Plumbers Local 38 (Bechtel Corp.)

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 511 (N.L.R.B. 1992)

511
306 NLRB No. 97
PLUMBERS LOCAL 138 (BECHTEL CORP.)
1 The Respondent and the Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
We note that at sec. III, fn. 34, of the judge’s decision, the first
sentence should refer to ‘‘1987’’ not ‘‘1967.’’ At sec. III, fn. 39,
the second sentence should refer to ‘‘1987.’’ Also at sec. III, par.
41, the ninth sentence should in relevant part state, ‘‘the latter is
credited as to not becoming aware of the nature of the hiring hall
rule changes until 1988.’’ At sec. III, par. 42, the third sentence
should in relevant part state, ‘‘Thus, while the key men provision
prohibited the dispatching of SG-2 members as long as SG-1 mem-
bers. . . . .’’ At sec. III, par. 49, the third sentence should in rel-
evant part state, ‘‘in accord with my belief that business agent Fred
Castro appeared to be an utterly disingenuous witness, one who
would not be credited at all herein . . . .’’ Finally, at sec. III, fn.
42 should, in relevant part, state ‘‘there must be no SG-1 member,
who has key man experience . . . .’’
2 These modifications were agreed to by the Respondent and the
signatory multiemployer associations on September 11, 1986. These
include the suspension of the hours-of-work requirements for senior-
ity groups 1 and 2, the suspension of the 120-working-days require-
ment in the provision permitting signatory contractors to make writ-
ten requests for particular individuals who have worked at least 120
days for them during the preceding 12 months and who were laid
off within 30 days of the request (the ‘‘men terminated within 30
days’’ provision), and the increase from 5 to 10 in the number of
days an employee would have to work before losing his position on
the out-of-work list.
We reverse the judge’s finding regarding the failure to give notice
of the last modification because the General Counsel did not allege
that the failure to give notice of this modification was unlawful. In
addition, because the judge’s finding that Bermingham dispatch 94
was unlawful was based on his finding that the failure to give notice
of this modification was unlawful, we also find that dispatch 94 has
not been shown to constitute a violation.
3 For the reason set out in fn. 2 above, we do not find that imple-
menting the increase in the number of days an employee would have
to work before losing his position on the out-of-work list from 5 to
10 violated the Act.
Local Union No. 38, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Can-
ada, AFL–CIO (Mechanical Contractors Asso-
ciation of Northern California) and Ed
Bermingham
Local Union No. 38, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Can-
ada, AFL–CIO (Bechtel Corporation) and Phil-
ip H. Livingston. Cases 20–CB–7279, 20–CB–
7550, 20–CB–7691, 20–CB–8025, 20–CB–7346,
and 20–CB–7659
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 31, 1990, Administrative Law Judge
Burton Litvack issued the attached decision. Charging
Party Philip H. Livingston filed exceptions and a sup-
porting brief; the Respondent Union filed cross-excep-
tions and a brief in opposition to Charging Party Liv-
ingston’s exceptions; and the General Counsel filed
partial cross-exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge found, inter alia, that the Respondent
violated Section 8(b)(1)(A) and (2) of the Act by fail-
ing to notify job applicants adequately prior to imple-
menting certain modifications of its contractually es-
tablished hiring hall rules.2 The judge further found
that because the Respondent did not adequately notify
hiring hall users of these modifications, the Respond-
ent’s implementation of these modifications ‘‘so as to
adversely affect users of the hiring hall’’ was also vio-
lative of Section 8(b)(1)(A) and (2) of the Act.3 He
concluded that to the extent any of these modifications
resulted in lost job opportunities for applicants who
would otherwise have been entitled to receive the re-
ferrals according to posted hiring hall procedures, the
applicants were entitled to be made whole.
Both the Respondent and the General Counsel have
cross-excepted to certain aspects of the judge’s deci-
sion regarding these and related modifications and we
find merit in certain of their cross-exceptions.
Initially, although we agree with the judge that the
failure to give notice of the above modifications vio-
lated the Act, we find that the Respondent thereby vio-
lated Section 8(b)(1)(A) but did not further violate
Section 8(b)(2) as the judge also found. In this regard,
we note that although findings of violations of Section
8(b)(1)(A) and (2) do not necessarily go hand in hand,
in certain cases, union conduct found to interfere with
employee rights in violation of Section 8(b)(1)(A) has
the further effect of violating Section 8(b)(2) by caus-
ing employers to refuse employment for discriminatory
reasons. Thus, in Electrical Workers IBEW Local 675
(S & M Electric), 223 NLRB 1499 (1976), the re-
spondent union was found to have violated both Sec-
tion 8(b)(1)(A) and (2) by its discriminatory refusal to
refer an employee for employment under the terms of
its exclusive referral system. The Board found (at
1499) that,
Such union conduct, by its very nature indirectly
induces the Employer to refuse employment to
that employee in violation of Section 8(a)(3).
Hence, we find that by discriminatorily refusing
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See Operating Engineers Local 406 (Ford Construction), 262
NLRB 50, 51 (1982).
5 See the standard set out in Operating Engineers Local 406 (Ford
Construction), supra, fn. 5 at 51.
to refer [employee] Owchariw for employment,
the Respondent Union violated Section 8(b)(2).
In concluding that the Respondent had violated Section
8(b)(1)(A) and (2) in this case, the judge relied heavily
on the Board’s decision in Plumbers Local 230, 293
NLRB 315 (1989), but we find that case to be inap-
posite. There, the respondent union was found to have
violated Section 8(b)(1)(A) and (2) by failing to ade-
quately notify hiring hall applicants of a lawful change
in its hiring hall rules. The failure to notify hiring hall
applicants resulted in the failure to dispatch an em-
ployee who was in noncompliance with the change.
Specifically, the new rule imposed a requirement that
employees write the word ‘‘anything’’ next to their
names on the out-of-work list. Employees who failed
to do so were restricted to only certain kinds of jobs.
Employee Conley, whose name was first on the out-
of-work list but who was not informed of the new rule
and who therefore did not write the word ‘‘anything’’
next to his name, was not referred to a particular job
for this reason. The Board found that the union’s fail-
ure to make a good-faith effort to give timely notice
of the rule change in a manner reasonably calculated
to reach all those who used the exclusive hiring hall,
which in turn resulted in the failure to dispatch Conley
for noncompliance with the change, violated Section
8(b)(1)(A) and (2) of the Act.
In the instant case, it is true that the Respondent’s
failure to provide timely notice of the lawful modifica-
tions in the hours-of-work requirement and the ‘‘men-
terminated-within-30 days’’ rule, to which all parties
had agreed, was arbitrary and in breach of its duty to
represent job applicants fairly by keeping them in-
formed about matters critical to their employment sta-
tus. The Respondent Union thereby violated Section
8(b)(1)(A).4 In the instant case, however, unlike in
Plumbers Local 230, the modifications did not impose
any affirmative obligations on hiring hall users who
would have acted differently had they been informed
of the modifications. Thus, as explained further below,
the failure to provide timely notice to employees of
these modifications did not cause employers to refuse
employment to any employees. Therefore, in the in-
stant case, we find only an 8(b)(1)(A) violation for the
failure to give adequate notice of the modifications.
As noted, because the judge here found that the fail-
ure to give notice violated Section 8(b)(1)(A) and (2),
he found that ‘‘it logically follows’’ that the imple-
mentation of these contractual hiring hall rules modi-
fications likewise violated Section 8(b)(1)(A) and (2).
We have reversed the 8(b)(2) violation for the failure
to give notice of these rules modifications. We also re-
verse the judge’s findings of violations in the Re-
spondent’s implementation of these rules modifica-
tions. In doing so, we note that there was no discrimi-
natory motive shown for the modifications and the
Union has demonstrated that the modifications were
necessary to the effective performance of its represent-
ative function.5 Indeed, the judge here noted that
‘‘counsel for the General Counsel questions neither the
validity of nor the necessity for the above-described
modifications.’’ In finding the implementation of the
modifications to be a violation, the judge cited to
Plumbers Local 230, supra. As noted, the union there
made a lawful change in its hiring hall rules, failed to
give adequate notice of the change, and the Board
found both 8(b)(1)(A) and (2) violations for the failure
to dispatch an employee who did not comply with the
change. There, however, the employee could have
acted differently had he been aware of the change and
obtained the job. In contrast, here, even if the Re-
spondent’s notice to hiring hall users had been satisfac-
tory, the employees involved, unlike the employee in
Plumbers Local 230, would still have been unable to
do anything to change the effect of the modifications
on their status. The employees’ placement on the ap-
propriate list was simply a matter of the application of
the new, lawful eligibility criteria and would not have
been affected by anything the employee did or did not
do upon being informed of the change. Similarly, the
suspension of the 120-working-days requirement in the
‘‘men-terminated-within-30-days’’ provision involved
action by the signatory contractor, not by the requested
individual. Accordingly, there was no violation of the
Act regarding the implementation of the modifications
in the seniority group hours-of-work requirement and
the working-days requirement of the ‘‘men-terminated-
within-30-days’’ rule. We shall therefore enter only a
cease-and-desist order to remedy the Union’s failure to
give adequate notice of these modifications.
2. The General Counsel excepts to the judge’s fail-
ure to conclude that the Respondent’s practice in 1987
and 1988 of merging all five seniority groups violated
Section 8(b)(1)(A) and (2) of the Act for reasons other
than the failure to provide notice to the hiring hall
users. In this regard, the General Counsel contends that
the evidence that the Respondent created a single out-
of-work list without regard to any of the contractual
seniority groups establishes a clear violation of the hir-
ing hall rules. We disagree. Instead, we find that the
creation of a single out-of-work list was a logical con-
sequence of the mutually agreed change in the hours-
of-work requirement. Because, as noted above, the
General Counsel has not contested the legitimacy or
necessity of that change, its effective implementation
through creation of the single list was not unlawful.
513PLUMBERS LOCAL 38 (BECHTEL CORP.)
6 There was no one in seniority groups 4 and 5 during the relevant
time.
7 The keymen rule prohibits dispatching a member of any group
lower than seniority group 1 as long as seniority group 1 members
with the requisite foreman experience are available on the out-of-
work list. The terminated-within-30-days and the right-to-hire-by-
name rules restrict such requests, to members of seniority group 1.
The bumping rule requires that the Respondent post a list of persons
who are in seniority groups lower than seniority group 1 so that job
applicants in seniority group 1 who are currently unemployed can
exercise their right to remove an employee in a lower group from
a jobsite.
8 Therefore, the only violations we find regarding Charging Party
Ed Bermingham since May 28, 1987, are those involving the Re-
spondent’s failure and refusal to dispatch him to jobs for which he
was eligible and available because he had filed unfair labor practice
charges with the Board and engaged in other protected concerted ac-
tivities.
Until 1986, the Union used a five-tiered seniority
system to refer individuals for work. To be in seniority
group 1, an individual had to have worked a specified
number of hours for a set period of time. Seniority
group 2 required fewer hours, and so on. The hiring
hall rules required referring all individuals on the out-
of-work list who were in seniority group 1 before re-
ferring anyone from seniority group 2, and so on.
In 1986, because of a significant decrease in total
available hours and a decline in the number of long-
term projects, the Union realized that under the then-
current hiring hall rules, referrals would go to a rel-
atively few individuals who managed to retain group
1 status. The Union sought to change the referral rules,
and the multiemployer association using the exclusive
hiring hall agreed. Pursuant to the agreement, the
Union suspended the hours-of-work requirement for
seniority groups 1 and 2, thereby including in those
groups any individual who had worked under the mas-
ter labor agreement at any time before signing the out-
of-work list. Because all individuals in seniority groups
1, 2, and 36 referred during the relevant time period
had worked under the master labor agreement at some
time before signing the out-of-work list, the effect of
the rule change was to combine the separate groups
into one group.
Our dissenting colleague argues that because the
agreement to change the hiring hall rules does not spe-
cifically refer to seniority groups 3, 4, and 5, therefore
the agreement cannot apply to them. This reasoning,
however, would require the Union to continue assign-
ing available hours to a limited number of hiring hall
users, despite the fact that the agreement lawfully
changed the hiring hall rules in order to distribute the
available hours more equitably. Further, our dissenting
colleague’s reading of the agreement freezes
preagreement group 3 individuals into that group. This,
however, ignores the reality that under the old rules,
individuals were not assigned to a group in perpetuity,
i.e., an individual in group 3 might later qualify for
group 1 or group 2. Once the hours-of-work require-
ment for defining seniority groups 1 and 2 was
changed, nothing prevented former seniority group 3
hiring hall registrants from qualifying for inclusion in
seniority groups 1, so long as they had worked under
the master labor agreement at any time. In effect, the
contractual modifications logically reached beyond just
redefining the priorities among groups 1 and 2 reg-
istrants and were properly reflected in a single out-of-
work list. Accordingly, there was no violation of the
Act in the merger of all the seniority groups.
3. The judge also found that the Respondent violated
Section 8(b)(1)(A) and (2) of the Act by departing
from its hiring hall rules insofar as it failed to accord
priority to seniority group 1 registrants in the applica-
tion of hiring hall rules pertaining to keymen, men ter-
minated within the preceding 30 days, right to hire by
name, and bumping.7 The judge noted the Respond-
ent’s explanation for its failure to abide by the
keymen, men terminated within 30 days, and right-to-
hire-by-name rules, i.e., that the suspension of the
hours-of-work requirements and the resultant seniority
group merger made strict adherence to these rules un-
necessary. Nonetheless, the judge found that because
the implementation of the suspension of the hours-of-
work requirement was rendered unlawful by the lack
of adequate notice and because the Respondent had not
demonstrated a compelling necessity for its failure to
comply with the seniority requirements in these rules,
the departure from the hiring hall rules constituted ar-
bitrary and inherently discriminatory conduct in viola-
tion of Section 8(b)(1)(A) and (2). We have already
found that the Respondent did not violate the Act in
its implementation of the changes agreed to between
the Union and the signatory multiemployer associa-
tions and have also found that the Respondent’s merg-
er of all five seniority groups did not violate the Act.
Contrary to the judge, for the same reason explained
above regarding the linkage between the modification
in the seniority group hours-of-work requirement and
the creation of a single out-of-work list, we find no
violation in the Respondent’s departure from hiring
hall procedures in permitting the dispatching of mem-
bers who were lower than seniority group 1 to keymen
positions when those who were higher may have been
available, and in dispatching those lower than seniority
group 1 pursuant to the ‘‘men-terminated-within-30-
days’’ and hiring-by-name provisions. These departures
from the published rules were simply a logical result
of the lawful suspension of hours-of-work require-
ments that effectively merged the seniority groups.8
Finally, we agree with the judge’s interpretation of
the 30-day language in the ‘‘men-terminated-within-
30-days’’ and the by-name provisions. The Respond-
ent’s departure from those rules as properly construed
did not—unlike the changes discussed above—flow
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Interest will be computed at the ‘‘short-term Federal rate’’ for the
underpayment of taxes as set forth in the 1986 amendment to 26
U.S.C. § 6621.
from mutually agreed contract modifications, was not
otherwise shown to be necessary to the operation of
the hiring hall, and actually affected the hiring hall ap-
plicants’ opportunities for work. We, therefore, also
agree with the judge that the Respondent’s departure
from these rules violated Section 8(b)(1)(A) and (2) of
the Act. We similarly agree with the judge’s findings
on the referral of named and unnamed individuals at
the same time, and his finding on the bumping provi-
sion as set out at section III,B,1,B of his decision.
AMENDED CONCLUSIONS OF LAW
The following shall be substituted for the judge’s
conclusions of law.
1. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. By failing to notify job applicants adequately of
the modifications of its contractually established hiring
hall rules (including the suspension of the hours-of-
work requirements and the suspension of the 120-
working-days requirement in the provision permitting
signatory contractors to make written requests for indi-
viduals who have been laid off within 30 days prior
to such request) that were agreed on by the Respond-
ent and the signatory contractors on or about Sep-
tember 11, 1986, the Respondent operated its exclusive
hiring hall in an arbitrary and discriminatory manner,
violative of Section 8(b)(1)(A).
3. By failing to adhere to article II, sections 16(b)
and (e) and 25, of the parties’ contract, the Respondent
operated its exclusive hiring hall in an arbitrary and
discriminatory manner in violation of Section
8(b)(1)(A) and (2) of the Act.
4. By, since May 28, 1987, failing and refusing to
dispatch Ed Bermingham to jobs for which he was eli-
gible and available because he filed unfair labor prac-
tice charges with the Board and engaged in other pro-
tected concerted activities, the Respondent operated its
hiring hall in an arbitrary manner and discriminated
against Bermingham in violation of Section 8(b)(1)(A)
and (2) of the Act.
5. By failing and refusing to honor Bermingham’s
request for dispatch information in order that he could
protect his referral rights, the Respondent engaged in
conduct violative of Section 8(b)(1)(A) of the Act.
6. By removing Bermingham’s name from the June
1989 out-of-work list, the Respondent engaged in arbi-
trary and discriminatory conduct, violative of Section
8(b)(1)(A) and (2) of the Act.
7. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Unless noted above, the Respondent engaged in
no other unfair labor practices.
AMENDED REMEDY
Having found that the Respondent has engaged in
and is continuing to engage in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of
the Act, we shall order it to cease and desist and to
take certain affirmative actions which are necessary to
effectuate the policies of the Act.
With regard to Charging Party Ed Bermingham, we
have found that the Respondent unlawfully failed and
refused to dispatch him to available jobs after May 28,
1987, based on unfair labor practice charges which he
had filed with the Board and other protected concerted
activities. To remedy this unlawful conduct,
Bermingham shall be made whole for any loss of earn-
ings and benefits suffered. Backpay shall be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).9
Likewise, as we have concluded that the Respondent
deliberately and discriminatorily omitted Ber-
mingham’s name from its San Rafael June 1989 out-
of-work list, the Respondent shall be ordered to make
Bermingham whole for any wages and benefits he may
have lost as a result of the discrimination against him
in the manner set forth above. Finally, the Respondent
shall be ordered to post a notice.
ORDER
The National Labor Relations Board orders that the
Respondent, Local Union No. 38, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL–CIO, San Francisco, California, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Failing to notify job applicants adequately of
changes in the hiring hall rules.
(b) Operating its hiring hall in an arbitrary and dis-
criminatory manner.
(c) Refusing to dispatch applicants and removing
their names from its out-of-work list because they filed
unfair labor practice charges with the Board or en-
gaged in other protected concerted activities.
(d) Failing and refusing to provide dispatch informa-
tion to job applicants that is necessary in order to pro-
tect the applicants’ referral rights.
(e) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
515PLUMBERS LOCAL 38 (BECHTEL CORP.)
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 I also agree with the finding that the Respondent violated the Act
by refusing to dispatch Charging Party Bermingham because of pro-
tected concerted activity, by removing his name from the out-of-
work list, and by refusing to supply him with requested information,
and with the dismissal of Charging Party’s Livingston’s allegations.
2 In this regard, the Respondent, subsequent to January 1, 1987,
began dispatching, without regard to any seniority groupings, appli-
cants who were qualified only for seniority group 3 or lower before
seniority group 1 or 2 members if the former names were higher on
the out-of-work list.
3 The Respondent further contends that the suspension of the
hours-of-work requirement had the dual effect of making eligibility
for seniority groups 1 and 2 the same and making eligible for inclu-
sion on the new seniority group 1 list any individual who had
worked under the multiemployer association labor agreement at
some time prior to registering on the out-of-work list. Inasmuch as
every individual referred from the hall during the relevant period had
worked under the multiemployer association labor agreement at
some point prior to registering on the out-of-work list, the Respond-
ent argues that all the individuals became eligible for inclusion on
the seniority group 1 list. I reject the Respondent’s claim that a nec-
essary outcome of effectively abolishing seniority vis-a-vis seniority
groups 1 and 2 was to abolish seniority vis-a-vis all groups. The lat-
ter situation is not a necessary outcome of the former situation.
(a) Make Ed Bermingham whole for any loss of
earnings and benefits which he may have suffered
since May 28, 1987, because of the Respondent’s dis-
crimination against him because he filed unfair labor
practice charges with the Board and engaged in other
protected concerted activities and because the Re-
spondent arbitrarily and discriminatorily removed his
name from its June 1989 San Rafael out-of-work list.
Backpay, with interest, shall be computed in the man-
ner set forth in the above amended remedy section.
(b) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
hiring hall records, dispatcher lists, job orders, referral
calls, and other documents necessary to analyze and
compute the amount of backpay due Bermingham
under the terms of this Order.
(c) Post at its facilities in San Francisco, San Rafael,
and Santa Rosa, California, copies of the attached no-
tice marked ‘‘Appendix I.’’10 Copies of the notice, on
forms provided by the Regional Director for Region
20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and shall be maintained for 60
consecutive days in conspicuous places, including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within
20 days of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint in Cases
20–CB–7346 and 20–CB–7659 be dismissed in its en-
tirety.
MEMBER DEVANEY, concurring in part and dissenting
in part.
I agree with my colleagues’ finding that the Re-
spondent Union violated Section 8(b)(1)(A) by failing
to give notice of a change in hiring hall rules, but did
not violate Section 8(b)(2) by failing to provide notice.
I also agree that the Union did not violate the Act by
implementing the rule changes.1 I do not agree, how-
ever, with my colleagues’ finding that the Respondent
did not violate the Act in 1987 and 1988 when, not-
withstanding that the modifications agreed to by the
Respondent and the multiemployer association pro-
vided for the merger only of seniority groups 1 and 2,
it began departing from its hiring hall rules by merging
all five seniority groups.2
As the General Counsel contends, the evidence that
the Respondent created a single out-of-work list with-
out regard to any of the contractual seniority groupings
establishes a clear violation of Section 8(b)(1)(A) and
(2). In this regard, in Operating Engineers Local 406
(Ford Construction), 262 NLRB 50, 51 (1982), the
Board held that:
[A]ny departure from established hiring hall pro-
cedures which results in a denial of employment
to an applicant falls within that class of discrimi-
nation which inherently encourages union mem-
bership, 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 pursu-
ant to a valid union-security clause or was nec-
essary to the effective performance of its rep-
resentative function [footnote omitted].
In the instant case, the Respondent has not shown 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.
The Respondent’s rationale for the merger of senior-
ity groups 1 and 2 was that there was a decline in em-
ployment opportunities within the Respondent’s juris-
diction so that the number of individuals able to qual-
ify for seniority group 1 had declined. This rationale,
however, does not explain why the Respondent found
it necessary to merge the other seniority groups.3 Thus,
the Respondent has made no showing that the effective
elimination of all priority based on the contractual se-
niority criteria was necessary for the effective perform-
ance of its representative function or was pursuant to
a valid union-security clause. Moreover, any changes
in the priority system going beyond the merger of se-
niority groups 1 and 2 were not authorized by any
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As noted by my colleagues, the keymen provision prohibits the
dispatching of a member of any group lower than seniority group
1 as long as seniority group 1 members with the requisite experience
are available on the out-of-work list. The men-terminated-within 30-
days and the right-to-hire-by-name rules restrict requests, pursuant to
their terms, to members of seniority group 1.
agreement with the employer parties to the contract. I
therefore would find that the Respondent’s departure
from the contractual hiring hall rules by its effective
elimination of all priority based on the seniority groups
violated Section 8(b)(1)(A) and (2).
In light of the Respondent’s unlawful merger of all
five seniority groups, I would also find that the Re-
spondent’s departure from its hiring hall rules in per-
mitting the dispatch of members who were lower than
seniority group 2 to keymen positions when those who
were higher may have been available and in dis-
patching those lower than seniority group 2 pursuant to
the men-terminated-within-30-days and right-to-hire-
by-name provisions4 violated the Act. I would find that
any applicants affected by the Respondent’s discrimi-
natory conduct as well as by its failure to adhere to
the keymen, men-terminated-within-30-days, the right-
to-hire-by-name, and the bumping provisions should be
made whole for any loss of earnings and benefits they
have suffered.
APPENDIX I
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to notify job applicants ade-
quately of modifications of the hiring hall rules.
WE WILL NOT operate our exclusive hiring hall in an
arbitrary or discriminatory manner.
WE WILL NOT refuse to dispatch applicants or re-
move their names from any of our out-of-work lists
because they filed unfair labor practice charges with
the National Labor Relations Board or engaged in
other protected concerted activities.
WE WILL NOT fail and refuse to provide information
to job applicants that is necessary for them to protect
their referral rights.
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 Ed Bermingham whole, with inter-
est, for any loss of earnings and other benefits which
he may have suffered as a result of our removal of his
name from our June 1989 out-of-work list at our San
Rafael office.
