Operating Engineers Local 150

National Labor Relations Board - Board Decisions

Apr 30, 2008

352 N.L.R.B. 360 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 54
360
International Union of Operating Engineers, Local
150, AFL–CIO and Richard Chiado. Case 33–
CB–4215
April 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 13, 2007, Administrative Law Judge
John H. West issued the attached decision. The Respon-
dent Union filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
For the reasons stated by the judge, we agree that the
Respondent Union violated Section 8(b)(1)(A) and (b)(2)
of the Act, and its duty of fair representation, by depart-
ing from its established referral procedure when it dis-
patched member David Waters to work at a tank farm
refurbishing project operated by Minnesota Limited
(ML).
The Board has long held that a departure from estab-
lished exclusive hiring hall rules that denies employment
to an applicant
inherently encourages union membership, breaches the
duty of fair representation . . . , and violates Section
8(b)(1)(A) and (2), unless the union demonstrates that
its interference with employment was pursuant to a
valid union-security clause or was necessary to the ef-
fective performance of its representative function.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
Operating Engineers Local 406 (Ford, Bacon & Davis
Construction Corp.), 262 NLRB 50, 51 (1982), enfd. 701
F.2d 504 (5th Cir. 1983); see also Stagehands Referral Ser-
vice, LLC, 347 NLRB 1166, 1168–1169 (2006). As the
judge found, under the Union’s collective-bargaining
agreements and longstanding practice, the Union had a well-
established, nondiscriminatory procedure for referring
members on work assignments. The Union departed from
this procedure when Business Agent Roddie Thomason
insisted on referring Waters, rather than one of the qualified
members listed ahead of Waters on the Union’s out-of-work
list, to the ML worksite. Because Thomason acted on the
basis of his own subjective opinion of who should be re-
ferred rather than according to the Union’s referral criteria,
and that departure was not necessary for the Union’s effec-
tive performance of its representational duties, his action
was unlawful.3
The Board has found that isolated referral errors in the
operation of union hiring halls resulting from “mere neg-
ligence” are not unlawful.4 However, Thomason’s sus-
tained insistence on referring Waters, compounded by
the Local’s refusal to correct his action even in the face
of protest, was not mere negligence.
ORDER
The National Labor Relations Board orders that the
Respondent, International Union of Operating Engineers,
Local 150, AFL–CIO, its officers, agents, and represen-
tatives, shall
1. Cease and desist from
(a) Referring a member, or refusing to refer Richard
Chiado or any other member, for a job in violation of the
Respondent’s established, nondiscriminatory referral
procedure.
(b) Threatening to deny work to Richard Chiado if he
asserted his referral rights under the Respondent’s estab-
lished hiring hall procedure.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

3 We also agree with the judge, based on the credited record, that
Thomason unlawfully threatened the Charging Party, Richard Chiado,
with retaliation for pursuing his right to the Pontiac work assignment
according to the out-of-work list.
4 See Steamfitters Local 342 (Contra Costa Electric), 336 NLRB
549, 550–553 (2001), rev. denied 325 F.3d 301 (D.C. Cir. 2003);
Plumbers & Steamfitters Local 91 (Brock & Blevins), 336 NLRB 541,
542–543 (2001).
OPERATING ENGINEERS LOCAL 150 361
(a) Make whole Richard Chiado, or any other qualified
individual whom it should have referred to Minnesota
Limited, Inc. at its Pontiac, Illinois tank farm site, for any
loss of earnings and other benefits suffered as a result of
Respondent’s referral of David Waters in violation of its
established hiring hall procedure, in the manner set forth
in the remedy section of the decision.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its Utica, Illinois union hiring hall, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Subregion
33 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Sign and return to the Regional Director sufficient
copies of the notice for posting by Minnesota Limited,
Inc., if willing, at all places where notices to employees
working at the Minnesota Limited, Inc., Pontiac, Illinois
tank farm jobsite are customarily posted.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refer any member, or refuse to refer
Richard Chiado or any other member, for a job in viola-
tion of the Union’s established, nondiscriminatory refer-
ral procedure.
WE WILL NOT threaten to deny you work if you assert
your referral rights under the Union’s established referral
procedure.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL make whole Richard Chiado or any other
qualified individual who should have been referred, pur-
suant to the Union’s referral procedure, to Minnesota
Limited, Inc. at its Pontiac, Illinois tank farm site, for any
loss of earnings and other benefits suffered as a result of
our referral of a member to that site in violation of the
Union’s established referral procedure.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL–CIO
Deborah A. Fisher, Esq., for the General Counsel.
Dale D. Pierson, Esq., of Countryside, Illinois, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Peoria, Illinois, on October 1 and 2, 2007.1 The charge
was filed on March 14, and it was amended on June 18. The

1 All dates are in 2007, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
complaint, which was issued on May 31, alleges that Interna-
tional Union of Operating Engineers, Local 150, AFL–CIO
(Respondent) violated Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) by, since about February 5,2 failing and
refusing to properly refer Richard Chiado to employment with
Minnesota Limited, Inc. in violation of its established hiring
hall rules, and by on about February 12, threatening to deny
work to Richard Chiado if he tried to do anything about Re-
spondent’s refusal to refer him to employment on about Febru-
ary 7.3 Respondent denies violating the Act as alleged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Minnesota Limited, Inc. (ML), a corporation, with a jobsite
located, inter alia, in Pontiac, Illinois, has been engaged in the
business of pipeline excavation. The complaint alleges, the
Respondent admits, and I find that during the calendar year
before the complaint herein was issued, a representative period,
ML, in conducting its business operations, derived revenues in
excess of $50,000 from the performance of services directly to
customers located outside the State of Illinois; that at all mate-
rial times, ML has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act; and that the Re-
spondent is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent operates in Indiana, Illinois, and Iowa represent-
ing mostly heavy equipment operators and other employees in
heavy highway, building, and pipeline construction. It operates
hiring halls in its eight geographic districts. Each maintains an
out-of-work list. When a member registers for work, the mem-
ber’s name is placed on the bottom of the out-of-work list. The
member fills out a workcard on which the member indicates
what equipment they can operate and what qualifications they
have. Members are referred from the top of the out-of-work
list, if they are qualified for the position. Employers seek quali-
fied employees by submitting a work order to Local 150. The
work order is recorded. The Union’s dispatcher then will iden-
tify the member who is at the top of the out-of-work list and
qualified to do the work. However, (a) if a member is already
working for the involved employer, the employer can move that
member to a new jobsite without going to the out-of-work list,
and (b) if a member worked for an employer within the last 6
months that employer can request that member for a new job
regardless of the member’s place on the out-of-work list.4 The

2 At the end of the trial herein counsel for the General Counsel’s mo-
tion to amend the complaint to change the date in par. 5(d) of the com-
plaint from February 7 to 5 was granted.
3 As noted above, the earlier reference in the complaint to February 7
was amended to February 5.
4 This is known as call back rights. By using it, the employer avoids
having to “shake down” (test) a new employee and train the new em-
ployee.
employer has the final say on whether the member referred out
is qualified to perform the involved work.
With respect to pipelines, the national pipeline agreement
(GC Exh. 6), which is negotiated by the International Union of
Operating Engineers, is administered by the locals, including
Local 150. Under the national pipeline agreement employers
are permitted to bring their regular employees to staff any job
up to 50 percent of the number of employees required for the
job. Usually there is a prejob conference involving the em-
ployer and Local 150. What is involved, including the staffing
of the project, would be discussed at this conference. Dan
Regan, who is assistant to the president of Local 150 and the
director of pipeline and distribution, testified that under the
national pipeline agreement a member of Local 150 cannot
solicit work directly with an employer signatory to that agree-
ment and if he did, he could be disciplined.
Counsel for the General Counsel and the Respondent stipu-
lated that Respondent’s offices, with respect to its referral pro-
cedure under the building agreement (GC Exh. 2) and the heavy
and highway and underground construction agreement (GC
Exh. 4)—with regard to construction work, operate as exclusive
hiring halls; and Respondent stipulated that the local’s offices
do refer individuals from the same lists to other industries but
in other industries that are not construction it cannot be an ex-
clusive hiring hall by law but rather it has to be considered a
referral hall, and the Heavy Highway and Building and the
pipeline agreements are all construction agreements.5
When called by counsel for the General Counsel, Regan tes-
tified that he oversees the business agent in pipeline; that each
of the eight districts of Local 150 has a referral office; that
District 5’s office is located in Utica, Illinois; that article II,
section 7 of the building agreement refers to addendum 1 (GC
Exh. 3) of the agreement, which addendum sets forth the pro-
cedures to be followed by the referral offices in making refer-
rals to employers who are signatory to the building agreement;
that article XII of the heavy and highway and underground
construction agreement refers to addendum no. 1, which is the
same addendum referred to in the building agreement and
which, as noted above, sets forth the procedures to be followed
by the referral offices in making referrals to employers who are
signatory to the heavy and highway and underground construc-
tion agreement;6 that in each district the same referral office is
used for both the building agreement and the heavy and high-

