Plumbers Local 342 (Contra Costa Electric)

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 688 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
Steamfitters Local Union No. 342 of the United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO (Contra Costa
Electric, Inc.) and Joe Jacoby. Case 32–CB–
4435
September 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
On December 5, 1995, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the Building and Construction Trades Department of the
AFL–CIO and United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO, filed amicus
curiae briefs in support of the Respondent. The General
Counsel filed limited cross-exceptions and a brief in re-
sponse to the briefs filed by the Respondent and amici.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The issue before us is whether the Respondent Union
violated its duty of fair representation and Section
8(b)(1)(A) and (2) of the Act by negligently failing to
refer the Charging Party, Joe Jacoby, to a job in the
proper order from its exclusive hiring hall. The judge,
following recent Board precedent, answered that ques-
tion in the affirmative. The Union and amici urge that
that precedent cannot be reconciled with Supreme Court
decisions concerning the nature of the duty of fair repre-
sentation. On reflection, we find ourselves in agreement
with the Union and amici, and we shall dismiss the com-
plaint.
The facts are straightforward and undisputed. The Un-
ion has an exclusive hiring hall arrangement with Contra
Costa Electric, which is a contractor on the Tosco refin-
ery project in Martinez, California. Jacoby, a member of
the Union for some 27 years, registered for referral on
December 21, 1994. When he did so, he mentioned to
Larry Blevins, the Union’s business representative, that
he wanted to work at the Tosco project. When Jacoby
came to the hiring hall in February 1995 to inquire about
the job, Blevins told him he thought he had already dis-
patched him. Although the judge found that Blevins did
think he had called Jacoby and left a message on his an-
swering machine, there is no record of such an attempt.
Jacoby was not dispatched from the hiring hall until Feb-
ruary 17.

1 The General Counsel also suggests that the Board should not re-
verse the judge without holding oral argument and receiving amicus
curiae briefs from all interested parties. The suggestion is denied as the
record, exceptions, and briefs adequately present the issues and the
positions of the parties.
During the time Jacoby was on the out-of-work list
awaiting referral, several individuals with lower referral
priorities were dispatched ahead of him, in violation of
the hiring hall rules. There is no evidence, and no allega-
tion, that the failure to dispatch Jacoby in the proper or-
der was the result of any sort of animus toward him or,
indeed, that it was anything other than an oversight.
The judge nevertheless found that the Union had vio-
lated its duty of fair representation with respect to Ja-
coby, and thus had violated Section 8(b)(1)(A) and (2).
She relied on established Board precedent that

even assuming the absence of specific discriminatory
intent . . . any departure from established exclusive hir-
ing hall procedures which results in a denial of em-
ployment to an applicant falls within that class of dis-
crimination which inherently encourages union mem-
bership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A)
and (2), unless the union demonstrates that its interfer-
ence with employment was pursuant to a valid union-
security clause or was necessary to the effective per-
formance of its representative function.2

More specifically, the judge relied on Iron Workers Local
118 (California Erectors),3 in which the Board found that
the union’s inadvertent failure to refer an applicant from its
exclusive hiring hall violated Section 8(b)(1)(A) and (2),
even though no invidious or unfair considerations had been
shown. The Board specifically found that, in such circum-
stances, negligence is not a cognizable defense.
The Union and amici contend, however, that such a re-
sult is foreclosed by the Supreme Court’s decisions in
Steelworkers v. Rawson4 and Air Line Pilots Assn. v.
O’Neill, construing the duty of fair representation.5 In
Rawson, the Court reiterated its holding in Vaca v.
Sipes,6 that a union breaches its duty of fair representa-
tion only by conduct toward a member of the collective-
bargaining unit that is “arbitrary, discriminatory, or in
bad faith.”7 The Court then noted that “The courts have
in general assumed that mere negligence, even in the
2 Operating Engineers Local 406 (Ford, Bacon, & Davis Construc-
tion), 262 NLRB 50, 51 (1982), enfd. 701 F.2d 504 (5th Cir. 1983).
Sec. 8(a)(3) proscribes employer discrimination in hiring that encour-
ages or discourages union membership; Sec. 8(b)(2) forbids unions to
cause or attempt to cause employers to discriminate in violation of Sec.
8(a)(3). In an exclusive hiring hall, where the union controls the refer-
ral of applicants for employment, the union violates 8(b)(2) if it bases
referrals on union membership or if its referral process otherwise tends
to encourage or discourage union membership. See generally Radio
Officers v. NLRB, 347 U.S. 17, 43 (1954) (Sec. 8(a)(3) prohibits only
such discrimination as encourages or discourages union membership).
3 309 NLRB 808 (1992).
4 495 U.S. 362 (1990).
5 499 U.S. 65 (1991).
6 386 U.S. 171 (1967).
7 Id. at 190.
329 NLRB No. 65
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 689
enforcement of a collective-bargaining agreement, would
not state a claim for breach of the [duty], and we en-
dorse that view today.”8 In O’Neill, the Court specifi-
cally rejected the suggestion that the duty of fair repre-
sentation is governed by different standards in different
contexts, holding that the three-pronged Vaca v. Sipes
standard applies to “all union activity.”9 The Court also
specifically noted that the duty of fair representation ap-
plies when a union operates a hiring hall.10 Thus, even
though neither Rawson nor O’Neill was a hiring hall
case, the Union and amici argue that, together, those de-
cisions establish that negligence in the operation of a
hiring hall does not violate the duty of fair representa-
tion.
The judge rejected this line of argument. She noted
the Supreme Court’s statement in Breininger v. Sheet
Metal Workers Local 611 that “if a union does wield addi-
tional power in a hiring hall by assuming the employer’s
role, its responsibility to exercise that power fairly in-
creases rather than decreases.”12 She also relied on a
recent decision of the D.C. Circuit in which that court
found that, by equating “arbitrary” with “irrational,” the
Supreme Court in O’Neill had not meant to weaken the
standard of review applicable to unions’ operation of
exclusive hiring halls.13 Rather, the court found, “a un-
ion’s operation of a hiring hall is easily distinguishable
from other activities where the union does not assume
the role of employer.”14 The judge also noted that the
Board had decided California Erectors after the Supreme
Court’s decision in O’Neill, and therefore inferred that
the Board had adhered to its view that the negligent fail-
ure to refer an applicant in the proper order from an ex-
clusive hiring hall constitutes arbitrary conduct that vio-
lates the duty of fair representation and Section
8(b)(1)(A) and (2).
Although the judge was correct in her reading of Cali-
fornia Erectors, we agree with the Union and amici that
that decision is inconsistent with Supreme Court prece-
dent15 To begin with, even though O’Neill and Rawson

