Plumbers Local 44 (Welded Construction)

National Labor Relations Board - Board Decisions

Nov 22, 1993

313 N.L.R.B. 1 (N.L.R.B. 1993)

1
313 NLRB No. 1
PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 We adopt the judge’s findings and conclusions that the Respond-
ent failed to demonstrate that the bypassing of Local 598 welders
for referral was necessary for the effective performance of its rep-
resentative function. Even assuming that a potential loss of dispatch-
ing jurisdiction over the pipeline project is a matter for concern in
the maintenance of legitimate representative functions, the Respond-
ent failed to establish, for the reasons set forth by the judge, that
the bypassing of the Local 598 welders was made necessary by the
events of March 27, 1992, or was justified on any other basis.
1 Unless otherwise stated, all events herein occurred during 1992.
Plumbers and Steamfitters Local Union No. 44,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL–
CIO (Welded Construction Co.) and Jeff Hol-
brook and Mark S. Simons and Brian J. Davis.
Cases 19–CB–7136, 19–CB–7141, and 19–CB–
7157
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 29, 1993, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief1 and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Plumbers and Steamfitters
Local Union No. 44, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL–CIO,
its officers, agents, and representatives, shall take the
action set forth in the Order.
James C. Sand, Esq., for the General Counsel.
Steven Crumb, Esq. (Crumb & Casey), of Spokane, Wash-
ington, for the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based on
an unfair labor practice charge in Case 19–CB–7136, filed by
Jeff Holbrook, an individual, on April 22, 1992, an unfair
labor practice charge in Case 19–CB–7141, filed by Mark S.
Simons, an individual, on April 27, 1992, and an unfair labor
practice charge in Case 19–CB–7157, filed by Brian J.
Davis, an individual, on May 6, 1992,1 the Acting Regional
Director for Region 19 of the National Labor Relations
Board (the Board), on June 3, 1992, issued an order consoli-
dating the above-captioned matters and a consolidated com-
plaint. Said consolidated complaint alleges that Plumbers and
Steamfitters Local Union No. 44, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL–CIO (Re-
spondent), engaged in acts and conduct violative of Section
8(b)(1)(A) of the National Labor Relations Act (the Act). Re-
spondent timely filed an answer, essentially denying the
commission of any of the alleged unfair labor practices. The
above-captioned matters came to trial before me in Spokane,
Washington, on July 9 and 10, 1992, and, at the trial, all par-
ties were afforded the opportunity to examine and to cross-
examine witnesses, to offer into the record all relevant evi-
dence, to argue their legal positions orally, and to file
posthearing briefs. Counsel for the General Counsel and
counsel for Respondent filed posthearing briefs, and these
have been carefully considered. Accordingly, based on the
entire record herein, including the briefs and my observation
of the testimonial demeanor of the various witnesses, I issue
the following
FINDINGS OF FACT
I. JURISDICTION
Welded Construction Company (Welded) is a State of
Ohio corporation and had an office and place of business in
Pasco, Washington, at which location it engaged in the busi-
ness of natural gas pipeline construction. During the 12-
month period immediately preceding the issuance of the in-
stant consolidated complaint, which period is representative,
in the normal course and conduct of its above-described busi-
ness operations, Welded purchased and caused to be trans-
ferred and delivered to its facilities within the State of Wash-
ington goods and materials valued in excess of $50,000 di-
rectly from sources located outside the State. Respondent ad-
mitted that, at all times material herein, Welded has been an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material herein, it has
been a labor organization within the meaning of Section 2(5)
of the Act.
III. ISSUES
The consolidated complaint alleges that Welded was the
subcontractor on a pipeline construction project in the States
of Idaho and Washington; that the collective-bargaining
agreement between the general contractor and the United As-
sociation of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL–CIO (the UA), established an exclusive hiring hall for
half the necessary manpower on the pipeline project; that
construction of a portion of the pipeline was within the terri-
torial jurisdictions of both Respondent and UA Local 598;
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent admitted that Smith, Krels, and Reinhart are its
agents within the meaning of Sec. 2(13) of the Act.
3 In order to be classified as a welder, a plumber or pipefitter must
pass a welding test and be certified as having done so. The individ-
ual will then be placed on the welders list; however, he may choose
to be another list and not on the welding list. As will become evi-
dent herein, the welding skills necessary for building trades work are
apparently different and perhaps less stringent than those required
for pipeline construction work.
that the UA assigned jurisdiction and dispatching rights over
the project in said areas to Respondent with the proviso that,
after first dispatching its own qualified welders to the
project, Respondent would then give preference in dispatch-
ing to qualified welders from Local 598 before turning to ap-
plicants from other UA local unions; that, pursuant to its in-
structions, Respondent solicited a list of qualified welders
from Local 598; that, for the initial job calls for the pipeline
project, Respondent adhered to the established procedure,
first dispatching welders from its own list of qualified weld-
ers and then turning to the Local 598 list to fill an additional
call for welders; and that, commencing on or about April 6,
rather than continuing to follow the ‘‘established procedure,’’
Respondent bypassed welders on the Local 598 list and
began dispatching welders, who were members of other UA
locals, to the Welded project. Based on the foregoing, the
consolidated complaint alleges that Respondent engaged in
conduct violative of Section 8(b)(1)(A) of the Act. Contrary
to the General Counsel, Respondent denies that it engaged in
any unfair labor practices, alleging that there was no estab-
lished procedure for the dispatching of qualified welders to
the Welded pipeline project and that, assuming a procedure
existed, Local 598’s failure to provide a list of qualified
welders to Respondent for dispatch necessitated that Re-
spondent dispatch from other sources in order to meet its
contractual obligations.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent’s office and hiring hall facility is located in
Spokane, Washington, and its territorial jurisdiction covers
northern Idaho and northeastern Washington. Scott B. Smith
is Respondent’s business manager, a full-time, salaried posi-
tion, and his job duties include administering Respondent’s
hiring hall. William J. Krels is the president of Local 44 and
acts in place of Smith when the business manager is away.
On such occasions, Krels handles all of Respondent’s admin-
istrative affairs, including dispatching procedures, and is paid
for his work. Also, on the first Friday in March, Smith ap-
pointed Frank Reinhart as Respondent’s pipeline business
agent, with such being a full-time paid position.2 UA Local
598, which has a larger membership than Respondent, has its
office and hiring hall facility in Pasco, Washington, and its
territorial jurisdiction covers south central Washington and
four counties in Oregon. Gary Barcom is the business man-
ager of Local 598.
With regard to the referral of members to jobs, the record
establishes that Respondent and Local 598 have similar, if
not identical, dispatching practices and procedures, which are
posted in the hiring hall of each and are well known to the
membership of each. Thus, both UA locals, composed pre-
dominantly of building trades crafts journeymen and appren-
tices, maintain out-of-work lists for plumbers, pipefitters, and
welders,3 and, for each craft, there are four out-of-work lists,
defined by hours of work within geographic areas. Members
of other UA local unions are permitted to register on the out-
of-work lists and be dispatched from the hiring halls of Re-
spondent and Local 598 by depositing their travel cards in
the locals, and members of either local retain their places on
the out-of-work list of their home local while working within
the territorial jurisdiction of other locals throughout the coun-
try but are not eligible for dispatch until their travel cards
have been redeposited with their home UA local union. In
addition, dispatching from the out-of-work lists is done in the
order of registration on the lists, and both locals have similar
rules such as the number of job turn-downs permissible with-
out forfeiting one’s position on an out-of-work list.
Sometime in 1991, Smith and Barcom became aware that
the Bechtel Corporation was about to commence an 840-mile
natural gas pipeline expansion project, from the Canadian
border to central California, for PGT and PG&E and that
portions of the work, subcontracted to Welded, would be
performed in the States of Idaho and Washington and within
the territorial jurisdictions of both Respondent and Local
598. The record reveals that no pipeline construction work
had been performed within the territorial jurisdictions of ei-
ther UA local for several years and that such work is consid-
ered highly desirable by welders inasmuch as ‘‘big inch
pipe’’ is used and as there is normally a high rate of pay.
