Operating Engineers Local 513 (Various Employers)

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1300 (N.L.R.B. 1992)

1300
308 NLRB No. 188
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The administrative law judge declined to order the Respondent
to provide Charging Party Vitale access to the job referral informa-
tion he sought in his August 24, 1991 letter, finding that it would
be useless to Vitale at this time. In his exceptions, however, Vitale
contends that the information would still be of use to him for, inter
alia, a potential cause of action under the Labor-Management Re-
porting and Disclosure Act, 29 U.S.C. § 401 et seq. We therefore
shall modify the judge’s Order to require the Respondent to make
available to Vitale the information sought in his original request, i.e.,
information concerning referrals during the 6-month period prior to
the request. Although Vitale also requested that the Respondent post
the information in the union halls and provide it to union members
by mail on request, we find nothing in the record of this case war-
ranting the inclusion of such provisions in the Order.
1 Although the answer to the complaint denies any violation of the
law, it effectively admits that the Board’s assertion of jurisdiction in
this case is appropriate, and that the Respondent is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
Local Union No. 513, International Union of Oper-
ating Engineers, AFL–CIO (Various Employ-
ers) and Michael J. Vitale. Case 14–CB–7719
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 8, 1992, Administrative Law Judge Bernard
Reis issued the attached decision. The Charging Party
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
Union No. 513, International Union of Operating Engi-
neers, AFL–CIO, St. Louis, Missouri, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Substitute the following as paragraph 1(a).
‘‘(a) Refusing to make available to Michael Vitale
the job referral information requested in his August 24,
1991 letter.’’
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) Make available to Michael J. Vitale the job re-
ferral information requested in his August 24, 1991 let-
ter.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO REGISTRANTS AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to make available to Michael
J. Vitale the job referral information requested in his
August 24, 1991 letter.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make available to Michael J. Vitale the
job referral information requested in his August 24,
1991 letter.
LOCAL UNION NO. 513, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL–CIO
Caryn L. Fine, Esq., for the General Counsel.
Harold Gruenberg, Esq., of St. Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge. This case was
tried in St. Louis, Missouri, on January 13, 1992. The com-
plaint alleges, in material part, that the Respondent, Local
Union No. 513, International Union of Operating Engineers,
AFL–CIO, has violated Section 8(b)(1)(A) of the Act since
about August 30, 1991, by failing and refusing to provide
certain referral records requested by the Charging Party
which are reasonably related to an alleged failure to refer the
Charging Party to jobs ‘‘because he engaged in intraunion
political activities or other protected concerted activities.’’1
A brief was served by General Counsel on February 14,
1992; no brief has been received from Respondent. I have
reviewed the transcript, the exhibits, and the General Coun-
sel’s brief, and I have considered my recollection of the testi-
mony given by the Charging Party, the only witness in the
case. Having done so, I reach the following
1301OPERATING ENGINEERS LOCAL 513 (VARIOUS EMPLOYERS)
2 Errors in the transcript have been noted and corrected.
3 As previously stated, Vitale was the sole witness at the hearing.
I saw no reason to discredit him.
4 The actual ruling on objections was not issued until September
5.
FINDINGS OF FACT2
I. THE ISSUE
Michael J. Vitale, the Charging Party, is a heavy equip-
ment operator who performs construction work in the St.
Louis area. Vitale has been a member in good standing of
Respondent since 1964, although for two portions of that pe-
riod, January 1982 to June 1985 and August 1987 to August
1990, he left the trade to pursue other endeavors.
Beginning in 1989, even before he returned to work as an
operating engineer from his last nonconstruction job, Vitale
was active as a political opponent to the incumbent adminis-
tration of Respondent. He also believed that, after he re-
turned to the trade in August 1990, he was not getting his
share of referrals to jobs from Respondent’s referral system.
Accordingly, on August 24, 1991, Vitale wrote a letter to
Respondent seeking certain information pertaining to refer-
rals in the preceding 6 months. Respondent’s attorney replied
on September 17, rejecting the request. It is the theory of the
complaint that Vitale was entitled to the requested records
because they are ‘‘reasonably related to an alleged failure to
properly refer Charging Party Vitale to jobs . . . because he
engaged in intraunion political activities.’’
