Journeymen Pipe Fitters Local No. 392

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 417 (N.L.R.B. 1980)

JOURNEYMEN PIPE FITTERS LOCAL NO. 392
Journeymen Pipe Fitters Local No. 392, affiliated
with the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of U.S. and Canada, AFL-CIO (Kaiser
Engineers, Inc.) and Gary McKibben. Case 9-
CB-3880
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 6, 1979, Administrative Law
Judge Robert E. Mullin issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, l findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Journeymen
Pipe Fitters Local No. 392, affiliated with the
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of U.S.
and Canada, AFL-CIO, Cincinnati, Ohio, its offi-
cers, agents and representatives, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.2
I Respondent has excepted, inter alia, to the Administrative Law
Judge's refusal to allow Respondent to present testimony regarding the
Charging Party's failure to exhaust internal remedies by initiating the
complaint procedures set forth in the posted hiring hall provisions of Re-
spondent's collective-bargaining agreement with the Mechanical Contrac-
tors Association of Cincinnati We find no merit to this exception Al-
though Respondent contends that the Board should defer consideration
of the alleged violation of the Act under the rationale of Collyer Insulated
Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), we have
previously held that deferral to arbitration is not appropriate in cases
where the interests of the aggrieved employee are in apparent conflict
with the interests of the parties to the contract. Local Union 675., Interna-
tional Brotherhood of Electrical Workers. AFL-CIO (S & M Electric Co.),
223 NLRB 1499 (1976), and cases cited therein. We find that principle
apposite here. Member Jenkins would not in any event defer to the con-
tractual grievance procedure for the reasons set forth in his dissenting
opinion in Collyer., supra, and subsequent cases.
2 The Administrative Law Judge inadvertently failed to conform the
notice to the recommended Order, we have corrected the notice accord-
ingly.
252 NLRB No. 44
CHAIRMAN FANNING, concurring:
While I agree with my colleagues that Respond-
ent, by failing to follow the contractual terms gov-
erning the operation of its exclusive hiring hall and
by failing to inform applicants for referral that the
posted referral procedure was not the system actu-
ally being followed in referring job applicants, vio-
lated Section 8(b)(1)(A) and (2) of the Act, 3 I
cannot agree with their affirmance of the Adminis-
trative Law Judge's finding that Respondent like-
wise breached its duty of fair representation to the
job applicants involved. A union's duty to fairly
represent employees is, in my view, breached only
when it deals in bad faith, and not when it is
merely negligent or nonresponsive.4 I would not
find the evidence herein to establish that Respond-
ent acted in bad faith in any regard, and therefore
would not find it to have violated the Act through
a failure to fairly represent applicants for jobs as
would my colleagues on the majority. The relevant
facts, more fully set forth in the Administrative
Law Judge's Decision, are, briefly, as follows:
Respondent at all material times has been party
to a collective-bargaining agreement with the Me-
chanical Contractors Association of Cincinnati
(herein called MCA), pursuant to which Respond-
ent operates an exclusive hiring hall. The hiring
hall provisions of the contract are posted in the
union hall and require, inter alia, that ". . . Quali-
fied applicants shall be registered on the appropri-
ate craft out-of-work list in the order of time and
date of registration," and that Respondent maintain
and utilize the craft out-of-work list on a first in,
first out basis.
On March 13, 1978, Charging Party McKibben,
a pipefitter and member of a sister local of the
same International as Respondent, filled out an
"application for registration" at the hiring hall. Re-
spondent had just received a work request from
Kaiser Engineers, Inc. (herein called Kaiser), for
welders at a site where it was constructing a nucle-
ar power plant,5 and Respondent's business man-
ager, Robert C. Sullivan, offered to refer McKib-
ben to the job. McKibben declined the referral on
grounds that he did not have a welding certificate.
I also agree that the matter should not be deferred to the parties'
contractual grievance procedure. See my dissenting opinion in Collyer In-
sulated Wire A Gulf and Western Systems Co., 192 NLRB 837 (197l).
4 See my dissenting opinion in Local No. 324. International Union of
Operating Engineers. AFL-CIO (Michigan Chapter. Associated General
Contractors of America. Inc.), 226 NLRB 587 (1976). Bad faith may, of
course, encompass "arbitrary conduct" of a nature which restrains or co-
erces employees This Respondent has not, in my view, demonstrated
conduct of such an arbitrary nature as to constitute bad faith.