Bechtel is a party to the National Pipeline Agreement be-
tween the UA and the Pipe Line Contractors Association,
and a separate project agreement was also executed by the
parties on January 6. Pursuant to the agreements, Bechtel and
its subcontractors were authorized to hire half of the work
force, comprised of welders, helpers, and journeymen, on
their own and the UA was authorized to operate an exclusive
hiring hall for referral of the remaining half of the required
personnel to Bechtel and its subcontractors. The only proviso
on the UA’s referral rights was that it dispatch ‘‘only quali-
fied’’ workers, those ‘‘who have had previous experience in
the construction of transportation mainline pipe lines . . . .’’
Further, the collective-bargaining agreements authorized the
UA to assign jurisdiction over the pipeline work to its local
unions.
Pursuant to its authorization, George Lambert, the UA’s
pipeline section director, conducted a meeting on February 6
in Portland, Oregon, with the business managers of four
West Coast UA local unions in whose territorial jurisdictions
the pipeline would be constructed. Those business managers
who attended included Smith and Barcom, and there is no
dispute about what was discussed. According to Smith, Lam-
bert ‘‘explain[ed] his concerns on these projects and
express[ed] the paragraphs in the project agreement that
would be adhered to.’’ With regard to the qualifications of
welders, who were referred to the pipeline project, Lambert
‘‘specifically wanted people with pipeline experience,’’ how-
ever, it was understood that there would be no objection to
the sending of individuals, known as ‘‘broncs,’’ who had no
pipeline experience but who passed qualifying tests. Accord-
ing to Smith, ‘‘what [Lambert] really did not want was a
pipeline job with a bunch of building trades hands on it that
had no practical pipeline experience. And it was under-
stood.’’ Gary Barcom corroborated that Lambert emphasized
3PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
4 Lambert’s threat to rescind jurisdiction over the work from a
local if there were any problems was taken seriously; for each busi-
ness manager understood that, as the dispatching local retains the
union dues of those dispatched, such would result in a potential rev-
enue loss as well as a loss of opportunities to dispatch applicants
from its hiring hall.
5 Once an welding applicant was dispatched to the pipeline project,
it was understood that Welded would test him to determine if, in
fact, he was able to perform pipeline welding work. The type of
welding utilized on pipeline projects is called ‘‘downhill’’ welding,
and that is quite different than used in building construction work.
6 Welded’s portion of the pipeline construction work would stretch
104 miles, with 30 miles of the pipeline to be within Local 598’s
territorial jurisdiction.
7 Apparently Local 598’s welding training facilities were larger
and more elaborate than what Respondent had, and subsequent to the
prejob conference, Barcom advised Smith that Respondent’s welders
were welcome to train at Local 598’s yard. There is no dispute that
several of Respondent’s welder-members trained there prior to being
sent to Welded to test.
8 Jeff Holbrook, a member of Local 598, who had prior pipeline
welding experience and who, in early March, was working in the Se-
attle area, having deposited his travel card with UA Local 32, testi-
fied that he was informed by Phil Philip that a pipeline job would
commence in April and that Local 44 would be doing the dispatch-
ing. Thereon, he telephoned Scott Smith, who told Holbrook about
the pipeline project job. Holbrook asked what he had to do in order
to get on the list for the job, and Smith told him to deposit his travel
card with Local 598 in order to be dispatched. Holbrook said that
that was not the normal procedure, and Smith said it was the way
it was being done for this job. Two other members of Local 598,
Mark Simons and Brian Davis, testified that they learned from Gary
Barcom about the pipeline project and that he said that selection of
welders for the project would come from a list of available welders,
who possessed welding rigs on pickup trucks; and would be in the
ordinary sequential manner from said list.
9 Smith testified that he did not require that the welders, who re-
quested placement on Respondent’s list for the Welded job, have
prior main line pipeline experience and that Frank Reinhart, who
was an experienced pipeline welder, administered an ‘‘advisory test’’
to each interested welder in order to demonstrate the rigors of the
Welded welding test and to convince those welders, who were not
capable of passing, not to place their names on the Welded list.
10 Apparently, most of the calls were from members of UA Local
798, located in Tulsa, Oklahoma. The local is essentially comprised
of pipeline workers, who travel great distances in order to perform
pipeline work. At one point, Jeff Holbrook visited the Welded yard
and observed numerous automobiles, bearing out-of-state license
plates, which presumably belonged to Local 798 members.
the importance of dispatching qualified welders and threat-
ened to take over the job if there was even ‘‘one wobble.’’4
With regard to the dispatching of qualified welders, accord-
ing to Barcom, Lambert stressed the need for people with
‘‘previous pipeline experience’’ and said that ‘‘We don’t
want a suitcase parade out there of people who really have
no chance of passing the test.’’5 While Lambert said nothing
as to whether Respondent or Local 598 would have jurisdic-
tion over the Welded pipeline project work in Idaho and
Washington,6 pursuant to the national agreement, he was au-
thorized to decide such matters and, by letter to Smith dated
February 20, he wrote:
Due to the fact that the majority of the work award-
ed to Welded Construction Company is located in
Local 44 jurisdiction, you have been assigned to police
the jurisdiction of this project for the duration of the
project agreement. However, since a portion of this
project goes through Local 598 Pasco, Washington ju-
risdiction you are requested to use qualified Local 598
members on a first call basis when all Local 44 quali-
fied people have been dispatched.
This assignment in no way changes historical juris-
diction boundaries. As stated above, this assignment is
for the duration of this project agreement only.
With Respondent given jurisdiction over the Welded por-
tion of the pipeline construction project, a ‘‘pre-job’’ con-
ference was held in Spokane, Washington, on March 11 and
12. Present were Welded representatives, Lambert, Smith,
Barcom, and Frank Reinhart, who, at approximately that
time, had been appointed as Respondent’s business agent in
charge of policing the pipeline project on its behalf. Accord-
ing to Smith, as Welded expressed concern, once again, there
was ‘‘quite a detailed discussion’’ over how to qualify the
welders, who would be dispatched to the jobsite. Smith said
that Reinhart would be in charge of Respondent’s training,
and as ‘‘I was curious about how [Local 598] was going to
qualify welders to be able to meet this qualification on the
pipeline . . . [Barcom] told me that he had a man . . . Phil
Philip . . . that was going through the process and trying to
qualify people to take a test.’’ Barcom testified that he told
Smith that Local 598 had people ‘‘with previous experience
and we were furnishing the opportunity for them to . . . re-
fresh their skills.’’ He also assured Smith that his local
would not take people with no pipeline skills and try to de-
velop them.7 Besides the foregoing, Smith and Barcom dis-
cussed how the dispatching of Local 598 welders by Re-
spondent would be accomplished but only in terms of wheth-
er travel cards would be necessary. Thus, asked what was
said by them regarding dispatching procedures, Smith testi-
fied that ‘‘we had discussed the travel card situation . . . be-
cause [it] . . . was not going to require any type of travel
card provision . . . on this project. So . . . I had talked with
Gary about it. . . . And at that time we decided that’s the
way we were going to go, no travel card. A guy would have
to be immediately available for work and be a qualified
welder to take a call.’’ He explained, during cross-examina-
tion, that the only travel card requirement was that, to be eli-
gible for dispatch by Respondent to the Welded job, a UA
member welder, who was not a member of Respondent, had
to have his travel card deposited with his own UA local. As
to what was said regarding the dispatching procedures to be
utilized for the pipeline project, Barcom corroborated Smith
that such discussions were limited to the need for travel
cards, stating that Smith ‘‘outlined the procedure to me . . .
that he had been requested by the International to use our
people after his people and he did not want them to deposit
travel cards, that he would contact me for a list of available
people when they started hiring.’’8
On March 13, Respondent dispatched a welder, who was
to act as its job steward on the pipeline project, and a helper
to Welded, and Smith anticipated that Welded’s initial call
for welders would follow shortly. Smith testified that Re-
spondent had a short list of members, who possessed the
qualifications to perform pipeline welding,9 and that he had
received ‘‘numerous’’ calls from throughout the country
about the pipeline work.10 He testified further that, as of
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 According to Scott Smith, his understanding of Lambert’s Feb-
ruary 20 dispatching instructions was that ‘‘when we get through our
Local 44 people, we were requested to use 598. It wasn’t a manda-
tory deal.’’
