Kvaerner Songer, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1343 (N.L.R.B. 2004)

KVAERNER SONGER, INC.
343 NLRB No. 130
1343
Kvaerner Songer, Inc. and Local 334, Laborers In-
ternational Union of North America, AFL–CIO
and Michael Wilson.
Kvaerner Songer, Inc. and Local 334, Laborers In-
ternational Union of North America, AFL–CIO
and Clyde Escobar III, Jesus Alcorta, Eric
Garza, Sergio Garza, and Rene Gregorio
Ramos. Cases 7–CA–45463, 7–CA–45637, 7–
CB–13451, and 7–CB–13458
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 25, 2003, Administrative Law Judge
Arthur J. Amchan issued the attached decision. The
General Counsel filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief, and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The complaint in this case alleges that Local 334, La-
borers International Union of North America, AFL–CIO
(the Union) unlawfully demanded that the Employer re-
frain from hiring the Charging Parties, who were union
members, because they had not been referred to the Em-
ployer through the Union’s hiring hall, and that the Em-
ployer unlawfully acquiesced in those demands. The
General Counsel alleges that the parties’ hiring hall ar-
rangement was nonexclusive, and therefore the Union
was not privileged to insist on the hiring of only employ-
ees referred through the hall.
As discussed below, the judge found that the hiring
hall arrangement was exclusive, and that the Charging
Parties were not discriminated against for an unlawful
reason. The General Counsel excepts, claiming among
other things, that the judge should have found that the
hiring hall arrangement was nonexclusive and, therefore,
that the Respondents discriminated against the Charging
Parties by rejecting their efforts to obtain or retain work
with the Employer on their own, i.e., not through the
hiring hall. We find merit to those exceptions.
For the reasons set forth below, we reverse the judge’s
decision and find that the hiring hall arrangement be-
tween the Employer and the Union was nonexclusive.

1 The Union and the Employer both filed answering briefs that were
rejected by the Executive Secretary’s office as untimely. The Em-
ployer filed a motion to accept as timely its answering brief. The
Board, Chairman Battista dissenting, denied the motion. Therefore, we
have not considered the answering briefs.
Therefore, the Union violated Section 8(b)(1)(A) and
(2) by interfering with the Charging Parties’ employment
with the Employer, and the Employer violated Section
8(a)(3) and (1) by acquiescing in the Union’s unlawful
demands that it terminate or refuse to hire the Charging
Parties.
I. BACKGROUND AND FACTS
In the fall of 2002,2 National Steel Corporation con-
tracted with the Employer, a construction company, to
undertake the project involved in this case: namely, to
rebrick the “number 1 stove” at the “A blast furnace” at
National Steel’s Zug Island facility near Detroit, Michi-
gan. During 2000, the Employer had performed similar
work on the “B furnace” at this facility. The 2000 pro-
ject was the subject of a Board decision involving the
same Union and Employer. Laborers Local 334
(Kvaerner Songer), 335 NLRB 597 (2001).
The Employer received approval from the Laborers’
International Union, via an extension request, that the
National Maintenance Agreement (NMA) between the
Employer and the International Union would apply to
this project. Article XIX, section 1, of the NMA pro-
vides:
The Employer agrees to hire craftworkers in any
territory where work is being performed or is to be
performed in accordance with the hiring procedure
existing in the territory where the work is being per-
formed, or is to be performed; however, in the event
the Local Union is unable to fill the request of the
Employer for employees within a forty-eight (48)
hour period after such request for employees (Satur-
day, Sundays and holidays excepted), the Employer
may employ workmen from any source. [Emphasis
added.]
The General Counsel contends that the quoted NMA
provision incorporates by reference the terms of the
agreement between the Union and the Detroit Chapter of
the Associated General Contractors (the Local Agree-
ment), which established a nonexclusive hiring hall ar-
rangement. Article IV of the Local Agreement provides:
1. (a) Beyond the employer’s regular employees,
including laid-off, laid off and collecting unem-
ployment and/or transferred from another project of
the same employer, the employer agrees to give the
local union in the area an opportunity to supply any
additional employees.
(b) Regular employees shall be defined as one
who has been on the payroll of said employer within
the immediate past nine (9) months.

