Plumbers Local 375

National Labor Relations Board - Board Decisions

Apr 6, 1977

228 N.L.R.B. 1191 (N.L.R.B. 1977)

PLUMBERS LOCAL 375 1191
Plumbers and Steamtitters Union Local 375, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO-CLC 1 and Richard
L. Osborn . Case 19-CB-2641
April 6, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On November 12, 1976, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent and the Intervenor filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings ,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
i The Fairbanks, Alaska, Area Plumbers and Pipefitters Joint Appren-
ticeship Training Committee was permitted to intervene at the heaving.
2 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
However, we specifically find it unnecessary to rely on the Administrative
Law Judge's finding that Osborn's credibility was "tainted" by his alleged
falsification of a university enrollment form in view of the Administrative
Law Judge 's additional findings based on demeanor, internal inconsisten-
cies in testimony , and the surrounding circumstances in making his
credibility resolutions.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO , Administrative Law Judge: The
228 NLRB No. 158
hearing in this case, held on August 31 and September 1,
1976, is based upon an unfair labor practice charge filed by
Richard L. Osborn on March 31, 1976, against the above-
named labor organization, herein called Respondent,) and
a complaint issued May 13, 1976, on behalf of the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 19, alleging that Respondent
has engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (])(A) of the National Labor Relations
Act, herein called the Act. Respondent filed an answer
denying the commission of the alleged unfair labor
practices.
Upon the entire record, from my observation of the
demeanor of the witnesses,2 and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
The Mechanical Contractors of Fairbanks, Inc., herein
called the Association, is a State of Alaska corporation
with its office and place of business located in Fairbanks,
Alaska. It is an association of mechanical contractors and
related businesses which conducts collective-bargaining
negotiations on behalf of its employer members with
Respondent and, on behalf of its employer members, has
entered into a series of collective-bargaining agreements
with Respondent. Several of the Association's employer
members who have been bound by the aforesaid collective-
bargaining agreements annually purchase and receive
goods and materials valued over $50,000 directly from
enterprises located outside the State of Alaska.
Respondent admits that the Association is an employer
association whose employer members are engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Based on the foregoing I find that it will effectuate the
policies of the Act for the Board to assert jurisdiction over
this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent, Plumbers and
Steamfitters Union Local 375, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-
CIO-CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
i Fairbanks, Alaska, Area Plumbers and Pipefitters Joint Apprenticeship
and Training Committee (JATC) was permitted to intervene.
2 The principal witnesses were Richard Osborn , the Charging Party, and
George Wise , the coordinator of the JATC . Wise's demeanor was that of a
trustworthy witness. Osborn's was not In addition, Osborn's credibility was
appreciably tainted by the fact that when he enrolled in a University of
Alaska educational program he falsified the enrollment form by stating that
he had lived in Alaska for the past 12 months, thus , avoiding a $300 out-of-
state tuition fee. Osborn testified a clerical told him , in effect, that it was all
right for him to give a false answer to this question Osborn's testimony in
this respect was not convincing . It is incredible that an employee of the
University whose job was to assist students in enrolling would be a party to
this fraud.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ISSUES
The ultimate questions presented for decision are
whether Fairbanks Alaska Area Plumbers and Pipeftters
Joint Apprenticeship and Training Committee, herein
called the JATC, is an agent of Respondent in the
operation of an apprenticeship training program and, if so,
did JATC's expulsion of the Charging Party, Richard
Osborn, from its apprenticeship training program and its
failure to dispatch him to jobs as a part of that training
program, constitute a violation of Section 8(b)(2) and
(l)(A) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The collective-bargaining agreement between Respon-
dent and the Association provides in part that Respondent
is the exclusive source of journeymen and apprentice
plumbers and pipefitters for those employers bound by the
terms of the agreement. In connection with the employ-
ment of apprentices the agreement contains the following
pertinent provisions:
ARTICLE V
4. Employment of Apprentices
A. The employment and disposition of apprentices
shall be according to procedures as set forth by the
Bureau of Apprenticeship Standards of the United
States Department of Labor.
B. All apprentices shall be dispatched to an
Employer's Job Site or Shop from an availability list
maintained by the Joint Apprenticeship Committee.
C. No apprentice shall work on any job by himself
without approval of the Joint Apprentice Committee.
D. Ratio of Apprentices employed to Journeymen
employed.
1. See Crews of Men and Supervision
ARTICLE VI
3. Apprentice Ratio
A. A shop which employs one (1) journeyman may
employ one (1) apprentice.