8 495 U.S. at 361–362 (emphasis added).
9 499 U.S. at 67 (emphasis added).
10 Id. at 77.
11 493 U.S. 67 (1989).
12 Id. at 89 (emphasis in the original).
13 Plumbers Local 32 (Alaska Pipeline) v. NLRB, 50 F.3d 29, 33
(D.C. Cir. 1995), cert. denied 516 U.S. 974 (1995).
14 50 F.3d at 33. The court, citing Breininger, also characterized the
union’s increased responsibility in operating a hiring hall as “a high
standard of fair dealing.” Id. at 34.
15 We note that California Erectors failed to mention either O’Neill
or Rawson, and thus did not effectively come to grips with the issue
before us.
Member Hurtgen finds that California Erectors is distinguishable.
In that case, the union gave a false reason for the nonreferral and thus
the nonreferral was “unexplained.” An “unexplained” failure to refer
is, by definition, arbitrary conduct and thus in breach of the duty of fair
representation. The Board further held that the union’s asserted negli-
gence was not a defense to this conduct. By contrast, in the instant
case, the union does give an explanation for its nonreferral, i.e., that it
were not hiring hall cases, the Supreme Court’s state-
ments in those decisions concerning the nature of the
duty of fair representation persuade us that the Union did
not violate its duty by failing to dispatch Jacoby in the
proper order. Thus, the Court in Rawson reiterated the
Vaca v. Sipes standard, that the duty of fair representa-
tion is breached only by conduct that is “arbitrary, dis-
criminatory, or in bad faith,” and also endorsed the view
that the duty is not breached by conduct that constitutes
“mere negligence.” In O’Neill, the Court held that the
Vaca v. Sipes standard applies to all union conduct, and
noted that the duty of fair representation applies to the
operation of hiring halls. We read these decisions to-
gether to mean that “mere negligence” in the operation of
an exclusive hiring hall does not give rise to a claim for
breach of the duty of fair representation, even by an ap-
plicant who loses an employment opportunity as a result
of the union’s mistake. Accordingly, to the extent that
California Erectors and other decisions of the Board
hold to the contrary, they are overruled.
We do not believe that our conclusion is incompatible
with the Court’s statement in Breininger that, under the
duty of fair representation, a union’s responsibility to
exercise its power fairly “increases” to the extent that it
takes on functions similar to those of an employer in op-
erating a hiring hall. That statement must be understood
in the context in which it was made, that is, as a response
to a contention by the union respondent in that case that
the duty of fair representation did not apply at all in the
hiring hall context because the union was acting essen-
tially as the employer in matching up job requests with
available personnel, rather than as a representative of the
employees. In firmly rejecting that proposition, the
Court noted that the union obtained the power to refer
workers for employment through the hiring hall only
because of its status as the employees’ representative and
by virtue of the power it exercised under the collective-
bargaining agreement. The key, the Court said, was that
in operating the hiring hall, the union was administering
a provision of the contract, a function which had always
been found to be subject to the duty of fair representa-
tion. In operating the hiring hall, then, the union was not
relieved of its duty simply because it was performing a
function that “might be seen as similar to what an em-
ployer does.”16
Read in context, we do not believe that the Court’s
subsequent observation that a union’s responsibility un-
der the duty of fair representation “increases” when it
operates a hiring hall was intended to mean that the un-
ion is subject to a higher standard in operating a hiring
hall than in performing other representational functions,
particularly since the Court, earlier in Breininger, de-

was negligent, and the General Counsel asserts that such negligence is
the basis for the violation.
16 493 U.S. at 89.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690
scribed the union’s duty in hiring hall cases in terms
similar to those it has used in other contexts, as a duty to
exercise its authority “in a nonarbitrary and nondiscrimi-
natory fashion.”17 Rather, we understand the Court to be
making the point that when a union by virtue of a collec-
tive-bargaining agreement takes on additional areas of
authority with respect to the employees it represents,
such as the authority to control referrals through a hiring
hall, it also takes on additional responsibilities, in that its
duty of fair representation is necessarily expanded into
those areas. This reading is consistent with the Court’s
oft-repeated statement that under the duty of fair repre-
sentation, a bargaining agent has responsibility “equal in
scope to its authority.”18 It is also consistent with the
Court’s decision in O’Neill, which specifically rejected
the suggestion that the duty of fair representation is gov-
erned by different standards in different contexts and
held that the Vaca v. Sipes standard applies to “all union
activity.”19
That the negligent failure to refer an applicant from an
exclusive hiring hall may cost him an employment op-
portunity does not require a different result. The Board
has consistently found that the duty of fair representation
is not breached by mere negligence in other settings,
even when it leads proximately to loss of employment.
Thus, the Board has held that a union’s negligent failure
to process a meritorious discharge grievance in a timely
fashion does not constitute a breach of the duty of fair
representation, even where, as a result of the union’s
negligence, the grievance becomes time-barred and the

17 Id. at 88.
18 Hines v. Anchor Motor Freight, 424 U.S. 554, 564 (1976), quoted
in United Parcel Services v. Mitchell, 451 U.S. 56, 67 (1981) (Stewart,
J, concurring), and Abood v. Detroit Board of Education, 431 U.S. 209,
222 (1977). See also Humphrey v. Moore, 375 U.S. 335, 342 (1964)
(“broad authority of the union as exclusive bargaining agent in the
negotiation and administration of a collective bargaining contract is
accompanied by a responsibility of equal scope”).
19 499 U.S. at 67. We respectfully reject the dissent’s suggestion, in
reliance on Plumbers Local 32 v. NLRB, supra, that O’Neill means only
that the Vaca v. Sipes standard is applicable to both contract negotia-
tions and contract administration, and that we must continue to apply a
different, higher standard to the operation of a hiring hall, because “a
union’s operation of a hiring hall is easily distinguishable from other
activities where the union does not assume the role of employer.” 50
F.3d at 33. As the Supreme Court stressed in Breininger, the reason the
duty of fair representation applies in a hiring hall context is that, in
operating the hiring hall, the union is administering a contract provi-
sion. Thus, the circuit court’s assertion that the standard for operation
of a hiring hall can and should be different from the standard for con-
tract administration seems to us to be unsupportable.
We note further that Rawson is a case in which the union, in per-
forming its functions on the contractually established joint safety com-
mittee, could also be said to have “assumed the role of the employer.”
Indeed, the Supreme Court specifically described the contract provi-
sions creating the committee as “a limited surrender [to the union] of
the employer’s exclusive authority over mine safety.” Rawson, supra,
495 U.S. at 373–374. Nevertheless, the Court applied the same Vaca v.
Sipes standard that it has applied in other contexts and held that a claim
that the union had acted negligently in performing its duties on the
committee did not make out a breach of the duty of fair representation.
grievant is therefore prevented from obtaining relief.20
The Board also has found no breach of the duty of fair
representation when a union negligently failed to give the
strike notices required under Section 8(d), even though
the result of the union’s negligence was that strikers rep-
resented by the union lost their statutory protection and
were discharged.21
Our decision today is consistent with the Board’s ini-
tial decisions applying the duty of fair representation in
the hiring hall context. Thus, not long after the Board
first held that a breach of the duty of fair representation
constitutes an unfair labor practice,22 it rejected the no-
tion that mere negligence on the part of the union was
sufficient to constitute a violation. The Board held in
Operating Engineers Local 18 (Ohio Pipe Line), 144
NLRB 1365 (1963), that a union’s failure to reregister
the charging party for referral, in the mistaken belief that
he had already been reregistered, did not breach the duty
of fair representation or violate Section 8(b)(1)(A) and
(2). In so finding, the Board held that, “[m]ere forgetful-
ness or inadvertent error is not the type of conduct that
the principles of Miranda were intended to reach.”23
Similarly, in Plumbers Local 40, 242 NLRB 1157, 1163
(1979), enfd. mem. 642 F.2d 456 (9th Cir. 1981), the
Board declined to find that a union’s referral of an em-
ployee instead of others occupying higher positions on
the referral list breached the duty because the union’s
“conduct has not been shown to have been ‘motivated by
hostile, invidious, irrelevant, or unfair considerations’
and, accordingly, at best, was no more than a judgment
which, while possibly erroneous or mistaken, was not
arbitrary.”
It was not until 1982 that the Board first found a viola-
tion of the duty of fair representation in a hiring hall con-
text based on negligent conduct, holding for the first
time, without explanation or overruling of its prior deci-
sions, that “any departure from established exclusive
hiring hall procedures which results in a denial of em-
ployment to an applicant” breaches the duty. Operating
Engineers Local 406 (Ford, Bacon, & Davis Construc-
tion Co.), supra, 262 NLRB at 51. Meanwhile, the Board
continued to adhere to the view that mere negligence was
not enough to violate the duty in other contexts. See,
20 Truck Drivers Local 692 (Great Western Unifreight System), 209
NLRB 446, 448 (1974).
21 Sheet Metal Workers Local 49 (Aztech International), 291 NLRB
282 (1988), affd. sub nom. Le’Mon v. NLRB, 902 F.2d 810 (10th Cir.
1990), vacated and remanded 499 U.S. 933 (1991), enfd. 952 F.2d 1203
(10th Cir. 1991), cert. denied 506 U.S. 830 (1992).
22 Miranda Fuel Co., 140 NLRB 181 (1962).
23 Id. at 1368. In a more recent exclusive hiring hall case, the Board
also stated that “[t]o support a finding of arbitrariness, something more
than mere negligence or the exercise of poor judgment on the part of
the Union must be shown.” Boilermakers Local 374 (Combustion
Engineering), 284 NLRB 1382, 1383 (1987), enfd. 852 F.2d 1353
(D.C. Cir. 1988) (citations and internal quotation marks omitted).
There, however, the union’s conduct was neither negligent nor inadver-
tent.
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 691
e.g., Furniture Workers Local 76B (Office Furniture Ser-
vice), 290 NLRB 51, 63–67 (1988); Sheet Metal Workers
Local 49 (Aztech International), supra.
Thus, with this decision, we return to the Board’s
original interpretation of the duty of fair representation as
applied to negligence in the hiring hall setting. Moreover,
in holding that mere negligence in hiring hall operations,
as in other contexts where the union is administering a
contract provision, does not breach the duty of fair repre-
sentation, we are following O’Neill’s instruction that the
same “arbitrary, discriminatory, or in bad faith” standard
for finding a breach of the duty applies to all union activ-
ity.
We stress that our holding today is a narrow one. We
do not suggest that gross negligence in the operation of a
hiring hall, of the type indicating disregard for estab-
lished procedures, would not breach the duty of fair rep-
resentation. Such conduct would likely be found to be
“arbitrary,” and possibly in bad faith, and thus within the
proscription of Vaca v. Sipes and O’Neill.24 We hold
only that honest, inadvertent mistakes, such as the Un-
ion’s in this case, do not, without more, constitute a
breach of the duty.
The General Counsel argues, however, that even if the
inadvertent failure to refer Jacoby in the right order did
not violate the Union’s duty of fair representation, it still
violated Section 8(b)(2) and, derivatively, Section
8(b)(1)(A). The General Counsel points out that the
Board has held that any departure from the established
procedures of an exclusive hiring hall which results in
the denial of employment to an applicant violates Section
8(b)(2) unless it is justified by a valid union-security
agreement or by the union’s need to perform its represen-
tational functions effectively, because any such unjusti-
fied departure inherently encourages union membership
by demonstrating to users of the hiring hall the union’s
power over their livelihoods.25 The General Counsel
further argues that there is a derivative “restraint or coer-
cion” flowing from such a display of unbridled power,
which violates Section 8(b)(1)(A).
We find no merit to this argument. To be sure, the
Board in numerous cases has found violations of Section
8(b)(2) and (1)(A) when unions failed to follow estab-
lished hiring hall procedures or made referrals on the
basis of purely subjective criteria, even when the conduct
complained of was not based on the discriminatee’s
membership or nonmembership in the union, and we
continue to adhere to those decisions. However, in each
of those cases there was a deliberate, volitional departure
from established procedure or rules or failure to apply