2 All dates are in 2002 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1344
2. When requested, the Union agrees to furnish
competent workers upon notification to the Business
Manager or Business Agent of the Union and fur-
ther, the Employer agrees that beyond his regular
employees he will give the Local Union in the area
an opportunity to supply any additional employees.
The Employer retains his right of freedom of selec-
tion of employees from among all applicants.
The Employer is not a signatory to the Local Agree-
ment, although, in a prior case, the Employer and the
Union stipulated that the work performed at Zug Island
in 2000 was governed by that agreement.3 In addition,
the Employer, through its attorney, Geoffrey Beeson,
stated in this case that article IV of the Local Agreement
applied, as it was incorporated by reference in the NMA.
The Employer’s work on this new Zug Island project
was to begin on Tuesday, September 3 (the day after
Labor Day). On Friday, August 30, the Employer’s gen-
eral foreman, Tony Peace, who was not normally based
in the Detroit area, called Timothy Rushlow, a manager
at the Employer’s nearby Romulus, Michigan office,4
and asked him to obtain five laborers to work at Zug Is-
land starting on September 3. Rushlow called the Local
334 hiring hall, but was unable to reach anyone. He left
messages on the cell phones of two union officials.
When he had not heard from the Union by the morning
of September 3, Rushlow called Clyde Escobar, one of
the Charging Parties, who had worked for the Employer
on a prior job. He asked Escobar to come to the jobsite
and bring four other laborers.
Escobar and four other of the Charging Parties arrived
at the jobsite later that morning, September 3. All of the
five were members of Local 334. Foreman Peace and
Jeff Tackett, a union business agent, met them at the fa-
cility’s gate. Tackett told Peace that he “didn’t know
where these guys came from,” and said that if the five
were hired, the Union would file a grievance because
they were not referrals from the Local 334 hiring hall and
hiring them would violate article XIX of the NMA.
Tackett also said to Peace: “[O]ur Union Hall 334, we
supply all the men on these jobs,” and “[Y]ou just can’t
hire anybody you feel like hiring.” At about this time, a
steward told Escobar and the others that they could not
work because they were not on the out-of-work list.
Escobar then left with the four other men, and the hiring
hall dispatched five other Local 334 members later that
day. Peace later told Manager Rushlow that he had

3 Kvaerner Songer, 335 NLRB, supra at 598.
4 The judge described Rushlow as a “Songer employee” (emphasis
added). We note that Rushlow is an admitted manager of the Em-
ployer.
turned the Charging Parties away because Tackett had
threatened to file a grievance and would not let them
work.
Early on September 4, after hearing about a possible
job, Charging Party Michael Wilson arrived at the Em-
ployer’s jobsite seeking work. Wilson, also a Local 334
member, was met by Andre Laurain, one of the Em-
ployer’s supervisors. Although Wilson had not been
referred by the hiring hall, he told Laurain that he was
“from the union hall.” Laurain hired Wilson and another
employee and sent them to an orientation. However,
after about half an hour, Laurain told Wilson that he had
to “let him go,” explaining that he had spoken with Scott
Covington (from the Union), who “calls the shots,” and
that Covington did not want him there.
Between September 2002 and January 2003, the Em-
ployer hired approximately 60 laborers for the Zug Island
project. All were dispatched by the Union’s hiring hall
except three “regular” employees of the Employer.5
On other projects, union members regularly sought and
received jobs by calling companies directly, without go-
ing through the hiring hall. The judge also found that
“on some occasions in the past, the Union was aware that
some of the Charging Parties had obtained employment
without going through the hall and did not do anything to
prevent them from doing so.”
Following the filing of unfair labor practice charges,
the General Counsel issued a complaint, alleging that the
Local Agreement applied to the 2002 Zug Island project,
that this agreement did not create an exclusive hiring hall
arrangement, and that the Union’s interference with the
Charging Parties’ employment violated Section
8(b)(1)(A) and (2), and that the Employer’s refusal to
hire the Charging Parties violated Section 8(a)(3) of the
Act.