5 On brief Respondent indicates “[a]t the hearing the parties stipu-
lated that the National Pipeline Agreement . . . is a construction agree-
ment and that the referral system operates as an exclusive hiring hall.1
______________
1 Local 150’s stipulation was with the caveat that under the
National Pipeline Agreement employers can obtain employees
outside the Union’s hiring hall [Tr. 22].”
6 Addendum 1, the IUOE Local 150 hiring procedures, refers to a
number of referral lists for journeymen. It goes on to state, at p. 6, that
“. . . all registrants on Lists 1 through 4 shall be dispatched in the order
of registrant’s date of registration as available for work and in accor-
dance with their experience as Operating Engineers in the Construction
Industry, i.e., the earliest registered individual with the required experi-
ence first, as established by the written statement of the registrant, . . .
and thereafter in order of date of registration.”
OPERATING ENGINEERS LOCAL 150 363
way and underground construction agreement; that article II(I)
of the national pipeline agreement, which—as noted above—is
General Counsel’s Exhibit 6, provides that an employer has the
right to employ and bring onto the job men who are regular
employees of that employer, with the limitation that the em-
ployer cannot bring on more than 50 percent of the employees
on the job; that article II(N) of the national pipeline agreement
provides that in the event a valid nondiscriminatory 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, the
employer agrees to utilize such referral procedures; that the
referral procedure that article II(N) of the national pipeline
agreement refers to is set forth in addendum 1 (GC Exh. 3); that
the prejob is also “part of it” (Tr. p. 32); that article II(N)(a)
reads “Nothing in this Agreement shall affect the Employer’s
inherent right to determine the competency and qualifications
of his employees and his right to reject and discharge men ac-
cordingly”; that paragraph 9 of addendum 1 (GC Exh. 3) pro-
vides “The Employer may reject any registrant dispatched by a
Referral Office for employment. The Employer shall determine
the registrant’s ability and competence to satisfactorily perform
the work prior to on the job employment.” (This paragraph
goes on to indicate “Such determination shall not be the re-
sponsibility of the Union.”); that each district referral office
maintains its own separate list; that addendum 1 provides that
all registrants are to be dispatched in the order of registrant’s
date of registration as available for work, and in accordance
with their experience; that the dispatchers are the individuals
who determine who is to be referred and who make the referrals
under addendum 1; that the dispatchers review the work history
cards and the employment history of registrants to determine
their capabilities; that all of the dispatchers in the eight offices
report to Pauline Leitzell, who is the dispatch supervisor and
who is located in Local 150’s Countryside, Illinois office; that
as of February 2007, there was no separate pipeline referral list;
that the dispatchers referred members to the pipeline jobs from
the same list from which they made referrals under the building
agreement and heavy and highway agreement; and that Roddie
Thomason, who has been Respondent’s pipeline business rep-
resentative for 13.5 months, has his office in Countryside.
Leitzell testified that she has been the dispatch supervisor for
5 years; that it is her job to make sure that all of the district
offices of Local 150 are run the same; that she was a regular
dispatcher for 3 years and before that she was the office man-
ager for the apprenticeship office of Local 150; that she has
worked for Local 150 for 21 years; that she works in District 1
in Countryside, which is in the Chicago, Illinois area, and she
fills work orders for her area; that Local 150 dispatchers fill
work orders and send people to work; that addendum 1 are the
rules of dispatch; that when a contractor calls in and asks for an
operator of a specific piece of equipment, the dispatcher goes to
the first member on the out-of-work list whose workcard indi-
cates that the member can operate that equipment; that the fact
that the member can operate the involved piece of equipment
has to be on the member’s workcard before the dispatcher can
call that member; that a business agent has no role in dispatch-
ing members to work; that District 5 has fewer members on its
out-of-work list and it is not as busy as District 1; that there is
usually a prejob conference with a pipeline job; that the stew-
ards on a pipeline job have the right to call the union hall and
place an order for the contractor instead of having the contrac-
tor do it; that there is no other way she would take a request
from an employer for employees; and that the employer has to
call and place a work order.
Frank Studer, who has been a member of Local 150 for 20
years, testified that he is a journeyman and he went through the
apprenticeship program; that he was appointed a business rep-
resentative of Local 150 from 1994 until 2006; that as a busi-
ness representative he was involved in approximately 100 pipe-
line prejob conferences; that he is familiar with the referral
system under the national pipeline agreement which has two
facets to it in that either the union is a nondiscriminatory refer-
ral hall or the union keeps a pipeline list that contractors are
allowed to choose from; that in Local 150’s case, the Union has
a nondiscriminatory out-of-work list, a referral system that is
negotiated in the Union’s heavy and highway collective-
bargaining agreement and in the national pipeline agreement,
and dispatchers fall under that rule; that the referral system
under the heavy and highway agreement is the same as the
referral system under the national pipeline agreement, and ad-
dendum no. 1 applies to both; that employees in Local 150’s
jurisdiction cannot go out and find his own job in Local 150’s
jurisdiction; that under the national pipeline agreement under
Local 150’s jurisdiction a member who wants to work has to
sign up on the various out-of-work lists in the different districts
where work would be available and wait for the dispatcher to
call him; that according to the mainline pipeline agreement, if a
local has an exclusive hiring hall procedure that is negotiated
within its heavy and highway agreement, which in Local 150’s
case is addendum no. 1, then all dispatches after the company
hires its regular employees, are to come through that procedure;
that when he was a business representative covering pipeline
jobs, Thomason was the steward on many of those jobs; that in
2005, he had a conversation with Thomason outside the hall at
Local 150’s District 2; that at the time Thomason was working
under him as the steward on a small pipeline job; that Thoma-
son had come to the hall to place a work order for a side boom
operator that he needed the next day; that the next operator,
Mike Goodwin, was available but Thomason did not feel that
Goodwin was qualified to handle the side boom that he was
going to be sent out on; that he told Thomason that the dis-
patcher makes the call, the dispatcher said that Goodwin was
the next qualified guy, “He has got side boom on his card, Rod-
die. He is the next guy that is going to go” (Tr. 180); and that
. . . Roddie had said to me that the particular side boom that
Mike was going to run was going to need someone who was
able to work without counting on other side boom operators
to pick up his slack. He is not going to be between other guys
picking up a piece of pipe that required more than one. There
were valves involved that were very heavy, and close to ca-
pacity for that machine, and he felt it was over Mike’s ability.
I said to Roddie that “If Mike says he can do the work,
it is not for us to decide. The contractor is going to have
to make that call, Roddie.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
Roddie said that if Mike was any kind of a guy, he
would refuse the job, because he knows he is not qualified
to do it.
I then said to Roddie, . . . “Roddie, we are not building
an all-star team. If the guy says he can do the job, we
have to send him.”
At that point, Roddie produces a copy of the Pipeline
Agreement to me, and went over parts of the agreement
that cover areas of the country where locals do not have
exclusive hiring halls, where locals have to provide a list
of operators that are qualified to do work and the contrac-
tors are allowed to pick from that list. Roddie felt that that
was the system that we should be using here.
I told Roddie, “If you read a little further into the
agreement, it says in the agreement, that if you have an
excusive hiring hall, that prevails,” and Roddie said that he
didn’t believe that that should be the case.
I told Roddie, at that point, “I will go straight to Bill
Dugan [who was at the time and still is President of Local
150] and get an answer for you. I will go right to the top.”
The next day I called Bill’s office, and I asked Bill if
he had time for me to stop up and talk to him about . . . an
interpretation of the agreement.
Bill said I could stop up that afternoon. [Tr. 180 and
181.]
Studer further testified that he met with Dugan; that he told
Dugan about the question and Dugan, without hesitation, said,
“[W]e have never allowed contractors to pick their own people.
Addendum no. 1, the hiring hall, prevails on that.” (Tr. 182);
that in his presence Dugan, using a speaker phone so that he
could also hear what was being said, telephoned two Interna-
tional vice presidents who were also business managers of other
locals of the Operating Engineers; that the two vice presidents,
Gerald Ellis and Fred Durschek, told Dugan that they never
allowed the contractor to pick, their hiring hall prevails, the
contractor has to take the member in order off the list, and it is
up to the contractor to decide whether or not they are qualified
after the Union refers the member to the job; that Dugan then
told him that he had his answer not only from him but also from
the two other International vice presidents; that the next time he
talked to Thomason he told him what Dugan and the two Inter-
national vice presidents had said; and that he told Thomason
Roddie, I took it to Bill, and Bill says Addendum No.
1 rules, and our dispatches are going to come in order.
Whoever the dispatcher says is up, that is who you are go-
ing to get, and the contractor is going to have to make the
decision as to whether or not they are qualified. [Tr. 185.]
And Studer further testified that it is the job of the dispatcher in
the referral hall to decide who has the qualifications for the job
and should be sent out.
On cross-examination, Studer testified that it is not true, in
his experience, that even under addendum 1 the prejob confer-
ence can modify the hiring hall provisions, the actual taking of
men off of the list in rank order; and that he knows of no case
where in the prejob conference a signatory contractor or a busi-
ness agent is allowed to renegotiate the national pipeline
agreement. Subsequently, Studer testified that in the approxi-
mately 100 prejob conferences he participated in not once did
either the contractor or the business agent approach what was
going on in terms of the prejob conference being able to modify
addendum 1.
General Counsel’s Exhibit 15 is the out-of-work lists from
Respondent’s Utica office during the period January 5 through
February 9. On page 2 of the out-of-work list for January 26,
Richard Chiado is number 95, with a call-in date of
“12/13/2006” and David Waters is number 108, with a call-in
date of “12/22/2006.”
General Counsel’s Exhibit 10 is an “I.U.O.E. PIPELINE
PRE-JOB CONFERENCE REPORT” dated “1–12–07.” The
contractor named on the form is ML. The job location is
Pontiac, Illinois. The equipment checked off is backhoe and
truck crane for a total of “2.” The “Job to Start” date is “1–10–
07.” Under the “Remarks” section of the form the following is
handwritten: “O.Q. Qual. Stewart [sic] gets $50.00 a day truck
payroll and fuel, operators $40.00 and no fuel, Mechs [$]10.00
an hour truck pay fuel and maintenance.”7 (Emphasis added.)
Thomason signed the form for the Union. Regan testified that
he did not participate in this prejob conference; that this is the
prejob conference report which led to the referral of Dave Wa-
ters which is in question in this proceeding; that he saw this
report before in that all the prejob reports are filed in his office;
and that it is indicated “O.Q. Qual[ified]” in the “Remarks”
section of the report and “sometimes” (Tr. p. 60) the parties
indicate those items which are agreed upon with respect to the
job in question in the remarks portion of the report. Regan
testified that there is nothing on the prejob report about a dozer
operator.
Thomason testified that he became a pipeline business agent
for Local 150 about 14 months before he testified at the trial
herein; that before that he was a part-time instructor at Local
150’s training site since 2001 over the pipeline division; that he
taught side boom, which are pipe layers, backhoes, and angle
blade dozers; that he has worked in pipeline in about a total of
15-named States since 1969;8 that he served as a pipeline union
steward from 1989 to 2006, working part time as an instructor;
that a union steward on a pipeline project (a) attempts to get as
many of his fellow members out on the job as possible, as op-
posed to individuals from other locals, (b) makes sure that the
first operator sent out is the very best and will not be rejected
because this can increase the percentage of operators that Local
150 gets to dispatch, and (c) calls in work orders to have the
union refer out members; that nonunion contracting companies
are increasing their market share in the pipeline industry; that
the contractor can call in to the union hall and then make any-
one referred out to the job do a proficiency test on the equip-
ment involved before the contractor ever lets the member who
was referred out on the right-of-way; that he did the prejob on
the BP large storage Tank Farm project in Pontiac, it was sup-
posed to be a 24- or 25-month project, and it involved refur-
bishing the facility; that the general contractor on the job was

7 As noted below, “OQ Qual[ified]” is a course the Union offers at a
training site where the operator takes tests and is taught safety regula-
tions and different forms of safety, and methods of pipelining.
8 Thomason testified extensively about pipeline construction.
OPERATING ENGINEERS LOCAL 150 365
ML, which is a national pipeline contractor that he had worked
for before; that since the manifolds were inside the tank farm it
meant that product was going into the tank farm at mainline
pressure; that there was no metering stations outside or inside
the tank farm; that part of the refurbishing involves replacing
pipe, namely replacing all of the branch and lateral lines which
feed the tanks inside the tank farm itself, which is work cus-
tomarily done under the pipeline agreement; that if there was a
metering station outside of the tank farm itself, then what goes
on the going away side of the metering station comes under
distribution; that it would not come under building and trades
anyway, not taking up and relaying the pipe; that pre-jobbing
pipeline projects is part of his current responsibilities as busi-
ness agent; that as business agent he has attended at least 100
pipeline prejobs; that his objective at the pipeline prejob con-
ference is to get as many Local 150 members on the job as
possible; that in the winter of 2005–2006 ML did some work at
the involved tank farm and Dave Waters, who was working on
the project,9 would call him because he was not familiar with
the agreement; that he called Brian Borwig, who works out of
District 8 and who worked for ML before, asked him if he was
interested in being the steward at the tank farm, and Borwig
accepted; that General Counsel’s Exhibit 10 is the “1/12/07”
prejob under the national pipeline agreement which he signed
for the involved project; that Borwig and Local 150 boom truck
operator Craig Walker, who is considered a key man for ML
since he is never off their payroll, also attended the involved
prejob; that Gary Norris, who is ML’s general superintendent,
and Ron Reed, who is a company foreman under Norris, at-
tended the prejob; that “this is one of the very pre-jobs that I
didn’t go into decisions and clarifications and attach it to the
pre-job” (Tr. 312); that it was agreed at this prejob that Local
150 would supply 100 percent Local 150 members; that it was
proposed that there would be up to six operators within a week
and one half if the material came in; and that there was a short-
age of pipeline material in this country at the time.
On cross-examination, Thomason testified that, with respect
to his testimony that an objective of his is to get as many Local
150 members as he can on a job, under either the building
agreement or the heavy and highway agreement a business
agent wants to minimize the number of key men that an em-
ployer brings in with it; that he is not that familiar with adden-
dum no. 1 but he thought he read it; that, in his opinion adden-
dum no. 1 does not apply to pipelines but rather “the most ex-
perienced applies on pipeline jobs” (Tr. 340); that in 2005–
2006 it was Dick Waters, who is Dave Waters’ father, who
called him about the ML Pontiac tank farm project which had
been prejobbed under the building agreement;10 and that it was

9 Thomason testified that he thought the guy “was the steward, that
pre-jobbed it under the Building Agreement, and that wasn’t the stew-
ard. . . .” (Tr. 306.)
10 Tr. 344. That being the case, it is not clear why, in response to
Respondent’s attorney’s questions on direct, Thomason gave the fol-
lowing testimony:
Q. Who is he?
A. Dave Waters
Q. Dave was at the Minnesota Limited project before?
A. Yeah.
totally wrong to prejob the 2005–2006 ML Pontiac tank farm
project under the building agreement.
On re-cross, Thomason testified that he only put backhoe
and truck crane on the prejob conference report, General Coun-
sel’s Exhibit 10, because no one knew the situation with the
material and the project was shut down three times because
they did not have the material.
In response to Respondent’s counsel’s questions, Regan tes-
tified that the objective of the Union in a prejob conference on
a pipeline job is to secure a percentage higher than the 50–50
that the contract provides for; and that the pipeline employer is
allowed to cherry-pick or select whatever members they choose
from the out-of-work list.
General Counsel’s Exhibit 9 is a work order. As here perti-
nent, the printed portion of the form reads as follows:
Date__________________ Time__________ By___________
Contractor______________________________________________
Location of Job__________________________________________
What is Wanted_________
City__________________________
Equipment_____________________
Time:________
Sent__________ By:__________
When Wanted__________
Call From_____________
Phone No._____________
As here pertinent, the following handwriting appears on the
first line of the form: “1/24/07,” “2:30,” and “SB.” “Minnesota
Ltd” is written on the second line of the form. “Pontiac (Tank
Farm)–B & B State Rt . . . 23” is written on the third line of the
form. “Brian Borwig–Steward 150–641/990-6086” and
“Pontiac” is written on the fourth line of the form. On the lines
for “What is Wanted” the following is written: “Experienced
High Tread 5 Dozer–OQ, clean up–Right away [sic], Back Fill,
Shade Pipe Final Finish.”11 The “OQ” is crossed out and the
following is written next to it: “per Roddie does not need OQ.”
“Mon 7:00 2/5” is written on the “When Wanted” line and
“Roddie Thomason” is written on the “Call From” line. “2/1
Dave Waters per Roddie Thomason” and “SB” are written in
the “Sent” line. Regan testified that he probably saw the docu-
ment before he testified at the trial herein because it goes
through his office but he could not say for certain; and that he
did not believe that he saw the document by the time he met
with Richard Chiado, his father Ronald Chiado, Randy Hill,
and the others on February 28, which meeting is described be-
low.
Sheila Brewer, who was a dispatcher at Local 150’s District
5 referral hall in Utica for 21 years until August 23, testified
that she ran the whole office at District 5, including dispatching
members to jobs; that she reported to Business Agents Randy
Hill, Terry Waldron, and Kevin Trolio; that when she served as
dispatcher the contractors would call the hall when they needed
an operating engineer; that she would go down the out-of-work