12 Gary Barcom also attended this conference.
13 Asked if he reviewed the work history of each listed welder
prior to placing him on the March 20 list, Barcom conceded that ‘‘I
couldn’t say I had personally reviewed every single one. . . . But
most of them, we probably did.’’ He added that he considered any
pipeline work, even irrigation pipeline welding, as the required expe-
rience for the Welded project.
14 The parties stipulated that the following individuals, who are
named on Local 598’s March 20 list, did not submit their travel
cards to Local 598 until the listed date: Brian Davis (March 27),
Ivan Newcomb (April 6), Mark Simons (March 27), Harold Roan
(March 27), Glen Hart (March 31), Jeff Holbrook (April 3), M.
Howard (March 30), and James Stull (March 27). The parties further
stipulated that listed individual Jack Holbrook, the father of Jeff, was
working out of and had his travel card deposited in Respondent’s
hiring hall on March 20.
15 Barcom stated, during cross-examination, that welders were left
off the March 20 list for one reason or another, but he gave no ex-
amples.
16 Krels stated that Respondent had a list of its own members, who
had previous pipeline experience or were qualified ‘‘through pipeline
welding schooling.’’ Also, according to Krels, by March 23, Re-
spondent had Local 598’s list.
17 According to Scott Smith, three of the five (Hamilton, Veldez,
and Olsen) had no previous pipeline experience, and Hamilton failed
Welded’s welding test notwithstanding having been approved by
Reinhart.
18 Respondent’s business agent, Reinhart, was at the Welded yard
in Pasco to take care of problems and was not involved in the actual
dispatching. Local 598’s hiring hall and office facility is also located
in Pasco, no more than a half an hour from the Welded yard.
19 One welder, Larry Ballinger, was traveling on another job.
March 17, he had not yet received, from Gary Barcom, a list
of Local 598’s qualified welders and that he did not want to
have a ‘‘big call for people’’ without anyone to go from that
local.11 Accordingly, on that date, he sent a letter to Barcom
in which he requested that Barcom send him a list of all
‘‘qualified’’ welders, journeymen, and helpers, who would be
immediately available for dispatch to the pipeline expansion
project. Three days later, on Friday, March 20, by ‘‘fax’’
transmission, Barcom sent a list of welders, entitled ‘‘Local
598 Applicants With Rig,’’ to Respondent. Due to some sort
of confusion in Respondent’s office, Smith did not see the
list and was not informed of its arrival, and, consequently,
when Smith left for a week-long conference12 in Scottsdale,
Arizona, over the weekend, he was unaware that the re-
quested list was in Respondent’s office.
Barcom testified extensively with regard to the preparation
of this March 20 list, General Counsel’s Exhibit 9. Initially,
during direct examination, Barcom testified that, as based on
conversations with Smith, he believed that Respondent had
more than adequate manpower to fill initial journeymen and
helper job calls from Welded, he did not include individuals,
who were available to fill those positions, on the list and that
the listing of 25 individuals, which he reviewed, was ‘‘pre-
screened’’ by Local 598’s computer and contains ‘‘only
those people who have downhill welding machines and
trucks.’’ During cross-examination, as to the listed individ-
uals’ qualifications, Barcom insisted that the fact that each
possessed a welding rig indicated downhill welding and pipe-
line experience. Asked if he had any independent knowledge
as to whether any of the 25 individuals had pipeline experi-
ence, Barcom replied, ‘‘only by their work history’’13 and ‘‘I
have some personal knowledge.’’ Further, regarding avail-
ability, conceding that, as of March 20, some of the listed
individuals had not deposited their travel cards with Local
598 and, thus, were not eligible for immediate dispatch,14
Barcom argued that most of those, who were traveling, were
immediately available to him by telephone and that he be-
lieved there was no justification for insisting that travelers
quit their jobs in order to stand by for the possibility of
being called to take a welding test. Asked if he considered
any other factor, other than ownership of a welding rig,
availability, and work history, for inclusion on the March 20
list,15 Barcom mentioned individuals, who could be termed
‘‘broncs’’ and who were practicing ‘‘this particular welding
procedure’’ at Local 598’s welding facility. Finally, with re-
gard to the listed individuals, Barcom conceded that Re-
spondent could assume that each one was immediately avail-
able for dispatch and qualified to pass the Welded welding
test, and there is no record evidence that Scott Smith had any
knowledge of how Barcom had created the March 20 list or
ever inquired as to such.
As stated above, during the week of March 23 through 27,
Respondent’s business manager, Smith, was in Arizona at a
conference, and, as was the standard procedure, he delegated
operation of the hiring hall to Respondent’s president, Krels.
Asked if he gave any instructions to Krels as to the dispatch-
ing of welders to Welded, Smith testified, ‘‘I told Bill Krels
that Gary had promised a fax of a list of people who were
readily available and qualified for that project; and if . . .
the big call came for welders that would be a list he could
refer to.’’ Smith added that his intent was for Krels himself
to telephone the Local 598 welders from the list. For his
part, Krels, who did not take part in either the Portland or
Spokane meetings, recalled that Smith ‘‘told me that we
would be dispatching. We had a request form [sic] the UA
that . . . after we sent qualified Local 44 pipeline welders
. . . we would attempt to dispatch Local 598 pipeline weld-
ers off of the list they had supplied us.16
Welded’s initial ‘‘big call’’ for welders came, by tele-
phone, on March 25, and Krels dispatched five Local 44
welders (Wichterman, Hamilton, Veldez, Crothers, and
Olsen),17 who reported the next day (March 26) to Welded
at its Pasco, Washington testing yard.18 Krels testified that
later, on March 26, Frank Reinhart, who was at the Welded
testing yard in Pasco, telephoned him and said that Hamilton
had ‘‘busted’’ (failed) the welding test and that Welded
‘‘needed more people’’ for testing. With no other welders
available from Respondent’s list,19 as he had been instructed
to do, Krels turned to the Local 598 list. The first two names
on the March 20 list were William Willis and Roy Saltz;
Krels telephoned both men and, after each accepted the job
call, dispatched them to Welded to test the next day (March
27).
Krels further testified that, between 8 and 9 a.m. the next
day, Reinhart telephoned him, ‘‘saying the two hands we had
sent had not made the test and to get two more out there’’
and it was necessary to have welders ‘‘now’’ as Welded was
about to commence a 4-mile section of pipeline near Coeur
d’Alene, Idaho, on the following Monday and, as Welded
5PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
20 While asserting that it was ‘‘not necessarily’’ true in this case,
Krels admitted that, in the normal building trades context, an indi-
vidual may refuse a dispatch call and retain his position on the out-
of-work list. Asked if anyone communicated a change in this proce-
dure for the Welded jobs, Krels said, no.
21 Recalling that this conversation occurred in the early afternoon,
Davis testified that it occurred after Willis and Saltz returned to the
yard after failing the welding test, that a secretary informed him that
someone from Respondent wished to speak to him and that he be-
lieved he was speaking to Frank Reinhart. The individual asked with
whom was he speaking, and Davis identified himself. The individual
said there was a Welded job call and asked if Davis wanted it. Davis
corroborated Krels, saying he said, no, and added that his welding
rig was not ready. Then, ‘‘I quizzed him about more jobs and more
calls, and he assured me not to worry, that everyone . . . on their
list would be called and given a chance to weld test in the very near
future.’’ The Local 44 representative continued, saying that Davis
should ‘‘not . . . worry; if you’re not ready to go out, don’t go out.
We want men to go out that are going to make the test.’’ Davis tes-
tified that the failures of Willis and Saltz to pass Welded’s test was
a factor in his thinking–‘‘I was ready, but . . . its like the whole
air of the thing that was happening . . . and they’re breaking guys
out right and left.’’
22 There is no dispute that, in fact, Stephens did report to Welded’s
testing yard that afternoon for a welding test and that he failed the
test.
