work covering
pumping stations, TANK FARMS, refineries, plant to plant connecting lines within city
limits and city distribution lines are not covered by this Agreement. [Emphasis added]
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
26
tried to explain pre-jobs and why … [Richard Chiado] really didn't get skipped, because
they wanted to be sent [sic] qualified people, because the contractor had agreed for us
to furnish it with a hundred percent of ours, and then it just sidetracked and there was a
lot of yelling. [Transcript pages 376 and 377]
Leitzell further testified that Richard Chiado never claimed during this meeting that he could
operate a finish dozer on a pipeline; that during this meeting she did say that she had talked to
Shelia and she had gone down the list and she had told her the names of the people that were
qualified for that job, that had finish dozer on there, and that Richard Chiado was not one of
them; that Ronald or Richard Chiado asked her if she was throwing Shelia under the bus; that
the meeting was hostile, there was name calling, and swearing by Richard Chiado when he
used the "f" word in addressing Thomason; that Richard Chiado called Thomason a "fat hillbilly";
that neither she, Regan, nor Thomason use profanity during this meeting; that a couple of days
before this meeting she reviewed the work cards of Richard Chiado and Dave Waters and she
noted that Richard Chiado's card did not have finish dozer on it, it was added on the day she
talked to him but it was not on the card before that; that since Richard Chiado did not have finish
dozer on his card at the time of the involved dispatch, he would not have been sent to the tank
farm job20; and that ML is a signatory to only the National Pipeline Agreement.
On cross-examination Leitzell testified that according to cards 2 and 1 of Dave Waters'
work card introduced by Respondent, Respondent's Exhibit 2, Dave Waters was sent to the ML
Pontiac tank farm job on "2/1/07" and he next reported in to the union hall on "5/29/07"; that she
is familiar with Addendum No. 1; that there are pre-jobs on other than pipeline jobs; that under
the Heavy and Highway and the Building Agreement the contractors can pick referrals; that this
is provided for in 1(B) of Addendum No. 1; that under that provision the contractor would be
giving the union the name of an individual and not just saying it wanted the most qualified21; that

20 The accuracy of this conclusion must be viewed in light of the testimony of Brewer that on
January 24, when Thomason called in the involved work order, she knew that Richard Chiado
had done finish dozer work on non-pipeline jobs; that she knew from Richard Chiado's work
history that prior to February 2007 he operated a dozer on a pipeline job; that, in her opinion
Richard Chiado was qualified to do the pipeline work for ML; and that she would have asked
Richard Chiado if he could run a finish dozer on pipeline. Regarding asking a member if he
could do the work required, it is noted -as set forth below - that Leitzell herself testified that if a
member's dozer experience is not fully laid on the work history card, she would ask the member
about his experience and if he is able to do the work, if the member says he can and he wants
the job he will be dispatched, it is not always obvious from the card whether the member can or
cannot do the specific job involved, and the normal procedure is for the contractor to give the
member a proficiency test on the equipment he claims he can operate.
21 As here pertinent, 1B of Addendum No. 1 reads as follows:
When an Employer desires to employ persons not eligible for dispatch to such
Employer under the provisions of this Addendum in the performance of work covered by
this Agreement in the geographical area covered by this Addendum, either by reason of
such persons special skills or previous satisfactory employment within the six calendar
months next preceding the date of request by the Employer requesting, such Employer
shall in writing request the Referral Office servicing the job or project for pre-job
conference at least two calendar weeks prior to the commencement of the work or
operation of the equipment.
At such pre-job conference the classification and number of such Employees and the
time of the commencement of their employment or the operational stages of the job or
Continued
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
27
it was her understanding that ML had specifically picked Dave Waters, the individual; that when
she makes a dispatch, she has asked the member if he is able to do that work; that if the
member says that he can and he wants the job, then he will be dispatched; and that it is not
always obvious from the out-of-work card whether the member can or cannot do the specific job
involved.
