Plumbers & Steamfitters Local #40

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1157 (N.L.R.B. 1979)

PI.UMBERS AND STEAMFITTERS LOCAL 40
Plumbers and Steamfitters Ilcal No. 40, United Asso-
ciation of Journeymen and Apprentices of Plumbers
and Pipefitting Industry of the United States and
Canada, AFL-CIO (Mechanical Contractor Associ-
ations of Washington) and Floyd L. Challender.
Case 19 CB-3106
June 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MEMBLRS JENKINS
AND PENELLO
On February 2, 1979, Administrative Law Judge
William J. Pannier 111 issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Plumbers and Steamfitters Local No. 40, United As-
sociation of Journeymen and Apprentices of Plumb-
ing and Pipefitting Industry of the United States and
Canada. AFL-CIO, its officers, agents, and represen-
tatives, shall take the action set forth in the said rec-
ommended Order, as so modified:
Insert the following as paragraph 2(b), and reletter
the subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records, reports, work lists, and other documents
necessary to analyze the amount of backpay due un-
der the terms of this recommended Order."
DECISION
STATEMENT OF THE CASE
WILI.IAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Bellingham, Washington,
on August 17. 1978.' On March 29, the regional director for
Region 19 of the National Labor Relations Board issued a
complaint and notice of hearing, based on an unfair labor
practice charge filed on February I,. alleging violations of
Section 8(b)( I )(A) and (2) of the National Labor Relations
Act, as amended. 29 U.S.C. §151, et seq., herein called the
Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses. and to file briefs. Based on the entire record, on the
briefs filed on behalf of the parties, and on my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDI('1CON
At all times material, Mechanical Contractors Associ-
ation of Washington, herein called Association, has been a
multiemploer association whose members. employers en-
gaged in mechanical contracting in the State of Washing-
ton, have designated it as their representative in collective-
bargaining negotiations on a multiempioyer basis and
whose members, in the course of their business operations,
annually have combined sales of goods and services valued
in excess of $500,000, and combined purchases of goods
and materials valued in excess of $50,000 which are shipped
to their State of Washington projects from points outside
the State of Washington.
Therefore. I find that at all times material Association
and its member-employers have been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
At all times material, Plumbers and Steamfitters Local
No, 40, United Association of Journeymen and Appren-
tices of Plumbers and Pipefitting Industry of the United
States and Canada, AFL-CIO, herein called Respondent.
has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
By virtue of its membership in the Plumbers & Pipefitters
Council of the Northwest, herein called Council. Respon-
dent is a party to a collective-bargaining agreement with
the Association, effective until May 31, 1980. To the extent
pertinent in the instant case, section 40 of that agreement
provides for establishment of a hiring hall "which shall be
the exclusive source of Journeymen referred to employment
within the Bargaining Unit at the request of any Employer
party to [the agreement]." Under the terms of the collective-
bargaining agreement, "[t]he Hiring Hall shall be open on a
rotational basis to all applicants who have demonstrated
their competence and skill as Journeymen in the plumbing
and pipefitting industry," and, in another subsection, the
agreement provides that applicants "shall be referred to
work in the order of [their] precedence on the Hiring Hall
register... ."
Unless otherwise stated, all dates occurred in 1978
242 NLRB No. 168
I 1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hiring hall section of the agreement further provides
that "[a]ny applicant for work . . . shall register his avail-
ability therefore by completing and filing with the Hiring
Hall a Registration Form...." Where a journeyman is
terminated or severs his employment with an employer, "he
shall be given a Termination Form (Form #3) which shall
state the reason therefore.... If the Journeymen desires to
reregister for work at the Hiring Hall he shall present to the
Hiring Agent the Termination Form at the time of filing his
reregistration (Form #4)." The agreement also makes spe-
cific provision for obtaining traveling cards:
Any registrant who is registered on the "A" List in his
home Local Union and who takes a travel card to seek
employment in a sister Local Union, upon depositing
his travel card back in his home Local Union, would
be placed on the "A" List according to his last date
and time of registration as shown by his last Registra-
tion Form #4 prior to taking out his travel card and if
once established in a local area can only be changed by
action of the Board of Negotiators.'
Finally, the hiring hall section of the agreement provides
for establishment of a permanent examining & appeal
board to "either hear or otherwise adjudicate all Grievances
asserted against the operation of the Hiring Hall." It is to
this body that all charges of fraudulent registration are to
be addressed:
In instances where it appears that a position has been
obtained on the Hiring Hall Register through fraud,
misrepresentation, or other questionable means, the
matter shall be referred to the Appeal Board by the
Hiring Agent. If the applicant is found to be quilty of
fraud or misrepresentation, the Appeal Board shall fix
the penalty to be imposed according to the gravity of
the offense. Penalties shall range from down grading
on the Hiring Register through suspension for fixed
periods of time.
Floyd L. Challender, the Charging Party, had been em-
ployed in the pipe industry for over 20 years and had been
a member of Respondent for slightly more than 20 years by
the time of the hearing in the instant matter. During the
time, he and Respondent's business manager, Henry
Feenstra, had been on opposing sides of various disputes
involving such matters as the wages paid to business agents,
Feenstra's personal use of the automobile furnished him by
Respondent, and the operation of the hiring hall. On many
occasions, the two men had fallen into arguments, some of
which had been heated, during meetings of Respondent's
membership.
