INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181 (MAXIM CRANE WORKS)

National Labor Relations Board - Board Decisions

Jan 4, 2017

365 NLRB No. 6 (N.L.R.B. 2017)

365 NLRB No. 6
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Union of Operating Engineers Local
181 (Maxim Crane Works) and Rickie J. Vance.
Case 25–CB–150584
January 4, 2017
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On July 13, 2016, Administrative Law Judge David I.
Goldman issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. January 4, 2017
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Raifael Williams, Esq. (NLRB Region 25), of Indianapolis,
Indiana, for the General Counsel.
Charles L. Berger, Esq. (Berger & Berger, LLP), of Evansville,
Indiana, for the Respondent.

1 In dismissing the 8(b)(1)(A) allegations, Members Miscimarra and
McFerran observe that the Respondent Union was in the midst of de-
fending the Charging Party’s unfair labor practice charge when it re-
quired him to make an appointment to view exclusive hiring hall lists
so that union counsel could be present. They express no view on
whether such a requirement lawfully could be imposed in other circum-
stances.
DECISION
Introduction
DAVID I. GOLDMAN, Administrative Law Judge. In this case
an employee registered with a union’s exclusive hiring hall
requests that the union show him the hiring hall’s “out-of-
work” list. The union refuses to let him see the list at its district
office in Evansville, Indiana, but offers to have the union’s
business manager show it to him at the main district office in
Henderson, Kentucky, a 10–15 minute farther drive for the
employee. The business manager explains that he wants to
make sure that in showing the list negative comments made by
contractors about employees are not disclosed. The employee
refuses the offer to view the list in Henderson and files charges
with the National Labor Relations Board (Board).
A couple of months later, in an effort to settle the dispute,
the union’s attorney writes to the Board’s investigating agent
and offers to let the employee view the out-of-work list in Ev-
ansville by making an appointment with the office. The inves-
tigating Board agent and the union’s attorney tell the Evansville
staff representative that for this meeting the employee will need
to make an appointment so that the union’s attorney can be
present. A few weeks later the employee shows up at the Ev-
ansville office unannounced and requests to view and copy the
records. The union representative denies the request because
he has been instructed that there has to be an appointment so
that the union attorney can be present when the charging party-
employee reviews the records.
On these facts, the government alleges that the union has un-
lawfully refused to allow the employee to view and copy the
out-of-work lists in breach of the union’s duty of fair represen-
tation. The question is whether under the circumstances the
union’s rationales for, first, requiring the employee to go to
Henderson to view the list, and second, requiring an appoint-
ment so that counsel could be present at Evansville, are arbi-
trary and irrational. I conclude that they are not. Further, I
reject as unsupported by any evidence the suggestion that the
union’s actions toward the employee were motivated by hostili-
ty toward him because of his union political activities. Finally,
given my resolution, I do not reach the issue of whether evi-
dence of the second incident at the Evansville office should be
barred by Federal Rule of Evidence 408 as contended by the
Union at trial. I recommend dismissal of the complaint.
STATEMENT OF THE CASE
On April 22, 2015, Rickie J. Vance (Vance) filed an unfair
labor practice charge alleging violations of the Act by the In-
ternational Union of Operating Engineers Local 181 (Union)
docketed by Region 25 of the National Labor Relations Board
(Board) as Case 25–CB–150584. Based on an investigation
into the charge, on August 31, 2015, the Board’s General
Counsel, by the Regional Director for Region 9 of the Board,
issued a complaint and notice of hearing alleging that the Union
had violated the National Labor Relations Act. On September
10, 2015, the Union filed an answer denying all alleged viola-
tions of the Act. The Union filed an amended answer Decem-
ber 14, 2015. A trial was conducted in this matter on January
28, 2016, in Evansville, Indiana. Counsel for the General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Counsel and counsel for the Union filed briefs in support of
their positions by April 6, 2016. On the entire record, I make
the following findings, conclusions of law, and recommenda-
tions.
Jurisdiction
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. Maxim Crane Works (Maxim) is a limited
partnership that has, at all material times, been engaged in the
business of providing cranes and other lifting equipment na-
tionwide. Maxim has an office and place of business in Indian-
apolis, Indiana. At all material times, Maxim has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Indiana Contractors Associa-
tion, Inc. (ICA) is a multiemployer bargaining association. At
all material times the Union has been the exclusive collective-
bargaining representative of the following employees, including
employees of Maxim:
The employees described in Article I and II of the collective
bargaining agreement between Respondent and the Building
Division–ICA, Inc. which was effective from March 13, 2012
to March 31, 2015.
Charging Party Vance is a member of the Union, and at vari-
ous times worked for employers, including Maxim, under terms
and conditions established by the labor agreements bargained
by the Union and ICA. Based on the foregoing, I find that this
dispute affects commerce and that the Board has jurisdiction of
this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
Factual Findings
Background
The Union is the recognized collective-bargaining repre-
sentative for, among others, the employees of employers who
are members of, or otherwise abide by the terms and conditions
negotiated by the multiemployer bargaining association known
as the building division of the ICA.