LOCAL UNION NO. 38, UNITED ASSO-
CIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPE FIT-
TING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL–CIO
Jonathan Seaqle, Esq., for the General Counsel.
Albert Brundage, Esq., of San Francisco, California, for the
Respondent.
Ed Bermingham, appearing pro se.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based on
unfair labor practice charges in Cases 20–CB–7259 (filed by
Ed Bermingham, an individual, on May 26, 1987), 20–CB–
7346 (filed by Philip H. Livingston, an individual, on July
28, 1987, and amended on August 19, 1987), 20–CB–7550
(filed by Bermingham on February 25, 1988, and amended
on April 29, 1988), 20–CB–7659 (filed by Livingston on
June 24, 1988), and 20–CB–7691 (filed by Bermingham on
July 29, 1988), the Regional Director of Region 20 of the
National Labor Relations Board (the Board) issued an
amended consolidated complaint (the consolidated complaint)
on February 10, 1989, alleging that Local Union No. 38,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO (Respondent) had engaged in various acts
and conduct violative of Sections 8(b)(1)(A) and 8(b)(2) of
the National Labor Relations Act (the Act). Respondent time-
ly filed an answer, essentially denying the commission of
any of the alleged unfair labor practices and asserting certain
affirmative defenses, including the 10(b) statute of limita-
tions. Thereafter, the above-captioned matters were scheduled
for hearing and tried before me in San Francisco, California,
on February 27 and March 1–3, 7, and 8, 1989. Based on
an unfair labor practice charge in Case 20–CB–8025, filed by
Bermingham on June 30, 1989, the Regional Director of Re-
gion 20 issued a complaint on August 31, 1989, also alleging
violations of Sections 8(b)(1)(A) and 8(b)(2) of the Act.
Given identical issues as involved in the above cases, Case
20–CB–8025 was consolidated, the above-captioned cases
were reopened, and an additional day of hearing was held on
October 19, 1989. At the hearings, all parties were given the
opportunity to examine and cross-examine witnesses, to
present any and all relevant documentary and other evidence,
to argue their legal positions orally, and to file posthearing
briefs. The latter documents were filed by counsel for the
General Counsel and by counsel for Respondent and have
been carefully scrutinized and considered. Accordingly,
based on the entire record, including my observation of the
testimonial demeanor of each of the witnesses and the
posthearing briefs, I make the following
517PLUMBERS LOCAL 38 (BECHTEL CORP.)
1 The jurisdiction of the National Labor Relations Board is not at
issue, has been admitted by Respondent, and shall not be elaborated
on by me.
2 Respondent operates contractually established hiring halls in San
Francisco, San Rafael, and Santa Rosa, California.
FINDINGS OF FACT1
I. LABOR ORGANIZATION
Respondent admits that it is now, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
II. ISSUES
With regard to Cases 20–CB–7346 and 20–CB–7659, the
unfair labor practice charges filed by Livingston, it is alleged
that Respondent twice engaged in conduct violative of Sec-
tion 8(b)(1)(A) of the Act—on one occasion by threatening
Livingston with bodily harm if he came to or attempted to
utilize Respondent’s hiring hall and on the other by threat-
ening him with unspecified reprisals for having filed unfair
labor practice charges with the Board. Respondent denied the
allegations, admitting the conversations but placing what was
said in a different context. As to the unfair labor practice al-
legations concerning Bermingham Cases 20–CB–7259, 20–
CB–7550, 20–CB–7691 and 20–CB–8025, it is asserted in
the complaints that Respondent violated Section 8(b)(1)(A)
and of the Act by operating its exclusive hiring hall in a
manner inconsistent with its existing collective-bargaining
agreement’s hiring hall rules and regulations and by
discriminatorily refusing to refer Bermingham and removing
his name from the out-of-work list because he filed unfair
labor practice charges with the Board and contractual griev-
ances with Respondent and that Respondent violated Section
8(b)(1)(A) of the Act by refusing Bermingham’s request for
information regarding its out-of-work list, referral requests,
and dispatch records. Respondent denied the commission of
any unfair labor practices, arguing that its dispatch proce-
dures reflect agreements with its contracting employers and
are necessary to represent all its member employees, that
there is no evidence of discrimination against Bermingham
and that to produce the records requested by him would be
unduly burdensome and oppressive.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Cases 20–CB–7346 and 20–CB–7659
1. The facts
The record establishes that Philip H. Livingston has been
a pipefitter and a member of Respondent since 1982; that he
last worked in March 1986; that he was not registered on any
of Respondent’s out-of-work lists since that time; and that,
while he visited Respondent’s hiring halls2 during 1987 and
1988, such were merely ‘‘to see what’s going on.’’ The
record further establishes that Livingston has been, for sev-
eral years, an active critic of Respondent’s operating policies
and practices, having filed NLRB and internal union charges
involving the conduct of its officers, including Joseph
Mazzola, Respondent’s long-time business manager. One
such NLRB charge, filed prior to the events herein, resulted
in a settlement agreement pursuant to which Respondent paid
approximately $16,000 to Livingston. The record also estab-
lishes that Mazzola has termed Livingston’s above conduct
‘‘malicious’’ and meant to ‘‘destroy’’ Respondent. The in-
stant unfair labor practice allegations concern two conversa-
tions between Livingston and Mazzola.
The initial conversation, according to Livingston, occurred
at approximately 3:30 p.m. on June 22, 1987. He called
Mazzola at the latter’s San Francisco office, introduced him-
self, and, although they last spoke 6 to 8 months before, rec-
ognized Mazzola’s voice. Livingston testified that he tele-
phoned the former in order to ‘‘delve’’ into aspects of Re-
spondent’s operations, including the construction cost of Re-
spondent’s new Santa Rosa meeting hall which had been
completed in 1983 and that he began on that subject, asking
for the amount spent on constructing the building. Mazzola
replied by saying ‘‘something that I didn’t understand and
ended up with the words ‘son of a bitch.’ And I said, ‘What
did you say?’ And he . . . repeated it and ended up with the
words ‘son of a bitch.’’’ Livingston asked if Mazzola was,
in fact, calling him a ‘‘son of a bitch,’’ and Mazzola replied
that the former had ‘‘caught him in the right mood’’ and
added, ‘‘You come down to the Hall and I’ll beat the shit
out of you.’’ Livingston responded that he just wanted to
know how much the Santa Rosa building had cost to con-
struct, ‘‘and then [Mazzola] repeated himself, [saying] ‘‘You
come down to the Hall and I’ll beat the shit out of you in
front of the whole membership.’’ During cross-examination,
Livingston recalled that the conversation ended with Mazzola
asking if Livingston had tape recorded the conversation.
Mazzola testified to a different version of this conversa-
tion, stating that he was not only aware of who Livingston
was but recalled the previous unfair labor practice settlement
agreement. According to Mazzola, Livingston had, once be-
fore, telephoned him, complaining about two business agents
deliberately keeping him from working. After calming Liv-
ingston down, on that occasion, Mazzola arranged to meet
the former in Santa Rosa in order to discuss his problems.
Thereafter, a meeting was held at Respondent’s office in that
city, with Livingston raising complaints about two business
agents, Fred Castro and Raymond Springer, who assertedly
were refusing to dispatch him to work. During the meeting,
Mazzola continued, Livingston continually threatened to take
Respondent both to the NLRB and to court and repeated
comments made during the telephone conversation that he
was from Chicago and knew all about Mazzola. After this
meeting, Mazzola further testified, he did not speak to Liv-
ingston for over a year, during which the latter ‘‘commenced
to get involved with the NLRB,’’ until the instant telephone
conversation. According to Mazzola, Livingston ‘‘started off
. . . that these two sons of bitches were at it again . . .
screwing up with his livelihood and they were keeping him
out of work.’’ He then threatened to get them and take away
their houses; Mazzola interrupted, asking why Livingston
thought it necessary to threaten the business agents. To this,
Livingston replied, ‘‘I’m one son-of-a-bitch that don’t have
any fear for you. . . . I can handle a guy like you.’’
Mazzola admittedly became excited at that point and re-
torted, ‘‘look there’s a union meeting . . . this Wednesday
night. . . . Why don’t you come on down and I’ll ask the
membership to open up a ring, and I guarantee I’ll kick the
shit out of you.’’ No more was said, and Mazzola specifi-
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cally denied any discussion regarding the cost of the Santa
Rosa building.
The second confrontation between the two men occurred
on March 14, 1988, in the parking lot outside of Respond-
ent’s San Francisco facility. Livingston testified that he ar-
ranged to meet Ed Bermingham there and that, as they
walked toward Livingston’s car, Mazzola, who was also in
the parking lot and speaking to another member, noticed him
and said, ‘‘There’s Livingston.’’ The latter walked over to
Mazzola, extending his hand, and asked how the business
manager was doing. Mazzola suddenly said, ‘‘So you’re in-
vestigating me,’’ and, after Livingston failed to reply, said
‘‘What’s this shit I hear that you’re a Christian? . . . You’re
no fucking Christian.’’ Again, Livingston made no response,
and Mazzola continued, saying, ‘‘You son of a bitch, you
must be a thief . . . because only a thief would . . . the
government has been investigating me for ten years and
haven’t [sic] found anything.’’ He added that Respondent’s
executive board told him ‘‘that if I want to know anything
to ask them’’ and that he was thinking about investigating
Livingston. Thereupon, according to Livingston, Mazzola
called him a ‘‘bastard,’’ adding ‘‘Let’s see how you come
out.’’ Believing that Mazzola was on the verge of becoming
extremely upset, Livingston abruptly turned and walked
away. During cross-examination, Livingston characterized
Mazzola as being ‘‘very excited’’ and ‘‘talking very loud.’’
Further, while saying that Mazzola did mention Livingston
‘‘investigating him,’’ Livingston admitted that the former
made no reference to the NLRB. Finally, the Charging Party
averred that there were no threats uttered during this con-
versation; it was Mazzola’s ‘‘demeanor’’ that concerned him.
With regard to their confrontation on that day in March
1988, Mazzola testified that it occurred ‘‘when I was going
into the parking lot to get into my car and I run into Brother
Livingston and Brother Bermingham.’’ Mazzola admits call-
ing Livingston a ‘‘phony bastard,’’ saying he had learned
that Livingston had asked his secretary for electrical billings
for work done at his (Mazzola’s) family ranch and Living-
ston would not be given any such records. Mazzola further
admitted that he may have cursed Livingston again, saying
he’d been investigated by the Government for many years
and had nothing to worry about. He added that if Livingston
was from Chicago and used such tactics, he should be the
one being investigated. Mazzola further admitted being ‘‘so
damn mad’’ about what Livingston had been doing that he
could not recall exactly what he said to the former on that
occasion. However, he did deny making any threats of repris-
als for Livingston going to the NLRB; ‘‘I begged him not
to. To use the union and the executive board for us to try
to iron it out.’’
2. Analysis
Essential to a determination as to whether the foregoing
confrontations constitute violations of Section 8(b)(1)(A) of
the Act, as alleged in the instant complaint, is a resolution
of the credibility of the two witnesses. In this regard, while
neither was a particularly unimpressive witness, Joseph
Mazzola seemed to be the more candid and straightforward
regarding the above-described conversations and, in light of
what I perceived as his truthful demeanor, shall be credited
over Philip Livingston. Accordingly, I find that, during their
June 1987 telephone conversation, Mazzola invited Living-
ston to attend a membership meeting and engage in a fist
fight with him after Livingston complained about the actions
of Business Agents Castro and Springer and uttered personal
threats against them and warned that he (Livingston) had no
fear of Mazzola and could ‘‘handle’’ him. The test for deter-
mining if Mazzola’s remark constituted a violation of Section
8(b)(1)(A) of the Act is whether the remark tended to re-
strain or coerce employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.’’ Laborers Local 806,
295 NLRB 941 (1989); Laborers Local 496 (Newport News),
258 NLRB 1105 fn. 2 (1981). In reaching said determination,
the Board must initially decide whether the disputed conduct
is the result of personal animosity or an emotional reaction
to some sort of provocation or is directly related to Section
7 conduct. Laborers Local 806, supra; Teamsters Local 729
(Penntruck Co.), 189 NLRB 696 (1971). While the remark
was uttered after Livingston had registered a complaint about
the two business agents, it seems clear that Mazzola was re-
acting to Livingston’s threats against Castro and Springer
and the latter’s warning that he could ‘‘handle’’ Mazzola. In
these circumstances, as I believe that the latter was merely
emotionally reacting to a perceived provocation and not to
Livingston’s protected concerted activities, I do not believe
his remark was violative of Section 8(b)(1)(A) of the Act.
With regard to the confrontation in the parking lot of Re-
spondent’s San Francisco facility in March 1988, there is
really no dispute that Mazzola spoke in an excited and loud
manner and undoubtedly cursed at Livingston, calling him a
‘‘bastard, a son-of-a-bitch, and a thief.’’ However, based on
my credibility resolution, I find that said remarks were de-
monstrative of Mazzola’s stated indignation that Livingston
had sought, from his (Mazzola’s) secretary, bills and other
records relating to electrical work done at his family ranch.
Further, notwithstanding the specific language of the com-
plaint, Livingston admitted that Mazzola never mentioned the
NLRB during the confrontation and that, rather than his lan-
guage, Mazzola’s ‘‘demeanor’’ was what concerned the
Charging Party. As with the prior allegation, Mazzola ap-
pears to have acted out of personal animosity toward Living-
ston on this occasion; whatever Section 7 activities in which
the latter may have been engaged and Mazzola’s belief as to
Livingston’s motivation in so acting do not appear to have
been involved or, indeed, of concern to Mazzola. In these
circumstances, Mazzola’s conduct during this occasion like-
wise was insufficient to establish a violation of Section
8(b)(1)(A) of the Act. Laborers Local 806, supra; Laborers
Local 496, supra. Accordingly, I shall recommend that para-
graphs 8 and 9 of the consolidated complaint be dismissed.
B. Cases 20–CB–7279, 20–CB–7550, 20–CB–7691,
and 20–CB–8025
1. The facts
Respondent is a labor organization which represents em-
ployees who work as plumbers, pipefitters, steamfitters, and
welders in the building and construction industry, in the ship-
building and repair industry, in the service and repair indus-
try, and in other businesses. At all times material, Mazzola
and his son Larry were, respectively, the business manager
and assistant business manager of Respondent. The record
establishes that Respondent’s territorial jurisdiction includes
five northern California counties (San Francisco, Marin,
519PLUMBERS LOCAL 38 (BECHTEL CORP.)
3 Out-of-work lists are maintained at each of the three hiring hall
offices. An employee-member may register on each list, and the lists
are separate for each office. However, once an individual is dis-
patched off of any of the three lists, he forfeits his position on the
lists at the other two offices.
4 The contractually established seniority groups are as follows: se-
niority group I (SG-1) consists of plumbers and pipefitters who have
been employed by signatory contractors for, at least, 1000 hours
each year during the 2 years immediately preceding the year of reg-
istration on the out-of-work list; seniority group II (SG-2) consists
of plumbers and pipefitters who have been employed by signatory
contractors for, 1000 hours in 2 out of the 5 years immediately pre-
ceding the year of registration on the out-of-work list; seniority
group III (SG-3) consists of plumbers and pipefitters who have
worked for, at least, 1000 hours in 2 out of the 5 years immediately
preceding the year of dispatch off of an out-of-work list in the great-
er San Francisco Bay Area or in an industry other than the building
and construction industry within Respondent’s territorial jurisdiction;
seniority group IV (SG-4) consists of other qualified plumbers and
pipefitters; and seniority group V (SG-5) consists of unqualified
plumbers and pipefitters, as defined under the MLA, who have been
employed by signatory contractors.
5 This exception is subject to the requirement that no such request
for key men from any seniority group beneath SG-1 shall be honored
if there are individuals remaining on the out-of-work list in SG-1
who possess the necessary experience.
6 In determining the existence of special skills and abilities, the
dispatcher may rely on his own personal knowledge or an appli-
cant’s designation of his own skills.
7 The MLA specifies that no employee shall be dispatched on a
by-name basis who is not in SG-1.
8 The relevant dispatch procedural rules are attached hereto as Ap-
pendix II.
Sonoma, Mendocino, and Lake) and that Respondent main-
tains business offices and hiring hall facilities in three cities
(San Francisco, San Rafael, and Santa Rosa) in order to
serve its employee-members. At all times material, Jim
Kazarian and Greg Speranza were business agents assigned
to the San Francisco office; and Fred Castro and Raymond
Springer were the business agents assigned to the San Rafael
and Santa Rosa offices, alternating at said facilities. The
record further establishes that, with regard to the building
and construction industry, Respondent has had successive
combined labor agreements with three multiemployer asso-
ciations (Mechanical Contractors Association of Northern
California, Plumbing-Heating-Cooling Contractors Associa-
tion of Marin, Sonoma, Mendocino Counties, Inc., and
Plumbing & Mechanical Contractors of San Francisco, Inc.),
(MLA), the most recent of which is effective until June 30,
1990. In addition, Respondent maintains independent agree-
ments with employers who are not members of either of the
three multiemployer associations, and so-called project agree-
ments with employers, covering particular jobs and no oth-
ers.
Pursuant to these various collective-bargaining agreements,
Respondent exists as the exclusive source of employees for
signatory contractors and operates hiring halls at its San
Francisco, San Rafael, and Santa Rosa facilities for the pur-
pose of receiving work orders and dispatching employees.
The rules and regulations governing the operation of Re-
spondent’s exclusive hiring hall are set forth in article II of
the MLA and are posted at each of the above facilities. Pur-
suant to said operational rules and regulations, Respondent is
required to maintain separate out-of-work lists3 for each of
the above crafts and separate such lists, within each craft, for
each seniority group;4 dispatch applicants are registered on
the appropriate craft out-of-work list in the order of time and
date of registration and in the highest seniority group for
which they qualify. With regard to the dispatching of em-
ployees, subject to certain enumerated exceptions, this must
be done in the order in which names appear on the out-of-
work list, commencing with SG-1 and successively through
the remaining seniority groups. The specified exceptions are
as follows: (1) requests for ‘‘key men’’ (foremen, super-
visors, or general foremen) must be honored without regard
to the individual’s place on the out-of-work list;5 (2) requests
for SG-1 individuals who had been laid off within 30 days
of said request and who had worked for the signatory con-
tractor in excess of 120 days during the 12-month period pre-
ceding the request; (3) requests for individuals with ‘‘special
skills and abilities’’ will be honored without regard to posi-
tion on the out-of-work list;6 and individuals may be re-
quested by name and dispatched regardless of position on the
out-of-work list provided that the individual has been reg-
istered on the SG-1 out-of-work list for a minimum of 3
working days and that the requesting signatory contractor
‘‘has first obtained an individual from the hiring hall on an
unnamed basis. . . . The first employee requested by the
Employer must be on an unnamed basis.’’ (Emphasis
added.)7 Further, an applicant must be present in the hiring
hall when his name is called to receive a dispatch. Finally,
in order to maintain his position on the out-of-work list, an
applicant must reregister in person at least once each week;
an applicant may retain said position until he has had at least
5 days of work or unless he ‘‘turns down dispatch offers or
job offers on three different jobs which he is qualified to per-
form.’’8
On or about September 11, 1986, Respondent and the mul-
tiemployer associations, signatory to the existing MLA, en-
tered into agreements which significantly altered the contrac-
tual hiring hall rules pertaining to the employee-members’
eligibility for dispatch. One memorandum of understanding
(G.C. Exh. 4) indefinitely suspended the hours of work re-
quirements for SG-1 and SG-2 and reads as follows:
WHEREAS, the U. A. Local 38 Collective Bar-
gaining Agreement of July 1, 1984 to June 30, 1990
provides in Article II, Section 14(a), that in order to be
on Seniority Group I, Plumbers and Pipefitters have to
be employed by a contractor, party to the Agreement
for a period of at least one-thousand (1,000) hours each
year during the two (2) calendar years preceding the
year negotiation is effected on the out-of-work list, and
WHEREAS, there is a similar hour of employment
provision required in Seniority Group II in Article II,
Section 14(b), and
WHEREAS, the present employment situation is
such that there are very few Plumbers and Pipefitters
who receive the requisite number of hours of work in
order to qualify for the Seniority Groups I & II so that
it is not practical to require these hours of employment
to qualify for these respective Seniority Groups, and
WHEREAS, it would be grossly unfair to remove a
person from the Seniority Group Lists for reasons be-
yond their control, it is, therefore, agreed between the
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Mazzola was unaware of the merger of or elimination of any
other contractual seniority group.
10 Despite his concession, Kazarian maintained that all SG-1 mem-
bers were aware of the eligibility rule modification, including those
whose work on jobs prevented them from coming to Respondent’s
hiring hall until sometime in 1987. Kazarian claimed that he particu-
employers, parties to the U. A. Local No. 38 Collective
Bargaining Agreement and Local Union No. 38 that the
hour requirements provided in these provisions be sus-
pended until such time as the employment situation
changes so as to make the hours of employment re-
quirement practical at which time the parties will meet
to consider the reinstitution of the hour requirements
for the Seniority Groups I & II.
Another memorandum of understanding (G.C. Exh. 5) made
it easier for signatory contractors to request, by name, em-
ployees who had been laid off by it within the previous 30
days. It states:
WHEREAS, the U. A. Local 38 Collective Bar-
gaining Agreement of July 1, 1984 to June 30, 1990
provides in Article II, Section 16(b), as follows:
‘‘MEN TERMINATED WITHIN THIRTY (30)
DAYS. Written requests by contractors for particular
plumbers or pipe fitters from Group I who have been
laid off or terminated by the contractor within thirty
(30) days prior to the request and were employed by
the requesting contractor for a period in excess of
one hundred twenty (120) working days during the
twelve (12) months preceding the request, shall be
honored without regard to the man’s place on the
out-of- work list, provided the applicant has not ob-
tained employment in excess of five (5) days since
the time of termination.’’
WHEREAS, the present employment situation is
such that the jobs are of shorter duration so that the
plumber and pipe fitter whom the contractor is calling
by name must be employed for the required one hun-
dred twenty (120) working days, is not practical, it is
therefore, agreed between the employers, parties to the
U. A. Local No. 38 Collective Bargaining Agreement
and Local Union No. 38 that this requirement be sus-
pended until such time as the employment situation
changes so as to make this requirement practical at
which time the parties will meet to consider the re-
institution of this requirement.
A third modification of the hiring hall rules adopted by the
parties on or about that date increased from 5 to 10 the num-
ber of days an employee would have to work before he lost
his position on the out-of-work list.
As to the necessity for said modifications, Larry Mazzola
testified, without contradiction, that the early 1980s were
years of significant levels of work for Respondent’s em-
ployee-members, especially steamfitters. During this period,
with work beginning on new geothermal plants in Marin
County and rapidly increasing high rise construction project
work in San Francisco, employment opportunities were plen-
tiful for Respondent’s members and many nonmembers ap-
plied for work out of the hiring hall. However, in the middle
of the decade, according to Jim Kazarian, quite unexpectedly,
the geothermal, or ‘‘geysers,’’ projects, which were supposed
to provide work for employee-members for, at least, 20
years, ceased. Also, voters in San Francisco approved a so-
called ‘‘no growth’’ proposition, which imposed a height
limitation on any new construction, made building codes
more restrictive, and placed a moratorium on the locations of
new construction. The impact of both events on Respondent
were catastrophic. Work opportunities, which once had been
readily available, suddenly became scarce, Respondent’s out-
of-work lists became quite lengthy, and what jobs became
available were, for the most part, of a short duration. Ac-
cording to Larry Mazzola, with decreased employment at
long-term projects and members out of work for long periods
of time, it became evident to Respondent’s leadership, in
1986, that the contractual hiring hall rules were ‘‘too restric-
tive’’ to enable most members to have a ‘‘fair’’ opportunity
for obtaining work. What they anticipated was that many
SG-1 members would not work 1000 hours in 1986 and,
consequently, drop into SG-2 for 1987, resulting in only the
small remaining number of SG-1 members being eligible for
most of the available work and always remaining ahead of
the expanded SG-2 roster on the out-of-work lists. Accord-
ingly, after exploring the matter with the signatory multiem-
ployer associations, Respondent and the former agreed on
General Counsel’s Exhibit 4 in effect a merger of the SG-
1 and SG-2 membership lists9 and giving all those eligible
employee-members an equal opportunity to obtain jobs. With
regard to the modification set forth in General Counsel’s Ex-
hibit 5, Mazzola explained that ‘‘we decided the 120 days
was too restrictive’’ inasmuch as contractors were having
employees work on shorter duration jobs and, consequently,
being unable to rehire them by name due to the mandated
period of prior work for the requested employer. Mazzola as-
serted that the merger of the seniority groups resulted in no
position changes on the out-of-work lists but conceded that
some registrants may, indeed, have been dispatched over
those who previously had been in a higher seniority group.
