1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union 460 of the United Association of Jour-
neyman and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada (McAuliffe Mechanical , Inc., et al.) and
Stanley Wayne Helvey and Rex J. Adams and
Chris Wirth. Cases 31-CB-6234, 31-CB-6238,
and 31-CB-6246
22 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 24 February 1986 Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
support of the judge's decision.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge' s rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Homer T Ball Jr., Esq., for the General Counsel.
Eugene Miller, Esq., of Seaside, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HAROLD A. KENNEDY, Administrative Law Judge.
This matter was initiated by charges filed by three indi-
viduals, Stanley Wayne Helvey, Rex J. Adams, and
Chris Wirth, against Respondent Local Union 460 of the
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada (Local 460 or the Union). In a con-
solidated complaint issued on 30 July 1985 Respondent is
charged with violating Section 8(b)(1)(A) of the National
Labor Relations Act by dispatching persons listed on its
seniority lists without first offering the positions to
others holding more senior positions on the lists.'
The legality of two union dispatches are in issue-the
dispatch of a welder for a 1-day job on 2 May 1985 to
McAuliffe Mechanical, Inc., in Palmdale, California, and
the dispatch of a fitter to a 6- or 7-day job at the Alma-
den Refinery in McFarland, California.
The case was heard by me in Bakersfield, California,
on 1 October 1985.
Respondent admitted virtually all the allegations of the
complaint. Respondent conceded jurisdiction by agreeing
280 NLRB No. 136
that an official of McAuliffe Mechanical Inc. would, if
called , testify that the Company is a California corpora-
tion with a place of business in Palmdale, California,
where it is engaged in business as a plumbing and me-
chanical contractor; also, that in the past 12 months the
Company had provided services valued in excess of
$50,000 for the Navy and Air Force and that such serv-
ices have a substantial impact on the national defense.
Respondent specifically admitted in its answer the fol-
lowing:
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Laurence Henry and Don Park have acted as
"agents" of Respondent within the meaning of Section
2(13) of the Act.
3. The Plumbing and Mechanical Contractors Associa-
tion of Kern, Inyo, and Mono Counties, Inc. (the Asso-
ciation) is an employer association, which admits to
membership employers in the building and construction
industry, including McAuliffe, and exists, in part, for the
purpose of negotiating , executing, and administering mul-
tiemployer collective-bargaining agreements on behalf of
its employer-members with the collective- bargaining rep-
resentative of their employees, including Respondent.
4. Respondent and the Association have been parties
to a collective-bargaining agreement covering wages,
hours, and other terms and conditions of employment of
certain of the Association's employees, which agreement
by its terms is effective from July 1, 1984, to June 30,
1987.
5. Pursuant to the collective-bargaining agreement Re-
spondent has maintained and administered an exclusive
hiring system or procedure whereby it has, and exercises,
exclusive authority to refer employees for employment
to the various employer-members of the Association and
other nonmembers, including those who adopt the Asso-
ciation-Respondent agreements on a single employer
basis such as Schmidt Co.
6. The Association agreement, as administered by the
parties, establishes and maintains in effect an agreement,
arrangement , practice, or understanding that provides,
inter alia, with respect to an exclusive job referral
system, as follows:
Out-of-work lists are maintained for separate classi-
fications, with a numerical seniority designation
from which an employer may request without refer-
ence to seniority an individual employed within the
past 6 months. An employer may select 50 percent
of his manpower request by name , but the other 50
percent must be dispatched from the lists in numeri-
cal sequence of a seniority.
7. Respondent, acting through Don Park, about 2 May
1985, in honoring a request by McAuliffe for a welder,
on a nonname basis, dispatched an individual holding po-
sition 29 on the welder's seniority list, without offering
the position to individuals of greater seniority.
8. Respondent, acting through Laurence Henry, about
31 May 1985, in honoring a request by Schmidt Co. for a
fitter, on a nonname basis, dispatched an individual hold-
PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL)
ing position 61 on the fitter's seniority list without offer-
ing the position to individuals of greater seniority.
The General Counsel introduced the following docu-
ments at the outset of the trial without objection:
General Counsel's Exhibit 2, a copy of the collec-
tive-bargaining agreement referred to in the com-
plaint ; General Counsel Exhibit 3, a copy of the
welders' seniority list as of 1 May 1985, referred to
in the complaint (par. 10(a)); General Counsel's Ex-
hibit 4(a), a copy of the fitters' seniority list as of 1
May 1985; and General Counsel's Exhibit 4(b), a
copy of the fitters' seniority list as of 1 June 1985.