II. THE JUDGE’S DECISION
The judge recommended dismissing the complaint. He
found it immaterial whether the NMA or the Local
Agreement applied to the project because he concluded
that the Union and the Employer had “established an
exclusive hiring hall by practice and operation.” He
found that the Union has a duty of fair representation to
its members in its operation of the exclusive hiring hall,
but noted that this duty is breached only if the Union
gives preference to one member over another on an im-
permissible basis, such as to support the incumbent union
leadership. He found that although the Union discrimi-
nated against the Charging Parties, it did not do so in a
manner that would “encourage or discourage member-
ship in any labor organization.” Rather, he found that the

5 Such employees are exempted from the hiring hall arrangement.
KVAERNER SONGER, INC. 1345
Union gave a preference to members on the out-of-work
list over those who were not on that list, and held that
this was a matter entirely within the Union’s discretion.
The judge therefore concluded: (a) that the Union did
not breach its duty of fair representation to the Charging
Parties by giving preference to other union members in
violation of Section 8(b)(1)(A); (b) that the Union did
not violate Section 8(b)(2) by causing the Employer not
to hire the Charging Parties; and (c) that the Employer
did not violate Section 8(a)(3) and (1) in refusing to hire
the Charging Parties. For the following reasons, we dis-
agree.
III. ANALYSIS AND FINDINGS
A. The Parties’ Hiring Hall Arrangement was
Nonexclusive
We find that the evidence does not establish that the
parties had an exclusive hiring hall arrangement. Ac-
cordingly, we conclude, as explained below, that the Un-
ion violated Section 8(b)(1)(A) and (2) and the Employer
violated Section 8(a)(3).
It is undisputed that the NMA applied to the 2002 fur-
nace work at Zug Island. That agreement does not, on its
face, create an exclusive hiring hall arrangement between
these parties. The NMA requires hiring “in accordance
with the hiring procedure existing in the territory” where
the work is to be performed. This clause requires appli-
cation of local procedures, and thus does not create ex-
clusivity in and of itself. A second clause of this NMA
provision states: “[H]owever, in the event the Local Un-
ion is unable to fill the request of the Employer for em-
ployees within a forty-eight (48) hour period after such
request for employees . . . the Employer may employ
workmen from any source.” This second clause also
does not create an exclusive arrangement. It means only
that even if a particular local hiring procedure is exclu-
sive, the Employer may nevertheless hire from any
source if, after 48 hours, the Union is unable to fill a re-
quest.
Thus the relevant inquiry is whether the local hiring
procedure for the territory involved herein was exclusive
or nonexclusive. We find that the local hiring procedure
of these parties was nonexclusive.6 In this regard, Em-
ployer agent Timothy Rushlow testified that he received
no direction to secure employees only from the hiring
hall, and that he had previously hired directly an em-

6 The General Counsel argues that the Union’s placement of Charg-
ing Party Escobar in a job at Auto Alliance in Flat Rock, Michigan,
without going through the hiring hall demonstrates that the Union did
not follow orderly (i.e., exclusive) procedures with regard to referrals.
We disregard this evidence because Escobar was appointed to that job
pursuant to an NMA provision that allows direct appointments of stew-
ards.
ployee for a job with the Employer. The Charging Par-
ties testified that union members regularly sought and
received jobs by calling companies directly, without go-
ing through the hiring hall. Indeed, the judge himself
found that, “on some occasions in the past, the Union
was aware that some of the Charging Parties had ob-
tained employment without going through the hall and
did not do anything to prevent them from doing so.”
This evidence of nonexclusive practice is consistent with
the evidence in the prior Kvaerner Songer case that the
Union “only referred a small fraction of employees for
employment,” and that “the Employer was free to, and
did, hire employees who walked in from the street and
who were referred to it by other employees.”7
Additionally, although we find it unnecessary to de-
termine whether article IV of the Local Agreement was
incorporated into the NMA, we find that article IV is
relevant in determining whether local hiring procedures
for the territory are nonexclusive. Article IV provides
that the employer agrees to give the Union “an opportu-
nity” to supply employees, and that the employer “retains
his right of freedom of selection from among all appli-
cants.” We agree with the General Counsel that this lan-
guage establishes a nonexclusive hiring arrangement.
