U.S. Pipeline, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 26, 2003

11-CB-003101 (N.L.R.B. Feb. 26, 2003)

JD(ATL)—17—03
Concord, NC

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

TEAMSTERS LOCAL UNION NO. 391,
affiliated with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
AFL-CIO
(U. S Pipeline, Inc.)

and CASE 11-CB-3101

JIM SEITZ, An Individual

and

TEAMSTERS LOCAL UNION NO. 71,
affiliated with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
AFL-CIO
(U. S PIPELINE, Inc.)

and CASE 11-CB-3102

JIM SEITZ, An Individual

Ronald C. Morgan, Esq.,
for the General Counsel.
J. David James and
Seth R. Cohen, Esqs.,
for the Respondent.

DECISION

STATEMENT OF THE CASE

JANE VANDEVENTER, Administrative Law Judge. This case was tried on
October 24 and 25, 2002, in Concord, North Carolina. The complaint alleges Respondent
violated Section 8(b)(1)(A) and 8(b)(2) of the Act, by refusing to refer three individuals
to jobs pursuant to an exclusive hiring hall arrangement, operating its exclusive hiring
hall in an arbitrary and discriminatory manner, and thereby failing fairly to represent the

JD(ATL)—17—03

individuals. The Respondent filed an answer denying the essential allegations in the
complaint. After the conclusion of the hearing, the parties filed briefs which I have read.

Based on the testimony of the witnesses, including particularly my observation of
their demeanor while testifying, the documentary evidence, and the entire record, I make
the following:

FINDINGS OF FACT

I. JURISDICTION

The Employer herein, U. S. Pipeline, Inc., is a Texas corporation engaged in the
construction industry. In 2000, the Employer was engaged in a pipeline construction
project in Concord, North Carolina. During a representative one-year period, the
Employer derived more than $50,000 from work it performed outside the State of North
Carolina. Accordingly, I find, as Respondent admits, that the Employer is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

The Respondents are labor organizations within the meaning of Section 2(5) of
the Act.1

II. UNFAIR LABOR PRACTICES

A. The Facts

1. The Collective Bargaining Agreement

The International Union with which Respondents are affiliated is signatory to a
national agreement with various employers in the pipeline construction industry referred
to in the record as the National Pipeline Agreement (NPA). In Article II of the NPA, the
International agreed that “the terms of this Agreement shall be recognized by” each local
with geographic jurisdiction where work was to be performed. The local union
participates in a pre-job conference, at which the employer, the local union, and the
International Union discuss the manpower needs, duration, and timing of the job, and
other matters concerning staffing of the job and application of the contract.

With regard to the hiring of employees, the NPA states: “In the event a valid non-
discriminatory exclusive referral procedure has been established by collective-bargaining
between a local of the Union and an association of highway and heavy contractors in the
area in which the job is to be done…Employer agrees to utilize such referral procedures
upon the following conditions [conditions omitted].”

1 Teamsters Local Union No. 391, affiliated with International Brotherhood of Teamsters, AFL-
CIO, will be referred to as Local 391 or Respondent Local 391. Teamsters Local Union No. 71,
affiliated with International Brotherhood of Teamsters, AFL-CIO, will be referred to as Local 71
or Respondent Local 71. Local 391 and local 71 will be referred to collectively as Respondents.
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The NPA goes on to state: “In the event there is no valid exclusive referral
procedure established in the area where the particular job is to be done or the proper
conditions set out hereinabove have not been met by the referral procedure which has
been established, Employer will at the pre-job conference notify Union, as one of the
sources from which men are to be recruited, as to the number of men who will be needed
in addition to his Regular Employees. Employer shall give preference in employment to
men in the area who have had previous pipe line construction experience. It is
understood that Employer may also recruit men from other sources, will hire all
employees at the job site in a non-discriminatory manner, and shall have the absolute
right to determine the competence and qualifications of applicants and employees and to
reject and discharge accordingly.”

The NPA required that its hiring arrangements, as set forth in the agreement, be
posted by Employers and the Union. A signatory employer was permitted to staff its job
up to the level of 50% of its employees with employees it employed regularly, commonly
called “key employees” or “regular employees.” This privilege obtained under either the
exclusive or the non-exclusive hiring arrangement.