II. THE FACTS
A. The Referral System
The bargaining agreement between Respondent, which has
about 4000 members, and Associated General Contractors of
St. Louis provides that Respondent shall be, at least initially,
‘‘the sole and exclusive source of referrals of applicants for
employment.’’ An employer may, however, hire from other
sources if Respondent has not made a referral within 24
hours after a request for referral, and the employer may also,
in certain circumstances, request registrants by name. Other-
wise, the order of referral is from the registration list on a
‘‘first in, first out basis,’’ but the Respondent is entitled to
take into account the qualifications necessary to the job in
making referrals. Registration is done on the first Monday of
each month, and can be renewed each month in person or
by telephone; Vitale also testified that after being laid off
from a job, a worker can be placed on the list by calling in.
It is clear that these facts add up legally to an exclusive
hiring hall. Carpenters Local 608 (Various Employers), 279
NLRB 747, 754 (1986), and cases cited.
B. Vitale’s Intraunion Activities
In June 1989, Vitale (while still engaged in another occu-
pation) was nominated for recording secretary of the Union
on a slate of challengers headed by Audie Laubinger. The
union election commissioner rejected Vitale’s nomination,
concluding that he had not worked in the trade for a suffi-
cient recent period to qualify as a candidate. After the
Laubinger slate was defeated in the August 1989 election,
Laubinger filed objections to the election under the Labor-
Management Reporting and Disclosure Act, one of the objec-
tions being that Vitale should not have been disqualified for
not being ‘‘continuously employed at the trade’’ since he had
‘‘called in on numerous occasions seeking work within the
past year.’’
Not until February 1991 did the Respondent and the Labor
Department reach agreement to conduct a new election.
Vitale was nominated this time for the post of auditor on the
challengers’ slate. At a meeting in March 1991 in the office
of the Department of Labor to set the ground rules for the
new election, Vitale and his slate were present, as were the
officers of Respondent, including Jack Sawyer, its president
and business manager. During the meeting, the question
arose as to why some members of the slate were not being
referred to work. Sawyer replied that the reason was that
they ‘‘weren’t qualified to run anything.’’ Vitale asked Saw-
yer how he would go about proving his qualifications if that
was necessary, but Sawyer did not reply.
A week later, Vitale called Sawyer and posed the same
question. Sawyer responded that he had been ‘‘a little upset
and joking’’ and that he did not ‘‘hold any grudges or any-
thing like that because you opposed me.’’3
The Laubinger slate lost the August 1991 rerun election.
Vitale filed a protest based on the accuracy of the voter eligi-
bility list, but the Labor Department denied it a week later,
apparently by informal notice.4
C. Vitale’s Work Record
All that we know about Vitale’s referrals from Respondent
is based on his testimony. As best as it can be pieced to-
gether, he seems to have had no real complaints until after
October 1990. From that month on, his single referral was
for a 1-day job in April 1991. Around the end of May or
the first of June 1991, he was referred to a 1-day job; about
2 weeks later, he was sent to a job of unstated length; toward
the end of June, he received a 5-1/2-day referral; in the first
week in August, he went on a 3-day job; he received in Sep-
tember a 2-day job, a job that was canceled after he arrived,
and a 1-day job; in the first part of October, he was sent to
a 5-day referral, and in the latter part of October and first
few days of November, he worked a 12-day job. In Novem-
ber, he was recalled to the last project for about 7 days. In
rehearsing his recent employment at the hearing on January
13, 1992, he said that he had not worked since November.
Vitale filed his charge on November 1, 1991.
D. Vitale’s Request for Information
Vitale testified that after his objection to the August 1991
election was denied, he assumed that he ‘‘was more or less
finished working in construction because I wouldn’t be get-
ting any work,’’ so he made contact with an organization
called Association for Union Democracy, Inc. (AUD). AUD
sent him some material on the subject of requesting informa-
tion from a referral system, enclosing a copy of a letter
which included a request for information made to a car-
penters’ local. Vitale, on August 24, 1991, sent a letter to
Respondent’s president, Sawyer, containing the following,
inter alia:
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 It should be noted that the court of appeals judgment quoted by
Vitale in August 24 letter posited that employees were entitled to
hiring hall records ‘‘on payment of reasonable costs.’’