Therefore, we find that the Agreement supports a finding
that the local hiring practices were nonexclusive.8
In finding that the parties’ practice was exclusive, the
judge apparently relied on evidence of events that oc-
curred after the Charging Parties were denied employ-
ment. In this regard, the Employer hired approximately
60 laborers for the 2002 Zug Island project, all of whom
(except for three “regular” employees) were dispatched
from the hall. However, as the General Counsel argues,
the relevant hiring procedure is that which existed be-
tween the parties prior to and until September 3 and 4,
when the Charging Parties were denied employment. As
set forth above, the evidence supports the finding that
during the relevant time period the parties’ arrangement
was nonexclusive.

7 Kvaerner Songer, 335 NLRB at 600.
8 Chairman Battista concludes that the hiring hall provision of the
Local 334 contract (art. IV) is not incorporated by reference into the
NMA contract. The relevant provision of the NMA contract says only
that the “hiring procedure existing in [the local] territory” is to be fol-
lowed. The NMA does not say that art. IV of the Local contract is made
a part of the NMA contract. Thus, the inquiry properly focuses on the
actual procedures used, not the language of art. IV. Similarly, Chair-
man Battista does not pass on whether art. IV creates an exclusive
hiring hall arrangement. As to the issue of what the local procedure
was, Chairman Battista agrees with his colleagues that the local proce-
dure does not establish an exclusive hiring hall arrangement during the
relevant period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1346
Therefore, we conclude that the parties’ hiring ar-
rangement was nonexclusive.9
B. The Union Violated Section 8(b)(1)(A) and (2); the
Employer Violated Section 8(a)(1) and (3)
As set forth above, on September 3 and 4, the Union
insisted that the Charging Parties be replaced by mem-
bers who had been dispatched by the Union. Specifi-
cally, Union Business Agent Tackett told Tony Peace
that Escobar, Eric Garza, Sergio Garza, Jesus Alcorta,
and Rene Gregorio Ramos could not be hired because
they were not dispatched by the Union’s hiring hall.
Similarly, about a half hour after hiring Wilson, Laurain
told Wilson that he had to “let him go,” explaining that
he had spoken with Scott Covington (from the Union),
who “calls the shots,” and that Covington did not want
him there. Absent an exclusive hiring hall arrangement,
the Union was not free to insist that the Employer termi-
nate or refuse to hire the Charging Parties and replace
them with individuals referred by the Union; by doing so,
the Union violated Section 8(b)(1)(A) and (2).10
It is clear that but for the Union’s unlawful pressure,
the Employer would have hired Escobar, E. Garza, S.
Garza, Alcorta and Ramos when they showed up for
work on September 3 after Rushlow had offered them
employment. With regard to Charging Party Wilson, the
Employer actually hired him but “let him go” after pres-
sure from the Union. Accordingly, we find that by ac-
quiescing to the Union’s unlawful demands that it refuse
to hire, or terminate, the Charging Parties, the Employer
violated Section 8(a)(3) and (1) of the Act.11

9 The judge rejected the General Counsel’s contention that the Em-
ployer and the Union are collaterally estopped from claiming that the
hiring hall was exclusive by virtue of the Board’s prior contrary finding
in Kvaerner Songer, 335 NLRB 597 (2001), involving the same issue,
parties, and worksite. In light of our conclusion that the parties’ hiring
hall arrangement was nonexclusive, we do not reach the question of
collateral and judicial estoppel, which are argued by the General Coun-
sel as an alternative ground for finding a nonexclusive hiring hall ar-
rangement in this case.
10 See, e.g., Operating Engineers Local 17 (Combustion Engineer-
ing), 231 NLRB 1287, 1289 (1977) (absent an exclusive hiring hall
arrangement, a union’s causing or attempting to cause an employer to
terminate or refuse to hire certain individuals and replace them with
individuals referred by the union constitutes a violation of Sec.
8(b)(1)(A) and (2)); Bricklayers Local 2 (Glenshaw Glass Co.), 205
NLRB 478, 481 (1973) (union violated Sec. 8(b)(1)(A) and (2) where,
absent an exclusive hiring hall arrangement, it insisted that certain
union members be replaced by other union members). See also Sheet
Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985)
(even absent an exclusive hiring hall, a union’s causing an employer to
refuse to hire an individual for union-related reasons violates Sec.
