Plumbers Local 230

National Labor Relations Board - Board Decisions

Mar 16, 1989

293 N.L.R.B. 315 (N.L.R.B. 1989)

PLUMBERS LOCAL 230 315
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , Local 230, AFL-
CIO and Kevin R Conley Case 21-CB-9928
March 16, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On January 26, 1988, Administrative Law Judge
Richard D Taplitz issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
support of the judge's decision
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order
The judge found that the Respondent's failure to
dispatch employee Mark Collins because of a
change in hiring hall rules of which Collins had
not been aware was not violative of the Act The
General Counsel excepts, contending that under
the Board's decision in Operating Engineers Local
406 (Ford Construction),' the Respondent's conduct
violated the Act We find merit in the General
Counsel's exception
The facts are not in dispute On June 12, 1987,
the Respondent failed to dispatch Mark Collins
from its exclusive hiring hall to a job even though
he was first on the out of-work list When Collins
complained, the Respondent informed him that be-
cause he had not written the word "anything" after
his name on the out-of-work list, he was eligible
for referral only to commercial jobs Because the
job to be filled on June 12 was residential work,
Collins was not eligible
Prior to 1983, applicants signing the out-of work
list had no choice between residential and commer-
cial work In response to complaints from both ap-
plicants and employers, the Respondent changed
the system in 1983, allowing applicants to designate
whether they wanted to be referred to commercial
work only or residential work only Sometime be-
tween 1984 and 1986 the system was changed
again, requiring applicants to write the word "any-
thing" after their name if they wanted to be re-
ferred to both commercial and residential jobs,
1 262 NLRB 50 51 (1982) enfd 701 F 2d 504 (5th Cit 1983)
without this designation, the applicant would be re
ferred only to commercial jobs
Prior to the filing of the instant charge, the Re-
spondent had no written rules for the operation of
the hiring hall Changes in hiring hall rules were
sometimes discussed at union meetings and by the
dispatchers, usually in response to applicants' ques
tions It is undisputed that a number of applicants,
including Collins and Charging Party Kevin
Conley, were never informed of the `anything"
rule,2 although a number of other applicants were
so informed It is also undisputed that Collins lost
about 6 days' pay by not being referred to the June
12 job
The judge, characterizing the issue as a "narrow
one," defined it as "involv[ing] the question of
whether the Union met its obligation to notify ap-
plicants for employment of a change in hiring hall
rules " The judge found that the Respondent did
meet its obligation here The judge found that the
`anything" rule in itself was lawful and that there
was no requirement under Board law that it be re
duced to writing The judge distinguished the
Board's decision in Operating Engineers, supra 3 on
the basis that that decision involved a union's devi-
ation from an established hiring hall rule rather
than, like here, a new rule, consistently followed
and applied to all applicants equally
The judge further concluded that the Respond-
ent had an obligation to inform job applicants of its
change in hiring hall rules and that the Respondent
"took a slipshod approach to notifying applicants
about the change and that it was negligent in not
taking reasonable steps to make sure that all em-
ployees knew of it " He found, however, that to es-
tablish a violation "something more than mere neg-
ligence or the exercise of poor judgment on the
part of the Union must be shown Boilermakers
Local 374 (Combustion Engineering), 284 NLRB
1382 (1987), citing Rainey Security Agency, 274
NLRB 269, 270 (1985) Because the Respondent
did discuss the "anything" rule at union meetings
and at the hiring hall and as a number of employ-
ees did in fact learn of the rule, the judge found
2 Collins testified that he noticed that some applicants on the out-of
work list had written anything after their names He asked other appli
cants what that meant but received no answer He never asked any Re
spondent official to explain what anything meant
3 In that case in pertinent part the respondent union had a posted
hiring hall rule that provided that any person who was referred to a job
lasting longer than 5 days would have his name removed from the out-of
work list In accord with this rule an applicant for referral turned down
a 6 day job The record established however that the respondent had in
fact changed the rule to allow employees to accept 6-day jobs without
having their names removed from the list but that the respondent had
failed to notify applicants of the change until after issuance of the com
plaint in the case The Board found inter alia that the respondents de
parture from its established hiring hall procedures and its failure to notify
applicants of the change violated Sec 8(b)(1)(A) and (2)
293 NLRB No 34
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the "something more" had not been estab-
lished
We agree with the judge that the Respondent
had an obligation to notify job applicants of its
change in the hiring hall rules and that the issue
presented in this case is whether the Respondent
gave adequate notice of the "anything" rule Con-
