Iron Workers Local 505 (Snelson-Anvil)

National Labor Relations Board - Board Decisions

Jul 19, 1985

275 N.L.R.B. 1113 (N.L.R.B. 1985)

IRON WORKERS LOCAL 505 (SNELSON-ANVIL)
Ironworkers Local Union No. 505 , affiliated with
International Association of Bridge , Structural,
Ornamental Reinforced Ironworkers , AFL-CIO
(Snelson-Anvil, Inc.) and Thomas Sturdevant.
Case 19-CB-5058
19 July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 December 19841 Administrative Law
Judge James M. Kennedy - issued the attached deci-
sion . The General Counsel filed exceptions and a
supporting brief, and the - Respondent filed an op-
posing brief.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that - the Respondent did not
violate Section 8(b)(1)(A) of the Act when -it re-
ferred employees previously laid off back to the
Employer (Snelson-Anvil , Inc.) irrespective of the
order of - employees ' signatures on the out -of-work
list. For the reasons set forth below, we disagree.2
The parties stipulated and the judge found that
the Respondent operates an exclusive hiring hall
and that pursuant to the applicable collective-bar-
gaining agreement it provides the first source of
qualified ironworkers to the Employer . Calvin
Tinsley is the Union 's business manager and makes
all referrals . Although the agreement does not
specify the procedure by which employees are re-
ferred , it does provide that referrals will be made
in a nondiscriminatory manner . The parties stipu-
lated also that the Respondent has posted in the
hiring hall a set of referral rules which provide' in
pertinent part that all applicants are 'categorized as
group A , group B, or -group C employees,3 that
each category is to be exhausted before going to
the next , and that within each category referrals
I All dates refer to 1984 unless otherwise stated
2 In view of our finding that the Respondent violated Sec 8(b)(1)(A)
of the Act as independently alleged in the complaint, we find it unneces-
sary to consider whether the Respondent's conduct also constituted a
breach of its duty of fair representation or to pass on the judge's determi-
nation that the complaint was-deficient insofar as it -failed to allege that
Sec 8(b)(2) was also violated -
3 The categories reflect the applicants' levels of skill and the length of
time they have worked in the jurisdictional area of the Respondent This
case concerns only group B employees, i e, those registrants who, re-
gardless of time worked in the geographic area, have worked at the trade
as journeymen or apprentices and previously passed a journeyman exami-
nation conducted by a duly constituted local union
1113
are to-be made in the order in which the appli-
cants' names appear on the out-of-work list.4 -
The record reveals that Charging Party Thomas
Sturdevant and. his partner Amadeo Nappi were
laid off by the Employer on 4 -November 1983
along with 23 other employees. Although Sturde-
vant and Nappi were the first of the group B em-
ployees laid off by the Employer to sign the out-of-
work register at the hiring hall, they were not the
first referred when the Employer began calling
back employees.'5 Thus, -referral slips show that
employee Bill Moody was referrred back to the
Employer on 3 January, and on 16 January eight
more employees were referred back. Pursuant to
the Employer's 2 February request, 13 more em-
ployees, including Sturdevant and .Nappi,• were re-
ferred back to the Employer on 6 February.6
Tinsley stated that he made the callback referrals
on the basis of the registrants' presence in the
hiring hall on the date the Employer specified it
needed employees.7 Tinsley explained that recall
referrals have been made consistently on this basis
for at least 3 years pursuant to an unwritten but
well-known rule. . -
The Respondent contended, and the judge found,
that .the posted referral rules do not apply to call-
back situations and that its unwritten recall referral
rule is nondiscriminatory in both policy and appli-
cation.- The General Counsel.excepted, arguing first
that the posted rules apply to callback situations
and that this deviation from the posted procedure
is unlawful, and second that, even if the Board
finds the posted rules do not cover callback refer-
rals, the practice of referring applicants on the
basis of their presence in the hiring hall is inherent-
ly arbitrary and unlawful.8 We- find merit in these
contentions.
In the absence of a contractual requirement,
there is no requirement.in Board law that referral
rules be posted. Nor is there a requirement that re-
ferral rules be incorporated in a contract. Howev-
er, the Board does require that referrals, whether
made pursuant. to written or unwritten rules, be
based on objective criteria and applied in a nondis-
4 The rules also state that where an employer requires and calls for
employees possessing special skills and abilities, the Union shall refer the
first applicant on the out-of-work list who meets such criteria
- 6 The Employer specifically requested that the laid-off employees be
referred back to it because it had certified them as competent
6 Nappi telephoned Tinsley on an unspecified date between 16 January
and 2 February to find out why he and Sturdevant had not been referred
and told Tinsley they both were definitely interested in being recalled
Tinsley telephoned Nappi after hearing from the Employer on 2 Febru-
ary It is not clear whether Sturdevant and Nappi were present at the
hall on 6 February when they were referred
' The eighth employee referred out on 16 January was not physically
present in the hall, but happened-to telephone at the time Tinsley was
making the referrals
e The General Counsel stipulated that there is no animus involved
275 NLRB No. 159
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory manner . See Operating Engineers Local
406 (Ford, Bacon & Davis Construction), 262 NLRB
50(1982). .