8(b)(1)(A) and (2)).
11 See Crouse Nuclear Energy Services, 240 NLRB 390, 395 (1979);
H.H. Robertson Co., 263 NLRB 1344, 1345 (1982).
ORDER
The National Labor Relations Board orders that
A. The Respondent Union, Local 334, Laborers Inter-
national Union of North America, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing employees of Kvaerner
Songer, Inc., or any other employer, in violation of Sec-
tion 8(b)(1)(A) of the Act;
(b) Causing or attempting to cause any employer with
which the Union does not have an exclusive hiring hall
arrangement to terminate the employment of, or refuse to
hire, any employee because the employee failed to obtain
the work through the Union’s hiring hall; and
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Jointly and severally with the Employer, make Mi-
chael Wilson, Clyde Escobar III, Jesus Alcorta, Eric
Garza, Sergio Garza, and Rene Gregorio Ramos whole
for any loss of earnings and other benefits they may have
sustained as a result of the Union’s discrimination
against them, less interim earnings, plus interest;
(b) Immediately notify Kvaerner Songer, Inc., in writ-
ing, that there is no objection to the hiring or employ-
ment of Michael Wilson, Clyde Escobar III, Jesus
Alcorta, Eric Garza, Sergio Garza, or Rene Gregorio
Ramos;
(c) Within 14 days after service by the Region, post at
its union office, hiring hall, and all other places where
notices to members are customarily posted, copies of the
attached notice. Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent Union immediately upon re-
ceipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Respondent Union
shall take reasonable steps to ensure that the notices are
not altered, defaced, or covered by any other material;
and
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent Union has
taken to comply with this Order.
B. Respondent Employer, Kvaerner Songer, Inc., shall
1. Cease and desist from
KVAERNER SONGER, INC. 1347
(a) Discharging or refusing to hire any employee be-
cause the employee failed to obtain the work through a
nonexclusive hiring hall.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Clyde Escobar III, Jesus Alcorta, Eric Garza, Sergio
Garza, and Rene Gregorio Ramos instatement, and Mi-
chael Wilson reinstatement to the positions they applied
for or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled if the Respondent Employer had not
discriminated against them.
(b) Jointly and severally with the Union, make the
above-named discriminatees whole for any loss of earn-
ings and other benefits they may have sustained as a re-
sult of the Employer’s discrimination against them, less
interim earnings, plus interest.
(c) Within 14 days after service by the Region, post
copies of the attached notice at its Zug Island, Michigan
facility, if any remains, and at any other of its facilities.
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent Employer immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. The Respondent Employer shall
take reasonable steps to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent Employer has gone out of business or closed
the facility involved in these proceedings, the Respon-
dent Employer shall duplicate and mail, at it own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since September 3, 2002.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent Employer has
taken to comply with this Order.
APPENDIX A
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 vio-
lated Federal law and has ordered us to post and obey this
notice.
WE WILL NOT cause or attempt to cause any employer
with which we do not have an exclusive hiring hall ar-
rangement to refuse to hire, or to terminate, the employ-
ment of any employee because he or she was not referred
for the work through our hiring hall.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, jointly and severally with Kvaerner Songer,
Inc., make Michael Wilson, Clyde Escobar III, Jesus
Alcorta, Eric Garza, Sergio Garza, and Rene Gregorio
Ramos whole for any loss of earnings and other benefits
they may have sustained as a result of our discrimination
against them, less interim earnings, plus interest.
WE WILL notify Kvaerner Songer, Inc., in writing, that
there is no objection to the hiring or employment of the
above-named discriminatees.
LOCAL 334, LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES
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 vio-
lated Federal law and has ordered us to post and obey this
notice.
WE WILL NOT discharge or refuse to hire any employee
because he or she was not referred for the work through a
hiring hall unless our Company and a union have an ar-
rangement under which the hiring hall is the exclusive
referral source.
WE WILL NOT in any like or related manner restrain or
coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL offer Clyde Escobar III, Jesus Alcorta, Eric
Garza, Sergio Garza, and Rene Gregorio Ramos instate-
ment, and Michael Wilson reinstatement to the positions
for which they applied or, of those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges to which they would have been entitled had we not
discriminated against them.
