Plumbers Local 32 (Alaska Pipeline)

National Labor Relations Board - Board Decisions

Oct 29, 1993

312 N.L.R.B. 1137 (N.L.R.B. 1993)

1137
312 NLRB No. 180
PLUMBERS LOCAL 32 (ALASKA PIPELINE)
Plumbers and Pipe Fitters Local Union No. 32,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL–
CIO (Rockford Corporation d/b/a Alaska Con-
tinental Pipeline, Inc.) and William Harper and
Michael Flowers. Cases 19–CB–7206 and 19–
CB–7208
October 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 23, 1993, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in response to the excep-
tions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Plumbers and Pipe Fitters
Local Union No. 32, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL–CIO,
Seattle, Washington, its officers, agents, and represent-
atives, shall take the action set forth in the Order.
James Sand, Esq., for the General Counsel.
Hugh Hafer, Esq. (Hafer, Price, Rinehart & Robbies), of Se-
attle, Washington, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
conslidated case in trial at Seattle, Washington, on February
4, 1993. On August 10, 1992, William Harper filed the
charge in Case 19–CB–7206 alleging that Plumbers and Pipe
Fitters Local 32 (Respondent or the Union) committed cer-
tain violations of Section 8(b)(1)(A) of the National Labor
Relations Act (the Act). Michael Flower filed a charge in
Case 19–CB–7208 on August 12, 1992. On October 7, 1992,
the Regional Director for Region 19 of the National Labor
Relations Broad issued a consolidated complaint and notice
of hearing against Respondent, alleging that the Union vio-
lated Section 8(b)(1)(A) of the Act by refusing to let Harper
and Flowers register at its hiring hall and by refusing to refer
Harper and Flowers to a mainline pipline construction job.
Respondent filed a timely answer and amended answer to the
complaint, denying all wrongdoing.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Rockford Corporation d/b/a Alaska Continental Pipeline,
Inc. (the Employer) is a Delaware corporation with an office
and place of business in Longview, Washington, where it is
engaged in pipeline construction. During the 12 months prior
to the issuance of the complaint, the Employer sold and
shipped goods or provided services from its facilities in
Washington to customers outside the State, or sold goods or
provided services to customers inside the State, which cus-
tomers were themselves engaged in interstate commerce by
other than indirect means, of a total value in excess of
$50,000.
Accordingly, I find and the Union admits that the Em-
ployer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Respondent admits and I find that at all times material
herein Respondent has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
In July 1992, the Employer was engaged in a pipeline con-
struction job in the vicinity of Longview, Washington. The
pipeline work was performed under the terms of the National
Pipeline Agreement between the Pipeline Contractors Asso-
ciation and United Association of Plumbers and Pipe Fitters.
Pursuant to the terms of the agreement, the Plumbers and
Pipe Fitters were to be the exclusive source for one-half of
the rig welders utilized on the Employer’s Longview jobsite.
Respondent was designated as the local union responsible for
the dispatch of welders to the project and for administration
of the collective-bargaining agreement. Respondent dis-
patched 7 of the 13 rig welders on the project. This case
concerns the manner in which Respondent dispatched rig
welders to the jobsite. No other job classification is at issue.
Respondent maintained hiring hall lists for the construction
and maritime industries. However, Respondent did not main-
tain a list for pipeline welders. The last time Respondent had
any pipeline work in its jurisdiction was in 1990. Respondent
operated its dispatch procedures for the jobsite without pub-
lished or promulgated hiring hall rules. It did not maintain
any written list of applicants nor dispatch in order of applica-
tion.
Jeff Manning, a member of Respondent, was chosen by
the Union to be the first employee on the job and to be
union steward. The business agent responsible for servicing
this job, Donald Galloway, was not familiar with pipeline
work. Galloway asked Manning for a list of employees
known by Manning to be dependable and qualified rig weld-
ers. In addition to the list given him by Manning, Galloway
had a list of rig welders who had worked the 1990 job and
had received telephone calls from business managers from
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under the relevant agreement the Employer reserved the right to
request employees by name pursuant to a formula set forth in the
contract. Under this agreement the Employer chose six employees,
leaving the Union with the task of referring seven employees. Under
Board law, the Union operated an exclusive hiring hall notwithstand-
ing that the Employer had the right to choose half the employees.