Since September 2, 1975, Challender had been employed
in Bellingham, Washington, by Haskell Corporation, ap-
parently on various projects. In the spring of 1977, Haskell
offered him a position as foreman3 on one of its projects in
Alaska, which would oblige him to obtain a travel card so
2 In essence, the board of negotiators. which is composed of representa-
tives of the Association and of the Council, is responsible for administration
of the day-to-day relationship of the parties during the term of the agree-
ment.
I There is no contention that the principles oi' law applicable to the instant
case are affected by the fact that this was a supervisory position.
that he could be dispatched by Local 375 in Fairbanks.
Challender accepted that offer, planning, he testified, to fin-
ish the project and then to remain in Alaska during the
winter, returning in May or June. So that he would be able
to obtain employment as soon as possible following his re-
turn, he desired to register on the appropriate hiring hall
list4 before departing for Alaska. Thus, while working there,
his name would be advancing up the list.
In late April 1977, Challender asked Feenstra if it would
be possible for him to register his name on the "A" list and,
at the same time, to obtain a travel card fbr Haskell's
Alaska job. Feenstra replied that such a procedure was not
consistent with his own understanding of how the hiring
hall operated, since Challender's name could not be placed
on the list while still employed by Haskell. To meet that
objection, Challender later asked Haskell to terminate him
before he left for Alaska, a request with which Haskell com-
plied on May 2, 1977. On that same day, Challender took
the termination slip to Respondent's hall where he handed
it to clerical employee Elaine Crabtree, registered on the
"A" list, and obtained a travel card. He then journeyed to
Alaska, at Haskell's expense, where he worked on two Has-
kell projects, finishing work there in December 1977. Thus,
notwithstanding the termination slip, the fact was that
Challender had worked for Haskell continuously from Sep-
tember 2, 1975, until December 1977.
After Challender had left the hiring hall on May 2,
Feenstra discovered his name on the list and inquired of
Crabtree how it had gotten there. She explained about
Challender's submission of the termination slip and about
his requests for the travel card and for addition of his name
to the list. After hearing her explanation, Feenstra removed
Challender's name from the list, telling Crabtree, he testi-
fied:
Well, he's fraudulently trying to get his name on the
list, and he is still working for Haskell. He is working
under the agreement. He's sent up for supervision, and
he cannot be on our list when he is still employed for
the same company. He is employed up there, and he
wouldn't be employed up there had he not still been
working for the company.'
When testifying, Feenstra twice renewed his assertion,
made initially to Crabtree, that Challender's May 2, 1977,
registration had been fraudulent. However, he conceded
that at no time had he referred the matter to the appeal
board, pursuant to the above-quoted provision of the col-
lective-bargaining agreement. Moreover, at no time after
May 2, 1977, did he attempt to advise Challender that his
name had been stricken from the list, though, since Chal-
lender had deposited his travel card with Local 375 in Fair-
banks, seemingly Feenstra had a means for, at least, at-
tempting to correspond with Challender. The General
Counsel alleges that the deletion of Challender's name from
4In Challender's case, the "A" list.
5By way of explanation. Feenstra testified that it was the polic) of all
locals, including Respondent, to permit an employer to bring in one supervi-
sor. without regard to the applicants already on the hiring hall register.
Consequently, absent such a policy, ('hallender would have been compelled
to register on the Fairbanks' hiring hall list and could not have commenced
working tor Haskell in Alaska without adsancing in the normal fashion to
the top of the list.
1158
PLUMBERS AND STEAMFITTERS LOCAL 40
the list had been arbitrary and invidious, thereby violating
Section 8 (b)(1)(A) of the Act.
On January 6, Challender returned to Respondent's hir-
ing hall and deposited his travel card with Crabtree so that
his name could be activated on the list. It was at that point
that he first learned that his name had been removed from
the list and, in response to his inquiry, Crabtree had told
him that Feenstra "had pulled it off."
Several days later, Challender was able to reach Feenstra
by telephone and, during that conversation, had asked why
his name was not on the list. Feenstra explained, as he had
in April 1977. that Challender could not have been regis-
tered on the list while still working for Haskell, since he
could not be legally registered until terminated. In re-
sponse, Challender asserted that his name should have been
maintained on the list, pointing to both the above-quoted
section of the collective-bargaining agreement, pertaining
to fraudulent registration, and to a section of Respondent
International's constitution which provides that a member
who had deposited a travel card with a sister local must
continue to pay all regular dues and assessments to his
home local and "shall retain all rights and privileges of
membership in his home Local Union."
According to Challender, "we kind of got into this and,
also, into the other a bit, and it ended up in a hollering
session. He was hollering at me, screaming at me on the
phone, and that kind of ended that telephone conversa-
tion." However, other than telling Feenstra that he believed
that his name should have been retained on the registration
list, Challender acknowledged that he had not specifically
demanded that his name be again registered for referral and
Feenstra testified that he did not "believe" that Challender
had made such a specific demand to have his name added
to the bottom of the list, in the normal fashion followed by
employees whose work is terminated. In fact, Feenstra tes-
tified that during a December 1977 discussion with Haskell
officials, the latter had said that a foreman they had sent to
Anacortes, Washington, to run a job had quit, and that it
was their intent to assign Challender to run the job once he
returned from Alaska and had completed his vacation.
Challender acknowledged that he had not specifically told
Feenstra, during any telephone conversation following his
return from Alaska, that he was not employed. However.
on February 3, he did submit a termination slip to the hir-
ing hall and was registered for dispatch. Subsequently, he
was dispatched in the normal order and course of events.