WE WILL, jointly and severally with the Union, make
Michael Wilson, Clyde Escobar III, Jesus Alcorta, Eric
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1348
Garza, Sergio Garza, and Rene Gregorio Ramos whole
for any loss of earnings and other benefits they may have
sustained as a result of our discrimination against them,
less interim earnings, plus interest.
KVAERNER SONGER, INC.
Ingrid L. Kock, Esq., for the General Counsel.
Jeffrey E. Beeson, Esq. (Lanahan Reilley, LLP), of Santa Rosa,
California, for the Respondent Employer, Kvaerner Songer,
Inc.
J. Douglas Korney, Esq. (Korney & Heldt), of Bingham Farms,
Michigan, for the Respondent Union, Laborer’s Interna-
tional Union, Local 334.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Detroit, Michigan, on July 14, 2002. The charges
were filed September 16 and 17, 2002, and the complaint was
issued December 30, 2002. The General Counsel alleges that
the Respondent Union, Laborer’s International Union Local
334, violated Section 8(b)(1)(A) and (2) of the Act in prevent-
ing Respondent Kvaerner Songer (Songer) from employing the
Charging Parties,1 all of whom are members of Local 334, at its
worksite at Zug Island, Michigan, on or about September 3,
2002. The General Counsel alleges that Songer violated Sec-
tion 8(a)(3) and (1) in refusing to hire the Charging Parties.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent Employer and Respondent
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Kvaerner Songer, Inc., a corporation, is a con-
struction contractor with headquarters in Washington, Pennsyl-
vania. During 2001, Respondent performed services valued in
excess of $100,000 outside of Pennsylvania. Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Kvaerner Songer and the Respondent Union, Laborer’s Interna-
tional Union, Local 334, admit that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
National Steel Corporation contracted with Respondent
Kvaerner Songer to rebrick the number 1 stove at the A blast
furnace at National Steel’s Zug Island facility near Detroit in

1 Charging Party Jesus Alcorta, is Alcorta rather than Alcorto, as
spelled in the caption to the complaint.
2 At hearing, I received R. Exh. 2, a summary of Songer’s personnel
records for the Zug Island project. In a conference call with the parties,
I reversed myself because on further reflection I concluded that Re-
spondent failed to establish that the summary accurately reflected the
underlying documents. In another conference call, I rejected R. Exh. 3,
all or some of these underlying documents. I have not considered any
of this material.
the fall of 2002. Between May and December 2000, Songer
performed identical or similar work on the B furnace at Na-
tional Steel’s facility.3
Songer’s work on the stove at the A furnace commenced on
Tuesday, September 3, 2002, the day after Labor Day. On
Friday, August 30, Tony Peace, Songer’s general foreman, who
is not normally based in the Detroit area, and Timothy Rush-
low, a Detroit area Songer employee. Peace asked Rushlow to
obtain five laborers to work for Songer at Zug Island on the
morning of September 3.4
Rushlow called the Local 334 hall but was unable to get in
touch with anyone. Then he called Clyde Escobar, one of the
Charging Parties, who had worked for Songer on a prior job.
Rushlow asked Escobar to come to Zug Island on September 3,
with four other laborers. Escobar called charging parties Jesus
Alcorta, Sergio Garza, Eric Garza, and Rene Ramos, all of
whom were members of Local 334 and all five reported to the
jobsite on September 3.
Tony Peace and Jeff Tackett, a union business agent, met the
five at the facility’s gate. Tackett and Peace informed the five
that they could not work on the project because they were not
on the Union’s out of work list. Tackett informed Peace that if
Songer hired anyone who was not dispatched from the union
hall, the Union would file a grievance under the National Main-
tenance Agreement (NMA). This agreement is a collective-
bargaining agreement to which Songer is a signatory with a
number of unions, including the Laborer’s International Union.
The NMA was applicable to the work at the A blast furnace at
Zug Island.
The five charging parties left and the union hall dispatched
five other members who were on the out of work list. One of
those dispatched was Realius Trammell. That night Trammell
called a friend, Charging Party Michael Wilson, who was also a
Local 334 member, and told him that work was available at
Zug Island.