trary to the judge, however, we find the Board's
decision in Operating Engineers to be controlling In
that case, as in the instant case, the respondent
union made a change in its hiring hall rules without
giving notice of the change to the employees who
used the hiring hall for job referrals In finding the
violation, the Board stated, "[t]his failure to give
timely notice of a significant change in referral pro
cedures was arbitrary and in breach of its duty to
represent job applicants fairly by keeping them in
formed about matters critical to their employment
status " Id at 51 (footnote omitted)
The judge himself found that the Respondent
took a "slipshod" approach to notifying applicants
about the change, that a number of employees did
not learn of the change in a timely fashion, and
that the Respondent was negligent in not taking
reasonable steps to make sure that all employees
knew of the change Under Operating Engineers,
these findings establish the violation
The judge's reliance on Boilermakers Local 374
to require a showing of "something more" than
mere negligence to establish a violation is mis-
placed That case concerned whether a particular
hiring hall rule that compelled an applicant for re-
ferral to post a $100 bond before a grievance con
cerning the operation of the hiring hall could be
processed was arbitrary and therefore violated the
union's duty of fair representation Here, however,
the issue does not involve the validity of a hiring
hall rule, but rather the notice that must be given
when a rule is changed
In sum , we find that the Respondent failed to
make a good faith effort to give timely notice of
the rule change in a manner reasonably calculated
to reach all those who used the exclusive hiring
hall Accordingly, we find that the Respondent, by
failing to dispatch Collins on June 12 for noncom
pliance with the change, violated Section
8(b)(1)(A) and (2) of the Act
CONCLUSIONS OF LAW
1 By failing to adequately notify job applicants
of the change in its hiring hall rules and by failing
to dispatch employee Mark Collins on June 12,
1987, for noncompliance with the change, the Re-
spondent has violated Section 8(b)(1)(A) and (2) of
the Act
2 The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the
Act, we shall order it to cease and desist and take
affirmative action that is necessary to effectuate the
policies of the Act We shall order the Respondent
to make employee Mark Collins whole for any loss
of earnings and other benefits suffered as a result of
the Respondent's unlawful failure to dispatch him
on June 12, 1987, with backpay to be computed in
the manner set forth in F W Woolworth Co, 90
NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded 4
ORDER
The National Labor Relations Board orders that
the Respondent, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local
230, AFL-CIO, its officers, agents, and representa-
tives, shall
1 Cease and desist from
(a) Failing to adequately notify job applicants of
changes in the hiring hall rules and failing to dis-
patch Mark Collins or any other employee because
of his noncompliance with such changes
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Make whole Mark Collins for any loss of
earnings and other benefits suffered as a result of
the Respondent's failure to dispatch him on June
12, 1987, in the manner set forth in the remedy sec-
tion of the decision
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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 facilities in San Diego, California,
copies of the attached notice marked "Appendix "5
* 283 NLRB 1173 (1987) Interest will be computed at the short term
Federal rate for the underpayment of taxes as set out in the 1986 amend
ment to 26 U S C § 6621
s 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 Nation
Continued
PLUMBERS LOCAL 230
Copies of the notice, on forms provided by the Re
gional Director for Region 21, 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
al 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
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT fail to adequately notify job appli-
cants of changes in our hiring hall rules and to dis
patch Mark Collins or other employees because of
their noncompliance with those changes
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL make whole Mark Collins for any loss
of earnings and other benefits suffered as a result of
our failure to dispatch him on June 12, 1987, with
interest
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS
TRY OF THE UNITED STATES AND
CANADA, LOCAL 230, AFL-CIO
Robert R Petering Esq, for the General Counsel
Elizabeth Rosenfeld Esq (Pappy & Daves) of Los Ange
les, California , for the Respondent
Kevin R Conley , for himself
DECISION
STATEMENT OF THE CASE
RICHARD D TAPLITZ, Administrative Law Judge
This case was tried in San Diego California on Novem
ber 19 1987 The complaint which was based on a
317
charge filed on June 15, 1987, by Kevin R Conley
issued on July 30, 1987, alleging that United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada
Local 230 AFL-CIO (the Respondent or the Union)
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act
Issue
The central issue is whether the Union violated the
Act by failing to adequately publicize a nonwritten
hiring hall rule with the result that Mark Collins was
improperly denied dispatch to a job
All parties were given full opportunity to participate,
to introduce evidence, to examine and cross examine wit
nesses to argue orally, and to file briefs Briefs, which