In the meantime, an opportunity for employment for
Challender did arise. On approximately January 18,
McKinstry Company of Seattle contacted Feenstra regard-
ing a project which their firm was about to undertake at
Darigold in Lynden, Washington, within Respondent's ju-
risdiction. Without belaboring the matter with great detail,
for it is undisputed, McKinstry wanted the foreman on that
project to be someone from Respondent's jurisdiction and
to possess certain special qualifications, essentially involv-
ing ability to exercise discretion and skills beyond those
possessed by the average journeyman. Upon examining the
current "A" list, Feenstra ascertained that, in his opinion,
of the individuals on the list, only two possessed the neces-
sary qualifications. However, when he contacted them and
informed them of the available position, both rejected the
job.' Feenstra admitted that had Challender's name been
on the list, he would have been offered the position, since he
possessed the skills and ability sought by McKinstry.'
McKinstry's officials had advised Feenstra that their tar-
get date for commencing work at Darigold was February 1.
Feenstra testified that following the rejections by the only
two individuals on the list whom he felt satisfied McKin-
stry's specifications, "I was scratching my head pretty hard
because I felt that if I had known at a later date or if other
things had happened, there were other people that came in
what were qualified after the transaction took place." He
testified that at that point there were no other registrants on
the list who would satisfy McKinstry. However, he knew
that Haskell had a project at Georgia Pacific's pulp mill
that was nearing completion. Accordingly, on about Janu-
ary 24, he contacted Haskell's piping superintendent Ger-
ald Hurlbert, inquiring if, since Haskell's job was nearing
completion,' Haskell could spare journeyman Ted Wight so
that the Darigold job could be staffed by a person dis-
patched from Respondent's hall. There is no dispute re-
garding the fact that Wight and Feenstra had enjoyed a
close and longstanding friendship. However. Feenstra de-
nied that this had been the reason for his effort to obtain
Wight for the Darigold project. Rather, he testified that
Wight possessed some engineering skills that he (Feenstra)
felt would be needed for that job. He had been a general
foreman and had run many units that had to be laid out as
would McKinstry's job, and he possessed experience in in-
structing apprentices on layout-type work.
In response to Feenstra's question concerning Haskell's
ability to spare Wight for employment with McKinstry,
Hurlbert said that he anticipated that Wight would be able
to work for approximately three more weeks for Haskell at
Georgia Pacific, but that he would be willing to release him
earlier if Feenstra decided he needed Wight. During this
conversation, testified Hurlbert:
We discussed several aspects, whether Ted was quali-
fied, or not, and I assured Hank that I thought Ted
was qualified. I held some reservation that Ted had
always been general foreman, working for somebody
standing behind him. It would be his first time alone,
and he has had temper trantrums [sic], and a few
things; but we discussed that to some extent, but not a
great deal.
On January 27, Feenstra contacted McKinstry's division
manager, Robert Cederstrom, and described Wight's quali-
fications. Cederstrom agreed that Wight appeared to be
qualified and accepted him as foreman. During the noon
hour that same day, Wight telephoned Hurlbert and se-
cured the latter's consent to an early departure from the
6
In a pretrial affidavit. Feenstra stated that he had contacted a third
registrant, but at the hearing he testified that this had been inaccurate and
that only two registrants had been contacted by him. As will be seen, infra.
this discrepancy is not a matter of great moment.
Several witnesses testified, with each offenng his own opinion, that var-
ious other persons on the list possessed the qualifications sought by McKin-
stry for the Lynden job.
I While this particular job should have been completed much earlier,
Georgia Pacific had added to the work to be performed. with the result that
Haskell had been working on a day-torday basis at the lime that Feenstra
had spoken to Hurlbert.
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Pacific job. However, no specific date was agreed
upon at that time for Wight's departure.
At some point on January 27, journeyman Donald Van
Voorst had come to Respondent's hall with a termination
slip from the Snelson job at the Mobil Oil Refinery.
9 Of
those whose names were added to the "A" list between
January 27 and 31, Feenstra testified that he had felt that
only Van Voorst had possessed qualifications sufficient to
satisfy McKinstry's requirements. Thus, testified Feenstra,
he had explained to Van Voorst what steps had been taken
with regard to Wight. According to Feenstra, not only had
Van Voorst interposed no objection to Wight's dispatch to
McKinstry, but he had affirmatively agreed that Feenstra
had done the correct thing.' While Feenstra did not dispute
the possibility of changing from Wight to Van Voorst on
January 27, he testified that he did not believe that such a
change "would have been a practical thing to do" in view of
the fact that:
"I had a man, you might say, quit his job to take this
position, and, by all facts of law, he was not entitled to
unemployment. And, if I had switched, saying if I had
to switch, I feel the man would have had a case against
me, too. So, I say it wouldn't have been practical, even
if it could have happened."
Cederstrom testified that he thought, but was unsure,
that it had been near the beginning of his contacts with
Feenstra that he had related that McKinstry anticipated
the start-up date for the project as being February 1.
Feenstra testified that it had been around January 27 that
Cederstrom had contacted him, saying that McKinstry
needed Wight on January 30 if possible. Feenstra had told
Cederstrom that Wight was still working and "will have to
terminate himself to put his name on the list." Thus, on
Monday morning, January 30, Wight informed Hurlbert
that he needed his termination that same day at noon and
Hurlbert complied. Wight took his termination slip to Re-
spondent's hall, where he registered on the list and, on the
following day, was dispatched to McKinstry. Based on the
foregoing sequence of events, it is alleged that Respondent
violated 8(b)()(A) of the Act" by dispatching Wight over
other qualified journeymen, including Challender, who
were on the "A" list.