The next day, September 4, Wilson arrived at the project and
met Andre Laurain, one of Songer’s supervisors.5 Wilson told
Laurain that he was from the union hall. Laurain hired Wilson
and another employee and sent them to an orientation. How-
ever, after about a half-hour, Laurain informed Wilson that he
could not hire him.
Between Labor Day 2002 and January 2003, Songer hired
approximately 60 laborers for the Zug Island project. All were
dispatched by the Local 334 hiring hall except three “regular”

3 The 2000 project is the subject of a Board decision involving the
same parties, 335 NLRB 597 (2001).
4 Rushlow had no other involvement with the Zug Island project.
5 Wilson insisted at trial that he arrived at the jobsite on September
3, but I am certain he had his dates wrong and that he reported to Zug
Island on September 4. Respondent Employer could have made the
record much less confusing if it had stipulated that Wilson came to Zug
Island to seek employment during the first week of September. Tony
Peace testified that he had never seen Wilson, which I believe is true.
Initially, I wondered whether Wilson ever sought employment with
Songer. However, Wilson testified he spoke with Andre Laurain, who
Songer admits was a supervisor and its agent, and who was not called
as a witness by Songer. Thus, except for the minor discrepancy as to
the date, I credit Wilson’s testimony.
KVAERNER SONGER, INC. 1349
employees of Respondent, who were members of other unions.
Members of the Union were not required to seek employment
through the hiring hall at all times on other projects. On some
occasions in the past, the Union was aware that some of the
charging parties had obtained employment without going
through the hall and did not do anything to prevent them from
doing so.
Article XIX of the national maintenance agreement provides:
Hiring and Transfer of Craftworkers
1. The Employer agrees to hire craftworkers in any territory
where work is being performed or is to be performed in ac-
cordance with the hiring procedure existing in the territory
where the work is being performed, or is to be performed,
however, in the event the Local Union is unable to fill the re-
quest of the Employer for employees within a forty-eight (48)
hour period after such request for employees (Saturday, Sun-
days and holidays excepted), the Employer may employ
workmen from any source.
The General Counsel, however, contends that article IV of
the Local collective-bargaining agreement between Local 334
and the Detroit Chapter of the Associated General Contractors
applied to the project. Songer is not a signatory to this agree-
ment, although in a prior case Songer and the Union stipulated
that the work performed at Zug Island in 2000 was governed by
this agreement, Laborers Local 334 (Kvaerner Songer), 335
NLRB 597, 598 (2001).
Article IV of the Local agreement provides:
1. (a) Beyond the employer’s regular employees, in-
cluding laid-off, laid off and collecting unemployment
and/or transferred from another project of the same em-
ployer, the employer agrees to give the local union in the
area an opportunity to supply any additional employees.
(b) Regular employee shall be defined as one who has
been on the payroll of said employer within the immediate
past nine (9) months.
2. When requested, the Union agrees to furnish com-
petent workers upon notification to the Business Manager
or Business Agent of the Union and further, the Employer
agrees that beyond his regular employees he will give the
Local Union in the area an opportunity to supply any addi-
tional employees. The Employer retains his right of free-
dom of selection of employees from among all applicants.
Article IV requires that each employee must become and re-
main a member of the Union after the 7th calendar day of his
employment.
ANALYSIS AND CONCLUSIONS OF LAW
It is well settled that a union which enjoys the status of ex-
clusive collective-bargaining representative has an obligation to
represent employees fairly, in good faith, and without discrimi-
nation against any of them on the basis of arbitrary, irrelevant,
or invidious distinctions. Vaca v. Sipes, 386 U.S. 171 (1967).
However, so long as a union exercises its discretion in good
faith and with honesty of purpose, it is allowed a wide range of
reasonableness in the performance of its duties. Ford Motor
Co. v. Huffman, 345 U.S. 330 (1953); Air Line Pilots v.
O’Neill, 499 U.S. 65 (1991).
