Teamsters "General" Local Union No. 200, An Affiliate of the International Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Dec 29, 2011

357 N.L.R.B. 1844 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 192
1844
Teamsters “General” Local Union No. 200, an affili-
ate of the International Brotherhood of Team-
sters and Timothy Buban. Case 30–CB–005303
December 29, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On April 21, 2010, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In his discussion of Respondent Business Agent Michael Gurich’s
testimony, the judge found that Gurich testified to an “incident of a
problematic nature regarding the Bechtel contract that occurred on or
about June 26 and 27, 2007.” We note, however, that Gurich did not
testify to an incident that occurred on either June 26 or 27. Rather, he
testified that those were the dates when the Respondent settled certain
grievances concerning Bechtel Construction Company’s referral re-
quest of certain named individuals. This clarification does not affect
our ultimate findings of violations.
The judge also found that Gurich was the head of the “Teamsters 4
Teamsters” slate that lost a 2006 election to select delegates for an
international Teamsters convention to a slate headed by Timothy Bu-
ban. We clarify that the record shows only that Gurich was a member
of the slate.
2 We shall amend the judge’s conclusions of law and remedy, and
shall modify his recommended Order, to reflect the violations found
and to conform to the Board’s standard remedial language. We shall
also substitute a new notice that reflects those changes.
We shall additionally modify the judge’s recommended Order to de-
lete the reference to other members of the Respondent who may be
similarly situated to discriminatee Buban. Such a requirement would
shift “to the compliance stage determinations which are to be made in
unfair labor practice proceedings.” See Laborers Local 158 (Contrac-
tors of Pennsylvania), 280 NLRB 1100, 1101 (1986), enfd. mem. 865
F.2d 251 (3d Cir. 1988).
We shall further amend the judge’s recommended remedy in accord-
ance with our decision in Kentucky River Medical Center, 356 NLRB 6
(2010), enf. denied on other grounds 647 F.3d 1137 (D.C. Cir. 2011),
by requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis.
Finally, we shall modify the judge’s recommended Order to provide
for the posting of the notice in accord with J. Picini Flooring, 356
NLRB 11 (2010). For the reasons stated in his dissenting opinion in J.
The judge found that the Respondent: (a) violated Sec-
tion 8(b)(2) of the Act by discriminatorily failing and
refusing to refer Timothy Buban for employment at
Bechtel Construction Company’s Elm Road Power Gen-
erating Station Project, and (b) violated Section
8(b)(1)(A) of the Act by operating an exclusive hiring
hall without consistently using objective criteria or fac-
tors in referring applicants for employment and by failing
and refusing to provide Buban with pertinent information
that would allow him to protect his referral rights. We
adopt these findings for the reasons set forth in the
judge’s decision.3
The judge further found that the Respondent violated
Section 8(b)(1)(A) by failing to publicize and make
known its criteria for hiring hall referral. The Respond-
ent excepts to this finding on due process grounds. As
explained below, we find merit in this exception.
The complaint did not allege a failure-to-notify viola-
tion. On the first day of the hearing, however, the Re-
spondent’s business agent, Michael Gurich, testified that
the Respondent had failed to inform individuals of its
requirements for referral. At the beginning of the second
day of the hearing, the General Counsel, citing Gurich’s
testimony, moved to amend the complaint to allege that
the Respondent unlawfully “failed to notify or inform
individuals . . . of any objective rules, practices or criteria
used in making referrals.”
Although the judge advised the parties that he would
defer ruling on the motion until they had an opportunity
to submit briefs, he nonetheless expressed concerns
about the lateness of the motion. He added that he was
disinclined to grant the motion, but that if he did, he
would probably have to convene a supplemental hearing
to reopen the record. The judge further stated that the
cited testimony “may be more supportive of the charges
that we have in place now as opposed to making it the
subject of a new charge.”
In his decision, the judge denied the General Counsel’s
motion to amend because it was untimely. He found,
however, that one of the complaint’s existing allega-
tions—the allegation that the Respondent unlawfully