have been carefully considered, were filed on behalf of
the General Counsel and the Union
On the entire record of the case and from my observa
tion of the witnesses and their demeanor, I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
The Associated General Contractors San Diego Chap
ter and the Plumbing and Pipefitting Industries Council
are employer associations that exist in part for the pur
pose of representing their employer members in negotiat
ing and administering collective bargaining agreements
with various labor organizations including the Union
The employer members of those associations derive gross
revenues in excess of $500,000 and purchase and receive
goods valued in excess of $50,000 directly from suppliers
located outside the State of California Each of the em
ployer members of those associations are employers en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act Pursuant to collective bargaining
agreements with those associations the Union maintains
an exclusive hiring referral hall at its main office located
at 3909 Center Street San Diego California
The Union is a labor organization within the meaning
of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Union s Refusal to Refer Mark Collins to
Employment on June 12 1987
The Union maintains a written out of work list that it
uses in referring applicants for employment from the
hiring hall Mark Collins has been a member of the
Union since 1978 and he has used the hall about 20
times The last time he signed the list was December 9,
1986 and at that time there were 109 names above his
He gradually worked his way up the list until late May
1987 when he became no 1 on the list During that
entire time he was under the impression that he was ell
gible for any jobs that came in That understanding was
based on conversations he had had sometime before with
various union officials As he approached the top of the
list he checked the list and noticed that some applicants
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had written anything next to their names He asked
other applicants for employment what anything meant
but the other applicants did not answer his question t
Collins understanding was that he was eligible for any
type of referral unless he put down a comment on the
out of work list indicating that he did not want certain
work As is set forth in more detail below, at one time
that was the procedure The hiring hall receives calls for
primarily two types of work One is residential, which
involves houses and apartment houses The other is com
mercial , which includes all other types of construction
At the times relevant here, the hiring hall did not have
any written procedures and there was nothing posted to
explain eligibility rules
The hiring hall has a procedure by which applicants
can call the hall the night before the dispatch and hear a
recorded announcement indicating the dispatches that
are to be made the following day As Collins approached
the top of the list he began calling in regularly and
coming to the hall about twice a week
On June 12, 1987, he arrived at the hall about 8 am
On that day David Floris, one of the Union s business
representatives, was the dispatcher 2 At 8 15 a in Flons
came into the dispatch hall and said that he had a call
for a residential job from Tabera Sons in La Costa
Flops opened the out of work book and called the name
of the person who was listed 22 on the out of work list
That person did not respond and he was given a
strike Under the hiring hall rules an applicant can
refuse a referral twice and still retain his position on the
list However the third refusal is the third strike and
the applicant is lowered to the bottom of the list Floris
then called the name of the person who was no 44 on
the out of work list, Ted Miller Miller said that he
would take the job Collins, who was no 1 on the list
then asked why he did not get the job Flons replied
that it was because Collins had not put anything" next
to his name Collins responded that he did not know
anything about that and it was the first he heard of it
Floris said that it was common knowledge that an appli
cant had to put `anything to be eligible for any job that
came up There were about 10 or 15 applicants in the
room at the time Some said that they knew about the
anything rule for a few months One of them Mike
Shepherd, said he just found out about it 2 weeks before
Two or three of the people said that they had not heard
about it at all Kevin Conley, the Charging Party was
also present during that conversation He told Flons that
he was not aware of the need to write anything Flops
said that unless an applicant put down anything he
would just be sent to commercial work Collins said that
he was not aware of any such rule and that if the Union
was going to have such a rule, it should be posted so
that the members would know what to do Floris ac
knowledged that the rule was not posted and said that he
i Collins testified that he did not remember who he asked about the
anything notation but that he believed they were union members
There is no indication in the record that he asked the dispatcher or any
union official
2 The answer admits that Flops is an agent of the Union The Union
has five business agents and they each act as dispatcher for a month at a
time so that each business agent dispatches 1 out of 5 months
should see Bob Daly, the business manager Collins said
that he would go upstairs and sign the book right away
