Plumbers Local 803 (Bechtel Constructors)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1034 (N.L.R.B. 1992)

1034
309 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 803, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the U.S. and Canada, AFL–CIO,
and Bobby Mills, an agent for Local 295,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting In-
dustry of the U.S. and Canada, AFL–CIO
(Bechtel Constructors Corporation et al.) and
Oscar A. Bass. Case 12–CB–3478
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 29, 1992, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondents filed exceptions and a supporting brief. The
General Counsel filed a reply brief and cross-excep-
tions.
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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issue presented in this case is whether Local
803, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
U.S. and Canada, AFL–CIO (Local 803) and Bobby
Mills, Local 803’s business agent, violated Section
8(b)(1)(A) and (2) of the Act by bypassing the Charg-
ing Party and referring two member employees, re-
quested by name by a sister local, for employment out-
side Local 803’s jurisdiction. We disagree with the
judge’s finding that Local 803’s referrals in this in-
stance violated the Act.
Facts
Local 295, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry
of the U.S. and Canada, AFL–CIO (Local 295), a sis-
ter local of Local 803, had a collective-bargaining
agreement with Bechtel Constructors Corporation
(Bechtel) and other contractors establishing an exclu-
sive hiring hall. On some occasions, Local 295 was
unable to fill contractors’ requests for employees
through its own out-of-work list and it then contacted
other local unions to fill the requests within the con-
tractual 48-hour time limitation.
Local 803 also operated an exclusive hiring hall, but
within a different geographic jurisdiction. Local 803
used an out-of-work list for making referrals within its
geographical jurisdiction. Members of Local 803 were
permitted to seek work in other locals’ jurisdictions
without obtaining permission or travel cards from
Local 803. Members remained on Local 803’s out-of-
work list when seeking work or when actually working
outside Local 803’s jurisdiction.
Local 803 makes out-of-jurisdiction referrals when
requested by other locals, including Local 295. Local
803 does not receive fees or dues for making out-of-
jurisdiction referrals and often does not know to what
employer the employee is being referred. Mills testi-
fied that out-of-jurisdiction referrals are made to other
locals as an accommodation to employees within Local
803’s jurisdiction. Mills also testified that, when mak-
ing out-of-jurisdiction referrals, he does not use Local
803’s out-of-work list, but instead relies on his mem-
ory.
Local 295 does not allow its retirees to use its refer-
ral system and informed other locals, including Local
803, not to refer retirees for jobs within Local 295’s
jurisdiction, and Mills was aware of Local 295’s re-
tiree rule. The retiree rule, however, was not included
in the collective-bargaining agreement between Bechtel
and Local 295. Retiree Oscar Bass, the Charging Party,
was unaware of Local 295’s retiree rule.
The circumstances giving rise to this proceeding are
as follows. Bass, a member of Local 803, heard that
Bechtel was hiring in Local 295’s jurisdiction and con-
tacted Mills to inquire about out-of-jurisdiction work at
Bechtel. Mills replied that some work was coming up
and that if able, he would try to send Bass out. Bass
later learned that another member of Local 803 had
been sent to Bechtel and Bass again went to see Mills.
Mills told Bass that there had been no call for pipe-
fitting, the type of work that Bass performed. The next
day, Bass heard that two other Local 803 members,
Richard Partridge and Don Watson, who were both
below Bass on the out-of-work list, had been referred
to Bechtel. Bass again spoke to Mills about the refer-
rals. The judge credited Bass’ testimony that Mills told
Bass that Partridge was referred because he was a
welder and that Watson was referred because of his
status as an officer of Local 803 and that Local 803
liked to keep its officers working close to home. The
judge, however, found that Mills was not candid with
Bass about his reasons for referring Partridge and Wat-
son. Rather, the judge found the real reason that Mills
did not refer Bass was because Bass was a retiree.
J. Ronnie Malphurs, Local 295’s business manager,
testified that he had received a call from Bechtel for
four pipefitters. Malphurs had already exhausted Local
295’s out-of-work list and thus called other locals for
referrals. Malphurs called Local 630 and requested two
pipefitters and called Local 803 to request the other
two pipefitters. Malphurs testified that when he called
Mills at Local 803, he specifically requested Partridge
and Watson. Malphurs explained that he sometimes re-
quested employees from other jurisdictions by name
1035PLUMBERS LOCAL 803 (BECHTEL CONSTRUCTORS)
1 The record does not indicate whether a charge was filed against
Local 295. In any event, a complaint was not issued against Local
295 and it is not a respondent in this proceeding.
2 Although the judge found an agency relationship between Local
803 and Local 295, and thus found that an exclusive hiring hall ex-
isted, the judge did not make a broader finding regarding Local
803’s agency status with respect to each local to which it refers em-
ployees. We do not make any finding on the issue of whether the
Respondents’ general use of subjective standards to make out-of-ju-
risdiction referrals violates the Act. In order to find such a violation,
the General Counsel would have to show that, in all instances of
out-of-jurisdiction referrals, an agency relationship exists between
Local 803 and the participating locals sufficient to establish an ex-
clusive hiring hall, that the referrals are made through that exclusive
hiring hall, and that Local 803 has not relied on objective standards.
See Plumbers Local 513, 264 NLRB 415 (1982), enfd. 720 F.2d 215
(D.C. Cir. 1983). The General Counsel has not established the exist-
ence of these factors with respect to Mills’ use of a ‘‘mental list’’
or other subject standards in making out-of-jurisdiction referrals in
general. To the contrary, the only issue presented by the facts in this
case is whether the Respondents’ referral of two employees for out-
of-jurisdiction work, when the employees were requested by name
by the originating local, violated the Act. We find that it does not
because the Respondents did not rely on subjective standards.
because either he himself had worked with them be-
fore, or because a member of his local had worked
with them and had recommended the person as a good
worker. In this instance, Malphurs testified, he person-
ally knew Partridge and was familiar with his work
and that a member of Local 295, whom Malphurs did
not identify, had recommended Watson. Mills also tes-
tified that when Malphurs called, he requested Par-
tridge and Watson by name.
