Local No.324, Operating Engineers

National Labor Relations Board - Board Decisions

Oct 22, 1976

226 N.L.R.B. 587 (N.L.R.B. 1976)

LOCAL NO. 324, OPERATING ENGINEERS
Local No. 324, International Union of Operating En-
gineers , AFL-CIO (Michigan Chapter, Associated
General Contractors of America , Inc.) and Melvin
Carlson. Case 30-CB-688
October 22, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, PENELLO, AND
WALTHER
On October 20, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a limited exception and a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We disagree with our dissenting colleague's' view
that Respondent's duty of fair representation did not
encompass supplying Melvin Carlson with job refer-
ral information. We find that inherent in 4 union's
duty of fair representation is an obligation to deal
fairly with an employee's request for information as
to his relative position on the out-of-work register for
purposes ofjob referral through an exclusive hiring
hall.
In Miranda Fuel Company, Inc.,' the Board defined
the scope of a union's duty of fair representation as
"the right [of employees] to be free from unfair or
irrelevant or invidious treatment . . . in matters af-
fecting their employment." 3 We agree with the Ad-
ministrative Law Judge that Melvin Carlson's efforts
to protect his seniority rights by requesting Respon-
dent's assistance in determining the names, address-
es, and telephone numbers" of individuals on either
side of his name on its out-of-work register clearly
involved a "matter affecting [his] employment." We
therefore agree with the Administrative Law Judge
that Respondent's arbitrary refusal to comply with
Carson's reasonable and manageable request for job-
referral information breached its duty of fair repre-
sentation and thereby violated Section 8(b)(1)(A) of
the-Act. ,
In Miranda Fuel Company, Inc., supra, the Board
' Respondent has requested oral argument This request is hereby denied
because the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
2 140 NLRB 181 (1962).
3Id at 185
587
quoted from an opinion of the Court of Appeals for
the District of Columbia Circuit 4 which stated, inter
alia:
Among the most important of labor standards
imposed by the Act as amended is that of fair
dealing, which is demanded of unions in their
dealings with employees. . . . The requirement
of fair dealing between a union and its members
is in a sense fiduciary in nature and arises out of
two factors. One is the degree of dependence of
the individual employee, on the union organiza-
tion; the other, a corollary of the first, is the
comprehensive power vested in the union with
respect to the individual.
We find that Carlson was completely dependent on
Respondent for the protection of his referral rights.
Business Agent Koski himself testified that Carlson
would not have been permitted to copy the names,
addresses, and telephone numbers of employees on
the out-of-work register. Thus, Respondent's' refusal
to prepare such a list deprived Carlson of the only
means whereby he could fully investigate whether or
not his referral rights were being protected.' Con-
trary to our colleague, we find that the' Union's com-
prehensive and exclusive power and authority in this
matter affecting Carlson's employment automatically
obligated it to deal fairly with Carlson's request for
job-referral information.
We agree with the Administrative Law-Judge that
the reasons given by Respondent for its refusal to
supply job-referral information are insufficient. Its
alleged interest in preserving the anonymity or priva-
cy of its members is inconsistent with its admitted
policy of allowing members to inspect the out-of-
work files. Moreover, Respondent's claim that prepa-
ration of a list of out-of-work employees would be
unduly burdensome is totally undermined by its ad-
mission that out-of-work indices containing names,
phone numbers, and layoff dates are in existence and
are in the possession of its business agents and it was
Respondent who refused to permit Carlson to make
his own list. Accordingly, we agree with the Adminis-
trative Law Judge that Respondent unjustifiably re-
fused to furnish Carlson with job-referral informa-
tion in violation of Section 8(b)(1)(A)Jof the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
4International Union of Electrical, Radio and Machine Workers, AFL-
CIO, Frigidaire Local 801 v. N L R B, N L R B v General Motors Corpora-
tion, Frigidaire Division, 307 F 2d 679, 683 (C A D C, 1962)
5 Although Carlson would have been permitted to inspect the cards in the
Respondent's out-of-work file, in the absence of a photographic memory he
could not have obtained all of the information he considered necessary to
determine his referral status
226 NLRB No. 91
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent, Local No. 324, International
Union of Operating Engineers, AFL-CIO, Escanaba,
Michigan, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
MEMBER FANNING, dissenting in part:
This case concerns a union's duty to deal' fairly
with employees it represents, the extent of that duty,
and whether a union can violate it even though it has
not acted in bad faith or from hostility. Unlike my
colleagues, I believe that duty does not extend be-
yond matters which the union controls and that, as
we have previously held, a union's duty to represent
employees fairly -protects employees from their
representative's hostility, but not from mere negli-
gence or lack of responsiveness.
Melvin Carlson, a political rival- of Union Business
Agent Dale Koski, believed he was being discrimi-
nated against in referrals from the hiring hall. In or-
der to find out if his suspicion was correct, Carlson
asked Koski where he stood on referrals. The work
records of registrants are kept on individual cards
which are placed in chronological order in a separate
file when the registrant is out of work and Koski
answered Carlson's question by showing him his rel-
ative position in the out-of-work file. Carlson did not
believe that was very accurate and, still wondering if
he was receiving his share of referrals, asked Koski to
prepare a list of the 50 names, addresses, and phone
numbers on either side of his name in the card file.
Although he, did not explain it to Koski, Carlson in-
tended to call those on the list to see whether they
were being referred when he was not. The list was
never prepared and furnished to Carlson; conversely,
Carlson gave no indication that he was willing to
make out the list himself. He did not ask for that
privilege and the matter was not litigated.
Since the list was not forthcoming, Carlson_ filed
charges and a complaint was issued alleging that the
Union had violated Section 8(b)(1)(A), both by dis-
criminating in job referrals and by not furnishing the
list. At the hearing the General Counsel noted that if
he had seen the Union's referral records, probably no
complaint would have been issued alleging discrimi-
nation in job referrals. The records showed that there
had been no discrimination against Carlson, who had
been at least as much beneficiary as victim of depar-
tures from seniority in referral. While referrals were
not always made in accordance with seniority, varia-
tions were based on other, nondiscriminatory factors.
Although the Administrative Law Judge's intuition
suggested that Carlson might well have been the vic-
tim of some subtle form of "discrimination, the evi-
dence did not support a finding that the Union had
discriminated against Carlson.
However, although Carlson had not been discrimi-
nated against, that did not dispose of whether or not
the list of 100 names which he wanted Koski to pre-
pare for him had been withheld unlawfully. The list
would not have had. much value because referrals
were not made on the basis of seniority alone, nor is
it likely that the beneficiaries, if there had been any,
of discrimination against Carlson would have been
out of work. Despite that, the Administrative Law
Judge held that because the information was relevant
to the referral system the Union could not "arbitrari-
ly" refuse to provide Carlson the list. And, he con-
cluded, the Union had acted arbitrarily because it
had not provided substantial reasons for not under-
taking the task Carlson had set for Koski.
I think that is rather farfetched. The information
Carlson wanted was never withheld from him. Koski
simply did not put it in the format Carlson wanted;
that is quite another matter. Koski's failure to pre-
pare a lengthy list, which Carlson appears to have
been unwilling to prepare for himself, is not sinister
nor even surprising. The most likely answer is that
Koski did not want to do the work because there was
little need for it, or,value, either to Carlson or to the
Union, in it.
The duty of fair representation was not developed
for application to these, housekeeping matters nor to
justify Board or court supervision of a union's- ev-
eryday affairs, the efficiency of its services, or its re-
sponsiveness to its members. A -labor organization's
duty to deal fairly with its members and employees it
represents has developed as a corollary to union
power,and authority,' and applies only to actions in
its representative capacity.' The duty does not apply
to union actions in other matters because outside
that sphere it lacks the power and authority which
trigger the duty. Similarly, furnishing Carlson with
the list he demanded is not within any duty of fair
representation because Carlson could have prepared
it himself.
Even where a labor organization does have a duty
to deal fairly with its members, it is breached only
when it deals in bad faith. "Arbitrary conduct" by
labor organizations has been condemned in those
terms, but as a characterization of unfair or invidious
action which restrains or coerces employees. A labor
organization does not restrain or coerce employees
6 Vaca v Sipes, 386 U 5 171 (1967), Steele v. Louisville & Nashville R R
Co, 323 U S. 192, JUE, Frigidaire Local 801 v N.L.R.B, 307 F 2d 679
(CAD C, 1962)
7 Miranda Fuel Company, Inc 140 NLRB 181 (1962 ), I dissented for other
reasons
LOCAL NO. 324 , OPERATING ENGINEERS 589
by a simple failure to provide clerical assistance re-
quested by employees it represents.' It is for the
Union's constituents, not the Board, to judge the
quality of its service.
I would dismiss the complaint.