There was no evidence in this record that either Respondent was signatory to a
collective bargaining agreement with highway and heavy contractor employers in the
Concord, North Carolina, area. Andrew Crooks, who was the Employer’s Administrative
Manager and Chief Information Officer at the time of the events herein, testified that he
was unaware of any such collective bargaining agreement. He further testified that as far
as he was aware, the Employer most often did operate under an exclusive hiring hall
arrangement in most of the locations around the country where it performed work. On
that basis, he assumed that the Concord, North Carolina, location would operate in the
same way. Crooks, however, did not attend the pre-job meeting with the local unions,
Respondents herein, and had no direct knowledge of what was discussed at that time.

2. The Concord Job

The Employer’s job in and around Concord, North Carolina (called hereafter the
Concord job), began in about mid-summer 2000. The Employer’s task was to build a 36”
diameter pipeline for a large utility company. The Employer maintained an equipment
yard, where it kept its trucks, heavy equipment, and an office. The superintendents for
the Employer were Jimmy Crotts and Harold “Racer” Hutchens. The actual work site
itself changed, moving along the route of the pipeline as the work progressed.

The Employer and Respondents held a pre-job conference on about August 11,
2000. As stated above, Crooks was not present, but Bobby Crotts, Jimmy Crotts and a
Mr. Klyne, the office manager for the Concord job, were present on behalf of the
Employer. J. D. Wright, a business agent, and Jim Runion attended the meeting on
behalf of Local 71. Steve Bishop, a business agent, attended on behalf of Local 391.
Both Bobby and Jimmy Crotts were part-owners of the Employer. At the meeting, a
member of Local 391, John Hudson, was designated by both Respondents to be the
steward representing both locals on the Concord job. Hudson was present at the pre-job
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conference as well. The meeting lasted for about an hour, and the parties resolved issues
such as wages, benefits, drug testing, safety requirements, and the number of employees
required for the job, approximately 32. Another issue which was agreed upon was that
50 % of the employees would be brought in directly by the Employer under the regular
employees or key man provisions of the NPA. According to J. D. Wright, at the meeting,
Jimmy Crotts told the Respondents that he would like to have employees on the Concord
job who had previously worked for the Employer. Jimmy Crotts described a job the
Employer had done in Pittsboro, North Carolina in 1999, and stated that he would like to
have those same drivers if the Respondents could get them.

According to Wright, Respondents referred employees to the Concord job
from August through November 2000.2 All the referrals were handled by John Hudson.
Sometime in August, Wright gave Hudson a list of people who had called him expressing
a desire to be employed on the Concord job. According to Wright, the first two names on
his list were members of Local 71, the next three were members of a nearby North
Carolina local union, Local 61, and the remaining names were in the order in which they
had called Wright to express interest in the pipeline job. The Charging Party herein, Jim
Seitz, appears as the eighth name on Wright’s list, with Raymond Andel and Hazel
Maddocks following his name, as the ninth and tenth entries.

Steve Bishop testified that shortly after the pre-job conference he, too, gave John
Hudson a copy of his personal list of employees who had called him and said they were
interested in working on the Concord job or on any pipeline job. Bishop said that any
employees who called him after that time, however, were told to call the company office
at the yard and talk to John Hudson. The names on Bishop’s list were also noted down in
the order in which they had called him, beginning in 1999. In addition to his personal
list, Bishop also passed on to John Hudson a list of employees with pipeline experience
working for another pipeline employer, and a list of employees who had worked for the
Employer on the Pittsboro pipeline job in 1999.

According to Wright, Seitz had called him about the Concord job in July. Seitz
requested that his name, and the names of Raymond Andel and Hazel Maddocks be put
on the list for the Concord job. Wright took down the names and added them to his list,
as described above. Seitz mentioned that he was from North Dakota, and had worked for
the Employer on a pipeline job there, as had Andel and Maddocks. Wright testified that
he told Seitz that Local 71 members would be referred to the job first, before those from
outside the area. Wright testified that he never informed Seitz of his placement or number
on his list or on any referral list. He also testified that he told Seitz that he should stay in
North Dakota until he was called; he did not tell Seitz to come to North Carolina.