According to him, the suspension of the 120-day prior em-
ployment requirement resulted in no physical changing of the
out-of-work lists.
While the General Counsel does not challenge the neces-
sity for the foregoing hiring hall rules modifications, the ade-
quacy of the notice to hiring hall applicants is at issue. Larry
Mazzola testified that, on the execution of the above-de-
scribed documents ‘‘we notified the dispatchers’’ and in-
structed them to notify the hiring hall users as to the
changes. He added that he was never subsequently present at
one of the hiring halls when rule changes were announced
and that no other steps, other than ‘‘word of mouth,’’ were
contemplated for so informing applicants. Kazarian corrobo-
rated Mazzola as to being informed of the aforementioned
hiring hall rules modifications and as to Mazzola instructing
him ‘‘to notify the members that were out of work . . .
about what had transpired.’’ Notwithstanding that the con-
tractual hiring hall rules were posted, Kazarian testified that
he informed applicants of the changes ‘‘verbally’’ when they
‘‘asked me about the list that they were in fear of coming
off the list.’’ He added that ‘‘I also went out and told other
people that were there in the dispatch office’’ but admitted
never posting copies of either memoranda and conceded not
being able to say that he told every job applicant of the
changes.10 As did Kazarian, Raymond Springer, the business
521PLUMBERS LOCAL 38 (BECHTEL CORP.)
larly sought out these latter individuals but couldn’t be certain all
knew of the rule change.
11 Jim Kazarian asserted that he specifically informed Bermingham
about the merger of the seniority groups in early 1987 during a con-
versation about another member, Mike Murphy. The business agent
recalled Bermingham ‘‘asking me about why we merged group 1
and 2 and I said. . . . They merged them all. They merged both
those books so what are you worried about?’’ During cross-examina-
tion, Kazarian reiterated telling Bermingham ‘‘specifically’’ about
the seniority group merger; however, Kazarian was thereupon con-
fronted with his pretrial affidavit wherein he stated that he never
specifically told Bermingham that the seniority groups had been
merged but only that he (Bermingham) did not have enough hours
to be eligible.
Philip Livingston corroborated Bermingham, stating that, on the
occasions of his visits to any of Respondent’s hiring halls in 1987,
he likewise never was informed about any merger of the seniority
groups.
12 There is no dispute that, during 1986, Bermingham worked
overtime hours for Atkinson Mechanical but only straight-time hours
for Amos and Andrews. Rather than being bound to the terms and
conditions of the existing MLA, Atkinson Mechanical and Respond-
ent were parties to one of the above described project agreements.
Pursuant to said agreement, notwithstanding the overtime hours mul-
tiplier for the payment of wages and unlike the terms of the MLA,
there existed no such multiplier for purposes of credited trust fund
hours.
agent at Respondent’s San Rafael facility until August 1987,
learned of the hiring hall rules modifications in September
1986 and was instructed to notify users as they returned to
the hiring hall. Springer testified that the merger of SG-1 and
SG-2 was an issue at that time as work was ‘‘more or less
stopping’’ at the geysers project and members were con-
cerned about finding enough work to maintain their hours.
While apparently posting nothing regarding the modifica-
tions, Springer testified, ‘‘as the men would come in . . . I
would bring up the subject . . . because it had been quite
a bone of contention in that area . . . and sometimes even
walk out where the men were sitting and talk to them.’’
However, as did Kazarian, Springer conceded not being able
to recall how many hiring hall users he informed about the
rules modifications but averred having mentioned it ‘‘many,
many times’’ to them.
The Charging Party, Ed Bermingham, has worked in the
building and construction industry as a steamfitter for many
years and has been a member of Respondent for approxi-
mately 12 years. Testifying that he personally never was in-
formed by any of Respondent’s business agents during 1987
as to either a merger of the two highest seniority groups or
the suspension of the 120 employment days’ requirement,11
Bermingham, as does the General Counsel, disputes the va-
lidity of these hiring hall rules modifications and maintains
that, for purposes of dispatching to available jobs during
1987, his eligibility for such should have been as a member
of SG-1 among Respondent’s member-steamfitters. In this re-
gard, the record discloses that Bermingham worked 1049
hours during 1983; that he was credited by the administrator
of the contractually established fringe benefit trust funds with
having worked a total of 1064 hours in 1985; that, during
1986, he was employed by Atkinson Mechanical Contractors
Co. from May 18 through September 5 and by Amos and
Andrews, Inc. from the pay period ending September 19
through November 28; and that Bermingham physically
worked a total of 957.5 hours for the said contractors in
1986 but received payment for 1,005.95, reflecting a contrac-
tually established multiplier of time-and-a-half for the ap-
proximately 97 overtime hours he worked for Atkinson Me-
chanical.12 Notwithstanding Bermingham’s belief that, based
on the foregoing, he was, in fact, eligible for Respondent’s
membership SG-1 during 1987, he became aware of Re-
spondent’s contrary view and of the existence of a problem,
regarding the computation of his 1986 work hours, in May
or June 1988 when Jim Kazarian told him ‘‘You don’t have
enough hours to be group 1.’’ In this regard, article II, sec-
tion 14(a), of the existing MLA, states that, in determining
eligibility for SG-1, ‘‘the dispatcher shall have recourse to
the records of the Trust Fund for the two (2) calendar years
preceding the year in which the dispatch occurred,’’ and arti-
cle II, section 14(f) reads:
In the event of any doubt as to whether an applicant
has met the one thousand (1,000) hour requirement, the
dispatcher shall have discretion to resolve the matter by
accepting as final either (a) a letter from the Health and
Welfare Fund in the area in which he claims to have
worked or, (b) records of previous employers.
The record establishes that Kazarian’s assertion to
Bermingham was based on a June 16, 1988 memorandum
from Frank Sullivan, the administrator of the contractually-
established fringe benefits trust funds, to the former (G.C.
Exh. 10). Sullivan testified that the trust funds credited
Bermingham with having worked no more than 957.5 hours
in 1986, based on the total regular and overtime hours he
worked for Atkinson Mechanical (recognizing that no con-
tractual multiplier existed for overtime hours in computing
the credited trust fund hours) and the straight-time hours he
worked for Amos and Andrews. Sullivan further testified
that, when he reports hours to Respondent, he is concerned
only with the ‘‘hours contributed for’’ and that, noting the
contractual discrepancy between work hours for purposes of
wages and fringe benefit contributions, ‘‘the wages can vary
as to their requirements. They could be double, they could
be time and a half, they could be straight time all the way
through. The trust fund records are not interested in wages.’’
He added that, under the MLA, a multiplier is applied to
overtime hours credited for trust fund contributions; however,
such did not apply to the Charging Party when he worked
for either contractor.
The crux of the instant unfair labor practice allegations in-
volves Respondent’s failure to refer hiring hall applicants, in-
cluding Ed Bermingham, to available jobs since January 1,
1987, as a result of its implementation of the aforementioned
allegedly unlawful modifications of the operating rules and
regulations for its exclusive hiring hall and other such
changes which will be discussed infra. In addition, it is al-
leged that, since May 28, 1987, Respondent has
discriminatorily failed and refused to refer Bermingham to
jobs for which he was eligible and qualified. With regard to
the latter allegation, the record reveals that the Charging
Party, despite regularly registering on the steamfitter out-of-
work lists at Respondent’s San Francisco, San Rafael, and
Santa Rosa offices, worked just 424 hours in 1987 and 1 day
and 2 hours in 1988 and that, during said years, he persist-
ently complained about perceived violations of the contrac-
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The record discloses that Mike Murphy had worked as a steam-
fitter in the ship repair industry and that, while a member of Re-
spondent, he was covered under the terms and conditions of employ-
ment of a different collective-bargaining agreement than building
and construction industry steamfitters. In June 1985, Murphy, who
had the requisite work experience and ability to be classified as a
journeyman, requested that he be transferred to Respondent’s build-
ing trades eligibility list and that he be given credit for his seniority
(he was eligible for SG-1) under the ship repair industry contract.
The record further discloses that Jim Kazarian and Larry Mazzola
sponsored Murphy’s request and that Respondent’s executive board
approved it in July 1985. Thereafter, Murphy worked as a journey-
man steamfitter in the building and construction industry, apparently
with his seniority retained. G.C. Exh. 8, a compendium of the cred-
ited hours of work for various named steamfitters during the years
1982 through 1987, nevertheless discloses that Murphy was not cred-
ited with any work hours in either 1985 or 1986 and for just 884
hours in 1987.
14 Art. II, sec. 25 of the existing MLA concerns ‘‘bumping senior-
ity’’ and states that ‘‘unemployed workmen from Group 1 shall have
the right to replace any workmen not dispatched from Group 1 pro-
vided he is able to do the work. In effecting such dispatch, the dis-
patch shall be made from those on an out-of-work list in Group 1
in the order in which their names appear on the list. The dispatcher
shall maintain a list of persons, who to the best of his knowledge,
are currently employed and were not dispatched from Group 1 and
are not now qualified for Group 1.’’ The provision continues, requir-
ing the hiring hall dispatchers to ‘‘post’’ the positions which are
filled by the above individuals and specifying times of the week for
job ‘‘bumping’’ to occur.
Counsel for Respondent stated that the bumping provision has
been included in successive MLAs since, at least, 1948, that he be-
lieves said provision is violative of the Act and unenforceable, and
that he has instructed Respondent’s officials not to utilize said provi-
sion. In this regard, Jim Kazarian testified that, to his knowledge,
Respondent has never permitted sec. 25 or its predecessor clauses to
be utilized in order to remove an employee from a jobsite.
15 Bermingham maintained that Respondent has never complied
with the MLA requirement to keep lists of those in seniority groups
lower than SG-1 who were working and of the positions they held.
Therefore, he maintained, ‘‘they did not let me exercise my right to
the bumping seniority so I lost it.’’ Kazarian conceded that nothing
ever was posted pursuant to the MLA bumping provision.
16 According to Bermingham, Kazarian told him that he (Kazarian)
had visited the jobsite and told the foreman that, under the MLA,
Bermingham had the right to bump Mike Murphy from the job and
that the foreman had the choice of laying off Murphy or keeping
Bermingham and Murphy on the job. The foreman chose the latter
option.
17 Kazarian testified that the contractor was Amos and Andrews
(not, as Bermingham stated, Atkinson Mechanical) and that
Bermingham had been laid off due to insubordination and dis-
satisfaction with his work. Further, after Bermingham complained to
him about the layoff, he (Kazarian) visited the jobsite and persuaded
the foreman to reinstate Bermingham. Kazarian maintained that such
had nothing to do with the contractual bumping procedure and that
said procedure has never been utilized during his employment by
Respondent
18 There is no dispute that, notwithstanding the contractual hiring
hall rules and the San Francisco requirement of such at least once
a month, personally signing the out-of-work lists was not a require-
ment at either San Rafael or Santa Rosa.
tual dispatch, hire, and layoff provisions by both signatory
contractors and Respondent. Thus, he filed, at least, eight
contractual grievances against contractors for whom he had
worked, alleging improper layoffs, and filed several internal
union grievances in which he complained about the conduct
of specified officials and business agents, including Jim
Karazian, in operating the hiring halls. In addition, com-
mencing in May 1987 and continuing through 1988,
Bermingham filed no less than 10 unfair labor practice
charges with the Board, alleging Respondent’s unlawful con-
duct involving its hiring halls. On one occasion in February
1987, according to Bermingham, he orally complained to
Kazarian about a layoff from Atkinson Mechanical, arguing
that another individual, Mike Murphy, with an assertedly
lower seniority group standing,13 should have been laid off
before him and that he (Bermingham) should be allowed to
utilize the contractual bumping procedure to replace Murphy
on the job.14 According to Bermingham, Kazarian told him
that he was a member of SG-1 and that he had bumping se-
niority over Murphy.15 Thereafter, the Charging Party testi-
fied, Kazarian called him and said that the contractor had
agreed to reinstate him to work.16 Kazarian testified to a dif-
ferent version of what occurred,17 stating that when
Bermingham asserted his right to bump Murphy from the
job, ‘‘I told him he didn’t have that right, that they were
both . . . group 1. . . . How can you bump somebody’s
whose group 1?’’ However, when confronted with his pre-
trial affidavit wherein he stated that, during the processing of
a grievance, he told Bermingham ‘‘that [the latter] does have
the right to bump another employee that is in a lower senior-
ity group,’’ Kazarian admitted that his affidavit statement
was correct.
Counsel for the General Counsel argues that a series of
comments by Respondent’s officers and business agents
demonstrate its animus toward Bermingham resulting from
his above-described acts and conduct. Thus, Bermingham
testified that, in October 1987, after receiving a dispatch to
a job from Kazarian, he overheard the latter tell another
member, ‘‘That son of a bitch has charges against me and
I’ve got to give him a job.’’ Kazarian failed to deny this
comment. Next, in early February 1988 while at the San
Francisco hiring hall, Bermingham asked business agent
Greg Speranza to call the Santa Rosa office to enable the
Charging Party to ascertain if his name remained on the out-
of-work list there. Ray Springer answered, and Bermingham
asked if his name was still on the list and said he wanted
it to remain there. Springer replied ‘‘that because of the com-
motion you’ve been causing down at the Union you’re going
to have to come in and sign the list.’’18 Springer recalled a
different telephone conversation with Bermingham during
which the latter inquired as to his place on the out-of-work
list. After the business agent told the Charging Party that he
was not on the list and the latter asked why, Springer assert-
edly told him that his name had been removed from the list
after he (Bermingham) had been dispatched to work from
San Francisco and that he had failed to check back with
Santa Rosa since that time. Eight days later, according to
Bermingham, he followed the same procedure, on this occa-
sion asking Speranza to telephone the San Rafael office to
permit him to speak to Fred Castro, the business agent as-
signed to that office. As in the previous conversation,
Bermingham asked if his name remained on the out-of-work
list, and Castro responded by accusing Bermingham of being
‘‘Melvin Belli,’’ and asking whom he would sue next.
Bermingham replied that he had not decided. Castro replied,
523PLUMBERS LOCAL 38 (BECHTEL CORP.)
19 As stated above, no such requirement was enforced at either the
San Rafael or Santa Rosa offices; however, after his conversation in
February 1988 with Ray Springer, according to Bermingham, he vis-
ited the Santa Rosa office on a monthly basis in order to sign the
steamfitter out-of-work list next to his name.
20 Analysis of the 125 allegedly unlawful dispatches discloses that,
on numerous occasions, individuals who were only qualified for SG-
3 or lower were dispatched to available jobs prior to Bermingham,
whose name appeared below those of the former individuals on the
out-of-work list. At the hearing, counsel for Respondent conceded
that SG-3 members and below were not specifically included in the
seniority group merger but argued then and in his posthearing brief
that the effect of the seniority group merger was that individuals
needed to have worked just one hour under the MLA to become eli-
gible for postmerger status as SG-1 members.
21 Raymond Springer testified that, at the Santa Rosa office, he
never demands that applicants be present at the facility in order to
be dispatched and that he informs them of referrals by telephone. He
follows this procedure given ‘‘the cost of them running to the Santa
Rosa hiring hall,’’ which to Springer is ‘‘overbearing.’’ Fred Castro
testified at the initial hearing that, at San Rafael, he uses the same
procedure—‘‘I call.’’ He added that he copied Springer as to this.
When the hearing reopened in November, Castro contradicted his
earlier testimony, stating that applicants ‘‘have to be in the hiring
hall to be dispatched.’’ He added that such has been his policy
‘‘since I took over.’’
22 Bermingham stated that he would vary the days when he would
be at the hiring hall in order to ‘‘try to figure out what days most
people are getting dispatched. . . . I’m trying to outguess people as
to when they’re going to hire people.’’ His purpose was to ‘‘be
present when [the dispatcher] was to dispatch somebody to a job.’’
‘‘Eddie, you’re going to starve to death doing that.’’ Fred
Castro conceded making the ‘‘Melvin Belli’’ remark, stating
that such was in the context of ‘‘joking’’ with him and that,
after Bermingham said ‘‘more’’ lawsuits would follow, he
(Castro) said, ‘‘Yes, even if it breaks you you’ll keep
suing.’’ Finally, counsel points to General Counsel’s Exhibit
23, a letter from Joseph Mazzola to all building trades mem-
bers of Respondent, dated September 6, 1988, in which Re-
spondent’s business manager commented on the motivation
of Philip Livingston and Ed Bermingham in filing unfair
labor practice charges with the Board and complaints with
the Department of Labor. He wrote:
What the motives of Livingston and Bermingham are is
unclear and who is financing them is unknown to me.
But, one thing is certain. They appear determined to
smear the reputation of Local Union 38 and its officers
and, if they could, to completely destroy our local
union. Their actions are clearly maliciously intended
and they are designed in every manner possible to har-
ass the officers and agents of this local union and to
cause the union to expend finances from the union
treasury to defend itself against their unsupported and
unsubstantiated charges.
Before analyzing the allegedly unlawful job referrals re-
sulting from Respondent’s failure to adhere to its contrac-
tually established hiring hall rules and procedures and its dis-
criminatory motivation against Ed Bermingham, it is impor-
tant to understand the functioning of the hiring hall’s dis-
patch system. In this regard, out-of-work job applicants are
registered on the applicable craft hiring hall out-of-work lists
in the order in which they have registered, with their places
preserved each month unless dispatched to jobs which last
longer than 5 days. In order to indicate their continued avail-
ability for dispatch, individuals, who have registered on the
San Francisco out-of-work lists, must sign the applicable list,
next to their name, once a month;19 failure to do so results
in removal of the applicant’s name from the applicable list.
Jim Kazarian testified that the business agent, who is acting
as the hiring hall dispatcher, normally becomes aware of job
calls from contractors each morning. Said job referral orders
indicate the type of work, the number of workers needed,
and whether the referral is for a ‘‘by name’’ call, a specialty
job, or for a ‘‘key’’ man (foreman). If the work order is just
for people off the applicable list or a by-name order (where-
by an equal number of workers must be taken off the appli-
cable out-of-work list), applicants are supposed to be called
off the list in the order in which their names appear. Prior
to the September 1986 merger of the two highest seniority
groups and in accordance with the terms of the MLA, such
meant that the dispatcher was required to go through the
names of all SG-1 members on an out-of-work list before
calling the names of those in lower seniority groups. Subse-
quent to September 1986 (at least, for each month of 1987
and 1988), notwithstanding that the merger nominally only
combined seniority groups 1 and 2, dispatching appears to
have been done without regard to any seniority groupings,
with applicants who were qualified only for SG-3 or lower
being dispatched before SG-1 or SG-2 members if the former
names were higher on the out-of-work list.20 On this point,
analysis of the 1987 and 1988 steamfitter out-of-work lists
discloses no demarcation between members of the different
seniority groups or notations beside any name stating the ap-
plicant’s seniority group. Unlike the procedure utilized at the
San Rafael or Santa Rosa hiring halls, at which the dis-
patchers would telephone applicants regarding job referrals,21
in order to receive a dispatch from the San Francisco hiring
hall, an applicant must follow the procedures of the MLA
and must be present when his name is called. Bermingham,
who maintained that, during 1987 and 1988, he was at the
San Francisco office two or three times a week,22 testified
that the ‘‘same rules apply’’ to by-name calls—that the indi-
viduals so called must be present at the hiring hall to receive
the dispatch. Kazarian, who disputed Bermingham’s testi-
mony as to the frequency of the latter’s visits to the hiring
hall, contradicted Bermingham as to the need for the by-
name-called individual to be physically present—‘‘he’s being
called by name. I can’t send anybody else out. . . . I can’t
just replace him with another name call. [The employer] is
asking for that name call.’’ Finally, with regard to by-name
calls and the contractual requirement that the contractor re-
quest an equal number of workers from the out-of-work list,
Bermingham, noting the language of article II, section 16(e)
that the off-the-list individuals must be hired first and be on
the contractor’s payroll before employees can be requested
by name, testified that Respondent’s standard practice was
normally to follow the contractual procedure for such hiring.
Contrary to the language of the MLA and to the Charging
Party, Kazarian testified that such work orders are normally
filled on the day of receipt inasmuch as both the named and
the unnamed worker are normally needed at the same time
and that, strictly adhering to the contractual rule, would be
impractical.
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 In discussing the allegedly unlawful dispatches, the number, cor-
responding to the number of each within G.C. Exh. 25, shall be
given in parenthesis.
24 Until stated, the following dispatches were in 1987.
25 Several of the remainder of the disputed referrals involve dis-
patches of refrigeration mechanics. These dispatches include: James
Tway (19) to Con-Air on April 6; Ted Terstegge (21) to Carrier
Service on April 7; Terstegge (29) to Linford Air on May 19; Frank
DiGrande (37) to Hussman on June 15; Paul Buyama (49) to Control
Temp, Inc. on August 13; Richard Roberson (50) to the same con-
tractor on the same date; Ed Wible (58) to Vann Engineering on
September 8; Wible (79) to Oda Refrigeration on October 26;
Terstegge (95) to Vann Engineering on December 10; Jim Chambers
(103) to Carrier Service on January 14, 1988; and Richard McClain
(124) to Hussman Refrigeration on September 14, 1988. The record
establishes that each individual had noted his classification by writ-
ing ‘‘REF’’ next to his name on the out-of-work list for the applica-
ble location and month
As stated above, notwithstanding that there are allegedly
unlawful job referrals, about which no evidence was ad-
duced, of otherwise eligible hiring hall work applicants being
passed over for dispatches in 1987 and 1988 as a result of
Respondent’s alterations of the contractually established hir-
ing hall rules and procedures, counsel for the General Coun-
sel only proffered evidence with regard to 125 such assert-
edly improper dispatches—all involving Bermingham and al-
legedly resulting from the foregoing or, since May 28, 1987,
Respondent’s animus against him. The information pertaining
to each is included in General Counsel’s Exhibit 25.23 The
initial one (1) was a January 5, 198724 Santa Rosa dispatch
of Frank Aguilar to Brock & Blevins at a time when Aguilar
was 2d on the steamfitters out-of-work list, and Bermingham
was 37th on the list. According to business agent, Fred Cas-
tro, this was a call ‘‘‘off the list,’ and the number one on
the list I could not reach, so I went to Frank Aguilar,’’ who,
the trust fund hours of work records (G.C. Exhs. 8 and 9)
establish, was qualified for SG-2 for 1987 dispatch purposes.
Castro further started that the dispatch of Aguilar was the
unnamed off-the-list part of the by-name dispatch (2) of Rob-
ert Chestnut, whose name appears beneath that of
Bermingham on the Santa Rosa out-of-work list and who
was qualified for SG-2 in 1987, to Brock & Blevins on the
same day.
The next three allegedly unlawful dispatches were, accord-
ing to Jim Kazarian, by-name calls for foremen from San
Francisco. These were a dispatch of Bill Johnson (3) to
Linford Air on January 12, a dispatch of Harry Hoffer (4)
to Vann Engineering on January 13, and a dispatch of Bryan
Conkling (5) to McClanahan Plumbing on January 26. As to
these, the record discloses that Johnson was 26th on the Jan-
uary San Francisco out-of-work list when Bermingham’s
name was the 52d and was eligible for SG-2 in 1987; that
Hoffer’s name was immediately above that of Bermingham
on the list and he was eligible for SG-2 at the time; and that
Conkling was 39th on the San Francisco list and was an SG-
2 member. Regarding the referral of hiring hall applicants to
positions as foremen (key men), Kazarian testified that, pur-
suant to the MLA’s hiring hall rules, by-name requests for
foremen must be honored regardless of the individual’s posi-
tions on the out-of-work list, provided that requests for em-
ployees in seniority groups lower than SG-1 cannot be hon-
ored if experienced SG-1 eligible members are higher on the
list. He added, however, that the agreed-upon suspension of
the MLA’s work hours requirements for seniority groups 1
and 2 eligibility and the resultant merger of said seniority
groups rendered adherence to the seniority group language of
key men provision unnecessary. Arguing that the implemen-
tation of the seniority group merger unlawfully altered the
contractual hiring hall rules and that, at all times
Bermingham has been eligible for SG-1, both he and counsel
for the General Counsel assert that he should have been
given these dispatches inasmuch as Bermingham had fore-
man experience, having worked as such for Atkinson Me-
chanical in 1986.