III. THE UNFAIR LABOR PRACTICES
A. The Allegation of Discrimination Against Melvin
Carlson
1. Carlson's intraunion activities
8 General Truck Drivers, Chauffeurs and Helpers Union, Local No 692,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Great Western Unifreight System), 209 NLRB 446 (1974), also
see my separate concurrence
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: This proceed-
ing was heard at Escanaba, Michigan, on December 3,
1974, and April 15, 1975. The complaint, based on a charge
and amended charge filed, respectively, on April 24 and
June 12, 1974, alleges that since on or about November 26,
1973, Respondent has, in various ways, discriminated
against Melvin Carlson, the Charging Party, in the opera-
tion of its hiring hall system because of Carlson's "political
and intraunion activities," in violation of Section
8(b)(1)(A).' As a second violation, the complaint alleges
that Respondent, on or about February 13, 1974, refused
to honor Carlson's request for information pertaining to its
referral system; this conduct is also asserted to be violative
of Section 8(b)(1)(A). Respondent's answer denies the
commission of any unfair labor practices.
Upon the entire record,2 and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
At the hearing, the parties stipulated, and I find, that
Michigan Chapter, Associated General Contractors of
America, Inc. (AGC), is an organization of employers en-
gaged in the building and construction industry in the
State of Michigan; that during the; year preceding the hear-
ing, a representative period, a number of AGC's member-
employers purchased goods and materials valued in excess
of $50,000 directly from suppliers 'located outside the State
of Michigan; and that, at all times) material, AGC has been
an "employer" engaged in commerce or in an industry "af-
fecting commerce" within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE STATUS OF RESPONDENT
The answer admits, and I find, that Respondent is a
labor organization within the meaning of Section 2(5) of
the Act.
i The complaint does not specifically allege a violation of Sec 8 (b)(2).
2 Certain errors in the transcript have been duly noted and corrected.
At all times material, Respondent has operated an exclu-
sive hiring hall throughout the State of Michigan pursuant
to its bargaining agreement with the Michigan Chapter,
Associated General Contractors of America, Inc. We are
here concerned with the operation of that hiring hall in the
Upper Peninsula of Michigan. The office in charge of the
hiring hall in that area is located in Escanaba; it is run
primarily by Business Agent Dale Koski. Koski estimated
that approximately 800 members of Respondent reside in
the Upper Peninsula. Melvin Carlson, the Charging Party,
a member of Respondent, uses the hiring hall in Escanaba.
Carlson has been a member of Respondent since 1953.
In 1971, he campaigned vigorously against the then-incum-
bent administration of Respondent, headed by a business
manager named Myers. Carlson ran, unsuccessfully, as an
independent candidate for vice president of the Local
(there were four other candidates for the job). Also running
for office, against the incumbent administration, was a
slate called "Sober's Action Slate," which included Koski,
who was running for the office of auditor. In the course of
the campaign, Carlson published two newsletters attacking
the current Myers Administration, and only peripherally
attacking the Sober's slate. The latter group also upbraided
the Myers administration. In June or July 1971, Carlson
had a "heated" personal encounter with Koski about the
platform on which Koski was running. During the same
period, at a meeting conducted by Koski's slate, Carlson
passed out literature which was the subject of "hostile"
remarks made by Keith Sober, the slate's candidate for
business manager. Sober's group won the election. In April
1973, Carlson spoke against an administration proposal at
a meeting of Respondent in Detroit; the proposal was de-
feated. In July 1973, at a construction project, Carlson crit-
icized Koski, in a "rather heated"' conversation, for failing
to enforce the bargaining agreement, and also told Sober
that the agreement was in violation of the International
constitution. Sober called Carlson a "smart ass lawyer."
2. The operation of the hiring hall; the alleged
discrimination
In relevant part, the complaint, which issued on Novem-
ber 4, 1974, alleges that, since "on or about November 26,
1973, and continuing at all times since then, Respondent
has restrained and coerced and has discriminated against
Charging Party in the operation of its, hiring hall system, all
because of Charging Party's engaging in political and intra-
union activities."
When the case came on for hearing on December 3,
1974, General Counsel had not had an opportunity to in-
vestigate the foregoing allegation by examining the most
probative evidence available-the hiring hall records. Re-
spondent refused to honor a subpoena directing Koski to
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produce those records at the December 4 hearing; General
Counsel thereafter obtained district court enforcement of
the subpena; and Respondent complied with the order of
the district court.
When the hearing resumed on April 15, 1975, General
Counsel announced that he had examined the hiring hall
records and that "consequently, General Counsel is less
convinced that there has been a discrimination situation in
regard to Mr. Carlson .... Now, in looking at the total
picture in all, General Counsel is somewhat questionable
or doubtful whether, given all information that we now
have, General Counsel would have issued a complaint in
the first place ...." Nonetheless, because of certain rec-
ords to be discussed below, General Counsel chose to pro-
ceed on this portion of the complaint. In his brief, however,
General Counsel, while suggesting that there might be a
basis for finding a violation, asks for no monetary remedy
for Carlson, "due to the circumstances peculiar to this case,
inasmuch as it would be very nearly impossible to de-
termine ' which jobs Carlson and other members would
have been entitled to."
The only hiring hall records put into evidence by Gener-
al Counsel were 250 "Work Record" cards, representing a
portion of such records examined by him.3 A "Work Rec-
ord" card is maintained for each user of the hiring hall; the
front of the card (which is not in evidence for the 250 cards
offered) gives relevant data pertaining to the employee,
such as name, address, and the work functions he is capa-
ble of performing; the other side contains informal hand-
written notations, made by either a_ business agent or a
secretary, showing referrals of the employee by the hall;
attempts to refer and, often, an employee's reason for re-
fusing a referral; layoff dates; notes that an employee had
checked in at the hall; and miscellaneous data.
The hall does not issue seniority or out-of-work lists.
Koski testified that, when employees register as "out of
work," either by coming to the hall or phoning in, their
cards are transferred to an out-of-work file box, and their
names, telephone numbers, and layoff dates entered on se-
parators maintained in the box on a monthly basis; as they
are successfully referred to work, the referral is entered on
the card, their names are lined out on the monthly separa-
tor, and their cards removed from the file box and placed
in the alphabetized master file. Thus, the most practical
way to ascertain standing of a certain employee on the
out-of-work register at a particular time is to count the
total number of names appearing on the monthly separa-
tors for the months preceding that of the registration date
of the employee whose standing is being ascertained. After
some time has elapsed, and names have been lined out as a
result of referrals, it appears that it would be complicated
to reconstruct a seniority list for any given date in the past.
Koski further testified that attempts to refer a registrant
are made by telephone, and that "normally" the hall will
make two, such attempts, but not always, since a "referral
generally has to be made within the same day." If a mem-
3 Although it was not stated how many cards were not proffered, Koski's
"guess" that Respondent had 800 members in the Upper Peninsula suggests
that the cards in evidence represent less than a third of the membership
using the hall.
her refuses a referral, he does not forfeit his standing on
the out-of-work register.4
Of the 250 cards in evidence, as I understand the record,
the parties agreed that General Counsel would stake his
case on only the inferences arising from 21 of the cards, as
to which he interrogated Koski, and that Respondent
would not be required to explain or otherwise be held ac-
countable for inferences which might be drawn from cards
not so examined into .5 Thus, the transcript contains the
following, somewhat garbled, statement by counsel for Re-
spondent, made after General Counsel had moved the ad-
mission of the cards, and not demurred to by General
Counsel:
Might I make this statement for the record? Pursuant
to an off-the-record discussion, it is my understanding
that counsel for the General Counsel is not claiming
that all 250 cards support discrimination charges, but
rather that counsel has questions regarding certain of
those cards as exhibits which may support or not sup-
port a discrimination charge. It's my understanding
that counsel will identify those cards among the 250
now offered by way of examination of Mr. Koski and
that the Respondent need not be concerned in the
writing of a brief or any further proceedings where
any of those cards introduced, as exhibits which are
notified as relevant to the charge to the questioning by
counsel for the General Counsel of Mr. Koski [SIC]6
With that understanding, I will both stipulate to the
authenticity of the copies tendered and as to their ad-
missibility.
Subsequently, I asked General Counsel to confirm my un-
derstanding that "the cards other than the ones which you
will specifically bring to my attention are offered solely as
some sort of contextual evidence"; he replied in the affir-
mative, adding that he felt "the record should reflect the
entire situation, the work situation during the time period
involved here and in order that the full picture can be elic-
ited and so we did want the whole context of the situation
to be reflected in the record." Clearly, the 250 cards, being
only a portion of the total number on file, do not reflect the
"entire" work situation during the time period involved. I
conclude from the foregoing statements that, in attempting
to prove discrimination against Carlson, General Counsel
agreed to rely only on the 21 cards as to which Koski was
thereafter interrogated,' and that the other cards are in
evidence as "contextual" background which fills out the
4 Prior to July 1974, referrals were made by Koski and another business
agent , Bernard Bodette , who died in that month. In September 1974. his
son, William Bodette , was appointed business agent, and he and Koski were
thereafter in charge of making referrals
5 By specifying those cards which , in his view , militated against a finding
of discrimination, however, as later discussed , I assume that General Coun-
sel intended to afford Respondent the right to rely on the remainder of the
cards for succor
6 Probably should read "further proceedings with any of those cards intro-
duced as exhibits which are not identified as relevant to the charge by the
questioning by counsel for General Counsel of Mr Koski."