As stated earlier , the Respondent asserts that the
posted rules apply only to initial referrals of em-
ployees to employers and do not apply to callback
referrals . However , the posted rules state - that
"Employers 'will hire workers by calling the
Union" and provide general procedures for the`re-
ferral of,-"applicants for employment." The Re=
spondent in its , attempt to explain its departure
from the posted rules is unable to cite any provi=
Sion limiting the rules' application regarding call-
backs except for a provision specifically permitting
employers to call back two employees within a 6-
month period following a job.9 The Respondent
does not contend that its practice is based on this
two-person callback rule : Because there is nothing
in the language of the - rules which indicates that
they were intended to apply only to ,first time re-
ferrals to particular employers , our reading of the
rules convinces - us-that they govern the order of all
referrals including callbacks. Thus, the-'Respond-
ent's posted rules clearly state that applicants Will
be referred in the ' order of their place on the -refer-
ral list . Since the Respondent - departed from' its
own hiring hall rules by passing over Sturdevant
and Nappi in favor of other applicants on 3 and 16
January 1984,1 0 • we conclude that the Respondent
has violated Section 8 (b)(1)(A) of the Act in these
11 - - -referrals .
'-Furthermore , even assuming ' that the posted
rules did not apply to callback situations , the Re-
spondent has, in any event, violated Section
8(b)(1)(A) because the -Respondent 's reliance on- a
-registrant 's physical- presence in the hiring hall to
justify out-of-sequence referrals is misplaced. It is
well established that the use of this criterion, with-
out more, falls short of the objective , nondiscrim-
inatory standard which the Board has held must be
the basis for hiring hall referrals . 12 Moreover, in
our -view nothing in the record substantiates the
judge's finding that registrants "who were present
in the hall during dispatch hours have an interest at
least somewhat greater in immediate work" -than
those -not present in the hall. As the General Coun=
sel pointed out on brief, the objectivity of presence
as a referral criterion would seriously be brought
into question in the event 'that the number of regis-
9 The rules also allow for the;direct hire of superintendents , general
foremen, and foremen, - an exception not here relevant
to For the purposes of finding a 'violation , it is irrelevant whether
under the posted hiring hall procedures any other applicants would have
had greater priority for referral
"-See Ford, Bacon & Davis Construction, above, Operating Engineers
Local 450 (AGC of Houston), 267 NLRB 775 (1983)
12 See 'Plumbers Local 619 (Bechtel Corp ), 268 NLRB 766 (1984)
trants present exceeded the number of employer re-
quests. For 'this reason, even assuming that the
posted rules did not apply to callback situations
and that presence based referrals were in fact the
governing rule, we would find that referrals so
made are not based on objective criteria and are
therefore unlawful.13
On the basis of all of the •foregoingi we -find ,that
the Respondent violated Section 8(b)(1)(A) of the
Act. -
CONCLUSIONS OF LAW ;
1. The Union is a labor organization within the
meaning of Section 2(6) and (7) of the Act.
2. Snelson-Anvil, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
3. By deviating from its posted referral rules and
making recall referrals on the basis of registrants'
physical presence in the hall, the Union has violat-
ed Section 8(b)(1)(A)-of the Act. -
4. The above unfair -labor practices affect com-
merce within the meaning of Section 2(6) of the
Act. -
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices in violation of the
Act, we shall order that, it cease and desist there-
from and.that it take certain affirmative action de-
signed to effectuate the policies • of the Act. To
remedy the Respondent's unlawful deviation from
its posted hiring hall rules, we shall require that
Thomas •Sturdevant and.'Amadeo Nappi be made
whole for. any loss of earnings they may have suf-
fered by reason of the Respondent's unlawful con-
duct. Backpay shall be .computed in the manner set
forth in F. W._ Woolworth Co.,-90 NLRB 289 (1950),
with interest, thereon as prescribed in Florida Steel
Corp., 231 NLRB 651 _ (1977).14
ORDER
The National Labor Relations -Board orders that
the Respondent, Ironworkers Local Union No.
505, affiliated with International Association of
Bridge, Structural, Ornamental Reinforced Iron-
workers, AFL-CIO, Bellingham , Washington, its
officers , agents , and representatives, shall
1. Cease and desist from -
(a) Operating its hiring hall by making referrals
in a manner that deviates from its posted -rules and
making referrals on the basis of -registrants" physi-
13 See Polis Wallcovering Co, 262 NLRB 1336 (1982) • '
14 See generally Isis Plumbing Co , 138 NLRB 716'(1962)
IRON WORKERS LOCAL 505 (SNELSON -ANVIL)
cal presence in the, hiring hall or other unobjective
criteria. -
(b) Failing and refusing to refer Thomas Sturde-
vant and Amadeo Nappi to 'callback work as em-
ployees of Snelson-Anvil', Inc., or of any other em-
ployer, pursuant to the operation' of an exclusive
hiring hall and referral system in a manner that de-
viates,,from its; posted rules or on the basis of their
physical presence in the hiring hall or any other
unobjective criteria.