The General Counsel’s Exhibit 12 reflects the origi-
nal request from Bechtel, the length of the job, the
type of job skills required, the names of the locals that
Malphurs contacted, and the names of the employees
referred by the sister locals. Exhibit 12 also includes
a notation made by Malphurs stating ‘‘called by
name.’’
The judge credited the testimony of Malphurs and
Mills that Watson and Partridge were requested by
name.
The judge found that Local 295 operated an exclu-
sive hiring hall pursuant to an agreement with Bechtel
and that Local 803 and Mills were agents for Local
295 in the operation of its hiring hall.1 The judge fur-
ther found that Mills and Local 803 operated Local
295’s exclusive hiring hall for referrals from Local
803’s own jurisdiction to Local 295’s jurisdiction with-
out the benefit of written or published standards but in-
stead using subjective criteria. In addition, the judge
found that Local 803 failed to refer Bass for employ-
ment in Local 295’s jurisdiction because of his retire-
ment status and that this basis for nonreferral con-
stituted a departure from the exclusive hiring hall pro-
cedures set out in the agreement between Bechtel and
Local 295. The judge also found that Bass was not
given notice of the alleged change in Local 295’s re-
ferral procedures. Accordingly, the judge concluded
that Local 803 and Mills violated Section 8(b)(1)(A)
and (2) of the Act by arbitrarily refusing and failing
to refer Bass for employment within Local 295’s juris-
diction. Finally, the judge found that Local 803 and
Mills referred Watson because of his status as a union
official, thus violating Section 8(b)(1)(A) and (2) of
the Act. For the reasons discussed below, we disagree
with the judge’s findings that the Respondents violated
the Act.
A. The Use of a Mental List
The judge credited testimony showing that Malphurs
called Mills and requested Partridge and Watson by
name for referral to the Bechtel jobsite. Although the
judge credited this testimony in his summary of the
facts, he did not discuss the testimony in his legal
analysis. Because the record shows that Malphurs re-
quested Partridge and Watson by name, we reject the
judge’s finding that Mills arbitrarily failed to refer
Bass based on his use of a ‘‘mental list’’ or other sub-
jective standards.2 Instead, we find that, in light of
Malphur’s request for Partridge and Watson by name,
Mills had no choice in which employees would be re-
ferred.
The judge relied on Plumbers Local 513, supra, in
determining that Local 803’s failure to refer Bass con-
stituted a violation of the Act. Local 513, however, is
distinguishable from the present case. The referring
local in Local 513 provided 8 to 10 employees to the
originating local pursuant to the originating local’s
general request for employees. The referring local’s
business agent called employees within the local whom
he knew were out of work and were willing to travel;
he did not use the local’s out-of-work list or any other
objective standard for determining which employees to
call. In contrast, in this case, Malphurs did not simply
ask for two employees to be referred, but instead spe-
cifically asked that Partridge and Watson be referred.
Thus, Mills and Local 803 had no discretion in deter-
mining which employees would be referred to Local
295 and they did not have a need to apply any criteria,
objective or subjective.
Moreover, we note that the referral relationship be-
tween the locals in Local 513 was more formal than
the relationship in the instant case. For example, the
employees who were referred out in Local 513 re-
ported to the originating (requesting) local’s office
rather than to the employer and the employees were re-
quired to obtain travel cards from their own local be-
fore seeking work at other locals. Further, the locals
appeared to be required to honor the referral requests
of each other. Thus, the business agent in Local 513
testified that if a sister local called for a referral,
‘‘you’d better fill it.’’ In contrast, in this case, the re-
ferrals reported directly to the employer and the em-
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 283 NLRB 1160 (1987).
4 The judge in Local 162 specifically found that the respondent
union made the referrals in question in good faith and without an
unlawful motive. In this case, we note that Mills was not candid
with Bass about his reasons for making the referrals; however, be-
cause Partridge and Watson were requested by name, we find Mills’
disingenuousness insufficient to show that the Respondents had an
unlawful motive in referring Partridge and Watson.
5 233 NLRB 430 (1977), enfd. in part 622 F.2d 267 (6th Cir.
1980).
6 We do not make any findings about whether Mills’ statement to
Bass that ‘‘Local 803 tries to keep its officers working locally if an
all possible’’ is, by itself, sufficient to constitute a violation of the
Act because the judge did not make such a finding in his conclu-
sions of law and the General Counsel did not file an exception re-
questing such a finding.
ployees did not need permission or travel cards before
seeking work in another local’s jurisdiction. And of
even greater significance, Mills testified that he viewed
referrals made to other locals merely as an accommo-
dation provided to members and employees within
Local 803’s jurisdiction.
The facts of this case more closely approximate
those in Plumbers Local 162 (Natkin & Co.),3 in
which the referrals made by the respondent union, of
employees requested by name by another local, for
employment outside the respondent union’s geographi-
cal jurisdiction, were found not to violate the Act be-
cause the respondent union followed its established
procedure of referring journeymen requested by name,
without regard to their position on the out-of-work list.
The decision in Local 162 distinguished Local 513 be-
cause the respondent union in Local 513 failed to fol-
low its established procedures for referring employees
after receiving a request for unnamed employees.