7 The "16 plus the other 5 I've mentioned that would arguably support a
discrimination; this discrimination allegation in the complaint" were speci-
fied by General Counsel as G. C Exhs. 140, 208, 210, 245, and 260, pertain-
ing to the period November 27, 1973-July 7, 1974, and G C Exhs 40, 55,
69, 78, 88, 89, 90, 93, 131, 144, 155, 173, 174, 201, 228, and 242, pertaining to
the period subsequent to October 7, 1974
LOCAL NO. 324, OPERATING ENGINEERS
picture, which may not be used against Respondent, and
which tends to militate against a finding of discrimination,
as General Counsel candidly conceded.
It should first be noted that the bargaining agreement
itself prescribes no criteria for referral from the hiring hall
other than that selection "shall be on a non-discriminatory
basis." While the relevant provision refers to "mutually
agreeable standards established shall be on anon-discrimi-
natory basis," there is no evidence that Respondent and
the contracting employer association have ever established
such standards. At the hearing held in December 1974,
however, before Respondent was required to produce its
records, Koski stated that the criterion for referral (other
than work qualification) was seniority on the register. The
latter was determined by the "earliest lay-off date"-when
an employer called for a referral, "[w]e then start looking
through the cards for who is qualified and then the earliest
lay-off date is the one that's called." After the records were
produced, however, and it was determined that between
November 26, 1973, and February 5, 1975, some 21 em-
ployees with "lay-off dates" at least nominally inferior to
Carlson's were called for jobs in preference to Carlson,
Koski explained these apparent deviations essentially by
citing factors which departed from a strict "first-in-first-
out" procedure.
Thus, if an employee's card showed that he had worked
a "short job" before his last layoff, that would not preju-
dice the standing on the register which he held prior to
taking the "short job." 8 A "shortjob," according to Koski,
is something like 3 weeks, but it might range above that,
perhaps by a matter of additional weeks; gauging its
"shortness" might be influenced by the fact that the em-
ployee had not had much employment through the hiring
hall in the preceding year or so. Again, Koski's decision to
refer out of seniority might be affected by an employee's
need for "insurance hours" 9 or for sufficient work to quali-
fy him for unemployment insurance benefits. Furthermore,
said Koski, starting "from the top" in making referrals is
often disregarded when an employee has evidenced in the
past that he does not desire short jobs or only 'wants to
work in a particular area. In addition, Koski will, on his
own, and regardless of seniority, refer an applicant to an
anticipated "short" job if the job is in the vicinity in which
the employee resides.10 In two instances, referrals were
made on the basis of the employees' physical condition.
I set out verbatim below Carlson's "Work Record"
(Resp. Exh. 1) in pertinent part, beginning with 1971, when
he first ran for office:
Laid off 10/15/71 . . . Didn't notify Hall.
White Card (Pipefitters) 10/18/71 . . . Didn't noti-
fy Hall. (DBK)
Laid off 3/1/72
Called for 11 Terre Haute Empire Mine 4/7/72
8
Koski explained the reason for this practice as being that if employees
suffer forfeitures for taking shortjobs , they will refuse to take them
9 Koski testified that to maintain eligibility under the Union's insurance
program an employee must work specified amounts of time quarterly, semi-
annually, or yearly
10
Charging Party Carlson was well aware of this practice and, in fact, at
the hearing, predicated his complaint in part on the fact that he thought he
was not being similarly favored.
591
Laid off 6/30/72
Called for 61-B Hoover 7/17/72
Came in 7/17/72-said he would wait for Glad-
stone job
Called for Terre Haute Republic-Refused for
above reason
Called 10/2/72-Cornell-Leech (Tilden)
Requested lay-off 7/13/73
Called for U.P. Steel 8/13/73 No ans.
Called for Universal Tank-Nahma-8/16/73-
refused-Wife ill and must be with her and job isn't
long enough! !
Called for P & H truck crane-Champion-Tilden-
No ans. 8/17/73
A.B.I.-Empire-American Crawler 8/30/73
Requested lay-off 11/26/73
Called for piledriving rig-Ontonagon paper mill-
not home will call back per housemaid-never did call
back 3/1/74
Ck'd at Hall 3/26/74
Called for A & P Pump Crete Refused 4/22/74
Ck'd at Hall 5/2/74
Called for Ontonagon Paper Mill 5/6/74-
piledriving rig i"No"
Called for Brown-Minn. Tank (Tilden)-5/20/74
4100 Manitowoc "No"
Ck'd at Hall 5/29/74
Ck'd at Hall 6/18/74
Called for McKee (Empire) 6/24/74 (80 ton Mobile
Crane) -"No.'"
Called for Adolphson and Peterson-Amer. crawler
crane-Marquette Power House-Refused 6/27/74
Sent on Unit Crane-Proksch-Esky-7/11/74
Laid off 10/7/74
Ck'd at Hall! 11/7/74
Ck'd at Had 11/18/74
It will be noted that, after Carlson's political bid in 1971,
the Respondent made four attempts in 1972 to refer him,
two of which offers he accepted, and four in August 1973,
1 month after he had requested layoff from the Cornell-
Leech job to which Respondent had referred him in Octo-
ber 1972, and also close on the heels of the two anti-admin-
istration incidents in April and July 1973; he accepted the
referral to A.B.I. Empire and worked until November
1973.
Carlson testified that he "requested layoff" on Novem-
ber 26, 1973, because the work situation demanded that
one employee be laid off, and he agreed to accept the lay-
off. He thereafter notified the hiring hall of the layoff,
probably on the following day.12
ii "Called for" means that the Respondent attempted to contact the em-
ployee for referral to the indicated job Normally, when such a notation is
not followed by some entry such as "refused" or "no answer," it means that
the employee accepted the referral
ii There is some conflict in the record as to when the notification was
given Carlson testified that his habit was to give such notification immedi-
ately after layoff Koski testified that he doubted that Carlson notified the
hall until February 13, 1974, when he came to the hall to ascertain his
relative seniority position on the out-of-work register. On that day, Koski
"stuck his thumb" in the file box to show Carlson his position in the out-of-
work binder, which suggests that Carlson's card was contained in that bind-
Continued
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 16, 1973, Carlson went to work out of
trade-as a pipefitter-for Grunau Pipefitting Company at
the Empire Mine project. While he worked that job, until
July 11, 1974 , he spoke frequently on the jobsite to Busi-
ness Agent Bodette (considered a "pretty good friend" by
Carlson) about the possibility of being referred from the
hall as an operating engineer.
The first such call he received from the hall came on
March 1, 1974, some 3 months after his November 26,
1973, layoff . Carlson was not at home when the call came
in. While Carlson testified that he attempted to return the
call from Bodette (taken not by a "housemaid," but by his
ill wife 's companion), he was unable to contact Bodette
that evening . He did not try to contact Bodette again on
the following workday. The offer was for a job in Ontona-
gon, about 180 miles from his hometown of Gladstone.13
Carlson turned down the next job, for "A & P Pump
Crete," offered to him by Bodette on April 22, 1974, be-
cause the latter told him the job would last only 1 or 2
days. Carlson stated that he refused the job because he
believed that taking it would send him to the bottom of the
out-of-work roster . Carlson's testimony with respect to this
and other referrals discloses what the remainder of the rec-
ord indicates is a misunderstanding of the referral sys-
tem-a belief that taking short jobs would cause him to
sacrifice his standing on the out-of-work list.
On April 24 , Carlson filed - the discrimination charge
presently under consideration. On May 6, May 20, and
June 24 and 27, 1974, he was called for jobs, all of which he
refused on the ground that their distances (at least 70 miles
and more) from his home were too great and his belief that
he had then achieved sufficient seniorit4y on the roster to be
referred to a job closer to his home.l On July 11, 1974,
Respondent referred Carlson to a job in Escanaba , 7 miles
from Gladstone . He accepted the job and was laid off from
it on October 7, 1974. Carlson promptly reported to the
hall. Thereafter, and as of the last date of hearing on April
15, 1975 , Respondent did not , to Carlson's knowledge, re-
fer him to any jobs. Whether it attempted to do so will be
discussed infra.