Seven witnesses testified. Counsel for the General
Counsel called five witnesses on his case-in-chief. Re-
spondent recalled two of the General Counsel' s witnesses
(Bryson and Hayes) and presented two other witnesses.
A summary of the testimony of each witness follows.
Rex Adams, a member of Local 460 for approximately
16 years, testified that as far as he knew the written rules
governing referral of workers are set forth in the collec-
tive-bargaining agreement identified as General Counsel's
Exhibit 2. He identified his name as being No. 40 on
General Counsel's Exhibit 3, the welders' 1 May 1985 se-
niority list that he had seen exhibited at the Local's
union hall.
According to Adams, if a worker were dispatched to a
job lasting for less than 40 hours he would keep his posi-
tion on the seniority list. If dispatched to a job lasting
more than 40 hours, his name would then be dropped
from the list.
Adams stated that union members can expect to be dis-
patched daily by telephone between the hours of 8 a.m.
and 5 p.m. A worker can advise the union hall of a tem-
porary telephone number where he can be reached
during the day, but, according to Adams, he would not
expect the Union to call him after 5 p.m.
Adams was asked if the "40-hour rule," which he had
referred to on direct examination, is contained in the col-
lective-bargaining agreement. Adams said he did not
know, but he agreed that the rule had been applied by
the Union in dispatching welders and fitters during his
16 years of membership in the Union.
Stanley Wayne Helvey testified that he had been a
member of the Union for 11 years. He, like Adams, said
he knew of no written rules governing union referrals
other than what appear in the collective-bargaining
agreement. He identified himself as holding position 32
on the 1 May fitters' list (G.C. Exh. 4(a)) and position 27
on the June fitters list (G.C. Exh. 4(b)). Adams testified
over on objection that he would have accepted a dis-
patch to the 6- or 7-day fitter's job with the Schmidt Co.
On cross-examination Helvey said he had signed up
for work at the hall in November 1984 and had not been
offered a job between that time and 31 May 1985. He
said he was aware of the Union's 40-hour rule and that
he would have taken any job during that period of time
whether it was a 40-hour job or not.
Curtis Hayes testified that he has been a member of the
Union for over 6 years. He identified himself as No. 4 on
the welder's list (G.C. Exh. 4). According to Hayes, he
was available for work as a welder on 2 May 1985 and
1231
would have taken a welder 's job at McAuliffe Mechani-
cal, Inc . on that date had he received a dispatch for it.
Hayes stated on cross-examination that he knew about
the 40-hour rule , and he would have accepted the job
even if it were to have lasted over 40 hours.2
Chris Wirth testified that he had been a member of the
Union for 16 years . He said the collective -bargaining
agreement contained the written rules governing referral
of workers . He said he had read the collective -bargaining
agreement , but had seen nothing in the agreement per-
taining to the 40-hour rule.
Wirth testified that the Union should be able to reach
workers whose names are on the Union 's seniority lists
between 8 a.m. and 5 p.m. He stated that workers are
supposed to go to the union hall to sign the seniority list
but explained that there were occasions (e.g., out of
town) when a worker may call up and get his name on
the list.
According to Wirth , a worker may "as a general rule"
turn down three jobs before his name would go "back
down to the bottom of this list ." He acknowledged on
cross-examination that he knew of no one who had lost
his place on the list by turning down three jobs, howev-
er.3
Jeff A . Bryson was called by the General Counsel and
questioned about his duties and authority as business
manager of Local 460, a position he has held for almost
4 years . He holds the highest post in the Union , an elect-
ed position , and does "just about everything there is" to
do in the Union : dispatches , judges grievances , sits on
boards and committees, etc.
Bryson explained how General Counsel 's Exhibit 3,
the welders' seniority list, evolved and the significance of
certain entries made on it.
When recalled to testify as a defense witness, Bryson
stated that there are two elected union agents , Laurence
Henry and Don Park , both of whom work under Bry-
son's supervision. The two agents perform the same
"basic duties" Bryson performs. Park is stationed in the
"high desert" area, which includes Inyo , Mono, and
Eastern Kern County , and Henry covers the "rest of
Kern County." Both Henry and Park dispatch workers
from the Union 's dispatch lists as does Bryson.4
Bryson indicated that there was considerable unem-
ployment in the Union 's membership , ranging 40 to 45
percent for both fitters and welders. According to
Bryson , a fitter does the layout work for the welder. A
welder can do the work of a fitter , but a fitter cannot do
the work of a welder . A worker can only sign one dis-
patch list , however.