Picini Flooring, Member Hayes would not require electronic distribu-
tion of the notice.
3 In adopting the judge’s finding that the Respondent harbored ani-
mus against Buban for his protected activity, we do not rely, as the
judge did, on the evidence of Respondent Business Agent Gurich’s
displeasure with Buban’s referral of himself to work at Bechtel upon
leaving his union secretary-treasurer position.
We adopt the judge’s finding that the Respondent’s hiring hall is ex-
clusive. We thus find it unnecessary to pass on the judge’s statement
that a union operating a hiring hall owes referral applicants a duty of
fair representation regardless of whether the hiring hall is exclusive or
nonexclusive.
TEAMSTERS UNION NO. 200 1845
operated an exclusive hiring hall—was broad enough to
encompass the failure-to-notify allegation. The judge
then found, consistent with the allegation that the Gen-
eral Counsel sought to add, that the Respondent violated
the Act by failing to publicize its criteria for referral.
We agree with the Respondent that the judge’s finding
in this regard violated the Respondent’s due process
rights. The judge’s statements at the hearing reasonably
suggested an inclination not to consider the allegation on
the merits. As noted above, the judge expressed con-
cerns about the lateness of the motion and added that the
cited testimony “may be more supportive of the [allega-
tions] in place” rather than the new allegation. Signifi-
cantly, he suggested that the Respondent would not have
to litigate the General Counsel’s proposed amendment
absent explicit notice and reopening of the record. In
these circumstances, the Respondent could reasonably
believe that it did not have to present evidence in defense
of such an allegation, at least not on the second day of
the two-day hearing. And, in fact, the Respondent did
not present any such evidence.
Moreover, a finding of a separate violation runs con-
trary to the judge’s denial of the motion to amend the
complaint to add this allegation. Significantly, there are
no exceptions to that ruling.
Accordingly, it is clear that the judge’s actions led the
Respondent to reasonably believe that it would not have
to defend against a failure-to-notify allegation. In these
circumstances, the judge erred in finding a violation in
the absence of a complaint allegation, and we reverse this
finding. See Coppinger Machinery Service, 279 NLRB
609, 609–610 (1986).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 4.
“4. The Respondent operated an exclusive hiring hall
without consistently using objective criteria or factors in
referring applicants for employment in violation of Sec-
tion 8(b)(1)(A) of the Act.”
2. Substitute the following for the judge’s Conclusion
of Law 5.
“5. The Respondent discriminatorily failed and re-
fused to refer Timothy Buban for employment at Bechtel
Construction Company’s Elm Road Power Generating
Station Project, specifically for available jobs at the
warehouse facilities, in violation of Section 8(b)(1)(A) of
the Act.”
3. Substitute the following for the judge’s Conclusion
of Law 6.
“6. The Respondent violated Section 8(b)(2) of the
Act by causing or attempting to cause Bechtel Construc-
tion Company to discriminate against Buban in violation
of Section 8(a)(3).”
4. Delete the judge’s Conclusion of Law 8 and re-
number the subsequent paragraphs accordingly.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section
8(b)(1)(A) and (2) by refusing to refer Timothy Buban to
Bechtel Construction Company, we shall order that the
Respondent make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him by paying him backpay equal to the amount
of earnings and other benefits that he would have earned
had he not been unlawfully denied referral to Bechtel
Construction Company since about April 14–15, 2008,
less net interim earnings. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons, 283
NLRB 1173 (1987), plus daily compound interest as pre-
scribed in Kentucky River Medical Center, supra.4
Having found that the Respondent violated Section
8(b)(1)(A) by failing to respond to Buban’s request for
information including its job referral lists, rules, policies,
and procedure notices, we shall order the Respondent to
provide Buban with the requested information.
ORDER
The National Labor Relations Board orders that the
Respondent, Teamsters “General” Local Union No. 200,
an affiliate of the International Brotherhood of Team-
sters, Milwaukee, Wisconsin, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Operating an exclusive hiring hall without consist-
ently using objective criteria in referring applicants for
employment.
(b) Failing and refusing to refer employees for em-
ployment because they engaged in activities and exer-
cised rights guaranteed them by Section 7 of the Act.
(c) Failing and refusing to provide applicants for em-
ployment with pertinent requested information (such as
job referral lists, rules, policies, and procedure notices)
that would allow them to determine that their referral
rights are being maintained and followed.