As indicated above, this case can be distinguished
from Local 513 on the same grounds. Thus, Malphurs
specifically requested Partridge and Watson, and Local
803 simply complied with Local 295’s request for re-
ferrals by name; and the General Counsel has not
shown that Local 803 failed to follow its established
procedure for filling another local’s request for em-
ployees by name. Thus, as in Local 162, we find that
Local 803 and Mills’ referral of Partridge and Watson
did not violate Section 8(b)(1)(A) and (2).4
B. The Retiree Rule
The judge also concluded that Mills did not refer
Bass to Local 295 because of his status as a retiree and
that Mills was not candid with Bass when explaining
the reason for his failure to be referred. The judge then
proceeded to analyze Local 295’s retiree rule as a de-
parture from its exclusive hiring hall procedures. The
judge found that the restriction on retirees was not
contained in the agreement between Bechtel and Local
295 and that when Local 295, and Local 803 as agent
for Local 295, failed to refer Bass because of his re-
tirement status, this constituted a departure from the
hiring hall procedures set out in the agreement. Finally,
the judge concluded that Bass was not given any no-
tice of the change in the hiring hall procedures.
We have already found that the Respondents had no
choice but to refer Partridge and Watson because
Malphurs had specifically requested their referral.
Hence, we reject the judge’s finding that Bass was not
referred because of his retiree status. Moreover, for the
reasons indicated below, we reject the judge’s other
findings regarding Local 295’s retiree rule and the Re-
spondents’ implication in its alleged enforcement.
Neither Bass’ charge nor the General Counsel’s
complaint contained any mention of Local 295’s re-
tiree rule and therefore Local 803 and Mills had no no-
tice that the rule was an issue in the case. Further, the
General Counsel failed to assert at the hearing, or in
its brief to the judge, that the retiree rule constituted
a departure from Local 295’s hiring hall rules and thus
constituted a separate basis for finding an unfair labor
practice. Finally, we emphasize that Local 295 is not
a respondent in this case, and thus the legitimacy of
its retiree rule and its application are not before us. We
conclude, therefore, that the retiree rule issue was not
fully and fairly litigated, and we thus decline to adopt
the judge’s finding of a separate violation of Section
8(b)(1)(A) and (2) based on such rule. See Advo Sys-
tem, 297 NLRB 926 (1990).
C. Pattern Makers Violation
Finally, the judge relied on Pattern Makers League5
and found that Local 803 violated Section 8(b)(1)(A)
and (2) of the Act by referring Watson because of his
status as a union official. We disagree. Local 803 re-
ferred Watson because Local 295 requested him by
name and, although Watson is an officer of Local 803,
there is no evidence or suggestion that Local 295 knew
that Watson was an officer. We note again that Local
295 is not a respondent in this case. Local 803 merely
honored Local 295’s request that Watson be sent to the
Bechtel jobsite. For these reasons, we decline to find
that Local 803 violated the Act when it referred Wat-
son to Local 295.6
ORDER
The complaint is dismissed.
Michael B. Frost, Esq., for the General Counsel.
Richard B. Siwica, Esq. (Egan, Lev & Siwica, P.A.), of Or-
lando, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on December 2, 1991, at Orlando,
Florida, and is based on a complaint filed on August 15,
1037PLUMBERS LOCAL 803 (BECHTEL CONSTRUCTORS)
1 The following includes a composite of the credited testimony of
the witnesses.
1991, by the Regional Director for Region 12 of the National
Labor Relations Board (the Board). The complaint is based
on a second amended charge filed by Oscar A. Bass, an indi-
vidual, on July 17, 1991, and alleges that Local 803, United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the U.S. and Canada, AFL–CIO
(the Respondent or Local 803) and Bobby Mills, an agent for
Local 295, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the U.S. and
Canada, AFL–CIO (Local 295) violated Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act) by
since on or about April 25, 1991, acting as an agent for
Local 295, referring employees for employment with Bechtel
Constructors Corporation (Bechtel) and various other em-
ployers who are parties to collective-bargaining agreements
with Local 295 within its geographical jurisdiction, by arbi-
trarily and without reference to any published objective cri-
teria, and by arbitrarily failing and refusing to refer the
Charging Party, Oscar A. Bass, an individual, for employ-
ment and by discriminatorily failing and refusing to refer
Bass for employment because he was not an officer of the
Respondent. The complaint is joined by the answer of Re-
spondent, Local 803, wherein it admits the employment sta-
tus of Bechtel and the various other employers and that
Local 295 has collective-bargaining agreements with Bechtel
and the various other employers but denies that Local 295
operates an exclusive hiring hall and denies the commission
of any violations of the Act.