9 Like the Haskell project at Georgia Pacific, Snelson's Mobil Oil Refinery
project was also nearing completion and, as Feenstra conceded, it had been
fairly common knowledge that the Snelson job might end during the Febru-
ary 10 period, though, as Feenstra later pointed out, "you never know what
is added on to a construction job, or you always hope that it goes a lot
longer."
'0 Neither party called Van Voorst as a witness and since there is no basis
for inferring that he was not equally available to both sides, no adverse
inference can be drawn against either the Respondent or the General Coun-
sel with respect to the failure to call him either to, respectively, corroborate
or refute Feenstra's description of the remarks attributed to Van Voorst.
Local 259, United Automobile, Aerospace and Agricultural Implement Workers
of America (Atherion Cadillac, Inc.), 225 NLRB 421, 422, fn. 3 (1976).
" While the complaint alleged that Respondent's dispatch of Wight vio-
lated Sec. 8(b)2) of the Act, in his brief Counsel for the General Counsel
moved to withdraw the conclusionary allegation that this conduct consti-
tuted a violation of Sec. 8(b)2) of the Act, while still seeking a remedy for
the discriminatee who should have been dispatched, under the General
Counsel's theory, instead of Wight. In the circumstances presented by the
instant case, I grant the motion.
The final factual sequence in this case stems from the
unfair labor practice charge in the instant matter filed by
Challender on February 1. On February 7, Feenstra filed
an internal union charge against Challender, alleging that
he had violated the Constitution of Respondent's Interna-
tional in that Challender "went to the National Labor Rela-
tions Board and filed charges against [Respondent] for un-
fair labor practices. He did this before trying to exhaust all
remedies provided in the United Association Constitution."
A trial was conducted on this charge but Challender did not
attend it. There is no evidence of what disposition was
made of Feenstra's charge as a result of that trial. However,
by letter dated March 31, Feenstra notified the Regional
Director for Region 19 that Respondent "and myself as
Business Manager, have withdrawn all charges filed against
Floyd Challender, and there are none pending." While the
letter discloses that a copy was transmitted to Respondent's
counsel, there is no evidence that Respondent sent a copy
to Challender or otherwise made an effort to communicate
the substance of the letter to him.
IV. ANALYSIS
A. The Deletion of Challender's Name from the "A" List
On May 2, 1977, Feenstra removed Challender's name
from the dispatch list with the result that his name could
not advance up the list and attain a position from which he
would be eligible for dispatch once his travel card was re-
turned, as provided in the above-quoted portion of the col-
lective-bargaining agreement. Accordingly, as a result of
Feenstra's action, Challender was precluded from being
considered for employment and from being hired at the
time and in the manner that he otherwise would have been,
had Feenstra not stricken his name from the "A" list.
In International Union of Operating Engineers, Local 18,
AFL-CIO (Ohio Contractors Assn.) (William F. Murphy),
204 NLRB 681 (1973), the Board pointed out:
When a union prevents an employee from being hired
.. , it has demonstrated its influence over the em-
ployee and its power to affect his livelihood in so dra-
matic a way that we will infer-or, if you please, adopt
a presumption that-the effect of its action is to en-
courage union membership on the part of all employ-
ees who have perceived that exercise of power. [Foot-
note omitted.]
That "inference may be overcome, or presumption rebut-
ted, . .. when the interference with employment was pursu-
ant to a valid union-security clause...." Id. The instant
case does not present such a situation because there is no
contention either that Challender had not continued to ob-
serve his financial obligations to Respondent during all
times material, or that Feenstra had stricken his name from
the list for failing to observe any such obligations.
However, union interference with employment status is
not unprotected in all situations other than those where
employees have failed to pay uniformly required dues and
initiation fees. Rather, a labor organization's interference
with employment status is also lawful "in instances where
the facts show that the union action was necessary to the
effective performance of its function of representing its con-
1160
PLUMBERS AND STEAMFITTERS LOCAL 40
stituency." Id. It is on this basis that Respondent attempts
to justify Feenstra's action of May 2, 1977. For, he testified
that because Challender had intended to continue working
for Haskell, his May 2, 1977, termination slip and registra-
tion on the hiring hall list had constituted "fraudulent" ac-
tion. In other circumstances, there might be merit to Re-
spondent's contention in this respect, since the action taken
by Feenstra, in striking Challender's name after it had been
placed on the list in the circumstances present in the instant
case, could well be construed as being an illustration of an
instance where "the union action was necessary to the effec-
tive performance of its function of representing its constitu-
ency."
Yet, as quoted in section III, supra, the hiring hall provi-
sions of the collective-bargaining agreement in the instant
case provide a mechanism for resolving allegations of
"Fraudulent Registration" through referral of such matters
"by the Hiring Agent," which in this case admittedly had
been Feenstra, to the Appeal Board. Feenstra conceded
that he had not followed this contractually prescribed pro-
cedure. Rather, he had ignored that procedure and, taking
it upon himself to determine the matter, had resorted to the
self-help measure of simply striking Challender's name
from the list. No explanation, much less a reason showing
that such an action was necessary to the effective perform-
ance of Respondent's representative function, was ad-
vanced as a defense for subsituting self-help for the proce-
dure agreed upon in the collective bargaining agreement.
Resort to self-help resulting in employment deprivation
and taken in disregard of contractually prescribed proce-
dures for resolving the underlying dispute has been held to
violate the Act. International Brotherhood of Electrical
Workers, Local 1547 (M & M Electric Company), 225
NLRB 331, 344 (1976), affd. without opinion 565 F.2d 788
(D.C. Cir. 1977), cert. denied 436 U.S. 944 (1978). Of
course, the acts of self-help in that case were violent ones.