Of the next three San Francisco dispatches, according to
Kazarian, two were made at times in which Bermingham was
not present at Respondent’s dispatch office and the third was
for a refrigeration fitter. Charles Ciraolo (6) was dispatched
to Linford Air as a journeyman on January 21, and Al
Baskin (8) was dispatched to Scott Broadway Co. on Feb-
ruary 9. Kazarian testified that both dispatches were ‘‘off the
list’’ and that Kazarian was not present on either occasion.
With regard to the Ciraolo referral, his name was beneath
that of Bermingham on the January steamfitters list, and his
seniority group for 1987 dispatches would have been SG-3
or lower. As to Baskin, he was 14th on the February list;
while Bermingham’s name was 44th. As was Ciraolo, Baskin
would have qualified for SG-3 or lower in 1987. Concerning
his presence at the San Francisco dispatch office,
Bermingham, at first, insisted that he had been present at the
applicable location on each of the 125 occasions at issue
herein; later, he changed his testimony, stating that it ‘‘was
never my contention I was there for every one of them.’’
Rather, he added, he was present for ‘‘most of them.’’ Spe-
cifically, as to the Ciraolo and Baskin dispatches (G.C. Exh.
21), Bermingham’s diary of his visits to Respondent’s hiring
hall locations in 1987, disclose no notations establishing his
presence at the San Francisco office on either January 21 or
February 9.
As to the contested dispatch 7, the referral of Edward Or-
tega to Preferred Mechanical on January 27, the record dis-
closes that Ortega was above Bermingham on the out-of-
work list and that he was nominally eligible for SG-2 dis-
patches in 1987. Kazarian testified that Ortega was dis-
patched as a refrigeration fitter, defining this is as a separate
job classification and stating that individuals who are able to
do this type of work are, for purposes of convenience, dis-
patched off of the steamfitters out-of-work list. Indeed, the
MLA requires hiring hall applicants to fill out workcards, in-
dicating the different types of work for which they are quali-
fied, and these are categorized as steamfitter, plumber, pipe-
fitter, welder, and refrigeration mechanic. Further,
Bermingham agreed that refrigeration work is a separate job
classification, one in which ‘‘I haven’t worked,’’ and that he
was not qualified to perform ‘‘any’’ aspect of it. Finally, in
this regard, examination of the out-of-work lists in the record
establishes that applicants, who were qualified to perform re-
frigeration mechanic work and whose names appear on the
lists, place the notation ‘‘REF’’ next to their names, indi-
cating their work classification.25
The next four disputed dispatches were from the Santa
Rosa out-of-work list to R.C.I. as journeymen steamfitters:
525PLUMBERS LOCAL 38 (BECHTEL CORP.)
26 The hiring hall rules and regulations require that only SG-1 eli-
gible applicants may be called by name. In this regard, I note
O’Malley’s seniority group eligibility and that of several disputed
by-name calls infra. Respondent’s position is, of course, that the
merger of the two highest seniority groups made enforcement of the
contractual requirement irrelevant.
27 Kazarian asserted that ‘‘I can remember 99% of the time wheth-
er Mr. Bermingham was [at the hiring hall] or not.’’ He averred that
he always looked ‘‘to see if he was there. I can’t miss [him] [He]
always made it a point to sit right across from me where I could
visually see him at all times.’’
28 The MLA requirement is that such referral must be eligible for
SG-1. Also, of course, the requirement of 120 days of employment
during the preceding 12-month period was suspended in September
1986 (G.C. Exh. 5).
29 As stated above, a third September 1986 modification of the hir-
ing hall rules increased from 5 to 10 the number of consecutive days
applicants could work on a job without losing their positions on the
out-of-work list.
S.M. Singleton (9) on February 12 and Ron Mazzuchi (11),
C.J. Williams (12), and Ron Carrasco (13) on February 13.
According to Fred Castro, the acting dispatcher, Singleton,
who was eligible for SG-3 or lower in 1987, was called off
the list and was above Bermingham on the February steam-
fitter out-of-work list, and Mazzucchi, who was eligible for
SG-2 as of that time, was also called off the list, being high-
er on the out-of-work list than the Charging Party. As to
Williams and Carrasco, Castro explained that they comprised
a ‘‘50/50’’ by-name call, with the latter the named journey-
man and Williams taken off the list. At the time, Carrasco
was eligible for SG-2, and Williams, who also was eligible
for that seniority group, was above Bermingham on the out-
of-work list.
Jim Kazarian testified that the next four allegedly unlawful
dispatches were made off the San Francisco steamfitters out-
of-work list for March and that such were made at a time
when Bermingham was unavailable for dispatch (he was
working and did not re-sign the list until March 26). These
referrals are: Joe O’Malley (14) (by name) to McClanahan
Plumbing on March 6, Jack Lewkowitz (15) to Vann Engi-
neering on March 16, Steve Del Grande (16) to McClanahan
Plumbing on March 24, and Paul Gibson (17) to Vann Engi-
neering on March 24. As to Kazarian’s testimony, analysis
of the entire record, including the applicable San Francisco
out-of-work lists, discloses that Bermingham was dispatched
to Amos and Andrews in February, that he did not reregister
on the out-of-work list until March 26, and that he failed to
deny Kazarian’s statement. Regarding these dispatches, anal-
ysis of the record also discloses that each individual had his
name above that of Bermingham on the list, that O’Malley26
and Lewkowitz were eligible for SG-2 in 1987, and that Del
Grande, who came off the list with O’Malley but 18 days
later, and Gibson were eligible for SG-3 or lower in March
1987. Another disputed San Francisco dispatch was a referral
of Arthur Arevelo (18) to Acco on March 30. He was 5th
on that month’s out-of-work list and would have been eligi-
ble for SG-2. Noting that Bermingham had registered on the
list by that date, Kazarian asserted that the Charging Party
‘‘was not present that day’’ and that, even had he been at
the dispatch office, Arevelo had registered above
Bermingham on the list. The latter relied on his 1987 diary
(G.C. Exh. 21) to establish his presence at the San Francisco
dispatch office on any particular date, and there is an ‘‘at
union’’ notation for March 30.27
The next series of disputed dispatches occurred during
April. The first, Eliis Perez (24) to Preferred Mechanical off
the San Francisco steamfitters out-of-work list, occurred on
April 2 at a time when Perez, who was eligible for dispatch
from the SG-3 list in 1987, was 16th on the list with
Bermingham being 62d. As to this referral, Kazarian asserted
that the Charging Party ‘‘was not present’’ and, in any event,
would not have received the dispatch given Perez’ position
on the out-of-work list. Contrary to Kazarian, the April San
Francisco list shows Bermingham registering on April 2, and
his diary bears the notation ‘‘at union’’ next to the date. Fur-
ther, rather than Kazarian, Greg Speranza was the dispatcher
that day. In the latter circumstances, asked how he could
know that Bermingham was not present in order to receive
a dispatch, Kazarian replied that Speranza told him. The next
referral was a San Francisco dispatch of Ron Collins (20) to
Alta Mechanical on April 7. Collins’ name appears above
that of Bermingham on the out-of-work list and, according
to Kazarian, the individual had worked for the company,
which was owned by his father, continuously until 9 months
prior to the disputed dispatch. At that time, Collins had en-
tered a drug rehabilitation program; having completed it, he
registered on the list and was dispatched to the employer.
According to the trust fund hours record, Collins was eligible
for SG-2 in 1987. The next two April allegedly unlawful dis-
patches were Santa Rosa referrals to Scott Broadway Com-
pany on April 10—Joan Hartwig (10) and Bobby Burger
(23). Although not entirely clear, Burger appears to have
been by-name dispatch with Hartwig being the required off-
the-list referral. In any event, both men were registered
above Bermingham on the out-of-work list (Bermingham was
62d, with Hartwig 2d and Burger 55th) and were eligible for
SG-2 in 1987. A third challenged dispatch to Scott Broadway
Co. was given to Dan Byrne (99) on April 21. Byrne, who
was eligible for SG-2 dispatches was 67th on the Santa Rosa
out-of-work list and beneath Bermingham. However, accord-
ing to Fred Castro, Byrne was a ‘‘by name’’ dispatch. There
exists no evidence as to the corresponding off-the-list dis-
patch. The final disputed April dispatch was off the San
Francisco list—Paul Gibson (22) to Vann Engineering on
April 27. The record establishes that this individual was reg-
istered above Bermingham but would have been eligible for
only SG-3 or lower dispatches in 1987. According to
Kazarian, Gibson was a ‘‘rehire,’’ which, according to the
MLA, defines an individual who has been terminated by a
signatory contractor within 30 days and who may be rehired
without regard to his place on the out-of-work list.28 In this
regard, the individual had been hired by the contractor on
March 24, worked a total of 8 days, and reregistered on the
list, without losing his position.29
There is no dispute that Bermingham was given a travel
card by Respondent and that he worked for a contractor in
Fresno, California, for 3 days in late April. While
Bermingham’s diary for 1987 has notations ‘‘at union’’ for
May 7 and 8 and May 11 through 15, Kazarian stated that
he did not reregister on the San Francisco out-of-work list
until May 18, and the May 1987 out-of-work list shows May
18 as the registration date. In any event, the initial, disputed
May 1987 dispatch was off the San Francisco steamfitters
list—Bob Coleman (25) to University Mechanical on May 5
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Kazarian could recall only two instances when foremen were not
requested by name. He added that such was the case as a contractor
‘‘would want the most competent person that he could get and that
he knows. . . . He’s not going to rely on anybody else.’’
As stated above, the MLA permits foreman to be taken from lower
seniority groups, provided that no experienced SG-1 members are
available. Also, as stated above, Bermingham believed himself quali-
fied for such a position.
31 Kazarian states that, although not contractually mandated, con-
tractors, who are given work under Federal and state regulations and
who are required to hire minority workers, may request minorities
under the same circumstances as named dispatches—one person off
the list for every minority sent. Further, Respondent dispatches the
minority regardless of position on the out-of-work list.
32 From this date forward, according to the complaint, the alleg-
edly unlawful failures to dispatch Bermingham also resulted from
Respondent’s discriminatory intent.
33 The job to which Springer referred Van Dyke involved a type
of steamfitter work called ‘‘control’’ fitting. Business agents
Kazarian, Springer, and Castro each testified that this is ‘‘special-
as a foreman. Kazarian testified that Coleman, who was eli-
gible for SG-2 dispatches in 1987 and above Bermingham on
the out-of-work list, was called by name for said position by
the contractor.30 The next disputed dispatch was of Robert
Aguillon (26) to H. J. Olson on May 12 as a journeyman.
Aguillon’s name appears above that of Bermingham on the
San Francisco out-of-work list, and, according to the trust
fund hours compilation, he was eligible for SG-1 dispatches
at that time. According to Kazarian, Aguillon was a ‘‘by
name’’ rehire by the contractor, having been laid off by H.
J. Olson within 30 days of the dispatch, and he was qualified
as a ‘‘minority call.’’31 The next allegedly unlawful May dis-
patch was that of Mike Murphy (27) to Amos and Andrews
on May 13. Murphy, who, as discussed earlier, had been al-
lowed to transfer to Respondent’s building trades department
from its metal trades division without any loss of SG-1 se-
niority, was, according to Kazarian, a contractually named
rehire, having worked for Amos and Andrews from February
through April 1987. Also, Kazarian testified, Murphy was
dispatched before Bermingham registered on the out-of-work
list that month. The next challenged dispatch was of Al
Baskin (28) to Alta Mechanical on May 18. Baskin was sev-
enth on the San Francisco out-of-work list for May and, as
stated above, was nominally eligible for only SG-3 or lower
dispatches. Kazarian states that Baskin received the referral
as he was higher on the list than Bermingham. The final dis-
puted May 1987 dispatches off the San Francisco list were
to Alta Mechanical on May 2132—Chris Reyes (30) and Ron
Ash (31). The latter was a named dispatch, with Reyes going
off the list with him. At the time, both individuals were
qualified for SG-2 dispatches, and Reyes was above
Bermingham on the out-of-work list.
The next series of disputed dispatches were in June from
Respondent’s San Francisco hiring hall. During that month,
Bermingham was 33d on the steamfitters out-of-work list.
The initial referral was of Ralph Beeker (32) to University
Mechanical as a journeyman on June 3. Beeker, who, accord-
ing to the trust fund hours compilation, was eligible for SG-
2 dispatches at that time, was 20th on the out-of-work list
and, Kazarian testified, was given the referral based on his
higher position on the list. The next referral was also to Uni-
versity Mechanical on June 3 and was given to Al Baskin
(33). Noting that Baskin, who was eligible only for SG-3 dis-
patches, had received a recent referral on May 18, Kazarian
testified that the job had lasted just 9 days, that, as a result,
Baskin did not lose his high position on the out-of-work list,
and that he was given the University Mechanical dispatch
over Bermingham solely based on his higher position on the
list. The third challenged June dispatch was given to Ralph
Beeker (34) for McClanahan Plumbing on June 15. Accord-
ing to Kazarian, ‘‘My recollection is that . . . [the prior dis-
patch to University Mechanical] had to be a short job, 10
days or less.’’ The fourth allegedly unlawful referral was of
Jack Lewkowitz (35) to University Mechanical on June 15
as a foreman. Noting that Lewkowitz, who was eligible for
SG-2 dispatches in 1987, was beneath Bermingham on the
out-of-work list, Kazarian stated that the employee had been
called by name, pursuant to the MLA, for the key man posi-
tion. The next disputed dispatch was of Clyde Sumpter (36)
to University Mechanical as a journeyman on June 25. The
trust fund work hours compilation establishes that Sumpter
was eligible for SG-3 dispatches in 1987, and his position on
the June out-of-work list was fourth. According to Kazarian,
Sumpter’s dispatch resulted from his position on the list. The
final allegedly unlawful June 1987 was given to Bill Durand
(38) on June 27; however, according to Kazarian, it should
not be categorized as a referral. Thus, he testified, Durand,
who signed the out-of-work list on April 20, ‘‘was involved
in a [physical altercation] which resulted in a suspension
from the employer. . . . I resolved the dispute . . . and Mr.
Durand was reinstated and back to work on June 27.’’ The
business agent conceded that Durand’s name was below that
of Bermingham on the list.
With regard to July 1987, there are several allegedly un-
lawful dispatches mainly from Respondent’s San Francisco
office with four from its Santa Rosa dispatching facility. The
first was Juan Salsado (39) to Quantum Industries on July 1
as a journeyman. On the San Francisco July steamfitters out-
of-work list, Bermingham was 39th, and Salsado, who was
qualified for SG-1 in 1987, was beneath him at 53d.
Kazarian testified that the former had worked for Quantum
Industries for 2 months in 1986 and from January 1987
through June 21 and that he was a contractually named rehire
within the 30-day time period. Thus, Kazarian asserted,
Salsado could be dispatched regardless of his position on the
out-of-work list. The next challenged dispatch was that of
Clyde Sumpter (40) to Amos and Andrews as a journeyman
on July 13. Noting that the individual had previously been
dispatched on June 25, Kazarian stated that ‘‘he did not work
10 days’’ after the prior referral and that ‘‘he must have been
laid off and retained his spot.’’ In this regard, Sumpter, eligi-
ble for SG-3 in 1987, was fourth on the July list. The next
challenged referral was Ron Carrasco (41) to Linford Air as
a journeyman on July 13. According to Kazarian, Carrasco,
who was eligible for SG-2 in 1987, was 15th on the out-of-
work list and received the dispatch as he was before the
Charging Party on the out-of-work list. The next assertedly
improper dispatch was of A. G. Van Dyke (42) off the Santa
Rosa office out-of-work list to Newtron, Inc. on July 15. In
July, Bermingham was 50th on that office’s list; while Van
Dyke, who, according to the trust fund records, was qualified
for SG-3 dispatches in 1987, was 1st on the list. Given his
placement on the out-of-work list, although doubtful that the
individual could perform the required work,33 Raymond
527PLUMBERS LOCAL 38 (BECHTEL CORP.)
ized’’ work, requiring advanced training and that the individuals who
perform the work install the pneumatic controls and thermostats
which operate building boilers. Art. II, sec. 16(c) of the MLA per-
mits dispatch requests for individuals who possess specialized skills,
with referrals being in the order in which their names appear on the
out-of-work lists, and dispatchers are given discretion in determining
which applicants are qualified for the work. Kazarian testified that
journeymen, with normal steamfitter skills and training, ‘‘would be
totally lost’’ on such jobs—‘‘It’s like apples and oranges.’’ Springer
and Kazarian each testified that he keeps a list of those able to per-
form ‘‘control’’ work and that, when such applicants register on the
out-of-work list, the letters ‘‘CONT’’ are placed next to said names.
According to Kazarian, when calls are made by contractors for such
workers, he skips over names on the out-of-work list until he finds
those with the above notation.
Bermingham, who was never designated as able to do control fit-
ting work, agreed that the above procedure is utilized but stated that
he was qualified to perform such work and so informed Kazarian.
He denied that the work was specialized, saying such fell within
‘‘the basic knowledge’’ of the steamfitter. While saying that he had
told Kazarian that he could do ‘‘control’’ work, Bermingham con-
ceded that ‘‘I never really expressed that much desire to do control
work because I wanted to be dispatched as a steamfitter. ‘‘Moreover,
Bermingham’s ability to perform control fitting work is doubtful.
Thus, Bermingham requested that Kazarian dispatch him to a ‘‘con-
trol’’ job in December 1988; Kazarian agreed but told the Charging
Party that it was a troubleshooting job, something that he had never
asked for in the past. According to Bermingham, when he reported
for the job, he was asked if he could perform control work. He re-
plied that he had not done any control work since 1978 and would
have to learn the work. Bermingham was told ‘‘we need someone
actually who can handle these new systems now’’ and was not hired.
The contractor later wrote to Kazarian, explaining that Bermingham
had neither the experience nor was qualified to work with electronic
controls and other such systems.
Springer, who was dispatching from Santa Rosa at the time,
gave Van Dyke the referral. The next disputed dispatch was
from San Francisco to Mike Gallelo (43) for Johnson Control
on July 17. According to Kazarian, the job required a control
fitter, and Gallelo, who was qualified for SG-1 in 1987 and
was 29th on the out-of-work list, was given the dispatch.
Likewise, the next challenged July referral, Barry Hazen (44)
to Johnson Control on July 17, required a control fitter.
Kazarian testified that Nazen, who was qualified for SG-2
dispatches in 1987 and was beneath Bermingham on the July
out-of-work list, qualified as a control fitter and, for that rea-
son, was given the dispatch. The next two questioned dis-
patches were from Santa Rosa on July 17; both Steven Sin-
gleton (45) and Lee Anderson (46) were dispatched to Brock
& Blevins. Both were, according to Fred Castro, who was
the dispatcher, ‘‘off the list.’’ The record establishes that
both men were above Bermingham on the Santa Rosa out-
of-work list (Singleton was fifth, Anderson was seventh);
that Singleton was qualified for SG-3 dispatches in 1987;
and that Anderson was qualified for SG-2. The next two
challenged San Francisco dispatches in July were off of the
out-of-work lists, Ray O’Malley (47) to Linford Air on July
13 and Ellis Perez (48) to Control Temp on July 30—both
as journeymen. Both men were above Bermingham on the
out-of-work list; O’Malley was qualified for SG-2 and Perez
for SG-3 in 1987. Each was given the referral rather than
Bermingham, according to Kazarian, as each was higher on
the list. The final contested July dispatch was from Santa
Rosa—Brad Barron (56) to Brock & Blevins on July 31 as
a journeyman. According to Fred Castro, Barron, who was
qualified for SG-2 in 1987, was 19th on the out-of-work list
and above Bermingham on it.
Concerning the contested August 1987 dispatches, the ini-
tial one was from the San Rafael office for S. M. Singleton
(51) to McClanahan Plumbing as a journeyman on August
17. At the time, Singleton (5th) was above Bermingham
(50th) on the out-of-work list. According to Fred Castro, Sin-
gleton, who was eligible for SG-3 or lower 1987 dispatches,
was referred ‘‘off the list’’ given his higher position. The
next dispatch was from San Francisco on August 20—Chris
Blangton (52) to University Mechanical on August 20. While
he was beneath Bermingham on the out-of-work list
(Bermingham was 35th, and Blangton was 61st), Blangton
was dispatched, according to Kazarian, as a contractual ‘‘re-
hire,’’ having originally been referred to the signatory con-
tractor on July 29. Also, he was eligible for SG-1 dispatches
in 1987. The third challenged dispatch was from San Rafael
for Lee Anderson (55) to Morrill & Co. on August 24 as a
journeyman. Anderson, whose July Santa Rosa dispatch ap-
parently lasted fewer than 10 days, retained his seventh posi-
tion on the out-of-work list in San Rafael and was dispatched
‘‘off the list.’’ The final two contested August dispatches
were from San Francisco. Clyde Sumpter (53) was sent to
McClanahan Plumbing on August 31, and, on the same day,
Al Baskin (54) was referred to Spencer & Son. Sumpter,
who was fourth on the August list, worked less than 10 days
for Amos and Andrews in July and, therefore, retained his
position on the out-of-work list, and Baskin was seventh on
that list. Notwithstanding the eligibility of each for only SG-
3 dispatches then, each, rather than Bermingham, received
his referral, presumably based on his higher position on the
out-of-work list.
Concerning the challenged dispatches for September 1987,
the initial three such were from San Francisco. On Sep-
tember 2, Bob Wall (57) was referred to Spencer & Son as
a journeyman. At the time, he was 5th on Respondent’s out-
of-work list; while Bermingham was 32d. Wall, who was eli-
gible for SG-2 dispatches, went, according to Kazarian, ‘‘off
the list,’’ with a higher position than the Charging Party. The
next two individuals were referred to Spencer & Son on Sep-
tember 14: Rich McClain (60) was a named referral and Ellis
Perez (59) went with him ‘‘off the list.’’ The record reflects
that Perez was 10th on the out-of-work list and was eligible
for SG-3 dispatches; McClain, who was 63d on the list and,
thus, beneath Bermingham, qualified for membership in SG-
1 in 1987. The next contested dispatch was from the Santa
Rosa office for A. G. Van Dyke (61) to Scott Broadway as
a journeyman on September 16. Van Dyke, who was eligible
for SG-3 dispatches, was first on that office’s out-of-work
list. Bermingham was 50th on the list, and, given his posi-
tion, Van Dyke received the referral. The next assertedly un-
lawful referral was given to Jerry Bartok (62) for
McClanahan Plumbing on September 21 from San Rafael.
Fred Castro, who was the dispatcher, testified that Bartok,
who was eligible for SG-2 dispatches, was beneath
Bermingham on that office’s out-of-work list (Bartok was
13th and Bermingham, 4th), but was called ‘‘by name’’ by
the contractor. Castro further testified that the August 17 dis-
patch of S. M. Singleton to the contractor constituted the
‘‘off the list’’ portion of the referrals. The next challenged
referral that month was to Chris Reyes (63), who was dis-
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 In 1967, the San Quentin State Prison was in the midst of a re-
piping project. In order to be eligible for work there, hiring hall ap-
plicants must undergo a screening process. In November or Decem-
ber 1988, according to Castro, he telephoned Bermingham about a
job there, ‘‘and that’s when he told me he was not eligible and not
to bother.’’ Bermingham recalled the conversation, but testified that
they spoke about the screening process, with Castro saying it sound-
ed as though Bermingham did not want to work there. Bermingham
asked if a 25-year-old felony conviction would disqualify him, and
Castro said he could not work there with such a conviction. The
record reveals that the felony conviction was for marijuana posses-
sion.
patched to Spencer & Son on September 25 from the San
Francisco hiring hall. Kazarian testified that, on that date,
Reyes was sixth on the out-of-work list, and, thus, his name
was above that of Bermingham. The business agent stated
that Reyes, who was eligible for SG-2 dispatches, was re-
ferred based on his position on the list. Two challenged re-
ferrals were from the San Rafael hiring hall on September
28: Jack Goolsby (65) to the San Quentin Prison34 and Frank
Smith (68) to Freethy Co. According to Fred Castro,
Goolsby, who was eligible for SG-2 dispatches, was below
Bermingham on the out-of-work list (Goolsby was seventh)
but was called by name. Castro testified that Goolsby had
previously been cleared for work at San Quentin. Smith, Cas-
tro further testified, was also below Bermingham on the list
(he was 26th and eligible for SG-2); however, the job was
to be of short duration, and Castro could not reach anyone,
including Bermingham, above Smith on the list. The next
disputed September dispatch was from Santa Rosa to Her-
man Molencupp (67) for Scott Broadway Company on Sep-
tember 28. Ray Springer testified that Molencupp, who was
eligible for SG-2 dispatches, was above Bermingham on that
office’s out-of-work list as sixth and was given the referral
‘‘off the list’’ based on his higher position. The final dis-
puted September dispatch was from Respondent’s San Fran-
cisco office: Ellis Perez (64) to McClanahan Plumbing on
September 30. Kazarian testified that Perez, who had been
dispatched earlier in the month, worked no more than 10
days, and, thus, did not lose his position on the out-of-work
list, was given the referral because he was above
Bermingham on said list.