On the foregoing complaint and answer as amended at the
hearing and the stipulations entered into at the hearing and
the evidence submitted at the hearing including the testimony
of the witnesses and after due consideration of the briefs sub-
mitted by the parties I make the following1
FINDINGS OF FACT
I. JURISDICTION
The Business of the Employers
The complaint alleges and Respondent admitted at the
hearing and I find that at all times material, Bechtel Con-
structors Corporation (Bechtel), a Nevada corporation with
an office and place of business in Palm Beach Gardens, Flor-
ida, and construction jobsites at the Kennedy Space Center,
Patrick Air Force Base, and Cape Canaveral Air Force Sta-
tion, located in Cape Canaveral, Florida (the Cape Complex),
has been engaged as a general contractor in the building and
construction industry performing the rebuilding of launch
pads and related services, that during the 12 months preced-
ing the filing of the complaint, Bechtel has, in the course and
conduct of its above-described business operations, provided
services valued in excess of $50,000 for other enterprises
within the State of Florida, including Martin Marietta Cor-
poration, which is directly engaged in interstate commerce,
and that Bechtel is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The complaint further
alleges and Respondent admitted at the hearing and I find
that at all times material, UE&C-Catalytic (Catalytic), a
Delaware corporation with an office and place of business in
Titusville, Florida, and construction jobsites at Cape Canav-
eral, Florida, has been engaged as a mechanical subcontrac-
tor in the building and construction industry performing in-
stallation, fabrication, erection, and related services, that dur-
ing the 12-month period preceding the filing of the com-
plaint, Catalytic has, in the course and conduct of its above-
described business operations, purchased and received at its
Cape Complex products, goods, and materials valued in ex-
cess of $50,000 directly from points located outside the State
of Florida and that Catalytic is now, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The com-
plaint further alleges, Respondent admitted at the hearing,
and I find that at all times material, Sauer Incorporated, d/b/a
Sauer Southeast (Sauer), a Pennsylvania corporation with an
office and place of business in Jacksonville, Florida, and
construction jobsites at Cape Canaveral, Florida, has been
engaged as a mechanical subcontractor in the building and
construction industry performing installation, fabrication,
erection, and related services, that during the 12-month pe-
riod preceding the filing of the complaint, Sauer has, in the
course and conduct of its above-described business oper-
ations, purchased and received at its Cape complex products,
goods, and materials valued in excess of $50,000 directly
from points located outside the State of Florida, and that
Sauer is now, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS
It is also alleged in the complaint, Respondents admit, and
I find that Local 803 and Local 295 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Local 295’s geographical jurisdiction covers Flager,
Volusia, and Brevard counties in the State of Florida, where-
as Respondent Local 803’s jurisdiction covers Orange, Semi-
nole, Lake, and Osecola counties in Florida. As stated above
Local 295 has a current collective-bargaining agreement with
Bechtel which provides in pertinent part that ‘‘The Union
[Local 295] is recognized as a primary source of qualified
employment referrals. Other sources may be used if the
Union is unable to fulfill the Employer’s [Bechtel’s] require-
ments within 48 hours.’’ In accordance with the foregoing
contractual provision Local 295 refers employees to the
Bechtel jobsite at Cape Kennedy Space Center which is a
source of a number of jobs performed by various employers
in the jurisdiction of Local 295 with which Local 295 has
collective-bargaining agreements. On a number of occasions
Local 295 is unable to fill the requirements for referrals of
employees through its own out-of-work list and it then con-
tacts other local unions to fill the requests of the employers
within the contractual 48-hour-time limitation according to
the unrebutted testimony of Local 295 Business Manager-Fi-
nancial Secretary/Treasurer J. Ronnie Malphurs (Malphurs).
Respondent Local 803 operates a hiring hall and its business
agent Mills utilizes an out-of-work list which is periodically
updated for referring employees to employers within Local
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
803’s jurisdiction. Employees notify Local 803 when they
are out of work and their name is placed on the out-of-work
list and their names move up on the list as employees above
them on the list are referred out. Retired members (including
Bass) are permitted to utilize the out-of-work list and obtain
referrals for employment within Local 803’s jurisdiction.
Employees on the list are permitted to refuse three job refer-
rals without losing their place on the list. Short term jobs
(lasting less than 15 workdays) do not count as a referral for
purposes of losing one’s position on the list.
Local 803’s out-of-work list for February 1, 1991, showed
that Bass’ last day of work was July 6, 1988. Bass testified
he had last been on a long-term job in 1988. Respondent
Local 803 updated its out-of-work list on July 26, 1991, and
changed Bass’ last date of employment shown on the list to
April 23, 1990. Business Agent Mills testified this change
was made to show that Bass had worked on a single job for
longer than 15 days in 1990. Bass testified that although he
worked for the same employer in excess of 15 days in 1990,
he worked at different jobs and on each occasion he cleared
it with Local 803 and thus he did not work on a single job
in excess of 15-workdays so as to be counted as having had
a job referral for purposes of the out-of-work list. Mills testi-
fied that the revision and listing of the job in 1990 as a long
term job for Bass occurred sometime between February and
July 1991. The General Counsel notes in his brief that the
original charge was filed on May 29, 1991, prior to the up-
dated list of July 1991.
With respect to out-of-jurisdiction referrals made by Local
803, Mills testified he does not utilize the out-of-work list
but instead relies on his ‘‘memory’’ or a ‘‘mental list’’ for
making referrals of employees to out-of-jurisdiction jobs.
Mills testified he is unaware of the terms of the contractual
agreements of other local unions with employers and has no
authority and exercises none with respect to the referrals of
employees within other jurisdictions. Local 803 receives no
fee or dues for making referrals to other jurisdictions and
often has no knowledge of the particular employer to which
the employee is to be referred. Mills also testified that mem-
bers of Local 803 are permitted to solicit work on their own
in other unions’ jurisdictions without obtaining permission
from Local 803 or any restrictions whatsoever, and that re-
ferrals are made to other jurisdictions when requested by
other unions such as Local 295 as an accommodation to
Local 803 members and employees within its jurisdiction. He
also testified that as a result of the large number of other
locals who sometimes request that they refer employees to
them and many restrictions and limitations which are placed
by Local 803 members and employees within the Local 803
jurisdiction as to whether and where they are willing to trav-
el for work, it would be an administrative nightmare for him
to maintain a separate out-of-work list or to utilize the regu-
lar Local 803 jurisdiction out-of-work list for making out-of-
jurisdiction referrals.
Malphurs testified that he has told Mills and business
agents at other local unions not to send him retirees as Local
295 does not permit its own retirees to utilize its referral sys-
tem and consequently does not permit other local unions to
refer retirees to jobs within Local 295’s jurisdiction. Mills
testified he was aware of this practice. Malphurs’ and Mills’
testimonies were unrebutted in this regard and I credit it.