Subsequently, Leitzell testified that when a steward calls in asking for someone to be
sent out to operate a dozer she looks at the out-of-work list, she looks to see if someone has
dozer experience, and if it is not fully laid out on the work history card, she would ask the
member about their experience; and that the normal procedure is for the contractor to give the
member a proficiency test on the equipment he claims he can operate, and the contractor can
reject the person sent out by the union at any time or the contractor can accept the member
who was sent out.
General Counsel's Exhibit 14(a) is a work order for "4-18-07" for ML for the involved
Pontiac pipeline job. The work order calls for one oiler for a backhoe and "*OQ Cert*" is
specified on the "Sent" line. (Emphasis in original) The work order indicates that the call came
from "Brian" (Borwig) and Daniel C. Jones was referred out on April 18 to the job by Molina.
Brewer testified that the handwriting on the work order was Molina's; that she was familiar with
this referral; and that Jones did have OQ certification.
General Counsel's Exhibit 14(b) is a work order dated "4/23/07" for the ML job in
Pontiac. "[O]iler (Group II) Backhoe OQ Training" is written on the "What is Wanted" lines.
Brewer testified that this is her handwriting and that she took the order and Molina filled it
indicating on the work order that she, Molina, sent Dean Guerro on "4/23/07"; that Terry Tunget
was originally called but he did not have OQ training so he was not referred out on this job; and
that Guerro did have OQ training. "Brian Borwig" is written on the "Call From" line of this work
order.
When called by Counsel for General Counsel, Regan testified that he first saw Richard
Chiado's and Dave Waters' work history card about 1 month before the trial herein (or, in other
words, around the beginning of September 2007); that he is familiar with the companies of
Coolset, Murphy Brothers, ARB, Brandenburg Drainage, Sheehan, and H. C. Price; that all but
Brandenburg Tile, which does drain tile, are pipeline contractors; that he did not learn that
Richard Chiado worked for all of these companies but he thought that when he reviewed
Richard Chiado's work card a month before the trial herein he saw that Richard Chiado might
have worked for a few but he was not positive about that; and that he did not know prior to
February 2007 that Richard Chiado had operated a dozer on a pipeline job for Murphy Brothers.
Analysis
Paragraphs 5(d) and (e) of the complaint collectively allege that since about February 5,
_________________________
project at which their employment shall commence shall be determined.
Thereafter upon written request of such Employer, signed by an authorized
representative of such Employer on a job or project and delivered to the Referral Office
servicing such job or project stating the such Employer desires that a named person or
persons be referred in a classification or classifications agreed to at such pre-job
conference such person or persons shall be referred without regard to the provisions of
Addendum No. 1, Sections 4, 5 and 6 of this Agreement and the Employer shall hire
such persons or person so referred. [Emphasis added]
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
28
Respondent has failed and refused to properly refer Richard Chiado to employment with ML in
violation of its established hiring hall rules, resulting in a denial of employment to Richard
Chiado, and that Respondent engaged in this conduct for reasons other than the failure to
tender the periodic dues and the initiation fees uniformly required for membership in
Respondent.