5 By virtue of a collective-bargaining agreement between Local 392
and the National Contractors Association, of which Kaiser is a member,
Kaiser is bound by the referral procedures set forth in the agreement
which Local 392 has with MCA
417
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Respondent did not subsequently refer McKibben
to any other job, although the hiring hall received
numerous requests for nonwelder pipefitters. 6
Sullivan, who was the sole witness at the hear-
ing, testified that from August 1977 to January
1979 there was no lack of work for Respondent's
membership and, consequently, he did not maintain
a summary list of all out-of-work hiring hall regis-
trants as required by the collective-bargaining
agreement. During this time he filled job requests
with men present in the hiring hall the day the re-
quest was received, called other local unions of the
International, contacted men he knew were soon to
be laid off, or utilized members of other locals of
the International who happened to be in the hall
seeking referrals. According to Sullivan, once a re-
ferral was offered, if a registrant either accepted or
declined it, the registration form was filed alpha-
betically in a file cabinet in the office. 7 Inasmuch
as no summary out-of-work list existed when
McKibben registered on March 13, Sullivan filed
McKibben's application for registration form in a
file cabinet after McKibben declined to take the
welder's job at Kaiser. It is however, that,
had the posted contractual provision requiring
maintenance of the craft out-of-work list been fol-
lowed, McKibben should have been referred to the
next available pipefitting job.
It is well established that a wide range of reason-
ableness must be allowed a statutory bargaining
representative in serving the unit it represents, sub-
ject always to complete good faith and honesty of
purpose in the exercise of its discretion. Ford Motor
I Sullivan distinguished between pipefitters and welders, as is evi-
denced by his testimony as follows:
Q. There was some testimony when Mr. Keenan [counsel for the
General Counsel] was asking you questions about your method of
placing calls to other locals to see if you could obtain men. Did you
call other locals only when you had exhausted your supply of appli-
cations for employment at the hiring hall that were turned in there?
A. I would say normally that's the procedure. The only time I de-
viate from it is if, you know, if there were six people there that were
pipefitters and I needed welders, I may have called local unions and
asked them to supply me welders because the people that were on
registration at that time could not fill the qualifications I'm not
saying that it happened at this particular time but that has happened
in the past.
The Administrative Law Judge found that it appeared that applica-
lions for registration filled out by jobseekers who came into Respondent's
hiring hall were good only for the day the registration was completed,
and were then filed away in a filing cabinet and not again used for job-
referral purposes. I note, however, that Sullivan testified, without contra-
diction, that he held such applications until such time as the applicant
was either referred to a job or refused work before placing the applica-
tion in the filing cabinet. I further note that Charging Party McKibben
had indicated no special skills on his pipefitting registration application,
and refused only a job as a welder at a nuclear power plant construction
site, which required welding skills for which McKibben did not regard
himself and had not indicated himself qualified. In these circumstances, I
find Respondent's fairlure thereafter to refer McKibben to a pipefitting
job for which he did qualify to be unlawful irrespective of whether the
applications were permanently filed away the day they were submitted or
only after the applicant had been offered referral to a job.
Co. v. Huffman, et al., 345 U.S. 330, 337 (1953).
However, where referral under an exclusive hiring
hall agreement is conditioned upon clear and unam-
biguous standards set forth in that agreement, the
refusal to refer an employee who qualifies for re-
ferral under such standards, without more, suffices
to establish, prima facie, a violation of Section
8(b)(l)(A) and (2) of the Act. Thus, under an ex-
clusive hiring hall arrangement a labor organization
is under a duty to conform with and apply lawful
contractual standards in administering registry,
preference, and referrals, and any departure there-
from resulting in a denial of employment to a
member falls within that class of discrimination
which inherently encourages union membership.
International Brotherhood of Electrical Workers.