As to the allegedly unlawful job referrals during October
1987, the initial one was from Respondent’s San Francisco
office for Allen Lucero (69) to Hopkins Mechanical on Octo-
ber 5. The record establishes that the contractor’s request
was for a ‘‘control’’ job and that Lucero, who was eligible
for SG-3 dispatches in 1987, had the word ‘‘control’’ written
above his name on the October San Francisco steamfitters
out-of-work list. Although Kazarian stated that Lucero, who
was beneath Bermingham on the out-of-work list (the indi-
vidual was 48th; while Bermingham was 25th), was a control
fitter but did not give that as the rationale, it appears that the
referral required one qualified to do ‘‘control’’ work. On Oc-
tober 9, Hank Woodward (70) was referred from the San
Francisco hiring hall to EMDE Kinetics as a foreman. The
record discloses that he was eligible for SG-1 dispatches at
that time and was beneath Bermingham (66th) on the out-of-
work list. According to Kazarian, ‘‘This is a rehire. . . . Mr.
Woodward worked for EMDE continuously from July 1986
until July 27, 1989. . . . They called for him.’’ Presumably,
then, Woodward was hired pursuant to the contractual privi-
lege accorded a contractor to request an individual as a key
man, a foreman. Likewise, the next disputed referral was
from San Francisco—given to Jack Lewkowitz (71) on Octo-
ber 13 for Bay Cities Mechanical as a foreman. As of that
date, Lewkowitz, who was eligible for SG-2 dispatches in
1987, was located beneath Bermingham (47th) on the out-of-
work list, and, according to Kazarian, ‘‘he went as a fore-
man’’ and ‘‘they called for [him].’’ The next challenged Oc-
tober dispatch was from Santa Rosa to David Souza (72) on
October 12 for Scott Broadway Co. as a journeyman. Souza,
who was eligible for SG-2 referrals in 1987 was ranked 21st
on the Santa Rosa out-of-work list; while Bermingham was
below him at 39th. Springer’s explanation is that Souza went
off the list as he was higher on it than the Charging Party.
The next three disputed referrals were from the San Fran-
cisco office to individuals whose names were higher on the
out-of-work list than Bermingham, with each individual
being eligible for SG-2 dispatches in 1987: Ray O’Malley
(73) to Bay Cities Mechanical on October 16 (14th on the
list), Jim Martinez (74) to Bay Cities Mechanical on October
16 (20th on the list), and Clarence De Louis (75) to Vann
Engineering on October 19 (7th on the list). As to each,
Kazarian explained that he went ‘‘off the list.’’ Another dis-
puted October dispatch was from Santa Rosa—given to
George Hount (76) for Scott Broadway Co. on October 20.
Hount was higher (21st) on the out-of-work list than
Bermingham, was eligible for SG-2, and was taken off the
list by the contractor along with a contractually privileged
named referral, B. L. Barron (77). The latter, who was eligi-
ble for SG-2 1987 dispatches, was below Bermingham on the
Santa Rosa out-of-work list on October 20, the referral date.
The next challenged referral was of Jerry Vieo (78) to
AMALCO that month. Kazarian explained that Vieo had
worked continuously for that contractor from 1986 through
August 1987 and was rehired as a foreman. Another disputed
October dispatch from San Francisco was that of Paul Gib-
son (80) to Vann Engineering on October 23 as a journey-
man. Gibson, who in 1987 was only eligible for SG-3 dis-
patches, was fourth on the out-of-work list and was referred
‘‘off the list,’’ given his high position on it.
There is no dispute that Bermingham received a dispatch
to Bay Cities Mechanical on October 26 and that he worked
for said contractor until on or about November 16, the date
on which he once again registered on the out-of-work list at
Respondent’s San Francisco office. Three allegedly unlawful
dispatches to individuals below Bermingham on the out-of-
work list were made during this time period: Bill Van Horn
(81) to Cal Air on October 27 as a journeyman, Steve Del
Grande (82) to Vann Engineering on October 29 as a jour-
neyman, and Herman Molencupp (83) to Spencer & Son as
a journeyman on October 27. Both Van Horn and Molencupp
were eligible for SG-2 dispatches in 1987; while Del Grande
was only eligible for SG-3 dispatches. Respondent argues
that each was properly dispatched off the list and that
Bermingham was not registered and working at the time.
Counsel for the General Counsel and Bermingham concede
that he was not registered during those days but assert that
if Respondent had been following the contractual ‘‘bumping
rules’’ by posting the required information and by facilitating
the contractual process, he would have been able to enforce
his bumping rights at a later date. However, ‘‘they did not
let me exercise my right.’’ The General Counsel does not
529PLUMBERS LOCAL 38 (BECHTEL CORP.)
35 Calderon was second and Chestnut, ninth.
36 MLA art. II, sec. 16(b) speaks in terms of requests for individ-
uals either laid off or terminated within ‘‘thirty (30) days prior to
the request’’ and states that said individuals must have worked for
the requesting contractor in excess of ‘‘one hundred twenty (120)
working days’’ during the preceding 12 months.
contend, or is there any record evidence, that Bermingham
ever requested to bump the above three individuals, rather,
what is alleged is that, by not adhering to the contract bump-
ing procedures, Respondent made it ‘‘more difficult’’ for hir-
ing hall users to exercise their rights under the contract.
When Bermingham registered in November, he became
66th on the San Francisco out-of-work list. On that same
day, November 16, four individuals were dispatched to Bay
Cities Mechanical: Mike Murphy (84), John De Maria (85),
Dan Hough (86), and Ralph Becker (87). Murphy, the former
metal trades department worker who was allowed to transfer
his SG-1 eligibility to the building trades department, was
33d on the list; De Naria, who had SG-2 eligibility in 1987,
was 26th; Hough, who would have been in SG-2, was 49th;
and Becker, who was eligible for SG-2 dispatches, was 53d.
Each was referred instead of Bermingham, according to
Kazarian, based on their higher positions on the list. Another
dispatch to Bay Cities Mechanical that day of Bill Johnson
(88) is also challenged. He was 40th on the out-of-work list,
and, testified Kazarian, was dispatched due to his ability to
perform ‘‘control’’ work (the contractor had specified that
one control fitter be referred). Finally, two dispatches from
Respondent’s San Rafael office to E. H. Merril at San Quen-
tin Prison on November 16 are questioned. Phil Calderon
(89) and Robert Chestnut (90) were referred, and, in Novem-
ber, neither name appeared on the applicable out-of-work list
(Bermingham appears as 21st). Both were eligible for SG-2
dispatches, and, according to Fred Castro, Chestnut was re-
quested and dispatched ‘‘by name’’ with Calderon accom-
panying him off the list. With regard to both, their names do
appear on the San Rafael October out-of-work list,35 and
Calderon’s referral to E. H. Merril in November is noted on
that list. Dispatcher Castro offered no explanation for their
names not appearing on the November out-of-work list; how-
ever, neither counsel for the General Counsel nor
Bermingham base their challenges to the dispatches on this
point.
With regard to December 1987, there are several allegedly
unlawful referrals from Respondent’s San Francisco hiring
hall. The first was Robert T. McCann (92) to Bay Cities Me-
chanical on December 1. Bermingham was 42d on that
month’s steamfitter out-of-work list, and McCann’s name is
below that with ‘‘control’’ written above it. According to
Kazarian, the job call was for a ‘‘service’’ job, and ‘‘the
word ‘service’ means a control job or refrigeration and either
one of them are the service department.’’ He added that 90
percent of control fitting is service work, repairing what had
been performed during the construction phase of the work.
According to him, McCann was referred based on his ability
to do the requested work. The next was a December 7 dis-
patch of Jim Martinez (93) to Spencer & Son. Although
Martinez, who was eligible for SG-2 dispatches in 1987, was
beneath the Charging Party on the out-of-work list (54th),
Kazarian stated that he was a contractual ‘‘by name’’ dis-
patch with Clarence Gouchez going off the book. The last
challenged December dispatch was given to Mike Murphy
(94) for Bay Cities Mechanical on December 7. Murphy,
who was 25th on the out-of-work list, retained his position
on it as his prior job dispatch lasted only 6 days, and, ac-
cording to Kazarian, he received this referral due to his high-
er position on the list than Bermingham.
As to January 1988, there were four allegedly unlawful
dispatches from the San Francisco hiring hall. The initial one
was given to Lynn French (100) on January 11 for Service
Tech Control, Inc. for this month, Bermingham was 38th on
the steamfitters out-of-work list; while French’s name ap-
pears near the bottom of the list. Kazarian testified that the
job order required a ‘‘control fitter’’ and that French, who
was eligible for SG-1 in 1988, possessed the necessary skills.
Indeed, next to his name on the list is the word ‘‘control.’’
The next challenged referral was to Jess Ray (101) on Janu-
ary 12 for Spencer & Son. The record establishes that a fa-
ther (Jess Ray Sr.) and son (Jess Ray Jr.) are members of
Respondent, that both were qualified for SG-1 dispatches in
1988, that the name, Jess Ray, appears as 67th on the Janu-
ary out-of-work list, and that it is unclear whether said name
is that of the father or of the son. In any event, after initially
classifying this as a contractual rehire, Kazarian declared this
referral to have been a ‘‘by name’’ call, with ‘‘Jess Ray’’
being dispatched with Ed Richards (104), who went off the
list on January 18. Richards, in 1988, was eligible only for
SG-3 dispatches and was fifth on the January list. Kazarian
testified that Richards was given the referral based on his po-
sition on the list. The final contested dispatch was give to
Surjit Sihota (102) on January 11 for Vann Engineering. In
January 1988, Sihota was beneath Bermingham on the out-
of-work list at 40th but was eligible for SG-1 dispatches.
Kazarian explained that Sihota had been terminated on De-
cember 10 and that this was a contractual rehire situation,
being within 30 days. When asked by me if the time period
really was 31 days in this case, Kazarian said that the 30
days actually meant ‘‘30 working days, exclude holidays,
Saturdays and Sundays.’’ After counsel for the General
Counsel pointed out that the MLA merely stated ‘‘30 days’’
without elaborating,36 Kazarian said, ‘‘I’ve always dis-
patched a person on a recall job, I’ve always excluded Satur-
days, Sundays or holidays. . . . It equals to about 45 days.’’
Concerning the challenged February 1988 dispatches, the
record establishes that all were from Respondent’s San Fran-
cisco hiring hall. For said months, Bermingham’s name ap-
pears as 32d on the steamfitters out-of-work list. The initial
disputed dispatch was of Thomas Smith (105) to Scott
Broadway Co. on February 9. He was eligible for SG-1 dis-
patches in 1988 and registered below Bermingham on the list
at 76th. According to Kazarian, he was a contractual rehire,
having worked for the contractor throughout 1987, been laid
off, signed the book, and immediately rehired. The next two
dispatches, Ed King (106) and Chuck Sloan (107), were to
Spencer & Son on February 22, with the latter being a ‘‘by
name’’ referral and King being taken ‘‘off the list.’’ At the
time, both were eligible for SG-2 dispatches, with King 8th
on the out-of-work list and Sloan beneath Bermingham, at
66th. The next contested dispatch was given to Harry Will
(108) for Vann Engineering on February 23. Will, whose
name appears below that of Bermingham on the list at 46th
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Pointing to the ‘‘underlying economic conditions’’ which neces-
sitated the suspension of the seniority group hours of work require-
ment in September 1986, Respondent’s counsel, while conceding
that seniority groups lower than SG-1 and SG-2 were not named in
G.C. Exh. 4, argues that, as a result of the merger, an individual was
only required to have worked 1 hour under the terms and conditions
of the MLA in order to be qualified for SG-1 dispatches.
38 The referral itself is noted on the San Francisco October 1988
out-of-work list next to Gibson’s name, and the name does appear
below that of Bermingham—they were not, however, first and third
on that list.
and who was eligible for SG-2 dispatches in 1988, was dis-
patched, according to Kazarian, as a foreman pursuant to the
MLA ‘‘key man’’ provision.
With regard to the disputed March 1988 referrals, the
record reveals that Bermingham was 25th on Respondent’s
San Francisco out-of-work list that month. The initial dis-
puted March dispatch was given to Barry Hazen (109), who
was eligible for SG-2 dispatches in 1988, on March 1 for
Spencer & Son. Kazarian states that this was a ‘‘by name’’
call for Hazen, who was beneath Bermingham on the list at
36th, and that Larry Becker went with him off the list.
Bermingham asserts that Hazen was not at the San Francisco
hiring hall that day and that, to his knowledge, Hazen’s name
was never called by Kazarian. The next disputed referral was
of Pam Bates (112) to Spencer & Son on March 14. The
record reveals that Bates was eligible for SG-2 dispatches in
1988 and that she registered on Respondent’s out-of-work
list for March at 74th. Kazarian testified that contractors
often must abide by Federal and state regulations as to the
hiring of minorities on projects and, at prejob conferences,
Respondent is informed of the contractors’ needs. Therefore,
although not mandated by the MLA hiring hall rules and reg-
ulations, according to Kazarian, inasmuch as very few mi-
norities and women utilize Respondent’s hiring hall, requests
for them are treated in the same manner as by-name requests,
with an available, qualified woman being dispatched without
regard for her position on the list. On this particular project,
Kazarian testified, the contractor and the owner had agreed
that a certain percentage of minorities and women would be
used. He added that, when the job order came in, ‘‘we had
no women on the out-of-work list’’ and when Bates came in,
she received an immediate dispatch. Kazarian further testified
that the dispatch of Bates was treated as a by-name dispatch
with Bill Kelley (114) going to the same contractor on the
same date off the list. Concerning the latter, he was eligible
for no higher than SG-3 dispatches at that time but was
fourth on the out-of-work list. As to Bates, Bermingham ar-
gues that, notwithstanding that she had not been registered
on the out-of-work list for the required 3 working days
(‘‘I’m saying she came walking in that day . . . signed the
list and was name called’’), she was given a by-name dis-
patch. Indeed, MLA article II, section 16(e)(1) permits by-
name calls provided that the individual has been registered
no less than 3 working days on the out-of-work list, and
analysis of the San Francisco March list discloses that Bates
registered on March 14, the day of her dispatch. Taking a
contrary position, Kazarian asserted that waiting for 3 days
would have accomplished nothing inasmuch as the con-
tractor, who needed a woman immediately, would have hired
one off the street. As to Kelley, Bermingham points out that
he was eligible for no more than SG-3 dispatches and, even
assuming the validity of the merger of the two higher senior-
ity groups,37 he should have received the dispatch over
Kelley. Also receiving a dispatch to Spencer & Son on
March 14 was Frank Ditreo (113). According to Kazarian,
Ditreo, who was eligible only for SG-3 or lower dispatches
at the time, was second on the out-of-work list and, given
his position, was referred to the contractor off the list along
with a named dispatch, Chuck Michevich. Pointing to
Ditreo’s seniority group status, Bermingham contends that no
other individuals were present in the hiring hall that day be-
sides Ditreo and himself; ‘‘I was right there. Had he not got
the dispatch, it would have been going out to me.’’ Finally,
two disputed referrals (Mike Estrada (115) and Odis Gray
(116)) were made to Merelick Mechanical on March 30.
Gray, who was eligible for SG-1 dispatches in 1988, was
70th on the San Francisco out-of-work list but, testified
Kazarian, was a ‘‘by name’’ referral. The business agent
added that Estrada, who was eligible only for SG-3 dis-
patches, was first on the out-of-work list and referred along
with Gray.
As to the remaining challenged 1988 referrals, the first is
a San Francisco dispatch given to Jess Ray (120) for Spencer
& Son on July 7. Although it is unclear if the individual is
the father or the son, he was registered on the out-of-work
list as 85th at a time when Bermingham was 12th on the list.
According to Jim Kazarian, ‘‘Jess Ray is a rehire,’’ having
been dispatched to the contractor on June 30. The next alleg-
edly unlawful dispatch was of Bill Beatty (121) to Spencer
& Son on August 1. Bermingham was 11th on the San Fran-
cisco August out-of-work list; while Beatty was 62d.
Kazarian stated that the latter, who is black, had been a mi-
nority hire by the contractor and that the instant dispatch was
a contractual rehire. The next disputed referral was of Ken-
neth Diaz (122) to Linford Air on August 15 as a foreman.
Diaz, according to Kazarian, is not a member of Respondent;
an out-of-town contractor, such as Linford Air, ‘‘reserves the
right’’ to ‘‘bring in their own foremen in each classifica-
tion.’’ He added that Diaz had been an employee of the con-
tractor. Article II, section 19 of the MLA, in fact, grants to
out-of-town contractors the aforementioned privilege. A chal-
lenged dispatch was given to Jack Mingram (123) to Spencer
& Son on September 27. On the San Francisco September
out-of-work list, Bermingham appears 13th with Mingram
beneath him at 82d. Mingram was eligible for SG-2 dis-
patches in 1988 and was given this one, according to
Kazarian, as it was a requested rehire referral. Thus,
Kazarian testified that Mingram had worked for the contrac-
tor since March, registering on the list on September 9. The
final contested 1988 dispatch was from San Rafael and was
given to Paul Gibson (126) on October 17 for Southwest; the
record is not, at all, clear on the circumstances. Thus, the
San Rafael steamfitters out-of-work list for October 1988 has
Gibson’s name above that of Bermingham; however, Fred
Castro, the dispatcher, testified that Bermingham was ‘‘num-
ber one and then Paul’s number 3.’’38 In any event, Castro
further testified, without contradiction, that the work order
was for a ‘‘tube fitter,’’ an individual who works on pneu-
matic tubing; that said work is covered under a separate col-
lective-bargaining agreement; that he considers the work to
be a ‘‘specialty call’’; and that Gibson was the only indi-
vidual, then on the out-of-work list, who was experienced in
531PLUMBERS LOCAL 38 (BECHTEL CORP.)
39 Respondent alleged as an affirmative defense that the changes
here are barred by the 10(b) statute of limitations. The charge in
Case 20–CB–7279 was served on Respondent on May 27, 1988;
therefore, the 6-month statute of limitations period commenced on
November 27, 1966. While the record establishes that Respondent
implemented the hiring hall rules modifications shortly after Sep-
tember 11, 1986, as will be discussed infra, Bermingham was not
afforded notice of these changes until sometime in 1988. Moreover,
Continued
such work. In any event, Gibson was eligible for no more
than SG-3 referrals in 1988.
The complaint alleges, and there is no dispute that, on July
5, 1988, Bermingham made a written request to Respondent
for the following information: (a) all the written requests
from contractors for all plumbers, pipefitters, steamfitters,
and refrigeration fitters who have been laid off or terminated
by the contractor within 30 days prior to the request; (b) dis-
patch slips for all apprentices, steamfitters, welders, pipe-
fitters, plumbers, and refrigeration fitters for April, May, and
June 1988; (c) out-of-work lists for all [of the above job
classifications] from all dispatch locations covered by Local
38 for April, May, and June 1988; and (d) written requests
from contractors for all people that were dispatched by-name
call or because of special skills in the months of (January
through June 1988). There is also no dispute, and Respond-
ent admits, that, by letter dated July 27, it denied
Bermingham’s request. Bermingham testified that the infor-
mation in part (a) was requested because he did not believe
that contractors were, in fact, making requests for rehires;
that he requested the information in part (b) in order to
verify the information on the out-of-work lists: that he re-
quested the records in part (c) to verify that the dispatch slips
are accurate and that people were referred in the proper
order; and that he requested the material in part (d) to ensure
that written requests were, in fact, made. He further testified
that, at the time of the requests, unfair labor practice charges
were pending before the Board and contractual grievances
had been filed—all involving allegations related to the re-
quested information. Other than terming Bermingham’s re-
quests as burdensome, counsel for Respondent offered no
evidence as to the rejection of Bermingham’s request.
The complaint in Case 20–CB–8025 alleges that Respond-
ent unlawfully removed the Charging Party’s name from its
out-of-work list subsequent to the close of the initial hearing
in these matters, and the basic fact is not in dispute. Thus,
Business Agent Fred Castro, who has acted as the dispatcher
for Respondent’s San Rafael hiring hall facility since March
1, 1989, admitted that Bermingham, who was first on the
November 1988 through May 1989 steamfitter out-of-work
lists at said location, along with ‘‘several’’ others, was re-
moved from the list for June 1989. What is in dispute is
whether Bermingham followed the procedure for registering
for the June out-of-work list by telephoning Castro in May.
In this regard, Bermingham testified that his usual procedure
is to telephone the San Rafael facility each month, speak to
Castro, and say ‘‘this is Ed Bermingham and I’m checking
in.’’ By doing so, according to him, he registers for the fol-
lowing month’s out-of-work list, and Castro corroborated the
Charging Party that such is the latter’s practice. However,
while Bermingham maintained that he telephoned the San
Rafael’s office on either May 13, 14, or 15 and spoke to
Castro (saying ‘‘This is Ed Bermingham checking in’’), the
latter denied receiving such a phone call and, according to
him, for that reason only, removed Bermingham’s name from
the June list.
There is also no dispute that Castro failed to notify
Bermingham that his name had been dropped from the June
out-of-work list. The business agent testified that his practice
is not to notify applicants of their removal from the list and
that he merely notes the fact on the list. Bermingham testi-
fied that he first learned that his name no longer was on the
San Rafael out-of-work list when, adhering to his normal
practice, he telephoned that office in June and spoke to Cas-
tro. After registering for the July list as he had done in pre-
vious months, Bermingham asked ‘‘where am I at on the list,
and he says you’re not on the list, I took you off. You
haven’t checked in for a month or so . . . and I . . . started
. . . to complain and he hung up on me.’’ Castro corrobo-
rated the Charging Party on this conversation. As evidence
that Respondent continued to harbor unlawful animus against
him and that Castro unlawfully removed his name from the
June list, Bermingham offered the testimony of Jerad Hotch-
kiss, who stated that he accompanied the Charging Party to
the San Rafael office in October 1989 in order to examine
the out-of-work list and that when Bermingham made such
a request to Castro, the latter cursed and ‘‘he says you’re not
going to see the list.’’
B. Analysis
It is initially alleged that, since January 1, 1987, Respond-
ent has operated its exclusive hiring hall in a manner incon-
sistent with, and has failed to adhere to, the rules and proce-
dures for such as set forth in article II of the existing MLA
and, thereby, has engaged in conduct violative of Sections
8(b)(1)(A) and 8(b)(2) of the Act. Board law in this area is
unmistakable and of longstanding validity—any departure
from established exclusive hiring hall procedures which re-
sults 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 the above sections
of the Act unless the labor organization demonstrates that its
interference with employment ‘‘was necessary to the effec-
tive performance of its representative function.’’ Painters
Local 1140 (Harmon Contract), 292 NLRB 723 (1989); Iron
Workers Local 505 (Snelson-Anvil), 275 NLRB 1113, 1114
(1985); Operating Engineers Local 406 (Ford Construction),
262 NLRB 50, 51 (1982); Electrical Workers IBEW Local
592 (United Engineers), 223 NLRB 899, 901 (1976); Asbes-
tos Workers Local 22 (Rosendahl), 212 NLRB 913 (1974).
Analysis of the record discloses that the above allegation has
two aspects. The first involves the series of modifications of
the contractual hiring hall rules and regulations, including the
suspension of the hours of work requirements for seniority
groups 1 and 2, the suspension of the 120-working-day re-
quirement in the provision permitting signatory contractors to
make written requests for individuals who have been laid off
within 30 days prior to said request, and the increase from
5 to 10 for the number of days an employee would have to
work before losing his position on the out-of-work list,
agreed on by Respondent and the signatory multiemployer
associations on or about September 11, 1986. There is no
dispute that the modifications were each implemented by Re-
spondent shortly after agreement was reached.39
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the record establishes that hiring hall users, who were on long-term
jobs in 1986, may not have received notice of the rules changes until
they returned to the hiring hall in 1987, if at all. In these cir-
cumstances, as the 10(b) statute of limitations does not commence
until notice of the unfair labor practice is received by the affected
individual or individuals, I find Respondent’s affirmative defense
without merit. Truck & Dock Services, 272 NLRB 592, 593 (1984).