On the other hand, if a union favors one group of represented
employees for reasons that interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights, or reasons
that are arbitrary, or demonstrate bad faith, it violates Section
8(b)(1)(A). For example, a union may not, at least in some
circumstances, favor one group of represented employees be-
cause they have been members of the union for a longer period
of time. Teamsters Local 42 (Daly, Inc.), 281 NLRB 974
(1986), enfd. 825 F.2d 608 (lst Cir. 1987); Teamsters Local 435
(Super Valu, Inc.), 317 NLRB 617 fn. 3 (1995). A collective-
bargaining representative may not, at least in some circum-
stances, favor members of one local union over another. Read-
ing Anthracite Co., 326 NLRB 1370 (1998).
There is no question that the Union discriminated against the
charging parties. However, Local 334 did not do so in a man-
ner that would “encourage or discourage membership in any
labor organization.” Thus, the Union did not violate Section
8(b)(1)(A) or (b)(2) and Songer did not violate Section 8(a)(3)
and (1) in denying the charging parties employment.
There is nothing invidious, arbitrary or demonstrating bad
faith about giving preference to members on the out of work list
over those who are not on the list.6 This is a matter entirely
within the Union’s discretion.
At hearing, the parties argued about which collective-
bargaining agreement applied and whether or not the Union
was operating an exclusive hiring hall at Zug Island.7 A union
operating a nonexclusive hiring hall does not have a duty of fair
representation to its members with regard to the management of
the hall. Teamsters Local 460 (Superior Asphalt), 300 NLRB
441 (1990). This is so because members can obtain employ-
ment without going through the hiring hall. Carpenters Local
537 (E. I. Dupont), 303 NLRB 419 (1991).

6 Charging Party Michael Wilson was apparently on the out of work
list. However, there has been no allegation that Local 334 dispatched
employees from that list in an irregular or improper manner.
7 The General Counsel argues that Respondents are collaterally es-
topped from arguing that the Union maintained an exclusive hiring hall
by virtue of the Board’s prior decision involving the same parties at the
same worksite. However, in order for the doctrine of collateral estop-
pel to apply, the issue that has been foreclosed must have been neces-
sary to support the judgment entered in the prior proceeding, Big D
Service Co., 293 NLRB 322, 323 (1989). The Board’s and judge’s
decision that Songer maintained a nonexclusive hiring hall was not
necessary to support the judgment that the Union violated Section
8(b)(2) with regard to employee Arthur Stites, a member of a different
local, in July 2000. In fact, in the prior case, the General Counsel ar-
gued that the parties had maintained an exclusive hiring hall and the
judge found that the General Counsel had failed to establish the exis-
tence of an exclusive hiring hall arrangement. The judge and the
Board found that the Union violated Sec. 8(b)(2) despite the General
Counsel’s failure to prove the existence of an exclusive hiring hall.
Finally, there has been no showing that the contractual provisions
applicable to the 2000 work on the stove at blast furnace B were also
applicable to the work done on the stove at blast furnace A in 2002. I
find that Respondents are not collaterally estopped by the prior deci-
sion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1350
In the instant matter, it hardly matters which contract applied
because the Union and Songer established an exclusive hiring
hall by practice and operation. Teamsters Local 174 (Totem
Beverage), 226 NLRB 690 (1976). Thus, Local 334 had a duty
of fair representation to its members in its operation of the hir-
ing hall at Zug Island in the fall of 2002. However, that duty is
breached only if the Union gives preference to one member
over another on an impermissible basis, such as support for the
incumbent union leadership, Morrison-Knudsen Co. (Tenn-Tom
Constructors), 291 NLRB 250 (1988). In this case, Local 334
discriminated, but on a basis that it is not impermissible under
the Act.
SUMMARY OF CONCLUSIONS OF LAW
1. Respondent Laborers International Union, Local 334 did
not breach its duty of fair representation to the Charging Parties
by giving preference to other union members on the out of
work list in the administration of its exclusive hiring hall, and
did not violate Section 8(b)(1)(A).
2. Respondent Laborers International Union, Local 334 did
not violate Section 8(b)(2) of the Act, as alleged, by causing
Kvaerner Songer not to hire the Charging Parties.
3. Respondent Kvaerner Songer did not violate Section
8(a)(3) and (1) in refusing to hire the Charging Parties, as al-
leged.
[Recommended Order for dismissal omitted from publica-
tion.]