However, that is no more than a difference of degree. The
impact of that exercise of self-help was the same as in the
instant case: the respondent disregarded contractually pre-
scribed means for resolving the dispute and the effect of its
resort to self-help was to deprive employees of employment
to which they otherwise might have been entitled were a
determination allowed to be made as provided by the col-
lective-bargaining agreement.
Here, there is an exclusive hiring hall. The section of the
agreement providing for establishment of that hiring hall
also provides a procedure for resolving claims of fraudulent
registration. On May 2, 1977, Feenstra, the "Hiring Agent,"
believed that Challender's registration had been fraudulent.
However, instead of following the contractual procedure
for making such a determination, Feenstra summarily re-
moved Challender's name from the list. In this manner, Re-
spondent arbitrarily ignored the very contractual procedure
to which it had agreed without even a contention, much less
a showing, that Feenstra's "action was necessary to the ef-
fective performance of its function of representing its con-
stituency." Local No. 440, South Atlantic and Gulf Coast
District, International Longshoremen's Association, AFL-
CIO (Port Arthur Stevedores, Inc.), 214 NLRB 1068, 1070-
71 (1974). In so doing, it demonstrated its power to affect
Challender's livelihood by taking action on its own in an
area where the collective-bargaining agreement provided a
joint procedure for resolving such disputes arising from op-
eration of the hiring hall.
Therefore, I find that by summarily removing Challen-
der's name from the "A" list because of its belief that his
registration had been fraudulent, Respondent arbitrarily
disregarded the contractual procedure for resolving such
claims, demonstrated its influence over Challender and its
power to affect his livelihood in so dramatic a way as to
encourage union membership, and, accordingly, violated
Section 8(b)(1)(A) of the Act.
By virtue of this principal conclusion, certain other inci-
dental issues must be addressed. First, Feenstra removed
Challender's name from the list on May 2, 1977, and it was
not until the following February that the charge in this
matter was filed. Under Section 10(b) of the Act, "no com-
plaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof
upon the person against whom such charge is made...."
Yet, as found in section II, supra, Respondent gave no
notice to Challender that his name had been removed from
the "A" list, though it knew the identity of the Fairbanks
local with which he had deposited his travel card and pre-
sumably could, at the very least, have made an effort to
communicate that fact to him. Consequently, so far as the
record discloses, it had not been until January 6, when he
had returned his travel card to Respondent's hall, that
Challender had learned of the deletion of his name by
Feenstra 8 months earlier.
"The Board has consistently held, with the endorsement
of at least two circuits, that the six month limitation period
does not begin to run until the ... unlawful activity, which
is the basis for the unfair labor practice charge, has become
known to the charging party. [Citations omitted.]" N.L.R.B.
v. Allied Products Corporation, Richard Brothers Division,
548 F.2d 644, 650 (6th Cir. 1977). In view of the fact that
Challender filed his charge within a month of acquiring
knowledge that his name had been stricken from the "A"
list 8 months earlier, the above quoted proviso to Section
10(b) of the Act poses no bar to the instant proceeding.
Second, it does appear that, at the very least, Challender
had played somewhat loosely with the hiring hall proce-
dures by converting what, in effect, had been a transfer into
a termination so that he could gain an advantageous posi-
tion on the "A" list upon his return from Alaska. On the
other hand, evidence was produced concerning situations
which, while by no means identical to that of Challender,
have some parallels to that of Challender on May 2, 1977.
For example, persons on the list have obtained travel cards
to work in the jurisdiction of another local with some assur-
ance, at the time that they had obtained their travel cards.
that work would be available to them once they arrived in
those other jurisdictions. While on travel status, their names
had remained on and progressed up the "A" list. In another
area, persons have deposited termination slips, been placed
on the "A" list and obtained travel cards at the same time
without prejudice to their rights to advance up the list while
on travel status.
Of course, these situations differ from that of Challender
in that he used a transfer from one to another project of the
same employer as a means for attempting to secure a posi-
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion on the "A" list. Yet, not only are there some similari-
ties between those situations and that of Challender, but
Respondent produced no evidence that the appeal board
had ever considered and passed upon the validity of a situ-
ation such as that presented by Challender's registration.
Consequently, there is simply no evidence that the appeal
board, when faced with such a situation, would have dis-
agreed with Challender's position and ordered the same
measure as Feenstra had taken. Certainly. the foregoing
parallel situations present some basis for Challender to
have made a not totally baseless argument to the appeal
board. Further, even had the appeal board found against
Challender, there is no showing that it would have con-
cluded that his action rose to the level of being "fraudulent"
as that term is used in the collective-bargaining agreement.
By resorting to self-help Feenstra simply deprived the ap-
peal board, the entity created contractually to consider such
matters, of the opportunity to examine and decide these
matters.
Where, as here, uncertainty as to events arises as a result
of a repondent's unfair labor practices, "the Board can
hardly be said to be effectuating policies beyond the pur-
poses of the Act by resolving the doubt against the party
who violated the Act." Leeds & Northrup Company v.
N.L.R.B., 391 F.2d 874, 880 (3d Cir. 1968). A person who
violates the Act is responsible not only for its unlawful con-
duct, "but must also bear the responsibility for the conse-
quences which flow from such conduct." Grand Auto, Inc.,
d/bla Super Tire Stores, 236 NLRB 877, 878 (1977). Hav-
ing precluded the appeal board from considering whether
Challender's registration had, in fact, been "fraudulent"
within the meaning of that term in the collective-bargaining
agreement, and absent any evidence of the appeal board
having ever passed upon a situation identical to that of
Challender on May 2, 1977, Respondent cannot now at-
tempt to have the Board substitute its own interpretation of
the collective-bargaining agreement for that of the appeal
board simply so that Respondent can escape liability for
Feenstra's summary and arbitrary action of May 2, 1977.