Maddocks testified that she telephoned Local 71 in June, and asked to have her
name and Andel’s name put on the out of work list for the Concord job. The woman with
whom she spoke took down both names and told her that she and Andel were the first
two names on the list. There is no evidence in the record as to the identity of the person
Maddocks spoke to, and no evidence as to what happened to the names she recorded.
2 All dates hereafter are in 2000, unless otherwise specified.
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JD(ATL)—17—03

Andel testified that he telephoned Wright in late July to verify that his name was
on the list for the Concord job, and that Wright told him that Seitz, Andel, and Maddocks
were numbers three, four and five on the list. According to Andel, Wright also said they
should come to North Carolina as soon as possible.

Andel testified that in about mid-August, he and Seitz came to Local 71 and met
with Wright in his office. At that time, Wright told them to see John Hudson about going
to work on the Concord job, as Hudson was the one handling all referrals. Charging
Party Jim Seitz did not testify, as he was deceased by the time of the trial. Andel,
however, testified that Wright again told them that the three of them were “three, four,
and five” on the list and would be the next ones hired. He told them to go to the
Employer’s yard the next day. Wright denied that he told the two employees that they
were “three, four, and five” on the out-of-work list, and that they should come out to the
yard the next day. He stated that he never uses the phrase, “out-of-work list,” as Local 71
has never maintained one. He testified that he told them to go see John Hudson at the
Employer’s yard.3

Wright testified that the list of names he gave to Hudson was simply a memory
jogger for his personal use, and was not a formal referral or “out-of-work” list. It was
never posted or made available to the public. In addition, Wright later relayed another
name to Hudson orally over the telephone, that of a Local 71 member who had called him
to express a desire to go to work. Wright testified without contradiction that Local 71
does not operate a hiring hall of any kind.

Steve Bishop was also called by Seitz several times in July and August about the
Concord job. Until the pre-job conference in August, Bishop simply told Seitz that he
did not know much about the job yet, but that Seitz should call again to check on the job.
The first time Seitz called after the pre-job conference, Bishop told him that the job had
been delayed a little due to the utility company having trouble getting some necessaary
right-of-way permits for portions of the pipeline. When Seitz told Bishop he believed he
was number one on the list, Bishop replied that there was no number one, since there was
no “hiring list.” Bishop also told Seitz that out-of-work local members would probably
be the first ones to be referred. Bishop recalled that Seitz volunteered to switch his
membership to Local 391. Bishop told Seitz that would not be necessary.

It is undisputed that neither Local 71 nor Local 391 operates a hiring hall of any
kind. Both Wright and Bishop testified that they regarded the hiring arrangement with
the Employer as a non-exclusive hiring arrangement.

3 I credit Wright over Andel to the effect that Wright told them to go see Hudson at the Employer’s
yard, not that he told them they were the next to be hired. I also credit Wright’s denial that he told
the employees they were number three and number four on an out-or-work list. They were, in
fact, numbers eight and nine. Wright’s testimony overall was more consistent within itself as well
as with other record evidence. Andel testified inconsistently with his affidavit on one point, and
did not demonstrate a good memory overall.
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JD(ATL)—17—03

3. Jim Seitz, Raymond Andel, and Hazel Maddocks

Prior to the Concord job, Andel had worked on a pipeline job for the Employer in
North Dakota for approximately five months in 1999 as a bus driver and a skid driver.
He had worked on another pipeline job for a different employer in June and July 2000.
Maddocks, who is Andel’s sister, had worked on the same two jobs as a bus driver and a
dump truck driver. Seitz, who was Andel’s brother-in-law, had worked as parts runner
and a bus driver on the first of those jobs. At the time, they were all members of a
Teamsters local union in North Dakota, Local 123.

Andel testified that on August 15, he and Seitz went to the Employer’s yard in
Concord, and talked to Wright there. According to Andel, it was on this day that Wright
first told them that Job Steward John Hudson would be the one to talk to about getting
referred. Seitz and Andel went to talk to Hudson. Hudson told them that the Employer
was hiring those employees who had worked for it the previous year. Seitz told Hudson
that they had worked for the Employer the previous year, but in North Dakota rather than
in North Carolina. Hudson said that those from out of state could be on the “B” list.
According to Andel, they talked to Hudson several times in the next couple of weeks, and
he continued to tell them that the Employer was still hiring employees who had worked
the 1999 North Carolina job for it.