24 Similarly, if “mistakes” are routinely made, or if they typically
disfavor nonmembers, dissidents, or some other identifiable group, they
may well not be found to be mistakes at all but, instead, arbitrary,
discriminatory, or bad-faith conduct in breach of the duty of fair repre-
sentation.
25 See, e.g., Ford, Bacon & Davis, 262 NLRB at 51.
objective standards for referrals. The Board has reasoned
that in such cases, the unspoken message to all hiring
hall users is that, despite what the rules say, the union—
which controls their access to employment—can do as it
pleases in awarding referrals, and that union considera-
tions may therefore very well affect the ability of indi-
viduals to obtain favorable consideration in referrals. On
that basis, the Board has concluded that such actions
“encourage membership” in the Union within the mean-
ing of the Act.
While this reasoning makes sense when applied to the
volitional actions of union officials, it is unpersuasive
when applied to simple mistakes.26 When, as in this case,
a union officer in charge of referrals intends to follow the
prescribed procedures and thinks that he has done so, his
inadvertent failure to do so, even to the detriment of an
applicant, simply does not carry the message that appli-
cants had better stay in the good graces of the union if
they want to ensure fair treatment in referrals. Contrary
to the General Counsel, in other words, mere negligence
does not constitute a display of “union power” which
would carry a coercive message that could reasonably be
thought to encourage union membership.27 We therefore
reject the General Counsel’s contention that the Union’s
actions here violated Section 8(b)(2) and (1)(A) even if
they did not constitute a breach of the duty of fair repre-
sentation.28
ORDER
The complaint is dismissed.

26 In the great majority of cases in which violations have been found,
the unions’ departure from hiring hall procedures has not been inadver-
tent but has resulted from the deliberate conduct of union officials.
See, e.g., NLRB v. Iron Workers Local 433, 600 F.2d 770 (9th Cir.
1979); Laborers Local 135 (Bechtel Corp.), 271 NLRB 777, 779–781
(1984), enfd. mem. 782 F.2d 1030 (3d Cir. 1986). It is likely that,
when the Board began to hold that any unjustified departure from hir-
ing hall standards was unlawful, it used that broad language because it
had in mind only deliberate conduct, not inadvertent mistakes.
27 Our dissenting colleague concedes, at least “for the sake of argu-
ment,” that a negligent act adversely affecting a hiring hall applicant’s
opportunity for employment may not “encourage union membership”
within the meaning of Sec. 8(b)(2). Nevertheless, he argues that a
violation has been established here because the Union failed to make
Jacoby whole for loss of income and benefits after it became aware of
the consequences of its mistake, thereby “cast[ing] the original act in
the same light as if it had been deliberate.” That theory was not alleged
in the complaint or litigated at the hearing, and the General Counsel did
not argue it to the judge or in his submissions to the Board. Indeed, no
evidence was presented that would indicate whether or not the Union
attempted to compensate Jacoby for the failure to refer him. Because
the theory was neither alleged nor litigated, we conclude that it is not
properly before us for consideration. Waldon, Inc., 282 NLRB 583
(1986).
28 We note that the collective-bargaining agreement contains a griev-
ance procedure for applicants claiming to be aggrieved by the applica-
tion of any of the referral provisions of the agreement. To the extent
the contract creates enforceable referral rights on the part of applicants,
then, Jacoby can avail himself of his contractual remedies. Such rights
also may be enforceable by Jacoby in a suit brought under Sec. 301; see
Rawson, 495 U.S. at 373–374.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
MEMBER BRAME, dissenting.
Does a union violate Section 8(b)(1)(A) and (2) of the
National Labor Relations Act when its negligent conduct
in the operation of an exclusive hiring hall results in a
user’s loss of an employment opportunity and when, af-
ter becoming aware of the consequences of its action, it
fails to remedy the loss?
Setting aside Board precedent, judicial decisions, and
the judge’s findings, my colleagues hold that it does not,
relying substantially on the United States Supreme
Court’s decisions in Steelworkers v. Rawson, 495 U.S.
362 (1990), and Air Line Pilots Assn. v. O’Neill, 499
U.S. 65 (1991). Contrary to the majority, two distinct
legal theories require a finding that the Respondent Un-
ion’s conduct violated both sections of the Act, and nei-
ther Rawson nor O’Neill commands a different outcome.
Before following out each line of logic, I shall recapitu-
late the few and undisputed facts giving rise to the com-
plaint.
I.
During the relevant period in 1994 and 1995, a project
labor agreement covered performance of construction
work at the “Tosco refinery” jobsite in Martinez, Cali-
fornia. The agreement governed terms and conditions of
employment, including referral for employment through
an exclusive hiring hall arrangement, and bound Bechtel
Corp. and signatory subcontractors, including the Em-
ployer, and the Contra Costa Building and Construction
Trades Council and its constituent unions. The exclusive
referral provisions at issue were included in a Master
Labor Agreement, made part of the project labor agree-
ment, between certain contractor associations and the
Respondent Union.
The referral system created by the Master Labor
Agreement entitled Respondent Union exclusively to
dispatch to the Employer qualified workers within its
jurisdiction, based on open and nondiscriminatory hiring
priority lists made available to those seeking employ-
ment. The Respondent maintained five priority lists,
designated by the letters “A, B, C, D, and E,” as speci-
fied in the Master Labor Agreement, article II. Prerequi-
sites for signing the “A” list included 4 or more years of
experience in the trade, journeyman status, completion of
4800 hours work under a Respondent-negotiated collec-
tive bargaining agreement during the 48 months preced-
ing registration, and status as a resident of the “normal
construction labor market” as defined in the agreement.
Persons signing the “A” list were entitled to priority in
referral over those signing lists “B through E,” which had
less stringent requirements.1