Q. Working for—when was this, now?
A. In 2006, the winter of 2005–2006. [Tr. 306.]
11 Thomason testified that shading is putting enough backfill on top
of the pipe so that if there are any rocks in the ditch dirt which goes on
top of the backfill, when it all is compacted the rocks or other debris
will not make contact with the pipe.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366
list looking at the members skills and qualifications and dis-
patch members to the jobs; that she is familiar with the building
agreement, the heavy and highway agreement, and addendum 1
which is the procedures the dispatchers follow as they go down
the out-of-work list and dispatch members; that the building
agreement and the heavy and highway agreement both refer to
addendum 1; that when she made referrals under the national
pipeline agreement she followed addendum 1 in making those
referrals; that for the members to obtain work under any of
these three agreements, the members had to call in or stop in at
the referral hall and have their name placed on the out-of-work
list according to their call in date and time; that the same pro-
cedure was followed for all three of these agreements, includ-
ing the national pipeline agreement; that the referral list was
posted in the referral hall in the reception area so that the mem-
bers could review it; that Karen Milano worked with her as a
dispatcher for about 1 year; that when someone calls in to regis-
ter for referral the dispatcher records the name, date and time of
the call on the out-of-work register; that the register is updated
on the computer daily and a printed copy is posted weekly; that
when she needs to make a referral she starts at the lowest num-
ber and looks to see whether they have the experience and
qualifications; that in the District 5 office the dispatcher actu-
ally makes the referral; that she is the one who makes the deci-
sion whether or not the individual is qualified, after looking at
the member’s workcards and sometimes calling and asking the
member about his skills; that, as here pertinent, she always
went to the main list first, which list contained the names of
members who had their card for 4 or more years; that she
would go according to addendum 1; that when she made the
decision on who to send to the job she would telephone the
member and tell the member to go to the job; that General
Counsel’s Exhibit 15 are out-of-work lists of District 5; that, as
noted above, on the out-of-work list dated January 26, Richard
Chiado is number 95 and David Waters is number 108; that the
name of David Waters is not on the out-of-work list dated Feb-
ruary 9 because he was dispatched out; that all of the handwrit-
ing on General Counsel’s Exhibit 9, the January 24 work order
described above, is hers, and the “SB” at the top right-hand
corner are her initials; that she became aware on January 24
that ML had a job in District 5 at a tank farm in Pontiac when
Thomason telephoned; that when Thomason first called she
was not in the office and he spoke with Debbie Cargill, who
was a 1-week sub (Cargill normally works as a dispatcher in
District 2 in Joliet, Illinois) because Molina was on vacation;
that when she returned from lunch Debbie told her that Thoma-
son called; that Thomason called later that day at 2:30 p.m. and
she spoke with him at that time; and that
He [Thomason] called regarding a job in Pontiac, and
immediately mentioned Dave Waters’ name, and I told
him that Dave was, at that time, was 109 on our list, and
he did not have pipeline OQ.
Roddie [Thomason] just kept insisting that no one else
could perform this work.
. . . .
I just said, I am supposed to follow my out-of-work
list, and I even gave him the names, because he is familiar
with all of the pipeliners.
The job wasn’t supposed to start for a couple of weeks,
and then, I read the names. I read Stan Shevokas, Jim
Shannon, Richard Chiado . . . I started naming all of my
names that were ahead of Dave Waters on the out-of-work
list.
. . . .
I just explained to him that there were several mem-
bers that had pipeline OQ ahead of Dave Waters, on the
out of work list, and he said that the job was two weeks
away, and that he insisted that he needed Dave Waters,
that he had the skills that he needed for this particular job,
and that he would call me back in two weeks. [Tr. 202–
207.]
Brewer further testified that she got the names she gave Tho-
mason by going down her out-of-work list, seeing who had
pipeline OQ and dozer work; that when she came back from
lunch on January 24 Debbie told her that Thomason had called,
what Thomason said regarding what he wanted, and Debbie
told Thomason that he would have to call back when Shelia
Brewer was there; that Debbie did not write a work order when
she spoke with Thomason; that as indicated by the time on the
work order, “2:30,” she, Brewer, wrote the work order when
Thomason called back; that she wrote “OQ” on the work order
because she thought that every pipeline job required the opera-
tor to have OQ, because she thought why do we have the train-
ing, that was the whole point; that she crossed “OQ” out when
Thomason told her that he did not need it; that as indicated on
the work order, she sent Dave Waters to the tank farm job in
Pontiac on “2/1” and she initialed this; that when Thomason
called her back on about February 1, they repeated the January
24 conversation and Thomason also told her that if anybody
had any questions, because she was still concerned about going
that far down the list, they should speak with him; that this is
why she put the “per Roddie Thomason” on the work order;
that she knew that Dave Waters was not OQ because she asked
him and he told her that he was scheduled to take OQ on Feb-
ruary 3, so she felt a little bit better; that Dave Waters did not
take pipeline OQ on February 3; that in giving the names of
members to Thomason she reviewed the out-of-work list,
workcards, and the employment history of the various people
who signed the out-of-work list and were ahead of Dave Wa-
ters; that Steve Joiner was number 44 on the January 26 out-of-
work list, Jim Cavallini was number 64, Stanley Shevokas was
number 84, and Richard Chiado was number 95; that she did
not type “ Fin–Pipeline” under the category “DOZER” on the
last page of David Waters’ workcard (GC Exh. 11), but rather
Debbie put that on the card the week she was there “[a]fter all
these calls with . . . Thomason [on January 24]” (Tr. 217); that
she saw Dave Waters’ workcard as of January 24, and “Fin–
Pipeline” under “DOZER” was typed on the last page; that she
did not write “Right Away, cleanup, Shading” on the last page
of Dave Waters’ card and she did not know whose handwriting
it is and when this was written on the card, and she does not put
qualifications down in the “CLASSIFICATIONS” area of the
OPERATING ENGINEERS LOCAL 150 367
card where this handwriting is found; that the “HAZMAT 3-
1404” at the top of the last of Dave Waters’ card looks like the
handwriting of Molina; and that with respect to the entry
“PIPELINE OPERATOR QUAL., 12/5/,” the entry is not com-
plete but at the time of the involved referral she knew that Dave
Waters’ pipeline OQ had expired.12
Thomason testified that sometime after the involved prejob
conference the steward at the Pontiac tank farm job, Borwig,
called him and asked him if he knew a good pipeline dozer
operator in District 5 that knew how to topsoil, right-of-way,
backfill, and clean up; that he gave Borwig two names, Tom
Walgenbach and Dave Waters, both of whom he considered to
be do-all dozer operators; that he told Borwig that he needed
somebody who knows how to shade the pipe so that there
would not be a lot of debris on it; that he called District 5 in
Utica from District 2 in Joliet and spoke with Debbie Cargill,
who at the time was filling in for Karen Molina who was on
vacation; that Debbie Cargill is a dispatcher from District 2;
and that
A. I explained to her what Brian needed and she
started going down the list—
Q. What list?
A. Whatever list District 5 has.
Q. The District 5 out-of-work list?
A. Yeah.
Q. And did she give you names of operators?
A. Yes.
Q. How many operators did she identify for you?
A. Three.
Q. Do you remember who they were?
A. Yes, because Jim Shannon was the first name that
she called, and I said, “Well, that can’t be, because he is in
West Monroe, Louisiana working for Sheehan Pipeline.
He has been there six months, and he still is,” which they
called, and he was and the second—
Q. Who came next?
A. Stanley Shevokas, or something like that.[13]
. . . .
Q. So, was Mr. Shevokas available?
A. No, the way I understood it, he was on vacation.
Q. Okay, and so who came next?
A. Dave Waters.
Q. Did he fill the experience requests of Mr. Borwig,
on behalf of Minnesota Limited?
A. Yes, yes, he did.
Q. And what happened next?
. . . .
A. . . . [the dozer] was supposed to come in [to the
tank farm], but it was delayed.

12 P. 2 of GC Exh. 17 shows that Dave Waters received his OQ pipe-
line qualification on “12-5-02.” The parties stipulated that the OQ
qualification is good for 3 years.
13 J. Michael Shannon is number 101 on the January 26 out-of-work
list and Shevokas is number 84 on that list. Michael Shannon is num-
ber 108 on the January 19 out-of-work list and Shevokas is number 90
on that list.
Q. Okay, so how did that affect the dispatch of Mr.
Waters to the project?
A. He had to wait four or five days to come . . . out [to
the job]. [Tr. 318–320.]
Regarding Richard Chiado, Thomason testified that he
worked with him in 1996 or 1997 in District 7 of Local 150 in
Maryville, Indiana, on a Coolset pipeline project; that at the
time he was running a side boom for tie-ins and Richard Chiado
was oiling on a backhoe; that he did not see Richard Chiado
operate any equipment on that job; that he has worked with
Richard Chiado on a total of four or five jobs; that in 2000, he
was a steward on the Vector job for Sheehan and he called
Richard Chiado out as an oiler on behalf of the contractor; that
he next worked with Richard Chiado in 2002, on the Guardian
project for contractor H. C. Price when he, Thomason, was a
steward and Richard Chiado was originally assigned to operate
a hoe pulling the backfill and topsoil out of the fields; that al-
legedly he received complaint from the foreman regarding
Richard Chiado’s performance (The foreman who allegedly
complained was not called as a witness by the Respondent.) and
he moved Richard Chiado to another position on the job; that
subsequently Richard Chiado quit the Guardian project; that he
thought that he succeeded in getting Richard Chiado a layoff on
the Guardian project so that he could draw unemployment; that
when he went about securing a dozer operator for the ML tank
farm project in early 2007 he did not consider Richard Chiado
and the dispatcher did not offer Richard Chiado as a candidate,
his name never came up; that based in his experience with
Richard Chiado, he did not believe that Richard Chiado had the
skills to run a finish dozer on the ML pipeline project, espe-
cially with respect to right-of-way or clean up because Richard
Chiado “just hadn’t been around it enough. It is something you
have got to be around several years before you can do it by
yourself” (Tr. 329); that based on his 30 years of experience, he
believed that it takes an otherwise skilled operator a “good
eight to ten years” (Id.) to become a good pipeline finish dozer
operator and, to his knowledge, Richard Chiado did not have
such experience (Thomason then conceded that, to his knowl-
edge, Dave Waters also did not have such experience. Subse-
quently, it appears that Thomason changed his answer to yes,
Dave Waters did have such experience.); that, in his opinion,
Dave Waters was qualified for the finish dozer operator job at
the ML tank farm project; that even a highly skilled non-
pipeline dozer operator cannot operate a cleanup dozer on a
pipeline because on a pipeline the only stakes are on each side
of the right-of-way; and that there would be a risk involved in
having someone who is not a cleanup trained, pipeline dozer
operator “[d]epending on if you are working over or around a
bunch or existing loaded gas lines. . . .” (Tr. 336.)
On cross-examination, Thomason testified that the Pontiac
tank farm job involved removing old pipe; that when the old
pipe is removed it is no longer pressurized; that you could not
remove a live line; that on the H. C. Price Guardian job in 2002
when Richard Chiado came to the job he told Richard Chiado
that he was going to operate an excavator; that he did not think
that Richard Chiado told him that he had never operated an
excavator on a pipeline job before; that he had never seen Rich-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD368
ard Chiado operate an excavator on a pipeline job before; that
the complaints were about Richard Chiado’s operation of the
excavator and not about any operation of a dozer on that job;
that he did not remember if Richard Chiado had been sent out
to operate a dozer on that job; that he could not remember if on
that job Richard Chiado asked for a layoff from the H. C. Price
job; that he does not know how many years Dave Waters has
got on a dozer; that he looked at Dave Waters’ work history
card on February 13; that the card shows that Dave Waters on
“5/17/2000” worked “Dozer with Murphy Brothers”; that Dave
Waters worked less than 2 months on that job; that while the
cards indicate that Dave Waters worked as a dozer operator for
T. J. Lambrecht—a road and heavy highway contractor, they do
not show that Dave Waters worked as a dozer operator on any
other pipeline job other than the aforementioned May 17, 2000
Murphy Brothers job; that Debbie Cargill is still employed by
Local 150 as a dispatcher in District 2 in Joliet; that Debbie
Cargill has been a dispatcher since the 1990s; that other than
the one occasion when Debbie Cargill was substituting as a
dispatcher in the District 5 Utica office, he had never known
her to work at the District 5 office before; that he did not have
conversations with Shelia Brewer the same day he spoke with
Debbie Cargill at the District 5 office; and that he did have
conversations with Brewer about a week later.
On re-direct, Thomason testified that Dave Waters card,
General Counsel’s Exhibit 11, also has an entry dated “7/10/02
Dist 2 Price, Rockdale Dozer” and Price is a pipeline contrac-
tor.14
And on re-cross, Thomason testified that while the entry on
Dave Waters’ workcard shows “11/30/01 Dist 3 U.S. Pipe–
oiler,” Dave Waters was not an oiler very long on this job, and
after a couple of days Dave Waters went on cleanup dozer. The
next entry on Dave Waters’ card is “4/15/02 . . . RI.” Accord-
ing to the testimony of Leitzell, “RI means reported in, to put
his name on the list.” (Tr. 356.)
On rebuttal, Richard Chiado testified that District 5 Business
Agent Terry Waldron referred him to the aforementioned H. C.
Price job telling Chiado that he was dispatched out to operate a
dozer on final clean up; that when he got to the job he reported
to the steward, Thomason; that Thomason put him on an exca-
vator even though he told Thomason that up to that point in
time he, Chiado, did not have any experience running an exca-
vator; that Thomason said, “That’s okay, we will take care of
you, and everything will be all right. We will put you in an
easy spot” (Tr. 387); that he was never made aware of any
complaint by H. C. Price about his operation of the excavator;
that he left that job because it was over 100 miles from his
home, he had worked on the job for about 4 months, he was
raising his daughter on his own, and after 4 months of living
away from his house he felt he needed to get home; and that he
asked Thomason if he could be laid off, if at all possible, and
that is what took place.
On cross-examination, Brewer testified that Thomason called
on February 1 to confirm Dave Waters referral on February 5 to
the Pontiac tank farm job; that in February 2007, Business