I am requesting that all pertinent information regard-
ing the dispatching of jobs to Union Members of Local
513 through its hiring hall and all other means of dis-
patching be made available to the general membership.
This information to include the following:
The names, addresses and telephone numbers of all
persons, who for the past six months have asked to be
referred to jobs by Local 513 or have asked that their
names be placed on a list for job referrals, together
with:
a. The date or dates of each request;
b. The date or dates of each subsequent referral of
such person to a job, indluding [sic] the name of the
person so referred, the name of the employer to whom
referred, and identification of the jobsite to which re-
ferred;
c. The date or dates of each hire and of any subse-
quent 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.
The aforementioned information to be posted in all
three union halls in an accessible area for the members
to inspect; and upon request this information be made
available by mail to the members.
Vitale’s letter also noted that ‘‘the legality of this request’’
was based on information furnished by AUD. He further
made reference to the Carpenters case, and he quoted from
the notice posted in the case, as enforced by the Second Cir-
cuit Court of Appeals.
By letter of August 30, 1991, Vitale’s letter was answered
by Harold Gruenberg, Respondent’s counsel, who wrote that
the Board had ‘‘repeatedly, and as recently as August 1991,
investigated and found that the referral procedures of Operat-
ing Engineers Local 513 are lawful.’’ Gruenberg went on to
say, ‘‘Absent your submission of documented proof rebutting
the determinations of the National Labor Relations Board
that Local 513’s referral procedures are lawful, your request
is deemed frivolous and intended to burden Operating Engi-
neers Local 513 with unwarranted expenditure of staff time
and considerable costs which the membership of Local 513
would have to bear.’’5 Gruenberg concluded, ‘‘If you have
proof to support your request, you are invited to submit your
proof to me and Local 513 will give it due consideration.’’
Vitale did not respond to this letter. However, on Septem-
ber 17, the executive director of AUD did, on Vitale’s be-
half. That letter discussed the applicable law and reiterated
Vitale’s initial request. No response from the Union was
forthcoming.
III. DISCUSSION
As earlier stated, the complaint alleges that Vitale had a
right to the requested information because it was ‘‘reason-
ably related to an alleged failure to properly refer Charging
Party Vitale to jobs . . . because he engaged in intraunion
political activities.’’
It is not entirely clear why the reference to ‘‘intraunion
political activities’’ was deemed by General Counsel to be a
necessary element of the allegation. On brief, General Coun-
sel’s principal legal argument reads, more simply:
It is well-settled that a Union which operates an exclu-
sive hiring hall breaches its duty of fair representation
under the National Labor Relations Act when it arbi-
trarily denies requests of its members for job referral
information, where such requests are reasonably di-
rected toward ascertaining whether such members have
been properly treated in connection with the operation
of the hiring hall.
This doctrine does not require any particular proof of animus
against the applicant, because it rests upon a near absolute
view of a union’s obligation in this area. As first stated in
Operating Engineers Local 324, 226 NLRB 587 (1976):
We find that inherent in a union’s duty of fair rep-
resentation is an obligation to deal fairly with an em-
ployee’s request for information as to his relative posi-
tion on the out-of-work register for purposes of job re-
ferral through an exclusive hiring hall.
In Miranda Fuel Company, Inc. [140 NLRB 181],
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 affecting their employment.’’ We agree with the
Administrative Law Judge that Melvin Carlson’s efforts
to protect his seniority rights by requesting Respond-
ent’s assistance in determining the names, addresses,
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 Respond-
ent’s arbitrary refusal to comply with Carson’s reason-
able and manageable request for job-referral informa-
tion breached its duty of fair representation and thereby
violated Section 8(b)((1)(A) of the Act.