Andel testified he and Seitz were at the Employer’s yard one day in August when
Seitz talked to Racer Hutchens, the job superintendent. They were acquainted with
Hutchens, who had been a superintendent at the North Dakota job they had worked on the
year before. According to Seitz’s report back to Andel, Hutchens had said the Employer
had already hired all it was going to, and it would obtain the remaining employees
through the hiring arrangement with Local 71 and Local 391.

Bishop testified that near the end of August he suggested to Seitz that he and
Andel try to get pipeline jobs at another pipeline jobsite in Morganton, North Carolina,
where a sister local, Local 61, represented employees. He had heard from the steward on
that job that there were jobs available there. Andel and Seitz did go to Morganton and
did talk to the steward there. The steward on that job, Joey Parker, testified that he told
both Andel and Seitz that they could go to work on the Morganton pipeline job that day,
and asked them to fill out the paperwork to be put on the payroll. Parker then went to
work for a few hours, and when he returned to the office, Seitz and Andel had left, having
informed the office employee that they did not want the jobs.

Andel returned to North Dakota shortly before the end of August. On August 31,
Maddocks arrived in North Carolina. A few days later, she spoke to John Hudson by
telephone, identified herself and said she was ready to go to work. He told her that the
Employer was hiring employees who had worked for it the year before. Maddocks said
that she had worked for the Employer the year before, and that Jim Wright had told her
she was on the list for the Concord job. Hudson said that he would check on it and get
back to her. Maddocks testified that Hudson also asked her if she knew Jim Seitz.
Maddocks replied that he was her brother-in-law. Hudson said that he had heard of some
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trouble with Jim Seitz the previous year. Maddocks said she had no connection with that,
she just wanted to go to work.

Maddocks testified that Hudson called her back a week later and told her that she
was number 75 or 80 on the list. Hudson said that he would not refer Andel or Maddocks
to the Concord job, because Seitz was ahead of them on the list, and Hudson was afraid
Seitz would “sue them” if Hudson put Andel and Maddocks on the job ahead of Seitz.
Hudson did not tell Maddocks why he did not intend to refer Seitz to the Concord job.

A few days later, Maddocks went to the Employer’s yard, where she ran into her
foreman from the Employer’s job in North Dakota. When she told him that she didn’t
know if she was going to get on the job, her old foreman said he would see if he could
request her as his bus driver. Maddocks did not see this foreman again, and was not hired
for the Concord job.

4. Employees on the Concord Job

No one who actually referred or hired employees on the Concord job testified.
There was documentary evidence in the form of lists of employees who worked on the
Concord job. Two lists had been prepared by Employer witness Crooks from the
Employer’s computer records. However, there was no direct evidence of how these
employees were hired, or, more specifically, whether they were hired through the
Respondents as a source, from the Employer’s regular employees, or through some other
source. Crooks assumed that they were hired either from the Employer’s regular
employees or through the Respondents, but admitted that he was not present at the
Concord job, and did not actually know. The exhibit listing the names of employees on
the Concord job does not show on its face the source of each of the employees. While
there is a notation, “Union” or “Company,” on the documents, this was put on by Crooks
based on his computer records and later altered, apparently after a telephone conversation
with Hudson.

5. Evidence Concerning Seitz’ Work History with the Employer

The only evidence concerning the Employer’s attitude toward Seitz comes from a
July 27 handwritten letter from the superintendent on the Concord job, Hutchens. The
letter was authenticated only as coming from the Employer’s files at the Concord job
yard. In it, Hutchens informed Seitz that the Employer did not intend to hire him on the
Concord job as one of its “regular employees.” It appears that Hutchens already had in
mind a sufficient number of employees, and there was not room for Seitz.