Bass testified that in April 1991 he heard that Bechtel was
hiring (in the jurisdiction of Local 295) and that he and an-
other employee, Richard Partridge, went to see Mills and in-
quired about this. Mills told them some work was coming up
and he would send them out if he were able to do so. Bass
is a retiree and receives a pension from the Union. Mills did
not inform Bass that Malphurs had told him not to send his
retirees for referral. Subsequently Bass learned that Partridge
had been hired by Bechtel and that more hiring by Bechtel
was anticipated. Bass again went to see Mills who told him
there had not been any calls for pipefitters which is the clas-
sification of work Bass performs. The day following this
conversation with Mills, Bass learned that two other mem-
bers of Local 803, Steve Partridge and Don Watson, had
been referred to Bechtel. Bass testified that he questioned
Mills about these referrals and that Mills told him that Par-
tridge had been referred as a welder and that Watson had
been referred because of his status as an officer of Local 803
(a member of the executive board) and that Local 803 liked
to keep its officers working close to home. Mills testified in
acknowledging this conversation that Watson was an officer
in the local, and Local 803 tries to keep its officers working
locally if at all possible but he also testified that the reason
for referring out Watson was that he received a call from
Local 295 requesting Watson. Bass testified that Steve Par-
tridge and Watson had been on the same jobs with him in
1988 and 1990 respectively and that each of them had re-
mained on the job after Bass left the job which would place
them below Bass on the out-of-work list. Bass further testi-
fied it was his understanding that the out-of-work list was
used for out-of-jurisdiction referrals as well as for referrals
within Local 803’s jurisdiction. There was no evidence pre-
sented to show that Local 803 had informed Bass or other
employees using its referral system to the contrary.
Malphurs testified that he requested Steve Partridge and
Watson by name on his own initiative on April 18 when he
called Mills. He explained at the hearing that as a result of
his time spent in the trade as a workman he has come to
know other employees in other local union jurisdictions of
the trade and that often his own members recommend em-
ployees from other jurisdictions. There is no contention that
Bechtel (the employer in this case) called for any of the em-
ployees by name. Malphurs testified further that he told Mills
that the job would be 4 to 6 months’ long and he needed
four pipefitters. This testimony is borne out by the ‘‘Employ-
ers request for employees’’ form used by Malphurs which
shows that the job was for 4 to 6 months to do rigging. Bass
is an experienced pipefitter and does rigging as acknowl-
edged by Mills at the hearing. Malphurs testified at the hear-
ing that he does not work his own retirees and does not refer
out retirees from other jurisdictions in Local 295’s jurisdic-
tions and that he has told other union locals not to send him
retirees and that he found out after the fact that Bass (a re-
tiree) had been sent to him for a referral by Local 803 and
was referred out in Local 295’s jurisdiction in 1988 without
his (Malphurs’) knowledge of this and when he learned of
this, he complained to Mills and told him not to send him
any retirees in the future as he would work his (Malphurs’)
own retirees first if he were to work retirees.
1039PLUMBERS LOCAL 803 (BECHTEL CONSTRUCTORS)
Issues
1. Whether Local 295 operated an exclusive hiring hall
system.
2. Whether Respondent Local 803 was an agent for Local
295 for the purposes of referring employees to jobs within
Local 295’s jurisdiction.
3. Whether Mills and Respondent make out-of-jurisdiction
referrals in an arbitrary manner.
4. Whether Respondent discriminatorily failed and refused
to refer Bass for employment to the Bechtel job because he
is not a union officer or for other arbitrary reasons.
B. Contentions of the Parties
The General Counsel contends as follows:
1. ‘‘It is clear from Bechtel’s collective-bargaining agree-
ment that Local 295 is an exclusive source for employees,
at least for the first 48 hours Bechtel is not permitted to use
any other source for employees until the passage of that 48-
hour period. Such agreements have been found to establish
an exclusive hiring arrangement.’’ Teamsters Local 328
(Blount-Bros.), 274 NLRB 1053 (1956). ‘‘When Mills makes
out-of-jurisdiction referrals on behalf of Local 295 in order
that Local 295 might meet its obligations under its contract
with Bechtel, Mills acts as an agent for Local 295,’’ Plumb-
ers Local 513, 264 NLRB 415 (1982) enfd. 720 F.2d 215
(D.C. Cir. 1983).
2. ‘‘The Board has held that while an exclusive hiring hall
may be operated without a written procedure, it must be op-
erated on the basis of objective criteria,’’ Stage Employees
IATSE Local 646 (Parker Playhouse), 270 NLRB 1425
(1984). Here Mills readily admitted that there is no proce-
dure for referring employees for out-of-jurisdiction work. He
further admitted that such referrals are based on his memory
or mental list; about as subjective a method as can be used.
Respondent appears to be arguing that if it has no proce-
dures, written or oral, it can refer employees as arbitrarily as
it wishes. The Board held in Iron Workers Local 505,
(Snelson-Anvil), 275 NLRB 1113 (1985), enfd. 794 F.2d
1474 (9th Cir. 1986).
However the Board does require that referrals, whether
made pursuant to written or unwritten rules, be based
on objective criteria and applied in a non-discriminatory
manner. Operating Engineers Local 406 (Ford, Bacon
& Davis Construction), 262 NLRB 50 (1982).
3. Respondent Local 803’s reliance on the alleged specific
request by Local 295 of the individuals referred instead of
Bass is misplaced as Bechtel did not request Watson or Steve
Partridge but rather Malphurs requested them as he knew
them which is a subjective method of selection of employees
for referral. Respondent Local 803’s apparent contention is
that ‘‘while unions cannot use subjective methods for refer-
rals within their jurisdictions, they can use any subjective
method when obtaining and referring employees across juris-
dictional lines. This flies in the face of Board law requiring
objective criteria in the selection of employees for employ-
ment,’’ citing Iron Workers Local 505 and Stage Employees
Local 646, supra. Moreover, there are serious questions ‘‘as
to whether Bass was not selected because Local 295 refused
to take retirees and specifically called for two individuals.’’