A dispatch list is prepared for each category (i.e.,
fitter , welder) each month. A union secretary types up
the names left over from the previous month's list and
added to the list are the names of those who have signed
on during the current month.5
The collective -bargaining agreement , according to
Bryson , allows an employer to call for the dispatch of a
worker irrespective of his place on the list under certain
circumstances not relevant here.' Bryson agreed that the
so-called 40-hour rule , referred to by worker witnesses,
had been applied by the Union for at least 24 years.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bryson disagreed with Chris Wirth's testimony that a
worker would lose his place on the dispatch list if he
were to turn down three jobs. Bryson stated that work-
ers may turn down dispatches by the Union. This often
occurs, he said, when workers are dispatched to a short
job, and the worker has another job, even though it may
be one paying a lesser wage. Sometimes workers on a
dispatch list are not available because they are on
"travel" or are "doing something else." Bryson stated
that he confers with Union Agents Henry and Park two
or so times a week to be informed about the availability
of persons on the Union's dispatch lists . Bryson said he
could look at a dispatch list and know generally who
would be available for dispatch.
Bryson indicated that when dispatching from a list he
calls the first man on the dispatch list he knows to be
available. He tries to call between 8 a.m. and 5 p.m., but
he may call after 5 p.m. He calls alternate telephone
numbers that workers may have given the union hall,
and he might wait for a period to get in touch with a
particular worker if he thinks the worker would want
the job. For a "borderline job" it might take days to go
through the list of names on a dispatch list to find a
worker, Bryson said.
Bryson said he dispatched Julian Ortig and Nick Ed-
gecomb (listed Nos. 2 and 29, respectively on dispatch
list G.C. Exh. 4(a)) in May 1985. Bryson stated that
Helvey had told him more than once between November
1984 and the end of May 1985 that if dispatched to a
short job, or for one even if lasting for 3 weeks, he
would quit after 38 hours to keep his name at the top of
the list.
Bryson said he had also talked with Hayes after the
latter had been away on travel status. According to
Bryson, Hayes stated that he wanted a "good job,"
which Bryson understood to mean a job that would last
6 months or even "maybe a three month job." Hayes
eventually took a 6-month job. Bryson said Helvey was
dispatched to work for R. P. Richards for a job "on the
desert" after 31 May 1985. Helvey worked on that job,
Brown said , for 2 or 3 days.
On cross-examination , Bryson stated that he was not
involved in either of the dispatches that were in issue
here-the dispatch of a welder for a 1-day job with
McAuliffe in May 1985 and a dispatch of a fitter for a 6-
to 7-day job with the Schmidt Company on 31 May
1985. Bryson characterized the Schmidt dispatch as a
"bad job" for a worker on the top of the list because it
puts you at the bottom of the list."
Laurence Henry said he had been a business agent for
Local 460 for over 5 years. He testified that he dis-
patches welders as well as fitters out of the hiring hall.
Henry explained that the Union prepares a referral or
dispatch slip whenever a worker is referred to a job as
follows:
Well, we fill in the contractor' s name , the date of
referral, the time that they are to be on the job site,
the employee's Social Security number, the employ-
ee, the employer's address or the job site to where
he is to report to, the employeee's name and his job
description, whether he is a pipe fitter or a welder,
instrument technician or whatever, whatever the re-
quest was for. It also has the wage scale , the fringe
benefits, the health and welfare, pension vacation.
The employee may pick up the slip at the hall or the
Union may attempt to deliver it to the dispatched
worker.
Henry said he handled the Friday, 31 May 1985, dis-
patch to the Schmidt job. The Schmidt Co. had called
while he was at lunch and advised a union secretary it
needed two fitters to work for 6 or 7 days at the Alma-
den Refinery near McFarland, California. The job was to
start on the following Monday, June 3.
There was only one job to be filled from the fitters'
dispatch list because Schmidt had requested that one of
the fitters' jobs be filled by a specific worker, Sal Gonza-
lez, as the employer was allowed to do under the collec-
tive-bargaining contract. Sometime after 5 p.m., Henry
decided to dispatch Danny Threewit, No. 61 on the fit-
ters' list, to fill the one available job at the Schmidt job.