On brief, Counsel for General Counsel contends that Thomason's testimony that Dave
Waters came to the involved ML job as a result of a District 5 referral is belied by Thomason's
long held belief, as indicated by the unrefuted testimony of Studer, that an operator who
Thomason subjectively believes is the most qualified for the involved job should be referred out
to pipeline jobs regardless if they came up on the out-of-work list next or if other qualified
operators were on the list ahead of them; that here Thomason personally wanted Dave Waters
on the job and Dave Waters presence on the job had nothing to do with a specific request by
ML for Dave Waters or a referral by Debbie Cargill; that other than testifying that Cargill was
responsible for the Dave Waters referral - an assertion not corroborated by Respondent's
dispatcher Cargill - Thomason failed to address Brewer's detailed account of the events leading
to the referral of Dave Waters to ML; that, as here pertinent, Respondent operates an exclusive
hiring hall under the National Pipeline Agreement; that the involved referral should have been
made under Addendum No. 1, as described above; that to the extent that ML and Respondent
may have agreed to waive the 50/50 manning ability, such agreement did not relieve them from
adherence to the exclusive referral system and it did not destroy the exclusive nature of the
hiring hall arrangement; that a union that acts arbitrarily, discriminatorily or in bad faith violates
the duty of fair representation, Air Line Pilots v. O'Neill, 499 U.S. 65 (1991); that when a union
operates an exclusive hiring hall, it "'wield[s] additional power … by assuming the employer's
role,' [and] 'its responsibility to exercise that power fairly increases rather than decreases,'"
Breninger v. Sheet Metal Workers Local 6, 493 U.S. 67, 89 (1989); and that in Operating
Engineers Local 406, 262 NLRB 50, 51 (1982), enfd. 701 F. 2d 504 (5th Cir. 1983) the Board
indicated as follows:
Even assuming the absence of specific discriminatory intent, a violation must be
found in the circumstances of this case. The Board has held that any departure from
established exclusive hiring hall procedures which results in a denial of employment to
an applicant falls within that class of discrimination which inherently encourages union
membership, breaches the duty of fair representation owed to all hiring hall users, and
violates Section 8(b)(1)(A) and (2), unless the union demonstrates that its interference
with employment was pursuant to a valid union-security clause or was necessary to the
effective performance of its representative function. [Footnote omitted]
Counsel for General Counsel further contends that the Board requires that referrals be based on
objective criteria and applied in a nondiscriminatory manner, Iron Workers Local No. 505
(Snelson-Anvil), 275 NLRB 1113 (1985); that the basic rule of Respondent's hiring hall is first in,
first out in that a referral must be offered to the first registrant on the out-of-work list who
possesses the necessary qualifications, with certain exceptions such as for stewards and key
men; that when Brewer made referrals under the National Pipeline Agreement she made the
referrals under Addendum No. 1; that Brewer's normal procedure was to go down the out-of-
work list, look at the work cards, verbally questioning registrants concerning their skills and then
dispatch the member; that Leitzell confirmed that this was the proper procedure to follow,
testifying the she herself calls members, asks the member if he is able to do the work, and if he
says yes, the member is sent out to the job; that Thomason deliberately bypassed the normal
procedure by insisting that Dave Waters be sent to ML; that there is nothing in writing which
would have indicated to Brewer that she should not follow the normal rules set out in Addendum
No. 1; that as indicated by Leitzell, business agents have no role in dispatching members to
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
29
work; that the testimony of Studer and Thomason revealed that Thomason, contrary to all other
witnesses, did not believe that Addendum No. 1 should apply on pipeline jobs; that when
Thomason was asked on cross-examination whether, in his opinion, Addendem No. 1 applied
he answered "well, in my opinion, the most experience applies on pipeline jobs" (transcript page
340); that Thomason knowingly and deliberately departed from the procedures that govern
Respondent's hiring halls in referring Dave Waters to ML in violation of Section 8(b)(1)(A) and
8(b)(2) of the Act, Operating Engineers Local 406, supra; that Richard Chiado and Brewer both
believed that OQ was necessary for operators doing pipeline work and the other operators
referred to the ML job, namely, Cavallini, Jones, and Guerro, all had OQ certification; that
Respondent has not rebutted the presumptive unlawfulness of its conduct; and that Thomason's
use of subjective standards in referring Dave Waters falls short of the objective standards and
criteria that a union, in operating an exclusive hiring hall, must apply, and it violated
Respondent's duty of fair representation, Teamsters Local 328 (Blount Bros.), 274 NLRB 1053
(1985).