The Union’s jurisdiction includes all the counties in Ken-
tucky (except for four Kentucky counties just to the south of
Cincinnati, Ohio) and 28 counties in Indiana. Within this juris-
diction the Union maintains six district offices throughout the
jurisdiction.
Howard Hughes is the Union’s elected business manager.
He oversees the Union’s operations for all districts. His office
is in District 1, in Henderson, Kentucky. District representa-
tives and business agents are located in all of the district offices
except for District 1.
Business agents in these districts report to the district repre-
sentatives. The district representatives report to Business Man-
ager Hughes. But, as Hughes, explained, “they all work for
me.” The district 2 office is in Evansville, Indiana. Hughes
testified that the driving distance from the Henderson office to
the Evansville office is 12.8 miles and that it took him 13
minutes to drive it. Driving distance from the center of Hen-
derson to the center of Evansville is 10.7 miles.1
For many years, the Union has operated an exclusive hiring
hall. Pursuant to the collectively-bargained agreement between
ICA and the Union, ICA-affiliated contractors needing opera-
tors notify the Union and the Union has 24 hours to refer quali-
fied employees. After 24 hours the contractor can hire from
any source. The contractor has the right to determine the com-
petency and qualifications of union-referred employees and to
decide whether to hire the referred employees.
The Union maintains an out-of-work list of all members (and
nonmembers who have worked within the jurisdiction) listing
the last date that they registered as out-of-work. The Union’s
out-of-work list tracks all reporting employees who are laid off
and want to be contacted when the Union has received contrac-
tor requests for employee referrals. An employee or applicant
can register with one district, or all six, depending on their will-
ingness to travel for work.
The Union’s out-of-work list is maintained through a com-
puter program developed by a company named Benassist. As
maintained by this computer program, the list contains not only
the names of employees, their address, telephone, self-reported
job skills, and out-of-work date, but also contractor comments
about employees that amount to negative reviews of the em-
ployees’ work skills or refer to their having failed a drug test.
Applicants registering for the out-of-work list self-identify
which (of approximately 150 possible) job skills they possess.
If the applicant has overstated his or her qualifications and the
contractor finds the employee deficient, the contractor will
contact the union and reference the problem. Those show up in
comments and they are considered in future referrals.
The out-of-work list is updated in the computer system on a
daily basis by secretaries working in the Henderson office, who
receive reports and input the information from the district offic-
es each morning. The districts get their information from em-
ployees who, after being laid off, will call in to the district of-
fice that referred them to the job and report how many days
they worked and that they are now laid off. Sometimes there is
as many as 500–600 calls are logged in the system for one day.
While each district office has access to the list through the
computer system, only the Henderson office has authority to
make changes or updates to the out-of-work list. District repre-
sentatives can print out an out-of-work list for their district, but
also for other districts as well.
When a contractor request for employees is made, the Union
contacts applicants in order of the out-of-work list (longest out-
of-work first, of course) out of those registered applicants listed
as possessing the skills, certifications, and drug-testing approv-
als required by the contractor for the referral. Typically the
contact is made by a phone call from a union representative to
the applicant to telephone numbers supplied by the applicant.
There is some discretion in how long a union representative
waits to hear back, but given the 24-hour referral mandate,
essentially the first applicants contacted who respond to the
calls are referred to the jobs.

1 I take administrative notice of this fact, based on Google Maps.
Bud Antle, Inc., 359 NLRB 1257, 1257 fn. 3 (2013), reaffd. 361 NLRB
No. 87 (2014).
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181 (MAXIM CRANE WORKS) 3
Applicants referred out to a job that lasts more than 20 days
go to the bottom of the list when they are laid off and then
reestablish themselves on the out-of-work list. If the applicant
works five days or less, he or she retains the existing out-of-
work date. After five days (but less than 21 days) one day is
added to the employee’s out-of-work date for each day beyond
five days worked but less than 21.
Vance’s dispute with Hughes about whether he views the out-
of-work list in Evansville or Henderson
Vance is a 37-year member of the Union. He had an out-of-
work date of September 9, 2014. Although union records sub-
mitted into evidence, and admissions on cross-examination
convincingly demonstrated otherwise, Vance claimed in his
direct testimony that “I had been laid off for six months and
hadn’t received any phone calls for work that I’m aware of.
That’s why I asked to see the out-of-work list.”2
In mid-to-late March 2015 (the testimony varies on the spe-
cific date) Vance telephoned the Union’s district 2 (Evansville)
district representative Tom Litkenhus and asked to see the out-
of-work list. Litkenhus told Vance that he “couldn’t show him
the out-of-work list,” and that he would have to go to Hender-
son and let Business Manager Hughes show it to him. Vance
insisted “I have a right to see the out-of-work list in Evans-
ville.” After debating the matter for a few minutes, Litkenhus
told Vance that “You’re not going to get the answer you want
out of me.”