14 Some other entries were referenced but Thomason either testified
that the entry involved oiling or the entry indicated oiling.
Agents Hill and Waldron were no longer business agents, and
Business Agent Trolio was no longer working out of District 5;
that it always used to be that the business agent was her imme-
diate supervisor; that she is supposed to report to Leitzell who
is the head dispatcher; that if a member is referred to a job, the
contractor may reject that member since the contractor has the
final say on who is qualified; that as described in addendum 1,
list 1 is the list of journeymen members who have been opera-
tors for more than 4 years, list 2 is the list of members who
have been operators for more than 4 years but they are out of
district members, list 3 is the members who have been opera-
tors for less than 4 years, list 4 is out of district under 4 years,
list 5 are the operators with permits, and list 6 are the appren-
tices; and that Thomason argued with her that only David Wa-
ters could do the work and he kept insisting that David Waters
was the most qualified.
Richard Chiado testified that he first saw General Counsel’s
Exhibit 9, which is the above-described work order called in by
Thomason on January 24, which was taken by Brewer, when he
found out he was passed on the out-of-work list in February
2007; that backfill is burying the pipe; that if shading is re-
quired, the operator puts a foot of rock free material on top of
the pipe to pad against the rocks touching the pipe before filling
the ditch with any kind of dirt, except black dirt; that clean up
the right-of-way is putting the ground back to the way it was
before the ditch was originally dug; that final finish is the same
thing as clean up the right-of-way; that finish work in the heavy
and highway trade is much harder to do than it is in pipeline
because with the former the operator has to cut the ground to
within a tenth of an inch, and there are grades all over the
ground on grade stakes and the operator has to be able to match
those grades and cut it accordingly; that to do final finish in the
pipeline industry the operator just matches the two sides of the
right-of-way together in the field and make it look natural like
it used to look, which is pretty simple; that he is familiar with
the Pontiac tank farm jobsite in that he has been by it many
times; that there are tanks, valves, pipes sticking out of the
ground, and beams around the entire tank farm; that he has
operated a dozer on beams along a creek crossing and slopes
similar to the involved beams; that he has operated an angle
dozer on pipeline work and in the heavy and highway industry;
that he has done finish work under the heavy and highway
agreement, and in his opinion such finish work is much more
difficult than pipeline finish work because with the heavy and
highway finish work the operator is cutting to a tenth of a foot
whereas on the pipeline the operator is just matching two sides
of a field together, making sure that there are no low spots; that
he has worked on pipeline jobs with Dave Waters, who also
started out as an oiler and then became a dozer operator; and
that he has worked with Thomason on pipeline jobs, namely, on
a Coolset job where Thomason was just a normal operator on
the job, on a Sheehan job where Thomason was the steward, on
an H. C. Price pipeline where Thomason was a steward, and on
the Murphy Brothers pipeline where Thomason was just an
operator.
When called by counsel for the General Counsel, Regan tes-
tified that in February 2007, ML, which has been a signatory to
the pipeline agreement for over 30 years, was working on a
OPERATING ENGINEERS LOCAL 150 369
pipeline job within the confines of a tank farm in Pontiac, Illi-
nois; that Thomason did the prejob conference on behalf of
Local 150 on this job; that member Dave Waters was referred
to this job by Local 150 to operate a bulldozer for ML; that
subsequently he became aware that another Local 150 member,
Richard Chiado, claimed that he was ahead of Waters on the
referral list, he was qualified to do the job, and he—if not oth-
ers ahead of him on the list—should have been sent out to that
job; that Brewer and Milano were the dispatchers at the District
5 referral office in Utica; and that Pontiac is located within
District 5.
As noted above, General Counsel’s Exhibit 11 is David Wa-
ter’s work history card. The last two entries on the fourth page
of the exhibit read as follows: “2/13/07 [in the ‘DATE’ col-
umn], 2:00 [in the ‘TIME’ column], [and] Op removed from
job per P.L. Back on [in the ‘REMARKS’ column]” and
“2/14/07, 3:26, Cancel CI per R.T. opr still @ MN,” respec-
tively.
With respect to their qualifications on a workcard, Regan
testified that the individual member can put down whatever he
wants on the card; that on the last page of David Waters card,
General Counsel’s Exhibit 11, Dozer is checked and “Fin–
Pipeline” is typed above the word; that to him this means that
Waters is a finished pipeline dozer operator; that on the same
page under “CLASSIFICATIONS” 150 is typed and “Right of
way, cleanup Shading” is handwritten; and that this handwritten
entry indicates that Waters does the finished right-of-way work
with a dozer.
Richard Chiado, who has been a member of Local 150 for
approximately 14 years, testified that he is a member in good
standing; that at all times in 2007, his dues and initiation fees
have been paid up; that he has been a journeyman for about 10
years;15 that he can operate a bulldozer, excavator, track-hoe,
loader, front-end loaders, combination hoes, belt placers, con-
crete pavers, and a grease truck; that he has worked on 8 to 10
pipeline jobs under the pipeline agreement, which jobs involved
pressurized gas lines; that “Operator Qualification” (OQ), as
noted above, is a course the Union offers at a training site
where the operator takes tests and is taught safety regulations
and different forms of safety, and methods of pipelining; that
General Counsel’s Exhibit 7 is his card which shows that he has
OQ and some other qualifications; that he received the card in
2006, when he took the course and it expires on “2/25/2009”;
that Thomason, who was a steward on a pipeline at the time,
was one of the training site instructors for the OQ class; that
Thomason and the other instructors told him that he would not
be allowed on pipelines unless he had the OQ class; that his
home referral office in Local 150 is District 5 but he receives
less than 50 percent of his referrals from this District; that he
also receives referrals from Local 150’s Districts 1, 2, 4, and 7;
that he is registered on list 1, the journeymen’s list, at the Dis-
trict 5 office; that he has been signing the journeyman’s list for
about 13 years; that the dispatcher adds the name of someone

15 If his permit time was considered as journeyman time, it would be
14 years. Richard Chiado testified that he was never an apprentice.
Instead he put 2 to 3 thousand hours in on a permit and then became
eligible for his card.
who contacts the Utica office to register for referral; that the
names on the out-of-work list are numbered and members are
referred out to jobs in the order that they appear on the list if
they are qualified for the job; that dispatchers Brewer and Mi-
lano, who work in Local 150’s District 5 office in Utica, have
personally contacted him and sent him out to work; that when
he is laid off from a job he telephones the union hall and tells
the dispatcher that he has been laid off and his name is placed
on the bottom of the out-of-work list; that if the job does not
last for more than 10 days, he does not lose his seniority or his
place on the out-of-work list; and that he is not aware of any
differences in the referral procedure under the building agree-
ment, the heavy and highway agreement, and the pipeline
agreement.
With respect to his work history, Richard Chiado testified
that General Counsel’s Exhibits 8(a) and (b) are his workcard
and work history, respectively; that the Utica dispatchers have
access to these documents and they know what jobs a member
can handle; that he has done pipeline work for Murphy Broth-
ers, Coolset, Sheehan, Brandenburg Drainage, H. C. Price, and
ARB; that, as indicated in General Counsel’s Exhibit 8(a), on
“12/3/96” he was dispatched to Coolset as an oiler; that this
was his first pipeline job (natural gas), it lasted 3 to 4 months,
and he also worked as a excavator on the job; that he was dis-
patched on “11/10/98” by District 2 to ARB (the workcard
entry refers to “ARBY”), it involved a high pressure pipeline,
the job lasted less than a month, and he was an oiler and ran a
crane and a directional bore for a little while on this job; that on
“7/2/99” he was dispatched to Murphy Brothers to work as a
mechanic (grease truck) on a big pipeline job which lasted 4 or
5 months; that on “10/11/99” (Actually the last digit in the en-
try is “5” but it is obviously a mistake in that the entry was
made between “10/11/99” and “12/6/99.”) he was dispatched to
Brandenburg Drainage for a couple of months to run a dozer
final finishing the farmer’s fields on a repair job where the dirt
had settled around a pipeline and tiles had been broken; that on
“12/13/99” he was dispatched to Murphy Brothers to work on
the same pipeline he had worked on earlier in the year, he was
called back as an oiler, and he ended up, after oiling for a week,
running a dozer for about a month clearing the right-of-way for
some creek crossings and some road bores, backfilling the
ditch, and putting the right-of-way back for the creek crossing
and road bore; that on “5/1/00” he was dispatched to Murphy
Brothers for a couple of months to operate a dozer clearing
right-of-way, backfilling the ditch, and taking piles of black dirt
and putting the black dirt on the field to restore it to its original
condition; that on “8/22/02” he was dispatched to H. C. Price to
be a dozer operator, Thomason, who was the steward on the
job, had him running a hoe on final clean up for 4 or 5 months;
and that, as set forth in General Counsel’s Exhibit 8(b) on
“7/3/2000” he was dispatched to Sheehan/Monee as an oiler on
the Vector Pipeline job, he oiled a crane, and the job did not
last too long (He took another job.) because he was too far
away from home.
On cross-examination, Richard Chiado testified that the next
entry on his workcard after “12/3/96 Dpd. Dist.7, Coolset,
Oiler” is “1/16/97 . . . CI”; that he could not recall if he was
oiling for Coolset for maybe 6 weeks; that with respect to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD370
“7/2/99 . . . Dpd Murphy Grease Trk Princeton” entry on his
workcard, he was on and off that Alliance pipeline job for
Murphy Brothers and he, at that time, worked for Murphy
Brothers until September 16, 1999; that with respect to the
“11/10/98 . . . Dist. 2, Arby” entry, he next called in to the un-
ion on “11/30/98” so he worked that job for 20 days; that he
was dispatched again to Murphy Brothers for the Alliance Pipe-
line on “12/13/99”; that the next entry on his workcard shows
that he called into the Union on “1/7/00” which means that this
time he worked for 3 weeks on the Alliance Pipeline; that from
“5/1/00” to “7/8/00” he worked for Murphy Brothers stripping
and cleaning up the right-of-way; that he operated a D-5 dozer
on his “10/11/99” dispatch to Brandenburg in Hillsdale and the
job involved working under the pipeline agreement fixing bro-
ken field drain tiles and doing finishing work; that the
“8/22/02” H. C. Price job, where he operated a backhoe for 4
months, was the last pipeline job he worked on; that on jobs
after this he operated different kinds of equipment, including
dozers, but none of it was pipeline work; that he went to the
training site to take the OQ class, he took a written test, he took
practical tests in the field, including spotting defects in pipe and
the way a ditch looked, but he did not do practical tests on
equipment; that on the “OPERATOR QUALIFICATION
TRAINING VERIFICATION” page of Respondent’s Exhibit 1,
which is the documentation for his OQ class, where he indi-
cates that he has 10-years experience in natural gas and other
gas he meant that he worked on and off over a 10-year period;
that he did not have 10-years transmission mainline experience;
that a member gets to put on his workcard what equipment he
can operate proficiently; that “12/13/07 . . . mbr in to upgrade
card–Fin Dozer” appears on the first page of General Counsel’s
Exhibit 8(a); that on February 13, he went to District 5’s union
hall and added finish dozer to his card; that on February 27, he
had his workcard indicate, with respect to all makes of back-
hoe, that he did all rough work and no pipeline work; that while
Dave Waters is a very good dozer operator, they had equal
experience; that he could not say whether Waters was a better
finish dozer operator than he was since he had not worked with
him for a while; that the steward on a pipeline job is the one
who basically calls in for operators; that on a pipeline job there
could be up to 12 separate crews and the steward can move
people from one crew to another; that on the H. C. Price job
Thomason was the steward; and that on the H. C. Price job he
was switched from one final crew to a different final crew, and
then he was switched to testing at the end so that he could stay
on the job until the end.
On re-direct, Richard Chaido testified that he operated a fin-
ish dozer for T. J. Lambrect for a good solid 4 years doing road
construction; that he operated a D-6 LGP wide-path dozer for
this company doing final finish grade on landfill cells; that a D-
6 LGP wide-path dozer is a low ground pressure dozer that is
used for doing finish work most of the time; that he has also
finished roads, house pads, and bridge cones but none of that
was under the pipeline agreement; and that he has quite a bit of
experience with dozer finishing.
Brewer testified that she knew from Richard Chiado’s work-
card, General Counsel’s Exhibit 8(a), that he had worked pipe-
lines before; that Coolset, ARB, Murphy Brothers, Branden-
burg, Sheehan, and H. G. Price are pipeline contractors; that
since District 5 is a smaller District she got to know the mem-
bers’ skills; that she knew from Richard Chiado’s work history
that prior to February 2007, he operated a dozer on a pipeline
job; that, in her opinion, it showed that he was qualified to do
the pipeline work requested by ML; and that it was the same
with Robert Joiner, James Cavallini, and Stanley Shevokas.
On cross-examination, Brewer testified that on the first page
of Richard Chiado’s workcard, General Counsel’s Exhibit 8(a),
she wrote “2-13-07 Finish no GPS” after “DOZER” and she
wrote “2/13/07, 12:00, mbr in to upgrade card–added Fin
Dozer”; that she knew that Richard Chiado could run a finish
dozer before these entries were made on his workcard; that she
would have asked Richard Chiado if he could run a finish dozer
on pipeline; that she also looks at the members work history
and Richard Chiado was dispatched on a dozer to Murphy
Brothers, which is a pipeline company; that she would just
assume that Richard Chiado has run pipeline on a dozer, the
member goes out and performs the job, and if he does not make
it, he is let go; that she would ask the member if he ran a finish
dozer on a pipeline and she would take the member at his word;
that she knew that Richard Chiado had run a finish dozer and
she would have asked him if he ran a finish dozer on a pipeline;
that nowhere on Richard Chiado’s workcard is it indicated that
he operated (a) a finish dozer on pipeline projects, (b) a dozer
on the right-of-way of a pipeline project, or (c) a dozer shading
pipe on a pipeline project; and that on January 24, based on the
information on Dave Waters’ workcard (GC Exh. 11), David
Waters qualified for dispatch to the ML Pontiac work project as
the work order was written in January 24.
On redirect, Brewer testified that she knew that Richard
Chiado had done finish dozer work on nonpipeline jobs.
Richard Chiado testified that on February 12, his father,
Ronald Chiado, who was a business agent for Local 150 for
about 20 years before he retired in 2002, telephoned him and
told him that he had been passed over on the out-of-work list by
Dave Waters for a job in Pontiac at a tank farm for ML; that his
father told him that he was number 95 on the list and Waters
was number 109; that he then telephoned District 5 union hall
and asked Brewer why he was passed over for this job on the
out-of-work list; that Brewer told him that she had nothing to
do with it and he should contact the business agent about it; that
he spoke with Business Agent Joe Steichen who told him that
he did not know why he had been passed over, he did not blame
him for being unhappy about being passed over on the out-of-
work list, but it was not his department or his call and he should
call Thomason; that Brewer told him that she had talked to
Thomason, the pipeline business agent, and told him that there
were other people on the list before the man who was dis-
patched, Dave Waters, and Brewer told him that Thomason said
that “he didn’t care, and that is who he wanted to send out to
the job” (Tr. 102); that he telephoned Thomason and left a mes-
sage; that later that same day he went to District 5 union hall
with his father and looked at the list himself; that he was 95th
on the list and David Waters was 109 on the list; that the dis-
patchers then told him that they told Thomason, who requested
Waters, that there were other people on the out-of-work list
who were eligible for this job and Thomason said, “[H]e didn’t
OPERATING ENGINEERS LOCAL 150 371
care and he wanted to send this man” (Tr. 104); that on page 2
of the out-of-work list dated January 26, General Counsel’s
Exhibit 15, his name is 95th and Dave Waters name is 108th;
that Thomason returned his telephone call later that day; that he
told Thomason that he was very unhappy about being passed
over on the list; that Thomason told him that he was not quali-
fied for the job; that he told Thomason that he was qualified for
the job, he had OQ training, and an operator is not supposed to
be allowed out on a job unless the operator has it; and that he
told Thomason that he planned on doing something about it and
Thomason said, “I was fucking with the wrong cat, . . . I wasn’t
going to see very much pipeline work anymore . . . [and] he
was going to make a fool out of me” (Tr. p. 106).
On cross-examination, Richard Chiado testified that in Feb-
ruary 2007, Steichen had not been a business agent for very
long and he did not have any pipeline experience.
Ronald Chiado testified that on February 13, Thomason tele-
phoned him at home; that he had not telephoned Thomason
first; that Thomason said that he did not consider his son Rich-
ard qualified to run the dozer on the pipeline; that he argued
with Thomason over that, telling Thomason that over the last 4
years Richard had been operating a finishing dozer for T. J.
Lambrect, a road and heavy highway contractor, and that Rich-
ard was qualified to do the job; and that
[Thomason] said he saved my boy’s ass on the one job
that he had, as an operator, several times, and I told him
that nobody had to save his ass on the Lambrect job, run-
ning [a] dozer, and that I considered him qualified to run
[a] backfill dozer on that project.
He then said, if I didn’t back off, I didn’t know what
kind of cat I was . . . fucking with, but if I didn’t back off,
my boy would never see another pipeline. He also called
me a burned out Business Agent, and . . . [then] I hung up
on him. [Tr. 166 and 167.]
Thomason testified that he got an anonymous phone call and
he was given a phone number to call Richard Chiado so he
called the number and ended up speaking with Business Agent
Randy Hill; that Hill gave him Richard Chiado’s telephone
number; that when he telephoned that number he got Ronald
Chiado; that Ronald Chiado said, “Why are calling me? You
need to be talking to my boy. My boy is a lot better dozer hand
than Dave Waters.” (Tr. 331); that Ronald Chiado gave him
Richard Chiado’s telephone number; and that he did not tell
Ronald Chiado that Richard Chiado would not work pipeline
again.
Thomason testified that after getting Richard Chiado’s tele-
phone number from Ronald Chiado, he telephoned Richard
Chiado; that Richard Chiado said you jumped me on the out-of-
work list; that he then said
“Richard, your name never came up. There were only
three names called to me. One guy was working for Shee-
han Pipeline, one guy was on vacation, and Dave Waters,”
I had had him on right-of-way dozers, etc., all the from
[sic] front to back, and I said “[y]our name never came
up,” and it didn’t.
. . . .
. . . Well, I don’t think he believed me. I told him to
call Debbie, because Debbie is the one who placed the or-
der. She is the one that was looking down the list when I
called to place the order. [Tr. 332.]
Thomason further testified that he never told Richard Chiado
that he would not work in the pipeline industry again; and that
he never told anyone that Richard Chiado would not work in
pipeline again.
Ronald Chiado testified that he worked for 40 years as a
journeyman out of Local 150 and he was a business representa-
tive for this Union from 1986 to 2002; that when he last worked
as a business representative his office was at District 5 in Utica;
that Brewer was a dispatcher in District 5 since 1986, until she
was laid off or fired recently; that Molano had worked as a
dispatcher in District 5 about 5 months in February 2007; that
on February 12 he went to the Local 150 District union hall
with Randy Hill, who is an ex-business agent; that when he
looked at the out-of-work referral list which was posted in the
lobby, he noted that his son Richard Chiado was number 95 on
the list and David Waters was 109; that Randy Hill had told
him that Dave Waters said that he had been sent to the Pontiac
tank farm as a dozer operator; that he asked Brewer why she
sent Waters ahead of his son, as well as other operators on the
out-of-work list that were qualified, and she said that she would
have sent someone else but, “Thomason told her that she must
send Dave Waters. She questioned the fact that Dave Waters
was not OQ qualified, which is operator qualified, and . . .
[Thomason] said ‘It didn’t matter. OQ was not necessary’ and
that he was the Business Agent now and she must send Dave
Waters” (Tr. 165); that Brewer told him that she told Thomason
that she thought there were other people on the out-of-work
who should be sent out first; that General Counsel’s Exhibit 9 is
the work order Brewer showed him concerning Waters being
sent out to the Pontiac tank farm job; that he requested a copy
of the work order and Brewer gave it to him; that after he
looked at the work order he asked Brewer about the fact that
the call had come in from Thomason whereas the contractor
should be calling for a man, and Brewer said, “Well, . . . [Tho-
mason] called for it and when it was called in . . . he changed it
from operator qualified to non-qualified” (Tr. 166); that he then
went to District 5 Business Agent Dale Letterley and com-
plained to him; and that Letterley told him that he had nothing
to do with the project and he would have to talk with Thoma-
son.
On cross-examination, Ronald Chiado testified that as a busi-
ness agent he, unlike most members, was aware that there was a
work order; that it is not common to give members copies of
work orders; that any dozer operator could backfill a pipeline;
that he himself never worked on a pipeline when he was an
operator but he was the business agent over several pipeline
jobs which were performed under the pipeline agreement; that
the involved job was not a pipeline but rather it was a tank
farm, and they were running what would be gas mainline high
pressure lines between the tanks within the perimeter fence;
that “in the Pipeline Agreement, . . . it doesn’t say high pressure
or anything else. It says ‘tank farms.’ It is immaterial with
Addendum No. 1” (Tr. 173) because addendum no. 1 would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD372
apply, in one way or another, to pretty much any dispatch from
a dispatch hall; that when he served as business agent on pipe-
line projects he sat in on the prejob conferences, mostly as an
assistant to Joe Ward, who would usually prejob it; that one of
the objectives of a prejob, in a pipeline project, is to try to get a
bigger percentage than the 50–50 split provided by the contract;
and that the union and the contractor can modify the staffing
percentage.
Brewer testified that Ronald Chiado came to the District 5
referral hall in February 2007, after Dave Waters was sent out
to tank farm job in Pontiac; that she spoke with Ronald Chiado
when he came to the hall; that Ronald Chiado asked her who
got sent out to the tank farm job and she told him that it was
Dave Waters; that she did not think that she told Ronald Chiado
about her conversation with Thomason; that she did speak with
Debbie about Thomason wanting Dave Waters out at the tank
farm because she was very upset about the whole thing; and
that when Molina came back from vacation Molina heard her,
Brewer’s, second conversation with Thomason about Dave
Waters being sent out to the tank farm job ahead of other mem-
bers on the out-of-work list.
On cross-examination, Brewer testified that she did not give
a copy of the January 24 work order, General Counsel’s Exhibit
9, to Ronald Chiado; that it is not customary for the dispatcher
to give copies of work orders to members, even members who
are former business agents; that a business agent at the office at
the time can look at a work order; and that it is not customary
to give a work order to a former business agent.
On February 13, Richard Chiado telephoned Local 150’s
head dispatcher, Leitzell, and told her that he had been passed
on the out-of-work list by Dave Waters because Thomason
wanted Dave Waters on the job. Leitzell told him that she
would look into it and get back to him.
Leitzell testified that she first learned that there was a prob-
lem with a referral to the Pontiac tank farm project when
Ronald Chiado, whom she had known for almost 20 years,
telephoned her in early February 2007, in Countryside, and
asked her if she was aware that there was a job in Utica and his
son had been skipped for the job and somebody else was sent to
the job; that she told Ronald Chiado that she did not know any-
thing about the situation but she would check it out and call his
son back because his son was the involved member; that
Ronald Chiado put his son on the telephone and she told him
that she would check it out and call him back; that she then
called District 5 and asked Brewer about the situation; that
Brewer then said, “Oh, I knew this was going to be a problem”
(Tr. 366); that she asked Brewer why she did not tell her about
the situation; that Brewer said that “Roddie had told her to send
him, to send this other guy, and he pretty much —‘He intimi-
dated me into sending the other guy ahead of Richard’” (Id.);
that she had Brewer fax her a copy of the involved work order;
that she then called Brewer back and asked her who else was on
the list who had finished dozer on their card; that Brewer told
her that Stanley Shevokas was on vacation and Jim Cavallini
was the next member up for this job; that she told Brewer to
send Cavallini to the job; that she asked Brewer “okay, you
knew the one guy wasn’t there, so why couldn’t you just go
down the list like you normally would, and fill this order, with
the first guy that has got finish dozer on his card” (Id. at 367);
that Brewer told her, “I don’t know. Roddie scared me . . . and
I didn’t know what to do” (Id.); that she told Brewer, “You
can’t skip someone on the out-of-work list, and if you do that
again, you will be fired”; and that she asked Brewer where
Richard Chiado was on the list and Brewer told her that Rich-
ard Chiado did not have finished dozer on his card.
Leitzell testified that after speaking with Brewer she went to
the second floor of the Countryside office and spoke with Local
150’s president and business manager, Dugan; that after look-
ing at the faxed copy of the work order, Dugan pointed out to
her that it was a pipeline contractor; that before that it had not
“dawned on me that it was a pipeline” (Tr. 370);16 that Dugan
told her to talk with Regan; that Regan called Thomason in her
presence but they had a bad phone connection, and Regan told
her that he would try to speak with Thomason later and get
back to her; that Thomason came into the office later that day
and she met with both Regan and Thomason; and that
Roddie pretty much told me that he had pre-jobbed
this, where they would get—where we would get a hun-
dred percent of the—we would staff the project with a
hundred percent of 150 guys, and that was why he was
asking for Dave Waters, because he knew that he had—he
had experience and he could do the job. [Tr. 372.]
Leitzell further testified that any contractor can name their own
people in a prejob; that it is okay to send a member under these
circumstances because “[i]t is part of . . . Addendum [No. 1],
that any contractor can come in and pre-job” (Id.); that this is
not limited to pipeline and it applies to all agreements; that pre-
jobs would allow contractors to pick their people under the
heavy and highway or building agreements; and that contrac-
tors are allowed to pick their referrals regardless of the position
of individuals on the list.
Brewer testified that with respect to the “2/13/07” entry on
the last page of Dave Waters workcard, General Counsel’s
Exhibit 11, the entry was made because she got a call from
Pauline Leitzell on February 13 to remove Dave Waters from
the tank farm job in Pontiac and “go down my list and do it
right” (Tr. 213); that she had not discussed the Dave Waters
referral with Pauline prior to this date; that she telephoned
Dave Waters and explained to him what she had to do; that she
then went down her out-of-work list and called Steve Joiner
who had a death in the family and did not want the job;17 that
she then called Jim Cavallini and he took the job; that the entry
for “2/14/07” reads “Cancel ci per R.T. Opr still @ Mn.” means
cancel call in per Thomason and the operator was still at Min-