Respondent on brief argues that where necessary, the employee referred by the Union
to a pipeline construction job must have OQ Qualification; that Thomason, in response to a
conversation with Borwig, called District 5, asked for the names of employees on the out-of-
work list with pipeline experience that were capable of operating a final-finish dozer, and Cargill,
a dispatcher who was temporarily working there, was the one who eventually named Dave
Waters as the one to be sent to the ML tank farm job; that in Vaca v. Sipes, 386 U.S. 171, 190
(1967) the Supreme Court held that unions breach the duty of fair representation if their
treatment of bargaining unit members is "arbitrary, discriminatory, or in bad faith"; that
Respondent did not deviate from its hiring hall procedures; that because ML was a pipe line job,
the employees for the job were to be hired according to the pre-job conference provisions of the
National Pipeline Agreement, as well as to Addendum No. 1; that Section 1(B) of the Addendum
allowed ML to select employees at the pre-job conference without regard to Sections 4, 5, and 6
of the Addendum, and the Pipeline Agreement allowed ML to hire the most experienced and
qualified individuals; that this was done through the pre-job conference attended by Thomason
on January 12; that Thomason followed the proper hiring hall procedures established by the
National Pipeline Agreement and Addendum No. 1 and, therefore, the Respondent did not act in
an arbitrary, discriminatory, or bad faith manner when it chose to dispatch Dave Waters; that the
Respondent acted at all times in good faith and in no way breached its duty of fair
representation; that even if it is determined that the Respondent deviated from the hiring hall
procedures, a merely negligent deviation does not constitute a breach of the duty of fair
representation; that the fact that the decision was not made based on ill will, discrimination,
unlawful favoritism or an unreasonable business practice must lead to the conclusion that the
Union did not breach its duty of fair representation and "this was simply an inadvertent
application of the Pipe Line Agreement" (Respondent's brief, page 30); that even assuming that
Respondent breached its duty of fair representation in dispatching Dave Waters to the Pontiac
Tank Farm project, Richard Chiado is entitled to no relief since he did not include on his work
card that he could operate a finish dozer and several other employees ahead of him on the list
did indicate such qualification; and that under no scenario would Richard Chiado have been
dispatched to the Tank Farm project to operate a finish dozer, and, therefore he is not entitled to
any back pay remedy.
I do not find Thomason to be a credible witness. At the trial herein Thomason testified
that Debbie Cargill went down the out-of-work list and first gave him the name of Jim Shannon
and then she gave him the name of Stanley Shevokas. Before going any further, there are at
least two problems with Thomason's testimony. First it is not clear why Cargill would have given
Thomason Jim Shannon's name first when he was lower on the out-of-work list than Shevokas.
Second, Cargill, who is still a dispatcher for Respondent, did not testify to corroborate this
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
30
testimony of Thomason. Who choose Dave Waters for the involved referral is a key disputed
factual issue. Yet, Respondent did not call dispatcher Cargill as a witness. When a party fails to
call a witness who may reasonably be assumed to be favorably disposed to the party, an
adverse inference may be drawn regarding any factual question on which the witness is likely to
have knowledge. It may be inferred that the witness, if called, would have testified adversely to
the party on that issue. While an adverse inference is unwarranted when both parties could
have confidence in an available witness' objectivity, it is warranted where, as here, the missing
witness is a dispatcher and Respondent in its answer to the complaint herein admitted (in that it
did not deny this allegation in its answer to the complaint) that someone holding the same
position, Brewer, is an agent of Respondent within the meaning of Section 2(13) of the Act.
International Automated Machines, 285 NLRB 1122 (1987). Both Regan and Leitzell testified
that it was their understanding that ML chose Dave Waters. But when Regan and Leitzell, along
with Thomason, attended the first meeting in Utica with Brewer, Brewer's actions, and not
Cargill's alleged actions, were the subject of the meeting. There was no mention by Thomason
at this meeting that it was not Brewer but rather it was Cargill who was responsible for giving
him Dave Waters' name. This approach, namely that it was a problem with Brewer, was carried
over to the February 28 meeting attended by Regan, Leitzell, Thomason, Ronald and Richard
Chiado, Hill and Reich. Both Richard and Ronald Chiado testified that Regan and Leitzell
blamed the situation on Brewer at the February 28 meeting. Their testimony is credited. Leitzell
admitted that one of the Chiados asked her if she was throwing Brewer under the bus. Again,
Thomason did not indicate at the February 28 meeting that it was actually Cargill who came up
with Dave Waters's name.