The conversation with Litkenhus included accusations by
Vance that the Union had referred an employee out of order in
front of Vance. Vance told Litkenhus, “I’ve got you now”—
however, Vance admitted at trial that soon thereafter he learned
that his accusation was incorrect, and, indeed, he had no evi-
dence of any employee being referred out of order. Vance
admitted that he had no evidence at all that he has been treated
unfairly with regard to referrals, although those remain his
“feelings.”
A few days later, the morning of April 2, Vance called the
Union’s business manager, Hughes, in Henderson. After some
small talk about a labor agreement Hughes was negotiating, and
discussion of union elections, Vance told Hughes that he “felt
like [he’d] been overlooked several times on the out-of-work
list,” and that he had been told by district 2 that he would have
to go to Henderson to see the out-of-work list. Vance told
Hughes that he believed he had a right to see the out-of-work
list without going to Henderson: “Why I would have to go to
Henderson to see it is beyond me and that’s the question I am

2 Vance also testified that the Union did not “start calling me [for
jobs] until they had notice that I had filed [unfair labor practice] charg-
es.” However, on cross-examination he nonchalantly admitted that it
was “possible” that this was inaccurate, admitted that he told the Board
agent, as reflected in his affidavit, that he turned down job offers be-
cause he wanted longer jobs, he remembered receiving a message for
work on October 1, 2014, and did not remember eight other jobs for
which the Union’s records convincingly demonstrated he received calls
(for multiple calls for each job in most instances) between September 9,
2014, and March 19, 2015. My resolution of this case does not turn on
Vance’s credibility, but his testimony about not being called for six
months was thoroughly discredited.
presenting to you.”
Hughes indicated that district representatives such as Lit-
kenhus were not to show the list to applicants. Hughes told
him, “let me explain something Rick. There’s more—on the
out-of-work list[,] there’s more information than what . . . you
think there is. Okay. Let’s just say there’s comments under
everybody’s name in the file that a contractor will not hire
somebody, that’s under his name.”
Vance noted that other locals have “dispatch” out-of-work
systems where “you can get on your smart phone 24/7 and see
where you are at on the list, see who is in front of you, see who
is behind you.” Hughes countered that “the day may be coming
that [ ] this Local does that, but we’ve got a lot of redoing to do
to do that.” Hughes contended that with a dispatch system
there needs to be a more rigorous certification system for every
job classification so that qualified applicants can be automati-
cally chosen and dispatched to jobs—under the Union’s system
the union agent reviews the list, the applicant’s work history,
and the applicant’s self-identification of skills, to determine
who has the skills for the job to make sure that qualified em-
ployees are sent out.
Hughes told Vance, “Come over here and I’ll show you
where you’re at.” Vance said, “I shouldn’t have to come over.”
Hughes insisted that “there’s too much liability for the [district]
agents to go hanging around the out-of-work list,” and that he,
Hughes, knew how to show employees the list without expos-
ing the Union to liability. Vance argued that if the problem was
that certain information on the list could not be shown, then
that information should be removed and a list made that didn’t
show other people’s information. They reiterated their posi-
tions a couple of times, at one point Hughes told Vance “I’m
getting tired of your bullshit.” The conversation ended with
Hughes reiterating his “invitation” to Vance to come to Hen-
derson to see where he was on the list. “If you want to see the
list, I know how to show you where you’re at, if you want to
see it.”
Later that morning Vance called an international union rep-
resentative, Todd Smart, to consult about his right to the out-of-
work list. Although it is disputed what Smart told Vance, after
their conversation Vance called Hughes back and told Hughes
that Smart had told him he had a right to see the out-of-work
list without having to travel to Henderson. Vance also told
Hughes that Smart told him it was an issue for the “Labor Rela-
tions Board.”
Hughes responded, “I tell you what you do. I’ve offered to
show you the list over here . . . . you call the [National] Labor
Relations Board.” Vance said, “We’re not doing that.” [i.e.,
coming to Henderson to view the list]. Then Vance told
Hughes that Smart had agreed that it was unbecoming for
Hughes to have told Vance in their earlier call that “I am tired
of your goddman shit”—apparently Vance told Smart that
Hughes had said that. Hughes told him, “I didn’t say those
words.” The conversation devolved. As to the issue of the out-
of-work list, Hughes essentially reiterated his position that he
would show the list to Vance in Henderson. Vance reiterated
that if the issue was “liabilities” related to information on the
list, then such information should be removed.
Minutes after this call, Hughes connected a call with Smart
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and Vance on the line. Smart accused Vance of misrepresent-
ing their conversation and denied that he told Vance that he had
a right to see the out-of-work list. The two (literally) had a “he
said”—“he did not say” conversation. Then Hughes and Vance
argued again about whether Hughes had told Vance that he was
“tired of your goddman shit.” At some point, Hughes and
Smart realized that Vance was no longer on the line.
