Nevada Contractors Association

National Labor Relations Board - Administrative Judge Opinions

Apr 14, 2005

28-CB-006173 (N.L.R.B. Apr. 14, 2005)

JD(SF)–32–05
San Francisco, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL
UNION NO. 12, AFL-CIO

and Case 28-CB-6173

JOHN L. SCOTT, An Individual

Mary C. Teer, Esq., Las Vegas, NV, for the
General Counsel

David Koppelman, Esq., House Counsel,
Pasadena, CA, for the Union

Jeffrey Boxer, Esq., of Stern and Ford,
Los Angeles, CA, for the Union

Gary G. Branton, Esq., of Albright,
Stoddard, Warnick & Palmer, Las Vegas,
NV, for the Charging Party.

DECISION

Statement of the Case

Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this
matter was held before me in Las Vegas, Nevada on March 1, 2005. The charge was filed on
September 27, 2004 by John L. Scott, an Individual. On November 30, 2004, the Regional
Director for Region 28 of the National Labor Relations Board (Board) issued a Complaint and
Notice of Hearing alleging violations by International Union of Operating Engineers, Local Union
No. 12, AFL-CIO (Respondent or Union) of Section 8(b)(1)(A) of the National Labor Relations
Act, as amended (Act). The Respondent, in its answer to the complaint, denies that it has
violated the Act as alleged.

The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel (General Counsel), counsel for the
Respondent, and counsel for the Charging Party.

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Upon the entire record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following:

Findings of Fact

I. Jurisdiction

At all material times, the Nevada Contractors Association, herein called NCA, has been
an organization composed of various employers engaged in the construction industry, one
purpose of which is to represent its employer-members in negotiating and administering
collective-bargaining agreements with various labor organizations, including the Respondent.
The employer-members of the NCA collectively in conducting their business operations
described above, annually purchase and receive at their facilities located in the State of
Nevada, goods valued in excess of $50,000 directly from points outside the State of Nevada. It
is admitted and I find that the NCA and its collective employer-members have each been
employers engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act.

II. The Labor Organization Involved

It is admitted and I find that the Union is a labor organization within the meaning of
Section 2(5) of the Act.

III. Alleged Unfair Labor Practices

A. Issues

The principal issue in this proceeding is whether the Respondent has violated Section
8(b)(1)(A) of the Act by failing to timely provide the charging party with certain requested hiring
hall job referral information.

B. Facts

The Union operates an exclusive hiring hall for the purpose of dispatching workers for
employment on jobs covered by collective bargaining agreements between the Union and
various multi-employer associations or signatory contractors.

The Charging Party, John L. Scott, has been a member of the Union for many years, during
which he has utilized the Union’s hiring hall to obtain employment. Sometime during 2004,
because he was not receiving referrals to jobs even though he was near the top of the hiring
hall out-of-work list, he believed he was being skipped or overlooked by hiring hall personnel.
To ascertain whether hiring hall personnel were treating him fairly in accordance with
established hiring hall practices, he requested certain information. Thus, by letter dated
May 31, 2004,1 he directed a letter to the Union as follows:

I hereby request, pursuant to Operating Engineers Local Union No. 3 of the
International Union of Operating Engineers, AFL-CIO (Kiewit Pacific Co.) and Cynthia
Albert, 324 NLRB No. 4, that all pertinent information regarding the dispatching of jobs
1 Although this request is dated May 31, 2004, it appears that the Union did not receive it until
on or about July 22, 2004.

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to Union Members of Local 12, Southern Nevada District, through its hiring hall, located
at 360 Shadow Lane, Las Vegas, Nevada, and any and all other means of dispatching
be provided to me at the above listed address. This information is to include but not be
limited to:

1) The names of all persons who, for the past two (2) years have asked to
be referred to jobs by Local 12, Southern Nevada District, or have asked
that their names be placed on the out-of-work list for job referrals;

2) The date or dates of each request;

3) The date or dates of each subsequent referral of such person to a job,
including the name and the location of such person on the out-of-work list,
the name of the employer to whom referred, piece of equipment
dispatched for, and identification of the jobsite to which referred; and

4) The date or dates of each hire and of any subsequent layoff or discharge,
including the name of the person hired and/or laid off, the name of the
employer and the identification of the jobsite. 2

Please provide this information to me no later than July 1, 2004. In the event you
choose not to provide me this information, please sign a copy of this letter, and return to
me.