Brewer gave very specific testimony about her telephone conversation with Thomason
on January 24. The work order she drafted, General Counsel's Exhibit 9, corroborates Brewer's
testimony. The fact that Regan and Leitzell held a meeting with Brewer and Molina in Utica to
discuss whether Thomason intimidated them with respect to the involved Dave Waters referral
corroborates Brewer's testimony. Brewer's testimony about her telephone conversation with
Thomason on January 24 is credited. Other than asserting that he dealt with Cargill on the Dave
Waters referral (Respondent did not introduce any work order drafted by Cargill regarding the
involved Dave Waters referral.) and only that he spoke with Brewer sometime later, Thomason
does not specifically deny Brewer's very specific testimony about what occurred during their
January 24 telephone conversation. Thomason lied under oath when he testified at the trial
herein that Cargill was the one who came up with the name of Dave Waters.
Thomason lied when he testified on cross examination that he did not think that Richard
Chiado told him on the H.C. Price Guardian job in 2002 that he had never operated an
excavator on a pipeline job before, and that he could not remember if Richard Chiado had been
sent out to operate a bulldozer on the job. On direct Thomason tried to convey the impression
that Richard Chiado was not a capable operator. To admit on cross that as steward Thomason
himself created the situation on the H.C. Price Guardian job in 2002 would have been admitting
that on direct he was attempting to create a false impression.
As found below, Thomason lied under oath about the threats he made to Richard and
Ronald Chiado. I do not credit any of Thomason's testimony unless it is corroborated by the
testimony of a credible witness or a reliable document which was received in evidence at the
trial herein.
There are many problems with Respondent's position. Thomason did not even attempt
to refute Studer's testimony. Studer's testimony is credited. Consequently, we have an
understanding of Thomason's beliefs as of 2005. This is reinforced with Thomason's testimony
at the trial herein when he testified that Addendum No. 1 does not apply to pipelines but rather
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
31
"the most experienced applies on pipeline jobs." (transcript page 340) Who would decide which
member was the most experienced? Regan and Leitzell admit that the business agent is not
supposed to play any role in the dispatching process. Except for 1B of Addendum No. 1, only
the dispatchers are supposed to chose who to send out on a referral. Neither of the dispatchers
who testified herein testified that they choose who to send out to a job on the basis of who is the
most experienced. Both testified that if the member is the next one available on the out-of-work
list, he claims that he is capable and he wants the referral, the member is referred out with the
understanding that the contractor can test him for his proficiency on the equipment he claims
that he can operate. And, as noted above, 1B of Addendum No. 1 indicates, as here pertinent,
When an Employer desires to employ persons not eligible for dispatch to such
Employer under the provisions of this Addendum in the performance of work covered by
this Agreement in the geographical area covered by this Addendum, either by reason of
such persons special skills or previous satisfactory employment within the six calendar
months next preceding the date of request by the Employer requesting, such Employer
shall in writing request the Referral Office servicing the job or project for pre-job
conference at least two calendar weeks prior to the commencement of the work or
operation of the equipment.
At such pre-job conference the classification and number of such Employees and the
time of the commencement of their employment or the operational stages of the job or
project at which their employment shall commence shall be determined.
Thereafter upon written request of such Employer, signed by an authorized
representative of such Employer on a job or project and delivered to the Referral Office
servicing such job or project stating the such Employer desires that a named person or
persons be referred in a classification or classifications agreed to at such pre-job
conference such person or persons shall be referred without regard to the provisions of
Addendum No. 1, Sections 4, 5 and 6 of this Agreement and the Employer shall hire
such persons or person so referred. [Emphasis added]
It has not been shown that this provision was complied with in the situation at hand.
Thomason testified about what occurred at the involved pre-job conference. The full
extent of his testimony is not corroborated by the pre-job conference report received in evidence
as General Counsel's Exhibit 10. Indeed, in at least one regard the pre-job conference report
contradicts the position Thomason later took with respect to whether OQ certification was
required. Thomason tried to cover the situation with his testimony "this is one of the … pre-jobs
that I didn't go into decisions and clarifications and attach it to the per-job" (transcript page 312).
Thomason is not a credible witness. And Respondent did not call as a witness anyone else who
attended that pre-job conference. So consideration of what occurred at the pre-job conference is
limited to what appears on the pre-job conference report. That being the case, there is no clear
indication that the parties meant, as memorialized by the report, to refer to the provisions of 1B
of Addendum No. 1. According to the testimony the Union's representative at this pre-job
conference, Thomason, he does not believe that Addendum No. 1 applies to pipeline jobs.