B. A shop which employs three (3) journeymen
shall employ one (1) apprentice unless mutually agreed
by the Employer and Apprenticeship Committee.
C. A shop may employ one (1) additional appren-
tice for each additional three (3) journeymen employed
(including working foremen).
D. A shop shall employ one (1) additional appren-
tice for each additional eight (8) journeymen employed
(including working foremen).
E. Each apprentice shall be at all times, while on
duty, under the direct responsibility of a journeyman.
No apprentice shall work on any job by himself without
approval of the Apprenticeship Committee.
F. No journeyman may supervise more than one
apprentice at a time.
G. Ratio can be amended at discretion of Appren-
ticeship Committee.
ARTICLE XIII
APPRENTICE AND JOURNEYMEN TRAINING FUND
AGREEMENT
1. Training of Apprentices
A. The approved and present apprenticeship sys-
tem for Fairbanks under the direction of the Joint
Apprenticeship Committee, including their rules, is part
of this agreement.
B. An apprentice shall serve a period of five (5)
years and he shall complete any course of study
prescribed by the Joint Apprenticeship Committee as
well as on the job training. He shall become familiar
with all phases of the work within the industry before
becoming eligible for examination by the Joint Appren-
ticeship Committee for classification as Journeyman.
2. Payments to Trust Fund
Each employer or contractor shall be assessed and
shall pay $150.00 per year to the Joint Apprenticeship
and Journeymen Training Fund before signing this
agreement. He shall also pay forty-five (.45) cents per
man hour worked to the Joint Apprenticeship and
Journeymen Training Fund.
3. Administration
The Joint Apprenticeship and Journeyman Training
Fund shall be administered jointly by an equal number
of representatives of the employers and of the Union.
Each employer and the Union do agree to abide by the
terms and provisions of the trust agreement creating the
Joint Apprenticeship and Journeymen Training Fund,
and all lawful amendments thereto, and they do accept
as their representatives the employer trustees and
Union trustees now serving in such trust fund, and their
lawful successors.
The Joint apprenticeship Committee or the Apprenticeship
Committee referred to in the collective-bargaining agree-
ment is the JATC which is comprised of six representatives,
three designated by Respondent and three by the Associa-
tion . The JATC also is the Board of Trustees referred to in
the collective -bargaining agreement who administer the
moneys which the agreement provides that the employers
shall pay into a Joint Apprenticeship and Journeymen
Training Fund . These moneys are used by the JATC to
administer and operate the apprenticeship training pro-
gram.
The JATC has designated one of its representatives,
George Wise, as coordinator to administer its apprentice-
ship training program. Wise , who has occupied this
position since its creation in the 1960's, is one of
Respondent's representatives to the JATC. The position of
coordinator is a full time one for which the JATC pays
Wise a salary.
PLUMBERS LOCAL 375 1193
An applicant for the JATC apprenticeship training
program must meet age and educational requirements and
have been an Alaska State resident for at least 1 year. The
applicant fills out an application and takes a written
examination . Then after an interview by a screening
committee the JATC, or Wise acting on its behalf, reviews
the application, the test results, and the rating given by the
screening committee and decides whether or not to accept
the applicant into the training program. If accepted, the
applicant and the JATC execute an apprenticeship agree-
ment wherein the JATC agrees to train the applicant as an
apprentice and the applicant agrees to tram diligently in
conformance with the JATC's rules and regulations.
Normally the duration of an apprenticeship is 5 years, the
first 6 months constitute a probationary period.
Osborn arrived in Fairbanks, Alaska, from the State of
Washington in the middle of June 1975. He was not a
resident of Alaska. Osborn travelled to Alaska with Mitch
Tucker, an apprentice in the JATC apprenticeship training
program. Shortly after Osborn's arrival in the Fairbanks
area he was introduced to Wise by Tucker as "my friend
from Ketchikan [Alaska]."3 Subsequently, on July 22,
1975, Osborn visited Wise's office, reminded Wise that he
was the person who had been introduced to him earlier by
Tucker, and asked if he could enroll in the apprenticeship
training program. Wise told him he could not guarantee his
acceptance into the program but to fill out an application
and take the written test. On July 23 Wise filled out an
application and took the written examination which he
passed. Wise looked over Osborn's examination and his
application and told him he could not guarantee his
acceptance into the training program but that Osborn
should start attending classes at the training school. Wise
explained to Osborn that the current class was just about
over but that Osborn should talk with the older apprentices
and try to pick up some of the "stuff" they already had
learned?