4 We leave to compliance the determination of the nature and extent
of Buban’s employment opportunities at Bechtel Construction Compa-
ny after April 14–15, 2008, the date that the Respondent first failed to
refer him for employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1846
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Operate its exclusive hiring hall by using objective
criteria when making referrals.
(b) Refer Timothy Buban to Bechtel Construction
Company in accordance with the applicable hiring hall
rules.
(c) Make Timothy Buban whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(d) Provide Timothy Buban with pertinent information
(including job referral lists, rules, policies, and procedure
notices) that he requested around August 23, 2008.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Milwaukee, Wisconsin facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to members are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(g) Within 14 days after service by the Region, deliver
to the Regional Director for Region 30 signed copies of
the notice in sufficient number for posting by Bechtel
Construction Company at its Oak Creek, Wisconsin fa-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
cility, if it wishes, in all places where notices to employ-
ees are customarily posted.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT operate our exclusive hiring hall without
consistently using objective criteria in referring appli-
cants for employment.
WE WILL NOT fail and refuse to refer you for employ-
ment because you engage in activities and exercise rights
guaranteed you by Section 7 of the Act.
WE WILL NOT fail and refuse to provide you with perti-
nent requested information (such as job referral lists,
rules, policies, and procedure notices) that would allow
you to determine that your referral rights are being main-
tained and followed.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL operate our exclusive hiring hall by using ob-
jective criteria when making referrals.
WE WILL refer Timothy Buban to Bechtel Construction
Company in accordance with our applicable hiring hall
rules.
WE WILL make Timothy Buban whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
TEAMSTERS UNION NO. 200 1847
WE WILL provide Timothy Buban with pertinent infor-
mation (including job referral lists, rules, policies, and
procedure notices) that he requested around August 23,
2008.

TEAMSTERS “GENERAL” LOCAL UNION NO.
200, AN AFFILIATE OF THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS

Andrew S. Gollin, Esq., for the General Counsel.
Scott D. Soldon, Esq. and Sara J. Geenen, Esq. (Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman S.C.), of
Milwaukee, Wisconsin, for the Respondent.
Timothy Buban, pro se, of Milwaukee, Wisconsin.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard by me in Milwaukee, Wisconsin, on October 20
and 21, 2009, pursuant to an original charge filed by Timothy
Buban (the Charging Party) on June 13, 2008, against Team-
sters “General” Local Union 200, an affiliate of the Internation-
al Brotherhood of Teamsters (the Respondent, Local 200, or
Union). Buban filed amended charges against the Respondent
on September 17 and December 10, 2008, and April 29, 2009.
On May 15, 2009, the Regional Director for Region 30 of the
National Labor Relations Board (the Board) issued a complaint
against the Respondent alleging that it violated Sections
8(b)(1)(A), 8(a)(3), and 8(b)(2) of the National Labor Relations
Act (the Act). The Respondent filed its original answer to the
complaint on May 29, 2009, and an amended answer on Octo-
ber 5, 2009, in both essentially denying the commission of any
unfair labor practices and asserting in both answers certain
affirmative defenses. The Respondent also filed its second
amended answer and affirmative defenses on October 19, 2009.
At the hearing, the parties were represented by counsel ex-
cept Buban who appeared pro se, but all were afforded full
opportunity to be heard, examine, and cross-examine witnesses
and introduce evidence. On the entire record, including my
observation of the demeanor of the witnesses, and after consid-
ering the briefs1 filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Employer
At all times material, Bechtel Construction Company, a cor-
poration with an office and place of business in Oak Creek,
Wisconsin, known as the Elm Road Power Generating Station
(Elm Road Project), has been engaged in the construction in-
dustry. During the past calendar year in conducting its business
operations at the Elm Road Project, the Employer purchased
and received goods and materials valued in excess of $50,000
directly from suppliers located outside the State of Wisconsin.

1 Charging Party Buban did not file a brief.
The Respondent admits, and I would find and conclude, that
Bechtel Construction Company (Bechtel or the Employer) has
been an employer engaged in commerce with the meaning of
Section 2(2), (6), and (7) of the Act.
B. The Labor Organization
The Respondent, Local 200, admits, and I would find and
conclude, that it is a labor organization within the meaning of
Section 2(5) of the Act.
II. PRELIMINARY ADMISSIONS OF THE RESPONDENT
A. The Respondent admits, and I would find and conclude, that
the following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.

All drivers and warehouse employees employed by the Em-
ployer at the Elm Road Generating Station Project.