1 The judge noted that the Employer possessed the right to request
by name one-half of those referred from the hiring hall, but that this did
not detract from her finding that an exclusive hiring hall existed, citing
Carpenters Local 608 (Various Employers), 279 NLRB 747, 754
(1986), enfd. 811 F.2d 149 (2d Cir. 1987), cert. denied 484 U.S. 817
(1987).
Charging Party Joe Jacoby, a qualified registrant and
27-year member of Respondent, signed priority list “A”
on December 21, 1994. Nonetheless, he was not referred
to the jobsite until February 17, 1995; in the interim, in-
dividuals with less priority had been dispatched to the
Employer.
Respondent’s business representative, Larry Blevins,
acknowledged that Jacoby had registered properly, and
that he had told Jacoby it would not be a problem when
Jacoby expressed his interest in working on the Tosco
jobsite. Blevins testified that he thought he had tele-
phoned Jacoby and left an answering machine message
referring him to the Employer. No written record exists
to corroborate Blevins’s testimony on this point, and
Jacoby credibly denied receiving such a message. Ja-
coby was dispatched only when he asked Blevins about
not having been referred during a visit to the hall in Feb-
ruary.
The parties agree that the failure to dispatch Jacoby to
the Tosco jobsite was a negligent rather than a deliberate
act rooted in animus. Respondent did nothing, however,
to compensate Jacoby for his loss of wages and other
economic benefits after becoming aware of the conse-
quences of its negligence.
The judge found that the Respondent’s conduct vio-
lated Section 8(b)(1)(A) and (2) of the Act. I agree for
the reasons set forth below.
II.
The issues raised in this proceeding implicate, in rele-
vant part, the following sections of the Act.

Sec. 7. Employees shall have the right to self-
organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such ac-
tivities.

. . . .

Sec. 8(b)(1)(A). It shall be an unfair labor prac-
tice for a labor organization or its agents to restrain
or coerce employees in the exercise of the rights
guaranteed in section 7.

. . . .

Sec. 8(b)(2). It shall be an unfair labor practice
for a labor organization or its agents to cause or at-
tempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3).

. . . .

Sec. 8(a)(3). It shall be an unfair labor practice
for an employer by discrimination in regard to hire
or tenure of employment or any term or condition of
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 693
employment to encourage or discourage membership
in any labor organization.

. . . .

Sec. 9(a). Representatives designated or selected
for the purposes of collective bargaining by the ma-
jority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all
the employees in such unit for purposes of collective
bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment.
III.
A.
“[T]he hiring hall came into being ‘to eliminate waste-
ful, time-consuming, and repetitive scouting for jobs by
individual workmen and haphazard uneconomical
searches by employers.’” (Citation omitted.) Teamsters
Local 357 v. NLRB, 365 U.S. 667, 672 (1961). Particu-
larly in the construction industry, “the contractor who
frequently is a stranger to the area where the work is
done requires a ‘central source’ for his employment
needs; and a man looking for a job finds in the hiring hall
‘at least a minimum guarantee of continued employ-
ment.’” (Citations omitted.) Id. at 672–673. After a
review of pertinent legislative history under the Act, the
Teamsters 357 Court noted the absence of an “express
ban of hiring halls,” and the statute’s emphasis instead
upon “discrimination either by the employers or unions
that encourages or discourages union membership.” Id. at
674, citing Radio Officers v. NLRB, 347 U.S. 17, 42–43
(1954). Subsequently, however, the Court also recog-
nized the presence of less positive aspects of hiring halls
in Breininger v. Sheet Metal Workers Local 6, 493 U.S.
67, 89 (1989):

When management administers job rights outside
the hiring hall setting, arbitrary or discriminatory
acts are apt to provoke a strong reaction through the
grievance mechanism. In the union hiring hall,
however, there is no balance of power. If respon-
dent is correct that in a hiring hall the union has as-
sumed the mantle of employer, then the individual
employee stands alone against a single entity: the
joint union/employer. An improperly functioning
hiring hall thus resembles a closed shop, “with all of
the abuses possible under such an arrangement, in-
cluding discrimination against employees, prospec-
tive employees, members of union minority groups,
and operation of a closed union.” [Citations omit-
ted.]

The Court of Appeals for the District of Columbia Cir-
cuit has similarly recognized both sides of the hiring hall
equation: “An exclusive hall is not illegal per se, but
because of its potential coerciveness, the union is held to
a high standard of fair dealing.” Boilermakers Local 374
v. NLRB, 852 F.2d 1353, 1358 (1988). The Board itself
has noted the “comprehensive authority vested in [a un-
ion] when it acts as the exclusive agent of users of a hir-
ing hall” and the corresponding “dependence on the un-
ion” by individuals seeking employment through such an
institution. Teamsters Local 519 (Rust Engineering Co.),
276 NLRB 898, 908 (1985), supplemental decision 285
NLRB 75 (1987), enfd. mem. 843 F.2d 1392 (6th Cir.
1988).
Against this background, I will examine each legal
theory supporting violations of both subsections (1)(A)
and (2) of Section 8 of the Act, based upon Respondent’s
negligent conduct toward Jacoby. I shall address initially
the second theory considered and rejected by my col-
leagues.
B.
As set forth above, Section 8(b)(2) of the Act makes it
an unfair labor practice for a union to “cause or attempt
to cause an employer to discriminate against an em-
ployee in violation of subsection (a)(3).” Subsection
8(a)(3), in turn, prohibits discrimination against employ-
ees “in regard to hire or tenure of employment or any
term or condition of employment to encourage or dis-
courage membership in any labor organization.”
Except to the extent necessary to enforce a valid union
security clause permitted by a proviso to Subsection
8(a)(3), “[t]he policy of the Act is to insulate employees’
jobs from their organizational rights. Thus §§ 8(a)(3)
and 8(b)(2) were designed to allow employees to freely
exercise their right to join unions, be good, bad, or indif-
ferent members, or abstain from joining any union with-
out imperiling their livelihood.” (Footnote omitted.)
Radio Officers, supra, 347 U.S. at 40. Further, “specific
evidence of intent to encourage or discourage [union
membership] is not an indispensable element of proof of
violation of § 8(a)(3).” Id. at 44. “[E]ncouragement of
union membership is obviously a natural and foreseeable
consequence” of union-caused discrimination. Id. at 52.
“[I]t should be clear enough that all union-procured em-
ployment action demonstrates the union’s power and
thus encourages membership; and that all union action is
motivated by a desire, proximate or ultimate, to encour-
age membership.” Road Sprinkler Fitters Local 669 v.
NLRB, 778 F.2d 8, 10 (D.C. Cir. 1985).
The application of these principles in the context of a
hiring hall, where the union has assumed a role in hiring
normally reserved exclusively to the employer, has re-
sulted in the formulation by the Board and courts of a
consistent framework of analysis for judging allegations
of violation of Section 8(b)(2) and, necessarily, if al-
leged, of Section 8(b)(1)(A). Thus, in Operating Engi-
neers Local 406 (Ford, Bacon & Davis Construction
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
Corp.), 262 NLRB 50, 51 (1982), enfd. 701 F.2d 504
(5th Cir. 1983), we declared:2

The Board has held that any departure from es-
tablished exclusive hiring hall procedures which re-
sults in a denial of employment to an applicant falls
within that class of discrimination, which inherently
encourages union membership, breaches the duty of
fair representation owed to all hiring hall users, and
violates Section 8(b)(1)(A) and (2), unless the union
demonstrates that its interference with employment
was pursuant to a valid union-security clause or was
necessary to the effective performance of its repre-
sentative function.