Carpenters Local 608 (Various Employers), 279 NLRB 747, 754
(1986).
other locals recommending certain of their members. From
this pool of applicants Galloway dispatched employees as
needed by the Employer. Welders were not dispatched in
order of application nor were they ranked in any manner.
When questioned as to how employees were selected from
this pool of applicants, Galloway said he relied on Manning.
Manning testified that he submitted a list to Galloway and
did not know how Galloway chose from the list. Several em-
ployees not on Manning’s list were referred to Galloway by
the business managers of their local unions. One employee
was referred by his uncle, a welder chosen by Galloway. Ad-
ditional jobs opened as employees failed welding tests or left
for other reasons. Neither Galloway nor Manning could ex-
plain how employees were selected for these job openings.
The employees on Manning’s list were known to him from
prior jobs or from a steward’s training school he attended.
Some of the employees were only known to Manning by rep-
utation.
Harper and Flowers were members of a Plumbers local
union in Bakersfield, California, and were experienced rig
welders. On July 3, Harper and Flowers visited the jobsite
looking for work. They were directed to Manning who had
been dispatched to the job as union steward. Harper and
Flowers asked about working on the job and were directed
to Al Sexton, the Union’s business manager. Manning said
he was getting names of welders to give to Sexton and told
the welders that Sexton would call them. Manning failed his
welding test and did not work on the jobsite after July 3.
On July 5, the two rig welders went to the Union’s offices
in Seattle, Washington, to sign the out-of-work list for refer-
ral to the pipeline job. Flowers and Harper waited to see
Sexton but Sexton left the offices on business without seeing
the two welders. The receptionist asked Tim Elwell, business
agent, to talk to the two employees. Elwell told them that he
did not handle pipeline work but would try to help them. Ac-
cording to Elwell, the employees insisted on signing an out
of work list and so he gave them the list for welders in the
construction industry. This was the only list for welders that
Elwell had. Harper and Flowers testified that they signed the
list after being told it was for pipeline welders. I credit
Elwell’s testimony that he did not tell the employees that the
list was for pipeline work. There was no such list. Rather,
I find that Elwell simply gave the employees a welders list
to sign and that the employees assumed it was for pipeline
work because they recognized the name of a pipeline welder
on the list.
On July 6, Harper and Flowers, returned to the jobsite
where they observed workers on the jobsite. Believing that
these welders had signed the out-of-work list after them,
Harper and Flowers called Manning. Manning referred the
employees to Sexton.
On July 10, Flowers and Harper went to the jobsite and
found Phil Stroud, the new union steward. Stroud told the
employees to be patient and he would get them a chance to
take the welding test. Flowers and Harper returned later that
day, after two welders had failed their tests. Flowers asked
if he and Harper could get on the job and Stroud referred
them to the Employer’s superintendent.
On July 11, Flowers called Manning and said he was sorry
that they had gotten off on the wrong foot. Manning said
there was no problem. He told Flowers that Sexton was han-
dling the pipeline job.
On July 22, Galloway spoke with Flowers and told him
that the jobs had been filled but ‘‘maybe if some guys bust
the welding test we can get you on the job.’’ Harper and
Flowers had no further contact with the Union and were not
referred to the job.
No members of Respondent worked as welders on this job.
The only two qualified members of Respondent were dis-
patched but did not pass their welding tests. Respondent at-
tempted to dispatch rig welders from the State of Washington
but got no qualified applicants. Thus, all the welders on the
job, dispatched by Respondent, were from out of State and
were members of other local unions. The General Counsel
does not contend that Respondent specifically discriminated
against Flowers and Harper but rather that the arbitrary na-
ture of the selection process breached the Union’s duty of
fair representation to all qualified applicants.
Analysis and Conclusions
Section 8(b)(1)(A) of the Act provides that it shall be an
unfair labor practice for a labor organization ‘‘to restrain or
coerce . . . employees in the exercise of the rights guaran-
teed in Section 7 of the Act.’’ The proviso to Section
8(b)(1)(A) states that the section ‘‘shall not impair the right
of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein.’’ Sec-
tion 8(b)(2) makes it an unfair labor practice for a union:
to cause or attempt to cause an employer to discrimi-
nate against an employee in violation of subsection
(a)(3) of this section or to discriminate against an em-
ployee with respect to whom membership in such orga-
nization has been denied or terminated on some ground
other than failure to tender the periodic dues and the
initiation fees uniformly required as a condition of ac-
quiring or retaining membership.