There were several references, mostly in hearsay evidence, to Seitz having had a
vehicle accident while working for the Employer in 1999, to Seitz having filed a worker’s
compensation claim, and to Seitz having filed a grievance with the North Dakota local
union. I have not relied on any of this evidence, as it was, if not actually incompetent or
inadmissible, entitled to very little weight. In addition, with the exception of Hudson’s
remarks testified to by Maddocks, which will be analyzed below, there is no evidence in
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this record of any animus, any connection, or any causation which would link any of
these incidents to the Respondent’s failure to refer Seitz to the Concord job.

B. Discussion and Analysis

1. Exclusive or Non-Exclusive Hiring Arrangement

The first issue presented is whether the hiring arrangement on the Concord job
was an exclusive hiring hall or not. The contract language quoted above clearly states
that there will be an exclusive arrangement where the local union has an exclusive hiring
hall agreement with “highway and heavy contractors in the area.” It is undisputed that
Respondents here had no such exclusive referral agreement with such contractors, and in
fact, had no exclusive referral agreement with any employers. Neither Respondent
operates any kind of an exclusive hiring hall. Under the language of the contract,
therefore, the hiring arrangement falls under the second part of Article II of the NPA, a
non-exclusive hiring arrangement, where the local union is but one source for employees.
Therefore, under the plain language of the collective bargaining agreement, the
Respondents were but one possible source for employees. The Employer was, by explicit
contract language, free to hire employees from other sources.

It is possible, however, for an agreed non-exclusive hiring hall to operate in
practice as an exclusive hiring hall. If, for example, all the parties to the agreement treat
it as an exclusive hiring arrangement, then the same duties will apply to the union as in
the case of an agreed exclusive referral procedure. See, e.g., Laborers Local 334
(Kvaerner Songer), 335 NLRB No. 50 (2001). Board law makes it clear that it is the
General Counsel’s burden to establish exclusivity under this theory.

In this case, it is clear that the Respondents did not regard the hiring arrangement
as an exclusive hiring arrangement, and did not treat it as such. There was no out-or-
work list maintained, nor were referrals made in any particular order. There were no
written hiring hall rules, nor any of the other formal requirements of an exclusive hiring
hall. The lists which did exist were merely notations of employees who had experience
or interest in pipeline work. These lists were personal notes of Wright and Bishop, and
were given to Hudson, the steward, for his convenience, apparently without any
instructions on how they should be used. Other lists of employees who had worked on
the Employer’s 1999 pipeline job or another pipeline job, were also given to Hudson, as
the Employer had expressed a desire to have experienced employees, especially those it
had previously employed itself, working on the Concord job.

It is unclear whether the Employer regarded the hiring arrangement as exclusive
or not, as none of the Employer superintendents who ran the Concord job testified. The
exhibit listing the names of employees on the Concord job does not show on its face the
source of each of the employees. While there is a notation, “Union” or “Company,” on
the documents, this was put on by Crooks based on his computer records and later
altered, apparently after a telephone conversation with Hudson. There was no testimony
by any knowledgeable witness as to the source of each applicant who was hired. As
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noted before, neither Jimmy Crotts, the owner and a superintendent, Racer Hutchens, the
other superintendent, nor John Hudson, the Respondents’ job steward, testified
concerning the source for each applicant who was hired by the Employer. Thus, it has
not been shown by a preponderance of the evidence that the Employer hired only by
union referrals (other than the “regular employees” to which the contract entitled it).
Even if it is assumed, as Crooks assumed, that the Employer treated the arrangement as
an exclusive one simply because it was accustomed to exclusive arrangements in other
locations of the country, the mental assumptions of one party to a written agreement
cannot change the meaning of the agreement.4

On this record, I find that the hiring arrangement for the Concord job was a non-
exclusive referral procedure, as described in the NPA.

2. Respondents’ Duty Under a Non-Exclusive Agreement

Board law imposes on unions a duty even in a non-exclusive hiring hall situation.
A union must not discriminate against applicants because they have engaged in protected
activity, for example, intraunion political activity. See, e.g., Carpenters Local 537 (E. I.
Du Pont), 303 NLRB 419 (1991). To prove a prima facie case that a union has violated
this duty, there must be proof of protected activity, animus by the union towards the
individual (or individuals) based on that protected activity, an action taken which harms
the individual, and a nexus between the animus and the action.