Indeed, my colleagues repeat this formula, cite Ford,
Bacon & Davis and acknowledge that, “[t]he Board in
numerous cases has found violations of 8(b)(2) and
8(b)(1)(A) when unions failed to follow established hir-
ing hall procedures or made referrals on the basis of
purely subjective criteria, even when the conduct com-
plained of was not based on the discriminatee’s member-
ship or nonmembership in the union.” Here there is no
dispute that the Respondent departed from hiring hall
procedures in failing to refer Jacoby, nor is there any
contention that the departure was justified on either of
the two grounds set forth in Ford, Bacon & Davis and
cases cited at footnote 2, supra. But, while evidently
conceding that the Respondent’s conduct lies within the
literal parameters of the test for finding unlawful union
action that affects employment in a hiring hall, my col-
leagues attempt to draw the following distinction:

When, as in this case, a union officer in charge of
referrals intends to follow the prescribed procedures
and thinks that he has done so, his inadvertent failure
to do so, even to the detriment of an applicant, sim-
ply does not carry the message that applicants had
better stay in the good graces of the union if they
want to ensure fair treatment in referrals. . . . [I]n
other words, mere negligence does not constitute a
display of “union power” which would carry a coer-

2 See, e.g., to the same effect, Operating Engineers Local 18 (Wil-
liam F. Murphy), 204 NLRB 681 (1973), remanded 496 F.2d 1308 (6th
Cir. 1974), supplemental decision 220 NLRB 147 (1975), enf. denied
555 F.2d 552 (6th Cir. 1977); Asbestos Workers Local 22 (Rosendahl,
Inc.), 212 NLRB 913, 915 (1974); Electrical Workers Local 592
(United Engineers & Construction Co.), 223 NLRB 899, 901 (1976);
Plumbers Local 40 (Mechanical Contractor Assns.), 242 NLRB 1157,
1160 (1979), enfd. mem. 642 F.2d 456 (9th Cir. 1981); Plumbers Local
392 (Kaiser Engineers), 252 NLRB 417, 421–422 (1980); Rust Engi-
neering Co., supra, 276 NLRB at 908; Iron Workers Local 118 (Cali-
fornia Erectors), 309 NLRB 808, 811 (1992); Stage Employees (Vari-
ous Employers), 312 NLRB 123, 127 (1993); Road Sprinkler Fitters,
supra, 778 F.2d at 10; Boilermakers Local 374 v. NLRB, supra, 852
F.2d at 1358; Radio-Electronics Officers Union v. NLRB, 16 F.3d 1280,
1284 (D.C. Cir. 1994), cert. denied sub. nom. Harris v. Radio-
Electronics Officers Union, 513 U.S. 866 (1994); Plumbers Local 32 v.
NLRB, 50 F.3d 29, 33–34 (D.C. Cir. 1995), cert. denied 516 U.S. 974
(1995).
cive message that could reasonably be thought to en-
courage union membership.

The majority’s reasoning is flawed. For the sake of
argument, I will grant the premise that a negligent act
adversely affecting a hiring hall applicant’s employment
opportunity may not encourage union membership within
the meaning of Section 8(a)(3) as interpreted by Radio
Officers, supra. But the failure to make whole Jacoby, the
affected employee, for lost income and benefits (either
through direct payment or a compensatory referral), after
the Respondent became aware of the consequences of its
negligence, casts the original act in the same light as if it
had been deliberate and carries with it the same conse-
quences under the law outlined above.3 Thus, employees
will be encouraged in their union membership and activ-
ity to the extent they perceive their employment can be
negatively impacted through a labor organization’s neg-
ligence, and its failure to provide redress to employees
who suffer from such conduct.
Once a violation of Section 8(b)(2) is established un-
der a Radio Officers discrimination theory, a violation of
Section 8(b)(1)(A) follows, irrespective of any theory
involving a union’s duty of fair representation (which I
shall discuss in the next section of this opinion). “In the
hiring hall context, the Board may bring a claim alleging
a violation of § 8(b)(1)(A) against the union . . . without
implicating the duty of fair representation at all.” Brein-
inger, supra, 493 U.S. at 82.
3 The majority’s assertion that this issue is “not properly before us
for consideration” is without merit. A violation need not be specifically
alleged in the complaint or argued by the General Counsel to be de-
cided by the Board, so long as it is “intimately related to the subject
matter of the complaint” and was fully litigated at the hearing. Crown
Zellerbach Corp., 225 NLRB 911, 912 (1976), and cases cited therein.
There is little question that a finding of 8(b)(1)(A) and (2) violations
against the Respondent for failing to correct its negligent action is
intimately related to the original complaint’s allegations of violations
stemming from the Respondent’s negligent failure to refer Jacoby to the
Tosco job site. The former finding is merely a logical extension of the
latter. In essence, the complaint itself, by implicitly requesting backpay
for Jacoby, alleges that the Respondent has failed to make Jacoby
whole for his injury. The judge ordered a backpay remedy based on a
finding of a negligent failure to refer, and Respondent did not except on
the ground that it had made Jacoby whole for any loss of earnings.
Rather, Respondent contended it was not liable because it had commit-
ted no violation of the Act.
The majority’s argument to the contrary is an exercise in “splitting
hairs.” McClatchy Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1035
(D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998). McClatchy in-
volved the difference between the Board’s finding of an 8(a)(1) threat
of discharge in the no-strike/no-picketing clause included in the em-
ployer’s posting of its final offer and the complaint’s allegation of an
8(a)(1) affirmative duty to explain the nonbinding nature of that clause.
Id. at 1035–1036. The court held that the issue of the 8(a)(1) threat of
discharge was “fairly tried” since the violation found and the complaint
focused on the “same portion of the statute and the same set of facts.”
Id. at 1036. See also Brand Mid-Atlantic, 304 NLRB 853 fn. 4 (1991)
(Board finding an 8(b)(1)(A) violation under a different theory than the
one alleged in the complaint, where the complaint “put in issue the
same issues” on which the Board based its findings).
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 695
As set out above, Section 8(b)(1)(A) forbids unions to
“restrain or coerce employees in the exercise of the rights
guaranteed in section 7.” Section 7 secures the right of
employees to “self organization, to form, join or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection,” as well as
the “right to refrain from any or all such activities.” In
Radio Officers, supra, 347 U.S. at 42, the Supreme Court
observed that union-caused discrimination against an
employee “deprived [him] of the right guaranteed by the
Act to join in or abstain from union activities without
thereby affecting his job.” Thus, Respondent Union’s
negligent failure to refer Jacoby to employment, com-
bined with its refusal to make Jacoby whole once it be-
came aware of the consequences of its misconduct, re-
strained and coerced him in the exercise of protected
rights within the meaning of Section 8(b)(1)(A) of the
Act.
C.
In light of the foregoing analysis, it is apparent that my
colleagues’ discussion of the duty of fair representation
as applied to hiring hall situations is largely beside the
point. In sum, unless justified by the Union’s need to
enforce a valid union-security clause or its need to per-
form its representative function effectively, departure
from hiring hall standards that results in a denial of em-
ployment is unlawful under Section 8(b)(2) and (1)(A) of
the Act without resort to whether the duty of fair repre-
sentation has also been breached. Nevertheless, since
Board and court cases involving hiring halls often dis-
cuss and rely on a duty of fair representation analysis, in
addition to a Radio Officers analysis (sometimes without
drawing a clear distinction),4 I will examine that theory
independently. Indeed, as demonstrated below, an
8(b)(1)(A) violation grounded in the duty of fair repre-
sentation necessarily implicates a violation of Section
8(b)(2) where a union has caused, or attempted to cause,
an adverse change in an individual’s employment status.
The duty of fair representation is a judicial principle
first developed by the Supreme Court under the Railway
Labor Act in Steele v. Louisville & Nashville Railroad,
323 U.S. 192 (1944), and Tunstall v. Locomotive Fire-
men, 323 U.S. 210 (1944), and subsequently applied by
the Court to cases involving unions subject to the provi-
sions of the Act in Ford Motor Co. v. Huffman, 345 U.S.
330 (1953). The classic formulation of the nature of the
duty is found in Vaca v. Sipes, 386 U.S. 171, 177 (1967):
“the exclusive agent’s statutory authority to represent all