Henry said he knew that Threewit would take the
Schmidt job because Threewit had been in the office that
day and had said "he would take anything that we had
to offer." Threewit had spoken first with Union Business
Manager Bryson and then told Henry that he was desti-
tute and would take a job no matter how long it would
last.
Henry claimed that he knew, based on "past experi-
ence," that the 60 people ahead of Threewit on the fit-
ters' list would not have taken the Schmidt dispatch. It
was a "short job," and workers want a job that would
last longer. Some persons on the list were on travel
status, some were working on other jobs, and some were
disabled. Henry said Threewit was not a friend and that
he had no personal or political reason to choose him for
the Schmidt job.
Many indicated that it is a long process to go through
a dispatch list. According to Henry, it would have taken
a day and a half and maybe more time to go through the
fitters' dispatch list to find a worker for the Schmidt job.
Henry said he had other union duties to perform that
weekend, and he could not have gone through the list.
Henry testified that he discussed the fitters list with
Bryson before dispatching Threewit to the Schmidt job.
"Bryson and I went down through the list," Henry said,
and the two of them "agreed that there wasn't anybody
in between . . . . Threewit and the top of the list that
would probably have taken the job."
Henry said in dispatching he takes into account that
"most of the guys will refuse" to consider a 2- or 3-day
job. Henry said : "They can't afford to take a short job
for a week, it's going to knock them off of the out of
work list." According to Henry, Stan Helvey had told
him, probably in May 1985, that he would take "a 38-
hour or less" job, but he would not take a short job that
would take him off the list.
On cross-examination, Henry stated that union officials
in the usual case take action "right away" to fill a dis-
patch. He explained that an employer may, under the
collective-bargaining agreement , fill a job with a worker
of its own choosing if the Union cannot make a dispatch
in 48 hours, but it does not often do so.
PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL)
Henry agreed that he had told a Board agent he had
dispatched Threewit on 31 May because Threewit was in
the hall that day , a day when Henry was busy with
other things , and that Henry had said he was destitute
and would take any job . But, he said , "that isn 't the only
reason" for dispatching Threewit.
The normal procedure in making a dispatch , according
to Henry , is to "come down the list" to find people to
dispatch but that in doing so the Union would pick per-
sons who are "qualified."
Henry was questioned about his knowledge of persons
who held a higher position than Threewit on the fitters'
list. Henry stated that Doyle Jimerson , Stan Walker, and
Mike Jones were employed at the time of the Schmidt
dispatch and would not have accepted the dispatch.
Henry maintained that at the time some were disabled
(Burrows, McGee , Cornelius , Brandon), some were
away or on travel (Baker and Combs along with Howell,
who was in jail), and some were waiting for a desert job
(Jones , Findley , Joyner) or a longer one (Simmons,
Lampkin , and Stout). Henry repeated that Helvey told
him he would take a job of "38 hours or less or a long
job." Henry did not recall Curtis Hayes telling him that
he was willing to take any job, and he seemed somewhat
uncertain about others (Myers and Moreno).' Henry
agreed that he spoke to none of the persons on the dis-
patch list except Gonzalez and Threewit.
Don Park said he had been a business agent for Local
460 for nearly 5 years. He said he regularly confers with
Union Officials Bryson and Henry . He said his "normal
procedure" is to refer dispatch calls he gets to the hall so
Bryson or Henry can handle them . Park said, however,
that he does get calls for jobs that he dispatches himself,
at times at night and on weekends from his home.
Park indicated that he was generally aware of who the
persons are on the dispatch lists, their availability for
jobs, and what their qualifications are.
Park said he handled the 2 May 1985 dispatch to
McAuliffe Mechanical . He recalled that he received the
call for the job while at his home on Thursday evening
between 5 and 5 : 30 p.m . The Company wanted one
welder for 1 day beginning the following day at 7 a.m.,
105 miles away in Palmdale , California. Park said he
looked at his copy of the dispatch list and "knew the
man [he] could get." Park had been at the hiring hall the
day before , and his copy of the dispatch list was up-to-
date. Park said he dispatched Robert House , No. 29 on
the welders ' list (G . C. Exh . 3), to McAuliffe because he
knew House was available. According to Park, House
had called "about every other night" and his (Park's)
notes indicated that House would be available. Park
added that he knew from his notes the availability of
people on the welders' dispatch list. He testified:
Those that I know are unavailable, those that I
know are working as superintendents , those that I
know that are ill , those that are pipeline welders
that won 't accept regular work , those that are out
on travel cards, those that are living in Sacramento.