16 As noted above, the work order which was faxed to Leitzell re-
ferred to “Tank Farm,” and it indicated, among other things, that what
was wanted was someone who could “Shade Pipe” (emphasis added)
and that the call came from Thomason, who is Local 150’s pipeline
business agent. In these circumstances, it is difficult to believe that
Leitzell was not aware, at least from the time she received the faxed
work order, before she spoke with Dugan, that the situation involved a
pipeline.
17 GC Exh. 16, the workcard for Robert S. Joiner, has the following
entry on the second page of the exhibit: “2/13/07, 2:13, Called for
Minnesota, Ltd.–Refused.”
OPERATING ENGINEERS LOCAL 150 373
nesota Limited; and that Molina made this entry, Molina spoke
with Thomason on this occasion, and Molina told Thomason
that he was going to have to telephone Cavallini and explain the
situation to him because Cavallini had already been dispatched.
General Counsel’s Exhibit 12 is the work history card for
James Cavallini, who is a member of Local 150. The following
two entries appear on the second page of the exhibit: “2/13/07
[in the ‘DATE’ column], 3:00 [in the ‘TIME’ column], [and]
Dpd Minnesota Ltd, Pontiac Fin Dozer” [in the “REMARKS”
column] and “2/14/07, 3:24, put on owl per R.T. give opr. RT,”
respectively.
General Counsel’s Exhibit 13 is a work order card dated
“2/13/07” which is initialed by “SB.” As here pertinent, the
contractor is ML, the location of the job is Pontiac, “What is
wanted” is “Replace Dave Waters per Pauline L., Fin Dozer–
OQ,” “When” is “ASAP,” “Call From” is “2:00 Per Pauline–
Pull Dave Waters from job in Pontiac, and “Sent” is “Jim
Cavallini.”
Cavallini testified that he has been a journeyman in Local
150 for 26 years; that he can operate just about every piece of
equipment involving the movement of dirt, except a crane; that
in February 2007 he was OQ; that he typically uses the Union’s
District 5 referral hall in Utica; that he has registered there for
26 years; that members cannot go out and find their own work;
that members get their work from the out-of-work list; that they
are chosen based on their position on the out-of-work list, ex-
cept when you are qualified and the member above you on the
list is not qualified; that he was on the out-of-work list in Feb-
ruary 2007 when Brewer telephoned him and asked him if he
wanted to go to the tank farm job and run a dozer; that he told
her he wanted the job; that Brewer told him that the job called
for OQ qualified; that Brewer gave him the telephone number
of the steward on the job, Brian Borwig, and told him to tele-
phone the steward; that Borwig told him that he did not need
him on the job and he told Borwig that the dispatcher told him
that he was dispatched to this job; that Borwig told him that he
would talk to Thomason and he should call back in half an
hour; that when he called Borwig back he could not get him;
that there was a snowstorm that day and he was not able to get
Brewer when he telephoned her, and he was not able to get an
answer at District 2’s hall or Thomason’s company number;
that the following day he went to the tank farm job in Pontiac
because he was not sure what to do and it was a good job; that
he spoke with Borwig on the jobsite and Borwig telephoned
Thomason; that Borwig then told him that “there was no work
for me. He said they already had somebody for the job, and he
said Dave Waters was on the job and he had the job. He said
there was no work for me, and to go home.” (Tr. 159); that on
his way home he telephoned Brewer, she was not in, and he
spoke with Molina who said she would find out what was going
on; that Molina called him back gave him Thomason’s number
and told him to telephone Thomason; and that when he tele-
phoned Thomason he said, “I should listen to the steward, . . .
[y]ou are not really qualified for this job . . . [you] were never
on a pipeline before, so that is the reason, but if he hired more
people than just one, that he would maybe have took [sic] me in
with a group of guys” (Tr. 160).
On cross-examination, Cavallini testified that he has never
worked on a natural gas pipeline but he has done sewer and
water, which is done under the Union’s heavy and highway and
underground contract; and that he has never worked under the
pipeline agreement.
Ronald Chiado testified that on February 14, he and his son
went to the Union’s District 5 referral hall; that they spoke with
Brewer and Milano with Brewer repeating that Thomason in-
sisted that Dave Waters be sent and that they argued over OQ
and Dave Waters’ place on the list in relation to other operators
who were higher up on the list and were qualified on the dozer
enough to send out to the tank farm; that Milano agreed with
everything that was said, saying that is exactly what happened;
and that he looked at the out-of-work list again that day and his
son was number 95 and Waters was number 109.
Brewer testified that one day Richard and Ronald Chiado
came to District 5’s referral hall and she spoke with them.
On February 14, Leitzell telephoned Richard Chiado back.
Richard Chiado testified that Leitzell told him that she had
looked at his workcard and as far as she knew he was not quali-
fied for that job; and that he told Leitzell that he was qualified
for the job and she would be hearing more from him.
Leitzell testified that she called Richard Chiado back and
told him that she had talked with Brewer who indicated that he
did not get skipped because he did not have finished dozer on
his card, but there were other people on the list that did have
that; and that Richard Chiado told her that he ran dozers and he
named contractors but that she just got off the phone with
Shelia and it did not indicate finish dozer on his workcard.
When called by counsel for the General Counsel, Regan tes-
tified that he met with Brewer and Milano in Utica but it was
not as a result of Waters’ referral to ML; and that he met with
Brewer because she said that she felt intimidated by his busi-
ness agent, Thomason. Subsequently, Regan testified that he
believed that Leitzell reported that Brewer told her that she was
intimidated by Thomason.
Subsequently, in response to questions of Respondent’s
counsel, Regan testified that the first of two meetings he at-
tended at Respondent’s Utica office included dispatchers
Brewer and Molina, Thomason, and Leitzell; that the two dis-
patchers had made an accusation that they were intimidated by
Thomason; and that
When I got down there, I got them all in a conference
room, and I am a firm believer in getting everybody face
to face, and ask them point-blank, I said, “You made accu-
sations that Roddie intimidates you.” I want to know in
what way does he or doesn’t he, and in what way, and I
want to resolve this matter.
. . . .
They said that he did not intimidate them, that they just
felt they weren’t doing their job correctly, and that he was
trying to interfere with their work. [Tr. 69.]
Regan further testified that the referral in question in this meet-
ing was the referral of Waters to the pipeline job at the tank
farm in Pontiac; that the fact that Ronald Chiado’s son felt that
he should have went out before Waters was discussed at this
meeting; that he gave the dispatchers copies of the pipeline
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD374
agreement since they said that they never had a copy of the
pipeline agreement at the Utica office; and that he told the dis-
patchers at this meeting that pipeline contractors had the right
to cherry-pick the out-of-work list “they can ask for individuals
at a pre-job conference” (Tr. 72).
Brewer testified that Regan, Thomason, and Leitzell came to
District 5’s referral hall; that she met with these individuals;
that they discussed what happened and Thomason went on and
on about how Dave Waters was the only one who could do this
job; that she told them that she was not doing what she was
trained to do, namely follow her out-of-work list and call the
member the way she was supposed to do it; that they told her
about a 50-percent rule regarding the pipeline agreement; that it
was her understanding that the 50-percent rule only applied if
an operator had worked for that company in the last 6 months;
that “it was like changing the rules in the middle of the game,
that I had always known” (Tr. 216); and that during this meet-
ing she was not shown anything in writing which changed the
procedure that she normally followed, namely, referring to
addendum 1.
On cross-examination, Brewer testified that during this meet-
ing Leitzell asked her if Richard Chiado had finished dozer on
his card (apparently referring to when the involved referral was
made) and she told Leitzell that he did not;18 that she under-
stood at the time she testified at the trial herein that the contrac-
tor is allowed to staff the job under the pipeline agreement; that
before this meeting she had never seen a printed copy of the
pipeline agreement; and that she used to get to see copies of the
prejob conference report but she did not see the one for the
involved job.
Subsequently, Brewer testified, after reading the prejob con-
ference report for the Pontiac tank farm job (GC Exh. 10) while
on the witness stand, that there was nothing in that prejob con-
ference report which indicates that the Union and the contractor
agreed that the normal rules that she followed, addendum 1
(GC Exh. 3), would not be followed in this situation; and, as
noted elsewhere herein, that she was not given anything in writ-
ing that she should not follow the normal rules set out in ad-
dendum no. 1 with respect to the involved February 2007 refer-
ral to the Pontiac tank farm job.
Leitzell testified that the day after she first found out about
the situation at District 5 regarding Dave Waters being sent to
the tank farm job she, Regan, Thomason, Brewer, and Molina
met at District 5’s Utica office; that
[I] [b]rought copies of the [pipeline] agreement, and I
talked to both of them [Brewer and Molina], and I ex-
plained that sometimes there are reasons why this would
have been done, and also, it—because Shelia had men-
tioned that Roddie had intimidated her into sending this
guy there, and I made it perfectly clear that a Business
Agent cannot tell you what to do. You have got to have a