Local 592 (United Engineers & Construction Co.),
223 NLRB 899, 901 (1976), and cases cited therein;
Local Union No. 725 of the United Association of
Journeymen and Apprentices of the Plumbing and Pi-
pefitting Industry of the United States and Canada,
AFL-CIO (Powers Regulator Company), 225 NLRB
138 (1976). A union may rebut such a prima facie
case by showing that its interference with employ-
ment was pursuant to a valid union-security clause,
or that the action was necesary to the effective
performance of its function of representing its con-
stituency. See, e.g., International Association of Heat
& Frost Insulators & Asbestos Workers, AFL-CIO,
Local 22 (Rosendahl, Inc.), 212 NLRB 913 (1974),
and International Union of Operating Engineers,
Local 18, AFL-CIO (Ohio Contractors Association),
204 NLRB 681 (1973), remanded to the Board at
496 F.2d 1308 (6th Cir. 1974), with the Board reaf-
firming at 220 NLRB 147 (1957).
Respondent in the instant case has adduced no
evidence that its departure from the posted con-
tractual procedures was essential to its effective
representation of employees. Rather, Respondent
defends its abandonment of maintenance of the
craft out-of-work list only on the basis that, due to
virtually full employment enjoyed by users of its
hiring hall during the applicable time period, refer-
rals were made directly from the registration forms
with the forms themselves serving as a list.8 Yet,
Respondent did not inform all applicants for regis-
tration of the procedure it was using, and the con-
tractual provisions requiring maintenance of a sum-
mary list remained posted in the hiring hall. Thus,
users of Respondent's hiring hall were not notified
' Had McKibben's name been placed on a pipefitters out-of-work list,
his refusal to accept the Kaiser welder's job would not have affected his
position on the pipefitters list, or resulted in the loss of employment op-
portunities when the welder's job was refused, inasmuch as Respondent
distinguished between pipefitters and welders in its job referrals (see fn.
6. rupra)
418
JOURNEYMEN PIPE FITTERS LOCAL NO. 392
of the actual procedures utilized by Respondent
which controled their opportunities for jobs. I
therefore find, in agreement with my colleagues,
that by operating its hiring hall in disregard of the
provisions of its collective-bargaining agreement,
without informing job applicants that the posted
provisions were not being adhered to, Respondent
violated Section 8(b)(1)(A) and (2) of the Act. I
would not, however, as stated, find Respondent's
conduct in this regard to constitute bad faith so as
to also breach its duty of fair representation to the
job applicants concerned. Accordingly, I would
affirm the Administrative Law Judge's finding that
Respondent violated Section 8(b)(1)(A) and (2) of
the Act only on the basis of its failure to conform
with and apply the lawful contractual standards for
referral set forth in its collective-bargaining agree-
ment.
APPENDIX
NOTICE To MEMBERS
POSTED) BY ORDER OF ITHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT operate our exclusive hiring
hall and referral system for referral of employ-
ees to Kaiser Engineers, Inc., or any other em-
ployer, without using an out-of-work list,
without any objective criteria or standards, or
in a discriminatory manner.
WE WILL NOT fail or refuse to refer Gary
McKibben to work as an employee of Kaiser
Engineers, Inc., or any other employer, pursu-
ant to the operation of our exclusive hiring
hall and referral system for the referral of em-
ployees to employers, without using an out-of-
work list, without any objective criteria or
standards, or in discriminatory manner, there-
by causing or attempting to cause Kaiser Engi-
neers, Inc., or any other employer, to deny
McKibben employment.
WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
employment in the exercise of the rights guar-
anteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL pay Gary McKibben the amount
of earnings which he lost because of our fail-
ure to refer him in a nondiscriminatory manner
on and after March 13, 1979, to work as an
employee of Kaiser Engineers, Inc., or of any
other employer, plus interest.
WE WILL operate our exclusive hiring hall
and referral system in a nondiscriminatory
manner based on objective criteria and stand-
ards.
JOURNEYMEN PIPE FITTERS LOCAL
No. 392, AFFILIATED WITH THE
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PILUMBING AND PIPE FITTING INDUS-
TRY OF U.S. AND CANADA, AFL-
CIO
DECISION
STATEMENr OF THE CASE
ROBERT E. MUI.LIN, Administrative Law Judge: This
case was heard on June 28, 1979, in Cincinnati, Ohio,
pursuant to a charge duly filed and served' and a com-
plaint issued on January 25 and amended on June 11,
1979. The complaint, as amended, presents the question
as to whether, in the operation of its hiring hall, the Re-
spondent violated Section 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act, as amended. The Respondent
has conceded certain facts with respect to the Employ-
er', business operations, but it denies all allegations that
it has committed any unfair labor practices.