Park said he had no social or political ties to House.
1233
Park stated that he would have been up "more than all
night" if he had tried to call the 28 men who were ahead
of House on the welder 's list . Moreover, he would have
had to make the calls on a credit card . He said he had
made 53 long-distance calls over a weekend trying to
make a dispatch shortly before making the McAuliffe
dispatch.
Park said he knew Curtis Hayes , who had testified ear-
lier. Park thought Hayes had been on travel status prior
to March and remembered Hayes as one who had
"always wanted to wait on a longer job ."8 Park said he
recalled that when he last spoke with Hayes he (Hayes)
said he did not want to lose his place on the list. Park
stated that Hayes did go on a later job on "the 20th of
the month" for a "lot longer job."
Under direct questioning by union counsel, Park
agreed that there were people on the list who were on
travel status , some who were on disability , some who
were working on other jobs , some who did not want a
short job and some who only wanted a job on the desert.
On cross-examination , Park said there were two rea-
sons for dispatching House to the 2 May McAuliffe job:
"I didn 't figure anybody else would take the one day job
and the other thing was the essence , was of that time
you know , to get it filled."
Park agreed that the hiring hall procedure called for
the Union to go down the list of names on that dispatch
list, in a sequential manner except for a "special" case.
He acknowledged that Hayes had never said he would
not take a 1-day job and that the McAuliffe dispatch was
not "special ." Park maintained that the dispatch of
House to the McAuliffe job was justified because it was
a "hurried thing" and the call came in after 5 p.m. Park
agreed that he should have called Bob Byron, No. 3 on
the welders ' list (G .C. Exh . 3), but he said that Byron
was "never available " before when he had called him.
Park responded to the General Counsel 's questions
about certain other persons listed ahead of House on the
welders' list: Hughey , No. 5, reportedly was away in Ar-
izona ; Tolles , No. 6, was on travel status; Cargill, No.
13, owned a business and did not "seem to be interested
in employment;" Morris, No. 15, was waiting for a job
with the Scott Company ; there was no telephone number
for Molina , No. 16; Hoyt , No. 18, lived in Sacramento,
approximately 300 miles north of Bakersfield , which was
100 or so miles north of Palmdale ; Johnson , No. 21,
owned a business and did not want a job ; Pence , No. 22,
lived near Sacramento and wanted only a long job;
Early, No. 24, was unable to work; both Lehman, No.
25, and Griggs , No. 26 , had other jobs and would only
take long jobs ; Barker , No. 27, was away and did not
want a job; Ruemmler , No. 28A , had recently returned
from travel status but Park was not aware of it; and
Rich, No. 28B , was dispatched the same day House was,
on 2 May.'
In 1973 the Board expressed the following view of
hiring hall referral systems in Operating Engineers Local
18 (Ohio Contractors), 204 NLRB 681 (1973 ), as follows:
When a union prevents an employee from being
hired or causes an employee 's discharge , it has dem-
onstrated its influence over the employee and its
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power to affect his livelihood in so dramatic a way
that we will infer-or, if you please, adopt a pre-
sumption that-the effect of its action is to encour-
age 'union membership on the part of all employees
who have perceived that exercise of power. But the
inference may be overcome, or the presumption re-
butted, not only when the interference with em-
ployment was pursuant to a valid union-security
clause , but also in instances where the facts show
that the union action was necessary to the effective
performance of its function of representing its con-
stituency.1 °
In contending Respondent violated Section 8(b)(1)(A)
of the Act, the General Counsel relies on the Board's
recent decision in Operating Engineers Local 825 (Build-
ing Contractors), 272 NLRB 186 (1984), enfd. 770 F.2d
1073 (2d Cir. 1985), and certain cases cited therein. The
General Counsel refers to the portion of the Board's de-
cision which states:
[T]he Board has held that a union which, as here,
operates an exclusive hiring hall must represent all
individuals who seek to utilize the hall in a fair and
impartial manner .9 The labor organization conduct-
ing such an operation has a duty to conform with
and apply lawful contractual standards in adminis-
tering the referral system, and any departure from
the established procedures resulting in a denial of
employment constitutes discrimination which inher-
ently encourages union membership. By engaging in
such conduct in this case, the Respondent has vio-
lated Section 8(b)(l)(A) and (2) of the Act.10
e Plumbers Local 725 (Powers Regulator Ca), 225 NLRB 138,
143 (1976)
10 Id . at 143; Operating Engineers Local 513 (S.J Groves & Sons
Co.), 199 NLRB 921, 922 (1972).