Borwig was not called to testify about whether he, on behalf of ML, authorized
Thomason to contact District 5 to get a dozer operator. Everyone agreed that the proper
procedure is that the steward, Borwig, is the one who is supposed to contact District 5 for a
referral. Indeed, it was Borwig who contacted District 5 on two occasions in April 2007 for an
oiler with OQ certification for a backhoe. There is no credible evidence of record that Thomason
was authorized by ML to contact District 5 for a dozer operator on January 24.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
32
Notwithstanding what Studer told him about what was the right approach in 2005,
Thomason implemented, in the situation at hand, the approach he wanted to take. The
approach Thomason took violated the Union's procedures. Moreover, Thomason was not the
steward on the involved ML job. And, as noted above, there is no showing that he was
authorized by the steward, Borwig, acting on behalf of ML to contact District 5.
What occurred was not a question of negligence. Here Thomason knew exactly what he
was doing. He had been placed on notice years ago by a union official, Studer, that the
approach he advocated did not in comply with Union rules. Here the Union was placed on notice
at the outset that a wrong was being committed. Instead of righting the obvious wrong
immediately and avoiding or at least limiting any question of liability, the Union chose to attempt
to steamroll over those who challenged it over what was occurring.
Another aspect of the situation at hand may be cause for concern. Regan testified that
Thomason told him that it was a very dangerous place on the involved tank farm. On direct by
Respondent's counsel, Thomason testified that that there would be a risk involved in having
someone who is not a clean up trained, pipeline dozer operator "[d]epending on if you are
working over or around a bunch or existing loaded gas lines…." (transcript page 336)22 The
involved pre-job conference report called for OQ certification. Brewer testified credibly that every
pipeline job required the operators to have OQ certification. Both of the work orders that ML
steward Borwig called in for the involved job in April 2007 specified OQ certified. Richard
Chiado testified, without contradiction, that Thomason, among others instructors, told him when
he took the OQ certification training that he would not be allowed on pipelines unless he had the
OQ certification class. Yet Thomason argued with Brewer when she pointed out the Dave
Waters did not have OQ certification. Thomason told Brewer that Dave Waters "does not need
OQ." See General Counsel's Exhibit 9. Did Thomason sacrifice safety to get Dave Waters
referred to the ML tank farm job?23 Or was Thomason, for the purpose of getting Dave Waters
referred, approaching the situation in terms of tank farms not being covered by the National
Pipeline Agreement, General Counsel's Exhibit 6, in that section 1F, as set forth above,
indicates that "tank farms … are not covered by this Agreement"?
All agree that in the situation at hand the member cannot go to the employer and apply
for and accept employment. If he does, he will be disciplined by the Union. The member, in an
exclusive hiring hall situation, is at the mercy of the Union in that it has the power to affect the
member's livelihood in a very dramatic way. As noted above, Richard Chiado testified, without
challenge, that he needed the ML tank farm job because he missed all of his insurance hours.
When a Union departs from established exclusive hiring hall procedures which results in a
denial of employment to one of its members, there is no need to show a specific discriminatory

22 As noted above, on cross Thomason testified that the old pipe which was to be removed
was no longer pressurized and you could not remove a live line.
23 It is noted that on direct by Respondent's counsel Thomason testified that ML did not offer
its own OQ certification on the tank farm project at Pontiac. When Thomason went on to explain
that ML did ask for OQ certification at first "until they found out that the amperage was going --"
(transcript page 337) Counsel for General Counsel renewed her objection pointing out "[w]e
have no idea who is talking, when it was said … in terms of foundation" (transcript page 337).
The objection was sustained. Respondent's counsel did not attempt to elicit any additional
testimony from Thomason on this matter. Two things should be noted. First, Thomason is not a
credible witness. And second, subsequently, as noted above, both of the work orders that ML
steward Borwig called in in April 2007 specified OQ certified.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
33
intent. A violation of the Act will be found unless the Union comes forward to show that the
involved referral was actually made pursuant to a valid hiring hall provision or that the Union
action was necessary for the effective performance of the Union's representational function.