Mills concedes that he told Bass that Watson was referred
because of his status as a union official. When Mills told
Bass (as set out in Bass’ unrebutted testimony) ‘‘that the job
was short term [used to denote a job of less than 15 days]
and that Steve Partridge was sent as a welder, Mills was not
telling the truth.’’ ‘‘Malphurs testified he told Mills that the
job was for 4 to 6 months and needed pipefitters.’’ If Mills
‘‘was aware of Local 295’s position concerning retirees prior
to April, why did Mills not tell Bass . . . that Mills could
not send Bass because he was a retiree?’’ ‘‘Additionally,
when Bass confronted Mills about Watson and Steve Par-
tridge’s referrals, Mills did not tell Bass that Local 295 had
requested these employees. Rather, ‘‘the policy regarding re-
tirees and the specific requests for Watson and Steve Par-
tridge are afterthoughts, raise questions as to their authentic-
ity, and should not be credited[.]’’ ‘‘Thus from the credible
testimony it is clear that Bass was refused a referral for arbi-
trary and capricious reasons and in violation of the Act.’’
4. Although Respondent Local 803 asserted ‘‘an uncon-
vincing explanation for why Watson was selected for refer-
ral, the credible evidence is that Watson’s selection was
based upon Watson’s official position with Respondent’’
which constitutes a violation of Section 8(b)(1)(A) and (2) of
the Act, citing Pattern Markers (Michigan Pattern Mfg.), 233
NLRB 430 (1977), enfd. in part 622 F.2d 267 (6th Cir.
1980). The Board stated in Pattern Makers, ‘‘This practice
unlawfully encourages union membership by conferring spe-
cial benefits on certain members because of their status in
the Union.’’ Accordingly, Watson was given preference over
Bass because of his position on the Respondent’s executive
board. Respondent’s assertion that Watson was requested by
name by Local 295 is an afterthought and is not credible.
The Respondent contends as follows:
1. ‘‘Local 295 did not operate an exclusive hiring hall sys-
tem, and Section 8(b)(1)(A) is therefore inapplicable.’’ ‘‘The
linchpin of the theory suggested by Plumbers Local 513, is
that the alleged principal [here Local 295] has exclusive hir-
ing hall arrangements with its contractors.’’ However the
Board’s recent decision in Development Consultants, 300
NLRB 479 (1990), supports Respondent’s position that Local
295 did not operate an exclusive hiring hall system. In De-
velopment Consultants, supra, the Board considered a hiring
hall arrangement which provided that the union ‘‘shall be
given the first opportunity to refer qualified applicants for
employment.’’ The Board concluded:
We do not find that the above language necessarily es-
tablishes that the Union operates an exclusive hiring
hall. Rather we find that the language is also subject to
the interpretations that the Union urges—that is, that
the provision requires only that the local union having
territorial jurisdiction of the jobsite has the first oppor-
tunity to refer applicants when the contractor decides to
use the hiring hall.
In the instant case ‘‘the hiring hall is not exclusive because
Local 295 is merely given the ‘first opportunity’ to supply
manpower.’’ Malphurs ‘‘testified that his contract required
only that he obtain men from the Local 295 list. Once that
list is exhausted, Local 295 had no obligation, contractual or
otherwise, to seek manpower from other sources (such as
Local 803).’’ ‘‘Inasmuch as there was no obligation—con-
tractual or otherwise—to do so, it cannot be contended that
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such non-Local 295 job ‘referrals’ were pursuant to an exclu-
sive hiring hall agreement.’’
2. Assuming arguendo there was an exclusive hiring hall
agreement, Local 803 did not operate as Local 295’s agent.
The instant case is distinguishable from Plumbers Local 513,
supra, as the panel in that case ‘‘stressed certain facts in con-
cluding that an agency relationship existed between Locals
154 and 70 (the principals) and Local 513 (the agent). These
critical facts, however, do not exist in the present case.’’ In
Plumbers Local 513, the Board emphasized that a member
of Local 513 could not go into the geographical area of
Local 70 and have his name placed on the out-of-work list
unless he transferred his membership to Local 70. However,
in the instant case individuals from other locals need not
present travel cards to work through Local 295 and Malphurs
testified ‘‘it was ‘not unusual’ for him to call persons di-
rectly if he had work available, and his list was exhausted.’’
In Local 513, Plumbers the panel also stressed the ‘‘re-
ferred’’ workers reported directly to the alleged principals’
halls and ‘‘not to the prospective employers’’ whereas in the
instant case ‘‘the ‘referred’ employees reported directly to
the jobsite.’’ In Plumbers Local 513, ‘‘it was deemed critical
that the principals (Locals 154 and 70) contacted other
Locals to obtain men ‘to fulfill their contractual obliga-
tions’’’ whereas in the instant case Malphurs testified, ‘‘His
labor agreements did not require him to contact other locals
for men once he exhausted his list.’’ In Plumbers Local 513,
the ‘‘panel emphasized that the alleged agent ‘recognized his
obligation to provide employees’ to the principal (i.e., Locals
154 and 70).’’ ‘‘In the instant case Mills testified there are
no requirements, written or otherwise, with respect to these
‘referrals.’’’ ‘‘The Local 513 Plumbers case also stressed
that ‘employment could not be obtained in any other man-
ner.’’’ In the instant case, ‘‘individuals on the Local 803 list
were free to contact Local 295 directly about work.’’ ‘‘Fi-
nally, the Plumbers Local 513, panel found it relevant that
working in another jurisdiction required ‘authorization, in the
form of a travel card, from the home local.’’’ In the instant
case neither Local 803 nor 295 require travel cards.