At the hearing all parties were represented by attor-
neys. All were given full opportunity to examine and
cross-examine witnesses and to file briefs. Oral argument
was waived. Subsequent to the close of the hearing, able
briefs were received from both the General Counsel and
the Respondent.
Upon the entire record in the case, including the briefs
of the parties, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Kaiser Engineers, Inc. (herein called Kaiser), an Ohio
corporation, is engaged in the construction industry as a
general contractor. For some time Kaiser has been en-
gaged in the construction of the Zimmer Power Plant, a
nuclear power source, located near Moscow, Ohio.
During the 12 months prior to the issuance of the com-
plaint, a representative period, Kaiser purchased and re-
ceived goods and materials valued in excess of $50,000
which were shipped to the Moscow construction site di-
rectly from points outside the State of Ohio. Upon the
foregoing facts, the Respondent concedes, and it is now
found, that Kaiser Engineers, Inc., is, and has been, an
employer within the meaning of Section 2(2) of the Act,
and that it is engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
The charge was filed on May 24, 1978. and served on the Respond-
ent the following day
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE RESPOND)ENT LABOR ORGANIZATION
Journeymen Pipe Filtters Local No. 392, affiliated with
the United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the U.S.
and Canada, AFL-CIO, the Respondent, herein called
the Union or Local 392, is a labor organization within
the meaning of Section 2(5) of the Act. The Respondent
acknowledges, and it is now found, that Robert C. Sulli-
van, business manager for Local 392, is, and has been, an
agent for the Respondent within the meaning of Section
2(13) of the Act.
111. TH[ AI..F-(l(tl) UNFAIR ABOR PRACTICIES
A. The Facts
At all times material herein, the Respondent has main-
tained a collective-bargaining agreement between it and
the Mechanical Contractors Association of Cincinnati,
herein called MCA, which contract provides for the
maintenance of an exclusive hiring hall for referral of
employees by the Respondent to positions of employ-
ment. 2 Finally, by virtue of a collective-bargaining
agreement effective on July 15, 1977, and remaining in
effect until July 15, 1979, between Local 392 and the Na-
tional Contractors Association, of which Kaiser is a
member, Kaiser is bound by, and has abided by, the re-
ferral procedures set forth in the agreement which Local
392 has with MCA.
The General Counsel alleges that since about March
13, 1978, to on or about April 27, 1979, the Respondent
discriminatorily, arbitrarily, and capriciously refused to
refer Gary McKibben to Kaiser and to other prospective
employers who are parties to the above-described collec-
tive-bargaining agreement. This allegation is denied by
the Respondent in its entirety. To the facts in connection
with this issue I will now turn.
McKibben, the Charging Party, is a journeyman pipe-
fitter who is not a member of Local 392, but is a member
of Local 59, a sister local of the United Association that
is located in the Cincinnati area. Over the years, howev-
er, he has used the hiring hall of Local 392 on numerous
occasions.
Pursuant to its collective-bargaining agreements
throughout the period in question the Respondent has
maintained an exclusive hiring hall. The relevant hiring
hall provisions of those agreements require that the Re-
spondent maintain "an appropriate registration facility"
"where [Q]ualified applicants shall be registered on the
appropriate craft out-of-work list in the order of time
and date of registration" as reflected on the individual's
registration form. The contracts further provide for the
utilization of the out-of-work lists on a first in, first out
basis so that the first man registered shall be the first
man referred.3 In an obvious effort to keep its members
and job registrants apprised of those specific contract
terms, the language quoted above, as well as the rest of
the provisions in the Respondent's collective-bargaining
agreements on the operation of its hiring hall, appears in
2 The current contract is effective until May 31, 1982.
3 With certain limited exceptions not relevant here.
a large scale photocopy notice which is posted in a
prominent position at the union hall.