(c) In any like or related manner restraining or
coercing registrants for referral in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Operate its hiring hall by in the manner de-
scribed in the posted rules and. in accordance with
objective criteria.
(b) Make Thomas Sturdevant and, Aniadeo
Nappi whole in the manner set forth in the section'
of this Decision and Order entitled "Remedy."
(c) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all hiring records, -registration and re-registra-
tion lists, referral: slips,,and other documents neces-
sary to analyze and compute the amounts of back-
pay due Sturdevant and Nappi under the terms of
the Order.
(d) Post at its hiring hall in Bellingham, Wash-
ington, copies of the attached,. notice marked "Ap-
pendix."15 Copies of the notice, on forms provided
by the Regional Director for Region 19, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in ' conspicuous places including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material..,
(e) Notify the Regional Director in -writing
within 20 days -from the date of this Order what
steps the Respondent has taken to comply.
'5 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 Na-
tional Labor Relations Board" shall read `Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT operate our exclusive hiring hall
in a manner that deviates from the posted rules or
make callback referrals on the basis of registrants'
presence in the hiring hall or any-other unobjective
criteria. -
WE WILL NOT in any like or related manner re-
strain or coerce registrants for referral or callbacks
in the exercise of the rights guaranteed them by
Section 7 of the Act. .
WE WILL operate our hiring hall by making re-
ferrals and callbacks in the manner described in the
posted rules and in accordance with objective cri-
teria.
WE WILL make -whole Thomas Sturdevant and
Amadeo Nappi for any loss of earnings suffered by
them as a result of our failure to refer them for
recall in the manner described in the posted hiring
hall rules... • -
• IRONWORKERS LOCAL UNION No.
505, AFFILIATED WITH INTERNATION-
AL ASSOCIATION OF BRIDGE , STRUC-
TURAL, ORNAMENTAL REINFORCED
IRONWORKERS , AFL-CIO
DECISION -
JAMES M KENNEDY, Administrative Law Judge. This
case' was tried before me in Seattle, Washington, on
August 30, 1984,1 pursuant to a complaint issued by the
Regional Director for Region 19 on March 30. It is
based upon a charge filed on February 1 by Thomas
Sturdevant, an individual (Sturdevant) and alleges - that
Ironworkers Local Union No 505, affiliated with Inter-
national Association -of Bridge, Structural, Ornamental
Reinforced Ironworkers, AFL-CIO (Respondent) has
engaged in a violation of Section 8(b)(l)(A) of the Na-
tional Labor Relations Act -(the Act). - •
Issue
The principal issue is whether or not Respondent
breached its duty to fairly represent two employees,
Sturdevant and Amadeo Nappi, by failing to refer them
for reemployment with Snelson-Anvil, Inc. at its facility
in Anacortes, Washington, on January 3 and 16
' Unless otherwise indicated all dates herein are 1984
1116 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
All parties were given full opportunity to participate
and to introduce relevant evidence. After the commence-
ment of the hearing, the General Counsel and'Respond-
ent entered into a stipulation of facts. No testimony was
taken and there is no factual dispute requiring resolution;
neither have I been barred from interpreting the stipula-
tion in light of either logic or experience.
Based on the entire record, including the pleadings
and the stipulation, I make the following
FINDINGS OF FACT
1. THE EMPLOYER' S BUSINESS
Snelson-Anvil, Inc is a Delaware corporation with an
office and place of business in Anacoftes, Washington,
where it is engaged in the business' of modular fabrica-
tion and construction for the petrochemical industry.
During, the past 12 months Snelson-Anvil's combined
direct-and indirect outflow of goods and services exceed-
ed $50,000 I find, therefore, that Snelson-Anvil has been
at all material times an employer engaged in commerce
within - the meaning of Section 2(2), (6), and (7) of the
Act -
II THE LABOR ORGANIZATION INVOLVED -
Respondent admits that it is, and has been at all times
material, a labor organization within the meaning of Sec-
tion 2(5) of the Act
III..THE ALLEGED UNFAIR LABOR PRACTICES
As noted above the record consists principally of a
stipulation. It incorporates the affidavit of Union Busi-
ness Manager Calvin L. Tinsley,. the hiring hall rules
posted in the Union's dispatch office, the "boomer"
(traveler) out-of-work list, some monthly report-in signa-
tures by which employees demonstrate their continuing
interest in keeping their out-of-work signatures active,
several referral slips, and the collective-bargaining con-
tract In addition, the parties have orally supplemented
Tinsley's affidavit Finally, the parties have stipulated
that the General Counsel has no evidence to support an
allegation of animus of any sort against •Sturdevant 'or
Nappi
The Facts
According to the stipulation, the Employer, Snelson-
Anvil, was a party to the collective-bargaining agree-
ment in evidence That contract is between two chapters
of the Associated' General Contractors of America and
three Ironworker Locals, including Respondent. Accord-
Ing to schedule,B.5 of the contract, the covered einploy-
ers have recognized that "the Union affords the first
source of qualified ironworkers in the classifications cov-
ered" by the agreement. Aside from the requirement that
an employer first seek employees-through': the Union, the,
contract, itself contains no rules about how Respondent is
to select employees for referral.