It is well settled that a labor organization that undertakes
to operate a hiring hall pursuant to an arrangement with an
employer as the exclusive source of employees1 is obligated
to refer individuals without regard to their union membership
or lack thereof. The Board requires the establishment and
nondiscriminatory use of objective standards in the operation
of exclusive hiring halls. Painters Local 277 v. NLRB, 717
F.2d 805 (3d Cir. 1983), enfg. 262 NLRB 1336 (1982);
Painters Local 1178 (Roland Painting), 265 NLRB 1341
(1982). The absence of written standards is not itself viola-
tive of the Act, but is one factor to be considered in deter-
mining whether a hiring hall has been operated objectively.
Laborers Local 394 (Building Contractors), 247 NLRB 97
fn. 2 (1980); Federated Department Stores, 287 NLRB 951
(1987).
Galloway testified that he was not familiar with pipeline
work and that he referred employees based on the rec-
ommendations of Manning and some business managers
1139PLUMBERS LOCAL 32 (ALASKA PIPELINE)
2 Although the complaint only alleges a violation of Sec.
8(b)(1)(A), the issue of a refusal to refer Harper and Flowers was
alleged in the complaint. Further, the refusal to refer the welders was
fairly and fully litigated. I, therefore, find that Respondent also vio-
lated Sec. 8(b)(2).
from other locals. He also referred one employee on the rec-
ommendation of that employee’s uncle. Galloway had more
recommendations than jobs to fill. However, he could not ex-
plain how the employees were selected from the pool of rec-
ommended employees. Manning admitted that he gave rec-
ommendations to Galloway but denied any knowledge as to
how the employees were chosen. Manning did not rank the
employees. There were additional openings after the job
started because some employees failed the welding test.
However, neither Galloway nor Manning could explain how
employees were chosen for these job openings. Employees
were not referred in chronological order.
While the record shows that Manning and Galloway at-
tempted to refer only qualified and dependable welders, at
best a subjective test was used. It would appear that such a
subjective test discriminates in favor of associates of Gallo-
way and Manning. Qualified welders such as Harper and
Flowers could not be considered because they were unknown
to Galloway and Manning. Assuming Manning and Galloway
did not discriminate nor intend to discriminate, it is still im-
possible to find any objective criteria or standards for choos-
ing among the qualified applicants. Neither Manning nor
Galloway could express any objective criteria or standard.
Accordingly, I find the operation of the hiring hall was viola-
tive of Section 8(b)(1)(A) of the Act.
In Morrison-Knudsen Co., 291 NLRB 250 (1988), cited by
Respondent, the Board found no violation where the agree-
ment required the union to refer the most qualified individual
available at the time of the opening. The Board found that
the union business agent sought in good faith to determine
the qualifications of applicants at the hall and that certain
employees had skills and experience that qualified them for
the jobs to which they were referred. The Board found that
the referral operation was not left to the unbridled discretion
of the business agent. Rather, the referrals were objectively
considered in that a record was made of each individual’s
qualifications as stated by the individual in conjunction with
the business agent’s assessment based on questions he had
asked the individual, and the referral records, which indicated
whether an individual had worked on the waterway in the
past. Id. at 250–251 fn. 6.
I find the instant case to be clearly distinguishable from
Morrison-Knudsen. Here, there no evidence of what criteria,
if any, Galloway used in referring employees. Galloway
chose from a pool of rig welders which consisted of employ-
ees recommended by Manning and by business managers
from other locals. Employees unknown to Manning, such as
Harper and Flowers, would be excluded from this pool no
matter how qualified. As to employees included in the pool,
even Galloway could not provide the criteria or standards
used in selecting rig welders for referral.