Third, although there is no evidence showing specifically
when Challender might have been dispatched initially fol-
lowing return of his travel card on January 6, the Board has
"consistently held that to establish a violation, it is unneces-
sary to show that jobs were available at the time of the
request for referral." Utility and Industrial Construction
Company, et al., 214 NLRB 1053 (1974). Moreover, it is
quite plain from the record that even had Challender not
been referred for employment prior to mid-January, had his
name been on the list at that time, he would have been
eligible for consideration for the McKinstry job inasmuch
as Feenstra conceded that he possessed the qualifications
sought for the foreman's position on the Darigold project.
Of course, had Challender submitted a termination slip
upon his return from Alaska and had he registered at that
time, his name would have appeared on the "A" list at the
time of McKinstry's request and would have been consid-
ered, according to Feenstra, for that position. Yet, to hold
that Challender's failure to reregister on January 6 has the
effect of precluding consideration of the McKinstry job in-
sofar as he is concerned would be to further penalize an
employee-victim of Respondent's unfair labor practice. He
did not believe that he should have to reregister. There had
been no determination by the appeal board that he should
do so. He directed his effort toward obtaining what he be-
lieved to be his rightful position on the "A" list, including,
ultimately, filing the charge in the instant matter. To find
against him because he failed to take the added precaution-
ary measure of reregistering, and thereby possibly prejudic-
ing his claim that Respondent had acted wrongfully in
striking his name 8 months earlier, would only have the
effect of benefiting the wrongdoing Respondent and further
penalizing the wronged Challender.
Fourth, while Feenstra may have believed that Challen-
der was working for Haskell following his return from
Alaska, that does not absolve Respondent from liability for
the effects of its unfair labor practice. In fact, Challender
was unemployed. The fact that he had been foreclosed from
obtaining employment following his return from Alaska
was because, without notice to him, Respondent had sum-
marily removed his name from the "A" list. Consequently,
even if, as he testified, Feenstra had believed that Challen-
der had been employed following his return from Alaska,
the fact that the latter had not been prepared to submit a
termination slip upon his return was the product of his lack
of awareness of what Feenstra had done 8 months earlier.
Since that action was an unfair labor practice, it is Respon-
dent that must "bear the responsibility for the consequences
which flow from such conduct." Grand Auto, Inc., supra.
Therefore, I find that by removing Challender's name
from the "A" list, without notice to him and without first
resorting to the contractually prescribed procedure for re-
solving disputes concerning assertedly fraudulent registra-
tion, Respondent violated Section 8(b)(1)(A) of the Act.
B. The Selection of/ Wight for Dispatch to McKin.stry
This aspect of the instant case presents a very narrow
issue. There is no contention that Feenstra had no right to
select a particular type of worker to satisfy McKinstry's
specifications. Nor is there a contention that Feenstra did
not have the right to refer such a qualified person for em-
ployment with McKinstry even though there were other
names occupying higher positions on the "A" list. Indeed, it
is not even contended that Feenstra lacked the authority to
search for workers other than those on the "A" list if all
employees on that list failed to possess the qualifications
sought by McKinstry for the Darigold project. Rather, the
sole contention here is that Feenstra deliberately ignored
qualified individuals whose names appeared on the "A" list
at the time or who were employed elsewhere in an effort to
confer a benefit on Wight based upon their friendship. If
true, such a basis for selecting Wight for dispatch to
McKinstry would constitute a violation of the Act. How-
ever. a preponderance of the evidence does not support the
contention that Feenstra had, in fact, selected Wight for the
Darigold project on the basis of their personal relationship.
The most prominent fact which diminishes the General
Counsel's contention in this respect is that before even con-
sidering Wight, Feenstra had offered the foreman's position
to at least two other individuals, both of whom were regis-
tered on the "A" list. There is no contention that these two
individuals enjoyed any special relationship with Feenstra
that might have led him to look to them initially for dis-
patch to the Lynden site. Seemingly, their relationship with
1162
PI.lMBERS ANI) STEAM1FITIERS OCAL 40
Feenstra did not differ from that of other registrants then
on the "A" list. Moreover, there is no evidence that would
give rise to the inference that Feenstra had offered them the
position with knowledge that they would reject it. thereby
using his oflers to them as a means for disguising a prede-
termined intent to offer the position to Wight. To the con-
trary, one of them initially accepted the position. hut after
further reflection, rejected the position. In sum, the fact that
Feenstra had offered the Darigold foremlan's position to
two persons already registered on the "A'" list is not consis-
tent with the contention that he had used the availability of
that position as a means of favoring Wight.
Second. there is no dispute concerning the fact that, for
the most part, Wight was technically qualified for the posi-
tion. Hurlbert acknowledged as much to Feenstra during
their initial telephone conversation. True. Wight was not
the optimum or ideal choice for the position. He did possess
shortcomings. Yet, as a matter of common experience in
human affairs, it is highly unusual to find a person tor any
position who measures up to and possesses every single re-
quirement that would make him ideal for that position. No
one is perfect. While certain witnesses gave testimony that
they believed others on the list in January to be qualified to
perform the foreman's job for McKinstrv, none testified
that those registrants had been better qualified than Wight.