The referral rules themselves are posted in the hiring
hall On its face that document applies to an initial hiring
by a specific employer It does, however, contain a pro-
vision, section 3 1 dealing with the right of an employer
to "call back" employees. The "call-back" rules are re-
strictive, stating that an employer can only call back
"two men within a six (6) -,month period following 'a
job." Except for a requirement that a callback be con-
firmed in writing, there is no•other reference to callback
situations. The remainder of the rules deal with initial
hiring situations and sets forth three priority lists. Group
A' is to be exhausted before 'referring employees from
group B, and group B is to-be•exhausted before=goirig.toi
group C. There is no allegation that the-groupings them-
selves are unlawful As a matter of practice, the group A
employees are individuals' who have met certain experi-
ence. requirements and who, have lived in the geographi-
cal',lurisdiction of Respondent for 3 years. Group B re-
feii•al applicants are similarly experienced but who have
lived in the geographical area for less than 3 years. The
group C employees are not considered here.
All the employees involved in this case are in group B
On November 4, 1983, 25 group B-employees were laid
off by Snelson-Anvil at its Anacortes facility." Almost im-
mediately thereafter 23 of them signed the group B out-
of-work list. The first two of this group were Charging
Party Sturdevant and his partner Nappi. In December
1983 and January and February 1984, pursuant to the
rules, they re-registered So did most of the other. 23
who had been laid off'by Snelson-Anvil. The reregistra-
tion had the effect of keeping their names active for re-
ferral. Had they not re-registered their names "would
have been stricken for lack of interest.
In January, according to Business Manager Tinsley,
Ted Wald of Snelson-Anvil advised the Union that his
Company was going to recall some welders. Wald asked
Tinsley (after the Union had exhausted all the A' list
welders) to send the same travelers who had previously
worked for Snelson-Anvil as they had been "certified"
(as competent) by that company. Tinsley agreed.
Although Tinsley's affidavit does not reflect it, Snel-
son-Anvil must have actually made the request for weld-
ers sometime in early January, for one,of the B list call-
backs, Bill Moody, was issued a referral slip to Snelson-
Anvil on January 3. Tinsley explained that Moody was
in the hall at the time the call came in-and that was, the
reason he was referred.
- An additional call came on January 16. At that time
Tinsley issued referral slips to seven of the B list welders
in the category requested by ' Snelson-Anvil. Like
Moody, each: of these individuals was also present in the
hall. An eighth, individual, who also qualified for recall,
telephoned during the dispatch hours that day inquiring
about work.- Tinsley issued him a referral slip to Snelson-
Anvil, too. All nine of these. individuals . were below
Sturdevant and Nappi on the out-of-work- list. ., ,
. The stipulation, incorporating Tinsley's -affidavit as
supplemented, explains: "Although the [posted] rules do
not specify that a person receives priority for referral if
they are in the hall, that is the way the hall operates in a
`call back' situation . . .,and that this is the way, it has
been since I have-been business manager and dispatcher,
a period of 3 years." Sometime during the next 2 weeks
Nappi telephoned Tinsley at a time -when Tinsley- was
absent. Tinsley attempted to return the call on three oc-
IRON WORKERS LOCAL 505 (SNELSON-ANVIL) 1117
casions but had some difficulty. Finally he reached
Nappi,.who said that he was having telephone problems.
Tinsley. explained to Nappi why the other nine-had been
re-referred to Snelson-Anvil. He did not talk to Sturde-
vant during this time, but accepted Nappi's assertion that
both he and Sturdevant wanted to go back- to Snelson-
Anvil.
About. February 2,' Snelson-Anvil called for 13 more
people.; Tinsleyl telephoned -Nappi who said he would
advise Sturdevant. They were both referred to Snelson-
Anvil on February 6. Tinsley says he was then able to
refer all of the remaining people who had been laid off
by Snelson-Anvil in November.
The parties have stipulated that the General Counsel
has no evidence to support an' allegation of animus of
any sort by the Union against either Sturdevant or
Nappi. Thus, there are no facts to support a claim that
Respondent's failure to refer those two during January
was because of any Section 7 activity or because Tinsley
or some other union official held a grudge against either
of them. '
However, Tinsley agrees he "had not told the people
who were laid off and on the out-of-work list that they
would get priority referral if they were [present] in the
hall when the [call-back] came in." On the other hand, it
does not appear that the practice was kept secret either,;
having been in effect for 3 years. One may presume that
the nine who were in the hall on January' 3 and 16 were
aware of it. Why else would they be present?
IV. ANALYSIS
A Preliminary Observations
With respect to the factual explication recited above, it
is well to note that the individuals involved here are all
group B referral registrants. Respondent, as is common
in the construction industry, refers to these individuals as
"boomers," ' meaning they are most likely to be tempo-
rary residents of the area, in pursuit of "boom" construc-
tionsituations. Thus, they are far more transient than the=
group A registrants who have resided in the geographi-'
cal area •for a longer period and who are considered per-
manent residents . It appears self-evident that Tinsley was
aware of this and could reasonably conclude that
boomers who are present in the hall during dispatch
hours have an interest at -least somewhat greater in im-
mediate work than 'a boomer-who is not in the hall.