Here, it appears from the uncontradicted testimony of Maddocks that the
Respondents’ job steward, Hudson, told her he would not refer Andel and Maddocks
because Seitz was ahead of them on the list, and jumping over his name would be a
problem. With regard to Seitz, he said only that he had heard of some “trouble” with
Seitz the previous year. Hudson did not specify what kind of trouble this was, or whether
the supposed trouble was the reason he had not referred Seitz to the Concord job. The
General Counsel argues that it should be inferred from these remarks: (1) that the trouble
referred to was a grievance Seitz had supposedly filed in 1999, (2) that the filing of the
grievance was protected activity, and (3) that this grievance was the reason Seitz was not
referred. In addition, the General Counsel assumes that the grievance, if it occurred, was
protected activity. Maddocks testified that she believed Seitz had filed a grievance in
1999. It is unclear from this record whether that grievance was against the Employer, or
concerned some internal union matter. The record contains nothing about the subject
matter of the grievance, and the very existence of the grievance itself is based on hearsay
evidence. I find that the General Counsel has not proved that Seitz engaged in protected
activity.

4 It appears from the testimony of Andel and Maddocks that they believed hiring for the Concord
job was being done under an exclusive arrangement, and that an out-of-work list must exist, and
that employees must be referred in order from this list. They may have believed this because their
previous experience in North Dakota involved an exclusive referral procedure. I find that the
belief of the individual employee applicants does not have any weight in determining whether the
referral procedure on the Concord job was exclusive or non-exclusive.
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In order to sustain the General Counsel’s theory, far too many mental leaps and
unsupported assumptions would have to be made. Hudson’s reference to trouble with
Seitz could have referred to his vehicle accident, to his worker’s compensation claim, to
the grievance, assuming there was such a grievance, to his heart problem, or to some
other difficulty which was unknown to Maddocks. Hudson did not elaborate. The mere
fact that he mentioned this to Maddocks during a conversation in which they were
discussing her chances for referral to the Concord job is not sufficient to establish both
animus based on this unidentified “trouble” and Seitz not being referred to the Concord
job because of the “trouble.” Hudson’s comments to Maddocks are far too ambiguous
and incomplete to support the heavy burden of meaning the General Counsel would
attribute to them.

Aside from Hudson’s ambiguous remarks to Maddocks, evidence of animus by
Respondents towards Seitz, Andel, and Maddocks is wanting. Evidence concerning the
conduct of the two business agents, Wright and Bishop, does not establish animus; on the
contrary, both men acted helpfully towards Seitz, Andel, and Maddocks. Both agents
passed on the three applicants’ names to the job steward of the Concord job. Bishop
informed them of pipeline work in another North Carolina location. I find it unnecessary
to determine whether Wright did or did not inform Andel that the three North Dakota
applicants were, “three, four, and five” on his list of pipeline employees. As has already
been found, Wright’s list was not an official “out-of-work” list, but was simply
information concerning interested and available employees. Especially in view of the
multiple lists of available and/or experienced employees which Hudson was given for use
in finding qualified employees to refer, the order of employees on Wright’s list was not
of any particular importance. Nowhere in this record has it been shown that Seitz, Andel,
and Maddocks were more qualified or experienced than the employees who were referred
to the Concord job.

Likewise, evidence of any connection between Seitz’ grievance, assuming that it
existed, and assuming that it was protected activity, with Respondents failure to refer him
to the Concord job is lacking. As described above, Hudson’s remarks constitute the only
scintilla of evidence in this record which could bear on the issue of a nexus between the
assumed protected activity and the failure of Respondents to refer Seitz and the other two
employees to the Concord job. Even if the other elements of a violation could be wrung
from this record, I find that Hudson’s ambiguous remarks to Maddocks are insufficient
evidence of such a nexus.

In summary, I find that the General Counsel has not shown by a preponderance of
the evidence that Respondents refused to refer Seitz, and consequently Andel and
Maddocks, to the Concord job for any unlawful reason.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:5
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
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ORDER

It is recommended that the complaint be dismissed in its entirety.

Dated at Washington, D.C.

______________________________
Jane Vandeventer
Administrative Law Judge

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