4 See Kaiser Engineers, Inc., supra, 252 NLRB at 421–422; Ford,
Bacon & Davis, supra, 262 NLRB at 51; Rust Engineering Co., supra,
276 NLRB at 908; California Erectors, supra, 309 NLRB at 811; Stage
Employees (Various Employers), supra, 312 NLRB at 127; Boilermak-
ers Local 374, supra, 852 F.2d at 1358–1359; Plumbers Local 32 v.
NLRB, supra, 50 F.3d at 32–34.
members of a designated unit includes a statutory obliga-
tion to serve the interests of all members without hostil-
ity or discrimination toward any, to exercise its discre-
tion with complete good faith and honesty, and to avoid
arbitrary conduct.” Ford and Vaca, however, were suits
filed under Section 301 of the Labor Management Rela-
tions Act, rather than proceedings arising under Sections
7 and 8 of the Act.
The Board recognized the duty in an unfair labor prac-
tice proceeding for the first time in 1962. As summa-
rized by the Court of Appeals for the Fifth Circuit,

It is a fundamental principle of Board law that a
breach of the union’s duty of fair representation con-
stitutes an unfair labor practice. The Board derived
this duty of fair representation from the fact that sec-
tion 7 of the Act, 29 U.S.C. § 157, gives employees
the right to be free from unfair or invidious treat-
ment by their exclusive bargaining agent in matters
affecting their employment. Miranda Fuel Co., 140
NLRB 181, 185 (1962) [enf. denied on other
grounds 326 F.2d 172 (2d Cir. 1963)] (footnote
omitted). Although there is no explicit statutory re-
quirement of fair representation, the Board and the
courts have declared a violation of the duty to be a
violation of section 8(b)(1)(A). [Citations omitted.]
NLRB v. General Truckdrivers, Warehousemen, and
Helpers, 778 F.2d 207 (1985).

Significantly, for purposes of this discussion, the
Board in Miranda went on to declare,

We further conclude that a statutory bargaining
representative and an employer also respectively
violate Section 8(b)(2) and 8(a)(3) when, for arbi-
trary or irrelevant reasons or upon the basis of an un-
fair classification, the union attempts to cause or
does cause an employer to derogate the employment
status of an employee. Here a question is whether
such action may be said to “encourage membership
in any labor organization,” which finding is a neces-
sary element of a violation of Section 8(a)(3) and
8(b)(2). 140 NLRB at 186.

The Board explained that, under Radio Officers, “[t]he
existence of discrimination may at times be inferred by
the Board,” id., and concluded that, “[w]e do not inter-
pret the Court’s opinion [in Teamsters Local 357, supra]
as permitting unions and their agents an open season to
affect an employee’s employment status for any reason at
all—personal, arbitrary, capricious, and the like—merely
because the moving consideration does not involve the
specific union membership or activities of the affected
employee.” Id. at 188.
To dismiss the complaint and overrule existing prece-
dent, my colleagues look to two Supreme Court deci-
sions construing the duty of fair representation, neither
involving hiring halls nor unfair labor practice proceed-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
ings, O’Neill, supra, 499 U.S. 65, and Rawson, supra,
495 U.S. 362. Neither controls the instant set of facts.
In O’Neill, a suit brought in Federal court under the
Railway Labor Act for violation of the duty of fair repre-
sentation, the court rejected a dissident employee group’s
challenge to a strike settlement agreement. At the outset
of its opinion, the Court stated,

We hold that the rule announced in Vaca v. Sipes,
386 U.S. 171, 190 (1967)—that a union breaches its
duty of fair representation if its actions are either
“arbitrary, discriminatory, or in bad faith”—applies
to all union activity, including contract negotiation.
We further hold that a union’s actions are arbitrary
only if, in light of the factual and legal landscape at
the time of the union’s actions, the union’s behavior
is so far outside a “wide range of reasonableness,”
Ford Motor Co. v. Huffman, 345 U.S. 330, 338
(1953), as to be irrational. Id. at 67.

Later, the Court, observed it has “also held that the
duty applies in other instances in which a union is acting
in its representative role, such as when the union operates
a hiring hall.” Id. at 77, citing Breininger, supra, 493
U.S. at 87–89.
In Rawson, a suit filed in state court, the Court found
no violation of the duty of fair representation, under the
“arbitrary” component of Vaca, based upon alleged neg-
ligent conduct in connection with mine safety inspections
conducted by union representatives, and observed that,
“[t]he courts have in general assumed that mere negli-
gence, even in the enforcement of a collective-bargaining
agreement, would not state a claim for breach of the duty
of fair representation, and we endorse that view today.”
495 U.S. at 372–373.
The majority combines O’Neill with Rawson to reason
as follows:

[T]he Court in Rawson reiterated the Vaca v.
Sipes standard, that the duty of fair representation is
breached only by conduct that is “arbitrary, dis-
criminatory, or in bad faith,” and also endorsed the
view that the duty is not breached by conduct that
constitutes “mere negligence.” In O’Neill, the court
held that the Vaca v. Sipes standard applies to all un-
ion conduct and noted that the duty of fair represen-
tation applies to the operation of hiring halls. We
read these decisions together to mean that “mere
negligence” in the operation of an exclusive hiring
hall does not give rise to a claim for breach of the
duty of fair representation, even by an applicant who
loses an employment opportunity as a result of the
union’s mistake.

The “discrimination” prong of Vaca v. Sipes is clearly
established. The simple fact that the Union’s conduct
affected Jacoby’s employment adversely constitutes
“discrimination” within the meaning of Radio Officers,
supra, Ford, Bacon, & Davis, supra, and cases previously
cited at footnote. 2. Where discriminatory conduct is
involved, the latitude granted for action alleged to be
“arbitrary” under Ford v. Huffman is not available.5
Further, I agree with the D.C. Circuit that the Supreme
Court in O’Neill did not intend to alter longstanding law
and apply the looser Ford v. Huffman standard to hiring
hall conduct under the “arbitrary” component of Vaca.
See Plumbers Local 32, supra, 50 F.3d at 33–34. The
court carefully analyzed O’Neill’s language in its context
and found that the Supreme Court’s “focus [was] on pro-
tecting the content of negotiated agreements from judi-
cial second guessing.” Id. at 33. In contrast, the court
reasoned

At issue here is the operation of a hiring hall, where the
union has assumed the role of employer, as well as rep-
resentative, and where the risk of judicial second-
guessing of a negotiated agreement that was of such
concern to the Court in O’Neill is simply not present.
Although the Court rejected the union’s attempt in
O’Neill to differentiate between contract negotiations
and contract administration, noting that no ‘bright-line’
can be drawn between the two . . . a union’s operation
of a hiring hall is easily distinguishable from other ac-
tivities where the union does not assume the role of
employer. Id.