There is-also the probability' that a "boomer" not in-the
hall -may have traveled; elsewhere to seek work. Thus, it
would -not be unreasonable bf Tinsley to conclude that"
the individuals who were present in the' hall wanted to.
work 'most. 'And, although' it -cannot be -presumed that
boomers not present in the hall did not want' to work,
Tinsley's 'assumption, that those' present. had a higher
degree of interest in' working at that; moment than .those
who were not is perfectly , rational • . : -
Second, it appears clear that the posted hiring hall
rules' are an , extracontractual document. Thus, if those
rules are breached, any cause of action a grievant might
have would- not be grounded in the collective-bargaining
contract but on: some other theory.- These might run, the
gamut ' of various laws -against discrimination (including
the Act), laws regulating employment agencies, internal
union -procedures, etc 2 -
Third, I note that Tinsley had no difficulty in ignoring
the callback restriction, i e, two to an employer with a
written confirmation, where it was to the benefit of all
The agreement Tinsley made with Snelson-Anvil to
permit it to recall previously employed individuals is per-
fectly rational and makes good sense for it was no doubt
necessary to the effective performance of the Union's
function of representing its constituency.3 -
Finally, since the posted hiring hall rules clearly deal
with initial employment. situations , rather than -recalls,_
they do not literally need to be followed in recall situa-
tions. It may be that following the dispatch order set
forth in rules during callback situations might have
avoided the problems which have occurred here, but the
written rules do not cover a situation such -as this. In
fact, however, Respondent has a long-established prac-
tice which does.
B. The Applicable Law
It should be observed at the outset that the complaint
alleges Respondent violated Section 8(b)(1)(A) only, not
Section 8(b)(2).4 Moreover, the complaint is clearly
couched in terms alleging that Respondent breached the
duty of fair representation and the discrimination
"prong" of Section 8(b)(1)(A) has not been invoked..
Paragraph 8 of the complaint asserts only that Respond-
ent "has failed to fairly represent' Thomas Sturdevant
and 'Amadeo Nappi for reasons which are unfair, arbi-
trary, invidious and - a • breach of the fiduciary duty" al=
legedly owed to the employees 5 Without 'belaboring the
z'I observe that there is language in the document appearing to suggest
that there has been an agreement between an employer and the Union to
require the Union to conform-to the-rules, but the collective-bargaining
contract does not incorporate the rules nor is there any separate signature
line demonstrating their acceptance, by the Associated General Contrac-
tors or any specific employer I speculate that the language may have ap-
peared in some prior 'collective-bargaining agreement and 'although no
longer contractual is nonetheless convenient to post since it reflects, for
the most part, the actual practice -
3 Operating Engineers Local 18 (William F Murphy), 204 NLRB 681
(1973), remanded 496 F 2d 1308 (6th Cir 1974), reaffirmed 220 NLRB
147 (1975). Ironworkers Local 433 (AGC of California). 228 NLRB 1420,
1438 (1977), enfd, 600 F 2d 770 (9th Cir 1979) Cf Painters Local' 1555
(Stephen Strickland), 241 NLRB 741. 74.2 (1979)
4-Sec 8 (b) states -
It-shall be an unfair labor practice for a labor organization or its
agents-. •
(1) to restrain or coerce (A) employees in the exercise of the rightsy
guaranteed in section 7 "- (2) to cause or attempt to cause an em-
ployer to discriminate against an 'employee in violation' of subsection
(a)(3) or to discriminate against an employee with respect to whom
membership in such organization has been denied. or terminated on
some-ground other than his failure to tender the periodic dues and.
the initiation fees uniformly required as a condition of acquiring or
retaining membership ' -
5 The Board has held that a union does not stand in a' fiduciary rela-
tionship to the employees it represents Rather , it has said , the relation-
ship is analogous to that between legislator and constitutent Service Em-
ployees Local 579 (Beverly Manor Convalescent Center), 229 NLRB 692 In
2 (1977) Accordingly, the complaint in this respect is deficient as a
matter of law The fiduciary capacity theory will not be further-pursued
here , . -
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
history of the doctrine of the duty of fair representation;
suffice it to say that it is a judicial creation, first getting
Supreme Court recognition in Steele v. Louisville & Nash-
ville R. Co., 323 U.S. 192 (1944). In 1962 the Board in
Miranda Fuel Co., 140 NLRB 181 (1963), enf denied 326
F.2d 172 (2d Cir. 1963), incorporated' the doctrine into
the Act. The Board's acceptance of the doctrine was rec-
ognized by the Court in Vaca v. Sipes, 386- U.S. 17.1
(1967)
Indeed it is the Yaca case which sets forth the current
standards by which a union's conduct is to .be measured
in determining whether it breaches the duty. The Court,
there stated: "A breach of the statutory duty-of fair rep-
resentation occurs only- when a union's conduct towards
a member of the collective-bargaining unit is arbitrary,,
discriminatory, or in bad faith. See Humphrey v. Moore,
[375 U.S. 335 (1964)1; Ford Motor Co. v. Huffman [345
U.S. 330 (1953)1." Yaca v. Sipes, supra at 190. "
Concededly, neither Vaca nor any of the other fair'
representation cases decided by the Supreme Court are
hiring hall cases. Vaca itself involved a union's refusal to
process a grievance to arbitration Nonetheless, the
Court stated in Vaca that the plaintiff has the duty of
proving arbitrary or bad-faith conduct on the part of the
union in-processing his grievance. Id. at 193. Further-
more, the Court- observed in the case that "there was no
evidence that.any union officer was personally hostile to
[the plaintiff] or that the union acted at any- time other
than in -good faith." Id. at 194 Therefore, the Court re-
versed the jury verdict in favor of the plaintiff, finding
that the state court had not applied the proper Federal
standards to the case, i.e., had not applied the "arbitrary,
discriminatory, or . . . bad faith" test.