While stating that evidence of a union's motivation is not
a prerequisite to a finding of discrimination , the Board
held, in finding violation of both Section 8(b)(1)(A) and
(2)11 of the Act, that the record in Local 825 "clearly
demonstrated the Respondent's animus against Harvan,"
the Charging Party.
Respondent conceded that the pleadings and admis-
sions it made at the hearing established a prima facie vio-
lation of Section 8(b)(1)(A). Respondent's counsel stated
at the hearing:
In theory the General Counsel still has proven an
8(b)(1)(A) if I don't introduce my defense.
The Board has said when you are running an exclu-
sive hiring hall, you got to follow those rules. If
you don't follow those rules without a good excuse,
you are in violation of 8(b)(1)(A). And that's exact-
ly what the General Counsel has pleaded.
Relying on Operating Engineers Local 450 (Houston
AGC), 267 NLRB 775 (1983), and Operating Engineers
Local 406 (Ford, Bacon & Davis), 262 NLRB 50 (1982),
enfd. 701 F.2d 504 (5th Cir. 1983), Respondent contends
that deviations from hiring hall procedures do not consti-
tute violations of the Act if necessary to the effective
performance of its representation function and the union
is acting for a valid objective for the benefit of the mem-
bership as a whole.
The Board in Local Union 450 and Local 406 clearly
indicated a union is bound to follow established referral
procedures. Quoting from the Board's decision in Operat-
ing Engineers Local 406 at 51:
The Board has held that any departure from estab-
lished exclusive hiring hall procedures which results
in a denial of employment to an applicant falls
within that class of discrimination which inherently
encourages union membership , breaches the duty of
fair representation owed to all hiring hall users, and
violates Section 8(b)(1)(A) and (2), unless the union
demonstrates that its interference with employment
was pursuant to a valid union-security clause or was
necessary to the effective performance of its repre-
sentative function.5
5 See, e g, Journeymen Pipe Fitters Local No. 392, affiliated with
the United Association of Journeymen and Apprentices of the Plumb-
ing and Pepe Fitting Industry of US . and Canada, AFL-CIO (Kaiser
Engineers Inc.), 252 NLRB 417 (1980), and cases cited therein
Also, the Board stated in Operating Engineers Local 450
(at fn. 2):
In these circumstances-i.e., Respondent has de-
signed specific objective hiring hall procedures-we
believe Board precedent compels finding a violation
of the Act when Respondent departs from those
procedures. It is true that the Board has found vio-
lations based upon the application of a rule because
the rule as applied did not conform to the standard
of fairness required of a union hiring hall system. It
is equally clear that the Board has premised hiring
hall violations upon the nature of the rule itself, or
upon the arbitrary departure from the rule, rather
than solely upon the application of the rule. Cf. Op-
erating Engineers Local 406 (Ford, Bacon & Davis
Construction), 262 NLRB 50 at 50-51 and fn. 6
(1982), enfd. 701 F.2d 504 (5th Cir. 1983) (violation
premised upon arbitrary departure from self-estab-
lished referral system); Boilermakers Local 667
(Union Boiler Co.), 242 NLRB 1153, 1155 (1979)
(violation premised upon vagueness and indefinite-
ness of rule itself.) We believe Respondent 's failure
to follow its referral system procedures is such an
arbitrary departure from its hiring hall rules.
Respondent argued at the hearing that the Board's
cases and the record here show that the dispatches it
made to the McAuliffe and Schmidt jobs on 2 and 31
May, respectively, were justified as follows:
Both Mr. Park, both Mr. Henry were under the gun
as far as time was concerned . Both dispatches were
to be filled after five o'clock. There was no obliga-
tion for the members to be home or available, so
calling would have probably been futile. Based on
past performance it would have taken hours to have
PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL)
made all the necessary calls. In Mr. Park 's case, he
had to fill the job for seven o'clock the next morn-
ing. In Mr. Henry's case , he was faced with a week-
end in which he was not available to act as a dis-
patcher, in fact, shouldn't even have to be a dis-
patcher on the weekend.