As set forth above, General Counsel stated at the hear-
mg that he perceived two potential periods of discrimina-
tion . The first would be from his requested layoff from the
A.B.I. Empire job, until March 1, 1974 (and perhaps there-
after), when Carlson received a call from the hiring hall to
er, meaning that he must have registered as being out of work at some prior
time . On the other hand , Carlson's testimony that when he asked Koski
about his standing , "we both agreed more or less that [his layoff date] was
on November 26" might indicate either that his card was in the register
and they were simply trying to ascertain which part it could be found in, or
that Carlson had not in fact registered for layoff prior to February 1974 At
any rate , as discussed below , it is clear that beginning in late 1973 and
thereafter , Business Agent Bernard Bodette was well aware that Carlson was
not working in the trade
13 There is no evidence that Carlson knew at the time where the job was
located.
14 It was Carlson 's belief that three construction jobs requiring the use of
operating engineers were then , or about to be, in progress in the Gladstone
area . The records , however, indicate that only a few such jobs became avail-
able on these project sites beginning in the summer of 1974 General Coun-
sel did not question Koski about most of these referrals, they occurred, in
large part , at a tune when Carlson had already (in July 1974) been assigned
to a job in the Gladstone area
work at the Ontonagon paper mill ; the second would be
after Carlson's layoff from the Escanaba job on October 7,
1974. As indicated, the parties set forth at the hearing their
understanding that General Counsel would rely on only 5
referral cards of other employees during the first period
and 16 cards during the second period as possible predi-
cates for inferring discrimination against Carlson ; conse-
quently, I consider myself bound to ignore the remaining
cards, except insofar as they give rise to inferences support-
ing Respondent's defense.
The first period of nonreferral: After his layoff on Novem-
ber 27 , 1973, Carlson received no referrals from the hall for
3 months, until March 1, 1974. My review of the 250 cards
indicates, however, that the March 1 referral to Carlson
(and, to a lesser extent, the next referral of April 22, 1974)
constituted, at least on paper, and based on a rule of strict
seniority , favoritism toward Carlson . Thus, the records
show that the March 1 referral constituted a preference
over 62 hiring .hall users who had layoff dates preceding
November 26, 1973, and who received no referrals until
after March 1 , 1974 . 15 In addition , the next referral to Carl-
son, on April 22, 1974 , prior' to his filing a charge in this
case, technically preferred him over 43 employees who,
strictly on the basis of seniority stemming from the, last
layoff date, had a superior claim.16
Discrimination , however, is hardly ever blatant. There
clearly exists the possibility that the referrals made to Carl-
son in 1974 were subtle , token attempts to give an appear-
ance of fairness . Carlson testified that Business Agent Bo-
dette told him that the April 22, ' 1974, referral was only a
2-day job . On the other hand , there is nothing in the record
to indicate that the attempted March 1 referral was to be
similarly limited, and as to the four referrals which Carlson
rejected in May and June (made after , it should be noted,
his charge was filed), his primary reason for refusing was
that the jobs were unacceptably distant from his home base
(his mistaken notion that acceptance would cause a forfei-
ture of his seniority on the register also may have entered
into these refusals).
The evidence of a preference to Carlson , which , as Gen-
eral Counsel candidly stated , diminished the prospect of
finding discrimination , was countervailed to some extent
by evidence of five employees (G.C. Exhs. 140, 208, 210,
245, 260) whose last layoff date occurred after November
26, 1973, but who received referrals prior to March 1, 1974.
General Counsel questioned Koski about these deviations
from a "first-in-first-out" standard. Koski appeared, at
best, to be attempting to reconstruct what must have hap-
pened, rather than recalling what the reasons for these re-
ferrals had in fact been . He explained these referrals as
representing three employees who had worked "short jobs"
leading to their post-November 26 layoffs, which did not
require a forfeiture of their previous standing on the out-
of-work list, and two employees who had only had a limit-
1s G C Exhs. 25---27, 34, 35, 42, 43, 49, 51, 52, 55, 57, 61, 62, 70, 74, 75,
80, 81, 84, 87, 90, 92, 94, 95, 99, 103, 105, 106, 111, 115, 125, 127, 128, 174-
-177, 179, 183, 184, 186, 193, 197, 209, 218, 222--224, 227, 228, 230--232,
234, 235, 237, 240, 251, 254, 257, 259
16 G.C Exhs 25, 26, 42, 51, 52, 55, 57, 62, 70, 75, 80, 81, 84, 87, 90, 92, 99,
103, 105, 111, 125, 127, 128, 174, 177, 183, 184, 186, 197, 218, 222, 223, 227,
228, 231, 232, 234, 237, 240, 251, 254, 257, 259
LOCAL NO. 324, OPERATING ENGINEERS
ed amount of work in 1973 17 and needed additional hours
of work for both union insurance coverage and unemploy-
ment insurance qualification.
The cards seem to support Koski's explanations of the
exceptions made for these five employees. Looking at
Carlson's card, it shows that he worked a total of nearly
9-1/2 months, by referral from the hall, in 1973. In addi-
tion, although Koski seemed to testify that he had not
known of Carlson's work status until at least February
1974, Carlson testified that Business Agent Bodette knew
that, beginning December 16, 1973, Carlson was working
out of trade as a pipefitter.18 Accordingly, insofar as it
might be argued that Respondent failed to bend the senior-
ity principle in Carlson's behalf as it did for some of the
five employees who had had little employment, as dis-
cussed above, there would have been no apparent reason
for doing so. Similarly, insofar as it might be contended
that Carlson did not receive the benefit of the "short job"
exception 19 for maintaining a prior layoff date as his se-
niority date, his work record shows that he had worked
nearly 3 months at the job from which he laid off on No-
vember 26, 1973.
It should also be pointed out that these five referrals
constituted a preference, based on strict priority dates, not
only over Carlson but also over many other employees who
had been laid off prior to the layoff dates of these five
employees and did not receive referrals until after the five
employees.
Based solely on the five cards proffered by General
Counsel to show discrimination during the 1973-74 season,
to which, as indicated, I feel obliged to limit my consider-
ation, I have no basis for inferring discrimination against
Carlson because of, in the words of the complaint, his "po-
litical and intra-union activities." I note that after those
activities began in the summer of 1971, and through No-
vember 26, 1973, Carlson received eight attempted referrals
from the hall; he accepted three of the jobs, for a total of
about 15 months' work. He was in fact preferred over 62
employees, on a straight seniority basis, for the March 1,
1974, attempted referral, and over 43 employees for the
April 22 referral. In these circumstances, and on the basis
of the limited data for consideration at my disposal, I find
it difficult to conclude that Carlson was discriminated
against during the period from November 26, 1973, to July
11, 1974, when he was offered, and accepted, a job in Esca-
naba.
The second period of nonreferral: After Carlson had
worked 3 months at the Escanaba job, and was laid off on
October 7, 1974, he had obtained no work as a result of
referrals from the hall as of April 15, 1975, the last date of
the hearing.20 Initially, consideration of whether Carlson
17
One of these was Noyes, whose card (G C Exh. 245) does not include
entries prior to October 24, 1973, which apparently appeared on an earlier
card for Noyes not put into evidence.
18 Carlson testified that his compensation as a pipefitter was about the
same as that accruing to an operating engineer, and he had other "fringe
benefits" while so employed,
19 While Koski first testified that generally a "short job" would be 3
weeks, he expanded that definition later on, including one 7-week job as a
"short job" because of the particular employee's prior lack of gainful em-
ployment
593
was the victim of discrimination during this period is limit-
ed by the fact that the records in evidence were copied by
counsel for the General Counsel on February 5, 1975;
there is no evidence in the. record as to the number of
referrals, if any, made after that date, and I therefore can-
not assume that any were made. I am, of course, further
limited by the agreement of counsel that only the referrals
made after October 7 to 16 employees about which Koski
was examined, could be used against Respondent in evalu-
ating the charge of discrimination.
Koski explained the preference of the 16 employees, all
of whose last layoff dates followed Carlson's October 7
date,21 as follows: one job involved heavy work, and the
employee -referred was young and strapping (Carlson ap-
peared to be neither); six were cases in which the layoff
subsequent to Carlson's was from.a "short job" which did
not cause forfeiture of the six employees' prior layoff se-
niority; three were situations in which the assigned job was
of short duration and/or at a distance which, according to
Koski's experience, most employees would not travel for, a
few days work; three involved cases in which the employee
had only had a small amount of work in the past year;22
the reasons for one such referral were that the employee
had only worked a short period in the preceding year and
was a "severe diabetic" who needed special attention; one
employee had been working out of a trade (as a pipefitter),
and his time spent doing so did not cause a forfeiture of his
original layoff date; one such referral (on November 6,
1974) was explained as based on the fact that the employee
was a "heavy equipment mechanic,"-presumably a rare
commodity, and also that he had not had much work since
August?