The Respondent admits that since about January 2006, and at
all material times, it has been the designated exclusive collec-
tive-bargaining representative of the unit and since then, it has
been recognized as the representative of the unit by the Em-
ployer. This recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of which is ef-
fective from June 1, 2008, through May 31, 2011. The Re-
spondent admits, and I would find and conclude, that at all
material times since 2006, based on Section 9(a) of the Act, the
Respondent has been the exclusive collective-bargaining repre-
sentative of the unit as described above in this section.
B. The Respondent admits that it entered into a collective-
bargaining agreement with Bechtel on or about January 16,
2006, and that since that date the agreement was and continues
to be in force and effect at all material times.
III. UNDISPUTED FACTS2
A. The Elm Road Power Generating Station Project at Oak
Creek, Wisconsin; the Referral System in Operation
The Employer in this matter is Bechtel Construction Compa-
ny (Bechtel).3 Bechtel is the general contractor for the con-
struction of two coal fired power plants on the shore of Lake
Michigan that includes a coal handling facility and tunnel that
extends to the lake to bring in cooling water. The project began
in about June 2005 and is scheduled for completion in August
2010. There are about 2100 persons employed on this project
represented by around 15–16 labor organizations, including
Local 200 which represents the drivers and warehousemen.
The drivers pick up and deliver building materials and through-
out the day drive the shuttle buses from the employee parking
lot to the various onsite work areas. Warehouse workers handle
the construction material received at the site and stored in the

2 In this section, I have determined that certain matters are estab-
lished fact either because they are not controverted by the parties or I
have credited certain evidence documentary or testimonial, again that
was not disputed or seriously so by the parties.
3 Bechtel is not directly implicated in the unfair labor practice charge
except by dint of the alleged conduct of the Respondent which caused
and attempted to cause the Company to discriminate against Buban, in
violation of Sec. 8(a)(3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1848
onsite warehouse facilities, and distribute same as needed;
warehouse employees operate forklifts to place and retrieve
material when needed.
Bechtel employed two general foremen, one for the drivers
and another for the warehousemen at the Elm Road Project.
The drivers’ general foreman supervised two and sometimes
three foremen to whom the project drivers reported; these lesser
foremen reported to the drivers’ general foreman. The ware-
house general foreman did not supervise any other foremen, but
only the four to six warehousemen handling material.
Bechtel and Local 200 are signatories to certain agreements
which outline their respective rights and responsibilities at the
Elm Road site. First, there was the project labor agreement
(PLA) executed by Bechtel and Local 200, the general purpose
of which was to promote efficient construction at the Elm Road
site and provide for peaceful settlement of labor disputes.4
Second, there was an area construction agreement between
Local 200 and Bechtel dated January 16, 2006.5 The third
agreement was the parties’ addendum agreement executed on
July 28 and August 1, 2008, by Bechtel and Local 200, respec-
tively, covering the period June 1, 2008, through May 31, 2011;
this agreement essentially covered and replicated the terms of
the area construction agreement.6
The labor agreements most pertinent in this case are the area
agreement and the addendum. These agreements contain the
following language regarding referral of Local 200 members to
the Elm Road Project in articles 14 and 9, respectively.

ARTICLE 14 [The Area Agreement]
Referral of Employees
14.1 The Employer shall have the right to select and
hire directly all supervisors it considers necessary and de-
sirable. The Employer shall have the right to determine
the competency of all employees, the right to determine
the number of employees required.
14.2 The Union administers and controls its referrals
and it is agreed that these referrals will be made in a non-
discriminatory manner and in full compliance with feder-
al, state and local laws and regulations which require
equal employment opportunities and non-discrimination.
[Emphasis added.] Referrals shall not be affected in any
way by the rules, regulations, by-laws, constitutional pro-
visions, or any other aspect or obligation of union mem-
bership, policies or requirements.