On July 23, 1975, Osborn started attending classes at the
training school, however, formal classroom instruction
ended approximately 3 weeks later when the current class
concluded. A new class was not scheduled to begin until
January 1976. Until the start of the new class, Osborn came
to the training school and engaged in group study with
those apprentices already in the training program and with
the other applicants who, like Osborn, had filled out
applications and been tested but had not been accepted
into the program.
On August 11, 1975, Osborn was dispatched to a job at
Arctic Mechanical which is owned by Wise's son. The
previous day Osborn was in Wise's automobile when Wise
stopped at his son's place of business. Osborn noticed a
backhoe parked in the yard and commented that he had
experience operating a backhoe. Wise introduced him to
his son who, after assuring himself that Osborn was an
experienced backhoe operator, offered to employ him. The
next day, at Wise's instruction, Osborn was cleared by
3 This is based on Wise's credible testimony. Osborn first testified that
Tucker introduced him to Wise as "this is Richard Osborn." Later Osborn
testified Tucker introduced him as "a friend that he rode up with "
4 In addition to Osborn, during the summer and fall of 1975 Wise
allowed several applicants to attend classes at the training school with the
idea of having them screened by the screening committee at the start of the
Respondent's hiring facility for dispatch to Arctic Mechan-
ical as an apprentice . He worked there until October 11,
1975. During his employment he spent 5/8 of the time
operating a backhoe. On October 11, 1975, he was
discharged. The employer explained to Osborn that he felt
Osborn did not have any interest in plumbing and
pipefitting. During the period immediately prior to his
discharge Osborn had been absent from work on several
days. Osborn promptly notified Wise about his discharge.
Wise told him that he probably should kick him out of the
school but would give him a second chance. Osborn
continued to come to the school where he studied his code
book and performed odd jobs around the school.
On October 15, 1975, Wise dispatched Osborn, through
Respondent's hiring facility, as an apprentice to a job with
Life Systems. Wise warned Osborn this was his last chance
and he had better not be absent from work as had been the
case during his employment with Arctic Mechanical.
Osborn worked for Life Systems until December 6, 1975.
His foreman was Gary Ackerman who is a journeyman
pipefitter and a member of Respondent. Late in November
1975, when it became apparent Osborn's job was scheduled
to end shortly, Ackerman, in Osborn's presence, told
Respondent's business agents Al Campbell and Lennie
Arsenault that Osborn had performed good work and was
seeking work on Alaska's north slope if there was a job
opening. The business agents stated there was a job
available to which Osborn could be dispatched but since
Osborn was not a journeyman Wise would have to sanction
the dispatch.5 Ackerman and Osborn visited Wise who was
informed by Ackerman that Osborn had performed good
work under his supervision and now wanted to be
dispatched to a job which was available on Alaska's north
slope. Wise replied that Osborn only recently had been
discharged by an employer, so, Ackerman's good report
balanced things out, but Wise stated he wanted to consider
the matter. Later that day Wise notified Osborn he would
not be given the dispatch in question because there were
apprentices ahead of him out of work.
On December 6, 1975, when his job with Life Systems
ended, Osborn returned to the apprenticeship training
school. There was no class scheduled to start until January
1976, so, he studied on his own. Also in December with
other applicants and apprentices Osborn installed a
heating and water piping system, without receiving finan-
cial compensation, as part of the school's on-the-job
training program. During December on one or two
occasions Osborn asked Wise if there were any opportuni-
ties for being dispatched to a job. Wise told him there were
not very many employers requesting workers and those
jobs that were available called for experienced persons.
Commencing on or about December 20, 1975, until
January 5, 1976, Osborn did not go to the apprenticeship
training school because of the holiday season . On Monday,
January 5, 1976, he returned to the school but again there
new class in January 1976 and if they were accepted into the program they
would receive credit for the time they had spent in school prior to the start
of the new class.
5 Apprentices are cleared for work at Respondent's hiring facility, but
Wise exercises sole control over their dispatch
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was no formal instruction inasmuch as the new class was
not scheduled to start until Monday, January 12, 1976.
The JATC, apparently late in 1975, publicized the fact
that applications were being taken by the JATC for its new
apprenticeship training class and further advised the public
of the age and education requirements and the requirement
that applicants must have been residents of Alaska for at
least 12 months. The eligible applicants filled out the
standard application form and took the required test and
from January 7 through January 9, 1976, were interviewed
by a screening committee. Osborn, who was not required to
fill out a second application or take a second test, appeared
before the screening committee on January 7. The
committee consisted of Gary Ackerman and Tom Brown,
both of whom had worked with Osborn at Life Systems.
Since they already knew him, the screening committee
spent very little time interviewing Osborn and gave him a
perfect grade. They did not tell Osborn this but simply
indicated he would be notified at a later date whether he
was accepted into the apprenticeship training program.