Consequently., while Feenstra may have underestimated the
experience of other registrants, there is no evidence that
Wight was so lacking in qualifications or that one of the
registrants had been so superbly qualified as to render
Feenstra's selection of Wight an obvious display of avorit-
ism.
Third, Van Voorst, who concededly satisfied McKinstry's
qualifications requirement, did register prior to the date on
which Wight had been dispatched to Lynden. However, his
registration occurred at a time when arrangements had al-
ready been made with Haskell to release Wight from em-
ployment and, as Feenstra testified, at a time when it would
have been awkward for Feenstra to change direction and
retract arrangements already made for Wight's early re-
lease. Further, Feenstra did not attempt to hide what he
had done from Van Voorst. as might be expected had he
been attempting to clandestinely achieve an illegitimate
purpose. Rather, he forthrightly explained the situation to
Van Voorst. And. Van Voorst agreed that Feenstra had
done the correct thing.1
Finally, the General Counsel presented testimony that
others on the "A" list, in addition to the two or possibly
2 On January 31. Feenstra had described the circumstances of Wight's
dispatch to another registrant. During the course ot that description. he had
remarked that "a few of the guys on the list were going to have a legal
bitch." In his brief. the General Counsel construes this remark as tanta-
mount to an admission by Feenstra "of his illegal act" Yet. it is equall
inferrable, given the subjective nature of the determination as to who as
and was not qualified to satisfN McKinstry's equirements. that Feenstra had
merely been expressing recognition of the possibility that some registrants, as
did occur, would complain about Feenstra's omission of them from among
the class of registrants qualified to be McKinstry's foreman and about the
legality of dispatching Wight on the day after he had registered Thus, the
statement could he construed as no more than an acknowledgement of the
possibility of a future problem, rather than a concession that IFeenstra had
engaged in wrongdoing In view of the factors discussed above in this section
and in light of the ambiguity of Feenstra's remark, I find that the remark is
too vague to constitute an admission of ulrongdoing
three registrants to whom Feenstra had offered the LIynden
job,. also possessed the qualifications specified by McKin-
stry. Yet, when recalled near the end of the hearing,
Feenstra testified that his opinion of the qualifications of
the registrants on the "A" list in mid-January had not been
altered by hearing this testimony. He remained of the view
that only the registrants to whom he had offered the fore-
man's position had possessed the ncessary qualifications
sought bh McKinstry. Indeed, there was no evidence that
any of the registrants to whom Feenstra had failed to offer
the fireman's position had been so highly qualified that
failure to offer the job to them showed an obvious and
arbitrary failure to properly appraise their qualifications.
To the contrary, all witnesses questioned concerning the
matter concurred that there was room for honest disagree-
ment regarding the qualifications of the registrants on the
list to satisfy McKinstry's specifications.
"A wide range of reasonableness must be allowed a statu-
tory bargaining representative in serving the unit it repre-
sents, subject always to complete good faith and honesty of
purpose in the exercise of its discretion." Ford Motor Com-
ipnt, . u/ftftnln, 345 U.S. 330. 338 (1953). "Thus it is not
evers act of disparate treatment or negligent conduct which
is proscribed by Section 8(b)(1)(A), but only those which.
because motivated by hostile, invidious, irrelevant, or un-
fair considerations, may be characterized as 'arbitrary con-
duct.' [Footnotes omitted.]" United Steelworkers of A 4merica.
4FL CIO, I.ocal Unioln o. 2869 (Kaiser Steel Corpora-
tion), 239 NLRB 982 (1978). Even were it correct, as was
testified by the General Counsel's witnesses. that others on
the "A" list in mid-January had possessed the qualifications
sought by McKinstry, the most that the evidence shows is
that Feenstra had underestimated their abilities. As found
above, there is no evidence showing that he had selected
some registrants and not others for reasons of favoritism
toward the former or, conversely, in an effort to discrimi-
nate against those whose names he bypassed. Nor, for the
reasons set forth above. will a preponderance of the evi-
dence support the conclusion the his selection of some reg-
istrants and not others. to whom to offer the foreman's job,
had been designed with the ultimate object of bestowing a
benefit on Wight based upon their friendship. In sum,
Feenstra's conduct has not been shown to have been "moti-
vated by hostile, invidious, irrelevant. or unfair consider-
ations" and, accordingly. at best, was no more than a judg-
ment which, while possibly erroneous or mistaken, was not
arbitrary.
Therefore, I find that Respondent did not generally vio-
late the Act by its disregard of certain names on the "A" list
for the McKinstry request nor by its selection of Wight for
dispatch to fill that position. Of course, this conclusion is
limited by the conclusion in section IV, A, supra, that had
Challender been on the "A" list, the foreman's position
would have been offered to him, as Feenstra conceded.
C. The Internal Union Charge Against Challender
It is undisputed that Respondent filed internal charges
against Challender for. in essence, foiling to exhaust all in-
ternal remedial procedures provided b Respondent's con-
stitution. Such conduct has the effect of using Respondent's
internal disciplinary procedure to discourage employee ac-
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cess to the Board. Accordingly, it violates Section
8(b)(1)(A) of the Act. See N.L.R.B. v. Industrial Union of
Marine & Ship Workers, 391 U.S. 418, 424, (1968).
While not disputing this conclusion, Respondent argues
that since it withdrew the internal complaint against Chal-
lender, any violation which may have been committed is de
minimis. Yet, so far as the record discloses, no notice was
given to Challender of that fact. Respondent's notice of
withdrawal of the charge against Challender was directed
to the Regional Director, not to Challender. Moreover, at
no point did Respondent acknowledge that it had violated
the Act by having filed the internal charge against Challen-
der. Nor did it promise not to do so again in the future.