Some of ^ these explanations are convincing; a few, such
as Dwa's case, raise doubts in my mind as to their reliabili-
ty?a On the other hand, as General Counsel pointed out at
the hearing, and as the records show, there are 31 employ-
ees with layoff dates earlier than Carlson's (5 in October,
20 Koski testified, however , that Respondent twice called Carlson on Jan-
uary 20, 1975, for a job in Kingsford, Michigan, but could not contact him
These attempts do not appear on the copy of Carlson's workcard in evi-
dence , since that copy was produced and entered in evidence on December
3, 1974, thus predating the alleged calls. Counsel for Respondent repre-
sented that Carlson's actual card shows the attempted referral , and Carlson,
of course , was in no position to deny that such calls had been made
2i G C Exhs 40, 55, 69, 78, 88-90, 93, 131,' 144, 155, 173, 174, 201, 228,
242
22 As to one of these, Groleau, Koski testified that he had no employment
between October 1973 and September 1974 Since Groleau's current card
(G C Exh 89) shows only his employment experience beginning September
30, 1974 , and since Groleau's prior card was not introduced , there is no way
toAuestion the validity of Koski's testimony in the respect
On this latter point, the card of this employee, Dwa, shows quite the
contrary- he was laid off on August 2, worked from August 19 , to September
21, and from September 25 to October 6, and apparently worked from
shortly thereafter until October 17 (G C Exh. 131). Prior to August 2, Dwa
had worked for over 6 months in 1974 Compared to the work,expenence of
many other employees disclosed by the cards, Dwa had enjoyed a prosper-
ous year But the first reason, given by Koski, that Dwa was a "heavy equip-
ment mechanic ," impliedly an unusual skill, is not controverted by other
evidence
u In examining the other records of attempted referrals after October 7,
1974, certain other cards leg, G.C. Exhs 65, 83, 89, 123, 145, 154) also
suggest unwarranted preferences , either in terms of strict seniority or in
Koski's terms of doling out the work 'io the most needy, regardless of senior-
ity. Since, however, counsel have agreed that 1 am not to rely on records
about which Koski was not questioned, I shall disregard these cards.
-594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12 in September, 7 in August, 3 in July, and 4 at earlier
times) and many others with layoff dates relatively close to
Carlson's (24 laid. off by October 31, and 26 more laid off
by November 15) who, as of February 5, 1975, had re-
ceived no referrals.
General Counsel argues,that if I were to determine that
Koski's explanation of these. 16 cards (and the 5 examined
relative to ,the period between November 26, 1973-July 141,
1974) was spunous,`I could properly conclude that Carlson
was the victim of discrimination. For this -proposition, he
cites International. Union of Operating Engineers, Local 406,
AFL-CIO •(New Orleans Chapter, Associated General Con-
tractors of America, Inc.), 189 NLRB 255 (1971). In that
case, the Administrative Law Judge, whose decision was
adopted by the Board, did hold that a finding of discrimi-
nation against a registrant-because of his political activities
was not "precluded because there were other names on the
out-of-work list with earlier registration dates than
Dufour's. ,Manifestly, discrimination against these other
registrants was-neither charged nor litigated" (189 NLRB
at 265). The decision contains no other details about the
number or circumstances of these "other names"; it does,
however, indicate factual distinctions between the opera-
tion of that hiring hall and this one. I note, however, that in
Local Union No. 181, International Union of Operating Engi-
neers, AFL-CIO (Nicholson Construction Company), 148
NLRB 750 (1964). the Trial Examiner, also affirmed by the
Board, appeared to opt for a contrary thesis-that the exis-
tence of- other persons discriminated against gave rise to an
inference that the Charging Party had not been specifically
discriminated against; and placed a burden on the General
Counsel to show that the other apparent discriminatees
were of a similar stripe with the alleged discriminatee:
"Any unfairness which may have resulted from the manner
in which the [hiring hall] was operated was apparently felt
not alone by the supporters of Williams, but also by others
who were not shown to have supported Williams or op-
posed the candidacy of Watkins. Indeed, that system ap-
parently operated in Meeks' favor at times and, indeed,
perhaps even on August 19, in that he was called in prefer-
ence to a few crane operators who were on the out-of-work
list longer than he was." (148 NLRB at 756; emphasis sup-
plied.)
As discussed, the record shows that for the two periods
involved here, the 21 referrals examined into worked a dis-
crimination, on a straight seniority basis, not only against
Carlson but against many other applicants. In such circum-
stances, even if I were to discredit Koski. (which, on the
limited record before me and in the absence of contradic-
tion of Koski's testimony, I do not), I would have consider-
able difficulty in finding support for the complaint allega-
tion that Carlson was discriminated against because of his
"political and intra-union activities." The fact that Koski
might have improperly preferred 21 employees, thereby ef-
fecting a general discrimination against so many others,
does not in my view afford a reasonable foundation for
'inferring that the basis for a single one of those many other
discriminations was his "political and -intra-union activi-
ties", Furthermore, in the first period considered, as shown
above,, in March and April 1974, Carlson was preferred
over a large number of employees who, again on- the basis
of strict seniority, might have been entitled to the jobs he
was offered. The same is true of the second period, based
on the asserted effort to refer Carlson to the Kingsford job
on January 20, 1975.
In addition, I take- cognizance of the fact that Carlson
had consistently refused the referrals made to him in May
and June 1974 on the ground-that he-desired work close to
home. He refused work at the Ontonagon paper mill, the
Tilden mine, the Empire mine, and the Marquette power
house. The records show that a great many of the referrals
made between October 7, 1974, and February 5, 1975, were
to theseprojects or to similarly distant locations. After this
experience, it would not be unreasonable to decide that it
would be fruitless to attempt to refer Carlson to such loca-
tions.
In all, considering the Respondent's referrals to Carlson
after his 1971 election efforts, which'kept him working fair-
ly steadily until November -1973; the limited and confusing
nature .of the evidence which I am authorized to consider
as evidence of discrimination here; the not-implausible
character of Koski's explanation of most of the 21 cards;
and the fact that the statistical discrimination, if any,
would encompass not only Carlson but a substantial num-
ber of other employees, I feel constrained to conclude that
General Counsel has not shown, by a preponderance of the
evidence, that Carlson was discriminated against because
of his political dissidence. I am reluctant to so conclude
because I strongly intuit that Carlson was, in fact, the vic-
tim of`discrimination so,motivated; intuition, however, is
no substitute for hard evidence. Perhaps if all the cards
were eligible for consideration; if Koski was interrogated
about them all, and if a computer was set to work on the
issue, a case could be made out; but that is not the posture
of this proceeding.
The, main thrust of General Counsel's brief is devoted
not to the foregoing issue, but to a contention that the
hiring hall is operated in such a random fashion, without
any sort of uniform standards or guidelines, that its opera-
tion necessarily constitutes unfair, invidious, and irrelevant
conduct within the meaning of Miranda Fuel, Inc., 140
NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A.
2, 1963). General Counsel asks me to so conclude, and to
order Respondent, inter alia, to "formulate reasonable and
logical standards for the operation of its referral system,
post those, standards in its union hall so that its members
can be apprised as to how the system operates, and abide
by those standards."
The complaint, however, does not raise the broad and
important question of the requirement for standards in the
operation of a hiring hall; it alleges only that Carlson was
discriminated against for his "political and intra-union ac-
tivities." The case was not heard on the basis of whether,
and what, standards must be employed in the operation of
a hiring hall; General Counsel did not move to amend the
complaint to include such an issue; and Respondent's brief
does not touch on it. Because of the significance of the
proposed finding, and the likelihood that the case would
have been heard quite differently on such a theory, I do
not believe that the issue is properly before me for decision.
I. U.O.E., Local 406, AFL-CIO (New Orleans Chapter,
AGC), supra, 189 NLRB at 264.