The Court has used even stronger language to describe
the test. In Motor Coach Employees v. Lockridge, 403 U.S.
274, 301 (1971), the Court said: "The duty of fair repre-
sentation was judicially evolved . to enforce fully the
principle that no individual union member may suffer, in-
vidious, hostile treatment [by the Union] . . and carries
with it the need [of the plaintiff] to adduce substantial
evidence of discrimination that is intentional, severe, and"
unrelated to, legitimate union objectives." The quoted
language, as can be seen, discusses both the test and the
burden of proof required. The question of proof must be
"substantial" because of the discretion available to the
union regarding the manner in which it represents em-
ployees. As the Court has said: "A wide range of reason-
ableness must be allowed a statutory bargaining repre-
sentative in serving the unit it represents, subject always
to complete good faith and honesty of purpose-in the ex-
ercise of its discretion Ford Motor Co. v. Huffman, 345
U.S. 330 (1953); Humphrey Y. Moore, 375 U.S. 335, 349
(1964). The rule of reasonableness and good faith has
been applied by the Board to hiring hall contexts: New
York Lithographers No. 1-P (Publishers Assn. of New
York), 258 NLRB 1043 (1981); Plumbers Local 40 `(Me-
chanical Contractors Assn. of Washington), 242 NLRB
1157, 1163 (1979)
The Board's test for the breach of the duty is similar,
but the words are slightly different In Miranda Fuel,'
supra, the Board said it would find a breach when the
conduct was "unfair, irrelevant or invidious.' Another
word commonly seen in the cases is "capricious."
It should also be observed that-the Board, in applying
the doctrine of fair representation to hiring hall situa-
tions, has generally interwined it with a "discrimination
theory, usually Section 8(b)(2), but sometimes the dis-
crimination prong of Section 8(b)(1)(A). One of the early
examples of such a combination of theories is Boilermak-
ers Local 169 (Riley Stoker Corp.), 209 NLRB 140 at 150
(1974): More recent is a case cited by the General Coun-
sel, Operating Engineers Local 406 (Ford, Bacon & Davis
Construction), 262 NLRB 50 (1982), enfd. 701 F.2d 504
(5th Cir. 1983). Both cases can be characterized as easily
proving discrimination against the charging party be-
cause of their union membership, clearly barred by Sec-
tion 8(b)(2). In addition , there are cases , involving both
Section 8 (b)(1)(A) and which assert that a union 's failure
to dispatch "inherently encourages union membership
and therefore violates Section 8(b)(1)(A) and (2) without
regard to the presence of uhlawful motivation." Operat-
ing Engineers Local 18 (William_F. Murphy), supra; La-
borers Local 135 (Bechtel Power Corp.), 271 NLRB 777,
781 (1984). Sometimes, therefore, the Board will imply a
discriminatory motive where nothing else is' apparent.
See Electrical Workers IBEW Local 592 (United Engineers
& Construction Co.), 223 NLRB 899, 901 (1976); Asbestos
Workers Local 22 (Rosendahl, Inc.), 212 NLRB 913
(1974). .
Although the facts tend to vary in these cases, a
common thread throughout all of them is that where
there is a discriminatory or vindictive motive, proven or
implied, the Board will also find a breach of the duty of
.fair representation .. Such findings seem both elementary
and self-evident. Obviously if a labor union violates a
law or acts vindictively toward an individual, it has not
treated him fairly and it literally meets the standards set
forth in Vaca and Miranda Fuel, i.e., the union 's conduct
in violating a law or abusing an individual must necessar-
ily be either arbitrary, discriminatory, unfair, invidious,
in bad faith, or some combination of these.
Yet it is well to keep in mind that the two-theories are
.separate and distinct . Indeed , the Board has adopted this
administrative law judge's language specifying the differ-
ences. Dalziel Supply. Co., 235 NLRB 56, 62-63 (1978).