18 This raises a question in that, as noted above, Leitzell testified that
the first time she telephoned Brewer about this situation Brewer told
her that Richard Chiado did not have finish dozer on his card. If that
testimony is credible, it is not clear why sometime later at her meeting
with Brewer in Utica Leitzell would be asking Brewer if Richard
Chiado had finish dozer on his card.
legitimate reason for doing it, and if a—as a Business
Agent, he doesn’t have any right to tell you who you are
dispatching. [Tr. 375.]
Leitzell further testified that Regan asked Brewer and Molina if
Thomason intimidated either one of them and they both said
“no”; and that Brewer and Molina were glad to receive a copy
of the pipeline agreement because they did not have one before
that.
Brewer testified that a couple of weeks after her meeting
with Regan, Thomason, and Leitzell, Thomason came to Dis-
trict 5’s referral hall and got copies of workcards and he had
Molina fax copies of workcards; and that this occurred on about
February 13 or 14.
When called by counsel for the General Counsel, Regan tes-
tified that he met with Leitzell, Thomason, Richard Chiado, and
his father, Ronald Chiado, in February 2007; that he did not,
either before the meeting or at the meeting, look at the out-of-
work list to see where Richard Chiado and Waters were on the
list; that Richard Chiado claimed that he was ahead of Waters
on the list but he, Regan, did not know whether he was or was
not; that he never checked out the out-of-work list to determine
whether Richard Chiado was ahead of Waters on the list; that
Randy Hill, who is a former business agent, also attended this
meeting; that before this meeting Thomason told him that Wa-
ters was referred because the contractor wanted a qualified
finish dozer operator and it was a very dangerous place in this
tank farm; that the contractor asked for Dave Waters and Tho-
mason does not make the decision who to refer out to the job;
that Thomason did not tell him that he, Thomason, made the
decision that Waters was the individual to be sent out to the
tank farm job; that at the time of this meeting he did not know
whether Thomason had looked at Waters’ work history card,
and Thomason did not tell him that he, Thomason, had looked
at any other registrant’s card; that he was aware that there was a
problem in the Utica office regarding the Waters’ referral; that
he was not really aware that the dispatchers took the position
that there were other qualified individuals that were being
passed over when Waters was sent out; that he did not know
that Leitzell on February 13 tried to get someone other than
Waters sent to the tank farm job; that he did not know that
member Cavallini was sent to the job to replace Waters; that he
did not recall whether Brewer attended this meeting; that there
is not a separate pipeline referral list; that he did not make any
changes to Waters’ referral as a result of this meeting or at any
other time; that neither before nor after this meeting did he take
any steps to determine if Richard Chiado or anyone else ahead
of Richard Chiado on the District 5 out-of-work list had experi-
ence as a dozer operator on a pipeline job; that he oversees
Thomason; that he does not—as opposed to could not—alter
any decision that Thomason has made; and that he does not
have authority to oversee dispatch.
Subsequently, in response to questions of Respondent’s
counsel, Regan testified that he held a second meeting at Re-
spondent’s Utica office; that he, Richard and Ron Chiado, Hill,
who was a former business agent, Thomason, and Leitzell were
present; that he thought that Brewer was in the room part of the
time but he was not sure; that the purpose of the second meet-
OPERATING ENGINEERS LOCAL 150 375
ing was to make peace; that he “couldn’t understand what eve-
rybody was making a big to-do over this, when it was done
properly and correctly, through the pre-job.” (Tr. 91); and that
while Richard Chiado, at this meeting, said that he ran a dozer,
he could not recall if Richard Chiado said that he was qualified
to run a finish dozer.
Richard Chiado testified that on February 28, at 9:30 a.m.,
there was a meeting at District 5’s union hall; that his father
informed him of the meeting; that he, his father, Leitzell,
Regan, Thomason, Randy Hill, and Ed Reich attended this
meeting; that the participants debated whether members had
been wrongfully passed over when Dave Waters was dis-
patched to the tank farm job in Pontiac; that Regan and Pauline
admitted that the dispatch was wrong but they said that it was
Brewer’s fault because she should have stood up to Thomason,
she should not have let him pick the guy he wanted, and it is the
dispatcher’s job to dispatch in order; that when the subject of an
exclusive pipeline list came up, Pauline said that there was no
such thing as an exclusive pipeline list out of District 1; and
that he and his father told the group that Brewer told Thomason
that there were other people that should have been dispatched
before Dave Waters.
On cross-examination, Richard Chiado testified that the Feb-
ruary 28 meeting got a little heated and there might have been
some cuss words used but he did not swear at Thomason, he did
not tell Thomason that he was fat, and he did not call Thoma-
son a “SOB”; and that he did state during the meeting that he
needed that job because he had missed all of his insurance
hours.
Ronald Chiado testified that on either February 28 or 29, he
attended a meeting with his son Richard, Regan, Leitzell, Tho-
mason, Reich, who is an operator, and Hill at the District 5
referral hall; that Regan asked him to attend the meeting; and
that, at the meeting,
We discussed first off, the fact that . . . [the tank farm
job] was being done under Pipeline rather than Building
Trades, because in previous years, that tank job was al-
ways done under the Building Trades agreement, as well
as—I mean, as it [is] shown in the Pipeline Agreement,
showing that tank farms are under Building Agreements.
They said they changed it, so I said, “Okay you changed
it.”[19]
Then, we argued the fact of my boy’s capabilities as a
dozer operator, and again, we went through the fact that he
has been running a dozer, an operator, as a finish operator
for T. J. Lambrect for four years, doing grade work, ditch
work, all kinds of finish work, bringing it down within a

19 It is noted that the national pipeline agreement, GC Exh. 6, con-
tains the following language:
I. COVERAGE
. . . .
F. Such pipe line construction, installation, repair, replace-
ment or reconditioning as may be combined with or associate or
comprising an integral part of other work more particularly and
usually defined as engineering or building construction, or work
covering pumping stations, TANK FARMS, refineries, plant to
plant connecting lines within city limits and city distribution lines
are not covered by this Agreement. [Emphasis added.]
tenth, and that backfilling a pipeline wouldn’t be that—I
mean, it wasn’t out of the ordinary. Just about any dozer
operator could do it.
We never got anything settled on that, but in the in-
terim, Roddie [Thomason] brought up the fact that “Well,
I couldn’t have sent him anyway, because he wasn’t on the
pipeline list.”
At that Pauline [Leitzell] did mention the fact, that
there is no such thing as a pipeline list.
. . . .
. . . after a little bit further argument, one way or the other,
Pauline and Dan Regan said, “Well, we will admit that that
dispatch was wrong,” that someone else should have been
sent out there before Dave Waters, but it was pretty well
Sheila’s [Brewer] fault, her being the dispatcher and not any-
one else’s fault, but they would not come to a satisfactory so-
lution. They gave no solution as to how anything could be
fixed.
They just said, “Well, we were wrong, let’s go on from
here.”
. . . .
[They said Brewer] is the dispatcher and she should
not have let . . . [Thomason] tell her what to do. [Tr. 169
and 170.]
Ronald Chiado further testified that at the February 28 meeting
he showed the copy of the involved work order, General Coun-
sel’s Exhibit 9, that he had to those in attendance; and that
They again said that Sheila should not have sent him,
and that Roddie also said that OQ wasn’t necessary on this
project. I said, “Well, it is funny the other guys had to
have it, and this guy doesn’t,”
He [Thomason] said, “Well, it is not necessary. It is
just something that has got to be done.” [Tr. 171.]
Leitzell testified that on February 28, she attended a meeting
at District 5’s office in Utica; that Ronald and Richard Chiado,
Randy Hill, Regan, Thomason, and a member of Local 150
who she did not know were also present at this meeting; that
Thomason and Regan
tried to explain pre-jobs and why . . . [Richard Chiado] really
didn’t get skipped, because they wanted to be sent [sic] quali-
fied people, because the contractor had agreed for us to fur-
nish it with a hundred percent of ours, and then it just side-
tracked and there was a lot of yelling. [Tr. 376 and 377.]
Leitzell further testified that Richard Chiado never claimed
during this meeting that he could operate a finish dozer on a
pipeline; that during this meeting she did say that she had
talked to Shelia and she had gone down the list and she had told
her the names of the people that were qualified for that job, that
had finish dozer on there, and that Richard Chiado was not one
of them; that Ronald or Richard Chiado asked her if she was
throwing Shelia under the bus; that the meeting was hostile,
there was name calling, and swearing by Richard Chiado when
he used the “f” word in addressing Thomason; that Richard
Chiado called Thomason a “fat hillbilly”; that neither she,
Regan, nor Thomason use profanity during this meeting; that a
couple of days before this meeting she reviewed the workcards
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD376
of Richard Chiado and Dave Waters and she noted that Richard
Chiado’s card did not have finish dozer on it, it was added on
the day she talked to him but it was not on the card before that;
that since Richard Chiado did not have finish dozer on his card
at the time of the involved dispatch, he would not have been
sent to the tank farm job;20 and that ML is a signatory to only
the national pipeline agreement.
On cross-examination, Leitzell testified that according to
cards 2 and 1 of Dave Waters’ workcard introduced by Re-
spondent, Respondent’s Exhibit 2, Dave Waters was sent to the
ML Pontiac tank farm job on “2/1/07” and he next reported in
to the union hall on “5/29/07”; that she is familiar with adden-
dum 1; that there are prejobs on other than pipeline jobs; that
under the heavy and highway and the building agreement the
contractors can pick referrals; that this is provided for in 1(B)
of addendum 1; that under that provision the contractor would
be giving the union the name of an individual and not just say-
ing it wanted the most qualified,21 that it was her understanding
that ML had specifically picked Dave Waters, the individual;
that when she makes a dispatch, she has asked the member if he
is able to do that work; that if the member says that he can and