Hughes testified that for as long as he had been a member
(i.e., 43 years) the procedures carried out in response to
Vance’s (late March or) April 2015 request had been in place.
That is, in asking that Vance come to Henderson so that
Hughes could show him the list in a manner that did not reveal
negative comments from contractors about other employees,
Hughes believed he was carrying out a practice long in effect.
He testified that subsequently, as of December 2015, in re-
sponse to this case, he had a meeting with the union’s agents
and, along with an office secretary, Susan Prichard, who “un-
derstands Benassist better than anybody” showed the agents
how to print the list and manually remove “personal comments”
from the list and then recopy the list for applicants to view.
Essentially, in December 2015, Hughes showed the agents how
to do the work that previously he had trusted only himself to
do. Hughes also testified that the Union still, after December
2015, does not permit applicants to copy the list.
Vance files an unfair labor practice charge; the Union offers to
resolve it
On April 22, 2015, Vance filed the unfair labor practice
charge that is at issue in this case. During the pendency of the
investigation, on May 28, 2015, the Union’s attorney Charles
Berger, sent a letter to the Board’s investigating agent, Rebekah
Ramirez, in which he announced that “Mr. Vance does not need
to go to Henderson to see the out-of-work list . . .” The letter
states:
Thank you for your correspondence of May 20, 2015. Mr.
Vance does not need to go to Henderson to see the out-of-
work list he is permitted to see. We are willing to show him
where he is located on the out-of-work list including who is
above and below him and their corresponding out-of-work
dates. Our out-of-work list contains a great deal of confiden-
tial, private information including drug testing results, disci-
pline, contractor comments, and other information including
telephone numbers.
Members are not restricted nor required to go to Mr. Hughes'
office to view the list. Mr. Vance was difficult and not will-
ing to discuss the matter with Mr. Litkenhus and made inac-
curate, false accusations. Mr. Litkenhus directed him to Hen-
derson due to Mr. Vance's demeanor and actions. Mr. Vance
will need to make an appointment for when he wishes to visit
and view the out-of-work list and we will see that the meeting
occurs. Please advise if this will resolve the matter.
Vance shows up at the Evansville office unannounced
Some weeks later, in the latter part of June, Vance returned
to the Evansville district 2 office, accompanied by Fred Blay-
lock, a longtime union member and former business manager,
who came as a witness for Vance. Vance testified that “I was
told by the National Labor Relations Board to go there and ask
to see the out-of-work list and after I got done looking at it to
have copies made.” Vance attributed this directive to the inves-
tigating Board agent, Ramirez.
District Representative Litkenhus greeted Vance and Blay-
lock in the lobby. Vance “asked to see the out-of-work list, I
also asked to have copies made after I looked at it.” Litkenhus
refused to allow Vance to review the list, stating that the last
message he had gotten from counsel was that Vance “would
need to make an appointment and Charlie Berger would have to
be present” for him to view the list. Litkenhus testified that “I
was told from Ramirez and my attorney that they had to have
an appointment and my attorney present.” Vance was not per-
mitted to view the out-of-work list.
I note that a backdrop to all these witnesses’ interactions was
union politics. When Hughes ran and won the election for
business manager in 2011, he defeated the incumbent business
manager, Fred Blaylock, in a close race. Blaylock accompa-
nied Vance to the union hall as a witness when he sought the
out-of-work list in June. In 2011, Hughes also defeated a third
candidate in the race, by a larger margin, Vance’s uncle, Don
Cooper. Vance campaigned for his uncle. In 2014 Hughes ran
again and won reelection over Steve Manning. Vance cam-
paigned for Manning.
Analysis
The General Counsel contends the Respondent breached its
duty of fair representation, in violation of Section 8(b)(1)(A) of
the Act, by refusing to permit Vance to view or make copies of
the out-of-work list information.
The duty of fair representation is a judicially-created cause
of action implied from a union’s statutory grant of exclusive
bargaining rights under the Railway Labor Act (RLA). Steele
v. Louisville & Nashville Railway Co., 323 U.S. 192 (1944).
The concept reflects that “when Congress empowered unions
under the RLA to bargain exclusively for all employees in a
particular bargaining unit, and thereby subordinated individual
interests to the unit as a whole, it imposed on unions a correla-
tive duty, inseparable from the power of representation, to ex-
ercise that authority fairly.” California Saw & Knife, 320
NLRB 224, 228 (1995), enfd. 133 F.3d 1012 (7th Cir. 1998).
In Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), the Su-
preme Court confirmed that these principles extended to unions
recognized under the Act. See also, United Steelworkers v.
Rawson, 495 U.S. 362, 373 (1990) (“The Union’s duty of fair
representation arises from the National Labor Relations Act
itself”).