There it was said. "[T]he elements of the violation are
entirely different. A discrimination case requires proof of
intent to penalize an individual for engaging in a protect-
ed right. . . . However, fair representation cases are
proven not by the [Union's] motive, but by whether it
met a duty of fair play as imposed upon it by law." Fur-
thermore, it is clear that the duty is not breached where
the union is forgetful, commits an inadvertent error, or is
negligent . Operating Engineers Local 18 (Ohio Pipeline
Construction Co.), 144 NLRB 1365 (1963); General Truck-
drivers Local 692 (Great Western : Unifreight System), 209
NLRB 446 (1974). Cf. New York Lithographers No. 1-P,
supra at 1048. Thus, it is not necessarily a-breach of the
duty of fair representation for a union to act to the detri-
ment of an individual whom it represents . The_ Board has
held: "[I]t is not every act of disparate treatment or neg-
ligent conduct which is proscribed by Section 8(b)(1)(A),
I
IRON WORKERS LOCAL 505 (SNELSON -ANVIL)
but only those which have been motivated by hostile, in-
vidious, irrelevant, or unfair considerations." Steelworkers
Local 2869 (Kaiser Steel Corp.), 239 NLRB 982 (1978).
Indeed, these decisions are clearly consistent with Vaca.
Forgetfulness, error, and negligence cannot be classified
as arbitrary, discriminatory, or in bad faith
The question which must be answered is whether or
not in a hiring hall context the duty of fair representation
test is any different than it would be in other contexts. I
think' ii 'is -fair to say that in recent years the Board has,
in the Section 8(b)(2) and the (1)(A) discrimination cases,
modified the mode of proof. The Board has resorted to a
presumption to assist it in deciding hiring hall cases. It
now presumes that whenever a union operating an exclu-
sive hiring hall fails to refer a properly registered indi-
vidual a prima facie case has been established under Sec-
tion 8(b)(1)(A) and/or (2). Under this procedure the
Board presumes • that the denial of- a job opportunity in-
herently encourages union membership. Operating Engi-
neers Local 18 (William F. Murphy), supra; Asbestos
Workers Local 22 (Rosendahl, Inc.), supra; Operating En-
gineers Local 406 (Ford, Bacon & Davis Construction
Corp.), supra, Operating Engineers Local 450 (Houston
Chapter AGC), 267 NLRB 775, 810 (1984). The presump-
tion is not a strong' one but does shift the burden of
proof, requiring the Union to explain its conduct. Sheet
Metal Workers Local 20 (Robert Rainey Jr.), 253 NLRB
166, 169 (1980). That analysis is well suited to a discrimi-
nationcase where motive or its substitute, the foreseea-
ble or natural consequence, is an element of the viola-
tion. Radio Officers Union v. NLRB, 347 U.S. 17 (1954);
NLRB v. 'Transportation Management Corp.; 462 U.S. 393
(1983). Cf. NLRB Y. Schroeder, 726 F.2d 967, 971 (3d
Cir. 1984). Yet, motive analysis and the presumptions
available to ^ assist a factfinder in determining motive are
not properly a part of the fair representation doctrine. As
noted previously in Dalziel, supra, the doctrine consists
of an affirmative duty of fair play imposed upon the
union by law. Moreover, the Supreme Court in Vaca and
the Board in Miranda Fuel clearly set forth the means of
determining the nature of that duty: union conduct
which is arbitrary, unfair, invidious, or in bad faith.
To my knowledge, there has never been a case before
the Board which has presented the duty of fair represen-
tation in a hiring hall context completely free of discrimi-
natory motive or'some sort of knowledge regarding the
actual impact-scienter, if you will. In this case the
pleadings are narrowly drawn, -specifically omitting the
expected 8(b)(2) allegation or any claim that the Union
engaged in deliberate conduct. specifically aimed at the
two'discriminatees cognizable under Section 8(b)(1)(A).
Moreover, the parties have stipulated that there is no
evidence to.'support such a contention. Consequently, I
am not at liberty to apply discrimination (intent) logic in
resolving the issues presented here. First, the pleadings
specifically 'decline to make that allegation and, second,
it is an inappropriate analysis under the fair representa-
tion, doctrine. Therefore,. -I do not believe myself to be
bound by any hiring hall case in which there appears an
element of scienter. Such analysis has been determined
here, both.by the parties and by the applicable law, to be
inappropriate. Furthermore, regarding those cases which
1119
contain findings involving both discrimination and the
duty of fair representation, as it may be inferred that the
duty of fair representation is encompassed under, the
aegis of discrimination analysis, the fair representation
language found therein (e g, Ford, Davis & Bacon, supra)
does not control this case. Accordingly, I find that the
appropriate rule of law in measuring whether or not Re-
spondent here breached the duty of fair representation in
failing to refer for re-employment Sturdevant and Nappi
to Snelson-Anvil is the test of Vaca v. Sipes, supra,
and/or Miranda Fuel, supra. Thus I must ask whether
Respondent has engaged in conduct which was arbitrary,
capricious, or in bad faith. I conclude that it has not.