Notwithstanding the foregoing contractural require-
ments, Business Manager Sullivan acknowledged that
from August 1977 to January 1979 the Respondent made
no effort to maintain a summary out-of-work list, but
relied instead on only the registration forms which the
job applicants submitted and which it kept in alphabeti-
cal order in an office file cabinet. In an explanation for
the Respondent's resort to the latter practice Sullivan
testified that the period from August 1977 to January
1979 was one of full employment for the Union's mem-
bers and that rather than utilize a summary out-of-work
list he used a variety of methods to fill the high volume
of job requests which came to the union hall. Thus, ac-
cording to Sullivan, when he was unable to fill a con-
tractor's order from the number of men present in the
hiring hall on the day he received the request, he some-
times telephoned Plumbers Local No. 59, a sister affiliate
of the United Association and solicited its help in secur-
ing plumbers. Sullivan further testified that, in addition
to the latter source, he sometimes called upon other af-
filiates of the International, viz, Local 108, Hamilton,
Ohio, Local 162, Dayton, Ohio, Local 510, Middletown,
Ohio, and others, where he knew of his own personal
knowledge that their membership was experiencing un-
employment. Sullivan further testified that from time to
time he filled some orders by notifying persons whom he
knew, again of his own knowledge, were about to be laid
off and would therefore be available shortly.Finally, ac-
cording to Sullivan, if there happened to be any "travel-
ers"4 in the hiring hall at the time a work request was
received, he would utilize them to fill the order.
None of the foregoing methods of filling job requests
was provided for in any provision of the Respondent's
contracts, or described in any notice to members or to
those who signed the work roster at the Respondent's
hiring hall. Only the contractual requirements set forth
above were posted there for the guidance of members
and job applicants. Moreover, not only did the Respond-
ent not maintain an out-of-work list, but it also appears
from the record that the application for registration
which a jobseeker filled out when he came to the hiring
hall was good only for the day it was completed. Thus,
Sullivan testified, "[By] receiving the application I know
that they're [the job seekers] in the hallway [at that
time]." Similarly, at another point in his testimony, the
business manager stated, "[I]f we have someone in the
hall that morning [and a work request comes in] . . . we
refer them."
On March 13, 1978, McKibben, the Charging Party
herein, came to the Respondent's hall and filled out an
application for registration. A work request for welders
had just been received from Kaiser. Sullivan offered to
refer McKibben to Kaiser for a welding job, but the
latter declined the offer on the ground that he did not
have a welding certificate. Thereafter, McKibben was
not referred to any other job. However, subsequent to
that date the Respondent received many requests for
4 A "traveler" was a member of another local of the International who
was seeking work in the Cincinnati area.
420
JOURNEYMEN PIPE FITTERS LOCAL NO. 392
nonwelder pipefitters. Sullivan acknowledged that Kaiser
alone requested in excess of 200 nonwelder pipefitters
such as McKibben.
The General Counsel contends that, if the Respondent
had adhered to its contractual responsibilities and main-
tained a summary out-of-work list rather than merely
storing the registration forms in a file cabinet, McKib-
ben's name would have been on such a list and that, in
the light of the foregoing statistics, he would have been
referred out to a nonwelder pipefitter job after his initial
registration on March 13. This allegation is denied by the
Respondent.
B. The Alleged Violation of the Act
The Board has held that a union which has an exclu-
sive hiring hall must represent all individuals who seek
to utilize that hall in a fair and impartial manner. Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers Local Lodge No. 169,
AFL-CIO (Riley Stoker Corporation), 209 NLRB 140,
144-145, 150 (1974). The Board has also held that it is a
breach of that duty of fair representation when a union
acts in contravention of its contract. Miranda Fuel Com-
pany, Inc., 140 NLRB 181, 188-190 (1962). It is clear that
the procedures which Business Manager Sullivan used in
operating the hiring hall after April 1977 were contrary
to the quoted provisions of the Respondent's collective-
bargaining agreement with the MCA. No evidence was
proferred to establish that those terms had ever been
modified by the parties. Nor was there any evidence that
the referral system which Sullivan utilized between
August 1977 and January 1979 was a practice in which
any employer had acquiesced. Consequently, in denying
to job applicants the contractual right of being referred
on a first in, first out basis, the Respondent breached its
duty of fair representation. Miranda Fuel, supra; Local
Union No. 725 of the United Association of Journeymen
and Apprentices of the Plumbing & Pipefitting Industry of
the United States and Canada, AFL-CIO (Powers Regula-
tor Company), 225 NLRB 138, 143 (1976).