In addition to those stressed in the Plumbers Local 513
case there are other considerations that make the instant case
distinguishable. ‘‘In out of jurisdiction ‘referrals’ Local 803:
(1) does not do anything but ‘suggest’ potential workers; (2)
does not maintain copies of Local 295’s referral procedures
(3) does not maintain copies of the other union’s labor agree-
ments (4) does not enforce apprenticeship ratios, or otherwise
enforce Local 295’s agreements; (5) does not fill out any pa-
perwork with regard to ‘referrals’ to Local 295; (6) in many
cases does not even know the identity of the employer; and
(7) receives no fees for providing manpower. In these cir-
cumstances an agency relationship plainly does not exist be-
tween Local 803 and 295.’’
3. Assuming arguendo that there was an exclusive hiring
hall agreement and that Local 803 was an agent, there was
no violation since Bass was a retiree and thus ineligible to
work through Local 295’s hiring hall, and/or the employees
referred to Bechtel were called by name. Malphurs’ testi-
mony was unequivocal that he did not refer out retirees
through his hiring hall and he communicated this policy to
Mills who was aware of it. Under these circumstances the al-
leged refusal to refer Bass to Local 295 ‘‘was entirely con-
sistent with Local 295’s hiring hall rules.’’ ‘‘More impor-
tantly, the job call in question—where Messrs Donald Wat-
son and Stephen Partridge were ’referred’ on April 18,
1991—was a special request; as indicated on Local 295’s
‘Employer’s Request for Employees’ form, Malphurs ‘called
Bobby Mills and requested them (Watson and Partridge) by
name.’’ ‘‘This was done, as Malphurs explained, pursuant to
Local 295’s practice of allowing special requests.’’ Respond-
ent cites Laborers Local 1334 (Western Sign), 281 NLRB
185 (1986).
Analysis
I find under the circumstances of this case that Local 295
did operate an exclusive hiring hall system, and Section
8(b)(1)(A) is accordingly applicable insofar as that system
was operated in an arbitrary and discriminatory manner. It is
undisputed that Local 295 has the exclusive right to refer
employees for hire for 48 hours to Bechtel and other employ-
ers with which it has contractual agreements within its juris-
diction. The sole restriction on this right is that employers
have the right to call for employees by name which is a
common restriction in hiring hall agreements. I reject Re-
spondent’s contention that the limitation of this right to refer
to a 48-hour period supports a finding that Local 295 does
not operate an exclusive hiring hall. Rather the placement of
the 48-hour restriction on Local 295’s right to refer employ-
ees to the aforesaid employers ensures that if Local 295 is
unable to supply the necessary manpower, then the Employer
is free to look elsewhere to fulfill his manpower require-
ments.
I further find that Local 803 and Business Agent Mills
have undertaken to serve as an agent for Local 295 in its
(Local 295’s) referral of employees to work within Local
295’s jurisdiction. While there is no obligation on the part
of Local 803 to refer employees to Local 295’s jurisdiction
when Local 295 is unable to meet the employers’ require-
ments for employees, when Local 803 undertakes to do so
it becomes an agent for Local 295. In this regard I find
Plumbers Local 513, supra, cited by the General Counsel is
controlling under present Board law and supports a finding
that Mills and Local 803 are agents of Local 295, I find the
instant case is distinguishable from Development Consultants,
supra, cited by the Respondent. In Development Consultants,
the Board relied on language in the Union’s collective-bar-
gaining agreements with various employers that ‘‘The local
union having jurisdiction shall be recognized as the principal
source of laborers and shall be given the first opportunity to
refer qualified applicants for employment. . . . The Em-
ployer reserves the right to transfer or rehire laborers
. . . .’’ (Emphasis added.) The Board stated,
We do not find that the above language necessarily es-
tablishes that the Union operates an exclusive hiring
hall. Rather, we find that the language is also subject
to the interpretation that the Union urges—that is, the
provision requires only that the local union having terri-
torial jurisdiction of the jobsite has the first opportunity
to refer applicants when the contractor decides to use
the hiring hall. As we find that the contractual language
does not require contractors to use the hiring hall ex-
clusively, we next consider whether the parties practice
nonetheless established an exclusive referral system. In
light of the testimony of several contractors that they
1041PLUMBERS LOCAL 803 (BECHTEL CONSTRUCTORS)
have hired laborers without using the hiring hall and
without objection from the Union, we do not find that
an exclusive referral system existed by practice. Con-
sequently, we find the General Counsel has not met his
burden in establishing by a preponderance of the evi-
dence that the Union operated an exclusive hiring hall
system. In light of our finding that the Union’s dis-
criminatory refusals to refer members . . . violated
Section 8(b)(1)(A) but not Section 8(b)(2). . . . More-
over, absent an exclusive hiring hall arrangement, we
find no 8(b)(1)(A) violation for the Union’s failure to
operate its hiring hall in accordance with objective cri-
teria.’’ [300 NLRB at 479–480. Emphasis added.]
Based on the foregoing I find that the General Counsel has
demonstrated by the preponderance of the evidence that
Local 295 operates an exclusive hiring hall as the contractual
language clearly supports this conclusion. Moreover assum-
ing the language in the instant case were ambiguous, the Re-
spondent presented no evidence that employers signatory to
collective-bargaining agreements were free to hire employees
directly without resort to Local 295’s hiring hall during the
first 48 hours, or that they did so in practice.
Mills’ use of ‘‘mental lists’’ or his memory without resort
to any semblance of a fair and orderly method of referring
out employees for employment within the jurisdiction of
Local 295 is arbitrary and capricious and violative of Section
8(b)(1)(A) of the Act. Plumbers Local 513, supra.