On Monday, January 12, 1976, approximately 40
persons, including Osborn, attended the first JATC
apprenticeship training class. Wise told the group that they
all would be enrolled in the CETA programs and his
secretary would provide them with the necessary forms and
they should fill them out and visit Joe Reece at the office of
the State of Alaska employment service. Osborn visited
Reece on or about January 15, 1975, and was informed by
Reece that he was not eligible for enrollment because he
had not been a resident of the State of Alaska for 12
months? Reece promptly notified Wise who, the same day,
told Osborn that if he had known Osborn was not a
resident he would have never allowed him to enter the
program and that while Wise could not allow Osborn to
enter the program until he met the 12-month residence
requirement that Osborn could continue to attend classes
at the apprenticeship training school. Wise also indicated
that if Osborn wanted to challenge his decision he would
have to go before the JATC.8
Osborn, on or about January 19, 1976, spoke to
Ackerman who, as described supra had supervised Osborn
at Life Systems and was a member of the screening
committee which had interviewed the applicants for the
apprenticeship training program. Osborn told Ackerman
that he had failed to qualify for the JATC apprenticeship
training program because he had not lived in Alaska for 12
months. Ackerman, that evening, in Osborn's presence,
asked Wise about Osborn's "problem." Wise, in a raised
6 CETA refers to the Comprehensive Education Employment Training
Act of 1973, a Federal act, which in substance provides funds for tuition and
living expenses connected with approved educational programs. It is
administered by the several states
7 The State of Alaska requires that no student shall be enrolled in a
CETA institutional program unless he has been a resident of the State for at
least 12 months
8 The conversation between Osborn and Wise is based on a composite of
their testimony.
9 The conversation between Wise and Ackerman is based on the credible
testimony of Ackerman Contrary to Ackerman , Osborn testified that Wise
told Ackerman that Osborn could not continue to attend classes at the
school and that Ackerman in response pointed out that Wise had allowed
other nonresidents to attend the school . Osborn, as I have indicated
previously , did not impress me as a trustworthy witness, thus, I have rejected
his testimony in all cases where it has been contradicted.
tone of voice, explained that Osborn did not meet the
training program's 12-month residency requirement and
that a decision to allow Osborn to enter the program would
have to be made by the JATC because Wise could not
waive the committee's rules. Ackerman asked if he,
Ackerman, could speak in Osborn's behalf before the
JATC and if Osborn would be allowed to continue
attending classes at the apprenticeship training school.
Wise answered in the affirmative.9
The day after Ackerman's confrontation with Wise,
described supra, Wise asked why Osborn had gone over
wises head about his problem. Osborn explained that it
was not his intent to go over Wise's head but in speaking to
Ackerman about his problem he was simply trying to get
information. Wise replied that if Osborn wanted informa-
tion to come to him. During the conversation Osborn
declared that he did not feel he was being treated fairly
since there were other nonresidents who had been taken
into the program. Wise in effect denied that this was true
and asked for the names of the persons involved. Osborn
refused to reveal their names, stating that Wise should
already know their names.io
On or about January 20, 1976, Osborn informed Wise
that he wanted to appeal Wise's decision not to admit him
into the apprenticeship training program. Wise stated that
he would notify Osborn when the JATC held its next
meeting . Osborn continued to attend classes at the
apprenticeship training school and on two occasions asked
Wise when the JATC was scheduled to meet so he could
appear before the committee. Wise explained why the
committee had not scheduled a meeting and stated that
Osborn would be notified when a meeting was held.
On or about February 24, 1976, Osborn informed Wise
that he wanted Respondent to reimburse him the $250 he
had paid as a down payment on his initiation fee. Wise and
Osborn went to Respondent's offices where Wise spoke to
the office secretary who determined the amount of money
Osborn had paid toward the initiation fee and made out a
check for this amount which Wise took into the office of
Business Manager Cy Hughes for signature. Wise told
Hughes that Osborn was an applicant for the apprentice-
ship training program who had made a down payment on
his initiation fee and needed the money back. After Hughes
endorsed the check Wise "took it over to" Business Agent
Campbell who also endorsed it. Wise then handed the
check to Osborn who had been waiting for him in
Respondent's outer office." Wise told Osborn, in effect,
that Osborn could no longer attend classes at the training
10 The description of this conversation is based on a composite of
Osborn's and Wise's testimony to the extent they do not contradict one
another . Where there is a contradiction I have rejected Osborn 's version
because Wise impressed me as the more trustworthy witness. Moreover,
Osborn's testimony about this conversation was internally inconsistent on a
significant matter. On direct examination he testified that when he voiced
the accusation there were other nonresidents in the program that Wise,
rather than deny this, in effect admitted it was true. On cross-examination
Osborn , consistent with Wise's testimony, admitted that Wise , rather than
concede the truth of the accusation, asked Osborn for the names of the
nonresidents but that Osborn refused to reveal their names.