23 The next name on the March 20 list, after that of Stephens, was
Thomas Morse. Krels offered no testimony regarding efforts to reach
him for a job dispatch; however, his name apparently was erro-
neously included on the March 20 list and was deleted from subse-
quent ones.
24 The record establishes that Newcomb did not deposit his travel
card with Local 598 until April 6, a fact unknown to Krels on March
27.
25 Jack Holbrook, whose name appears after that of Roan, was
working out of Respondent’s hiring hall as of March 27, and Krels
had no information as to the next person, Wesley Burgess. The
record establishes that Burgess was hired by Welded on March 30;
however, there is no record evidence as to a dispatch for him.
26 Krels knew that Welded needed two welders and would be pre-
pared to test from Friday morning until Monday morning in order
Continued
wanted a full welding crew, the dispatching ‘‘absolutely had
to be done.’’ By this time of the morning, dispatching is nor-
mally completed, and there is no dispute that Krels was
faced with an emergency situation. First, he left a telephone
message for Smith at the latter’s hotel in Scottsdale and, ad-
mittedly aware that he was obligated to continue to dispatch
from the Local 598 list of welders, Krels then ‘‘started mak-
ing telephone calls . . . .’’ Thus, after Roy Saltz, the next
name on the Local 598 was that of Brian Davis. After being
unable to reach him at home, Krels telephoned Local 598’s
hiring hall and, on being told that Davis was practicing his
welding in the yard, was transferred to Davis. According to
Krels, ‘‘I asked Brian if he was ready to go to work, and
he said no . . . . he was not ready to go yet.’’ At that point,
Phil Philip, the Local 598 member who was assisting the
Local 598 welders to prepare for the Welded pipeline weld-
ing test, broke into the conversation and said he didn’t think
Davis should test. Then Davis came back on the line and
asked if a refusal would ‘‘screw me up’’ for the job, and
Krels admittedly said he didn’t think so.20 Davis said
‘‘fine,’’ he could not take the test.21 Krels stated that he then
asked to speak to the next man on the list, Ken Rosenberger.
Davis informed Rosenberger that Krels wanted to speak to
him; the latter came onto the telephone line; and, after Krels
offered a welding dispatch to Welded to him, Rosenberger
said ‘‘that he wasn’t ready to go.’’ The next name on the
list was that of Cecil Riley, who Krels was able to reach at
his home in Idaho. Riley said he was too far from Pasco to
be available for a dispatch and to take the welding test that
afternoon but could be there the following morning (Satur-
day, March 28). Krels asked him to wait in order to permit
him to contact others on the list because it was an emergency
call for that day.
Krels testified that he again telephoned Local 598’s hiring
hall in order to speak to Richard Stephens, the next man on
the Local 598 welder list. ‘‘[S]omebody . . . answered the
telephone and when I told them who I wanted to talk to, this
person told me that Stephens was not ready to weld.’’ Soon
thereafter, Stephens came on the telephone and said ‘‘[he]
had no interest in going.’’22 The next listed welder, whom
Krels attempted to contact, was Waymon Lathrom.23 Accord-
ing to Krels, Lathrom had been in Respondent’s hiring hall
several times in the recent past and had left a pager number
for reaching him. Also, Krels knew that Lathrom was in the
process of driving from Spokane to Pasco, and, in those cir-
cumstances, telephoned Local 598, leaving a message for
Lathrom to report to Welded’s yard, and telephoned the
pager number with the same message. In any event, Krels
was aware that Lathrom would not be available to test that
afternoon, and, therefore, continued attempting to reach the
welders on the Local 598 list in the order of their listing.
While unable to recall anything with regard to Ivan New-
comb,24 Krels did recall attempting to reach Mark Simons at
Local 598’s hiring hall, but was informed by either Phil Phil-
ip or Daniel Timothy O’Leary, who is employed by Local
598’s joint apprenticeship training committee as the training
coordinator and who is neither an agent or an officer of
Local 598 and is not involved in dispatching for Local 598,
that Simons ‘‘was not available.’’ Contrary to Krels, Mark
Simons recalls speaking to a representative of Respondent
after Willis and Saltz returned to Local 598 after failing the
welding test for Welded. Stating that Brian Davis told him
that Respondent’s representative wanted to speak to him, Si-
mons said that he picked up the telephone, and the man
‘‘asked me if I could go down there that afternoon and take
the test, and I said, no, I was having problems with my
welding machine and I was on my way to get it repaired.
. . . I said that I could not make it that day but I would be
able to come out Monday first thing.’’ The Local 44 rep-
resentative replied that he did not know when he would get
back to him, and, according to Simons, said nothing contrary
to Simons’ understanding that he could, without penalty,
refuse a dispatch. The next welder on Local 598’s list was
Harold Roan, who Krels reached at Local 598’s facility, and
‘‘he was not interested in going. His machine was not run-
ning properly. . . .’’ The next man on the list,25 to whom
Krels recalled speaking, on March 27 was Glen Hart. Reach-
ing Hart at Local 598, Krels asked if he would report to the
Welded project and take the welding test, and ‘‘I believe he
said he would go if Phil Philip was going. . . .’’
At this point, Krels appears to have been on the brink of
panic, unable to fill Welded’s need for two qualified welders
and with time running out. In desperation,26 Krels telephoned
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to qualify them to begin work on Monday on the 4-mile Coeur
d’Alene stretch of pipe. Krels knew the men would have certified
and ready to go. Also, Krels understood that if he failed to refer
qualified people to Welded, the company could easily hire Local 798
welders to do the work.
27 With regard to the events of March 27, O’Leary, who was in-
volved in the training of the welders for the pipeline job, had 10
welders practicing in Local 598’s yard that day, and each had his
equipment set up and working. At approximately 1:30 or 2 p.m.,
Krels telephoned Local 598 and spoke to O’Leary as ‘‘I think I was
the only person available at the Union Hall.’’ According to the lat-
ter, ‘‘Krels was pretty panicked . . . because he needed to get a cou-
ple of welders to the test lab immediately. Most of our people were
practicing . . . at that time. He needed to get them out there as soon
as they could get there. I went out to the yard to explain to our
welders that they needed two welders to go test. The men were prac-
ticing and their equipment was strung out all over the yard. . . .
Two people volunteered to go.’’ Others ‘‘felt they needed additional
time. A couple of the individuals wasn’t sure of their equipment run-
ning properly. They was breaking them in and having a few prob-
lems. So basically there was just two people who thought they’d go
help man the job.’’ Later, after both men failed the test, Krels called
again and was ‘‘really in a panic state’’ as he needed two more
welders to test Saturday morning. O’Leary specifically denied any-
thing being said about turning the pipeline dispatch procedure over
to him for Local 598 members.
28 The record establishes that Cecil Riley and Waymon reported to
Welded on Saturday, March 29, and that each passed the required
welding test. Further, while not dispatched, Wesley Burgess reported
to Welded on Monday, March 30 and passed the welding test.
29 According to Smith, Krels went through the list, detailing who
failed the test and who refused to accept a dispatch. From his con-
versation with Krels, Smith testified, he formed the conclusion that
Local 598’s list of welders ‘‘wasn’t really a list of what I formally
requested and what I needed . . . which was a list of qualified, im-
mediately available people . . . not people who had a fouled-up ma-
chine.’’ Also, based on what Krels told him, Smith believed that,
other than Willis and Saltz, all the other Local 598 welders, who re-
ported to Welded on April 27, were told to do so by O’Leary. Wil-
liam Krels corroborated Smith that, over the weekend, they dis-
cussed the Local 598 dispatching problem the previous Friday and
testified that he went down the Local 598 list of welders, explaining
several refused dispatches and others had failed the test and stating
his belief that it was a ‘‘phony’’ list as the guys were not ready to
go out.
30 There is no dispute that Welded did request the dispatching of
helpers on or about March 30 and that Smith telephoned Gary
Barcom and requested the names of two Local 598 members for the
jobs. Subsequently, on being dispatched, two Local 598 helpers re-
ported to Welded on March 31.