The Union did not reply to this letter, and on August 31, 2004, Scott’s attorney wrote a letter
to the Union stating that Scott had a good faith belief that he had been discriminated against by
the Union ”because of charges he filed against you several years ago and because of a charge
he filed with the National Labor Relations Board on May 5, 2004, in Case No. 28-CB-6114.”
The letter goes on to demand production of the records requested by Scott, and states that
Scott will seek all legal remedies available to obtain such records.

By letter dated September 8, 2004, the Union’s attorney replied to the August 31, 2004
letter from Scott’s attorney, inter alia, as follows:

Local 12 does not believe that Mr. Scott has a good faith basis for alleging that he
has been discriminated against by Local 12 in regards to job referrals. Over the past
several years, Mr. Scott has filed numerous unfair labor practice charges against Local
12, alleging such discrimination. In each instance, Local 12 has provided the relevant
records to the National Labor Relations Board, and in each case the charge has been
found to be meritless. See e.g., NLRB Case Nos. 28-CB-6114, 28-CB-5096, 28-CB-
5008, 28-CB-4942, 28-CB-4944, 28-CB-4882. Local 12 concludes that this latest
request is not made in good faith, but rather is made for the purpose of harassment and
annoyance of Local 12.

2 This request for information is virtually identical to the language contained in the request for
information set forth in the aforementioned Board decision.

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Additionally, the request seeks documents pertaining to numerous individuals and
signatory employers, each of which has privacy rights which would be invaded by these
requests. The requested documents also go far beyond anything pertaining to
Mr. Scott’s individual circumstances and the requests are therefore overbroad in the
extreme.

The charge referred to in both of the aforementioned letters, Case 28-CB-6114, was filed by
Scott on May 5, 2004, and was dismissed by the Regional Director for Region 28 on June 18,
2004, as follows:

Decision to dismiss: Based on [the investigation of the charge], I have concluded
that further proceedings are not warranted, and I am dismissing your charge for the
following reason:

Your charge alleges that the Union breached its duty of fair representation by failing to refer
you from its hiring hall. The evidence adduced failed to support this allegation. In this
regard, the evidence reflects that on various occasions the Union attempted to contact you
for work referrals. However, your late acknowledgement of these referrals resulted in other
workers being referred. There is no evidence that the Union harbors any animus towards
you, or that their actions were discriminatorily motivated.

This decision to dismiss was not appealed by Scott.

There are three types of documents utilized by the hiring hall to process referrals: the out-
of-work-list showing the priority of the individuals seeking referrals; the personal job history
cards listing the work and machinery which each individual is willing or not willing to accept
and/or operate, and the date, time, and relevant details of each contact between hiring hall
personnel and the individual seeking “dispatchment,” regardless of whether the contact is
initiated by the hiring hall or the individual seeking dispatchment; and dispatch “Introduction”
forms containing the name of the employer, the name of the individual being dispatched, the
type of machinery the individual is to operate, the date and time the order was received, the
individual’s reporting date and time, and whether the individual was dispatched pursuant to the
employer’s specific request for that individual, or was dispatched by the hiring hall by “open
order,” that is, in order of seniority on the hiring-hall-list.

Scott’s work history cards, introduced into evidence, show that Scott was willing to operate
only a limited number of machines, was not willing to work nights, and was not willing to accept
out of town referrals, test site referrals, hazardous material referrals, or rock, sand and gravel
referrals. Scott’s work history cards also show that Scott was called on various occasions by
hiring hall dispatchers at the home phone and cell phone numbers listed on his work history
card for the purpose of notifying him of available referrals.3 On these occasions, the dispatcher
either left a message on his answering machine and Scott did not call back in a timely fashion,
or Scott answered and said he did not want to accept certain work, or Scott initially answered
his cell phone and stated he was unable to hear the dispatcher, but then did not answer when
the dispatcher called back. Scott testified that as his cell phone does not have a feature that
records the caller’s number, he was unable to know when any particular call was from the hiring
hall.
3 Scott’s work history cards show that these calls from a hiring hall dispatcher to Scott were
made on March 14, April 1, April 23, April 26, May 5, September 13, September 14,
September 17, and October 10, 2004.