i1 The description of what occurred when Wise secured Hughes' and
Campbell 's endorsements on the check is based on Wise's credible
testimony. I reject Osborn's testimony that he overheard Wise tell someone
hidden from Osborn's sight that Osborn , "had gotten mixed up with
Anderson and Ackerman and they were putting a bunch of shit in
PLUMBERS LOCAL 375
school but could return to the school after he had been a
resident for 12 months.12
On or about February 26, 1976, Osborn returned to the
school and asked Wise to sign some Veteran's Administra-
tion papers which would have enabled him to be paid for
the time he had attended school. Wise declined, explaining
to Osborn that he could not sign the VA papers because
Osborn had never been accepted into the apprenticeship
training program. Osborn stated that in his opinion he had
been accepted because he had gone before the screening
committee and was never told he was not accepted and had
been allowed to attend classes . Wise told Osborn that if he
did not like Wise's decision he could appeal it to the JATC
and explained the appeal procedure.
On March 3, 1976, by letter, Osborn appealed to the
JATC to overrule the rejection by Wise of his application
to enter the apprenticeship training program.
On March 31, 1976, Osborn filed the unfair labor
practice charge in the instant case and a complaint issued
on May 13, 1976.
The hearing on Osborn's appeal to the JATC was held on
June 23, 1976, before a panel composed of one representa-
tive from the Association, one from Respondent and one
from the public sector. Wise testified at this hearing.
During his testimony Wise declared that since his tenure as
JATC coordinator there had never been "an NLRB suit or
anything like this before" and expressed his opinion that,
"this thing that was going on" was a "political action" and
warned, "anybody involved with this action would pay."
Immediately following the hearing, Gary Ackerman, who
had apparently testified on behalf of Osborn, spoke to
Wise and in effect asked if he was accusing Ackerman of
acting out of political motives in speaking out on behalf of
Osborn. At the instant hearing when questioned about
Wise's response Ackerman gave vague and incoherent
testimony. He was unable to recall Wise's comments.
At the time that Osborn filed his appeal he wrote out a
statement outlining his version of the events which he felt
were pertinent to his case and sent copies of this statement
to several persons including officials of Respondent and
the JATC. In this statement there is a reference to the fact
that when Osborn first came to Fairbanks he roomed with
Earl Attla for 2 weeks. Early in April 1976, Attla, an
apprentice in the JATC apprenticeship training program,
was visiting Wise on a business matter when Wise took out
Osborn's statement and asked if Attla knew that Attla's
name was mentioned in the statement. Attla indicated he
knew about this. Attla then testified that Wise asked, "did I
know I had jeopardized the whole CETA program by
letting Osborn stay up in my room at the University" [and]
"then he said there was a conspiracy going on between
Hoke Anderson and George Johnson and Richard Osborn.
It was something of this nature anyway."
[Osborn'sI head" Osborn, as I have indicated previously, did not impress
me as a trustworthy witness . Moreover, Osborn, who was at least 30 feet
away in another room behind a partition, was unable to place this remark in
its context but, to the contrary, testified that this was the only remark made
by Wise that he could hear or understand and that he was not able to hear
or understand any of Wise's other remarks.
i2 This is based on Wise's credible testimony I have rejected Osbom's
B. Ultimate Conclusions
1195
The General Counsel takes the position that due to
George Wise's treatment of Osborn Respondent violated
Section 8(b)(2) and (1XA) of the Act. In making such a
determination , the threshold question is whether , as alleged
in the complaint , Wise, the JATC coordinator, was acting
as an agent of Respondent . I am of the opinion that the
record establishes that the JATC is an agent of Respon-
dent. The JATC exists by virtue of the collective-bargain-
ing contract between Respondent and the Association and
operates pursuant to the terms of said contract: The
contract requires that the JATC operate its training
program according to procedures set forth by the U.S.
Department of Labor; the contract specifically incorpo-
rates the "apprenticeship system for Fairbanks under the
direction of the JATC, including their rules , [as] part of
this agreement"; the contract requires that apprentices be
dispatched from an availability list maintained by the
JATC and be employed only with the approval of the
JATC ; the contract requires that an apprentice shall
complete a course of study proscribed by the JATC; the
contract provides that the JATC shall consist of an equal
number of representatives of the Association and Respon-
dent ; the contract gives the JATC viability, requiring
contributions to the JATC at rates agreed to by Respon-
dent and the Association . In these circumstances, I find
that the JATC is an agent of Respondent in its operation
and administration of the apprenticeship training program.