31 Each passed the welding test.
Local 598 Apprentice Training Coordinator O’Leary and told
him, ‘‘I don’t care what you do. Get some people down
there. We’ve got to have some people go test.’’ O’Leary
promised to find two people, and said, ‘‘Don’t worry about
it.’’ Krels asked him to call back with the names so that he
could properly refer the welders to the job. Shortly thereafter,
O’Leary returned the call, stating that Hart and Philip would
go and test for the jobs, and Krels made out the referral
slips. Inasmuch as there had been two failures that morning,
Krels telephoned Cecil Riley and asked him to drive to the
Welded testing yard, and Krels also instructed Waymon
Lathrom, who had telephoned Respondent’s hiring hall, to
report to Welded. Late in the afternoon, Frank Reinhart tele-
phoned Krels and reported that Richard Stephens, who had
earlier refused to take a dispatch, and Phil Philip had failed
Welded’s welding test and that, in view of Philip’s failure,
Glen Hart had refused to take it. Notwithstanding that he had
Riley and Lathrom reporting for the test, after concluding
with Reinhart, Krels placed another telephone call to Local
598 and spoke to O’Leary and Cal Martin, the assistant to
Gary Barcom. Both men were ‘‘irate’’ over what had oc-
curred that afternoon, and ‘‘I just told [them] that they really
nailed me pretty hard that afternoon. . . . They pretty well
unloaded on me and told me they thought this was a rotten
deal. I couldn’t disagree with them. . . . They told me that
this was a set-up . . . and I tried to explain . . . we’ve been
working too close together for too many years to start this
kind of stuff. We’re not going to do that.’’ As to asking
O’Leary for help that afternoon, Krels conceded that he had
utilized the list as far as was practical and that, only when
it clearly was beyond the normal dispatching hours, did he
request that O’Leary27 find him people to take the welding
test.28 According to Krels, on learning that both Lathrom and
Riley had reported and passed the welding test, the dispatch-
ing crisis had eased.
The record establishes that Smith returned to Spokane over
the March 28–29 weekend, and he testified that he discussed
the Friday, March 27 dispatching problems with Krels on
Sunday, with the latter informing him of the testing failures
and the refusals of other Local 598 welders to report for test-
ing.29 Smith further testified that he also discussed the Friday
events with Frank Reinhart. Asked if he perceived what oc-
curred on Friday as a problem, Smith stated, ‘‘I didn’t have
a problem because they were going to pick the qualified peo-
ple. We were not going to go by a list . . . being as they
were going through and pick their people, make sure they
were ready, I didn’t have a problem with it.’’ Smith stated
that such was his understanding from his conversation with
Krels, who had spoken to O’Leary, the Local 598 apprentice
training coordinator. Neither Krels nor O’Leary corroborated
the establishment of such a procedure. There is no record
evidence that, during the week of March 30 through April
3, Smith ever had a conversation with Gary Barcom over the
events of March 27, and, asked why he never communicated
his dissatisfaction with the March 20 Local 598 welders list
to Barcom, Smith testified, ‘‘I can’t answer that . . . . I
thought we’d already essentially taken care of that. . . . I
made that assumption on the way they took charge of the sit-
uation.’’
The record establishes that there were no calls, from
Welded, for welders from Monday, March 30 through Thurs-
day, April 230 and that, on April 7, seven welders, necessary
for a second welding crew on the pipeline project, reported
to the Welded testing yard.31 Scott Smith initially testified
that Welded called for these welders on Monday, April 6,
and that he first checked Respondent’s list of welders and
gave a dispatch to Larry Ballinger, who ‘‘had been working
on another job’’ the previous week. Then, according to
Smith, on the same day, following the procedure assertedly
established the previous week, he placed a telephone call to
Tim O’Leary of Local 598 and said he needed some welders
and they had to be qualified to pass the Welded welders test.
‘‘And he said . . . ‘I’ve got one welder who I’m pretty sure
can make the test’ . . . I asked him who it was. He said it
was Harold Roan,’’ and Smith prepared a dispatch to Welded
7PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
32 Unable to recall whether it was on April 6 or 7, O’Leary testi-
fied that he was paged to the telephone ‘‘before noon’’ and spoke
to an individual he believes was Bill Krels. The person failed to
identify himself and ‘‘said that he needed one welder, do we have
any qualified welders. I said, ‘Yes, I know we do. We have Harold
Roan out in the yard right now. . . . I know he’s qualified.’ And
basically he wanted to talk to Harold or have Harold contact him.’’
O’Leary asked if any more welders were needed, and the Local 44
representative said, ‘‘No, I need one welder.’’ To this, O’Leary said
he had more welders to go. During cross-examination, O’Leary ad-
mitted not being concerned about Roan’s position on the out-of-work
list; rather, he was giving his assessment of the most qualified per-
son in the yard at the time and understood that Respondent had the
list of welders. I asked why, on April 6, Smith did not use the list
of welders rather than telephone O’Leary for a Local 598 welder,
Smith stated, ‘‘As per the 27th and 28th weekend, we weren’t select-
ing the men. They were telephoning the men to go on the job. That’s
how the welders . . . like Philip Philip, Glen Hart, Richard Steven-
son, Cecil Riley, we didn’t contact those people, they were contacted
by 598.’’ Later, asked the same question, Smith replied, ‘‘Because
that list, we tried using that list, and it didn’t work out. . . . As a
result of having so much trouble by going down this list and with
people saying they weren’t ready, needed more practice, didn’t have
a machine ready or whatever, 598 stepped in . . . they know their
people better than we.’’
33 Notwithstanding that he was the individual responsible for oper-
ating Respondent’s hiring hall and for dispatching to the Welded
project, Krels claimed he never saw any of the updated welder lists,
which Local 598 sent to Respondent’s office. The lists, G.C. Exhs.
10 through 15 were sent by facsimile machine to Respondent and
are dated, respectively, March 23, 26, and 27 and April 6, 8, and
9.
34 Accordingly, although this fact was unknown to Respondent at
the time, Holbrook would have been ineligible for dispatch to the
Welded pipeline project during the week of March 23 through 27;
however, he clearly would have been eligible for dispatch on April
3.
35 Barcom testified that he did, in fact, confront Reinhart at the
Welded facility and that the latter agreed to meet with the Local 598
welders at the Local 598 hiring hall. However, Reinhart failed to ap-
pear for such a meeting.
for Roan.32 Thereafter, according to Smith, also on April 6,
requiring five additional welders, he turned to ‘‘a list of men
who had called in starting back in early March to gain access
to the job’’ and telephoned the listed welders until he located
five (R. Ball, J. Ball, and Malnar of Local 798, Bowen, Lee),
who accepted dispatches for the next day. Besides these five,
the record reveals that two other welders (Varner and
Gumpert), from UA locals other than Respondent and Local
598, reported to Welded on April 8. Believing that they also
were dispatched ‘‘probably on the 6th,’’ Smith was not sure
if either was a replacement or if any of the previous five
welders failed to report or failed to pass Welded’s test. After
giving the foregoing version of events, Smith was confronted
with General Counsel’s Exhibit 18, copies of Respondent’s
dispatch slips for the Welded pipeline project. These estab-
lish that welders Bowen, Ballinger, R. Ball, J. Ball, Lee, and
Malnar, each of whom reported to Welded on April 7, were
actually dispatched to the pipeline project on April 3 and that
Harold Roan was dispatched after them on April 6. Asked
to explain why the five welders, who were not members of
either Respondent or Local 598, were dispatched before he
bothered to seek anyone from Local 598, Smith averred, ‘‘I
really want to be honest with you. I never looked at it that
close. . . . Boy that’s confusing.’’
On April 7, with Frank Reinhart and Respondent’s job
steward on the Welded pipeline project, Smith traveled to
Tulsa, Oklahoma, in order to attend a job steward’s school;
from Tulsa, Smith traveled to Detroit and did not return to
Spokane until April 20. As in March, William Krels acted
as the hiring hall dispatcher during Smith’s absence. There
is no dispute that, during this 2-week period, notwithstanding
that four welders, one of whom was a member of Respond-
ent, were dispatched to Welded on or about April 12 and 13,
Krels failed to utilize any of the updated welder availability
lists, which had provided to Respondent by Local 598, in
order to fill three of the job requisitions.33 As to whether he
was given any instructions with regard to dispatching Local
598 welders, Krels testified that he spoke to Smith just be-
fore he departed on April 7 and Smith told him that he
(Smith) ‘‘had dispatched the last 598 pipeline welder they
had’’ and that any further dispatches to Welded should be
‘‘from our other list of pipeline welders that we had.’’ Cor-
roborating Krels, Smith admitted leaving the former with the
understanding that Local 598 had no other qualified welders
to dispatch and that Krels could dispatch from anywhere. Fi-
nally, Krels admitted that he never considered that Local 598
may have had qualified welders, who had previously been
unavailable, as ‘‘I had been told 598 had no more available
welders. It’s just that cut and dried.’’