40 Such knowledge was inferred from the wording of a referral
registration form which the applicant was required to read and com-
plete. IBEW Local 592, supra at 902.
41 Kazarian contradicted Bermingham on this point, asserting that
he told the Charging Party of the merger of seniority groups 1 and
2 in early 1987. However, Kazarian was impeached by his pretrial
affidavit in which he stated that he never specifically told
Bermingham that the seniority groups had been merged. Both
Kazarian and Bermingham impressed me as being honest and candid
witnesses; however, as between them, based solely on the demeanor
of each while testifying, I found the Charging Party to have been
the more reliable witness. Accordingly, whenever they conflict, I
shall credit Bermingham over Kazarian. Therefore, I credit the
Charging Party’s denial of knowledge, during 1987, of the merger
of the seniority groups.
In his brief, counsel for Respondent argues that, based on his stat-
ed knowledge of the contract and his many grievances, the Charging
Party must have been aware of the merger of the seniority groups.
However, such is no more than speculation and supposition. There
is no credible evidence that Kazarian or any other business agent or
official of Respondent orally informed Bermingham of the hiring
hall rules modifications until 1988, and I believe Bermingham was
candid, that he had no such knowledge until then.
Counsel for the General Counsel questions neither the va-
lidity of nor the necessity for the above-described modifica-
tions. Rather, he apparently argues that Respondent unlaw-
fully implemented these, having ‘‘failed to make a good-faith
effort to give [adequate] notice of the hiring hall rules
changes’’ to the users of the hiring hall, including the Charg-
ing Party. As above, Board law on this point is clear and un-
ambiguous: a labor organization’s ‘‘failure to give timely no-
tice of substantial changes in its referral procedures [is] arbi-
trary and in breach of its duty to keep applicants informed
about matters critical to their employment status.’’ Teamsters
Local 519 (Rust Engineering), 276 NLRB 898, 904 fn. 16
(1985); Electrical Workers IBEW Local 11 (Los Angeles
NECA), 270 NLRB 424, 426 (1984); Operating Engineers
Local 406, supra at 51. Counsel for Respondent asserts that
the necessity for notice is merely a ‘‘technical’’ requirement
and that where, as herein, there is no contention that the hir-
ing hall changes are themselves unlawful or for an unlawful
purpose, ‘‘a lower level of notice is required.’’ Counsel cites
two decisions of the Board in support of his assertion; how-
ever, neither appears to fully support the assertion of counsel.
Thus, Plumbers Local 520 (Avcock Inc.), 282 NLRB 1228
(1987), involves the appointment of a steward and the by-
passing of an individual on an out-of-work list. Notice appar-
ently was not at issue. Further, while notice of a change in
hiring hall procedures was at issue in IBEW, Local 592,
supra, the administrative law judge merely concluded that the
individual involved ‘‘knew, or should have known’’ that eli-
gibility for dispatch required the passing of a journeyman ex-
amination notwithstanding that the applicable collective-bar-
gaining agreement contained no such requirement.40 The
judge added that ‘‘the document was adequate to place job
applicants on notice.’’ of the changed dispatching require-
ment; however, nowhere in his decision did the judge sug-
gest that a ‘‘lower level’’ of notice might be sufficient in cir-
cumstances where the hiring hall rules change appears to be
necessary or lawful. To the contrary, the above-cited deci-
sions, all of which were issued by the Board subsequently
to IBEW, Local 592, emphasize that the necessity for ade-
quate notice of changes in hiring hall procedures is a critical
aspect of a labor organization’s duty to keep all job appli-
cants informed about matters critical to their employment
status, the import of which may not be lessened by the ne-
cessity for the rules change.
The issue herein, therefore, concerns the adequacy of the
notice of the hiring hall rules modifications which was af-
forded to the users of Respondent’s hiring hall. Recently, the
Board adopted the following test to gauge the sufficiency of
such notice: whether the labor organization ‘‘make[s] a good-
faith effort to give timely notice of the rule change in a man-
ner reasonably calculated to reach all those who [use] the ex-
clusive hiring hall.’’ Plumbers Local 230, 293 NLRB 315
(1989). Several factors convince me that, while Respondent
may have acted in good faith, notice of the rules modifica-
tions was not given in a ‘‘manner reasonably calculated’’ to
reach all the users of its hiring hall. In this regard, I note
that the contractual hiring hall rules and procedures are post-
ed at Respondent’s hiring hall facilities, that Respondent
failed to post copies of either General Counsel’s Exhibit 4
or Exhibit 5, and that Respondent offered no explanation for
its failure to do so. In such circumstances, as pointed out by
counsel for the General Counsel, hiring hall users might logi-
cally conclude that the posted rules and procedures remained
applicable. Respondent’s manner of informing users of the
modifications was only to orally inform those who wished to
register on the out-of-work list; however, both Jim Kazarian
and Raymond Springer conceded, despite their best efforts,
that they may not have informed all applicants. Further, Fred
Castro offered no testimony on this point, and Greg
Speranza, who, during 1987, shared the San Francisco facil-
ity dispatching duties with Kazarian and, presumably, re-
sponsibility for informing applicants of the modifications, did
not testify. No other steps were taken to give notice of the
modifications to the users of the hiring hall. Moreover, nei-
ther Philip Livingston, who was uncontroverted in this re-
gard, nor Ed Bermingham was told of the changes, and, not-
withstanding Respondent’s assertion that he must have
known the latter is credited as to becoming aware of the na-
ture of the hiring hall rules changes until 1988.41 In sum, it
appears that Respondent’s efforts at affording notice of the
rules modifications to its hiring hall users were as slipshod
and haphazard as those of the labor organization in Plumbers
Local 230 and that, therefore, such failure to adequately no-
tify job applicants prior to implementing said modifications
was violative of Section 8(b)(1)(A) and (2) of the Act.
Plumbers Local 230, supra; Teamsters Local 519, supra. Fur-
ther, in light of the foregoing, it logically follows that Re-
spondent’s implementation of the contractual hiring hall rules
modifications so as to adversely affect users of the hiring
hall was likewise violative of Sections 8(b)(1)(A) and 8(b)(2)
of the Act. Plumbers Local 230, supra. Accordingly, I con-
clude that the resultant merging of the contractually estab-
lished seniority groups, the maintenance of unified monthly
steamfitter out-of-work lists, and any job dispatches, off of
said lists, which were made without regard to nominal se-
533PLUMBERS LOCAL 38 (BECHTEL CORP.)
42 For the dispatch of an individual, who is only eligible for SG-
2 or lower, to a foreman position to be justified under the MLA,
there must be no SG-2 member, who has key man experience, eligi-
ble for the dispatch.
43 I do not rely on Kazarian’s version of the conversation, noting
that his testimony was contradicted by his pretrial affidavit wherein
he admitted telling Bermingham that he did have the right to bump
employees who were in lower seniority groups.
niority group placement and which, thereby, resulted in lost
employment opportunities for applicants who would other-
wise have been entitled to receive the referrals according to
the posted hiring hall procedures, were arbitrary and inher-
ently discriminatory acts. Ibid.
The second aspect of the allegation that Respondent has
unlawfully operated its hiring hall in a manner inconsistent
with the contractually established rules and procedures con-
cerns several provisions of the MLA to which Respondent
adversely has failed to adhere. In this regard, it is undisputed
that, having merged the contractual seniority groups subse-
quent to the execution of General Counsel’s Exhibit 4, Re-
spondent apparently felt no longer obligated to adhere to the
key men, men terminated within 30 days, and right-to-hire-
by-name provisions of article II, section 16 of the MLA.
Thus, while the key men provision prohibited the dispatching
of SG-2 members as long as SG-4 members, with the req-
uisite foreman experience, were available on the out-of-work
list and the other two provisions restricted requests, pursuant
to their terms, to members of SG-1, Kazarian’s only expla-
nation for Respondent’s failure to adhere to these provisions
of the MLA was that the suspension of the hours of work
requirement and the resultant seniority group merger made
strict adherence to these provisions unnecessary. However, I
have concluded that the lack of requisite notice rendered im-
plementation of the suspension of the 1000 hours of work re-
quirement unlawful. Further, Respondent clearly has dem-
onstrated no compelling necessity for failing to comply with
the seniority requirements in the above contractual provi-
sions. Accordingly, its departure from said hiring hall proce-
dures in permitting the dispatching of SG-2 or lower mem-
bers to key men positions when experienced SG-1 individ-
uals may have been available42 and in dispatching individ-
uals eligible for SG-2 or lower pursuant to the men termi-
nated within 30 days and right-to-hire-by-name provisions
constitutes arbitrary and inherently discriminatory conduct.
Also, with regard to the men terminated within 30 days and
right-to-hire-by-name provisions, the record establishes that,
as to the former, Kazarian interpreted it as meaning 30 work-
ing days, did not include Saturdays, Sundays, or holidays for
computing the time period, and stated such has always been
his practice while acting as a dispatcher and that, as to the
latter, despite its wording, which requires the off-the-list re-
ferral to be on the employer’s payroll prior to the dispatch
of the named individual, the dispatchers’ standard practice
has been to fill both positions on the day the work order is
received inasmuch as, in Kazarian’s view, strict adherence to
the contract would be impractical. Agreeing with counsel for
the General Counsel, I note that elsewhere in the men termi-
nated within 30 days provision, the time of employment by
the contractor during the preceding 12 months is specified as
120 ‘‘working days,’’ indicating that the contracting parties
would have stated the time period as 30 working days if they
had so intended. Therefore, the fact that the time period
merely reads ‘‘within thirty (30) days’’ establishes that the
parties mean 30 calendar days, and I so find. Accordingly,
Respondent’s dispatchers were, and are, not strictly adhering
to article II, section 16(b), and the fact that Respondent may
have acted in accord with its past practice is not a valid de-
fense. Iron Workers Local 505, supra. As to Respondent’s
admitted practice of dispatching both off-the-list and named
referrals at the same time in clear contravention of article II,
section 16(e) of the MLA, Respondent offered no evidence
justifying such a departure from its contractual hiring hall
rules as necessary to the effective performance of its rep-
resentative function. Rather, expedience appears to have been
the underlying rationale, and such does not constitute a de-
fense to failing to strictly adhere to contractual hiring hall
procedures. Finally, the record evidence is undisputed that
Respondent has failed, and is failing, to enforce article II,
section 25 of the MLA, the so-called bumping provision. At
the hearing, counsel for Respondent asserted that said clause
was unlawful and that Respondent has never enforced the
provision, including the necessity of posting a list of persons
who are currently employed and who are lower than SG-1.
While Kazarian testified that he has never permitted section
25 to be utilized in order to remove an employee from a job-
site, I credit Bermingham that the business agent told him in
February 1987, that he (Bermingham) had bumping seniority
over another individual43 and find that Respondent, at all
times herein, has recognized the viability of the bumping
procedures. Moreover, Respondent cited no Board decisions
holding similar clauses unlawful; contractual bumping provi-
sions are common in many industries; and the language of
section 25 has been included in the MLA for many years,
with Respondent never negotiating its removal. Further, as
above, the fact that Respondent’s past practice may have
been to refuse to enforce the bumping provision does not
warrant a departure from established contractual rules which
require, at the least, the posting of the aforementioned list.
Accordingly, Respondent’s failure to abide by the above pro-
visions of the MLA was—and is—unlawful, violative of Sec-
tions 8(b)(1)(A) and 8(b)(2) of the Act. Painters Local 1140,
supra; Iron Workers Local 505, supra; Operating Engineers
Local 406, supra; Plumbers Local 392 (Kaiser Engineers),
252 NLRB 417, 419 (1980).
Besides the allegation that Respondent has been operating
its hiring hall in a manner inconsistent with the provisions
of the MLA, it is alleged that, since May 28, 1987, Respond-
ent has discriminated against Ed Bermingham because he
filed unfair labor practice charges against Respondent with
the Board and engaged in other activities protected by Sec-
tion 7 of the Act. The record establishes that, during 1987
and 1988, the Charging Party persistently complained about
perceived violations of the contractual dispatch, hiring, and
layoff provisions by both Respondent and signatory contrac-
tors, filing, at least, eight contractual grievances against
former employers, several internal union grievances, and no
less than 10 unfair labor practices with the Board. There is
ample record evidence that Respondent, indeed, harbored
animus against Bermingham as a result of his activities.
Thus, it was uncontroverted that, shortly after giving a dis-
patch to Bermingham in October 1987, Kazarian remarked to
a member of the local, ‘‘That son of a bitch has charges
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 Bermingham and Springer gave contradictory accounts as to this
conversation. Inasmuch as the former’s testimonial demeanor was
more impressive than that of the business agent, who did not appear
to be nearly as candid, I shall credit Bermingham whenever they
conflict in their respective testimony.
45 Given Springer’s practice of not requiring applicants to drive to
the Santa Rosa facility each month in order to register, the placing
of a more stringent requirement on Bermingham patently dem-
onstrates Respondent’s animus against him.
46 Of all the witnesses at the hearing, Castro was the least impres-
sive; his demeanor was that of a most disingenuous witness. Accord-
ingly, I do not rely on any aspect of his testimony and credit
Bermingham whenever they conflict.
47 Herein, inasmuch as Respondent maintained a unified out-of-
work list without regard to seniority group placement at all times
material, it never acted on its position to place Bermingham in SG-
2. Thus, the Board’s analysis in cases such as Atwood & Morrill
Co., 289 NLRB 794 (1988), and NCR Corp., 271 NLRB 1212
(1984), is not applicable herein.
against me and I’ve got to give him a job.’’ Further, in Feb-
ruary 1988, Bermingham spoke to Business Agent and Santa
Rosa dispatcher Ray Springer regarding retaining his position
on that office’s out-of-work list,44 and, during the conversa-
tion, Springer told the Charging Party ‘‘that because of the
commotion you’ve been causing down at the Union you’re
going to have to come in and sign the list.’’45 Further, during
a subsequent telephone conversation with Business Agent
Fred Castro, the San Rafael dispatcher,46 the latter accused
Bermingham of being ‘‘Melvin Belli’’ and asked whom he
would sue next. When Bermingham said that he was unde-
cided, Castro replied, ‘‘Eddie, you’re going to starve to death
doing that.’’ Finally, clearly demonstrative of the breadth of
Respondent’s animus toward Bermingham, are the comments
of Joseph Mazzola as expressed in a September 6, 1988 let-
ter to Respondent’s building trades department members
wherein he denounced Bermingham as ‘‘determined to smear
the reputation of [Respondent] and its officers and . . . to
completely destroy [it]’’ by the filing of the instant unfair
labor practice charges and added that the actions were noth-
ing more than ‘‘maliciously intended.’’
In light of Respondent’s unlawful implementation of the
hiring hall rules modifications (specifically, the merger of the
contractually established seniority groups and dispatching of
applicants without regard to their seniority placement) and
failure to strictly adhere to the dispatching provisions of the
MLA and, since May 28, 1987, of its patently unlawful ani-
mus toward Bermingham, I turn to consideration of the ap-
proximately 125 instances, during 1987 and 1988, when, ac-
cording to counsel for the General Counsel and Bermingham,
job applicants with lower seniority than the Charging Party
received dispatches to available jobs rather than he, notwith-
standing his asserted higher seniority and availability for
such work. At the outset, counsel and Bermingham assert
that the record conclusively demonstrates that Bermingham
was eligible for SG-1 in 1987 and 1988 and that, therefore,
he should have been dispatched prior to any members of
lower seniority groups. On the other hand, counsel for Re-
spondent argues that, had the contractual seniority groups
been maintained rather than merged, Bermingham only
would have been eligible for inclusion in SG-2 and dis-
patched accordingly. In this regard, there is no dispute that
the Charging Party physically worked a total of 1064 hours
in 1985 and 957.5 hours in 1986; that, for purposes of
wages, he was credited with having worked 1,005.95 hours;
and that, for purposes of employer contributions on his be-
half, to the contractual fringe benefit trust funds, he was
credited, by the trust fund administrator, for just his actual
hours of work—957.5 hours. Respondent further argues that
its determination that Bermingham would have been eligible
only for SG-2 in 1987 was based on an analysis of his trust
funds credited hours by the administrator, that the adminis-
trator’s analysis was done in the normal course of his job du-
ties, and that such reliance was a ‘‘reasonable’’ interpretation
of article II, section 14(f) of the MLA. As set forth above,
said provision permits a dispatcher, within his discretion
whenever there exists doubt as to whether an applicant has
satisfied the 1000-hour requirement, to utilize either a letter
from the trust funds or the records of previous employers in
order to make a determination. Counsel for the General
Counsel asserts that said provision ‘‘should be interpreted to
mean the hours for which an employee was paid.’’ He points
out, in support, that such an interpretation would avoid pos-
sible ‘‘unfair treatment’’ of similarly situated employees.
Both interpretations of the above provision are, I believe,
misplaced. Thus, the instant situation is not one in which an
employer has acted on an interpretation of a contract provi-
sion, the employer and the Union have equally plausible in-
terpretations of the agreement, and the employer’s allegedly
unlawful conduct has a ‘‘sound arguable basis.’’47 Rather, it
is one which necessitates contract interpretation in order to
properly assess which of two equally plausible views of a
complex factual matrix is correct. In this regard, ‘‘it is well
settled that the Board has authority to interpret collective-bar-
gaining agreements in the course of deciding unfair labor
practice cases.’’ NLRB v. C & C Plywood Corp., 385 U.S.
421, 428 (1967); Electrical Workers IBEW Local 11, supra
at 425–426. Extensive consideration of the MLA convinces
me that the proper interpretation of ‘‘the one thousand
(1,000) hour requirement’’ is that such refers to the actual
number of hours of physical labor engaged in by a hiring
hall applicant for signatory contractors in a given year and
not whatever evidence which is relied upon by a dispatcher
should reflect this. Thus, as pointed out by the health and
welfare funds administrator Sullivan, whether an individual is
credited with more hours than actually worked for purposes
of wages or fringe benefits contributions is a function of—
and dependent on—the existence of so-called multipliers in
the collective-bargaining agreement under which he works.
In such circumstances, accepting the interpretation of the
1000-hour requirement proposed by either counsel for the
General Counsel (hours as calculated for wages) or by coun-
sel for Respondent (hours as calculated for fringe benefits
contributions) means that, notwithstanding the same number
of hours of physical labor, one steamfitter may be credited
with having worked 1000 hours or more and another may not
be so credited, with said calculations based solely on the ex-
istence—or lack thereof—of the aforementioned contractual
hours multipliers. I do not believe that the parties to the
MLA intended such an anomalous result, and I so find. Pur-
suant to the aforementioned interpretation of the 1000-hour
requirement of the MLA, inasmuch as he actually worked
535PLUMBERS LOCAL 38 (BECHTEL CORP.)
48 Assuming Bermingham would have worked 1000 hours in 1987,
given my finding as to his 1986 hours, he would have been eligible
for inclusion in no higher than SG-2 in 1988.
49 These lawful, disputed dispatches are as follows: Nos. 1, 10, 11,
12, 15, 18, 20, 26, 30, 32, 34, 41, 46, 47, 52, 55, 56, 57, 63, 67,
72, 73, 74, 75, 76, 85, 86, 87, and 106.
50 There is no dispute that, to be eligible to receive a dispatch
from Respondent’s San Francisco hiring hall, an applicant must be
present in the hiring hall at the time of the dispatch. With regard
to the San Rafael and Santa Rosa facilities, business agent Raymond
Springer testified that his practice was not to require the applicant’s
presence at the time of the dispatch. Fred Castro testified, at the
original hearing in March, that he followed the same practice. How-
ever, Castro contradicted himself in November, stating that such was
never his practice and that his practice always has been to require
an applicant to be present for an ‘‘off the list’’ dispatch. Given his
original corroborative testimony that an applicant’s presence was not
required in Santa Rosa or San Rafael, I find such was the practice
at said locations at all times material herein.
With regard to Bermingham’s presence at the San Francisco hiring
hall on the dates noted in his diaries, I was not particularly im-
pressed with the testimony of either the Charging Party or Kazarian
on this point. Nevertheless, as between them, I believe the Charging
Party was the more reliable witness and shall credit his testimony
that he was present at the San Francisco facility on the days noted
in his 1987 and 1988 diaries. Comparing his diary notations with the
dates of allegedly unlawful dispatches to SG-3 or lower members
discloses that Bermingham was not present when the following SG-
3 or lower dispatches were given: Nos. 6, 8, 16, 17, 22, 36, 48, 64,
81, 82, and 83. As will be explained infra, while counsel for the
General Counsel does not contend that Bermingham should have
been given these dispatches, he does argue that, had Respondent fol-
lowed the ‘‘bumping’’ provision of the MLA, he would have been
able to bid for the jobs involved. There is a particular factual dispute
as to the April 2, 1987 dispatch to Ellis Perez (24th). As to this,
Bermingham’s diary notation for this date has him ‘‘at union,’’
while Kazarian’s assertion that the Charging Party was not present
is based on hearsay. Based on my above findings, contrary to
Kazarian, I conclude that Bermingham was present at the San Fran-
cisco hiring hall that day.
51 The following are the unlawful SG-2 and SG-3 or lower dis-
patches: Nos. 9, 5 24, 28, 33, 40, 45, 51, 53, 54, 59, 61, 80, 104,
113, 114, and 115.
52 These unlawful, disputed dispatches include Nos. 2, 31, 62, 65,
77, 90, 93, 99, 107, and 109.
Dispatch Nos. 65 and 90 were to the San Quentin Prison, a job
for which Fred Castro testified that Bermingham said he was not
Continued
only 957.5 hours in 1986, the Charging Party would only
have been eligible for inclusion in SG-2 in 1987 and 1988.48
Based on the foregoing legal analysis, certain legal conclu-
sions become manifestly certain. Initially, with regard to Re-
spondent’s unlawful implementation of the September 1986
hiring hall rules modifications, including the merger of the
contractual seniority groups and the resulting dispatching of
job applicants off of the out-of-work lists without regard to
their seniority group status, the record evidence is clear that,
since January 1, 1987, there obviously have been numerous
instances, including those litigated herein involving the
Charging Party, in which individuals have been dispatched to
jobs at times when other job applicants, who were members
of higher seniority groups and who were registered on the
applicable steamfitters’ out-of-work list were available for
said dispatches. Given the lack of sufficient notice of the
changes in the hiring hall rules and procedures, all those job
applicants who were denied job dispatches in these cir-
cumstances are victims of Respondent’s arbitrary and inher-
ently discriminatory conduct and entitled to be made whole
for any loss of earnings. Plumbers Local 230, supra; Oper-
ating Engineers Local 406, supra at 51 fn. 5. Likewise, as
to Respondent’s failure to adhere to the seniority require-
ments of the key men, men terminated within 30 days, right-
to-hire-by-name provisions of the MLA, Respondent con-
cedes—and the record evidence is not in dispute—that, since
January 1, 1987, there undoubtedly have been numerous in-
stances, when SG-2 or lower individuals have been dis-
patched to jobs pursuant to the above hiring hall regulations,
other than those litigated herein involving Bermingham. As
found above, the failure to adhere to the explicit terms of the
MLA’s hiring hall provisions was, and remains, patently un-
lawful. Respondent’s failure to act consistent with the above
provisions was arbitrary and inherently discriminatory to-
ward, and may have adversely affected, many applicants who
were eligible for SG-1 status in 1987, 1988, and 1989 and
who would have been eligible to receive the dispatches.
Clearly, any of said affected individuals who may have suf-
fered a loss of earnings as a result of Respondent’s actions
is entitled to backpay. Laborers Local 135 (Bechtel Corp.),
271 NLRB 777, 780 (1984). Also, for the above reasons, any
SG-1 individual who may have been adversely affected by
Respondent’s unlawful failure to strictly adhere to the bump-
ing provision of the MLA since January 1, 1987, should like-
wise be entitled to be made whole for any loss of earnings
as a result of Respondent’s conduct. Ibid.