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C. Analysis and Conclusions

The General Counsel maintains that Scott, as a individual dependent upon the Union’s
exclusive hiring hall for his livelihood, is entitled as a matter of right to relevant hiring hall
information in order to ascertain that he is being treated fairly by hiring hall dispatchers, and that
no discriminatory or unlawful motivation on the part of the Union is required as a predicate for
such an information request. I agree.

Thus, in Operating Engineers Local 513, 308 NLRB 1300, 1302-3 (1992), the Board
adopted the decision of the administrative law judge who analyzed this issue and concluded that
“[I]n the absence of some good reason advanced by Respondent for withholding the
information, it should be made available without the necessity of laying a foundation.” I find that
Scott is entitled to the information simply because he is a hiring hall registrant, so long as the
information request is made in good faith.

The Union declined to furnish the requested information on the basis that Scott’s request
was not made in good faith but rather was “made for the purpose of harassment and annoyance
of Local 12. “ The record evidence shows that Scott had filed many charges against the Union,
and that the Regional Director for Region 28 had dismissed his May 5, 2004 charge in Case 28-
CB-6114, alleging that the Union breached its duty of fair representation by failing to refer Scott
from its hiring hall. Nevertheless, it appears that Scott, despite being high on the out-of-work
list, received no calls from hiring hall dispatchers between May 5, 2004 and September 13,
2004, a period of four months. Under these circumstances, it seems reasonable to assume that
Scott’s July 22, 2004 information request was made because he either believed he was being
skipped over in retaliation for the charge he had filed against the Union, or because he wanted
the Union to be cognizant of the fact that he intended to closely monitor the situation so that he
would not be skipped over. Accordingly, I conclude the facts are insufficient to show, as
asserted by the Union, that Scott’s information request was merely for the purpose of harassing
or annoying the Union. I therefore find that that the Union has violated Section 8(b)(1)(A) of the
Act by failing to timely provided Scott with the requested information.

At the hearing the parties disagreed regarding the hiring hall information to which Scott
should be entitled. Since the filing of the instant charge the Union has furnished Scott with
certain hiring hall lists showing the status of all hiring hall registrants on the lists, Scott’s work
history cards for several months, and copies of dispatch “Introduction” forms showing
dispatchments to any particular job that Scot, according to his work history card, would have
accepted had he been called by the hiring hall dispatchers. Further, at the hearing, the Union’s
attorney stated that the Union had no objection to furnishing Scott with similar information for up
to six months prior to the filing of the charge.

The General Counsel, however, maintains that the Union should also furnish Scott with all
copies of dispatch “Introduction” forms for the pertinent time period, even though Scott has
disqualified himself for such jobs on his work history card and therefore has declined in advance
to accept such jobs. In this regard, the rationale of the General Counsel seems to be that
access to all of these dispatches would enable Scott to ascertain the number and frequency of
dispatches for particular pieces of equipment so that perhaps he could modify his work history
card to include such pieces of equipment, thus giving him more work opportunities. I do not
agree. It is perfectly obvious that the more limitations a hiring hall registrant places upon his job
opportunities, the fewer referrals he will receive and the longer he will have to wait for such
referrals; and the converse is also, of course, true. To require the Union to provide Scott with
the numerous documents suggested by the General Counsel would seem, under the

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circumstances, to place an undue and unnecessary burden upon the Union, and would not be
helpful to Scott in his quest to insure that he was being treated fairly. Thus, Scott’s testimony
shows that he has voluntarily limited his job opportunities for reasons personal to himself.
Indeed, when asked why his personal work history cards note that he is unwilling to operate
certain types of equipment, Scot testified, “They’re too hard on your health.”

At the outset of this proceeding Scott maintained that he should be furnished his own work
history cards as well as the work history cards of all hiring hall registrants. The Union objected
on the basis that this was not included within the allegations of the complaint. The General
Counsel agreed. The General Counsel was then given the opportunity to amend the complaint
in this regard, and specifically declined to do so. In his brief, Scott maintains that the nature and
importance of his access to the work history cards of all hiring hall registrants has been fully
litigated and that therefore the issue, having been litigated, should be resolved in this
proceeding. I do not agree that the matter has been fully litigated, as the Union, having been
put on notice that production of work history cards for hiring hall registrants other than Scott was
not an issue in this proceeding, may have refrained from proffering further evidence or making
further arguments.4 Moreover, even assuming arguendo that the matter was fully litigated, the
General Counsel has specifically determined that neither Scott’s information request nor the
complaint allegations encompass the work history cards of hiring hall registrants other than
Scott.