The record establishes that Jeff Holbrook, whose name
was just beneath that of Glen Hart on the March 20 Local
598 welders list, did not deposit his travel card back with
Local 598 until April 3.34 Holbrook, who had previous pipe-
line experience, testified that Harold Roan returned to the
Local 598 hiring hall after taking the Welded welding test
on April 6 and reported that ‘‘there was people testing that
were from [out-of-state].’’ Thereafter, Holbrook drove to the
Welded testing yard and observed numerous vehicles with
Texas and Florida license plates. Returning to the hiring hall,
Holbrook confronted Gary Barcom with what he had learned,
and Barcom said he would investigate. Subsequently,
Barcom informed Holbrook that he had spoken to Frank
Reinhart and that the latter agreed to appear at Local 598 in
order to answer questions.35 When Reinhart never appeared,
Holbrook telephoned Respondent’s office on April 13 and
spoke to William Krels, who asked if Holbrook was on the
March 20 list. The latter said he was and accused Krels of
bypassing him. After Holbrook said he was ‘‘on the list in
Pasco,’’ Krels offered him a building trades job, but Hol-
brook refused, saying he wanted the pipeline job. Holbrook
said he wanted to speak to Scott Smith; however, although
Krels agreed to have Smith do so, later that day, Frank
Reinhart telephoned Holbrook. According to the
uncontroverted testimony of Holbrook, he asked why he was
being bypassed on the list for the Welded job. Reinhart re-
plied that he ‘‘had to man the job with welders that could
pass the test and that there would have been too many Pasco
people failed the test, and he was afraid of losing his juris-
diction and that George . . . Lambert told him to hire quali-
fied people.’’ Holbrook asked who had been hired in place
of Local 598 personnel, and Reinhart replied that he ‘‘hired
people that I’ve worked with before that are 798 people.’’
Reinhart was not called as a witness by Respondent in order
to controvert the testimony of Holbrook.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 There is no evidence to establish that such ever was a require-
ment for dispatch, and there is evidence that Respondent itself uti-
lized a rather informal approach, with Frank Reinhart merely advis-
ing potential applicants as to their chances of passing the Welded
welding test.
37 I note his halting responses when asked by me why he did not
telephone Gary Barcom on March 30 with regard to what occurred
the previous Friday and when confronted with G.C. Exh. 18, the
April 3 dispatch slips.
38 I believe Smith was unusually candid in admitting that the rea-
son he did not use Local 598’s welding list for dispatching on April
6 because using it ‘‘didn’t work out.’’
39 I, of course, do not credit Smith that a new dispatch procedure
involving Tim O’Leary had been arranged with Local 598 after
Respondent’s defense to the allegations, that it unlawfully
refused to dispatch Local 598 welders on April 6, 12, and
13, involves its contractual obligation to Welded to dispatch
only qualified welders and its assertion that, utilizing the
March 20 Local 598 list of welders, rendered it unable to
satisfy said contractual requirement. In support of its defense,
Respondent offered into the record an April 24 letter to
Local 598 from Scott Smith, in which he asserted that Re-
spondent had ‘‘requested a pre-qualifying test’’ for welders36
and demanded another Local 598 welder applicant referral
list, which was to include verifiable past pipeline hours for
each applicant. There is no dispute that, in response, on April
27, Local 598 sent a revised list of welders to Respondent
and that, according to Gary Barcom, at least three of the list-
ed individuals (Willis, Riley, and Philip) were not eligible
for dispatch to Welded, having previously failed the welding
test.
B. Analysis
The General Counsel alleges that, having received welding
job referral requests from Welded for its pipeline project on
or about April 3, 6, 12, and 13, Respondent’s failure to ad-
here to the established procedure for dispatching welders to
the pipeline project and to dispatch Local 598 welders from
the lists of available welders, which had been provided to
Respondent by Local 598, was violative of Section
8(b)(1)(A) of the Act. Underlying the General Counsel’s the-
ory of the alleged violation of the Act is his contention that
both Respondent and Local 598 had a ‘‘mutual understand-
ing’’ of the meaning of George Lambert’s February 20 let-
ter—that Respondent would give ‘‘second priority’’ for job
referrals to Local 598 welders, ‘‘that the procedure would be
for Respondent to make the calls from a list provided by
Local 598 and that applicants were to sign in with their
home local.’’ Contrary to the General Counsel, Respondent
asserts that ‘‘there was [sic] no established hiring hall proce-
dures which included the obligation to dispatch 598 appli-
cants’’ and, alternatively, that, if hiring hall procedures ex-
isted, a departure from them was necessary for it to perform
its representative function and meet its contractual obliga-
tions.
At the outset, Respondent admits that it operated an exclu-
sive hiring hall for the dispatching of half of the required
work force for Welded’s portion of the construction work on
the pipeline expansion project, and 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 because the users must place such dependence on the
union . . . there necessarily arises a fiduciary duty on the
part of the union not to conduct itself in an arbitrary, invidi-
ous, or capricious manner when representing those who seek
to be referred out for employment by it.’’ Boilermakers
Local 374 (Construction Engineering), 284 NLRB 1382,
1383 (1987); Teamsters Local 519 (Rust Engineering), 276
NLRB 898, 908 (1985). In this regard, the Board has long
held that, in operating an exclusive hiring hall, a labor orga-
nization must have objective standards for the referral of em-
ployees, and operating such a referral system without ref-
erence to such is violative of Section 8(b)(1)(A) of the Act.
Plumbers Local 513, 264 NLRB 415, 420 (1982); Pollis
Wallcovering Co., 262 NLRB 1336, 1339 (1982); Laborers
Local 394, 247 NLRB 97 fn. 2 (1980). Further, whether the
rules or procedures for the operation of an exclusive hiring
hall are established by collective-bargaining agreement or
self-established, any departure from, or violation of, the rules
or procedures which results in a denial of employment to an
applicant, by the labor organization, which administers the
exclusive referral system, inherently breaches the duty of fair
representation owed to all hiring hall applicants and, like-
wise, is violative of Section 8(b)(1)(A) of the Act. Cell-Crete
Corp., 288 NLRB 262, 264 (1988); Millwrights Local 2834
(Atlantic Maintenance), 268 NLRB 150, 156 (1983); Operat-
ing Engineers Local 406 (Ford, Bacon & Davis Construction
Corp.), 262 NLRB 50, 51 fn. 6 (1982). In addition, ‘‘the fail-
ure to give timely notice of a significant change in referral
procedures is a breach of a union’s duty to represent job ap-
plicants fairly.’’ Cell-Crete Corp., supra.
Herein, in order to decide any questions of fact and to
reach a determination as to the legal issues, it is necessary
to resolve all credibility conflicts. I initially note that the
only significant credibility conflict results from the respective
testimony of Scott Smith and Daniel Timothy O’Leary re-
garding their conversation on April 6. As to this, I find that
O’Leary appeared to be an honest and straight forward wit-
ness, testifying to his best recollection. In contrast, having
observed his testimonial demeanor, which was that of an ut-
terly mendacious witness,37 and noting that his testimony, re-
garding his asserted April 6 dispatches to those individuals
who reported to Welded on April 7, was utterly contradicted
by Respondent’s own dispatch records and that William
Krels failed to corroborate him as to the establishment of a
new dispatching procedure for Local 598 welders on March
27, except where corroborated by others and for what I deem
to be admissions,38 I can not rely on any aspect of the testi-
mony of Scott Davis and, accordingly, credit O’Leary as to
what was said during their April 6 conversation. In these cir-
cumstances, I find that, in filling Welded’s April 3 request
for seven welders to report for testing on April 7, Scott
Smith, overreacting to the frenzied events of March 27 and
fearful of losing the lucrative dispatching jurisdiction if more
Local 598 welders failed Welded’s welding test, deliberately
ignored Local 598’s list of welders and dispatched individ-
uals, including three from UA Local 798, the UA’s pipeline
local, whom he was confident could pass Welded’s test, and
only turned to Local 598 when one additional welder was
needed—even then bypassing the list and communicating di-
rectly with Tim O’Leary, who had assisted William Krels
during the panic situation on March 27.39 That Smith’s intent
9PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
March 27 and note that William Krels did not corroborate Smith as
to this.