Here, the Union has done neither. As contended by Counsel for General Counsel on brief,
Thomason deliberately bypassed the normal procedure by insisting that Dave Waters be sent to
the ML tank farm job. Dave Waters was not referred based on any objective criteria applied in a
non-discriminatory manner. Rather, Dave Waters was referred because Thomason wanted him
referred notwithstanding the fact that there were other qualified members ahead of Dave Waters
on the out-of-work list, and notwithstanding the fact that while those other qualified members
were OQ certified, Dave Waters was not OQ certified at that time. As pointed out by Counsel for
General Counsel on brief, Thomason's use of subjective standards in referring Dave Waters
falls short of the objective standards and criteria that a union, in operating an exclusive hiring
hall, must apply, and it violated Respondent's duty of fair representation, Teamsters Local 328
(Blount Bros.), 274 NLRB 1053 (1985). Respondent violated the Act as alleged in paragraphs
5(d) and (e) of the complaint.24
Paragraphs 6(a) and (b) of the complaint collectively allege that about February 12
Respondent, by Thomason, threatened to deny work to Richard Chiado if he tried to do anything
about Respondent's refusal to refer him to employment on or about February 7, and by this
conduct Respondent coerced Richard Chiado in the exercise of rights guaranteed under Section
7 of the Act.
On brief, Counsel for General Counsel contends that Thomason's threat to Richard
Chiado that he would not see very much pipeline work anymore if he did anything about the
referral of Dave Waters violated Section 8(b)(1)(A) in that it was intended to restrain Richard
Chiado in his efforts to realize the benefits of the National Pipeline Agreement and to coerce
Richard Chiado to yield to Thomason's efforts to run the referral system as he pleased, Local
Union No. 725, Plumbers, 225 NLRB 138, 145 (1976); and that Thomason's threat shows that
Respondent had been operating the referral system in an arbitrary manner.
Respondent on brief argues that Thomason did not threaten Richard Chiado's future
work on the pipe line; that Richard Chiado's claim that Thomason threatened his future work on
the pipe line is just another example of Richard Chiado's tendency to exaggerate facts and
events; that Richard Chiado's claim must also fail because the alleged threat was not based on
rights guaranteed by Section 7 of the Act; and that the threat does not prevent Chiado from
engaging in concerted activity or to join or assist a labor organization.

24 With respect to Respondent's assertion that Richard Chiado would not have been referred
to the ML tank farm job anyway, as noted above, the person who had the right to make that
decision, Brewer, testified credibly that on January 24, when Thomason called in the involved
work order, she knew that Richard Chiado had done finish dozer work on non-pipeline jobs; that
she knew from Richard Chiado's work history that prior to February 2007 he operated a dozer
on a pipeline job; that, in her opinion Richard Chiado was qualified to do the pipeline work for
ML; and that she would have asked Richard Chiado if he could run a finish dozer on pipeline.
And as noted above, regarding asking a member if he could do the work required, Leitzell
herself testified that if a member's dozer experience is not fully laid out on the work history card,
she would ask the member about his experience and if he is able to do the work; that if the
member says he can and he wants the job he will be dispatched; that it is not always obvious
from the card whether the member can or cannot do the specific job involved; and that the
normal procedure is for the contractor to give the member a proficiency test on the equipment
he claims he can operate.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
34
With respect to Respondent's first argument, namely that Richard Chiado has a
tendency to exaggerate, it appears that Respondent either intentionally or unintentionally
overlooks the fact that Ronald Chiado, Richard's father, also testified that Thomason told him
that if he did not back off, "my boy would never see another pipeline." (transcript page 167) As
noted above, I do not find Thomason to be a credible witness. I do find Ronald and Richard
Chiado to be credible witnesses. I credit their testimony that Thomason threatened to deny
Richard Chiado work if he tried to do anything about Respondent's refusal to refer him to
employment on about February 7 (February 5). With respect to Respondent's second argument
regarding Section 7 of the Act, as pointed out by Counsel for General Counsel on brief, the
statement that Richard Chiado would either never see another pipeline or would not see very
much pipeline work anymore threatens a loss of work. It was intended to (a) restrain Richard
Chiado in his efforts to realize the benefits of the National Pipeline Agreement, and (b) coerce
him to yield to Thomason's efforts to run the referral system as he pleased. These threats
violated Sections 8(b)(1)(A) of the Act, Local Union No. 725, Plumbers, supra. Respondent
violated the Act as alleged in paragraphs 6(a) and (b) of the complaint.