Finally, the internal charge pertained to Challender's efforts
to obtain redress for Respondent's summary deletion of his
name from the "A" list, conduct found above to have been
an unfair labor practice. In these circumstances, I find that
the violation arising from the filing of an internal charge
against Challender for having filed the unfair labor practice
charge in the instant matter is not rendered de minimis by
virtue of Respondent's March 31 letter to the Regional Di-
rector.
V. THE EFFECI OF THE UNFAIR LAbOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operations of Association. as described
in section I, above, have a close, intimate and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead, and have led, to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
I. Plumbers and Steamfitters Local No. 40, United Asso-
ciation of Journeymen and Apprentices of Plumbers and
Pipefitting Industry of the United States and Canada,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Mechanical Contractors Association of Washington
and its employer-members are employers within the mean-
ing of Section 2(2) of the Act, engaged in commerce and in
a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3. By summarily removing the name of Floyd L. Chal-
lender from its "A" dispatch list for fraudulent registration,
without notice to him and in disregard of the contractually
prescribed procedure for resolving disputes concerning
fraudulent registration, and by filing an internal charge
against Challender because he filed an unfair labor practice
charge with the National Labor Relations Board, Respon-
dent violated 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.
5. Respondent did not violate the Act in any other man-
ner.
THE REMEDY
Having found that Plumbers and Steamfitters Local No.
40, United Association of Journeymen and Apprentices of
Plumbers and Pipefitting Industry of the United States and
Canada, AFL-CIO, engaged in certain unfair labor prac-
tices, I shall recommended that it be ordered to cease and
desist therefrom and that it shall take certain affirmative
action designed to effectuate the policies of the Act. With
respect to the latter, Plumbers and Steamfitters Local No.
40, United Association of Journeymen and Apprentices of
Plumbers and Pipefitting Industry of the United States and
Canada, AFL-CIO, shall be ordered to make Floyd L.
Challender whole for any loss of earnings he may have suf-
fered by reason of its unlawful conduct in removing his
name from the "A" dispatch list, with backpay to be com-
puted on a quarterly basis, making deductions for interim
earnings and with interest to be paid on the amounts owing,
and to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis
Plumbing & Heating Co., 139 NLRB 716 (1962), enforce-
ment denied on different grounds 322 F.2d 913 (9th Cir.
1963).
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"
Plumbers and Steamfitters Local No. 40, United Associ-
ation of Journeymen and Apprentices of Plumbers and
Pipefitting Industry of the United States and Canada,
AFL-CIO, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Summarily removing names of employees from its
dispatch lists for fraudulent registration without notice to
those employees and in disregard of the provisions for re-
solving disputes involving assertedly fraudulent registration
in its collective-bargaining agreement with Mechanical
Contractors Association of Washington.
(b) Filing internal charges against employees because
they file unfair labor practice charges with the National
Labor Relations Board.
(c) In any other manner restraining or coercing employ-
ees in the exercise of rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make Floyd L. Challender whole for any loss of pay
he may have suffered as a result of its unlawful conduct in
removing his name from its "A" dispatch list, in the manner
set forth above in the section entitled "The Remedy."
(b) Completely expunge and excise from its records all
reference and other evidence in its files pertaining to the
internal charge filed on February 7, 1978, against Floyd L.
Challender.
(c) Post at its Bellingham, Washington, hiring hall copies
'1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulatiuns of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1164
PLUMBERS AND STEAMFITTERS LOCAL 40
of the attached notice marked "Appendix."'4 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 19, after being duly signed by Plumbers and Steamfit-
ters Local No. 40, United Association of Journeymen and
Apprentices of Plumbers and Pipefitting Industry of the
United States and Canada, AFL-CIO's authorized repre-
sentative, shall be posted immediately upon receipt thereof
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Plumbers and Steamfitters Local No. 40, United
Association of Journeymen and Apprentices of Plumbers
and Pipefitting Industry of the United States and Canada,
AFL-CIO, to insure that said notices are not altered, de-
faced or covered by any other material.
(d) Forward signed copies of said notice to the Regional
Director for Region 19 for posting by employer-members of
Mechanical Contractors Association of Washington, if will-
ing, at their locations in the Bellingham, Washington, area
where notices to employees are customarily posted.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Plumbers and Steamfitters Local No. 40, United Associ-
ation of Journeymen and Apprentices of Plumbers and
Pipefitting Industry of the United States and Canada,
AFL-CIO, has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not found herein.
" In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an order of the National
Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT summarily remove your names from
our dispatch lists for fraudulent registration, without
notice to you and in disregard of the provisions for
resolving disputes involving assertedly fraudulent reg-
istration in our collective-bargaining agreement with
Mechanical Contractors Association of Washington.
WE WILL NOT file internal charges against you be-
cause you file unfair labor practice charges with the
National Labor Relations Board.
WE WII.I. NOI in any other manner restrain or coerce
you in the exercise of your rights under the National
Labor Relations Act.
WE WILL make Floyd L. Challender whole for any
loss of pay he may have suffered as a result of our
unlawful conduct in removing his name from our "A"
dispatch list.
WE WILL completely expunge and excise from our
records all reference and other evidence in our files
pertaining to the internal charge filed on February 7.
1978. against Floyd L. Challender.
PLUMBERS AND STEAMFITTERS LOCAL No. 40,
UNITED ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF PLUMBERS AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND CANADA, AFL-
CIO
1165