In Miranda Fuel Co., 140 NLRB 181 (1962), enf’d. denied
326 F.2d 172 (2d Cir. 1963), a Board majority adopted and
applied the duty of fair representation as it had been developed
by federal courts. The Board held that breaches of a union’s
duty of fair representation constitute unfair labor practices un-
der 8(b)(1)(A) or 8(b)(2):
we are of the opinion that Section 7 [of the Act] gives em-
ployees the right to be free from unfair or irrelevant invidious
treatment by their exclusive bargaining agent in matters af-
fecting their employment. This right of employees is a statu-
tory limitation on statutory bargaining representatives, and we
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181 (MAXIM CRANE WORKS) 5
conclude that Section 8(b) (1) (A) of the Act accordingly pro-
hibits labor organizations, when acting in a statutory repre-
sentative capacity, from taking action against any employee
upon considerations or classifications which are irrelevant, in-
vidious, or unfair.3
At the same time, the Supreme Court has established that,
whether before the Board or in federal court, “[a] breach of the
duty of fair representation occurs only when a union’s conduct
toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,
190 (1967). Thus, in considering, the duty of fair representa-
tion, “the Supreme Court-mandated standards . . . require defer-
ence to a union’s rational, good-faith, nondiscriminatory deci-
sion-making.” Operating Engineers, Local 18, 362 NLRB No.
176, slip op. at 9 (2015).
This standard “applies to all union activity.” Air Line Pilots
v. O’Neill, 499 U.S. 65, 67 (1991); Plumbers Local Union No.
342 (Contra Costa Electric), 329 NLRB 688 (1999), enf’d.
denied, 233 F.3d 611 (D.C. Cir. 2000). And that includes, as
here, the operation of an exclusive hiring hall. Air Line Pilots
v. O’Neill, 499 U.S. at 77 (“none of our opinions has suggested
that the duty is governed by a double standard. Indeed, we
have repeatedly noted that the Vaca v. Sipes standard applies to
challenges leveled not only at a union’s contract administration
and enforcement efforts but at its negotiation activities as well.
We have also held that the duty applies in other instances in
which a union is acting in its representative role such as when
the union operates a hiring hall”) (internal citations and quota-
tions omitted); Breininger v. Sheet Metal Workers Local 6, 493
U.S. 67, 88 (1989); Plumbers Local Union No. 342, supra.4
More specifically, the Board has long held that “inherent in a
union’s duty of fair representation is an obligation to deal fairly
with an employee’s request for information as to his relative
position on the out-of-work register for purposes of job referral
through an exclusive hiring hall.” Local Union No. 324, Oper-
ating Engineers, 226 NLRB 587, 587 (1976). Thus, the issue

3 The Second Circuit Court of Appeals refused to enforce the
Board’s decision in Miranda Fuel, rejecting the Board’s effort “to read
into Section 7 and Section 8 of the duty of fair representation implicit
in Section 9.” NLRB v. Miranda Fuel Co., 326 F.2d at 176. However,
since Miranda Fuel, the Board has developed an extensive unfair labor
practice jurisprudence considering breaches of the duty of fair represen-
tation to be 8(b) violations.
4 Some courts have applied a “heightened” standard of fair represen-
tation to unions in the operation of exclusive hiring halls. See, e.g.,
Jacoby v. NLRB, 325 F.3d 301 (D.C. Cir. 2003). Lucas v. NLRB, 333
F.3d 927, 934–935 (9th Cir. 2003). In addition to the arbitrary, dis-
criminatory, and bad-faith standard, under this “heightened standard, a
breach of the duty of fair representation will be found where a union
operates a hiring hall “without reference to objective criteria and there-
by affects the employment status the employment status of those it is
expected to represent” (Boilermakers, Local No. 374 v. NLRB, 852 F.2d
1353, 1353 (D.C. Cir. 1988), cited in Jacoby, supra at 308). See also,
Lucas v. NLRB, 333 F.3d 927, 934–935 (9th Cir. 2003). Although my
analysis follows the Supreme Court and Board accepted duty-of-fair-
representation standard set forth above, I note that application of a
heightened standard would make no difference to the outcome here.
There is no effect on Vance’s employment status alleged much less
found, and no failure to operate without reference to objective criteria.