The trouble is on the one that had to be filled on
the following Monday, Mr. Henry was not available
to act as a dispatcher, that was the problem. And he
couldn't work any further that night because other
Union business required his attendance and his ap-
pearance.
I would suggest that the people that run the hiring
hall are not supposed to be automations. They rec-
ognize and should be permitted, based upon their
past experience, to rely on the fact that some
people, though their names are on the out of work
list, are not available for employment. In the obvi-
ous cases, travel card, disability, other employment.
Where members have told the Union that they
are only interested in long jobs, it is an exercise in
futility to require a business agent in the middle of
the night to call somebody for a one day job. It is
an exercise in futility to have the business agent call
people who have said they don't want short jobs.
The Administrative Law Judge has to recognize
the realities of the situation, the particular unem-
ployment problem that existed in Kern County, the
fact that so many people are out of work, there's a
longer out of work list and to lose your place on
that list is economic suicide. And you can't afford
to. And these people on the out of work list are not
stupid. They are not going to lose their place on the
list for a job in excess of forty hours, not when it's
taken them months to move up to a position where
they might be able to get a job of long duration.
And to require the business agents, under the fac-
tual setting in this case, at night, over the weekend,
for short term jobs to just go through this ritual,
this routine of making fifty or sixty phone calls to
fill that one job is not required and their failure to
do so under the facts of this case amount to di mini-
mus and is not a violation of the Act.
I am persuaded that Park's dispatch of Robert House
to the 1-day welder's job with McAuliffe Mechanical,
Inc., in Palmdale, California, 105 miles away, was justi-
fied and not a violation of the Act. As Respondent's
counsel pointed out, Park did not know of the request
for a dispatch until after office hours on 2 May, and he
had to act promptly if the Union was to provide a
welder at the McAuliffe job in the Palmdale site as re-
quested.12 Park had good reason to believe that House,
No. 29 on the welder's dispatch list (G.C. Exh. 3), could
fill the job and probably the only one who would, given
the circumstances of time and likely unavailability of
anyone else on the welders' list. Park testified credibly
that he understood Hayes, who was No. 4 on the list,
would not have been interested in a 1-day job.
1235
Hayes testified that he had indicated prior to the 2
May dispatch to another dispatcher (Henry) that he
would take any job, but I am unable to believe that he
was available for the McAuliffe job and would have con-
sidered leaving his then home on the coast (Pismo
Beach), driving 500 miles round trip for a 1-day job.
Such testimony of Hayes was not credible, and I reject
it.
The 31 May dispatch of Danny Threewit by Business
Agent Henry to a 6- or 7-day fitter's job with the
Schmidt Co. at McFarland, California, presents a more
difficult issue , but I am unable to hold such action violat-
ed the Act as the General Counsel contends. Threewit
was No. 61 on the fitters' seniority list, but the General
Counsel did not rebut the Union's showing that it acted
reasonably under all the circumstances in dispatching
Threewit. There was a limited time available to Henry to
process the Schmidt request, although it is not clear why
he waited until after 5 p.m. on that Friday to give the
referral to Threewit.13 Henry knew Threewit, who had
been in the hiring hall that day to report that he would
take any job, would accept the Schmidt dispatch. And
having conferred with Business Manager Bryson regard-
ing the fitters' list, Henry concluded, reasonably, that
there probably was no one ahead of Threewit who
would have taken the "bad job" with the Schmidt Co.14
The only evidence indicating that the dispatch of
Threewit was not appropriate was the testimony of Stan-
ley Helvey. Helvey, who was No. 32 on the 1 May fit-
ters' list, testified he would have taken the Schmidt dis-
patch. Both Business Agent Henry and Business Manager
Bryson testified, however, that Helvey had told them
that he would accept a job of 38 hours' duration or less
but not a "short job" that would cause him to lose his
place on the dispatch list. I credit such testimony of
Bryson and Henry.
It is to be noted that there is no evidence of hostility,
arbitrariness, or union preference in the Union's dispatch
of either House or Threewit. I conclude that Business
Agents Park and Henry reasonably believed that they
were acting in accord with the collective -bargaining
agreement and valid rules of the Union's hiring hall.15
For the foregoing reasons, I make the following
CONCLUSIONS OF LAW
1. Respondent Local Union 460 of the United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada
is a labor organization within the meaning of Section
2(5) of the Act.
2. McAuliffe Mechanical, Inc. is an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
3. It was not established that Respondent violated the
Act as alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The complaint is dismissed in its entirety.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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