The court then emphasized the pertinence of the Supreme
Court’s observation in Breininger that “if a union does
wield additional power in a hiring hall by assuming the em-
ployer’s role, its responsibility to exercise that power fairly
increases rather than decreases.”6 Id. at 33–34, quoting Bre-
ininger, 493 U.S. at 489. The court also referred to its ear-
lier holding, in Boilermakers Local 374, supra, 852 F.2d at
1358, that a union operating a hiring hall is held to a “high
standard of fair dealing.” Plumbers & Pipe Fitters Local
32, 50 F.3d at 34. Finally, and no less importantly, the court
observed that it had “applied the ‘presumption of illegality’
under section 8(b)(2) that ‘arises whenever an employee
loses his job or hiring opportunity as a result of a union’s
conduct’ in the operation of a hiring hall.” Id., quoting from
Radio-Electronics Officers, supra, 16 F.3d at 1284. Thus,
the court was persuaded that in O’Neill the Supreme Court

5 Since O’Neill deals only with interpretation of the “arbitrary” com-
ponent of the triparitite Vaca v. Sipes standard, the majority’s argu-
ments based on that case have no relevance to conduct involving the
operation of a hiring hall, such as that in the instant case, that inde-
pendently meets the “discriminatory” component of that standard.
6 I cannot agree with my colleagues that Breininger merely extended
the duty of fair representation to the hiring hall arena, without also
signifying an even stricter standard should apply. This is borne out not
only by the language from Breininger quoted here by the D.C. Circuit,
but also the Breininger Court’s reference to the absence of a “balance
of power” in a hiring hall where the employee “stands alone” against
the “joint union/employer,” 493 U.S. at 89, quoted in context in sec. III,
A of this opinion.
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 697
“did not intend to weaken the standard of review applied to
a union’s operation of a hiring hall.” Id. at 33.
Rawson is likewise distinguishable on its own terms.
The Court there stated “it may well be that if unions be-
gin to assume duties traditionally viewed as the preroga-
tives of management, cf. Breininger, at 87–88 . . . em-
ployees will begin to demand that unions be held more
strictly to account in their carrying out of those duties.”
495 U.S. at 373. The spot citation to Breininger refers to
the court’s discussion of a union’s duty of fair represen-
tation toward hiring hall users, thus reinforcing the posi-
tion that a union owes a higher duty in such circum-
stances, than in the traditional contract administration
context involved in Rawson.
Thus, the Board in California Erectors, supra, 309
NLRB 808, which my colleagues would limit, properly
found a violation of Section 8(b)(2) and (1)(A) of the Act
where a union’s mistake in departing from hiring hall
rules cost an employee a referral. The Board correctly
held that, “it need not be alleged that the Union was neg-
ligent or be shown that the departure was based on in-
vidious or unfair considerations in order to find a viola-
tion. Such departures, absent some justification related
to the efficient operation of the hiring hall, are arbitrary
actions and inherently breach the duty of fair representa-
tion owed to all hiring hall users.” Id. The application of
a more rigorous standard for arbitrary conduct to refer-
rals from an exclusive hiring hall is thus fully consistent
with the views of the Supreme Court expressed through
Breininger, O’Neill, and Rawson, as well as with existing
Board and court of appeals law.
Here, the Respondent voluntarily assumed control of
access to the Tosco refinery jobs through its exclusive
hiring hall, and its negligent failure to refer Jacoby, cou-
pled with its failure to remedy its conduct upon becom-
ing cognizant of it, whether deemed “discriminatory” or
“arbitrary,” violated the duty of fair representation owed
to users of its referral system and constituted an unfair
labor practice within the meaning of Section 8(b)(1)(A)
of the Act. Under Miranda Fuel, as explained, a viola-
tion of Section 8(b)(2) is made out when a duty of fair
representation violation “derogate[s] the employment
status of an employee.” 140 NLRB at 186.
IV.
To summarize, nothing in O’Neill or Rawson stands in
the way of finding violations of both subsections of the
Act based on the Union’s conduct toward Jacoby. These
Supreme Court cases concern court suits alleging a
breach of the duty of fair representation. They have no
relevance at all to a legal theory that focuses on a viola-
tion of Section 8(b)(2) under Radio Officers and then
derives a traditional 8(b)(1)(A) unfair labor practice from
that predicate. Section III,B of this opinion. Alterna-
tively, the Union’s conduct is a violation of the duty of
fair representation, as set out in section III,C of this opin-
ion, and a violation of Section 8(b)(2) may be derived
therefrom. By finding to the contrary, the majority se-
verely dilutes the statutory legal protections that the
Board and courts have wisely erected to protect users of
hiring halls from the abuses that may follow from the
concentration of power over employees’ livelihoods in-
herent in a system administered by a “joint un-
ion/employer entity.”7

Gary B. Connaughton, Esq., for the General Counsel.
John L. Anderson, Esq. ( Neyhart, Anderson, Reilly & Freitas),
of San Francisco, California, for Respondent/Union.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. At is-
sue is whether Steamfitters Local Union 342 of the United As-
sociation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–CIO
(the Respondent or Local 342) violated Section 8(b)(1)(A) and
(2) of the Act in negligently failing to dispatch Charging Party
Joe Jacoby (Jacoby) from its exclusive hiring hall to a position
with Contra Costa Electric, Inc. (the Employer) at its Tosco
refinery jobsite. The case was tried in Oakland, California, on
August 21, 1995,1 pursuant to complaint issued May 31, which
in turn was based upon a charge filed March 9.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Employer is a California corporation engaged in electri-
cal subcontracting in the construction industry. It maintains an
office and place of business in Martinez, California. During
the 12-month period ending May 31, 1995, the Employer pro-
vided services valued in excess of $50,000 to customers or
business enterprises which themselves met one of the Board’s
jurisdictional standards, other than indirect inflow or indirect
outflow, including a contract for services at the Tosco refinery
jobsite in Martinez, California. The Respondent admits and I
find that the Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all relevant times, the Employer has been a signatory con-
tractor to the project labor agreement for the Tosco Refining
Company, Avon Refinery, Reformulated Gasoline Project,
Martinez, California. The project labor agreement was negoti-
ated between Contra Costa Building and Construction Trades
Council and Affiliated Unions and Bechtel Construction Com-
pany and signatory contractors. Incorporated in the project
labor agreement are the employee referral provisions of the
Master Agreement between the Respondent and the Air Condi-
tioning & Refrigeration Contractors Association of Northern

7 Breininger, supra, 495 U.S. at 89.
1 All dates are in 1995 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
California, the Mechanical Contractors Association of Northern
California, the Residential Plumbing and Mechanical Contrac-
tors Association of Northern California, the Industrial Contrac-
tors UMIC, Inc., and the Northern California Piping Contrac-
tors.
The hiring hall provisions of the Master Agreement require
that the Respondent establish and maintain open and nondis-
criminatory employment priority lists for workers desiring em-
ployment covered by the Master Agreement and be the sole and
exclusive source of dispatches of employees under the jurisdic-
tion of the Respondent to the Employer for employment at
certain of the Employer’s jobsites, including the Tosco refinery
jobsite.
On December 21, 1994, Joe Jacoby signed the “A” out-of-
work list. The parties agree that Jacoby was, at all times mate-
rial to this proceeding, eligible for dispatch from that list as a
journeyman pipefitter and instrument technician. The parties
also agree that failure to dispatch Jacoby was an act of negli-
gence and was not the result of any animus. Jacoby has been a
member of the Respondent for about 27 years.
Larry Blevins, business representative of Local 342, testified
that he had overseen the operations of the exclusive hiring hall
for the past 6–1/2 years. He stated that there are five sign-in
sheets labeled from “A” to “E.” The eligibility requirements
for signing the “A” list are set forth in article II of the Master
Agreement and require 4 or more years experience with jour-
neyman status and with resident status. For the particular job in
question, the Employer was allowed to request one-half of its
job force by name.2 Jacoby was not requested by name. Other
employees, including Jacoby, were to be referred in order of
signing the out-of-work lists, with signatories of the “A” list
being referred before signatories of any other list. There is no
dispute that following Jacoby’s signing the “A” list, other sig-
natories were dispatched who had signed the “A” list later and
who had signed lower priority lists. Jacoby was not dispatched
until he called this oversight to Blevins’ attention.
Blevins thought he had dispatched Jacoby before he dis-
patched lower priority signatories. Blevins remembered that
when Jacoby signed the “A” list, Jacoby told Blevins that he
wanted to work at the Tosca project and Blevins acknowledged
this desire. Jacoby recalled the same conversation and testified
that Blevins responded, “No problem.” Blevins thought he had
called Jacoby and left a message on his answering machine
sometime before February 17. However, there is no written
record of such an attempt. When Jacoby came into the hall in
February to find out about the Tosca job, Blevins told him that
he thought he had already dispatched him.
In any event, Jacoby was dispatched to work on February 17
according to Respondent’s records. Although Jacoby denies
that he received notice of dispatch in January, he did not deny
receipt of notice of dispatch at any other time. Accordingly, I
find that Jacoby was dispatched to work on February 17 based
upon the written records of the Respondent.
Normally the Respondent dispatches about 100 individuals
per month. During the period from late December 1994
through February 1995, the Respondent dispatched 947 indi-