20 The accuracy of this conclusion must be viewed in light of the tes-
timony of Brewer that on January 24, when Thomason called in the
involved work order, she knew that Richard Chiado had done finish
dozer work on nonpipeline jobs; that she knew from Richard Chiado’s
work history that prior to February 2007, he operated a dozer on a
pipeline job; that, in her opinion Richard Chiado was qualified to do the
pipeline work for ML; and that she would have asked Richard Chiado if
he could run a finish dozer on pipeline. Regarding asking a member if
he could do the work required, it is noted—as set forth below—that
Leitzell herself testified that if a member’s dozer experience is not fully
laid on the work history card, she would ask the member about his
experience and if he is able to do the work, if the member says he can
and he wants the job he will be dispatched, it is not always obvious
from the card whether the member can or cannot do the specific job
involved, and the normal procedure is for the contractor to give the
member a proficiency test on the equipment he claims he can operate.
21 As here pertinent, 1B of addendum 1 reads as follows:
When an Employer desires to employ persons not eligible for
dispatch to such Employer under the provisions of this Addendum
in the performance of work covered by this Agreement in the
geographical area covered by this Addendum, either by reason of
such persons special skills or previous satisfactory employment
within the six calendar months next preceding the date of request
by the Employer requesting, such Employer shall in writing re-
quest the Referral Office servicing the job or project for pre-job
conference at least two calendar weeks prior to the commence-
ment of the work or operation of the equipment.
At such pre-job conference the classification and number of
such Employees and the time of the commencement of their em-
ployment or the operational stages of the job or project at which
their employment shall commence shall be determined.
Thereafter upon written request of such Employer, signed by
an authorized representative of such Employer on a job or project
and delivered to the Referral Office servicing such job or project
stating the [sic] such Employer desires that a named person or
persons be referred in a classification or classifications agreed to
at such pre-job conference such person or persons shall be re-
ferred without regard to the provisions of Addendum No. 1, Sec-
tions 4, 5 and 6 of this Agreement and the Employer shall hire
such persons or person so referred. [Emphasis added.]
he wants the job, then he will be dispatched; and that it is not
always obvious from the out-of-work card whether the member
can or cannot do the specific job involved.
Subsequently, Leitzell testified that when a steward calls in
asking for someone to be sent out to operate a dozer she looks
at the out-of-work list, she looks to see if someone has dozer
experience, and if it is not fully laid out on the work history
card, she would ask the member about their experience; and
that the normal procedure is for the contractor to give the mem-
ber a proficiency test on the equipment he claims he can oper-
ate, and the contractor can reject the person sent out by the
union at any time or the contractor can accept the member who
was sent out.
General Counsel’s Exhibit 14(a) is a work order for “4–18–
07” for ML for the involved Pontiac pipeline job. The work
order calls for one oiler for a backhoe and “*OQ Cert*” is
specified on the “Sent” line. (Emphasis in original.) The work
order indicates that the call came from “Brian” (Borwig) and
Daniel C. Jones was referred out on April 18 to the job by
Molina. Brewer testified that the handwriting on the work or-
der was Molina’s; that she was familiar with this referral; and
that Jones did have OQ certification.
General Counsel’s Exhibit 14(b) is a work order dated
“4/23/07” for the ML job in Pontiac. “[O]iler (Group II) Back-
hoe OQ Training” is written on the “What is Wanted” lines.
Brewer testified that this is her handwriting and that she took
the order and Molina filled it indicating on the work order that
she, Molina, sent Dean Guerro on “4/23/07”; that Terry Tunget
was originally called but he did not have OQ training so he was
not referred out on this job; and that Guerro did have OQ train-
ing. “Brian Borwig” is written on the “Call From” line of this
work order.
When called by counsel for the General Counsel, Regan tes-
tified that he first saw Richard Chiado’s and Dave Waters’
work history card about 1 month before the trial herein (or, in
other words, around the beginning of September 2007); that he
is familiar with the companies of Coolset, Murphy Brothers,
ARB, Brandenburg Drainage, Sheehan, and H. C. Price; that all
but Brandenburg Tile, which does drain tile, are pipeline con-
tractors; that he did not learn that Richard Chiado worked for
all of these companies but he thought that when he reviewed
Richard Chiado’s workcard a month before the trial herein he
saw that Richard Chiado might have worked for a few but he
was not positive about that; and that he did not know prior to
February 2007, that Richard Chiado had operated a dozer on a
pipeline job for Murphy Brothers.
Analysis
Paragraphs 5(d) and (e) of the complaint collectively allege
that since about February 5, Respondent has failed and refused
to properly refer Richard Chiado to employment with ML in
violation of its established hiring hall rules, resulting in a denial
of employment to Richard Chiado, and that Respondent en-
gaged in this conduct for reasons other than the failure to tender
the periodic dues and the initiation fees uniformly required for
membership in Respondent.
On brief, counsel for the General Counsel contends that
Thomason’s testimony that Dave Waters came to the involved
OPERATING ENGINEERS LOCAL 150 377
ML job as a result of a District 5 referral is belied by Thoma-
son’s long held belief, as indicated by the unrefuted testimony
of Studer, that an operator who Thomason subjectively believes
is the most qualified for the involved job should be referred out
to pipeline jobs regardless if they came up on the out-of-work
list next or if other qualified operators were on the list ahead of
them; that here Thomason personally wanted Dave Waters on
the job and Dave Waters’ presence on the job had nothing to do
with a specific request by ML for Dave Waters or a referral by
Debbie Cargill; that other than testifying that Cargill was re-
sponsible for the Dave Waters’ referral—an assertion not cor-
roborated by Respondent’s dispatcher Cargill—Thomason
failed to address Brewer’s detailed account of the events lead-
ing to the referral of Dave Waters to ML; that, as here perti-
nent, Respondent operates an exclusive hiring hall under the
national pipeline agreement; that the involved referral should
have been made under addendum 1, as described above; that to
the extent that ML and Respondent may have agreed to waive
the 50/50 manning ability, such agreement did not relieve them
from adherence to the exclusive referral system and it did not
destroy the exclusive nature of the hiring hall arrangement; that
a union that acts arbitrarily, discriminatorily, or in bad faith
violates the duty of fair representation, Air Line Pilots v.
O’Neill, 499 U.S. 65 (1991); that when a union operates an
exclusive hiring hall, it “‘wield[s] additional power . . . by as-
suming the employer’s role,’ [and] ‘its responsibility to exer-
cise that power fairly increases rather than decreases,’” Brein-
inger v. Sheet Metal Workers Local 6, 493 U.S. 67, 89 (1989);
and that in Operating Engineers Local 406 (Ford, Bacon &
Davis Construction Corp.), 262 NLRB 50, 51 (1982), enfd. 701
F.2d 504 (5th Cir. 1983), the Board indicated as follows:
Even assuming the absence of specific discriminatory
intent, a violation must be found in the circumstances of
this case. The Board has held that any departure from es-
tablished exclusive hiring hall procedures which results in
a denial of employment to an applicant falls within that
class of discrimination which inherently encourages union
membership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A) and
(2), unless the union demonstrates that its interference
with employment was pursuant to a valid union-security
clause or was necessary to the effective performance of its
representative function. [Footnote omitted.]
Counsel for the General Counsel further contends that the
Board requires that referrals be based on objective criteria and
applied in a nondiscriminatory manner, Iron Workers Local 505
(Snelson-Anvil), 275 NLRB 1113 (1985); that the basic rule of
Respondent’s hiring hall is first in, first out in that a referral
must be offered to the first registrant on the out-of-work list
who possesses the necessary qualifications, with certain excep-
tions such as for stewards and key men; that when Brewer
made referrals under the national pipeline agreement she made
the referrals under addendum 1; that Brewer’s normal proce-
dure was to go down the out-of-work list, look at the work-
cards, verbally questioning registrants concerning their skills
and then dispatch the member; that Leitzell confirmed that this
was the proper procedure to follow, testifying that she herself
calls members, asks the member if he is able to do the work,
and if he says yes, the member is sent out to the job; that Tho-
mason deliberately bypassed the normal procedure by insisting
that Dave Waters be sent to ML; that there is nothing in writing
which would have indicated to Brewer that she should not fol-
low the normal rules set out in addendum 1; that as indicated by
Leitzell, business agents have no role in dispatching members
to work; that the testimony of Studer and Thomason revealed
that Thomason, contrary to all other witnesses, did not believe
that addendum 1 should apply on pipeline jobs; that when
Thomason was asked on cross-examination whether, in his
opinion, addendum 1 applied he answered, “[W]ell, in my opin-
ion, the most experience applies on pipeline jobs” (Tr. 340);
that Thomason knowingly and deliberately departed from the
procedures that govern Respondent’s hiring halls in referring
Dave Waters to ML in violation of Section 8(b)(1)(A) and (2)
of the Act, Operating Engineers Local 406, supra; that Richard
Chiado and Brewer both believed that OQ was necessary for
operators doing pipeline work and the other operators referred
to the ML job, namely, Cavallini, Jones, and Guerro, all had
OQ certification; that Respondent has not rebutted the pre-
sumptive unlawfulness of its conduct; and that Thomason’s use
of subjective standards in referring Dave Waters falls short of
the objective standards and criteria that a union, in operating an
exclusive hiring hall, must apply, and it violated Respondent’s
duty of fair representation, Teamsters Local 328 (Blount Bros.),
274 NLRB 1053 (1985).
Respondent on brief argues that where necessary, the em-
ployee referred by the Union to a pipeline construction job
must have OQ Qualification; that Thomason, in response to a
conversation with Borwig, called District 5, asked for the
names of employees on the out-of-work list with pipeline ex-
perience that were capable of operating a final finish dozer, and
Cargill, a dispatcher who was temporarily working there, was
the one who eventually named Dave Waters as the one to be
sent to the ML tank farm job; that in Vaca v. Sipes, 386 U.S.
171, 190 (1967), the Supreme Court held that unions breach the
duty of fair representation if their treatment of bargaining unit
members is “arbitrary, discriminatory, or in bad faith”; that
Respondent did not deviate from its hiring hall procedures; that
because ML was a pipeline job, the employees for the job were
to be hired according to the prejob conference provisions of the
national pipeline agreement, as well as to addendum 1; that
section 1(B) of the addendum allowed ML to select employees
at the prejob conference without regard to sections 4, 5, and 6
of the addendum, and the pipeline agreement allowed ML to
hire the most experienced and qualified individuals; that this
was done through the prejob conference attended by Thomason
on January 12; that Thomason followed the proper hiring hall
procedures established by the national pipeline agreement and
addendum no. 1 and, therefore, the Respondent did not act in an
arbitrary, discriminatory, or bad-faith manner when it chose to
dispatch Dave Waters; that the Respondent acted at all times in
good faith and in no way breached its duty of fair representa-
tion; that even if it is determined that the Respondent deviated
from the hiring hall procedures, a merely negligent deviation
does not constitute a breach of the duty of fair representation;
that the fact that the decision was not made based on ill will,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD378
discrimination, unlawful favoritism or an unreasonable business
practice must lead to the conclusion that the Union did not
breach its duty of fair representation and “this was simply an
inadvertent application of the Pipe Line Agreement” (R. Br.
30); that even assuming that Respondent breached its duty of
fair representation in dispatching Dave Waters to the Pontiac
Tank Farm project, Richard Chiado is entitled to no relief since
he did not include on his workcard that he could operate a fin-
ish dozer and several other employees ahead of him on the list
did indicate such qualification; and that under no scenario
would Richard Chiado have been dispatched to the Tank Farm
project to operate a finish dozer, and, therefore he is not entitled
to any backpay remedy.
I do not find Thomason to be a credible witness. At the trial
herein Thomason testified that Debbie Cargill went down the
out-of-work list and first gave him the name of Jim Shannon
and then she gave him the name of Stanley Shevokas. Before
going any further, there are at least two problems with Thoma-
son’s testimony. First it is not clear why Cargill would have
given Thomason Jim Shannon’s name first when he was lower
on the out-of-work list than Shevokas. Second, Cargill, who is
still a dispatcher for Respondent, did not testify to corroborate
this testimony of Thomason. Who choose Dave Waters for the
involved referral is a key disputed factual issue. Yet, Respon-
dent did not call dispatcher Cargill as a witness. When a party
fails to call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference may be
drawn regarding any factual question on which the witness is
likely to have knowledge. It may be inferred that the witness, if
called, would have testified adversely to the party on that issue.
While an adverse inference is unwarranted when both parties
could have confidence in an available witness’ objectivity, it is
warranted where, as here, the missing witness is a dispatcher
and Respondent in its answer to the complaint herein admitted
(in that it did not deny this allegation in its answer to the com-
plaint) that someone holding the same position, Brewer, is an
agent of Respondent within the meaning of Section 2(13) of the
Act. International Automated Machines, 285 NLRB 1122
(1987). Both Regan and Leitzell testified that it was their un-
derstanding that ML chose Dave Waters. But when Regan and
Leitzell, along with Thomason, attended the first meeting in
Utica with Brewer, Brewer’s actions, and not Cargill’s alleged
actions, were the subject of the meeting. There was no mention
by Thomason at this meeting that it was not Brewer but rather it
was Cargill who was responsible for giving him Dave Waters’
name. This approach, namely that it was a problem with
Brewer, was carried over to the February 28 meeting attended
by Regan, Leitzell, Thomason, Ronald and Richard Chiado,
Hill, and Reich. Both Richard and Ronald Chiado testified that
Regan and Leitzell blamed the situation on Brewer at the Feb-
ruary 28 meeting. Their testimony is credited. Leitzell admit-
ted that one of the Chiados asked her if she was throwing
Brewer under the bus. Again, Thomason did not indicate at the
February 28 meeting that it was actually Cargill who came up
with Dave Waters’s name.
Brewer gave very specific testimony about her telephone
conversation with Thomason on January 24. The work order
she drafted, General Counsel’s Exhibit 9, corroborates
Brewer’s testimony. The fact that Regan and Leitzell held a
meeting with Brewer and Molina in Utica to discuss whether
Thomason intimidated them with respect to the involved Dave
Waters’ referral corroborates Brewer’s testimony. Brewer’s
testimony about her telephone conversation with Thomason on
January 24 is credited. Other than asserting that he dealt with
Cargill on the Dave Waters referral (Respondent did not intro-
duce any work order drafted by Cargill regarding the involved
Dave Waters’ referral.) and only that he spoke with Brewer
sometime later, Thomason does not specifically deny Brewer’s
very specific testimony about what occurred during their Janu-
ary 24 telephone conversation. Thomason lied under oath
when he testified at the trial herein that Cargill was the one who
came up with the name of Dave Waters.
Thomason lied when he testified on cross-examination that
he did not think that Richard Chiado told him on the H. C. Price
Guardian job in 2002, that he had never operated an excavator
on a pipeline job before, and that he could not remember if
Richard Chiado had been sent out to operate a bulldozer on the
job. On direct, Thomason tried to convey the impression that
Richard Chiado was not a capable operator. To admit on cross
that as steward Thomason himself created the situation on the
H. C. Price Guardian job in 2002, would have been admitting
that on direct he was attempting to create a false impression.
As found below, Thomason lied under oath about the threats
he made to Richard and Ronald Chiado. I do not credit any of
Thomason’s testimony unless it is corroborated by the testi-
mony of a credible witness or a reliable document which was
received in evidence at the trial herein.
There are many problems with Respondent’s position. Tho-
mason did not even attempt to refute Studer’s testimony.
Studer’s testimony is credited. Consequently, we have an un-
derstanding of Thomason’s beliefs as of 2005. This is rein-
forced with Thomason’s testimony at the trial herein when he
testified that addendum no. 1 does not apply to pipelines but
rather “the most experienced applies on pipeline jobs.” (Tr.
340.) Who would decide which member was the most experi-
enced? Regan and Leitzell admit that the business agent is not
supposed to play any role in the dispatching process. Except
for 1B of addendum no. 1, only the dispatchers are supposed to
choose who to send out on a referral. Neither of the dispatchers
who testified herein testified that they choose who to send out
to a job on the basis of who is the most experienced. Both testi-
fied that if the member is the next one available on the out-of-
work list, he claims that he is capable and he wants the referral,
the member is referred out with the understanding that the con-
tractor can test him for his proficiency on the equipment he
claims that he can operate. And, as noted above, 1B of adden-
dum 1 indicates, as here pertinent,
When an Employer desires to employ persons not eli-
gible for dispatch to such Employer under the provisions
of this Addendum in the performance of work covered by
this Agreement in the geographical area covered by this
Addendum, either by reason of such persons special skills
or previous satisfactory employment within the six calen-
dar months next preceding the date of request by the Em-
ployer requesting, such Employer shall in writing request
OPERATING ENGINEERS LOCAL 150 379
the Referral Office servicing the job or project for pre-job
conference at least two calendar weeks prior to the com-
mencement of the work or operation of the equipment.
At such pre-job conference the classification and num-
ber of such Employees and the time of the commencement
of their employment or the operational stages of the job or
project at which their employment shall commence shall
be determined.
Thereafter upon written request of such Employer,
signed by an authorized representative of such Employer
on a job or project and delivered to the Referral Office
servicing such job or project stating the [sic] such Em-
ployer desires that a named person or persons be referred
in a classification or classifications agreed to at such pre-
job conference such person or persons shall be referred
without regard to the provisions of Addendum No. 1, Sec-
tions 4, 5 and 6 of this Agreement and the Employer shall
hire such persons or person so referred. [Emphasis
added.]
It has not been shown that this provision was complied with in
the situation at hand.
Thomason testified about what occurred at the involved pre-
job conference. The full extent of his testimony is not corrobo-
rated by the prejob conference report received in evidence as
General Counsel’s Exhibit 10. Indeed, in at least one regard the
prejob conference report contradicts the position Thomason
later took with respect to whether OQ certification was re-
quired. Thomason tried to cover the situation with his testi-
mony “this is one of the . . . pre-jobs that I didn’t go into deci-
sions and clarifications and attach it to the per-job” (Tr. 312).
Thomason is not a credible witness. And Respondent did not
call as a witness anyone else who attended that prejob confer-
ence. So consideration of what occurred at the prejob confer-
ence is limited to what appears on the prejob conference report.
That being the case, there is no clear indication that the parties
meant, as memorialized by the report, to refer to the provisions
of 1B of addendum 1. According to the testimony the Union’s
representative at this prejob conference, Thomason, he does not
believe that addendum 1 applies to pipeline jobs.
Borwig was not called to testify about whether he, on behalf
of ML, authorized Thomason to contact District 5 to get a dozer
operator. Everyone agreed that the proper procedure is that the
steward, Borwig, is the one who is supposed to contact District
5 for a referral. Indeed, it was Borwig who contacted District 5
on two occasions in April 2007 for an oiler with OQ certifica-
tion for a backhoe. There is no credible evidence of record that
Thomason was authorized by ML to contact District 5 for a
dozer operator on January 24.
Notwithstanding what Studer told him about what was the
right approach in 2005, Thomason implemented, in the situa-
tion at hand, the approach he wanted to take. The approach
Thomason took violated the Union’s procedures. Moreover,
Thomason was not the steward on the involved ML job. And,
as noted above, there is no showing that he was authorized by
the steward, Borwig, acting on behalf of ML to contact District
5.
What occurred was not a question of negligence. Here Tho-
mason knew exactly what he was doing. He had been placed
on notice years ago by a union official, Studer, that the ap-
proach he advocated did not comply with union rules. Here,
the Union was placed on notice at the outset that a wrong was
being committed. Instead of righting the obvious wrong imme-
diately and avoiding or at least limiting any question of liabil-
ity, the Union chose to attempt to steamroll over those who
challenged it over what was occurring.
Another aspect of the situation at hand may be cause for con-
cern. Regan testified that Thomason told him that it was a very
dangerous place on the involved tank farm. On direct by Re-
spondent’s counsel, Thomason testified that that there would be
a risk involved in having someone who is not a cleanup trained,
pipeline dozer operator “[d]epending on if you are working
over or around a bunch or existing loaded gas lines . . . .” (Tr.
336.)22 The involved prejob conference report called for OQ
certification. Brewer testified credibly that every pipeline job
required the operators to have OQ certification. Both of the
work orders that ML steward Borwig called in for the involved
job in April 2007 specified OQ certified. Richard Chiado testi-
fied, without contradiction, that Thomason, among others in-
structors, told him when he took the OQ certification training
that he would not be allowed on pipelines unless he had the OQ
certification class. Yet Thomason argued with Brewer when
she pointed out that Dave Waters did not have OQ certification.
Thomason told Brewer that Dave Waters “does not need OQ.”
See General Counsel’s Exhibit 9. Did Thomason sacrifice
safety to get Dave Waters referred to the ML tank farm job?23
Or was Thomason, for the purpose of getting Dave Waters
referred, approaching the situation in terms of tank farms not
being covered by the national pipeline agreement, General
Counsel’s Exhibit 6, in that section 1F, as set forth above, indi-
cates that “tank farms . . . are not covered by this Agreement”?
All agree that in the situation at hand the member cannot go
to the employer and apply for and accept employment. If he
does, he will be disciplined by the Union. The member, in an
exclusive hiring hall situation, is at the mercy of the Union in
that it has the power to affect the member’s livelihood in a very
dramatic way. As noted above, Richard Chiado testified, with-
out challenge, that he needed the ML tank farm job because he
missed all of his insurance hours. When a union departs from
established exclusive hiring hall procedures which results in a