LOCAL NO. 324, OPERATING ENGINEERS
This is not to say that the issue should not be pursued in
another forum. As General Counsel accurately points out,
the factors on which Respondent relies in making referrals
are "completely devoid of boundaries, parameters, guide-
lines or definitions." As now run by Koski, the hiring hall,
whether benevolently operated or not, is his fiefdom. Gen-
eral Counsel notes, with only slight exaggeration, that
"[a]ny unemployed member could doubtless be referred for
a particular job ahead of any other member, and Respon-
dent would be able to justify it on, the basis of some combi-
nation" of factors. Such near-absolute power vested in a
union- official is plainly a potentially dangerous thing.21
It may in fact be none of the Board's business how a
hiring hall is run, as long as it-is not shown to be operated
discriminatorily. See Local 357 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365
U.S. 667, 676 (1961). And I appreciate the problems inher-
ent in operating a large hiring hall. It would seem a waste
of resources, for example, to require a union to plow rigidly
through a long list of registrants for every referral, calling
each registrant in turn by seniority, even though the busi-
ness agent knows full well that the first 50 registrants, for
reasons of their own,, willrefuse a -given job. It further may
be a valid consideration in- determining order of hire for a
hiring hall to choose among registrants on the basis of an
equitable distribution of work. Cf. N.L.R.B. v. News Syndi-
cate Company 365 U.S. 695. 702 (1961); International Union
of Operating Engineers, Local 18, AFL-CIO (Ohio Contrac-
tors Association), 204 NLRB 681 (1973), and cases cited
therein Z6 But there inheres an enormous potential for
abuse in a hiring hall which maintains no published pnori-
ty, lists, which operates with no written standards for refer-
ral, and in which the livelihood of men has been confined
to the unbridled discretion of a few union officials. There
are many records here, not examined into at hearing,
which facially suggest discrimination or preference and
which beg for explanation. Why, for example, were there a
number of employees on the register with layoff dates as
early as June, July, August, and September, 1974,', who
were apparently available but who had received no refer-
rals as of February 5, 1975? Why was it, as Koski testified,
25 As the Trial Examiner noted in Local Union No 181, L U 0 E, AFL-
CIO, supra, 148 NLRB at 753, "This referral procedure also makes possible
the exercise of favoritism or discrimination without easy detection "
26 In I'U 0 E, Local 18, 204 NLRB at 681, the Board declared a broad
rule that "[w]hen a union prevents an employee from being hired [the
Board] will infer-or, if you please, adopt a presumption that-the effect of
its action is to encourage union membership on the part of all employees
who have perceived that exercise of power But the inference may be over-
come, where the facts show that the union action was necessary to the
effective performance of its function of representing its constituency " Ev-
ery time one employee is-referred from a union hiring hall, of course, it
effectively means that the Union has "prevent[ed] an[otherl employee from
being hired " But it seems unlikely that the Board intended that, in order to
justify each referral, the Union must demonstrate that "the union action
was necessary to the effective performance of its function of representing its
constituency." More apposite. perhaps, is the Miranda requirement that a
union refrain from "unfair or irrelevant or invidious treatment," 140 NLRB
181, 185 (1962), or the Board's holding in Marquette Cement Manufacturing
Company, 213 NLRB 182 (1974), that the Union "acted in furtherance of a
valid objective for the benefit of the membership as a whole-" See General
Truck Drivers, Local 315, International Brotherhood of Teamsters (Rhodes &
Jamieson, Ltd), 217 NLRB 616 (1975)
595
that employee Groleau had received no work for 12
months? There may be valid answers to these and many
other questions which the records raise; they should be
sought. While I would suppose that Section 10(b) would
lay to rest the possibility of further Board proceedings as to
these particular records, the broader question of whether a
hiring hall may be operated m,this fashion should be pur-
-sued.
B. The Refusal of Information to Carlson, on February 13,
1974
The complaint alleges that on February 13, 1974, Re-
spondent violated Section 8(b)(1)(A) by refusing to comply
with Carlson's request for certain information pertaining to
the referral system.
According to Carlson, on February 13; he asked Koski
in the hiring hall for his standing on the out-of-work list.
Koski "stuck his thumb" in the center of the file containing
the work records and told Carlson "Here's where you stand
in the file." Carlson elicited a numerical standing from Ko-
ski. Carlson was not sure of the number told to, him: "I was
thinking of the number 62, but it could have been 50 to
62."
Carlson then asked Koski "if he would give me a list
of-the number of people, as I recall it, it was 50-people
ahead of me and behind. me on the list." He told Koski he
wanted the "name and address and telephone number" of
the 100 people involved. According to Carlson, Koski told
him that he would mail him the information, but never did
so.
Carlson testified that he wanted the information "to
prove I was being prejudiced against." He suspected; that
he was not being given "an accurate count" because of the
summary manner in which Koski had ascertained his
standing. Carlson undoubtedly believed on February 13,
1974, having received no referrals since-his November 26,
1973, layoff, that he was the object of discrimination. Carl-
son testified that he would have used the information he
had requested to telephone the employees, or some of
them, to determine whether, in fact, they were workin'g.27
Koski was unclear about why he failed to comply with
Carlson's request. At the December 3, 1974, hearing, he
said, "It's on advice of counsel. Maybe he can explain
that." He also alluded, however, to the fact that "a few"
registrants have unlisted numbers and to a belief held in
February 1974 that "a lot of the members do not want
phone numbers or any information given-out." Thereafter,
at the April 15, 1975, hearing, Koski testified that, in the
interim, he had asked , "possibly 20 or 25" members how
they felt about disclosure of the information, and they were
all opposed; he could only name three such persons, how-
ever. At the latter hearing, he also apparently announced a
policy that registrants could look at all the referral cards,
27 Koski testified that Carlson asked only for information as to the 20
applicants ahead of him on the register, and that he only told Carlson he
would "check on the thing " I tend to think Carlson's testimony is,more
reliable on the first conflict As to the second, I doubt that Koski would
have simply agreed to mail such information to Carlson, I imagine that both
accounts were partially accurate That is, Koski said he would check it out
and, if it was deemed appropriate, he would send the information to Carl-
son
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but not copy down the names, addresses,- or telephone
numbers.
General Counsel advances the proposition that-"the'stat-
utorily imposed duty of fair representation requires, at a
very minimum, that whenever a member has reasonable
cause- to believe he is being discriminated against by a
union operating an exclusive hiring hall and requests refer-
ral information within the possession of the Union relevant
to the determination of whether or not he is, in fact, being
treated fairly, the Union is required to furnish that infor-
mation, and its failure to do so constitutes a violation of
Section 8(b)(1)(A) of the Act."
At the threshold is a question of the nature of the issue
before me. The complaint alleges that the violation oc-
curred when Carlson' "requested that Respondent furnish
him with certain information pertaining to its referral sys-
tem .... but Respondent did then fail and refuse, and
has at all times failed and refused, to furnish the requested
information." Carlson testified that, on February 13, he
asked Koski "if he would give me a list" of the 100 people
requested. As discussed, it-seems probable that Koski indi-
cated-uncertainty about the matter, but said he would send
the information to Carlson if he concluded that,it=was ap-
propriate to do so.
At the hearing, as noted, Respondent took the position
that it-not only objected to supplying the information to
Carlson, but that it also'would object to Carlson copying
the `information himself. The General Counsel's brief
(which speaks in general terms of the Union being "re-
quired to furnish . . . information," the "release of - re-
quested referral information," "disclosure of information,"
ect.) does not in so many words pinpoint the nature of the
duty-allegedly owed to registrants-whether it is asserted
that a union is legally required to itself compile the request-
ed data or whether a union need at least honor a request by
an applicant to examine the records and himself copy in-
f ormation `therefrom.
At one point in his brief, however, General Counsel an-
ticipates that Respondent will advance, as justification for
its refusal, the argument that granting such requests "will
be burdensome and inconvenient," and that a disclosure
requirement "will result in the floodgates being burst with
requests for information, resulting in great expense, chaos
and confusion." General Counsel reject's this anticipated
argument by asserting that, because there had- been no
such requests in the past, there is no reasonable basis for
believing that a'disclosure requirement "will result in any
significant burden or inconvenience to the Union," and
that, in any event, "any such legitimate `business' interest
Respondent might have for maintaining its policy of pro-
hibiting the release of this information is clearly out-
weighed by the substantiality of the members' interests in
securing the information." In its brief, Respondent clearly
assumes the issue to be only whether it was required to
furnish Carlson a list of names, addresses, and telephone
numbers on request.
Since the complaint allegation necessarily reflects the
underlying facts which purportedly gave rise to the alleged
violation, and since the General Counsel and, certainly, the
Respondent appear to treat the issue as being whether the
Respondent was obligated to comply with Carlson's -re-
quest that Respondent furnish him a list of names, address-
es, and 4elephone numbers of 100-individuals on the out-
of-work register, I shall treat the complaint as addressing
only that issue, and not any broader question as to
Carlson's right to copy information from Respondent's rec-
ords.28 ,
In Miranda Fuel, supra, 140 NLRB at 185, the Board
held that Section 8(b)(I)(A)= of the Act "prohibits labor
organizations, when acting in a -statutory representative ca-
pacity, from taking action against any employee upon con-
siderations or' classifications which are irrelevant, invidi-
ous, or unfair." While it might be contended that, in
operating a hiring hall, a union is not "acting in a statutory
representative capacity." but rather as an employment
agency for an employer, that argument seems to have been
put to rest by the Board's dicta in Miranda, 140 NLRB at
184, and its holding in Houston Maritime Association, Inc.,
168 NLRB 615, 617, 626, fn. 14, (1967), enforcement de-
nied 426,F.2d 584 (C.A. 5, 1970).