2 Although one-half of the referrals were by name, the parties are in
apparent agreement that Respondent served as the exclusive source of
non-named referrals for the Tosca jobsite and I find that this arrange-
ment constitutes an exclusive hiring hall. Carpenters Local 608 (Vari-
ous Employers), 279 NLRB 747 fn. 1, 754 (1986), enfd. 811 F.2d 149
(2d Cir.), cert. denied 484 U.S. 817 (1987).
viduals. Due to this unusual activity, office personnel who
were unfamiliar with operation of the hiring hall were recruited
to assist Blevins in effecting the dispatches.
III. ANALYSIS
Section 8(b)(1)(A) and (2) provide in relevant part:

It shall be an unfair labor practice for a labor organization or
its agents—
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7 . . . (2) to cause or attempt to
cause an employer to discriminate against an employee in vio-
lation of [section 8(a)(3)].

Section 8(a)(3) provides in relevant part:

It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization.

The duty of fair representation was created by the courts and
later adopted by the Board in Miranda Fuel Co., 140 NLRB
181 (1962), enf. denied 326 F.2d 172 (2d Cir. 1963). A union
violates the duty of fair representation generally if it acts arbi-
trarily, discriminatorily, or in bad faith. Air Line Pilots v.
O’Neill, 499 U.S. 65 (1991) (reaffirming the rule announced in
Vaca v. Sipes, 386 U.S. 171, 190 (1967). This standard applies
to all union activity. “We further hold that a union’s actions are
arbitrary only if, in light of the factual and legal landscape at
the time of the union’s actions, the union’s behavior is so far
outside a ‘wide range of reasonableness,’ Ford Motor Co. v.
Huffman, 345 U.S. 330, 338 (1953) as to be wholly ‘irrational’
or arbitrary.’” 499 U.S. at 67.
When operating an exclusive hiring hall, a union “wield[s]
additional power . . . by assuming the employer’s role,” [and]
“its responsibility to exercise that power fairly increases rather
than decreases.” Breninger v. Sheet Metal Workers Local 6,
493 U.S. 67, 89 (1989). As the Board stated in Operating En-
gineers Local 406 (Ford, Bacon & Davis Construction Corp.),
262 NLRB 50, 51 (1982), enfd. 701 F.2d 504 (5th Cir. 1983):

Even assuming the absence of specific discriminatory
intent, a violation must be found in the circumstances of
this case. The Board has held that any departure from es-
tablished exclusive hiring hall procedures which results in
a denial of employment to an applicant falls within that
class of discrimination which inherently encourages union
membership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A) and
(2), unless the union demonstrates that its interference
with employment was pursuant to a valid union-security
clause or was necessary to the effective performance of its
representative function. [Footnote omitted.]

No specific intent to discriminate on the basis of union mem-
bership or activity is required; a union commits an unfair la-
bor practice if it administers the exclusive hall arbitrarily or
without reference to objective criteria and thereby affects the
employment status of those it is expected to represent.

Boilermakers Local 374 v. NLRB, 852 F.2d 1353, 1358 (D.C.
Cir. 1988). “By wielding its power arbitrarily, the Union gives
notice that its favor must be curried, thereby encouraging
membership and unquestioned adherence to its policies.”
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 699
NLRB v. Iron Workers Local 433, 600 F.2d 770, 777 (9th Cir.
1979), cert. denied 445 U.S. 915 (1980).
Although the Respondent does not contest the current state
of Board law and agrees that, pursuant to this authority, there is
support for a finding that mere negligence in failing to refer
from an exclusive hiring hall is violative of Section 8(b)(1)(A)
and(2),3 it argues that Board precedent fails to heed the teach-
ings of O’Neill. From O’Neill, the Respondent argues that a
specific intent must be found to support a violation of Section
8(b)(1)(A) and (2). Despite the “wide range of reasonableness”
reaffirmed in O’Neill and specifically applied to all union activ-
ity, the Board’s “common law of hiring hall violations”4 in-
cludes decision which appear to apply a strict standard of liabil-
ity to administration of exclusive hiring halls.
As explained in Plumbers Local 32, v NLRB, supra, enfg.
312 NLRB 1137 (1994), the “wholly irrational” language in
O’Neill was not convincingly indicative of an intention to
weaken the standard of review applied to a union’s operation of
an exclusive hiring hall. Noting that O’Neill dealt with a chal-
lenge to the substantive provisions of a strike settlement agree-
ment, not administration of an exclusive hiring hall, the court
further stated that a, “union’s operation of a hiring hall is easily
distinguishable from other activities where the union does not
assume the role of employer.” Id. at 33. The court concluded
that in the hiring hall context, “the union has assumed the role
of employer, as well as representative, and . . . the risk of judi-
cial second-guessing of a negotiated agreement that was of such
concern to the Court in O’Neill is simply not present.” Id.
In Iron Workers Local 118 (California Erectors), 309 NLRB
808 (1992), the Board stated,

3 See, e.g., Plumbers Local 32 (Alaska Pipeline), 312 NLRB 1137
(1993), enfd. 50 F.3d 29 (D.C. Cir. 1995), cert. denied 116 S.Ct. 474
(1995); Plumbers Local 230 (AGC, San Diego Chapter), 293 NLRB
315, 316 (1989) (failure to inform employee of change in procedures in
operation of hall was arbitrary); Boilermakers Local 374 (Combustion
Engineering), 284 NLRB 1382 (1987), enfd. 852 F.2d 1353 (D.C. Cir.
1988) (union failed to demonstrate that $100 bond requirement for
appeal of referral decision was reasonable); Plumbers Local 40 (Me-
chanical Contractors), 242 NLRB 1157, 1161 (1979), enfd 642 F.2d
456 (9th Cir. 1981) (union unable to rebut prima facie showing of arbi-
trariness in removing individual’s name from referral list for no appar-
ent reason).
4 Laborers Local 423 (GFC), 313 NLRB 807 (1994).
Contrary to the contentions of the Respondent, in cases
such as this one, in which a departure from hiring hall
rules affects employment opportunities, it need not be al-
leged that the Union was negligent or be shown that the
departure was based on invidious or unfair considerations
in order to find a violation. Such departures, absent some
justification related to the efficient operation of the hiring
hall, are arbitrary actions and inherently breach the duty of
fair representation owed to all hiring hall users and violate
the Act. See, Operating Engineers Local 406 (Ford Con-
struction), 262 NLRB 50, 51 (1982).

Further, the Board continued, “The Respondent’s articulated
reason for not referring [the employee] having been discredited,
and negligence being no defense, the failure to refer him re-
mains unexplained and the General Counsel’s prima facie case
stands unrebutted.” Id.
I am bound by Board precedent which states, both before and
after O’Neill, that no specific intent is required to prove arbi-
trary conduct and that negligence is no defense. Accordingly, I
find that the Respondent violated Section 8(b)(1)(A) and (2) in
negligently, thus arbitrarily and discriminatorily, failing to refer
Jacoby from its exclusive hiring hall.
CONCLUSION OF LAW
By arbitrarily failing to refer Joe Jacoby from the A out-of-
work list prior to later signatories of that list and prior to signa-
tories of lower priority lists, the Respondent engaged in unfair
labor practices affecting commerce with the meaning of vio-
lated Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, the Respondent shall
make whole Joe Jacoby for any losses he may have suffered by
reason of the discrimination against him. 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).
[Recommended Order omitted from publication.]