Local 80, Sheet Metal Workers International Association,
AFL-CIO, and its Agents, 161 NLRB 229, 233-234 ( 1966);
United Brotherhood of Carpenters and Joiners of America,
Local #1913, AFL-CIO, et al. (Associated Contractors of
America, Southern California), 213 NLRB 363, fn. 1 (1974).
The General Counsel takes the position that Respon-
dent's conduct toward Osborn violated Section 8(b)(2) and
(1)(A) of the Act in three separate respects : (1) The
dispatch of John Earll to a job, instead of Osborn, on
December 23, 1975 ; (2) The expulsion of Osborn from
apprenticeship training classes on February 24, 1976; (3)
The failure to dispatch Osborn to jobs subsequent to
January 15, 1976 . I shall evaluate herein the evidence
pertinent to these contentions.
1. General Counsel takes the position that , "Osborn's
failure to receive dispatch on December 23, 1975, must
have been based on illegal considerations". On December
23, 1975 , Wise dispatched John Earll to a job with Eskimo
Inc. Earll , who had resided in Alaska only since October 8,
1975, filed his JATC apprenticeship training program
application with Wise on October 10, 1975 . Wise knew
Earl! did not meet the program 's 12-month residency
requirement. General Counsel contends that Osborn
should have been dispatched to Eskimo Inc. instead of
Earl for the reason that at this point in time Wise thought
Osborn met the program's residency requirement and his
version inasmuch as Wise impressed me as the more credible witness. I
recognize that Wise at one point indicated he expressly told Osborn that he
did not want him back in school because Osborn's request for the return of
his initiation fee down payment indicated to Wise that he was no longer
seriously interested in becoming a ,journeyman . Wise later convincingly
explained that while this thought was in his mind he did not express it to
Osborn.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application predated Earll's. Even assuming that Wise
acted in a statutory impermissible manner in giving this
dispatch to Earll,13 there is not an iota of evidence to
establish that Osborn, rather than another applicant or
apprentice, should have received it. In any event, Wise
credibly testified Earll was given the disputed job because
Earl) was already an apprentice with 3 years' experience in
performing the work involved.14 Moreover, there is
insufficient evidence to support the contention of the
General Counsel that Wise' s selection of Earll, instead of
Osborn, was motivated by either personal considerations
or animosity toward Osborn, or internal union politics, or a
combination of these factors. The only evidence which the
General Counsel points to in support of this contention is:
(a) In October 1975 Earl lived for a "short period" in
Wise's home; (b) In November 1975 Ackerman, instead of
speaking to Wise about the matter, went directly to
Respondent's business agents in an effort to get Osborn a
job on Alaska's north slope; (c) During membership
meetings Ackerman spoke out against the policies of
Respondent's elected officials. There is no evidence that
Wise, on December 23, 1975, was antagonistic toward
either Ackerman or Osborn because of Ackerman' s union
politics or his prior effort to get a job for Osborn,15 nor is
there any evidence that Wise favored Earll over Osborn
because Earll at one time lived at his home for a short
period of time. Clearly the record does not establish by a
preponderance of the evidence that on December 23, 1975,
Respondent failed to dispatch Osborn to the Eskimo Inc.
job, as alleged in the complaint, "for reasons relating to
personal animosity, internal union politics, and/or other
arbitrary, capricious and irrelevant reasons."
Based on the foregoing I find that the General Counsel
has not proven by a preponderance of the evidence that,
"Osborn's failure to receive dispatch on December 23,
1975, must have been based on illegal considerations."