I have examined the testimony of all witnesses at the hear-
ing. I am convinced that Malphurs was telling the truth when
he testified that he does not refer out retirees within his own
jurisdiction and told Mills not to send him any more retirees
after learning after the fact that Bass had been referred by
Mills to Local 295’s jurisdiction for a job in 1988 although
Bass was a retiree at the time. I also credit Bass that Mills
told him that the call had been for welders and that Watson
was referred because of his status as a union officer. This
was at a time when Malphurs testified he had called for four
pipefitters with rigging experience which Bass testified he
has and which Mills conceded Bass has. I thus conclude that
Mills was complying with Malphurs demand that no retirees
be sent to jobs within the jurisdiction of Local 295 but that
Mills was not candid with Bass that the reason for failing to
refer him to jobs in Local 295’s jurisdiction was because of
his status as a retiree.
The Board has recognized that a union may distinguish in
order of preference of referral among different classifications
of employees as long as distinctions are not capricious, in-
vidious, or discriminatory. Thus in Electrical Workers IBEW
Local 211 (Atlantic Division NECA), 280 NLRB 85 (1986),
the Board recognized, without disapproval, clauses in a series
of collective-bargaining agreements between the Respondent
Union and various employers wherein there were four sepa-
rate classifications of employees listed for referral in pref-
erential order based on their work experience. However, the
Board found ‘‘a union cannot justify referrals that are con-
trary to its established procedures simply by demonstrating
that the conduct lacked a specific discriminatory motiva-
tion.’’ In Operating Engineers Local 406 (Ford, Bacon &
Davis Construction), 262 NLRB 50, 51 (1982), the Board
stated,
any departure from exclusive hiring hall procedures that
results in a denial of employment to an applicant falls
within that class of discrimination which inherently en-
courages union membership, breaches the duty of fair
representation owed to all hiring hall users and violates
Section 8(b)(1)(A) and (2) unless the union dem-
onstrates that its interference with employment was pur-
suant to a valid union-security clause or was necessary
to the effective performance of its representative func-
tion. Respondent has made no such showing. In the ab-
sence of any legitimate justification, we conclude that
the change to a 6-day rule violated Section 8(b)(1)(A)
and (2).
The Board further stated in this case that
failure to give timely notice of a significant change in
referral procedures was arbitrary and in breach of its
duty to represent job applicants fairly by keeping them
informed about matters critical to their employment sta-
tus.
See also Cell-Crete Corp., 288 NLRB 262 (1988).
In the instant case the contractual agreement between
Local 295 and Bechtel contains no prohibition or the referral
of retirees for employment. Thus when Mills and Local 803
as agents for Local 295 refused and failed to refer Bass for
employment because of his retirement status this constituted
a departure from exclusive hiring hall procedures set out in
the agreement and resulted in a denial of employment to
Bass. There has been no showing that the interference with
Bass’ employment was pursuant to a valid union-security
clause or was necessary to the effective performance of the
representative function of Local 295. Furthermore no notice
was given to Bass that he was not eligible for referrals to
Local 295’s jurisdiction as he had been referred in 1988. I
thus conclude that the failure to refer Bass was violative of
Section 8(b)(1)(A) and (2) of the Act. I further find in agree-
ment with the General Counsel and in reliance on Pattern
Makers, 233 NLRB 430, cited by the General Counsel that
the preferential referral of employee Watson because of his
status as a union official was violative of Section 8(b)(1) and
(2) of the Act.
CONCLUSIONS OF LAW
1. Respondent Local 803 is a labor organization within the
meaning of Section 2(5) of the Act.
2. Bechtel Constructors Corporation, Catalytic, and Sauer
are employers within the meaning of Section 2(2), (6), and
(7) of the Act.
3. Local 295 is a labor organization within the meaning
of Section 2(5) of the Act and operates an exclusive hiring
hall within the meaning of Section 8(b)(1)(A) of the Act and
Local 803 and Bobby Mills have at all times material been
agents for Local 295 in the operation of its exclusive hiring
hall.
4. By its operation of the exclusive hiring hall of Local
295 for referrals from its own jurisdiction to the jurisdiction
of Local 295 without benefit of written or published stand-
ards and pursuant to the totally subjective discretion of Busi-
ness Agent Bobby Mills, Respondent Local 803 violated Sec-
tion 8(b)(1)(A) of the Act.
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Respondent violated Section 8(b)(1)(A) and (2) of the
Act by its arbitrary refusal and/or failure to refer Oscar A.
Bass for employment within the jurisdiction of Local 295.
6. By its preferential referral of Donald Watson because
of his status as a union official Respondent violated Section
8(b)(1)(A) and (2) of the Act.
7. The aforesaid unfair labor practices in conjunction with
the Employers’ status as an employer engaging in interstate
commerce affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Local 803 has violated
the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative actions to remedy the
violation found herein including the posting of an appropriate
notice and to mail at its expense a copy of the notice to its
members and to all persons who have used its referral system
since April 18, 1990. Respondent Local 803 shall be ordered
to establish and maintain objective criteria and standards for
the out-of-jurisdiction referral of employees from its hiring
hall when it acts as agent for other local unions in doing so.
It is further recommended that Respondent keep and retain
adequate records of its out-of-jurisdiction referrals operations
for a 2-year period to disclose fully the basis on which out-
of-jurisdiction referrals are made and make those records
available to Region 12, on request. Respondent shall be or-
dered to make Oscar A. Bass and any employee who was
discriminated against as the result of the preferential referral
of employee Donald Watson because of his status as a union
official, whole for any loss of pay and benefits sustained by
them by reason of its unlawful discrimination against them.
All backpay due under the terms of this Order shall be com-
puted in the manner described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the man-
ner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
[Recommended Order omitted from publication.]