in this case is whether the Union has acted arbitrarily, discrimi-
natorily, or in bad faith towards Vance with regard to his re-
quests for the out-of-work lists. IATSE, Local 720, 363 NLRB
No. 148, slip op. at 6 (2016) (“Therefore, a union violates the
Act when it arbitrarily denies a request for job referral infor-
mation if the request is reasonably directed toward ascertaining
whether the user has been treated fairly”); Local 324, Operat-
ing Engineers, 226 NLRB at 587 (“We therefore agree with the
Administrative Law Judge that Respondent's arbitrary refusal to
comply with Carson's reasonable and manageable request for
job-referral information breached its duty of fair representation
and thereby violated Section 8(b)(1)(A) of the Act”).5
The Respondent contends (R. Br. at 15–16) that the fact that
Vance did not have a reasonable belief of discriminatory treat-
ment undercuts any claim that Vance was entitled to view the
out-of work lists. Board precedent is unsettled as to whether an
applicant must demonstrate “a reasonable belief” that he was
treated unfairly as a prerequisite to proving a union’s breach of
the duty of fair representation for failing to provide him referral
hall records, or whether an applicant’s mere desire to see the
information is enough to require the union to have a nonarbi-
trary reason for its response to the request for information. See,
IATSE, Local 720, 363 NLRB No. 148, slip op. at 1 fn. 1
(2016); Operating Engineers, Local Union No. 12, 344 NLRB
1066, 1066 fn. 1 (2005); See, Carpenters Local Union No. 35,
317 NLRB 18, 18 fn. 1 (1995) (discussion of Member Brown-
ing’s agreement with majority).
Given my resolution of this case, I need not resolve that is-
sue here. However, I do find that clearly, in this case, Vance
did not have a reasonable belief, and there is no record evi-
dence of, discriminatory or bad faith treatment directed towards
him. His assertions that he had not been called for work for six
months were thoroughly discredited. He admitted that he had
no evidence at all that he had been singled out or subjected to
discriminatory treatment. Neither does the General Counsel.
Contrary to the claim of the General Counsel (GC Br. at 19),
the fact that Vance campaigned against Business Manager
Hughes in two elections provides no basis to infer that the Re-
spondent’s actions were motivated by hostility to Vance. The
mere fact that Vance had supported candidates other than

5 In conflict with this Supreme Court-mandated standard, the Gen-
eral Counsel’s arguments seem to proceed from the assumption that
Vance has an absolute right to view and copy the out-of-work lists
where and how he likes without regard to the union’s concerns. But
“the Act does not impose an absolute obligation to comply with re-
quests for hiring hall information in all circumstances.” Carpenters
Local 608, 279 NLRB 747, 755 (1986). Rather, “a Union must merely
‘deal fairly with an employee’s request for information.’” Id. (quoting,
Local 324, supra at 587). I note that even Board cases that express the
belief that an applicant “ought to be entitled, as a matter of right, to
inspect hiring hall records,” retreat for their holding to the formulation
that defers to the union’s rational and good-faith reason for its actions.
See, e.g., Local Union No. 513, Operating Engineers, 308 NLRB 1300,
1303 (1992) (“in the absence of some good reason advanced by Re-
spondent for withholding the information, it should be made available
without the necessity of laying a foundation”); Teamsters Local 282,
280 NLRB 733, 735 (1986) (“Accordingly, we find that the Respondent
has not established reason for its refusal to provide the information
sought and accordingly this refusal violated Section 8(b)(1)(A)”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Hughes is evidence of nothing (other than, perhaps, a vibrant
union democracy). But without more, there is no basis in law
or logic to presume that the supporters of a candidate that lost
an election are being discriminated against, in the face of other
explanations for the union’s conduct. See, Trnka v. Local Un-
ion No. 688, 30 F.3d 60, 63 (7th Cir. 1994) (employee’s two
decades of criticism of union leadership and policies provides
no basis for reasonable conclusion that employee’s grievance
was dropped by union in retaliation); Construction, Production
& Maintenance Laborers Local 383, 266 NLRB 934, 939
(1983) (“Clearly it may not be simply assumed that Union re-
form advocates, howsoever active and even strident they are,
inevitably engender sufficient animus on the part of trade union
officers to stimulate illegal discrimination”).
Lacking evidence that the Union’s actions toward Vance
were motivated by discrimination or bad faith, the inquiry in
this case is whether the Union acted arbitrarily toward Vance
and his request for the out-of-work list. And the threshold dif-
ficulty with the General Counsel’s case is that the allegation
that the “Respondent has refused to provide Rickie Vance with
hiring hall information maintained by Respondent” is not an
accurate account of what happened here.
In his first round of requests to view the out-of-work list, in
March and/or early April 2015, the Respondent did not refuse
to show Vance the out-of-work list. Rather, it repeatedly of-
fered to show it to him in the Henderson office. Vance refused.
(“We’re not doing that”).
Thus, the question is whether requiring Vance to come to
Henderson was an arbitrary condition by the Union. In consid-
ering this prong of the duty, “[s]o long as the union’s conduct
. . . is not wholly irrational or arbitrary . . . there is no breach
of its duty of fair representation.” Firemen & Oilers Local 320
(Phillip Morris, U.S.A.), 323 NLRB 89, 91 (1997).
The Union’s articulated concern for wanting to show Vance
the records in Henderson was so that Business Manager
Hughes—the elected head of the Union—could be in charge
and involved in the process. He was concerned that the records
be shown in a way that would not reveal negative comments by
contractors about individual employees’ drug tests or lack of
skills asserted by the employee. The determination was made
that he would show the list to Vance.