4 See GC Exh. 5, a copy of the agreement. This agreement stemmed
from an earlier agreement between Wisconsin Energy Corporation (the
primary employer for Elm Road) and the Milwaukee Building and
Construction Trades Council, acting as agent and representative of its
member unions (to include Local 200).
5 See GC Exh. 6, a copy of the agreement. This agreement specifi-
cally established a definite labor management contract covering wages,
hours, conditions of work, and terms of employment in the relationship
between Local 200 and Bechtel, and included recognition by Bechtel of
Local 200 as the sole and exclusive bargaining agent with respect to
rates of pay, hours of work, and all other conditions of employment for
all employees covered by the agreement.
6 The addendum agreement is contained in GC Exh. 7.
14.3 In the event the referral facilities maintained by
the Local Unions do not refer the employees as requested
by the Employer within a forty-eight (48) hour period after
such request is made by the Employer (Saturdays, Sundays
and Holidays excluded), the Employer may employ appli-
cants from any source. [Emphasis supplied.]
14.4 The Employer agrees to be bound by the hiring
referral rules in a local area not inconsistent with the terms
of this Agreement. Notwithstanding Section 2 above, the
hiring referral rules that prevail in a local area are on other
than an exclusive basis, such rules shall be applicable if
not in violation of either state or federal law.
14.5 The Union will exert its utmost efforts to recruit
sufficient number of skilled and certified craftsmen to ful-
fill the manpower requirements of the Employer.
Where governmental agencies impose equal employ-
ment obligations on the Employer’s project, referral pro-
cedures shall be subordinate to such obligations. [GC
Exh. 6, p.16.]
ARTICLE 9 [The Addendum]
Referral of Employees
9.1 The Employer shall have the right to select and
hire directly all supervisors it considers necessary and de-
sirable. The Employer shall have the right to determine the
competency of all employees, the right to determine the
number of employees required.
9.2 The Union administers and controls its referrals
[emphasis added] and it is agreed that these referrals will
be made in a non-discriminatory manner and in full com-
pliance with federal, state and local laws and regulations
which require equal employment opportunities and non-
discrimination. Referrals shall not be affected in any way
by the rules, regulations, by-laws, constitutional provi-
sions, or any other aspect or obligation of union member-
ship, policies or requirements.
9.3 In the event the referral facilities maintained by
the Local Unions do not refer the employees as requested
by the Employer within a forty-eight (48) hour period after
such request is made by the Employer (Saturdays, Sundays
and Holidays excluded), the Employer may employ appli-
cants from any source. [Emphasis added.]
9.4 The Employer agrees to be bound by the hiring re-
ferral rules in a local area not inconsistent with the terms
of this Agreement. Notwithstanding Section 2 above, the
hiring referral rules that prevail in a local area are on other
than an exclusive basis, such rules shall be applicable if
not in violation of either state or federal law.
9.5 Where governmental agencies impose equal em-
ployment obligations on the Employer’s project, referral
procedures shall be subordinate to such obligations. [GC
Exh. 7, p. 3.]

For purposes of and in compliance with these contract re-
quirements, Bechtel obtained Local 200 drivers and warehouse
employees during the relevant and material times pertinent to
TEAMSTERS UNION NO. 200 1849
the issues presented in this matter using the following process
and procedures.7
First, the project superintendent filled out a craft requisition
form8 that included the date(s) for which employees were need-
ed, the classification of the needed employee, e.g., driver or
warehouseman. The requisition request then was approved by
and through a company approval process and once approved,
the company labor relations manager (Glynn) forwarded the
requisition request to the Local 200 business representative.
From January 1, 2007, to the present, Gregory Glynn handled
the requisitions for Bechtel and Local 200 Business Agent Mi-
chael Gurich handled them for Local 200.
Pursuant to the agreement, from at least March 2007 to the
present, Bechtel obtained either drivers or warehouse employ-
ees from no source other than Local 200. Moreover, Bechtel
officials never hired any drivers or warehouse employees “off
the street,” because they viewed the labor agreement, in par-
ticular the overarching project labor agreement, to require that
all craft workers be hired through the appropriate union hiring
hall. Any persons who sought employment off the street were
given a list of all signatory unions working at the Elm Road site
and instructed to have their names placed on the pertinent un-
ion’s out-of-work list.
This procedure, which began in 2000, was applied to all
crafts working at Elm Road, including Local 200, and was in
place at all material times associated with this litigation. Nota-
bly, Bechtel, employing these procedures during the times ma-
terial to this litigation, never rejected any employees referred to
it by the Local; and Local 200 never failed to refer someone
within 48 hours of the requisition request, at least as of March
2007.
IV. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Complaint Allegations
The complaint alleges essentially that since January 1, 2007,
the Respondent (Local 200) through one of its business
agents—Michael Gurich—began keeping a list of individuals
seeking employment at Bechtel’s Elm Road Project; that since
about August 22, 2008, Gurich failed and refused to honor
Buban’s request to review this list, known as an out-of-work
referral list, as well as all documentation pertaining to the oper-
ation of the Respondent’s alleged exclusive referral system.
The complaint further essentially alleges that since April
2008, when Buban asked to be and was placed on the referral
list, Local 200 (through Gurich) failed and refused to refer Bu-
ban for employment at Bechtel’s Elm Road Project because of
Buban’s having engaged in internal union activities and his

