Teamsters Local 631

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2003

28-CB-005899 (N.L.R.B. Dec. 31, 2003)

JD(SF)–97–03
Las Vegas, NV

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS LOCAL 631, affiliated with
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, AFL-CIO
(GES Exposition Services, Inc.),
Respondent

and Case 28-CB-5899

BRUCE SWEARINGEN,
An Individual,
Charging Party

Steve Wamser, Esq.,
for the General Counsel
Amanda Lively, Esq.,
for the Respondent

DECISION1

Albert A. Metz, Administrative Law Judge. This case involves the issue of whether the
Respondent Union unlawfully refused to register employee Bruce Swearingen for employment in
violation of Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (Act).2 On the entire
record, including my observation of the demeanor of the witnesses, and after consideration of the
parties’ oral arguments and Counsel for the General Counsel’s brief, I make the following findings
of fact.

1 This case was heard at Las Vegas, Nevada on July 15, 2003. All dates in this decision refer to the year 2003
unless otherwise stated.
2 29 U.S.C. § 158 (b)(1)(A) and 8(b)(2).
JD(SF)–97–03

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I. JURISDICTION AND LABOR ORGANIZATION

The Respondent admits, and I find, that GES Exposition Services (GES) is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that the
Respondent is a labor organization within the meaning of Section 2(5) of the Act.

II. BACKGROUND

On or about June 1, 2001, the Respondent and GES entered into an agreement that the
Respondent would be the exclusive source of referrals of employees for employment with GES.
That agreement has remained in effect at all times material to this proceeding.

Jim Frye is the Respondent’s steward and an admitted agent of the Respondent. Frye
works at convention sites in the Las Vegas area and deals with employees that work for
employers under contract with the Respondent.

The Respondent’s exclusive hiring hall arrangement with convention employers permits
union members who are paid up in their dues, within the terms set forth in the International
Brotherhood of Teamsters constitution, to be referred to employment with signatory employers.
The referral system also makes provision for referring employees who are not members of the
Union for employment. The nonmember provisions of the arrangement are not in dispute in this
proceeding.

There are frequent occasions when employers may need employees in addition to those
referred through the hiring hall. In order to meet this need, the Union and employers have agreed
that the Union can establish at job sites a “bull list” of employees from which employers may
choose any needed extra help. Employees may choose to go to a convention job site and sign the
list in hopes of obtaining employment. A Union’s steward at a job site maintains the bull list and
is responsible for checking to assure that members signing the bull list present their dues card to
demonstrate they are “current” in their dues and thus eligible to sign the list. A union member
can be three months in arrears in the payment of his dues and still be eligible to sign the bull list.
If a union employee does not possess a valid dues card he is not allowed to sign the list.

III. EVENTS OF JANUARY 26

Charging Party Swearingen was at all material times a member of the Respondent Union.
Swearingen and fellow union worker, Jane King, wanted to work at the Las Vegas Convention
Center on January 26. They had not been referred to work there by the Union but showed up in
order to sign the bull list. Frye was at this location as show steward and was responsible for
administering the list.

The parties agree that Swearingen, despite being delinquent in his dues payments, was
within the 90-day grace period and thus eligible for employment through bull list registration on
January 26. The record evidence shows, however, that he would have to show an appropriate
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dues receipt to the Union’s show steward at the time of registration in order to prove his
eligibility.

There are conflicting versions of what happened when Swearingen attempted to sign the
list on January 26. According to Swearingen’s testimony he approached Frye who asked to see
his dues card. Swearingen states he presented his most recent card that showed he had last paid
his dues in October 2002. Despite showing his dues receipt, Swearingen recalled that Frye told
him he was not eligible to sign the bull list. Swearingen testified that when Frye rejected the
receipt as valid for registration he handed it to King. Swearingen states that he did not have his
glasses with him and wanted King to verify that the receipt showed an appropriate date to permit
his registration. According to Swearingen King confirmed that the receipt was current for
registration purposes.

Swearingen testified that King was a friend of his and they had car pooled to the work
site on January 26 to register for bull list work. King was originally alleged in the complaint in
this case to have been unlawfully denied registration on the same occasion. The Government
withdrew the allegations concerning King and she did not testify at the hearing.

Frye testified that Swearingen and King, along with seven other employees, were denied
registration on the bull list because they did not produce dues receipts that qualified them for
such priority. It is undisputed that Frye told these nine individuals to wait around as the employer
would need additional help beyond the names on the bull list. They all waited and all but
Swearingen and King were selected to fill out the employer’s hiring needs.

The record shows that Frye was not aware who Swearingen was at the time of these
events and that there was no animosity or ill will between the men. The record likewise does not
offer any reason why Frye was motivated to deny Swearingen registration, other than Frye’s
recollection that those employees without receipts were rejected for registration. As Swearingen
was a member of the Respondent Union and continues in that capacity it has not been shown that
there was any motivation to encourage union membership on the part of the Respondent when he
was denied registration.

IV. ANALYSIS

A union that operates an exclusive hiring hall has a duty of fair representation to
applicants using its hall. Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989). The
union’s duty encompasses the obligation to operate its exclusive hiring hall in a manner that is
not "arbitrary or unfair." Miranda Fuel Co., 140 NLRB 181, 184 (1962). The Supreme Court
stated in Air Line Pilots v. O'Neill, 499 U.S. 65; 67 (1991):
[T]he rule announced in Vaca v. Sipes, 386 U.S. 171, 190 (1967)--that a union breaches
its duty of fair representation if its actions are either 'arbitrary, discriminatory, or in bad
faith'--applies to all union activity ... [A] union's actions are arbitrary only if, in light of
the factual and legal landscape at the time of the union's actions; the union's behavior is
so far outside a 'wide range of reasonableness' ... as to be irrational."
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A union is permitted a “wide range of reasonableness” in operating its hiring hall;
"subject always to complete good faith and honesty of purpose in the exercise of its discretion."
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A union may exclude applicants from
its referral system based on legitimate business considerations and absent proof of a statutorily
proscribed objective. Longshoremen ILA Local 341 (West Gulf Maritime Assn.), 254 NLRB
334 (1981).
The decision in this case hinges on credibility. Swearingen was certain that he showed a
valid dues receipt to Frye on January 26. Swearingen’s friend, Jane King, a corroborating
witness to his recollection, did not testify. I find that King was a witness “favorably disposed” to
the General Counsel’s case. Property Resources Corp., 285 NLRB 1105 fn. 2 (1987), enfd. 863
F.2d 964 (D.C. Cir. 1988). Under the adverse inference rule when a party has relevant evidence
within its control which is not produced, that failure gives rise to an inference that the evidence
would be unfavorable to the party. Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972).
Such an adverse inference is appropriate here concerning the failure of King to testify in support
of Swearingen as to what occurred on January 26. I find that had King testified her testimony
would have been contrary to the Swearingen’s assertion that he showed a valid dues receipt to
Frye on that date. International Automated Machines, 285 NLRB 1122-1123 (1987).

Considering the record as a whole, including the demeanor of the witnesses, I credit
Frye’s testimony that he denied Swearingen and the other eight employees the right to sign the
bull list solely because they had failed to show him valid dues receipts. I find that this was a
proper exercise of the Respondent’s obligations under its hiring hall arrangement and that the
Respondent did not act arbitrarily, and therefore did not violate the duty of fair representation
owed to those who sought to use its hiring hall. I conclude that the Respondent did not violate the
Act by not allowing Swearingen to sign the bull list on January 26, 2003.

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The complaint is dismissed in its entirety.

Dated: December 31, 2003

______________________________
Albert A. Metz
Administrative Law Judge
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