The Board has further held that a union which oper-
ates a hiring hall without the use of objective criteria in
making referrals engages in arbitrary conduct that is vio-
lative of its duty of fair representation. Local Union Vo.
174, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Totem Beverages,
Inc.), 226 NLRB 690, 699-700 (1976); Riley Stoker, supra.
In the present case, Sullivan, as the Respondent's agent,
used his unfettered discretion in making referrals. Apart
from the use of the out-of-work lists of sister locals,
there were no obvious standards applied to the method
whereby Sullivan filled some jobs by selecting union
members who were then at work, but whom he person-
ally knew were about to be laid off. None of these meth-
ods met any objective criteria, and, by their utilization,
the Respondent failed to adhere to the requirement that
differing treatment of individuals in the referral process
can only be based on relevant distinctions among the ap-
plicants.
Finally, there was no evidence that the Respondent
ever notified any of the job applicants that it was depart-
ing in any manner from the referral system established
by its collective-bargaining agreements. Those who
sought to utilize its hiring hall were never told that the
referral system actually in use during the period in ques-
tion did not comply with the terms of the contract even
though those terms were posted in the hiring hall. The
Respondent's failure to do so was arbitrary and in breach
of its duty to keep the job applicants informed and to
represent them fairly. Local No. 324, International Union
of Operating Engineers, AFL-CIO (Michigan Chapter, As-
sociation General Contractors of America, Inc.), 226
NLRB 587 (1976); Miranda Fuel, supra.
In the present case, on March 13, 1978, McKibben
came to the Respondent's hiring hall and completed an
application for registration. That same morning he was
offered a referral to a Kaiser job as a welder. When
McKibben declined this offer because he did not feel
qualified for such work, the Respondent made no at-
tempt to give him another opportunity for employment.
The Respondent did not contend that McKibben ever
withdrew his registration for work. Consequently, he
was entitled to be considered for the next opportunity
which came along on a first in, first out basis. Although
the Respondent acknowledged that during the period
subsequent to McKibben's registration Kaiser alone re-
quested in excess of 200 nonwelder pipefitters, such as
McKibben, the latter was never called by the Respond-
ent to fill one of those jobs. Business Manager Sullivan
conceded that throughout this period the Union was not
keeping a summary out-of-work list. Instead, as described
by Sullivan, the registration forms were merely filed al-
phabetically in the office of Local 392.
There was no testimony which established that any use
was made of the job requests that were filed away in this
fashion. In fact, Business Manager Sullivan testified that
he filled job requests throughout the period by referring
out those applicants who were in the hiring hall on the
particular day that an employer's request came to his at-
tention, by calling on other locals for their assistance in
securing pipefitters to fill job requests, and by relying on
his own knowledge as to who might be available shortly
on jobs that were being completed. There was no clear
evidence that Sullivan ever went to the file cabinet
where the registration forms were purportedly filed.
From Sullivan's own testimony it would appear that on
most occasions during the period in question if a job ap-
plicant was not in the hiring hall on the day a contrac-
tor's request was received that individual never received
a referral. In any event, it is apparent from the record
herein that the Respondent's practice of merely keeping
the registration forms in a central file cabinet did not
comply with the contractual requirement that it maintain
an out-of-work list. A labor union is under a duty to con-
form with and adhere to lawful contractual standards in
the administration of the requirements as to registration,
preferences, and referrals. The Board has held that any
departure from those requirements which results in a
denial of employment to a member falls within that class
of discrimination which inherently encourages union
membership and is a violation of Section 8(b)(2) and
(I)(A) of the Act. International Association of Heat &
Frost Insulators & Asbestos Workers, AFL-CIO, Local 22
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Rosendahl, Inc.), 212 NLRB 913 (1974); International
Brotherhood of Electrical Workers, Local 592 (United En-
gineers & Construction Co.), 223 NLRB 899, 901 (1976). 5
In the light of the findings set forth above, it is now
found that the Respondent offered no valid justification
for failing to maintain an out-of-work list which would
have assured McKibben, and other job applicants similar-
ly situated, of their contractual right to be referred ahead
of other applicants who registered later than they did.