As the Board spelled it out in Miranda, the duty of fair
representation derives from a union's Section 9 authority
to act as exclusive representative of all the employees: "By
its selection as bargaining representative, it has become the
agent of all the employees„ charged with the responsibility
of representing their interests fairly and impartially." The
foregoing, statutory obligation of an exclusive bargaining
representative, the' Board held, is subsumed 'into an opera-
tive right of employees' by Section 7, which grants employ-
ees the right "to bargain collectively through representa-
tives of their own choosing"; the Section' 9 obligation of
unions, translated" into a concomitant Section 7 employee
right to require observance of that obligation, thus protects
employees from "unfair or irrelevant or indivious treat-
ment by their exclusive bargaining agent in matters affect-
ing their employment." (140 NLRB at 185.)' ''
In Miranda,` quoting Steele v. Louisville & Nashville Rail-
road Co., 323 U.S. 192, 203 (1944), the Board defined the
duty, as prescribed in Steele, to mean that "differences in
treatment must relate to `relevant' differences, and the
Court [in Steele] thereupon concluded that `discriminations
based on race alone are obviously irrelevant and invidi-
oiis."' (140 NLRB at 185.) In the present case, there are no
"differences in treatment" or "discriminations." The rec-
ord makes clear that Respondent would afford to no other
employee the information it denied to Carlson. This raises
the question, then, whether a union can,be in breach of its
duty of fair representation when it takes a position affect-
ing the entire bargaining unit which might be classified as
"arbitrary" or "unfair."
The question must be answered in the affirmative. The
underlying thesis of the duty of fair representation is that
since employees have, surrendered to the Union the author-
ity to represent themselves, the grant of such authority to
the exclusive bargaining agent "includes a statutory obliga-
tion to serve the interests of all members without hostility
or discrimination toward any, to exercise its discretion with
28 Carlson gave no indication at the hearing that he had wanted the op-
portunity to copy the information himself or that he would have done so if
permitted He believed that it was incumbent on the Respondent to furnish
such a list.
LOCAL NO. 324, OPERATING ENGINEERS
complete good faith and honesty, and to avoid arbitrary
conduct," Vaca v. Sipes, 386 U.S. 171, 177 (1967). The stat-
site divests employees of the right of self-representation
and vests in their union the right to make employment-
related decisions which would otherwise have belonged to'
the employees alone; that all employees in a bargaining
unit may suffer from a union's perversion of its statutory
duty to "avoid arbitrary conduct" is no less an abuse of the
authority transferred by the statute than if the union's con-
duct affects only part of the group.
In the seminal case recognizing the duty of fair represen-
tation, Steele v. Louisville & Nashville R. R., Co., supra, the
Court treated only with a case of racial discrimination; and
responded in- appropriate terms, finding inherent in the
role of exclusive bargaining agent a duty to provide "equal
protection" to all members of the unit.29 Subsequently,
however, by virtue of the Supreme Court's decision in Vaca
v. Sipes supra, the recognized duty of fair representation
"has since been expanded as a principle of general applica-
tion to collective bargaining representatives who are re-
quired to serve the interests of all members without hostili-
ty or discrimination toward any, to exercise [their]
discretion with complete good faith and honesty, and to
avoid arbitrary conduct." ' N:lo A. Bazarte v. United Trans-
portation Union, 429 F.2d 868, 871 (C.A. 3 (1970). The
Fourth Circuit has noted that "The repeated references in
Vaca to `arbitrary' union conduct reflected a calculated
broadening of the fair representation standards," Allen L.
Griffin v. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, 469, F,2d
181, 183 (C.A. 4, 1972); accord, Beriault v. Local 40, Super
Cargoes & Checkers of the International Longshoremen's &
Warehousemen's Union, et al., 501 F.2d 258 (C.A. 9, 1974),
and cases cited therein.3o
Thus, the duty of fair representation is no longer posited
only on a failure to afford "equal protection," but, as well,
encompasses the obligation to provide substantive and
procedural due process in taking action or refraining there-
from, without reference to whether the union's conduct ef-
fects a discrimination as such. See, e.g., Al Mumford y.
James M. Glover, 503 F.2d 878, 885, fn. 8 (C.A. 5, 1974)
(valid cause of action may lie where union renegotiated a
pension plan contrary to the, wishes of most of the unit
employees; although "[a]ll previous fair representation
cases which have come to the attention of this court in-
volved the allegation of either an individual or a minority
of the membership," a complaint affecting a majority is not
barred); cf. Knitweave Finishing Co., Inc., 183 NLRB 1148,
1166-67 (1970); Hargrove v. Brotherhood of Locomotive En-
gineers, et al., 116 F.Supp. 3 (D.C.D.C., 1953); Buchholtz v.
Swift & Co. 62 FRD 581; ,Willie Aikens v. LW. Abel, 373
F.Supp. 425 (W.D; Pa., 1974) (dicta). But cf. Benjamin M.
Pastrana v. Folding Box, Corrugated Box and Display Work-
ers Local 381 212 F.Supp. 639'(S.D.N.Y.) (1962).
29 "We think the Railway Labor Act imposes upon the statutory represen-
tative of a craft at least as exacting a duty to protect equally the interests of
the members of-the craft as the Constitution imposes upon a legislature to
give equal protection to the interests of those for whom it legislates,' 323
U.S 192.
30 The Board, in fact, had already condemned "arbitrary" conduct in
Miranda Fuel, 140 NLRB at 185, 186, some 4 years before the issuance of
Vaca
597
Clearly, if "arbitrary conduct" alone constitutes a suffi-
cient basis for finding a breach of the duty, it matters not
whether that conduct affects a single individual or the en-
tire group. Obviously, for example, a class-action by all
members of a bargaining unit alleging that the union offi-
cers had decided to stop processing all grievances because
of the burden involved would present a cognizable claim
that the union had violated its duty of fair representation.
Similarly, a claim that union officers had taken money
from an employer in return for negotiating an unsatisfac-
tory contract would clearly violate the union's duty to "ex-
ercise its discretion with complete good faith and honesty,"
Vaca v. Sipes, supra.
In the present case, it should be noted that. Respondent's
refusal to furnish information does not immediately im-
pinge on Carlson's employment status.- But in Miranda, the
Board broadly defined-the scope of the duty as "the right
[of employees] to be free from unfair or irrelevant or invidi-
ous treatment .:. in matters affecting their employment"
(140 NLRB at 185; emphasis supplied). In Bazarte, supra,
the court expansively delineated- the duty as applying to
"the negotiation, administration, and enforcement of collec-
tive bargaining agreements," 429 F.2d at 871 (emphasis
supplied), and in Mumford, supra, the court even more
sweepingly stated, "Such a- duty is legally compelled in
contexts other than that in which a labor organization and
employer are accused of violating contract terms. There is
a duty of fair representation in all union dealings implicit
in the Congressional grant to unions, in 29 U.S.C.A.
§ 159(a), of the exclusive power to represent all employees
in the collective bargaining -unit." 503 F.2d at 882. In this
case, Carlson's efforts to obtain information to determine
whether the Respondent was nondiscriminatorily operating
its hiring hall with respect to his own employment opportu-,
nities, the latter right being guaranteed him by the collec-
tive-bargaining agreement, was plainly a "matter affecting
[his] employment" and thus within the ambit of the duty of
fair .representation.
For purposes of this case, the primary question appears
to be whether the Respondent has engaged in "arbitrary
conduct" in refusing the, requested information. In General
Truck Drivers, Warehousemen, Helpers and Automotive Em-
ployees, Local 315, supra, the Board held that the duty to
avoid arbitrary conduct "must mean at least that there be a
reason for action taken." In Ford Motor Company v. Huff-
man, 345 U.S. 330, 338 (1953), the Supreme Court suggest-
ed that the reason underlying a particular action of a union
may not easily be challenged: "A wide range, of reason-
ableness must be allowed a statutory bargaining represen-
tative in serving the unit it represents, subject always to
complete good faith and honesty of purpose in the exercise
of its discretion."
But the Board plainly does not mean that any reason
advanced by a union is sufficient, and the Supreme Court's
"wide range of reasonableness" standard implies, of
course, the existence of conduct which is not reasonable,
and therefore prohibited. Furthermore, as General Counsel
points out, citing International Union of Electrical Radio
and Machine Workers, AFL-CIO, Frigidaire Local 801 v.
N.L.R.B., 307 F.2d 679, 683 (C.A.D.C., 1962), it need be
borne in mind that "the requirement of fair dealing be-
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween a union and its members is'in a sense fiduciary in
nature . . . . A union may not treat as adversaries either
its members or those potential members whose continued
employment is dependent upon union membership .. .
The union is the agent for employees ... .
In this case, the following reasons are assigned for the
Respondent's decision not to furnish the list requested by
Carlson. Koski testified that "a few" registrants were jeal-
ous enough of their privacy to have unlisted telephone
numbers; while,, in pursuit of employment, they confided
these numbers in the hiring hall, they presumably would
not care to make the numbers accessible to any registrant
who walked into the hall and asked for such information 31
Similarly, some of the registrants told Koski, apparently
primarily after the request was made, that they preferred
that their phone numbers not be bandied about.