2. General Counsel takes the position that "personal or
political motivation formed a significant part of the basis
for Osborn's termination from participation in the appren-
ticeship training program." In this regard it is not disputed
that the JATC policy has historically been to accept only
applicants who have resided within the State of Alaska for
12 months. This is admittedly a valid requirement not
challenged by the General Counsel. Osborn did not meet
this requirement, so, on or about January 14, 1976, when
Wise discovered this,16 Wise in effect informed Osborn
that although he would be allowed to continue to attend
classes he could not be formally accepted into the
apprenticeship training program. Wise attended classes
13 Whether Earll's December 23 referral was controlled by arbitrary or
capricious considerations and was hence unlawful , is not alleged as an
unfair labor practice in this proceeding At the conclusion of his case-in-
chief the General Counsel successfully moved for the deletion of the
allegation, par 9 A of the amended complaint, which encompassed this
issue
14 Within 2 weeks after his referral to Eskimo Inc., this employer,
presumably because of Earll's experience , raised his rate of pay from an
apprentice's rate to the Journeyman rate
is To the contrary, the record indicates that Respondent as of January
1976, looked upon Ackerman with favor, for he was appointed at this time
to the JATC screening committee by either Hughes, Respondent's business
manager, or Wise
16 1 recognize that Osbom's application on its face, by virtue of his
employment history, indicates Osborn did not meet the 12-month residency
from January 15, 1976, until February 24, 1976.17 On
February 24 he requested that Respondent reimburse him
for his initiation fee down payment. At this point Wise
decided Osborn should not be allowed to attend classes at
the school until he had met the 12-month residency
requirement.
The General Counsel contends that Osborn's expulsion
from the school was motivated by the following personal
and/or intra-union political considerations: (a) Wise was
hostile toward Osborn because Gary Ackerman, a member
of Respondent who was outspoken in his opposition to
Respondent's officials, had spoken up on behalf of Osborn;
(b) Wise was hostile toward Osborn because he associated
with Hoke Anderson, a former instructor at the school,
who had argued with Wise. The evidence pertinent to these
contentions is evaluated herein.
Ackerman is a member of Respondent who unsuccessful-
ly campaigned for office in 1973 against Cy Hughes,
Respondent's current business manager . Ackerman testi-
fied that during 1975 he regularly attended Respondent's
membership meetings and spoke out against, as well as in
favor of, Hughes' policies. There is no evidence that
Hughes or Wise or any of Respondent's officials indicated
hostility toward Ackerman, other than Ackerman's testi-
mony that on a "couple" of occasions - the dates of which
he was unable to recall - Hughes, "gave me a bad look."
Quite the contrary, in January 1976 Ackerman was
appointed to the JATC screening committee by either
Hughes or Wise, which is hardly a sign that he was out of
favor with Respondent. In sum, the record does not
indicate that when Osborn was expelled Wise or Hughes
felt antagonistic toward Ackerman on account of his union
politics. Viewed most favorably for the General Counsel,
the record establishes that on January 19, 1976, Wise
became irritated because Osborn had spoken to Ackerman
[rather than with Wise I about his problems. However, to
conclude that this irritation played a role in Osborn's
subsequent expulsion from training school classes would be
sheer speculation.
Hoke Anderson, a journeyman pipefitter and a member
of Respondent, was employed as an instructor at the JATC
apprenticeship training school until August 1975 when he
quit. Anderson thereafter kept in "active contact" with
some of the students, including Osborn. Anderson testified,
"Wise and I crossed horns one time" about 2 months
before Anderson quit teaching at the school. Anderson was
not able to remember what they argued about. He testified,
"it was just a disagreement and I can't even tell you what it
was over." Anderson further testified that he is a friend of
requirement. I also recognize that Wise, who looked over the application,
should normally have noticed this. However, Wise in general impressed me
as a trustworthy witness and his testimony that he was under the mistaken
impression that Osborn met the program's residency requirement was given
in a convincing manner Moreover, Wise's treatment of Osborn in the
months that followed the submission of the application is consistent with a
belief that Osborn met the program's residency requirement.
11 The JATC policy is to permit nonresident applicants to attend classes
[until they meet the 12-month residency requirement ) even though they
cannot be formally accepted into the apprenticeship training program
However, Wise discourages these applicants from following this course of
conduct unless they have special skills or experience. In Osborn's case Wise
allowed him to continue to attend classes despite his status as a nonresident
because of the time and effort the JATC had already invested in Osborn's
training.
PLUMBERS LOCAL 375
Wise and that their argument was not important and that
Wise has never mentioned the argument or indicated he
was mad about the matter. In the light of this record I
conclude that there is no evidence that at the time of
Osborn's expulsion Wise was hostile toward him because of
his relationship with Anderson or that Wise was hostile
toward Anderson. I recognize that, during the first part of
April 1976 in a discussion related to Osborn's appeal to the
JATC over Wise's rejection of Osborn's application, Wise
told apprentice Attla that he felt, "there was a conspiracy
going between Hoke Anderson . . . and Richard Osborn."
This statement is too ambiguous to shed any light on
Wise's motivation for expelling Osborn. If it sheds light on
anything it indicates the state of Wise's mind concerning
either Osborn's appeal to the JATC or his filing the instant
unfair labor practice charge. The same is true about Wise's
testimony given during the June 23, 1976, hearing on
Osborn's appeal wherein Wise declared that since his
employment as coordinator there had never been "an
NLRB suit or anything like this before" and that "this
thing that was going on" was a "political action" and that
"anybody involved with this action would pay."