In Miranda Fuel Company, Inc., supra, the Board
quoted from an opinion of the Court of Appeals for the
District of Columbia Circuit, which stated, inter alia:
Among the most important of labor standards im-
posed by the Act as amended is that of fair dealing,
which is demanded of unions in their dealings with em-
ployees. . . . The requirement of fair dealing between
a union and its members is in a sense fiduciary in na-
ture and arises out of two factors. One is the degree of
dependence of the individual employee on the union or-
ganization; 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, ad-
dresses, and telephone numbers of employees on the
out-of-work register. Thus, Respondent’s refusal to pre-
pare such a list deprived Carlson of the only means
whereby he could fully investigate whether or not his
referral rights were being protected. Contrary to our
colleague, we find that the Union’s comprehensive and
exclusive power and authority in this matter affecting
Carlson’s employment automatically obligated it to deal
1303OPERATING ENGINEERS LOCAL 513 (VARIOUS EMPLOYERS)
6 General Counsel’s brief is in error on several counts, inadvert-
ently, one would hope. At p. 13, it states that while Vitale received
few referrals, ‘‘many of the operators worked steadily.’’ There is no
basis in the record for the quoted matter (the only such reference
is Vitale’s statement that ‘‘there are different people going from one
job to another’’), as there is none for the succeeding sentence, which
states in part: ‘‘[S]everal individuals were being referred on a con-
sistent basis and for jobs lasting more than a year in duration.’’ The
statement that Vitale was not referred to any jobs between October
1990 and May 1991 is wrong. (Tr. 29.) There is no support in the
evidence for the statement at p. 16 of the brief that the list requested
by Vitale ‘‘would include, at most, 400 members.’’ Vitale said that
there is an ‘‘average’’ of ‘‘400 people that are usually out of work,’’
but that tells us nothing about the number of requests for referrals
made in a 6-month period.
7 In this vein, I also find insufficient evidence to support a conclu-
sion that, as Respondent was suggesting at the hearing, Vitale was
actually seeking the referral information to support his objection to
the 1991 election based on the alleged inaccuracy of the voter eligi-
bility list.
fairly with Carlson’s request for job-referral informa-
tion. [Emphasis added.]
Since Local 324, the Board has repeatedly held that, ab-
sent some substantial reason for refusing disclosure, a union
is bound to comply with requests for referral data when they
may serve some useful purpose related to fair treatment. Bar-
tenders’ & Beverage Dispensers’ Local 165 (Nevada Resort
Assn., 261 NLRB 420, 423 (1982) (record ‘‘naked’’ of dis-
crimination against registrant, but, in view of fact that hiring
hall might make errors, etc., entitlement to records found);
Electrical Workers IBEW Local 575 (Coleman Electric), 270
NLRB 66, 70 (1984); Teamsters Local 282 (General Con-
tractors), 280 NLRB 733, 735 (1986) (‘‘an employee is enti-
tled to access to job referral lists to determine his relative po-
sition in order to protect his referral rights’’); Operating En-
gineers Local 825 (Building Contractors), 284 NLRB 188,
189 (1987); Boilermakers Local 374 (Construction Engineer-
ing), 284 NLRB 1382, 1409 (1987) (‘‘He was entitled to
know who was below him on the referral list so he would
know if he was being bypassed.’’); Service Employees Local
9 (Blumenfeld Enterprises), 290 NLRB 1, 3 (1988) (applicant
‘‘suspected’’ wrongful treatment); Service Employees Local 9
(American Maintenance), 303 NLRB 735 (1991).
On the other hand, the Board has at least once, in finding
a violation, referred to the fact that the complainant had a
‘‘reasonable belief’’ that he had been discriminated against.
Carpenters Local 608 (Various Employers), 279 NLRB 747,
759, enfd. 811 F.2d 149, 152 (2d Cir. 1987) (Court as well
noted that the standard was whether there was a ‘‘reasonable
belief that registrants were being treated unfairly’’). The
clear weight of authority, as shown, imposes no ‘‘reasonable
belief’’ requirement—in fact, as indicated, cases such as
Local 324 and Bartenders’ & Beverage Dispensers, Local
165 point in the opposite direction—and it seems to me that
there should be none. An applicant ought to be entitled, as
a matter of right, to inspect hiring hall records to determine
whether his employment opportunities have been, advertently
or otherwise, interfered with. The information is not, and
should not be, secret, and it should be subject to the unre-
strained scrutiny of those persons most vitally interested in
it without the would-be workers having to make a showing
of ‘‘reasonable belief’’ that he or she is the object of hostile
treatment.