Turning again to the disputed job referrals during 1987
and 1988 involving Ed Bermingham, and in light of my con-
clusions as to his proper seniority group placement during
those years, he would have been eligible for dispatch to
available jobs off the Respondent’s monthly out-of-work lists
after members of SG-1 and after those SG-2 members whose
names were above that of Bermingham on the lists. There-
fore, the conclusion is warranted that any of Respondent’s
disputed referrals, which were given ‘‘off the list’’ to any of
the above applicants, rather than to Bermingham, in 1987
and 1988, were lawful.49 Conversely, assuming that Re-
spondent had operated its hiring hall in neither an arbitrary
nor a discriminatory manner toward the Charging Party, it is
manifestly certain that, given his membership in SG-2, he
would have been eligible for dispatches, for which he was
available, off the monthly out-of-work lists prior to any other
member of SG-2, whose name on the lists was beneath that
of the Charging Party, and any person, who was only eligible
for SG-3 or lower. Accordingly, taking into account Re-
spondent’s failure to adhere to the hiring hall provisions of
the MLA and its demonstrated unlawful animus towards the
Charging Party, I also conclude that any of the disputed job
referrals which were given ‘‘off the list’’ to such persons,
rather than to Bermingham, in 1987 and 1988, at times when
he was available for said referrals,50 must be found violative
of Sections 8(b)(1)(A) and 8(b)(2) of the Act.51 Plumbers
Local 230, supra. Moreover, there are numerous instances of
call-by-name referrals for SG-2 eligible applicants, whose
names appear beneath that of the Charging Party on applica-
ble out-of-work lists, at times when he was available for said
dispatches.52 Given his eligibility for them, I find said refer-
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
qualified and ‘‘not to bother’’ giving him dispatches. Given my prior
credibility resolution, I credit Bermingham that he mentioned a 25-
year-old felony conviction and Castro said he could not work at the
prison with that record. Therefore, I believe Castro’s failure to dis-
patch Bermingham to these jobs was a product of Respondent’s un-
lawful animus and clearly unlawful.
53 There are three instances of call-by-name referrals of individuals
who were eligible only for SG-2 and whose names appeared above
that of Bermingham on the applicable out-of-work lists: dispatch
Nos. 13, 14, and 23. Inasmuch as it is not unreasonable to conclude
that the individuals involved would have received the referrals any-
way, I find that Bermingham would not have received these. How-
ever, they must be viewed as unlawful in the context of being viola-
tive of the specific terms of the call-by-name provision of the MLA.
Three of the disputed call-by-name dispatches (Nos. 60, 101, and
116) went to SG-1 members and were lawful under the MLA.
54 Four of the disputed discharges were given, pursuant to sec.
16(b), to SG-1 members and were, thus, lawful. These were dis-
patches Nos. 39, 52, 105, and 120.
As to dispatch No. 102, involving Surjit Sihota, while not valid
as a contractual rehire dispatch (31 days after termination notwith-
standing Kazarian’s assertion that only working days should be con-
sidered in the calculation, a contention I have found without merit),
Sihota was an SG-1 member and, thus, eligible for the dispatch be-
fore Bermingham notwithstanding being beneath the latter on the
out-of-work list. The referral was, therefore, lawful as to
Bermingham.
55 The disputed key man referrals include Nos. 3, 4, 5, 25, 35, 71,
78, and 108. As above, these may, nonetheless, be viewed as unlaw-
ful as being made in contravention of the contractual key men provi-
sion.
56 The disputed dispatches involving the bumping of SG-2 and SG-
3 individuals whose names were beneath the Charging Party on out-
of-work lists include Nos. 6, 8, 16, 17, 22, 36, 48, 64, 81, 82, and
83. As the record establishes his unavailability for these referrals,
each must be viewed as lawful vis-a-vis the Charging Party.
57 The disputed dispatches given for refrigeration fitter jobs are
Nos. 7, 19, 21, 29, 37, 49, 50, 58, 79, 95, 103, and 124.
58 The disputed control fitter dispatches are Nos. 42, 43, 44, 69,
88, 92, and 100.
rals violative of Sections 8(b)(1)(A) and 8(b)(2) of the Act
not only as being made in disregard of the right to call-by-
name provision of the MLA but also vis-a-vis
Bermingham.53 Also, amongst the disputed dispatches is one
referral, pursuant to the men terminated within 30 days pro-
vision, of an SG-2 eligible applicant, whose name appears
below Bermingham’s on the applicable out-of-work list
(123d) and one referral, pursuant to said MLA section of an
SG-3 member (22d) when Bermingham’s name was on the
out-of-work list and he was available for the dispatch. I have
previously concluded that any such ‘‘rehire’’ referrals, in dis-
regard of the terms of the above provision, were unlawful.
Noting Respondent’s animus toward the Charging Party and
given his eligibility for said referrals, I further conclude that
such were violative of Sections 8(b)(1)(A) and 8(b)(2) of the
Act as to Bermingham.54 As to those disputed referrals in-
volving dispatches to foreman positions pursuant to Section
16(a) of the MLA, notwithstanding that several were referrals
of SG-2 members, these may not be found unlawful vis-a-
vis Bermingham.55 Thus, not only was he eligible for no
higher than SG-2 status in 1987 and 1988 but also there ex-
ists no record evidence that no eligible SG-1 members, with
the requisite foreman experience, were available for each dis-
patch. Accordingly, assuming Respondent had properly made
the dispatches, he would not have received them. Likewise,
notwithstanding Respondent’s failure to abide by the contrac-
tual bumping provision, inasmuch as said section of the
MLA gives bumping privileges only to ‘‘unemployed work-
men from Group 1’’ and as Bermingham was not eligible for
inclusion in that seniority group, the conclusion is warranted
that, even had Respondent been adhering to section 25, he
would not have been permitted to bump previously dis-
patched employees off their jobs. Accordingly, I find that
none of the disputed dispatches, as to which Bermingham
was assertedly denied bumping privileges, were unlawful as
to him.56
Respondent presented evidence that certain of the disputed
dispatches were for refrigeration fitters57 or control fitters,58
that the individuals who were referred to said jobs were eli-
gible for, and proficient in, such work, and that Bermingham
neither was interested in, nor able to perform, these jobs. As
to the referrals to refrigeration fitter positions, the record es-
tablishes that refrigeration work constitutes a separate job
classification and that, merely for purposes of convenience,
referrals for such jobs were made off the steamfitters’ out-
of-work lists. Furthermore, applicants, who were dispatched
to refrigeration fitter jobs, placed the notation ‘‘REF’’ next
to their names, and Bermingham conceded that not only had
he never performed such work but also he was not qualified
to perform ‘‘any’’ aspect of it. Regarding the referrals for
control fitter work, the record establishes that the MLA per-
mits dispatching for work, which requires specialized skills,
in the order in which the names of qualified individuals ap-
pear on the out-of-work lists. While Kazarian, Castro,
Springer, and Bermingham conflict as to whether control fit-
ter work requires specialized skills, based on the record as
a whole, I credit the business agents on this point and con-
clude that control fitting work, which involves the installa-
tion and servicing of pneumatic controls and thermostats, is
a specialized type of steamfitting work, one requiring ad-
vanced training. Further, while the individuals, who are dis-
patched for such work, normally have the designation
‘‘CONT’’ above their names on the out-of-work lists,
Bermingham’s name never appears in this manner, and he
conceded that he never ‘‘really expressed that much desire’’
to perform such work. Moreover, while the Charging Party
asserted that he was qualified to perform control fitting work,
the record establishes that, on one occasion when he was dis-
patched for such work, the contractor refused to hire him, ex-
plaining that the Charging Party neither possessed the experi-
ence nor was qualified to work on electronic control systems.
In these circumstances, notwithstanding that SG-2 persons,
whose names appeared beneath Bermingham’s on out-of-
work lists, and SG-3 individuals received dispatches for re-
frigeration and control fitter jobs at times when Bermingham
was available, I find that he was not qualified for either
work, that Respondent did not act arbitrarily or discrim-
inately in referring others to the available jobs, and that, ac-
cordingly, the above-disputed dispatches were not unlawful
as to Bermingham.
Turning to the remainder of the disputed 1987 and 1988
dispatches, three (Nos. 27, 84, and 94) were to Mike Mur-
phy, the individual who, in 1985, was permitted, by Re-
spondent, to transfer from its metal trades department to its
building trades department without loss of his SG-1 status.
Counsel for the General Counsel argues that the treatment of
537PLUMBERS LOCAL 38 (BECHTEL CORP.)
59 I have previously found the by-name dispatch (No. 90) as un-
lawful as to Bermingham.
Murphy was contrary to the specific language of the MLA’s
seniority group provisions which states that eligibility for
SG-1 status depends on an individual’s hours of work under
the terms of ‘‘this or a predecessor’’ agreement and that Re-
spondent offered no evidence that its departure from its hir-
ing hall rules was justified by representational necessity.
Without regard to the merits of counsel’s argument, it is evi-
dent that, in order to find the three disputed 1987 dispatches
to have been unlawful, one must initially find that Respond-
ent acted unlawfully and in violation of the terms of the
MLA by permitting Murphy to retain his SG-1 status. In this
regard, Respondent’s conduct obviously occurred in excess
of 6 months prior to the filing of the unfair labor practice
charge in Case 20–CB–7279 and, thus, was beyond the 10(b)
statute of limitations period. Unlike regarding the September
1986 hiring hall rules modifications and contrary to the as-
sertion of counsel for the General Counsel, there exists no
evidence that Bermingham did not become aware of the
transfer of Murphy’s seniority group status until sometime
within the 10(b) period. Therefore, what occurred in 1985 is
not open to challenge at this point, and one must accept
Murphy’s resultant SG-1 status amongst Respondent’s build-
ing trades department job applicants. Thereafter, as, accord-
ing to trust fund records, Murphy worked no hours in 1986
and less than 900 hours in 1987, he failed to retain this se-
niority group status and, in 1987 and 1988, only was eligible
for inclusion in SG-2. In light of the foregoing, contrary to
Kazarian, he was not eligible for rehire in May 1987 pursu-
ant to section 16(b) of the MLA; nevertheless, dispatch No.
27 may not be considered as unlawful vis-a-vis Bermingham
inasmuch as it appears that the latter was not then registered
on the May 1987 San Francisco out-of-work list and as, in
any event, Murphy’s name was above that of Bermingham
on said list. With regard to dispatch No. 84, it seems to have
been given to Murphy at a time when his name appeared
above that of Bermingham on the out-of-work list; given
their equal seniority group status, the dispatch appears to
have been lawful, and I so find. However, as to dispatch No.
94, Kazarian testified that Murphy retained his place on the
out-of-work list because the prior job lasted just 6 days. The
language of the MLA permits an applicant to retain his place
if he works no more than 5 days. As I have found implemen-
tation of the September 11, 1986 changes unlawful and as
one of these increased the above period to 10 days, it follows
that Kazarian unlawfully permitted Murphy his position on
the May out-of-work list. Accordingly, I find dispatch No. 94
to have been unlawful as to Bermingham, who would have
been higher on the list than Murphy.
Next, with regard to disputed dispatch No. 38, Kazarian’s
testimony was uncontroverted that said action should not be
considered as a job referral inasmuch as the applicant, Bill
Durand, merely was reinstated to his previous position after
being suspended due to being involved in a physical alterca-
tion on the jobsite. Notwithstanding that Durand’s name was
beneath that of Bermingham on the out-of-work list, it does
not appear that the latter was discriminatorily passed over for
dispatch, and I find this referral to have been lawful. Con-
cerning dispatch No. 68, a San Rafael dispatch given to an
SG-2 individual, whose name was beneath that of
Bermingham on the September 1987 out-of-work list, in ac-
cord with my belief that business agent Fred Castro appeared
to be an utterly disingenuous witness, one who would be
credited at all herein, I do not rely on his explanation and
conclude that, exhibiting Respondent’s animus against
Bermingham, Castro deliberately bypassed him on this occa-
sion. Therefore, I find dispatch No. 68 to have been violative
of Section 8(b)(1)(A) and (2) of the Act. As to dispatch No.
89, according to Castro, this was the ‘‘off the list’’ portion
of a call-by-name referral. However, both dispatches were on
November 16, 1987, from San Rafael and, while the names
of both applicants appear on the October 1987 San Rafael
out-of-work list, neither appears on the November list and
Castro offered no explanation for this. Inasmuch as the
MLA’s hiring hall procedures specify that applicants must be
registered on each monthly out-of-work list in order to re-
ceive a dispatch, it is manifestly certain that Respondent dis-
criminated against Bermingham, who was registered on the
November list, by awarding this referral to an individual who
was not registered. Accordingly, the above dispatch was vio-
lative of Section 8(b)(1)(A) and (2) of the Act.59 Regarding
dispatch No. 112, given to Pam Bates on March 14, 1988,
Kazarian testified that the contractor requested a woman, that
requests for women and other minorities are treated as ‘‘by
name’’ requests and that such are made without regard to po-
sition on the out-of-work list. Bermingham did not dispute
the procedure utilized in referring minorities and women.
Rather, he argued that, as the MLA permits name calls pro-
vided that the individual has been registered no less than 3
days on the out-of-work list and as Bates was dispatched im-
mediately on registering, said referral was in violation of the
contract and unlawful. Kazarian stated that Respondent at-
tempts to cooperate with contractors, who require percent-
ages of their work forces to be comprised of minorities and
women, and that, with regard to Bates, Respondent could
have waited the required 3 days but the contractor’s need
was immediate and she was available. In my view, Respond-
ent clearly has demonstrated the representational necessity
for not closely adhering to the hiring hall procedures when
placing minorities and women. The social and political ne-
cessity for placing minorities and women in jobs which tradi-
tionally have not been open to them is of a greater import
than strict obedience to contractual procedures. Therefore, I
find this referral to have been lawful. Likewise, dispatch No.
121, given to Bill Beatty on August 1, 1988, when his name
was beneath Bermingham’s on the out-of-work list, was a
minority hire and, for the above reasons, must be found law-
ful. Dispatch No. 122 was for a key man position. The con-
tractor was an out-of-town employer, and the individual was
an employee of the contractor but not a member of Respond-
ent. Inasmuch as section 19 of the MLA permits such em-
ployers to utilize their own foremen, said referral seems to
have been in accord with the MLA and lawful. Finally, re-
garding dispatch No. 126, on its face, it appears to be the
dispatch of an SG-3 applicant rather than Bermingham. Fred
Castro asserted that the job call was for a ‘‘tube fitter,’’ that
the dispatched applicant was the only individual, who was
available and experienced in the work; and that such is ‘‘spe-
cialty’’ work which is covered by a separate collective-bar-
gaining agreement. Notwithstanding my view that Castro was
basically not worthy of belief, inasmuch as Bermingham
failed to controvert his testimony as to this dispatch, I shall
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
credit Castro in this instance. Accordingly, given the special
nature of the work involved and the experience of the dis-
patched applicant, I do not view the referral as either arbi-
trary or discriminatory and find it to have been lawful.
Two allegations remain unresolved. As to the first, which
involves Bermingham’s July 5, 1988 written request for dis-
patch information, including rehire requests, dispatch slips,
requests for special skills, and out-of-work lists, and Re-
spondent’s July 27 denial of the request, there exists no fac-
tual dispute. The Charging Party testified that his request was
made in connection with pending unfair labor practice litiga-
tion before the Board and with pending contractual griev-
ances. Respondent argued that Bermingham’s request was
burdensome; however, no evidence was offered in support of
this assertion. The Board has held ‘‘that a union has an obli-
gation to deal fairly with an employee’s request for job-refer-
ral information that an employee is entitled to access to job-
referral lists in order to protect his referral rights’’ and that
the refusal to provide such information is violative of Section
8(b)(1)(A) of the Act. Operating Engineers Local 825
(Building Contractors Assn.), 284 NLRB 188 (1987); Team-
sters Local 282 (General Contractors), 280 NLRB 733, 735
(1986). Herein, not only did Bermingham request to see the
out-of-work lists but also he requested to see the underlying
information concerning dispatches off the lists. Given his on-
going dispute with Respondent over the latter’s failure to
refer him to available jobs and the pending Board litigation
involving his unfair labor practice charges, I believe Re-
spondent was obligated to provide the requested information.
Moreover, Respondent has failed to demonstrate that it
would have been unduly burdensome for it to have complied
and provided the requested documents. Accordingly, I find
Respondent’s denial of Bermingham’s request to have been
violative of Section 8(b)(1)(A) of the Act. Ibid.
As to the final allegation herein, that Respondent unlaw-
fully removed Bermingham’s name from its San Rafael hir-
ing hall’s June 1989 out-of-work list at a time when his
name would have been at the top of the list, evaluation of
what occurred is wholly dependent on my resolution of the
credibility of the witnesses. Thus, business agent Fred Cas-
tro’s justification for removing Bermingham’s name from the
out-of-work list is that the Charging Party failed to call the
office and, thereby, register for the June list during the
month of May. However, given my previously stated conclu-
sions, that Castro appeared to be a most unimpressive wit-
ness, one lacking any candor, and that, as between them,
Bermingham was the more trustworthy and honest witness,
I credit the Charging Party that following his normal proce-
dure for registering on Respondent’s San Rafael out-of-work
list for the next month, he placed a telephone call to that fa-
cility on either May 13, 14, or 15; that he spoke to Castro;
and that Bermingham said to the business agent, ‘‘This is Ed
Bermingham checking in.’’ Castro conceded that this was the
normal way in which Bermingham registered for the next
month. The foregoing convinces me that Castro deliberately
omitted Bermingham’s name from the June out-of-work list,
and I am also convinced that such directly resulted from Re-
spondent’s unlawful animus against him. Thus, as dem-
onstrated above, Respondent harbored animus against
Bermingham for his activities which included the filing of
unfair labor practice charges with the Board. Castro himself
exhibited such animus when he warned the Charging Party
in February 1988 that he (Bermingham) would starve to
death by filing lawsuits. That such animus motivated Castro
on this occasion is certain. Thus, when Bermingham tele-
phoned him to complain about not being on the June list,
Castro hung up on him, and, in October, when Bermingham
requested to see the out-of-work list, Castro cursed and re-
fused. In my view, the foregoing conclusively establishes
that Respondent arbitrarily and discriminatorily removed
Bermingham’s name from its June 1989 out-of-work list in
violation of Section 8(b)(1)(A) and (2) of the Act, and I so
find.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. By failing to adequately notify job applicants of the
modifications of its contractually established hiring hall rules
and procedures (including suspension of the 1000 hours of
work requirements for seniority groups 1 and 2, the suspen-
sion of the 120-working-day requirement in article II, section
16(b), and the increase from 5 to 10 for the number of days
an employee would have to work before losing his position
on the out-of-work list), which were agreed on by Respond-
ent and the signatory contractors on or about September 11,
1986, and by therefore, since on or about January 1, 1987,
implementing said modifications, Respondent operated its ex-
clusive hiring hall in an arbitrary and discriminatory manner,
violative of Section 8(b)(1)(A) and (2) of the Act.
3. By deviating and failing to adhere to its contractually
established hiring hall rules and procedures (including the
key man, men terminated within 30 days, right to hire by
name, and bumping provisions), Respondent operated its ex-
clusive hiring hall in an arbitrary and discriminatory manner,
violative of Section 8(b)(1)(A) and (2) of the Act.
4. Since on or about January 1, 1987, as a result of imple-
menting the aforementioned modifications of its contractually
established hiring hall rules and regulations without adequate
notice to job applicants and of deviating from the contrac-
tually established hiring hall rules and regulations, by failing
and refusing to refer Ed Bermingham and other applicants to
available jobs, Respondent operated its exclusive hiring hall
in an arbitrary and discriminatory manner, violative of Sec-
tion 8(b)(1)(A) and (2) of the Act.
5. By, since May 28, 1987, failing and refusing to dispatch
Ed Bermingham to jobs for which he was eligible and avail-
able because he filed unfair labor practice charges with the
Board and engaged in other protected concerted activities,
Respondent operated its hiring hall in an arbitrary manner
and discriminated against Bermingham in violation of Sec-
tion 8(b)(1)(A) and (2) of the Act.
6. By failing and refusing to honor Bermingham’s request
for dispatch information in order that he could protect his re-
ferral rights, Respondent engaged in conduct violative of
Section 8(b)(1)(A) of the Act.
7. By removing Bermingham’s name from the June 1989
out-of-work list, Respondent engaged in arbitrary and dis-
criminatory conduct, violative of Section 8(b)(1)(A) and (2)
of the Act.
8. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
9. Unless noted above, Respondent engaged in no other
unfair labor practices.
539PLUMBERS LOCAL 38 (BECHTEL CORP.)
60 The precise numbers and identities of such individuals, the dates
on which they should have worked, their rates of pay, and all related
issues are backpay matters properly left to the compliance portion
of these proceedings.
61 Interest will be computed at the ‘‘short-term Federal rate’’ for
the underpayment of taxes as set forth in the 1986 amendment to
26 U.S.C. § 6621.
62 Respondent argues that Bermingham is not entitled to any back-
pay inasmuch as he cannot establish, as a matter of fact, that he
would have been entitled to have been dispatched in any of disputed
instances of dispatches which I have found unlawful as to him. Con-
trary to Respondent, the Board has held, in a case similar to herein
involved, that, ‘‘for purposes of finding a violation, it is irrelevant
whether under the posted hiring hall procedures any other applicants
would have had greater priority for referral’’ and that, once the vio-
lation is found, backpay must be awarded. Iron Workers Local 505,
supra at 1114 fn. 10.
REMEDY
Having found that Respondent has engaged in and is con-
tinuing to engage in unfair labor practices within the mean-
ing of Section 8(b)(1)(A) and (2) of the Act, I shall rec-
ommend that it be ordered to cease and desist from said con-
duct and to take certain affirmative actions which are nec-
essary to effectuate the policies of the Act. Initially, with re-
gard to the September 11, 1986 modifications to the MLA’s
hiring hall regulations and procedures, inasmuch as I have
found that Respondent gave insufficient and less than ade-
quate notice of them to the users of its hiring hall and as
I, therefore, concluded that, since January 1, 1987, the imple-
mentation of the modifications, including the merger of the
contractual seniority groups and failure to adhere to the se-
niority group provisions of the MLA for purposes of dis-
patching job applicants, was arbitrary and discriminatory and
likewise unlawful, not only should Respondent be ordered to
cease giving effect to said modifications but also, given the
manifestly certain fact that ‘‘literally hundreds, if not thou-
sands, of . . . referrals took place within the time period
framed by the applicable 10(b) dates and the date[s] of the
hearing in [these proceedings]’’ based on said unlawful
modifications, all those applicants, who were affected by the
foregoing discriminatory conduct,60 should be made whole
for any loss of earnings and benefits which they may have
suffered. Laborers Local 135, supra at 781; Operating Engi-
neers Local 406, supra at 51. Backpay should be computed
in the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).61 Specifically as to
Charging Party Ed Bermingham, I found that Respondent un-
lawfully failed and refused to dispatch him to available jobs
not only, since January 1, 1987, based on the foregoing but
also, since May 28, 1987, based on the instant unfair labor
practice charges, which he filed with the Board and other
protected concerted activities in which he engaged. As a re-
sult of such discriminatory conduct, Bermingham shall be
made whole for any loss of earnings and benefits suffered in
the manner set forth above.62 Likewise, inasmuch as I have
concluded that Respondent deliberately and discriminatorily
omitted Bermingham’s name from its San Rafael June 1989
out-of-work list, Respondent shall be ordered to make
Bermingham whole for any wages and benefits he may have
lost in the manner set forth above as a result of said dis-
crimination against him. Finally, Respondent shall be ordered
to post an appropriate notice.
[Recommended Order omitted from publication.]
APPENDIX II
ARTICLE II
HIRING PROCEDURE
Section 12.—QUALIFIED CRAFTSMEN.
(a) ONLY QUALIFIED CRAFTSMEN EMPLOYED.
Contractors shall employ only qualified journeyman plumb-
ers and pipe fitters.
(b) QUALIFICATIONS. Journeyman plumbers and pipe
fitters shall be qualified for employment if they meet the fol-
lowing requirements:
(1) FOUR (4) YEARS EXPERIENCE. They must
have four (4) years actual practical working experience
at the plumbing or pipe fitting trade as a journeyman
or apprentice in the plumbing and pipe fitting industry
of the United States as evidenced by membership in a
U.A. local or affidavits of employers.
(2) APPRENTICESHIP. Successful completion of an
apprenticeship program in the building and construction
industry at the plumbing and pipe fitting trade, ap-
proved for the trade by the United States Bureau of Ap-
prenticeship Training, as evidenced by a state certifi-
cate, or, in the case of states which do not issue certifi-
cates, by the affidavit of an officer in charge of the ap-
prenticeship program; or
(3) PREVIOUS EMPLOYMENT. Previous satisfac-
tory employment as a journeyman plumber or pipe fit-
ter with contractors signatory to this Agreement, as evi-
denced by written letters of recommendations from at
least two such employers; and
(4) EXAMINATION. Passage of an examination
given by the Joint Hiring Committee, or an individual
or committee designated by the Joint Hiring Committee,
or given by or pursuant to collective bargaining agree-
ment with another U.A. Local Union, as evidenced by
a membership card in such local or by affidavit from
the individual or organization giving the examination.