Conclusions of Law
1. Respondent violated Section 8(b)(1)(A) and 8(b)(2)of the Act on about February 5,
2007 and thereafter by improperly, in violation of its established hiring hall rules, referring Dave
Waters to the ML tank farm job in Pontiac, Illinois instead of Richard Chiado or another qualified
operator who was ahead of Dave Waters on Local 150's out-of-work list.
2. Respondent violated Section 8(b)(1)(A) of the Act on about February 12, 2007, by
Roddie Thomason threatening to deny work to Richard Chiado if he tried to do anything about
Respondent's refusal to refer him to employment on or about February 5, 2007.
3. The above unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully failed and refused, in violation of its established hiring
hall rules, to properly refer a member to the ML tank farm job in Pontiac, Illinois on or about
February 5, 2007, it, the Respondent, must make Richard Chiado, or any other qualified person
who should have been referred, whole for any loss of benefits or earnings, less any interim
earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).25
On these findings of fact and conclusions of law and on the entire record, I issue the

25 It will be left to the compliance stage of this proceeding to determine which member,
namely Richard Chiado or some other qualified member ahead of Dave Waters on the involved
out-of-work list, will be made whole by Respondent for its unlawful refusal to refer either Richard
Chiado or some other qualified member ahead of Dave Waters on the involved out-of-work list
out to Minnesota Limited, Inc.'s tank farm job in Pontiac, Illinois.
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
35
following recommended26
ORDER
The Respondent, International Union of Operating Engineers, Local 150, AFL-CIO, of
Utica, Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Improperly, in violation of its established hiring hall rules, referring an unlawfully
chosen member to a job instead of referring a qualified member who is ahead on Local 150's
out-of-work list of the unlawfully chosen member who was referred.
(b) Threatening to deny work to Richard Chiado if he tried to do anything about
Respondent's refusal to refer him to employment.
(c) In any like or related 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 necessary to effectuate the policies of the Act.
(a) Make whole Richard Chiado or any other qualified individual who should have been
referred pursuant to the referral system rules to Minnesota Limited, Inc. at its Pontiac, Illinois
tank farm site for any loss of earnings and other benefits suffered as a result of Respondent's
refusal to refer Richard Chiado or any other qualified individual for employment, in the manner
set forth in the Remedy section of the decision.
(b) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at its Utica, Illinois union hiring hall,
copies of the attached notice marked “Appendix.”27 Copies of the notice, on forms provided by
the Regional Director for Subregion 33 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility

26 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 purposes.
27 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 National 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.”
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
36
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and members and former employees and members
employed by the Respondent or on the out-of-work list at any time since February 5, 2007.
(d) Sign and return to the Regional Director sufficient copies of the notice for posting by
Minnesota Limited, Inc., if willing, at all places where notices to employees working at the
Minnesota Limited, Inc. Pontiac, Illinois tank farm job site are customarily posted.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., December 13, 2007.
____________________
John H. West
Administrative Law Judge
JD(ATL)-36-07
5
10
15
20
25
30
35
40
45
50
37
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to refer Richard Chiado or any other employee member, in violation of the
established exclusive referral system rules.
WE WILL NOT threaten to deny you work if you do anything about our unlawful refusal to refer you
employment.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole Richard Chiado or any other qualified individual who should have been referred
pursuant to the referral system rules to Minnesota Limited, Inc. at its Pontiac, Illinois tank farm site for any
loss of earnings and other benefits suffered as a result of Respondent's refusal to refer Richard Chiado or
another qualified member for employment.
International Union of Operating Engineers, Local 150,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63101-2829,
(314) 539-7770, Hours: 8: a.m. to 4: 30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 314-539-7780.