This was a callback situation ; therefore, the posted
hiring hall rules did not specifically apply. Had they
been, neither Sturdevant nor Nappi would have been eli-
gible for referral, as.only two group A employees would
have qualified. Second, the Union did not breach any
collective-bargaining contract, for . the rules are not a
part of the applicable agreement . Thus those cases find-
ing a breach of the duty because of a clear contract vio-
lation do not apply. See, for example, Pipe Fitters Local
392 (Kaiser Engineers), 252 NLRB, 417, 422 (1980), in
turn citing Miranda Fuel, supra; also, Plumbers Local 619
(Bechtel Power Corp.), 268 NLRB 766 at 769 (1984).
Third, although Union Business Manager Tinsley con-
cedes that he did not specifically tell Sturdevant and
Nappi of their need to be present in the hall to be eligi-
ble for callbacks, the practice is no secret. Many group B
applicants were aware of the practice. Thus it appears
that at some point the Union had informed group B reg-
istrants of the,practice, even though the stipulation says
that it had not done so for this particular job. Although
Sturdevant and Nappi were not told of it, neither is there
evidence that they were denied the information In view
of the stipulation that Respondent has no animus toward
them, it seems likely that their ignorance of the practice
was due either to Tinsley's forgetfulness or negligence.
Yet, that is not condemnable under the fair representa-
tion doctrine Ohio Pipeline Construction Co. and Great
Western Unifreight Systems, both supra.
In fact, travelers such as Sturdevant and Nappi, unfa-
miliar with the operations of a host hiring hall, are prob-
ably under some obligation to act reasonably themselves.
An administrative law judge, with Board approval, has
said- "Some caution must be exercised to assure that
Board remedies are not invoked so as to disturb, through
application of mechanistic principles, the relative rights
of working men to a job where such rights are estab-
lished by nondiscriminatory, uniformly applicable stand-
ards, which though unpublished, are known, or at least
should have been known to the individual who invokes
Board processes to perfect a claim of preference against
others competing for work." Electrical Workers IBEW
Local 592 (United Engineers), 223 NLRB 899, 901, 902
(1976). There is nothing in the record demonstrating
whether they took any, steps to inform themselves of
either the posted ruless or the callback practices. Could
6 Nappi did not ask for a copy of the posted rules until his conversa-
tion with Tinsley in late January
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they have avoided the problem by ordinary prudence on
their part9 It would seem so.
In addition, the Board has held that a union must uti-
lize objective criteria in operating its hiring hall. Team-
sters Local 174 (Totem Beverages), 226 NLRB 690, 699-
700 (1976). It seems to me that Tinsley did so here. It
was not unreasonable of Tinsley to look to those group
B individuals present in the hall for callback referrals.
Their mere presence must have been sufficient to signal
him that they were the most interested in seeking imme-
diate work. Knowing that the group B individuals were
travelers and more mobile than anyone else, it was logi-
cal for him to assume that those group B persons not
present in the hall were not as interested as those who
were. In fact the entire practice is based on that knowl-
edge. Given that, its implementation, at least 3 years ear-
lier, appears to be well within the area of good-faith dis-
cretion enjoyed by union officials as recognized in Ford
Motor Co. v. Huffman, supra; New York Lithographers,
supra. When one individual showed interest in work by
telephoning Tinsley, he was instantly dispatched. When
Nappi telephoned he, too, was quickly dispatched, as
was his friend Sturdevant and that based only upon
Nappi's word. I cannot conclude here that Tinsley was
acting arbitrarily or capriciously. Certainly he was not
acting in bad faith.7
As held by the. Supreme Court in Vaca and Motor
Coach Employees, both supra, the burden is on the Gen-
7 Upon these findings , even if one were to apply discrimination analy-
sis, and require Respondent to rebut the presumption of a puma facie
case, these facts would sufficiently rebut it Moreover, it would be most
difficult to say that Tinsley's conduct inherently encouraged union mem-
bership because there were no membership considerations involved, all
were group B travelers
eral Counsel to demonstrate by substantial evidence that
Respondent acted in a manner inconsistent with its duty
to represent all unit members fairly. The stipulation, as
reasonably interpreted,- does not do so. In fact, the con-
trary can be discerned. Respondent applied its longstand-
ing, reasonably well-published practice, to the two com-
plainants . It did so in an evenhanded manner and did not
single them out in any way..Thus there is no suggestion
that Respondent had any ' specific knowledge that its
practice would deprive Sturdevant, Nappi, or any group
B employee of a recall to Snelson-Anvil. From Respond-
ent's perspective its practice simply permitted those trav-
elers who had demonstrated by their presence that they
wanted the work most to have the work. As in Vaca
there is no hostility to these two unit members, nor is
there any bad faith. Moreover, as iri Huffman, its pur-
pose was certainly honest. Accordingly, I shall recom-
mend dismissal of the complaint. Cf. New York Lithogra-
phers No. 1-P, supra at 1046-49.
CONCLUSIONS OF LAW
1. Snelson-Anvil, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6)1__ and (7) of
the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent, during January 1984, did not breach its
duty to fairly represent bargaining unit employees
Thomas Sturdevant and Amadeo Nappi when it did not
refer them for reemployment by Snelson-Anvil because
they were not physically present in the hiring hall.
[Recommended Order for dismissal omitted from pub-
lication.] ..