I might agree that it would be easier if the out-of-work lists
were simply scrubbed clean of sensitive information, and then
it would not matter who showed the list or where they showed
it. However, the testimony is that other than doing this manual-
ly—which is what Hughes testified he intended to do—the
software program used by the Union was not conducive to that.
Whether or not the General Counsel believes this to be a
weighty enough reason for asking Vance to travel to Hender-
son, Hughes’ explanation is far from an arbitrary or irrational
one, even if the General Counsel and the Charging Party would
have the union follow a different policy, were they in charge of
formulating union policy.
Moreover, and equally to the point here, there is no argument
to be made that the Union’s requirement that Vance come to
Henderson posed an undue—much less, arbitrary—burden on
Vance’s efforts to investigate his standing on the out-of-work
list. In this case, Vance was not asked to travel from Ashland,
or Lexington, or even Louisville, to view the records and meet
Hugh’s concerns. From Dale, Indiana, where he lived, he was
asked to travel to Henderson, which by the fastest route is 56
minutes and 57 miles, while it is 51 minutes and 53 miles to
Evansville from Dale. (Based on Google Maps, see fn. 1, su-
pra.) In other words in the circumstances presented, the Un-
ion’s rationale for wanting Vance to come to Henderson to
view the records is counterbalanced by virtually nothing, other
than Vance’s desire “to see the out-of-work list in Evansville.”
The Union’s dealings with Vance imposed no material hardship
on his inquiry.6
Hughes was willing to show Vance the out-of-work list as
requested by Vance. Hughes, who had won two elections to be
business manager of the union, felt that he was the most appro-
priate official to show the information to Vance, so that he
could be sure that it was done without disclosing negative
comments on individual employees that Vance did not need in
order to assure himself that he was being referred fairly. In
these circumstances it is simply beyond the legitimate purview
of the government to tell a union that it must show out-of-work
lists to an employee in the particular union office the employee
desires, and not in an office minutes away. Contrary to the
claims of the General Counsel, Vance was not denied the right
to view the out-of-work list in March and/or early April. Ra-
ther, he chose not to accept the Union’s invitation for him to
view the list in Henderson. There can be no violation of the
duty of fair representation in such circumstances.
In late June, Vance appeared at the Evansville office and
demanded to see the out-of-work list. This occurred in the
midst of the Region’s investigation into the unfair labor prac-
tice charge filed by Vance over the union’s insistence in April
that he go to Henderson to see the out-of-work list. As part of
the defense in the case, on May 28, the Union’s counsel,
Charles Berger, had written to the investigating Board agent
and indicated that Vance could view the out-of-work list at the
Evansville office:
Mr. Vance will need to make an appointment for when he
wishes to visit and view the out-of-work list and we will see
that the meeting occurs. Please advise if this will resolve the
matter.7
Vance testified that after this letter was sent, he was told by
Board Agent Ramirez “to go there [to Evansville] and ask to

6 Vance testified on direct that “I have the right to see the out-of-
work list without having to drive over an hour to see it” in Henderson.
However, on cross-examination he admitted that it took him “45 to 50
minutes, up to maybe right at an hour” to get to Evansville, and agreed
that the substance of his objection to going to Henderson was having to
drive “ten more minutes to see the list.”
7 The Respondent initially objected to the introduction of this let-
ter—indeed, to evidence of the entire incident when Vance showed up
at the Evansville office in late June—based on Federal Rule of Evi-
dence 408. I overruled the objection. The letter was not offered (and is
not being relied upon) “either to prove or disapprove the validity . . . of
a disputed claim.” F.R.E. 408. Thus this letter to the investigating
Board agent, which is an effort to settle the unfair labor practice claim
by offering to let Vance view the out-of-work list at Evansville, is not
relied upon as evidence of the validity of the claim that Vance should
have been able to see the records in Evansville from the start.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181 (MAXIM CRANE WORKS) 7
see the out-of-work list and after I got done looking at it to have
copies made.” However, as the Union’s Evansville district 2
representative Litkenhus credibly testified: “I was told from
Ramirez and my attorney that they [i.e., Vance] had to have an
appointment and my attorney present.” Vance arrived to see
the list without an appointment or any advance notice. Lit-
kenhus explained to Vance his understanding that an appoint-
ment needed to be made so union counsel could be present, and
he refused to allow Vance to see the list. Again, the necessary
inquiry is whether the Union’s refusal to allow Vance to see the
list on that day in June, without an appointment and without
counsel present, was arbitrary. Even in the absence of litiga-
tion, asking an applicant to call ahead and make an appointment
to review records is a reasonable and justifiable convention. It
assures that someone is available to print out the list, available
to copy it, and that there is an office and space set aside for
review of the list. There is no “right” to show up unannounced,
at a time of the applicant’s choosing, and require the union’s
staff to drop whatever else they are engaged in and accommo-
date the applicant’s request. Moreover, in the context here,
where Vance had a pending unfair labor practice charge filed
against the Union, it is entirely appropriate for the Respondent
to insist that Vance arrange in advance to review the out-of-
work list so that the Respondent could arrange to have counsel
present. Indeed, Board Agent Ramirez told Litkenhus that
Vance was to make an appointment. Parties have counsel han-
dle such matters when they relate to litigation, and they have
every reason to do so. That is the union’s rationale for its ac-
tions. It is hard to imagine the General Counsel’s rationale for
alleging that a respondent commits an unfair labor practice by
conditioning the furnishing of records to resolve a pending
unfair labor practice on the presence of its counsel.