with the word anything Flons replied that Collins
would have to wait 24 hours before the new designation
would take effect and Collins replied that it did not seem
fair because he was there and ready to go 3
Collins and Conley then went upstairs in the union
hall and spoke to the Union s Business Manager Bob
Daly 4 Conley explained the situation to Daly who said
that the rule was in effect even before he had gotten into
office Collins asked why it was not posted and Daly re
plied that it was common knowledge that everybody
knew it, and that if Collins had come to meetings, he
would have known it Daly also said that Collins could
go to the Labor Board
Collins did attend two union meetings One was in De
cember 1986 and the other was June 1987 At those
meetings he did not hear anything about the anything
rule The rule was not mentioned in the Union s newslet
ter and was not posted
Collins remained no 1 on the out of work list On
June 12, 1987, he signed anything on the list Within a
week Collins was referred to a residential job Apparent
ly that job did not last as long as the one he would have
been referred to if he had been sent to work on June 12
In their opening statements, counsel for both the General
Counsel and the Union stated that Collins lost about 6
days work In addition counsel for the Union stated that
written rules have now been promulgated for the hiring
hall
B The History of the Signup Procedure
Prior to 1983 applicants simply signed the out of work
list and had no choice between residential and commer
cial work There was dissatisfaction with that system
from the point of view of both the applicants and the
employers Residential work tended to require more
speed and was more physically demanding than commer
cial work Many of the older applicants did not want to
be referred to the residential work However if such an
applicant s name was called from the referral list for a
residential job and the applicant refused the job he
would have to take a strike If such an applicant had two
strikes and the next job was residential the applicant
would be faced with a choice of taking the work that he
did not want or being dropped to the bottom of the list
Sometimes such an applicant took the job and could not
keep up with the work That resulted in complaints from
employers to the effect that the referred employees were
too slow The Union changed the system in 1983 to
3 The Union has a longstanding rule that if an applicant changes his
status on the hiring list he cannot be sent out until the following day
Union Business Representative John Duvall testified that the rule was
needed so that applicants could not avoid a strike by making changes
after they knew what the calls were going to be Thus if an applicant is
exempt from strikes because he is on the sick list he cannot say he is off
the sick list after he hears the calls for the day but must wait for the
following day
In addition if a job is for less than 5 days an applicant can refuse the
job and still avoid a strike If an applicant does accept the job he drops
to the bottom of the list after he has received 8 hours pay
* The answer admits that Daly is an agent of the Union
PLUMBERS LOCAL 230 319
allow applicants to designate the type of work they
wanted so that if they only wanted commercial work,
they would not have to take a strike by being offered
and refusing residential work Under the new system if
an applicant put down P for plumber, it meant that he
would be dispatched only for commercial work He
would not be offered or be given a strike for refusing
residential work If the applicant put down residential, '
he would only be sent to residential work
Apparently the system was somewhat confusing and
sometime between 1984 and March 1986 it was changed
again5 so that an applicant who wanted to be available
for all types of work could write anything Plumber
continued to mean only commercial work and residen
tial continued to mean only residential work
C Efforts to Notify Applicants for Employment About
the Rule Changes
As of June 12, 1987 when Collins was denied referral
to a residential job because he had not put anything" on
the out of work list, some applicants knew of the any
thing rule and others did not Collins and Conley both
credibly testified that they were unaware of the rule at
that time Some applicants who were in the hiring hall
on June 12 also indicated that they did not know the
rule Others stated that they were aware of it The rules
were not in writing and there was no attempt to inform
the applicants of the rules by any posting procedures
John Duvall, one of the Union s business represents
tives, credibly testified that when the rule was changed,
he explained it to the applicants when he was dispatch
ing He dispatched 1 out of 5 months and he answered
questions whenever they were asked concerning the dis
patching procedure He also credibly testified that the
dispatching rules were discussed at least four or five
times during meetings between 1983 and January 1987
and that the discussion usually came up in response to
questions by members
Union Business Representative Floris also credibly tes
tified that he recalled a union meeting at which the resi
dential rule was explained
Dan Leonard a union member of 10 years standing
credibly testified that he found out about the new proce
dure during the latter part of 1986 when he spoke about
it to Floris and he heard the same thing from general
talk around the hinng hall He also credibly testified that