40 I believe Lambert was merely being polite in using the word
‘‘request.’’
41 Clearly, if no objective standards for dispatching existed, Re-
spondent would have been free to dispatch to Welded in an arbitrary
manner. Such clearly would have been violative of Sec. 8(b)(1)(A)
of the Act (Plumbers Local 513, supra), and I find it difficult to be-
lieve that counsel for Respondent makes this argument seriously.
42 The fact that Respondent’s procedures and rules for dispatching
to Welded were not codified does not detract from their validity as
dispatching rules and procedures. Laborers Local 394, supra.
was to deliberately bypass Local 598’s welders list in order
to protect Respondent’s dispatching jurisdiction for the pipe-
line project is evident from his fabrication to Krels that Local
598 had no more available, qualified welders, the result of
which was that Krels did not utilize Local 598’s list in filling
Welded’s job calls on April 12 and 13, and from the state-
ment of Frank Reinhart to Jeff Holbrook, who was
uncontroverted in this regard, that Smith had bypassed the
Local 598 welders because ‘‘too many’’ had failed Welded’s
welding test and he was afraid Respondent would lose its
dispatching jurisdiction.
Notwithstanding that, on its face, George Lambert’s Feb-
ruary 20 letter to Scott Smith appears to be a mere request
that Respondent dispatch qualified Local 598 members to the
Welded pipeline project after all of Respondent’s qualified
members have been dispatched, based on several factors, I
am convinced that, given the language of the letter and the
surrounding circumstances, it was meant as a directive; that
Lambert’s letter established a procedure for the dispatching
of potential employees to Welded; and that both Local 598
and Respondent understood the letter as establishing a proce-
dure to be utilized. Initially, in my view, the key to how im-
peratively one should interpret George Lambert’s February
20 letter lies not with the word ‘‘request’’ but, rather, with
the modifying phrase, ‘‘on a first call basis.’’ Said phrase
clearly implies exclusivity, and Lambert certainly would not
have incorporated such language unless his intent was to di-
rect40 Scott Smith, after dispatching all of Respondent’s
qualified workers, to dispatch all of Local 598’s qualified
personnel before turning to other sources for referrals. That
his words should be viewed more as a directive than as a
mere request is clear from the surrounding circumstances.
Thus, in his letter, Lambert’s ‘‘request,’’ which, in context,
appears to be an effort to assuage Local 598, comes imme-
diately after his specific recognition that a portion of the
pipeline work would be within the territorial jurisdiction of
that local, and not only was Local 598’s business manager,
Gary Barcom, invited to the Portland, Oregon meeting at
which the participants discussed planning for the project and
the need for qualified personnel but also he was invited to,
and participated in, the prejob meeting in Spokane at which
dispatching procedures, with regard to the need for travel
cards, were discussed. Surely, that Barcom was invited to at-
tend both conferences and that dispatching procedure was
discussed constitute an acknowledgement that his local’s
members were going to be utilized in staffing the project’s
work force and negate any supposition that Respondent was
under no constraint as to dispatching Local 598 members. Fi-
nally, immediately after the Spokane conference, Local 598
established a pipeline welding training program for its weld-
er-members, about which Scott Smith was well aware. One
may justifiably infer that such a program would not have
been instituted unless Barcom understood that his local’s
members would be dispatched to the Welded job.
Further, while Respondent’s counsel asserts that there ex-
isted no standards or procedures for the dispatch of welders
to Welded, it is difficult to square this argument with the
facts.41 At the outset, as counsel for the General Counsel
points out, one may take Lambert’s language, in his February
20 letter, as creating separate eligibility lists—one composed
of Respondent’s members, one composed of Local 598’s
members, and one composed of members of other UA
locals—and an order of usage. Further, it is clear from the
subsequent conduct of Barcom and Smith that each under-
stood that Lambert’s letter established a procedure for the
dispatch of Local 598 members—with that local’s qualified
welders, who have signed the out-of-work list and have de-
posited their travel cards, forming a ‘‘B’’ list to be dis-
patched after the ‘‘A’’ list of Respondent’s members. Thus,
Barcom informed Mark Simons and Brian Davis that the se-
lection of Local 598 welders would come from a list of
available welders. Likewise, on March 17, Scott Smith re-
quested that Barcom send him the lists of qualified Local
598 members, and, prior to departing for the Scottsdale, Ari-
zona conference, Smith directed William Krels to dispatch
Respondent’s members to Welded first and then to dispatch
Local 598 members from a list provided by that local. Such
is precisely what Krels did on March 26 and 27, proceeding
straight down Local 598’s list and calling those listed in
order in an effort to fill Welded’s call for welders. Moreover,
besides the required usage of the Local 598 lists for dispatch-
ing after Respondent’s members, given William Krels’ ad-
mission that he told Brian Davis that he (Krels) did not think
that Davis’ refusal of a referral to Welded on March 27
would ‘‘screw’’ him for the job and Mark Simons’ similar
uncontroverted testimony, I find that the Local 598 welder-
members, who were on the Local 598 welder dispatch lists,
could reasonably believe the normal building trades hiring
hall rules, including the right to refuse referral without jeop-
ardizing one’s position on an out-of-work list, applied for the
Welded job and that nothing done or said by Krels detracted
from that belief. Based on the foregoing, I am convinced that
not only did George Lambert’s February 20 letter set forth
a procedure for the dispatch of welders to the Welded pipe-
line project but also, in view of their conduct, the business
managers of Respondent and Local 598, Scott Smith and
Gary Barcom, understood the letter as doing so and acted ac-
cordingly. I am further convinced that, on March 26 and 27,
an objective system, for the dispatching of welders to Weld-
ed, comprised of the February 20 Lambert letter, the commu-
nications of the business managers of Respondent and Local
598, and past practice,42 was in effect; that such was known
and understood by the hiring hall users, including those
Local 598 welders, whose names were on the list of avail-
able welders, which had been sent to Respondent; and that
Respondent’s duty of fair representation, owed to all hiring
hall users, was to abide by the procedure in dispatching
welders to Welded.
Counsel for Respondent correctly notes that a labor orga-
nization’s departure from its hiring hall rules is not violative
of the Act if such is necessary in order to perform its rep-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 At the hearing, Respondent attacked the availability of several
of the welders as of March 27. While I believe Respondent is correct
that several welders would have been unavailable that day as they
had not yet deposited their travel cards with Local 598, the fact is
that, as he had no knowledge of such on April 3, Smith did not con-
sider the foregoing in deciding to bypass the Local 598 list. Further-
more, as dispatching proceeded on March 27, several of the Local
598 welders, who had been training but had not yet deposited their
travel cards with Local 598, deposited their cards and immediately
became eligible for dispatch, and, by April 3, almost all cards at
issue, except one, were on file with Local 598.
44 Counsel for the General Counsel requests that I specifically des-
ignate which applicants were deprived of dispatches and suggests the
names of the individuals who should have been offered dispatches.