Respondent argues that even if it is established that the
hiring hall was operated in violation of the Act, all welding
positions were filled at the time Harper and Flowers applied
for work. Thus, Respondent argues that neither employee is
entitled to a make-whole remedy. The welding jobs were not
filled as of the time that Harper and Flowers applied for
work. Presumably, Respondent means that employees were
selected for these jobs prior to July 3. Assuming that the
welding jobs were filled at the time of Harper’s and Flowers’
initial visit to the jobsite, other openings occurred thereafter
as employees failed their welding tests or left for other rea-
sons. In fact, Respondent referred 15 employees for the
seven positions it needed to fill. Respondent’s operation of
the hiring hall makes it impossible to determine whether
Harper and Flowers would have been referred. The Board
has held that ‘‘it is unnecessary to show that jobs were avail-
able at the time of the request for referral.’’ Pipeline Local
38 (Hancock-Northwest, J.V.), 247 NLRB 1250 (1980).
Teamsters Local 519 (Rust Engineering), 275 NLRB 433
(1985). I, therefore, find that Harper and Flowers were re-
fused referral in violation of Section 8(b)(2) of the Act and
leave to the compliance stage any issues concerning back-
pay.2
CONCLUSIONS OF LAW
1. Rockford Corporation d/b/a Alaska Continental Pipeline,
Inc. is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent, Plumbers and Pipe Fitters Local Union
No. 32, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(1)(A) of the Act in
operating its exclusive hiring hall by failing to use objective
criteria and standards in referring applicants for employment
as rig welders to the Employer at the Longview, Washington
jobsite.
4. Respondent violated Section 8(b)(2) by discriminating
against William Harper, Michael Flowers, and other rig
welders seeking referral for employment for reasons not
based on objective criteria and standards, thereby causing the
Employer to refuse to hire the employees.
5. Respondent’s acts and conduct above constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that Respondent be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Based on the lack of objective criteria and the lack of a
ranking of employees, it is impossible to determine if and
when Flowers and Harper would have been referred. Accord-
ingly, I will order a make-whole remedy and leave to the
compliance stage of these proceedings the remedial issues
raised by Respondent’s lack of records. Respondent should
be ordered to make whole Harper and Flowers for any losses
they may have suffered by reason of the discrimination
against them. The Employer’s Longview job is completed.
Therefore, reinstatement is not applicable. Backpay shall be
computed on a quarterly basis, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All motions inconsistent with this recommended Order are de-
nied. 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.
4 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Plumbers and Pipe Fitters Local Union
No. 32, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO, Seattle, Washington, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Discriminating against Michael Flowers, William Harp-
er, and other job applicants seeking referral for employment
through its exclusive hiring hall at the Alaska Continental
Pipeline jobsite at Longview, Washington, because of arbi-
trary reasons not based on objective, consistent criteria and
standards, thereby causing Alaska Continental Pipeline to
discriminate against employees in violation of Section 8(a)(3)
of the Act.
(b) Failing to use objective, consistent criteria and stand-
ards in referring applicants for employment through its ex-
clusive referral system to the Alaska Continental Pipeline
jobsite, or to any other employer with whom it maintains an
exclusive job referral system for pipeline welders.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Michael Flowers and William Harper for
any losses they may have suffered by reason of the discrimi-
natory refusal to refer them to the Alaska Continental Pipe-
line job, in the manner set forth in the remedy section of this
decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its hiring hall, meeting rooms, and offices in
Seattle, Washington, copies of the attached notice marked
‘‘Appendix.’’4 Copies of the notice, on forms provided by
the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to members 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discriminate against Michael Flowers, Wil-
liam Harper, or other job applicants seeking referral for em-
ployment through our exclusive hiring hall at the Alaska
Continental Pipeline jobsite at Longview, Washington, be-
cause of arbitrary reasons not based on objective, consistent
criteria, and standards.
WE WILL NOT fail to use objective, consistent criteria, and
standards in referring applicants for employment through our
exclusive referral system to the Alaska Continental Pipeline
jobsite, or to any other employer with whom we maintain an
exclusive job referral system for pipeline welders.
WE WILL NOT in any like or related manner, restrain, or
coerce employees in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL make whole Harper and Flowers for any loss
they may have suffered by reason of the discriminatory re-
fusal to allow them to use the hiring hall, with interest.
PLUMBERS AND PIPE FITTERS LOCAL UNION
NO. 32, UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL–CIO