I first must say that it would appear that the foregoing
considerations did not personally animate Koski's refusal
on February 13, as evidenced by his referral to counsel at
the hearing of the question why he refused Carlson's re-
quest. Furthermore, I see no legitimate basis for refusing to
give out the telephone numbers of those employees who
are in fact listed in the directory; they have made their
numbers available to the public, regardless of any concern
privately expressed to Koski about not desiring disclosure.
At any rate, as the Board indicated in Excelsior Underwear
Inc., 156 NLRB 1236, 1244 (1966), it will not presume that
harassment will follow release of such information. Those
"few" employees who have unlisted numbers, however, ob-
viously have indicated a desire to maintain their privacy.
But this objection could have been cured by only furnish-
ing Carlson the telephone numbers of those whose tele-
phones are listed in the directory 32 Respondent made no
such offer 33 -
Tliel final reason alluded to by Respondent in its brief is
that the preparation of the list would entail an onerous
burden on Respondent, requiring, conjecturally, the con-
struction of "hundreds of different sequential lists" if a
number of employees requested such information.
As a theoretical matter, I do not perceive the necessity of
preparing "hundreds of different sequential lists." All that
Respondent would be required to do, if it had no such list,
would' be, upon the first request, to make up a list of infor-
mation pertaining to'' all persons on the out-of-work regis-
ter. Thereafter,' as referrals were made and new registrants
added, this master list could be kept current by striking out
the names of those referred and adding the new names to
the bottom of the list. Whenever a request for the list was
properly made,' Respondent could' furnish a copy, of the
master list as it then stood.
31 As Respondent points out, the fact that only Carlson asked for data
would not, once the principle was established, preclude any registrant, who
beheved.himseif to be the subject of discrimination, from requesting a list of
all of the names, addresses, and phone numbers on all the cards in the,
out-of-work register
32 While Carlson requested the telephone numbers of 100 people, there is
no showing in the record that any of the 100 individuals involved in fact had
unlisted numbers Koski was questioned, about this, but did not know
33 As to the duty to make an alternative offer of information, cf General
Electric Company, 150 NLRB 192, 261 (1964), and cases cited therein at fn
90.
More importantly, however, although Respondent refers
to the matter in its brief, the logistical problem was never
mentioned by Koski at the hearing as a reason for denying
the information to Carlson. Koski, in fact, conceded that
he agreed to "check out" the request, without noting any
concern about the physical problem of preparing a list. The
reason for this, I believe, is disclosed by Koski's testimony
at the hearing indicating that such a list was already in
existence. He testified that when he and the other business
agent are traveling, "we carry indexes of out-of-work men
with us." The indexes contain "the names and phone-num-
bers and lay-off date" of the men on the register.
Unless the reason for ostensibly arbitrary conduct is
"apparent," the Board said in General Truck Drivers, Local
315, supra, "we will have no choice but to deem the con-
duct arbitrary if the union does not tell us what [the reason]
is." And in N.LR.B. v. Great Dane Trailers, Inc., 388 U.S.
26, 35 (1967), the Supreme Court warned against speculat-
ing about justification(". .. the Court of Appeals miscon-
strued the function of judicial review when it proceeded
nonetheless to speculate upon what might have motivated
the company.") If there were any practical problems about
reproducing the list already in existence, or any reason why
that list would not have served Carlson'.s purposes, Re-
spondent has not told us about them.
In my judgment, Respondent has failed to advance any
legitimate reasons for withholding from Carlson the list re-
quested. Koski testified that he had no objection to Carl-
son perusing the out-of-work register, even-for a period of
time long enough to memorize some names and phone
numbers; yet he offered no colorably valid reason for not
furnishing the limited information requested, as discussed
above, despite the fact that he already apparently had a list
which would have met Carlson's requirements. As previ-
ously noted, he was not even sure of the reason at the
hearing: "It's"on advice of counsel. Maybe he can explain
that."
This is not to say that I consider the information request-
ed to be of inestimable value to Carlson. Still, its use might
have produced some evidence that the' referral system was
out of kilter and being operated in a way which adversely
affected Carlson's interests. Conversely, the information
adduced from the other employees might have satisfied
Carlson that he was being properly treated. In these cir-
cumstances; where an employee seeks information from his
collective-bargaining agent in a "matter affecting his em-
ployment," and the Union establishes on the record no
arguably reasonable basis for refusing to supply thatinfor-
mation, I must conclude that the'Unign's conduct is arbi-
trary.
A union is a service agency, designed to further the inter-
ests of the employees it represents. There is no reason for it
to be a closed society, unresponsive to reasonable requests
of the unit employees. As the Court of Appeals for the
District of Columbia Circuit noted in I. U.E., Frigidaire Lo-
cal 801 v. N. L. R. B., supra, 307 F.2d at 683 (per Burger, J.),
a union, as the agent of employees, is subject to the positive
obligation set forth in Restatement (Second), Agency §381
(1958): "to use reasonable efforts to give his principal-in-
formation which is relevant to affairs entrusted to him and
which, as the agent has notice, the principal would desire
LOCAL NO. 324, OPERATING ENGINEERS
to have." On the evidence before me, there is nothing to
show that Carlson's request required Respondent to exert
efforts which might be deemed unreasonable and beyond
the call of the duty described.
I do not, of course, pass on any other situation which
might arise in the future. Respondent could well receive
other requests for other relevant information which it
might adequately justify refusing to honor. Indeed, there
might be such reasons here, but they are not in the record
nor are they "apparent" to me. I hold only that, on this
record, no legitimate reason appears for Respondent's re-
fusal to furnish the list of names, addresses, and telephone
numbers requested by Carlson on February 13, 1974, and
that by such arbitrary conduct, Respondent has violated
Section 8(b)(1)A) 34
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice in violation of Section 8(b)(1)(A) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom, and to take affirmative action designed to effec-
tuate the policies of the Act.
As General Counsel points out, the information request-
ed on February 13, 1974, would be useless to Carlson at
this time, and a requirement that Respondent now produce
the information would be inappropriate. General Counsel
seeks, rather, a prospective order requiring Respondent to
"release to inquiring members who have a reasonable
cause to believe they are being discriminated against rele-
vant referral information within its possession, including,
but not limited to, the names, addresses and phone num-
bers of unemployed members."
I see no basis for limiting an order to "members who
have a reasonable cause to believe they are being discrimi-
nated against." Preliminarily, of course, there may be regis-
trants for whom Respondent is the agent but who are not
"members." Primarily, I think that where it exists, the duty
to furnish information runs to any registrant who may have
a reasonable use for such information, and not simply to
those who have "reasonable cause to believe they are being
discriminated against." However, because the nature of fu-
ture requests may vary considerably, and because Respon-
dent may have justifiable reasons for refusing such requests
which have not been litigated on this limited record, I shall
confine my recommended order to requiring Respondent
34 If the issue were before me of whether Carlson was improperly denied
the right to copy the requested information himself, I would, a fortiori, find
that such denial was violative of the Act
Respondent has made no contention based on various sections of the
Landrum-Griffin Act, such as 29 U S C §§414, 431(c), and 481(c). I do not
construe those provisions as delimiting the scope of a union's obligation to
furnish information to the employees it represents.
599
to refrain from arbitrarily denying referral information to
registrants.
CONCLUSIONS OF LAW
1. Michigan Chapter of the Associated General Con-
tractors, Inc., and its employer-members, are engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing, on February 13, 1974, to supply Melvin
Carlson the list of names, addresses, and telephone num-
bers of 100 employees on Respondent's out-of-work regis-
ter, Respondent breached its duty of fair representation
and interfered with, restrained, and coerced Carlson in the
exercise of his rights under Section 7 of the Act, thereby
violating 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) of the Act.
5. Except as set forth above, Respondent has not violat-
ed the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER35
Local No. 324, International Union of Operating Engi-
neers, AFL-CIO, Escanaba, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act by
arbitrarily refusing to honor requests for information,
made by employees on the out-of-work register who have a
reasonable need therefor, pertaining to the exclusive refer-
ral system operated by Respondent.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its office in Escanaba, Michigan, copies of
the attached notice marked "Appendix." 36 Copies of said
notice, to be furnished by the Regional Director for Region
30, shall, after being duly signed by an authorized repre-
sentative of Respondent, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
36 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
36 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to members and registrants are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges violations of the Act
other than found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to present
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, and has
ordered us to post this notice.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of their rights under Section 7
of the Act by artitrarily refusing to honor requests for
information, made by employees on the out-of-work
register who have a reasonable need therefor, pertain-
ing to the hiring hall system operated by this Union.
LOCAL No. 324, INTERNATIONAL UNION' OF
OPERATING ENGINEERS, AFL-CIO (MICHIGAN
CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF
AMERICA, INC.)