Moreover, as with the requirement that Vance come to Ev-
ansville, it is worth pointing out that the Union’s insistence that
Vance make an appointment did not burden Vance, or pose a
barrier to Vance’s review. This is a case where a little coopera-
tion would have gone a long way, assuming, as I do, that
Vance’s desire was to review the out-of-work list.8
As to Vance’s request in June that after viewing the list he be
allowed to copy it, the General Counsel points out that Hughes
testified that the Union’s policy was and has remained that the
Union does not permit applicants to copy the list. The conten-
tion is that Vance would have been denied the right to copy the

8 The General Counsel also argues (GC Br. 18) that the Respond-
ent’s rationale for requiring Vance to come to Henderson, and later, for
not allowing him to view the notes without an appointment was “pre-
textual and disingenuous.” But he bases this on the false assertion that
Hughes testified that there was a rule maintained prohibiting applicants
from seeing the out-of-work list, which was only changed in December
2015 to permit viewing. Contrary to the General Counsel’s claim,
Hughes testified and I credit, that prior to December 2015, the process
he proposed in April to Vance—i.e., coming to Henderson to view the
list—had been in place for many years. Hughes testified that in De-
cember 2015, in response to this case, he changed the procedures—
showing agents in the district offices how to prepare the list for appli-
cants. None of this provides a basis to infer that the April demand that
Vance came to Henderson, or the June demand that Vance make an
appointment, was pretextual or disingenuous.
out-of-work list, even if he had complied with the Respondent’s
conditions for reviewing the list. However, I do not reach the
issue of whether, had Vance complied with the Union’s condi-
tions for reviewing the out-of-work list, and had union counsel
been in charge of providing Vance access to the records that
day in June, and had union counsel, after Vance completed his
review, refused to permit Vance to copy the information, that
would have been a duty of fair representation violation. This
issue is not presented by the facts here, which involve the Un-
ion’s denial of Vance’s request to have access to the records
because he arrived unannounced so that the union’s counsel
could not be present. In an effort to resolve this case, the Re-
spondent had agreed to Vance’s request to review the out-of-
work list in Evansville, but with the condition that he make an
appointment so that counsel could be present. Vance’s refusal
to comply does not turn the Union’s actions into a new breach
of the duty of fair representation. Accordingly, the complaint
should be dismissed.
Finally, as noted, the Respondent contended at trial that the
entire incident when Vance showed up at the Evansville office
in late June should have been inadmissible pursuant to F.R.E.
408. I overruled this objection at trial, although, in light of the
evidence presented, it is a close call.
The General Counsel prosecuted the June incident as an in-
dependent unfair labor practice—an independent refusal to
allow Vance to review the out-of-work list. The June evidence
is not used (and I have not relied upon it) as evidence of the
validity of the March/April alleged unfair labor practice. Of
course, Rule 408 does not apply to an alleged wrong committed
in the course of settlement discussions, and it does not apply to
a statement relevant to claims other than those being settled in
the discussions. Uforma/Shelby Inc. v. NLRB, 111 F.3d 1284,
1293–1294 (1997). On the other hand, the June incident was
the very same type of unfair labor practice alleged in
March/April, the complaint does not distinguish them, and the
only charge on record is Vance’s April 22 charge, never
amended. Even more to the point, the June incident was part of
an effort by the Union to settle the outstanding unfair labor
practice filed by Vance over the events in March/April. This
may be an instance where the events comprising the unfair
labor practice alleged in June “were so intertwined with the
unfair labor practices [from March/April] under discussion that
they cannot be separated therefrom” and evidence of the events
in June should have been barred. Contee Sand and Gravel Co.,
274 NLRB 574, 574 fn. 1 (1985). Given my resolution of the
events, I need not resolve the Rule 408 issue. Thus, I do not
reach the Rule 408 argument, and I do not rely on my ruling at
trial rejecting the Rule 408 objection.
CONCLUSIONS OF LAW
The Respondent did not violate the Act as alleged in the
complaint. On these findings of fact and conclusions of law
and on the entire record, I issue the following recommended9

9 If no exceptions are filed as provided by Sec. 102.48 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ORDER
The complaint is dismissed.
Dated, Washington, D.C. July 13, 2016