It appears that the hiring hall information which I have found should be furnished to Scott is
sufficient to permit him to determine whether he has been skipped over in the hiring hall
process. Thus, from the hiring hall lists, Scott will be able to ascertain his ranking on the list
during any pertinent time; from the dispatch “Information” forms Scott will be able to ascertain
who was dispatched to any job for which Scott was registered, when that individual was
dispatched, and whether or not the individual was specifically requested by the employer (in
which case established hiring hall procedure provides that that individual should be dispatched
even if he or she is lower than Scott on the hiring hall list); and from his own personal history
cards, Scott will be able to ascertain whether the cards accurately reflect the jobs and
equipment Scott was willing to accept and/or operate, and the dates, time, and details of any
communications between Scott and hiring hall personnel.

Conclusions of Law

1. The NCA and its collective employer-members have each been employers engaged in
commerce within the meaning of Sections 2(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. The Respondent has violated and is violating Section 8(b)(1)(A) of the Act as found
herein.
4 It should be noted that Scott’s work history cards, furnished to Scott, are reflective of work
history cards in general: they are not computerized or typed but are small ledger cards written or
filled out in longhand by the dispatcher who happens to be calling or speaking to Scott at any
given time; they are often not readily legible; and they contain messages and abbreviations that
are sometimes indecipherable absent testimony of the author of the particular entry on the card.
Moreover, given the number of hiring hall registrants, it appears that the work history cards of all
registrants would be voluminous.

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The Remedy

Having found that the Respondent has violated and is violating Section 8(b)(1)(A) of the
Act, I recommend that it be required to cease and desist therefrom and from in any other like or
related manner interfering with, restraining, or coercing employees in the exercise of their rights
under Section 7 of the Act. I shall also recommend the posting of an appropriate notice,
attached hereto as “Appendix.”

ORDER5

The Respondent, International Union of Operating Engineers, Local Union NO. 12, AFL-
CIO, , 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 refusing to honor requests for information
made by registrants seeking employment under the Union’s exclusive hiring hall
procedure.

(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

1. Take the following affirmative action, which is necessary to effectuate the purposes of
the Act:

(a) Furnish John L. Scott with job referral information consisting of hiring hall lists
for six months prior to the filing of the instant charge, dispatch “Introduction”
forms pertaining only to those referrals for which Scott was registered in
accordance with his work history cards, for six months prior to the filing of the
instant charge, and Scott’s work history cards for six months prior to the filing of
the instant charge.

(b) Within 14 days after service by the Region, post at its office and hiring hall
copies of the attached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 28, after being duly signed by
Respondent’s representative, shall be posted immediately upon receipt thereof,
and shall remain posted by Respondent for 60 consecutive days thereafter, in
5 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of the United States Court of Appeals, the wording 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 and Order of the
National Labor Relations Board.”

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conspicuous places, including all places where notices to members or hiring hall
registrants are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by
any other material.

(c) Within 21 days after service by the Regional Office, file with the Regional
Director for Region 28 a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Respondent has taken to
comply.

Dated: April 14, 2005

_______________________
Gerald A. Wacknov
Administrative Law Judge

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and abide by this notice.

WE WILL NOT refuse to make available in a timely fashion relevant job referral information
requested by registrants on the hiring hall out-of-work list in order to insure that they are being
fairly treated in accordance with established hiring hall practices.

WE WILL furnish John L. Scott, a registrant on the out-of work list, with certain information he
has requested.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce registrants on the
out-of-work list in the exercise of their rights guaranteed by Section 7 of the Act.

INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 12, AFL-CIO
(Labor Organization))

Dated: _______________ By: _________________________________________________
(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the date of posting and must not
be altered, defaced, or covered with any other material. Any questions concerning this notice or
compliance with its provisions may be referred to the Board’s office, 600 Las Vegas Boulevard
South, Suite 400, Las Vegas, Nevada; phone 702-388-6416.