22 As noted above, on cross, Thomason testified that the old pipe
which was to be removed was no longer pressurized and you could not
remove a live line.
23 It is noted that on direct by Respondent’s counsel Thomason testi-
fied that ML did not offer its own OQ certification on the tank farm
project at Pontiac. When Thomason went on to explain that ML did
ask for OQ certification at first “until they found out that the amperage
was going—” (Tr. 337). Counsel for the General Counsel renewed her
objection pointing out “[w]e have no idea who is talking, when it was
said . . . in terms of foundation” (Tr. 337). The objection was sus-
tained. Respondent’s counsel did not attempt to elicit any additional
testimony from Thomason on this matter. Two things should be noted.
First, Thomason is not a credible witness. And second, subsequently,
as noted above, both of the work orders that ML steward Borwig called
in in April 2007 specified OQ certified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD380
denial of employment to one of its members, there is no need to
show a specific discriminatory intent. A violation of the Act
will be found unless the union comes forward to show that the
involved referral was actually made pursuant to a valid hiring
hall provision or that the union action was necessary for the
effective performance of the union’s representational function.
Here, the Union has done neither. As contended by counsel for
the General Counsel on brief, Thomason deliberately bypassed
the normal procedure by insisting that Dave Waters be sent to
the ML tank farm job. Dave Waters was not referred based on
any objective criteria applied in a nondiscriminatory manner.
Rather, Dave Waters was referred because Thomason wanted
him referred notwithstanding the fact that there were other
qualified members ahead of Dave Waters on the out-of-work
list, and notwithstanding the fact that while those other quali-
fied members were OQ certified, Dave Waters was not OQ
certified at that time. As pointed out by counsel for the General
Counsel on brief, Thomason’s use of subjective standards in
referring Dave Waters falls short of the objective standards and
criteria that a union, in operating an exclusive hiring hall, must
apply, and it violated Respondent’s duty of fair representation,
Teamsters Local 328 (Blount Bros.), 274 NLRB 1053 (1985).
Respondent violated the Act as alleged in paragraphs 5(d) and
(e) of the complaint.24
Paragraphs 6(a) and (b) of the complaint collectively allege
that about February 12, Respondent, by Thomason, threatened
to deny work to Richard Chiado if he tried to do anything about
Respondent’s refusal to refer him to employment on or about
February 7, and by this conduct Respondent coerced Richard
Chiado in the exercise of rights guaranteed under Section 7 of
the Act.
On brief, counsel for the General Counsel contends that
Thomason’s threat to Richard Chiado that he would not see
very much pipeline work anymore if he did anything about the
referral of Dave Waters violated Section 8(b)(1)(A) in that it
was intended to restrain Richard Chiado in his efforts to realize
the benefits of the national pipeline agreement and to coerce
Richard Chiado to yield to Thomason’s efforts to run the refer-
ral system as he pleased, Plumbers Local 725, 225 NLRB 138,
145 (1976); and that Thomason’s threat shows that Respondent
had been operating the referral system in an arbitrary manner.

24 With respect to Respondent’s assertion that Richard Chiado would
not have been referred to the ML tank farm job anyway, as noted
above, the person who had the right to make that decision, Brewer,
testified credibly that on January 24, when Thomason called in the
involved work order, she knew that Richard Chiado had done finish
dozer work on nonpipeline jobs; that she knew from Richard Chiado’s
work history that prior to February 2007, he operated a dozer on a
pipeline job; that, in her opinion Richard Chiado was qualified to do the
pipeline work for ML; and that she would have asked Richard Chiado if
he could run a finish dozer on pipeline. And as noted above, regarding
asking a member if he could do the work required, Leitzell herself
testified that if a member’s dozer experience is not fully laid out on the
work history card, she would ask the member about his experience and
if he is able to do the work; that if the member says he can and he
wants the job he will be dispatched; that it is not always obvious from
the card whether the member can or cannot do the specific job in-
volved; and that the normal procedure is for the contractor to give the
member a proficiency test on the equipment he claims he can operate.
Respondent on brief argues that Thomason did not threaten
Richard Chiado’s future work on the pipeline; that Richard
Chiado’s claim that Thomason threatened his future work on
the pipeline is just another example of Richard Chiado’s ten-
dency to exaggerate facts and events; that Richard Chiado’s
claim must also fail because the alleged threat was not based on
rights guaranteed by Section 7 of the Act; and that the threat
does not prevent Chiado from engaging in concerted activity or
to join or assist a labor organization.
With respect to Respondent’s first argument, namely that
Richard Chiado has a tendency to exaggerate, it appears that
Respondent either intentionally or unintentionally overlooks the
fact that Ronald Chiado, Richard’s father, also testified that
Thomason told him that if he did not back off, “my boy would
never see another pipeline.” (Tr. 167.) As noted above, I do
not find Thomason to be a credible witness. I do find Ronald
and Richard Chiado to be credible witnesses. I credit their
testimony that Thomason threatened to deny Richard Chiado
work if he tried to do anything about Respondent’s refusal to
refer him to employment on about February 7 (February 5).
With respect to Respondent’s second argument regarding Sec-
tion 7 of the Act, as pointed out by counsel for the General
Counsel on brief, the statement that Richard Chiado would
either never see another pipeline or would not see very much
pipeline work anymore threatens a loss of work. It was in-
tended to (a) restrain Richard Chiado in his efforts to realize the
benefits of the national pipeline agreement and (b) coerce him
to yield to Thomason’s efforts to run the referral system as he
pleased. These threats violated Section 8(b)(1)(A) of the Act,
Plumbers Local 725, supra. Respondent violated the Act as
alleged in paragraphs 6(a) and (b) of the complaint.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(b)(1)(A) and (2) of the Act
on about February 5, 2007, and thereafter by improperly, in
violation of its established hiring hall rules, referring Dave
Waters to the ML tank farm job in Pontiac, Illinois, instead of
Richard Chiado or another qualified operator who was ahead of
Dave Waters on Local 150’s out-of-work list.
2. Respondent violated Section 8(b)(1)(A) of the Act on
about February 12, 2007, by Roddie Thomason threatening to
deny work to Richard Chiado if he tried to do anything about
Respondent’s refusal to refer him to employment on or about
February 5, 2007.
3. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having unlawfully failed and refused, in
violation of its established hiring hall rules, to properly refer a
member to the ML tank farm job in Pontiac, Illinois, on or
about February 5, 2007, it, the Respondent, must make Richard
Chiado, or any other qualified person who should have been
OPERATING ENGINEERS LOCAL 150 381
referred, whole for any loss of benefits or earnings, less any
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).25

25 It will be left to the compliance stage of this proceeding to deter-
mine which member, namely Richard Chiado or some other qualified
[Recommended Order omitted from publication.]

member ahead of Dave Waters on the involved out-of-work list, will be
made whole by Respondent for its unlawful refusal to refer either Rich-
ard Chiado or some other qualified member ahead of Dave Waters on
the involved out-of-work list out to Minnesota Limited, Inc.’s tank farm
job in Pontiac, Illinois.