While I deem his request to be reasonable, inasmuch as the choice
of some may be questionable, analysis of Local 598’s hiring hall
records may be required, and these are not in the record. For exam-
ple, with regard to the five disputed dispatches made on April 3, I
believe that Scott Smith should have dispatched from Local 598’s
updated list of welders, dated March 27. On said list, after Willis
and Saltz, both of whom were dispatched to Welded and failed its
pipeline welding test, counsel suggests that the next dispatch should
have gone to Brian Davis. After Davis, omitting Kenneth Rosen-
berger, the next listed individual, counsel suggests that the next dis-
patch should have gone to Mark Simons. While counsel cryptically
notes that ‘‘Rosenberger had left,’’ there is no record evidence that
Davis would not have been available for a dispatch on April 3. Also,
counsel would deny backpay to Brad Simmons, stating ‘‘he did not
appear on the list until April 6, and no longer appeared on the list
as of 4/9.’’ Contrary to counsel, Simmons’ name appears on the
March 20, 23, and 26 lists, and, while his name is not on the March
27 list, it again appears on the April 6 list. As there were two dis-
puted dispatches made on April 6 and he possibly should have been
offered one, counsel’s omission of Simmons as a suggested dispatch
is puzzling. In these circumstances, and to avoid the possibility of
error, I believe it is best left to the compliance stage to ascertain
the names of those Local 598 welders, who should have been of-
fered dispatches.
resentative function and argues that such was necessary here-
in as Respondent was contractually obligated to dispatch
qualified workers to Welded and as the only time it was un-
able to satisfy this requirement was when it attempted to dis-
patch personnel off of Local 598’s March 20 list. Contrary
to counsel, while I agree that there appears to have been a
significant amount of pressure on Respondent to dispatch
welders who would be able to pass Welded’s pipeline weld-
ing test, I do not believe that Respondent has established that
its departure from the hiring hall procedures was warranted
herein. Initially, I note that, while it is true that four of the
Local 598 welders (Willis, Saltz, Philip, and Stephens), who
reported to Welded on March 27 failed the pipeline welding
test, the referral order for that day was filled with Riley and
Lathrom, both of whom passed the test, and Wesley Burgess,
who was not dispatched, reported to Welded on March 30
and, likewise, passed the test. As with Respondent’s welder-
members, who were dispatched to Welded, the Local 598
welders, whose names were set forth on the March 20 list,
were a mixture of men, some possessing pipeline welding
experience and others having building trades welding experi-
ence. Moreover, all had welding rigs, which, to Gary
Barcom, indicated sufficient welding experience. Further-
more, Scott Smith was aware that Local 598 was operating
a training program, preparing its welders for pipeline welding
work. Also, notwithstanding that several Local 598 welders
gave various reasons to William Krels for refusing dispatches
on March 27, the latter himself, reflecting past practice, stat-
ed such would have no effect on future referral prospects. In
these circumstances, I agree with counsel for the General
Counsel that the failures of March 27 manifested nothing to
establish that others on the March 20 list were unqualified43
or would assuredly fail Welded’s test, and that, as of April
3, Scott Smith had no objective basis on which to disqualify
all remaining Local 598 welders for dispatch to Welded. In
my view, rather than fear of not meeting its contractual obli-
gations, as evidenced by Frank Reinhart’s revealing comment
to Jeff Holbrook, Smith seems to have been more concerned
with possibly losing Respondent’s potential lucrative dis-
patching jurisdiction—hardly justification for failing to ad-
here to the established procedure for dispatching to Welded.
Accordingly, by arbitrarily disregarding the guidelines, set
forth in George Lambert’s February 20 letter and understood
by all parties for dispatching to the Welded pipeline project
and, thereby, bypassing Local 598 welders for dispatch for
the period April 3 through 13, Respondent breached its duty
of fair representation owed to users of its hiring hall and,
thereby, engaged in conduct violative of Section 8(b)(1)(A)
of the Act. Millwrights Local 2834, supra.
CONCLUSIONS OF LAW
1. Welded is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By acting in arbitrary disregard for the exclusive hiring
hall procedure for the dispatch of applicants for the Welded
pipeline project and, thereby, bypassing and failing and re-
fusing to dispatch welders, set forth on Local 598’s list of
available welders, during the period April 3 through 13, Re-
spondent engaged in conduct violative of Section 8(b)(1)(A)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having determined that Respondent engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act, I shall recommend that Respondent be ordered to
cease and desist from engaging in such conduct and that it
take certain affirmative action to effectuate the policies of the
Act. The standard, and I believe appropriate, remedy in mat-
ters, such as herein involved, is to award backpay to those
hiring hall applicants to whom Respondent breached its duty
of fair representation by ignoring its hiring hall procedures
and denying them dispatch. Accordingly, I shall further rec-
ommend that each of said individuals, the identification of
whom shall be left to the compliance stage of the proceed-
ing,44 be made whole, by Respondent, for any loss of earn-
ings and benefits which he may have suffered by reason of
Respondent’s unlawful refusal to refer him to the Welded
job. Backpay shall be computed from the day each was
scheduled to report to Welded until the conclusion of his
work on the pipeline project in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
to be computed in the manner prescribed in New Horizons
11PLUMBERS LOCAL 44 (WELDED CONSTRUCTION)
45 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
46 If this Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice, reading ‘‘Posted by Order of
the National Labor Relations Board’’ shall read ‘‘Posted by Order
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.’’
for the Retarded, 283 NLRB 1173 (1987). With regard to
whether the listed Local 598 welders, who were not dis-
patched, are entitled to backpay, I have considered that each
applicant, who was dispatched to Welded, was required to
pass its pipeline welding test before being hired and that sev-
eral Local 598 welders previously had failed the test. How-
ever, consistent with my above-stated view that there existed
no justification for Scott Smith’s conclusion that other Local
598 welders would fail the Welded test merely because pre-
viously dispatched Local 598 welders had failed and as to
find merit in such supposition would reward a wrongdoer for
its misconduct, I believe that the foregoing may not be a de-
termining factor in the identification of applicants who
should have been dispatched. In this regard, I note that the
burden, in a compliance proceeding, will be on Respondent
to prove that any would not have been able to pass the test,
and, given that the pipeline job presumably has been com-
pleted, I find merit in counsel for the General Counsel’s sub-
mission that is no objective way to duplicate the conditions,
which existed in April 1992, and believe that any proof will
be reduced to speculation.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended45
ORDER
The Respondent, Plumbers and Steamfitters Local Union
No. 44, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Arbitrarily disregarding the exclusive hiring hall proce-
dures for the referral of applicants to the Welded pipeline
project and, thereby, bypassing and failing and refusing to
dispatch welders, who were set forth on lists provided by UA
Local 598.
(b) In any like or related manner restraining or coercing
employees, members, job applicants, or registrants in the ex-
ercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make those Local 598 welders, who should have been
dispatched by Respondent on or about April 3, 6, 12, and 13
had it acted in compliance with the exclusive hiring hall pro-
cedures for the dispatch of applicants to the Welded pipeline
project, whole for any wages and benefits losses, sustained
by them, by reason of Respondent’s failure to adhere to the
procedures, with interest, in the manner proscribed in the
remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all hiring hall
records, dispatch lists, referral cards, and other documents
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its business offices, hiring halls, and meeting
places in Spokane, Washington, copies of the attached notice,
marked ‘‘Appendix.’’46 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by the Respondent’s authorized representative, shall
be posted by Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees, members, and hir-
ing hall applicants are customarily placed. Reasonable steps
shall be taken by Respondent to ensure that notices are not
altered, defaced, or covered by any other material. Additional
copies of the attached notice shall be signed by an authorized
representative of Respondent and forthwith returned to the
Regional Director for posting by Local 598 if it so desires.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order of what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT arbitrarily disregard the exclusive hiring hall
procedures for the referral of applicants to the Welded pipe-
line project and, thereby, bypass and fail and refuse to dis-
patch welders, whose names were set forth on lists provided
by UA Local 598.
WE WILL NOT in any like or related manner restrain or co-
erce employees, members, job applicants, or registrants in the
exercise of the rights guaranteed them by Section 7 of the
Act.
WE WILL make those UA Local 598 welders, who should
have been dispatched by us, on or about April 3, 6, 12, and
13, 1992, had we complied with the exclusive hiring hall
procedures for the dispatch of applicants to the Welded pipe-
line project, whole for any wages and benefits lost by them,
with interest, by reason of our failure to adhere to the proce-
dures.
PLUMBERS AND STEAMFITTERS LOCAL UNION
NO. 44, UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE PLUMBERS
AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL–CIO