Examinations shall consist of objective written questions
and plan problems. They shall be given twice a month, upon
application to the Committee. Any applicant with proof of
four (4) years’ experience at the plumbing and pipe fitting
trade as a journeyman or apprentice in the plumbing and pipe
fitting industry shall be eligible to take the examination,
upon payment of a $25.00 examination fee.
An individual who fails an examination shall not again be
eligible to take the examination for a period of six (6)
months.
Section 13. — EXCLUSIVE HIRING.
Whenever any contractor has need to hire any employee
to perform work covered by this Agreement, he shall obtain
such employees through the Hiring Halls established by this
Agreement. This shall include, but not be limited to journey-
men, apprentices, and foremen categories. He shall notify the
local union office, either in writing or by telephone, stating
the location, the time, approximate duration of the job, the
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
type of work to be performed, and the number of workmen
required. No Employer shall advertise in the newspaper for
men without the written consent of the Joint Hiring Com-
mittee and without prior compliance with other provisions of
Article II.
(a) EMPLOYER MUST PLACE ORDERS BY 9:30 A.M.
Employers shall place orders for men with the Hiring Hall
before 9:30 A.M. on the day preceding that on which the
men are to report. If such notification is given, then an em-
ployee who reports for work after 8:00 A.M. on the fol-
lowing day shall be paid from the time he reports. If an Em-
ployer places an order after 9:30 A.M. for the following day
and, as a result, an employee is unable to report for work
by 8:00 A.M., the employee shall nevertheless be paid from
8:00 A.M. The provisions of this section shall apply to shift
work as well as regular work. Day shift employees required
to work after 1:00 A.M. and laid off before 8:00 A.M. shall
be paid to 8:00 A.M. at overtime rates.
(b) REMEDIES FOR VIOLATION OF HIRING PROCE-
DURES. Violations of this Agreement by hiring employees
without complying with the provisions of this Article, or by
obtaining or transferring workmen in violation of Section 17
of this Article, or by assigning work covered by this Agree-
ment to employees who are not qualified plumbers or pipe
fitters shall be subject to the following remedies, in addition
to others which may be available under this Agreement or
as a matter of law:
(1) Upon notification by the Union that it believes such
violations to have occurred, the Employer or the Union may
submit the issue to the Arbitration Committee of the Joint In-
dustry Board as provided herein; but pending decision by
that Committee, the Employer shall forthwith cease employ-
ing or assigning work to the workmen in dispute. In the
event the Union submits a matter to the grievance machinery
provided for in this Agreement, and it is determined by the
Arbitration Committee or through arbitration that the Em-
ployer, in fact, has violated the provisions of this Article, the
Employer shall reimburse all employees who withheld their
labor during the pendency of the dispute for all time lost and
all fringe benefit contributions that would have been made
had the employees continued to work during the period of
such dispute. The Union may require that such payments be
made before the employees will return to work.
(2) Whenever an Employer commits such a violation he
shall be deemed to have caused loss of wages and fringe
benefits to workmen on the Hiring Hall out-of-work lists in
an amount equivalent to the amount they would have re-
ceived if they had been employed on the work in question.
If it is not possible to determine the individual or individuals
who would have been dispatched had the Employer adhered
to the provisions of the Agreement, the Arbitration Commit-
tee of the Joint Industry Board may order payment of such
amount to a charity or fringe benefit program designated by
the Union. If it is feasible to determine the individuals on
the out-of-work list who would have received an assignment
had the Employer adhered to the hiring procedures of the
Agreement, the payment shall be made to the individual or
individuals who would have been dispatched to the job.
(3) The remedies provided for herein shall not be affected
by any other term or provision of this Agreement.
(4) A Committee shall be established to review Article II,
Section 13(b)(4) for the purpose of providing a Metal Trades
Shopman Classification. The Committee to review and estab-
lish:
a. Formula for wages and fringes.
b. Scope of work to be defined.
c. Penalties for violations and abuse of this classi-
fication.
d. Qualifications for employer to hire shopmen.
e. All hiring of this classification shall be through
the Hiring Hall.
f. Dues checkoff to be established and included.
All employees working in this category for employers cov-
ered by this Agreement effective January 1, 1985 shall be
members of Local 38.
Section 14.—SENIORITY.
It is the desire of the parties to provide continuity of em-
ployment for persons who have worked previously within the
area covered by this Agreement, and in cooperation with the
plumbing and pipe fitting industries of neighboring areas, to
provide continuity of employment for persons who have
worked in those areas as well. Therefore, qualified journey-
men plumbing and pipe fitters shall be hired and/or rehired
in accordance with seniority as follows:
(a) SENIORITY GROUP I shall consist of plumbers and
pipe fitters who have been employed by a contractor party
to this Agreement for a period of at least one thousand
(1000) hours each year during the two (2) calendar years pre-
ceding the year registration is effected on the out-of-work
list, and such employment has been under the terms of this
or a predecessor Agreement between the Union and a con-
tractor. In determining said one thousand (1000) hours, the
dispatcher shall have recourse to the records of the Trust
Fund for the two (2) calendar years preceding the year in
which the dispatch occurred. In addition, if an individual has
worked in another area pursuant to a reciprocity agreement
that credits such hours to any of the U.A. Local 38 Trusts,
such hours shall be counted in meeting the requirements of
this Section. Further, in the event the individual is tempo-
rarily disabled and establishes proof that he had attained eli-
gibility to Seniority Group I, and his failure to maintain such
eligibility was solely attributable to such disability, he may
be credited with such hours towards the requirements as the
Joint Hiring Committee may deem appropriate with the in-
tent that periods of disability shall be credited with a pro-
rata of the hours worked by such individual during the period
he was not disabled. For example, if an individual averaged
one hundred (100) hours a month during periods he was not
disabled, he may be credited with one hundred (100) hours
for any month in which he was so disabled, it being the pur-
pose of this Section to maintain his average hours during the
period that a disability precluded him from employment. In
no event may any hours be credited on the basis of disability
if the employee had been working in gainful employment
other than in work covered by this Collective Bargaining
Agreement.
(b) SENIORITY GROUP II shall consist of plumbers and
pipe fitters who have been employed under the terms of this
or a predecessor Agreement by a contractor party to this
Agreement for a period of at least one thousand (1000) hours
a year in two (2) years out of five (5) years immediately pre-
541PLUMBERS LOCAL 38 (BECHTEL CORP.)
ceding the year in which the registration is effected on the
out-of-work list.
(c) SENIORITY GROUP III shall consist of plumbers and
pipe fitters who have been employed for a period of at least
one thousand (1,000) hours each year during the two (2)
years preceding their registration on the out-of-work list, in
the Greater Bay Area (inclusive of Santa Clara, Alameda,
Contra Costa, San Joaquin, Sacramento, San Mateo and So-
lano Counties), and such employment has been as a plumber
and pipe fitter in the Building and Construction Industry.
Employees who have been employed within the jurisdiction
of the contracting union as plumbers and pipe fitters in other
than the Building and Construction Industry for a period of
one thousand (1,000) hours each year during the two (2)
years preceding their registration on the out-of-work list shall
also be regarded as in Seniority Group III for such work as
they are able to perform in the full discretion of the dis-
patcher.
(d) SENIORITY GROUP IV shall consist of all other
qualified plumbers and pipe fitters.
(e) SENIORITY GROUP V shall consist of individuals
who are not qualified plumbers and pipe fitters, as the term
is defined in this Agreement, who have been employed by
an Employer because no qualified individual in any higher
seniority group was available for dispatch. An individual in
this seniority group shall not advance to a higher seniority
group unless and until he becomes a qualified plumber or
pipe fitter as the terms are defined in this Agreement.
In the case of each group, the seniority qualifications will
be deemed to have been met: (1) by any person who was
available for the required employment but was denied em-
ployment because of membership or non-membership in any
labor organization, other than for the failure to abide by the
provisions of Sections 20 and 23 of this Article; (2) by any
person who was unavailable for the required employment be-
cause of illness or because of his position as a contractor or
union representative, and who worked the requisite one thou-
sand (1,000) hours each year during the two (2) years pre-
ceding the period of unavailability.
(f) DETERMINATION BY DISPATCHER. In the event
of any doubt as to whether an applicant has met the one
thousand (1,000) hour requirement, the dispatcher shall have
discretion to resolve the matter by accepting as final either,
(a) a letter from the Health and Welfare Fund in the area in
which he claims to have worked or, (b) records of previous
employers.
(g) JOINT HIRING COMMITTEE POWER TO IMPOSE
PENALTIES. Any individual who engages in moonlighting,
working in the territorial area covered by this Agreement for
a contractor not signatory to this Agreement, or any applicant
who knowingly misrepresents his past experience or employ-
ment, works under this Agreement at wages and conditions
less favorable than those contained herein, or who seeks em-
ployment outside the procedures of the Hiring Hall, may be
suspended from the out-of-work list for a period as deter-
mined by the Joint Hiring Committee up to twelve (12) cal-
endar months from the date of determination by the Joint
Hiring Committee that such offense occurred. He may also
be assessed damages for breach of the Agreement to $100.00
for each day of violation in addition to the secretarial costs
for the transcript of the hearing.
If any individual fails to respond or be at the Dispatch
Hall available to accept dispatches for the majority of the
days in any month which the Dispatch Office is open for dis-
patch, and three (3) or more job offers were available for
which he was qualified, and his position on the out-of-work
list would have resulted in a dispatch to such jobs if he were
available and had accepted, he shall be placed at the bottom
of the out-of-work list.
(h) SUSPENSION FOR FAILURE TO PAY DUES OR
HIRING Hall FEE. Any applicant who fails to comply with
the provisions of Section 20 or Section 23 of this Agreement
may be suspended from the out-of-work list for a period as
determined by the Joint hiring Committee, but in no event
to exceed twelve (12) calendar months.
(i) EMPLOYER PROHIBITED FROM EMPLOYING IN-
DIVIDUALS SUSPENDED. It shall be a violation of the
Agreement for any Employer to employ or retain in his em-
ploy any individual so suspended for the duration of the pe-
riod of suspension.
(j) PROHIBITIONS FOR INDIVIDUALS HOLDING AC-
TIVE CONTRACTOR’S LICENSE. No individual who
holds a contractor’s license will be permitted to be dis-
patched pursuant to the referral process to work on work
covered by this Agreement unless he submits evidence that
he has made his contractor’s license inactive through the pro-
cedure specified by the California Contractor’s State License
Board. Further, contractors who have worked as employers
or self-employed persons and subsequently go out of busi-
ness and desire to register pursuant to the provisions of the
referral procedure shall be required as a condition precedent
thereto to sign an agreement not to engage in business as a
contractor for a period of one (1) year and until sixty (60)
days notice is given to the Joint Industry Board of an inten-
tion to engage in contracting work and to cease utilizing the
facilities of the referral procedure. In the event of a violation
of this Section, any employee who is engaged in contracting
work while employed by a contractor under the terms of this
Agreement shall be penalized not less than one (1) month’s
wages and fringe benefits for each such violation.
Section 15.—HIRING HALL LOCATIONS AND DIS-
PATCHING PROCEDURE.
(a) OUT-OF-WORK LISTS. The Union shall maintain an
out-of-work list at each of the three Hiring Hall offices: San
Francisco, San Rafael and Santa Rosa.
(b) APPLICATION FORM. Any individual who desires to
be dispatched from the Hiring Hall must fill out an applica-
tion form showing his name, address, telephone number, so-
cial security number, other information relevant to deter-
mining his qualifications to register and to obtain group se-
niority, and an agreement to be bound by the provisions of
this Article.
(c) WORK CARD. In addition to his application form,
each applicant who desires to be dispatched from the Hiring
Hall must fill out a Work Card, indicating the type or types
of work at which he has had experience and which he re-
gards himself as qualified to perform. There shall be separate
cards for fitters, plumbers, pipe fitter welders and refrigera-
tion mechanics. An applicant who fills out more than one
card must indicate a preference for one craft. No individual
shall be permitted to regard himself as qualified to perform
fitter work, plumber work, pipe fitter welding work or refrig-
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eration work unless he has established a level of competence
equivalent to that attained by employees working as journey-
men in the particular category. This shall require experience
and training equivalent to that required to attain journeyman
status in the particular specialty. The individual shall indicate
the precise level of experience and academic training he has
to support his claim of qualifying in the specialty. The Hir-
ing Hall Committee may establish rules and regulations for
the review and testing of applicants claiming such qualifica-
tions if, in its opinion, it is desirable to do so. The Dis-
patcher may challenge the qualifications of an individual
contending that he possesses such qualifications if, in his
opinion, the evidence is insufficient to support the claim of
qualification.
(d) REPORTING FOR REGISTRATION. An applicant
who desires to be dispatched to a job shall report in person
to register his name on the out-of-work list. In order to main-
tain his place on the list, he must re-register in person at
least once (1) each week, unless he is unable to do so by
reason of illness, in which case he shall reregister by mail.
(e) ORDER OF REGISTRATION. The Union shall estab-
lish and maintain a separate appropriate registration facility
for qualified applicants available for employment as journey-
men plumbers or pipe fitters. Applicants shall be registered
on the appropriate craft out-of-work list, i.e., either plumber
or pipe fitter, in the order of time and date of registration.
Within each craft list, applicants shall be registered in the
highest seniority group for which they qualify.
(f) LOSS OF PLACE ON OUT-OF-WORK LIST. So long
as he re-registers each week, an applicant shall retain his
place on the out-of-work list until he has had at least five
(5) days of work, unless he quits or is discharged for intoxi-
cation or deliberate misconduct within the five (5) day pe-
riod. Provided, that an applicant shall lose his place on the
out-of-work list and his name shall go to the bottom of the
list if he turns down dispatch offers or job offers on three
(3) different jobs which he is qualified to perform. No dis-
patcher or other person is authorized to sign for an applicant.
(g) DISPATCHING HOURS. Dispatching hours are from
8:00 A.M. to 9:30 A.M. An applicant must be present at the
Hiring Hall when his name is called in order to be dis-
patched. Men will be dispatched at other times only in the
event of an emergency.
(h) REGISTRATION ON MORE THAN ONE (1) LIST.
An applicant may register at more than one (1) Local 38 Hir-
ing Hall, but as soon as he obtains work he shall notify other
Local 38 Hiring Halls at which he is registered. If an appli-
cant fails to give such notice, he may be subject to such pen-
alty as may be determined by the Joint Hiring Committee.
(i) EMPLOYER TO NOTIFY DISPATCHER OF THIR-
TY-TWO (32) HOUR WORK WEEK. In the event any Em-
ployer has established a thirty-two (32) hour work week pur-
suant to the provisions of the Agreement, he shall comply
with the provisions established in said Section to notify the
dispatcher of the fact that he has established a thirty-two (32)
hour week, and shall further notify the dispatcher of the
work week to which the individual is assigned at the time
of requesting the dispatch, and such shall be indicated on the
dispatch form. In the event no such notification is made, the
individual will be deemed to be employed on a thirty-five
(35) hour week basis.
Section 16.—ORDER OF DISPATCH.
Upon the request of a contractor for men, the Union shall
endeavor to furnish the workmen requested. In dispatching
workmen from each list, the Union shall first refer to appli-
cants with Group I seniority in the order in which their
names appear on the list, and shall follow the same proce-
dure successively with Groups II, III, IV and V. Provided,
however, that:
(a) KEY MEN. Requests by contractors for applicants to
act as supervisors, foremen, or general foremen shall be hon-
ored without regard to the requested man’s place on the out-
of-work lists; provided requests for applicants to serve as key
men from Groups II, III, or IV shall not be honored so long
as there are applicants on the Group I list out of work with
the requested key man experience. To prevent abuse of this
privilege, the qualifications of applicants to serve in any such
classification shall be discussed by the contractor with the
Business Manager of the Union, or the representative des-
ignated by him to act in his absence, before the dispatch is
effected.
(b) MEN TERMINATED WITHIN THIRTY (30) DAYS.
Written requests by contractors for particular plumbers or
pipe fitters from Group I who have been laid off or termi-
nated by the contractor within thirty (30) days prior to the
request and were employed by the requesting contractor for
a period in excess of one hundred twenty (130) working days
during the twelve (12) months preceding the request, shall be
honored without regard to the man’s place on the out-of-
work list, provided the applicant has not obtained employ-
ment in excess of five (5) days since the time of termination.
(c) SPECIAL SKILLS. Bona fide requests by contractors
for plumbers or fitters with special skills and abilities will be
honored. The dispatcher shall dispatch persons possessing
such skills and abilities in the order in which their names ap-
pear on the out-of-work list.
In determining whether an applicant possesses the par-
ticular skills and abilities called for by a contractor, the dis-
patcher shall consider (a) the applicant’s designation of skills
and abilities on his Work Card; and (b) the dispatcher’s
knowledge, if any, of the applicant’s skills and abilities,
gained either through actual observation or the reports of
contractors.
Such a decision of the dispatching agent in referring reg-
istrants is appealable to the Joint Hiring Committee as herein
provided.
The Joint Hiring Committee is empowered to draft rules
and regulations relating to requests by contractors for plumb-
ers and fitters with special skills and abilities, and to modify
the provisions of this Section pursuant to issued rules and
regulations by requiring additional other proof of the skills
and abilities called for to define the type of special skills and
abilities which will warrant a special request.
(d) PRIORITY OF CRAFT PREFERENCES. When an
Employer calls for a person of a particular craft, e.g., plumb-
er, steam fitter or welder, priority shall be granted to persons
who register only under that craft, and to persons who reg-
ister that craft as their preference, ahead of those who reg-
ister under more than one (1) craft and list some other craft
as their preference.
(e) RIGHT TO HIRE BY NAME. Any Employer request-
ing men shall have the option of requesting journeymen and
apprentices by name provided:
543PLUMBERS LOCAL 38 (BECHTEL CORP.)
(1) The individual so requested by name is and has been
registered on the out-of-work list in Group I for a period of
not less than three (3) working days during a non-vacation
period;
(2) Neither the Employer nor any representative of the
Employer has caused or induced any such member to cease
working for any other Employer and to register in the Hiring
Hall in order that he could be employed pursuant to the pro-
visions of this Section; and
(3) The employee is eligible for dispatch to the particular
Employer and is not excluded from such dispatch pursuant
to any other provisions of the Agreement or rules established
by the Joint Hiring Committee.
The privilege of calling for an employee by name from
among eligible employees in Group I by craft classification
may only be exercised in the event an Employer has first ob-
tained an individual from the Hiring Hall on an unnamed
basis. Thus, the first employee requested by the Employer
must be on an unnamed basis. During the period this first
employee is on the payroll, the Employer may employ an-
other individual by name pursuant to the provisions of sub-
paragraph 1 of this Section.
In the event an employee has been called by name, the
Employer may not lay off an employee that has been pre-
viously employed on an unnamed basis except for just cause.
In effecting hiring the Employer shall follow the principle of
alternating as above provided so that no less than fifty per-
cent (50%) of the employees covered by the Agreement hired
are employees obtained from the Union Hall on an unnamed
basis.
In effect lay offs of employees, similarly, the Employer
shall lay off in such a manner that the remaining employees
shall never be less than fifty percent (50%) hired from the
Hiring Hall on an unnamed basis.
No Employer shall be eligible to exercise the privilege of
calling an employee by name for the duration of the Agree-
ment if, during the life of this Agreement, the Employer has
been found by the Arbitration Committee to have inten-
tionally and deliberately violated any of the wages or benefit
provisions of this Agreement or has hired any individual
other than through the Union Hiring Hall or is currently de-
linquent in the payment of fringe benefits. Any Employer
who is found by the Arbitration Committee to have solicited
employees to work under scale shall also be precluded from
requesting employees by name.
No employee shall be eligible to be dispatched pursuant to
a name request if:
(1) The employee is not in Group I;
(2) Dispatching the employee will render the Employer in
violation of other provisions of the Agreement (ratio of aged
individuals to other journeymen; ratio of apprentices to jour-
neymen, etc.); and
(3) The employee has been found, after charge of notice
and hearing, to have worked under scale or in violation of
Agreement under circumstances leading the Union to con-
clude that such violation was effected with knowledge that
the acts committed were violative of the Collective Bar-
gaining Agreement.
. . . .
Section 19.—OUTSIDE CONTRACTORS.
It is recognized that contractors whose principal place of
business or customary place of doing work is outside the ter-
ritory covered by this Agreement, would be at a disadvantage
if they were unable to bring with them at least a minimum
crew familiar with the Employer’s manner of operation.
Therefore, it is agreed that such outside contractors may
bring into the area temporarily to perform work herein on
each job one (1) plumber if the work to be performed is
plumbing work, one (1) steam fitter/pipe fitter if the work to
be performed requires the skills of a steam fitter or pipe fit-
ter, one (1) lead burner if the work requires the skills of a
lead burner and one (1) sprinkler fitter if the work requires
the skills of a sprinkler fitter, provided that for each such
workman so brought in there shall be one (1) workman ob-
tained through the local hiring halls established herein. Be-
cause the privilege of an Employer to bring a workman into
the local area is designed to permit the Employer to bring
in an individual or individuals familiar with the Employer’s
manner of operations, the Employer shall not be permitted to
bring in an individual who has been employed in an area
other than the area where the Employer has his principal
place of business and any employee so brought in must pre-
viously have been employed by the Employer for at least
sixty (60) days in the preceding three (3) years and must
have been obtained in accordance with the referral proce-
dures prescribed in the U.A. contract prevailing in the area
of their regular employment and location of the Employer’s
principal place of business to the extent such procedures are
legal. All other workmen shall be obtained through the refer-
ral procedure described in previous Sections of this Article.
Nothing in this Section shall be interpreted to permit, and
it shall be in violation of this Agreement for any contractor
having a permanent shop within the territory covered by this
Agreement to transfer men into the area from outside the ter-
ritory without first exhausting the out-of-work list maintained
by the local union.
Such a contractor shall not be relieved of his obligation to
exhaust the out-of-work list by reasons of his entering into
a joint venture of subcontract with an outside contractor.
Any employee brought in or composing the minimum
crew provided for in this Section shall be compensated solely
and exclusively in accordance with the provisions of this
Agreement and payments for the fringe benefits as provided
in this Agreement shall be made in accordance with this
Agreement.
In the event an Agreement is executed between the trust,
established pursuant to this Agreement, and the trust in the
area of the outside contractor, to permit refunds on behalf of
employees so brought in, such Agreement shall be imple-
mented and the refunds made in accordance with such
Agreement but this shall not excuse the contractor to make
the contributions provided in this Agreement, and any pay-
ment to the local area trust in the outside contractor’s regular
place of business shall be effected by Agreement of the re-
spective trusts.
. . . .
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 25.—BUMPING SENIORITY.
Unemployed workmen from Group I shall have the right
to replace any workmen not dispatched from Group I (other
than workmen brought in under Section 19 or hired pursuant
to the provisions of Sections 16(a) or 16(c) by dispatch from
the Hiring Hall provided he is able to do the work. In effect-
ing such dispatch, the dispatch shall be made from those on
an out-of-work list in Group I in the order in which their
names appear on the list. The dispatcher shall maintain a list
of persons, who to the best of his knowledge, are currently
employed and were not dispatched from Group I and are not
now qualified for Group I.
Each Tuesday and Friday at 8:30 A.M., the dispatcher in
San Francisco and the dispatcher in Harin County shall post
the positions that, to his knowledge, are presently being
filled by individuals other than from Group I as provided in
this Section. Individuals desiring to exercise bumping privi-
leges may do so at that time. In the event two (2) or more
individuals of Group I desire to exercise bumping privileges
on the same position, the position shall be awarded to the
individual with the highest rank in the out-of-work list in
Group I in the area in which the work is to be performed.
In the event no individual bids on a vacancy in Sonoma
County, it shall be posted on the succeeding day in San
Francisco at 8:30 A.M. In the event a vacancy occurs subject
to dispatch from the San Francisco office and no bid is re-
ceived in San Francisco, it shall be posted the succeeding
day in Santa Rosa. No individual may bid for such position
who is not on the out-of- work list in Group I. In the event
the position requires special skills, the dispatcher shall, to the
best of his knowledge, indicate the special skills so required
in posting the list.