Accordingly, I would hold that, in the absence of some
good reason advanced by Respondent for withholding the in-
formation, it should be made available without the necessity
of laying a foundation. If I had to reach the question of
‘‘reasonable belief’’ here, I would be somewhat hard-
pressed. While Vitale described the scant amount of work to
which he was referred prior to writing his August 24 letter,
the record is almost completely bare of evidence of other re-
ferrals, except as discussed below.
Of course, there is no reason why the General Counsel
may not allege that the applicant believed that he had been
mistreated by a union because of his protected activity, as
counsel for General Counsel interprets the allegation here
(Br. p. 13): ‘‘Vitale concluded that the Union was failing to
refer him because of his political opposition to the incumbent
Union officials’’), but it adds little to the case. General
Counsel is not alleging that the Union did discriminate
against Vitale, only that he thought so. It would have been
sufficient (or perhaps not even necessary) to allege that
Vitale thought that he was not receiving his fair share of re-
ferrals (in most of these cases, the allegation is simply that
the Union refused to comply with a request for information
in violation of Section 8(b)(1)(A), see, e.g., Local 324, supra
226 NLRB at 595, 596).
Findings here bearing on Vitale’s belief could be more
specific if there was more evidence in the record. While
there were periods in which Vitale received few referrals,
there were others, such as between June and October 1991,
when referrals seemed to improve; yet during all this time,
Vitale was engaged in antiadministration activities. It is very
difficult, without more evidence, to compare Vitale’s refer-
rals with those of other employees. The only relevant testi-
mony is Vitale’s statement that he had heard from ‘‘numer-
ous other operators that are working in the trade that there
are different people going from one job to the other, spend-
ing very little time on the out-of-work list.’’ He mentioned
two names, but gave no indication of the dates involved, so
that the two instances might have been after he requested the
information from the Union (as to one of the individuals,
Vitale said that he ‘‘just went out recently’’).6
Nonetheless, it is my understanding of the law that it is
enough to establish a right to hiring hall information that the
applicant simply wishes to see it. Good faith, however,
would also seem to be a natural requisite. Here, it is unusual
that Vitale’s request letter asked that the information ‘‘be
made available to the general membership’’ and that it be
‘‘posted in all three union halls in an accessible area for the
members to inspect’’ and, upon request, be mailed to mem-
bers as well. I do not believe that this request for general
publication indicates bad faith, or otherwise taints Vitale’s
request. I credit his testimony that he was interested in inves-
tigating his own situation; that he may have also desired that
the same information be made available to other union mem-
bers does not detract from the validity of his request. Car-
penters Local 608 (Various Employers), supra at 757–758.7
I also have no doubt that Vitale believed that his referrals
were fewer because of his prominent intraunion activities.
Other defenses are often raised in this sort of case, but Re-
spondent did not advance any defenses in its answer, did not
present any evidence, and has not filed a brief. Thus, there
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this 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.’’
is no known reason to be concerned about issues of con-
fidentiality, burdensomeness, or any other defense.
On the basis of the foregoing analysis, therefore, I con-
clude that Respondent violated Section 8(a)(5) of the Act by
failing to furnish the information requested by Vitale on Au-
gust 24, 1991.
CONCLUSIONS OF LAW
1. Associated General Contractors of St. Louis, and its em-
ployer-members, are engaged in commerce within the mean-
ing 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, since on or about August 30, 1991, to sup-
ply to Michael J. Vitale the information requested in his let-
ter of August 24, 1991, Respondent breached its duty of fair
representation and interfered with, restrained, and coerced
Vitale in the exercise of his rights under Section 7 of the
Act, thereby violating Section 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.
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 polices of the Act. The information requested on
August 24, 1991, would be useless to Vitale at this time. The
situation may also have changed, making production of a
more current list unnecessary. I shall therefore limit my rec-
ommended remedy to a requirement that Respondent refrain
from arbitrarily denying referral information to registrants.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Local Union No. 513, International
Union of Operating Engineers, AFL–CIO, St. Louis, Mis-
souri, its officers, agents, and representatives, 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 ar-
bitrarily refusing to honor requests for information, made by
employees on the out-of-work register, pertaining to the ex-
clusive referral system operated by Respondent.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and hiring halls in the St. Louis area
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members and registrants are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.