the rules had been discussed at membership meetings
four or five times in the last 4 years
Bryan Lovell the Union s recording secretary, credi
bly testified that he heard of the `anything rule at a
union meeting
Counsel for the General Counsel in his brief has made
an analysis of the residential, commercial, and "any
thing notations on the hiring hall records Though there
is no way to determine when such notations were placed
on the records the inference is warranted that gradually
b Union Business Representative John Duvall initially testified that the
change was made in 1984 However later in his testimony he seemed
quite confused and unsure about the date Business Agent Flons credibly
testified that the anything rule was in effect poor to his taking office in
March 1986 In any event the change was made well before December
9 1986 when Collins last signed the out of work list
more and more people became aware of the new rules
and started to make such entries However no clear pic
ture is presented as to just how many applicants knew of
the rules and how many did not What is apparent is that
the hiring hall was run on an extremely casual basis and
that notification to applicants of rule changes was hap
hazard at best with great reliance on word of mouth
communications between members The rules were spo
radically discussed at union meetings and they were also
occasionally discussed during the operation of the hiring
hall There was no systematic attempt to notify employ
ees, no written rules, and no postings Some of the apple
cants learned of the rule changes and others did not The
Union s notification procedure was chaotic and ineffi
cient However, there is no evidence in the record to in
dicate that the Union purposely kept the applicants unin
formed or misinformed concerning the hiring hall rules
The Union was partially ineffective and was negligent in
the dissemination of information concerning the rule
changes but there is no evidence in the record that there
was any intentional misleading , that there was any at
tempt to discriminate against nonmember applicants, or
that there was any hostility directed against Collins or
anyone else
D Analysis and Conclusions
The issue here is a narrow one It involves the ques
tion of whether the Union met its obligation to notify ap
plicants for employment of a change in hiring hall rules
The change in itself was lawful Under the new rule an
applicant could write anything next to his name and
make himself available for any work that came in or he
could limit the type of work he would take without run
ping the risk that he would be dropped to the bottom of
the list for refusing work that he did not want The
change was also desirable from the employers point of
view and was initiated in part because of employer pro
tests against the old system The change was not intend
ed nor did it have the effect of discriminating against
nonunion members, was not based on the Union s hostili
ty toward anyone and was not unfair or invidious in any
sense The fact that the change was not reduced to writ
ing did not make the change unlawful 6
Though the distinction is not always clearly drawn
there is a sharp difference between a legitimate change in
hiring hall rules and an unlawful deviation from such
rules Hiring hall rules need not be static and if proper
notice is given and the change is in itself a legitimate
one there is nothing unlawful in keeping hiring hall rules
up to date Once a change has been made there is a new
hiring hall rule That is very different from a situation
6 As the Board held in Iron Workers Local 505 (Snelson Anvil) 275
NLRB 1113 at 1113-1114 (1985)
In the absence of a contractual requirement there is no require
ment in Board law that referral rules be posted Nor is there a re
quirement that referral rules be incorporated in a contract However
the Board does require that referrals whether made pursuant to
written or unwritten rules be based on objective criteria and applied
in a nondiscriminatory manner
See also Laborers Local 1334 (Western Sign) 281 NLRB 185 (1986) La
borers Local 394 (Building Contractors) 247 NLRB 97 fn 2 (1980) enfd
mem 659 F 2d 252 (D C Cir 1981)
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where hiring hall rules are ignored or where there is a
deviation from existing hiring hall rules 7 In the instant
case we have a change in a hiring hall rule rather than a
departure from established hiring hall procedures
When a change is made in a hiring hall rule notice
must be given to the job applicants Thus in Operating
Engineers Local 406 (Ford Construction) supra at 51,8 the
Board held
This failure to give timely notice of a significant
change in referral procedures was arbitrary and in
breach of its duty to represent job applicants fairly
by keeping them informed about matters critical to
their employment status
The key question is what type of notice is legally suffi
cient The Board has held that such notice must be ade
quate Electrical Workers IBEW Local 11 (Los Angeles
NECA), 270 NLRB 424, 426 (1984), enfd 772 F 2d 571
(9th Cir 1985), Teamsters Local 519 (Rust Engineering),
276 NLRB 898 fn 3 (1985) However, in this context
adequate appears to be synonymous with legally suf
ficient and does not indicate what criteria are to be
used in making that determination There is a line of
cases that does appear to spell out the criteria to be ap
plied in determining the legal sufficiency of notice to em
ployees concerning matters affecting their employment