Based on the foregoing, Respondent's contention that
Osborn's expulsion from the JATC apprenticeship training
school classes was motivated by personal and/or intra-
union political considerations lacks evidentiary support.
On the other hand, as described below, the record
establishes that Wise expelled Osborn for legitimate
reasons.
Wise credibly testified that the reason for Osborn's
expulsion was Wise's conclusion that Osborn no longer was
seriously interested in becoming a journeyman pipefitter.
This conclusion was based on Osborn's lack of attention in
class 18 and his failure to attend classes for the entire school
day.19 Also Osborn asked that his initiation fee down
payment be reimbursed. All of these factors led Wise to
believe that Osborn was no longer seriously interested in
becoming a journeyman pipefitter, hence, since Osborn, a
nonresident, was in a sense only being allowed as a favor to
attend classes, Wise concluded that it would be best if he
was expelled until such time as he met the 12-month
residency requirement.
Based on the foregoing, I find the General Counsel has
failed to prove by a preponderance of the evidence that
personal or intra-union political considerations or a
combination of both formed any part of the basis for
18 The credible testimony of Wise and Dennis Michels, an instructor at
the school, establishes that Osborn, instead of studying, read popular
magazines and paperback novels during classtime and, even though Wise
and Michels spoke to him about this conduct, continued to engage in it,
particularly in defiance of Michels' criticism I have rejected Osborn's
testimony to the extent it conflicts with Wise's and Michel's inasmuch as
they impressed me as the more reliable witnesses.
19 The credible testimony of Wise and Michel establishes that Osborn
arrived late for class and left early and falsified the daily attendance log to
indicate that he had attended class for the required period of time The fact
that others did this is not relevant to Osborn's situation Osborn did not
meet the program's residency requirement and in a sense was being allowed
to attend classes as a favor
20 In the case of applicant Brian Gurley who was dispatched on October
7, 1975, the General Counsel's assertion that Ginley came to Alaska
sometime between November 1974, when he left his last job in Ohio, and
1197
Osborn's termination from participation in the JATC
apprenticeship training program.
3. The General Counsel's final contention is that,
"Respondent's failure to dispatch Osborn subsequent to
January 15, 1976, constitutes a further violation of the
Act." January 15 is the day on which, as described supra,
Wise learned Osborn did not meet the training program's
12-month residency requirement and, because of this,
rejected Osborn's application to enter the program, but
allowed him to continue to attend the school's classes until
February 24, 1976, on which date, as found supra, for
reasons not violative of the Act, Wise expelled him from
the school. Under the circumstances, the question present-
ed by the General Counsel's final contention is whether
Respondent's failure to dispatch Osborn to a job between
January 15 and February 24, 1976, constitutes a violation
of the Act. The fact that during this period of time
Respondent dispatched applicants or apprentices who met
the residency requirement does not establish that its failure
to dispatch Osborn, who did not meet the residency
requirement, was arbitrary or capricious or otherwise
impermissible. In this connection the record establishes
that persons in Osborn's situation - applicants who did
not meet the 12-month residency requirement but had been
permitted to attend classes - were dispatched to jobs only
in those cases wherein the applicant had had a significant
amount of experience in the trade as was the case of John
Earll who, as described supra, had already been an
apprentice for 3 years and had been enrolled during that
period in an apprenticeship training program in another
state similar to the JATC program.20 Osborn did not fit
into this category. Moreover, even assuming that Osborn,
during this period, was eligible for dispatch, there is no
showing that there was a job available to which Osborn,
rather than a resident who had been accepted into the
training program, would have been dispatched.
Based on the foregoing, I find that the evidence is
insufficient to establish that Respondent's failure to
dispatch Osborn to a job subsequent to January 15, 1976, is
a violation of Section 8(b)(2) and (1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 21
The complaint is dismissed in its entirety.
February 18, 1975, is not an accurate reflection of the record which in
substance indicates Ginley worked in Ohio from December 1973 to
November 1974 at which time in November 1974 he came to Alaska. This is
not sufficient to controvert Wise's testimony that Gmley was dispatched
only after he had been in Alaska for 12 months In any event, viewed most
favorably to the General Counsel, Gmley's case constitutes an isolated
instance wherein a nonresident without prior work experience was
dispatched with Respondent's knowledge approximately only 2 or 3 weeks
prior to meeting the 12-month residency requirement
21 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