By such conduct the Respondent breached its duty of
fair representation of McKibben and other job applicants.
Consequently, it is now found that on the facts present
here the Respondent violated Section 8(b)(1)(A) and (2)
of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
I. Local 392 is a labor organization and the Employer
is engaged in commerce, all within the meaning of the
Act.
2. The Respondent and the Employer have been par-
ties to collective-bargaining agreements whereby the Re-
spondent operates an exclusive hiring hall and referral
system for the referral of employees by the Respondent
to work for Kaiser and other employers.
3. The aforesaid contract requires that the Respondent
maintain an out-of-work list for those job applicants who
are awaiting referral. During the period from August
1977 to January 1979, the Respondent failed to maintain
this list and also failed to observe any objective criteria
in referring applicants for employment. By such conduct
the Respondent did not represent fairly those applicants
such as McKibben, to whom it owed this duty, and it
thereby violated Section 8(b)(l)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act, it will be recommended that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action to effectuate the policies of the
Act.
Having found that the Respondent unlawfully caused
Gary McKibben to be denied referral to work from and
after March 13, 1978, it will be recommended that the
Respondent be ordered to make him whole for any loss
of earnings suffered as a result of the discrimination
5 Cf. L. R.B. v. International Association of Bridge, Structural and Or-
namental Iron Workers. Local 433 [The Associated General Contractors of
California, Inc.], 600 F 2d 770 (9th Cir. 1979), where the Court stated at
777:
The Union's collective bargaining agreement contained an explicit
and unambiguous procedure governing the dispatch of job appli-
cants. The Board's uncontested findings showed that the Union's
business agents made 76 referrals in violation of the terms of the
agreement.... The Union offered no reasons, legitimate or other-
wise, to justify its practices. In these circumstances we conclude that
the Union's arbitrary display of power violated §§(b)(I)(A) and
8(b)(2) of the Act. . . . As the Board found, the natural and foresee-
able consequences of a system by which the Union's agents arbitrar-
ily dispensed their patronage was to encourage loyalty of the job ap-
plicants to the Union and its agents.
against McKibben by payment to him of a sum of money
equal to that which he normally would have earned as
wages from the date of the discrimination against him
until April 27, 1979,6 less net earnings during such
period. Loss of earnings shall be computed as prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), plus
interest as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 7
The Respondent, Journeymen Pipe Fitters Local No.
392, affiliated with the United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry of U.S. and Canada, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Operating an exclusive hiring hall and referral
system for referral of employees to Kaiser Engineers,
Inc., and other employers without the use of an out-of-
work list and without any objective criteria or standards
and in a discriminatory manner.
(b) Failing and refusing to refer Gary McKibben to
work as an employee of Kaiser, or of any other employ-
er, pursuant to the operation of an exclusive hiring hall
and referral system for the referral of employees to em-
ployers without resort to an out-of-work list and without
any objective criteria and in a discriminatory manner,
thereby causing or attempting to cause those employers
to deny McKibben employment.
(c) In any like or related manner restraining or coerc-
ing employees or applicants for employment in the exer-
cise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make whole Gary McKibben in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
hiring hall records, dispatch lists, referral cards, and
other documents necessary to analyze and compute the
amounts of backpay due McKibben under the terms of
this Order.
(c) Operate the Respondent's hiring hall and referral
system in a nondiscriminatory manner based on objective
criteria and standards.
(d)Post at its main office in Cincinnati, Ohio, and at its
meeting places for members or applicants for referral
6 In his complaint the General Counsel alleges that the discrimination
against McKibben continued only until this date.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the Naitonal Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
422
JOURNEYMEN PIPE FITTERS LOCAL NO. 392
copies of the attached notice marked "Appendix. "8
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by the Re-
spondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
' In the event that this Order is enforced by a Judgment of a United
States Court of, Appeals, the W, rds in the notice reading "Posted by
Order of the National Labor Relations Board" shall read i'osled P'ursu-
ant to a Judgment f the United States Court of Appeals Enforcing an
Order of the National Labor Relations Hoard"
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order. what
steps the Respondent has taken to comply herewith.
423