The basic proposition is set forth in Painters Local 1310
(Reliance Electric) 270 NLRB 506 (1984), in which a
shop steward was negligent in answering an employee s
question with the result that the employee was dis
charged The Board held at 506
It is well settled that negligent action or nonac
tion of a union by itself will not be considered to be
arbitrary, irrelevant, invidious or unfair so as to
constitute a breach of the duty of fair representation
violative of the Act Teamsters Local 692 (Great
Western Untfreight System) 209 NLRB 446 448
(1974) We recently reaffirmed that as an element
of the duty of fair representation a union s agents
must refrain from purposely keeping unit employees
uninformed or misinformed concerning grievances
or matters affecting employment Teamsters Local
282 (Transit Mix Concrete) 267 NLRB 1130 (1983)
Plainly put, unlike purposeful conduct simple negli
gence does not violate the duty of fair represents
tion under the Act
A similar result was reached in Auto Workers Local 167
(General Motors Corp) 286 NLRB 1167 (1987), in which
7 In Operating Engineers Local 406 (Ford Construction) 262 NLRB 50
51 (1982) enfd 701 F 2d 504 (5th Cir 1983) the Board held
The Board has held that any departure from established 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 representa
tion owed to all hiring hall users and violates Section 8(b)(1)(A) and
(2) unless the union demonstrates that its interference with employ
ment was pursuant to a valid union security clause or was necessary
to the effective performance of its representative function
8 See also Carpenters Local 720 (UMC of Louisiana) 276 NLRB 59
(1985) enf denied 798 F 2d 781 (5th Cir 1986) Stage Employees IATSE
Local 41 (Theater of Stars) 278 NLRB 894 (1986)
the Board held that a union must refrain from purposely
keeping unit employees uninformed or misinformed con
cerning grievances or matters affecting employment
that mere negligent action or nonaction alone does not
constitute a breach of the duty of fair representation vio
lative of the Act and that a union does not violate the
Act simply by giving to an employee an incorrect inter
pretation of the governing bargaining agreement so long
as it is not deliberately misleading or deliberately incor
rect
The basic logic of the above cases has been applied to
hiring halls In Boilermakers Local 374 (Combustion Engt
neering) 284 NLRB 1382, 1383 (1987) the Board dis
cussed the union s code of acceptable conduct with
specific reference to a hiring hall, holding
It is well established that since a union has such
comprehensive authority vested in it when it acts as
the exclusive agent of users of a hiring hall and be
cause the users must place such dependence on the
union that there necessarily arises a fiduciary duty
on the part of the union not to conduct itself in an
arbitrary invidious, or discriminatory manner when
representing those who seek to be referred out for
employment by it Teamsters Local 519 (Rust Engt
neering) 276 NLRB 898 908 (1985) Thus it has
been repeatedly held that once a union embarks on
the operation of an exclusive hiring hall it must con
duct the hiring hall in a fair and impartial manner
This code of acceptable conduct necessarily extends
to the institution of any referral rules which the
union adopts in accord with contractual provisions
In other words the referral rules themselves in
cluding any referral grievance mechanism, cannot
be discriminatory or arbitrary Laborers Local 304
(AGC of California) 265 NLRB 602 (1982)
To 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
Rainey Security Agency 274 NLRB 269 270 (1985)
See also Teamsters Local 92 (Great Western Uni
freight), 209 NLRB 446 (1974)
I believe that the holding in that case is controlling and
that for the General Counsel to establish that the Union
violated the Act by giving legally insufficient notice of
the change of hiring hall rules, it must be shown that the
Union s actions in that regard were arbitrary rather than
negligent or the exercise of poor judgment
In the instant case the Union spoke about the changes
in hiring hall rules at some meetings and answered ques
tions from the floor concerning those changes, and in ad
dition at least one business agent, who acted as dispatch
er 1 out of 5 months told applicants at the hiring hall
about the changes and answered their questions Appar
ently the Union relied heavily on notification through
word of mouth communications between members In
fact a number of employees did learn of the change well
before the refusal to refer Collins It is also clear that a
number of employees, including Collins, did not learn of
the change in a timely fashion As indicated above I be
lieve that the Union took a slipshod approach to notify
PLUMBERS LOCAL 230
ing applicants about the change and that it was negligent
in not taking reasonable steps to make sure that all em
ployees knew of it However , under the criteria set forth
in Boilermakers Local 374 and the other cases cited
above , to prove a violation something more than mere
negligence or the exercise of poor judgment on the part
of the Union must be shown That something more
has not been established by the General Counsel and I
321
shall therefore recommend that the complaint be dis
missed in its entirety
CONCLUSION OF LAW
The General Counsel has not established by a prepon
derance of the credible evidence that the Union violated
the Act as alleged in the complaint
[Recommended Order for dismissal omitted from pub
lication ]