7 In this regard, I have credited the testimony of Gregory Glynn, a
33-year employee and the labor relations manager for Bechtel at the
Elm Road Project for the past 4 years. Glynn’s responsibilities includ-
ed administering the pertinent labor agreements for Bechtel, particular-
ly the referral provisions and process, as well as handling grievances
filed by Local 200. Notably, Glynn’s testimony is not disputed in any
material way by the parties.
8 See GC Exhs. 8(a) through (r), copies of various craft requisition
forms and the Local 200 referrals to the Elm Road Project covering
various dates beginning March 27, 2007, and ending September 12,
2008.
having served as secretary-treasurer of Local 200.
Moreover, it is alleged that since March 2008, Gurich failed
and refused to refer Buban and other similarly situated employ-
ees for employment at Bechtel’s Elm Road warehouse facility
because of the Respondent’s failure to use objective criteria
when selecting individual persons for referral for warehouse
jobs.
The complaint states that by these acts and conduct the Re-
spondent has restrained and coerced employees in the exercise
of rights guaranteed them by Section 7 of the Act in violation
of Section 8(b)(1)(A) of the Act and Section 8(b)(2) by causing
Bechtel to discriminate against Buban and others similarly
situated with respect to employment in Bechtel’s warehouse at
Elm Road.
However, at the hearing, the General Counsel, by oral mo-
tion, proposed the following amendment to paragraph 9 of the
complaint denominated 9(c), and incorporated this new allega-
tion in paragraph 10:

In the alternative, since about March 2008, a more specific
date currently unknown to General Counsel, and continuing to
date, Respondent has failed to notify or inform individuals
seeking referral for employment with the Employer at the
Employer’s facility of any objective rules, practices or criteria
used in making referrals, and/or any changes to such rules,
practices or criteria used in making referrals. [Tr. 212–213.]

The General Counsel submitted that the proposed amend-
ment was based on new and contradictory evidence adduced
through the testimony of Gurich at the hearing. The General
Counsel stated (Tr. 213–214):

Your Honor, I move to amend the Complaint to in-
clude this allegation based upon the testimony offered yes-
terday by Mr. Gurich, and which deviated from prior tes-
timony he gave to the Board during the investigation and
which is contained in his statement under oath, in which
he had previously indicated that there were no written
rules, no unwritten rules, and no established practice re-
garding the making of referrals. He began to deviate in his
answers regarding whether or not such unwritten rules or
established practices exist.
This was the first that we received notice of that,
which is why this is the first time that we’ve had an oppor-
tunity to make an amendment to the complaint to include
this alternative allegation; therefore, we do not believe that
it’s a due process situation. It’s the first notice that we
have, and we provided the notice, upon receiving the no-
tice, to the Respondent.
The reason for the allegation is although we believe
that the evidence will establish that Respondent did not
have objective criteria, rules, or practices in making refer-
rals, the fact of the matter is, is that based upon what ap-
pears to be a change in testimony from Mr. Gurich, in the
event such objective unwritten rules or practice exist, they
have not—“they” being Respondent—have not notified
any of the individuals seeking employment.
And the Board has held situations in which if the event
in a Respondent is found to have objective criteria, it is a
separate violation, although potentially encompassed in an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1850
overarching allegations, that the failure to inform individ-
uals of the objective criteria, practices, or rules is a viola-
tion of 8(b)(1)(A) of the Act.
Based upon those points, we believe that the motion to
amend the Complaint to include this alternative allegation
be allowed.

The Respondent opposed the proposed amendment at the
hearing and on brief (Tr. 215–218 and R. Br., pp. 16–26).
At the hearing, I took the matter under advisement, but indi-
cated that I was disinclined to grant the amendment mainly
because of its lateness, a possible denial of due process, and the
unnecessary time and expense associated with granting the
amendment.
I have considered the motion anew and reviewed carefully
the Respondent’s points and authorities submitted in its brief.
In agreement with the Respondent, I would deny the amend-
ment, but not for all of the points advanced by the Respondent.
The Respondent on brief principally argues that the amend-
ment should be denied because the amendment proposes a new
allegation factually unrelated to the allegations in the third
amended charge; the issues raised by the new allegation were
not fully and fairly litigated; the lack of a factual basis for the
amendment and no justifiable excuse for the General Counsel’s
delayed motion.
In my view, it is the lateness of the motion that is most com-
pelling. Also, the proposed amendment, it seems to me, is or
can reasonably be construed to be incorporated in the existing
complaint allegations. I note that this case, according to the
allegations and the General Counsel’s theory of his case, essen-
tially is about the Respondent’s unlawful operation of an exclu-
sive referral system, that is, its failure to utilize objective crite-
ria, to include rules and procedures for referrals, not providing
requested pertinent documentation by at least one member,
Buban for the warehouse job, and discriminating against Buban
for purposes of referral because of his protected activities.
The proposed amendment, which actually is based on
Gurich’s testimony at the hearing, essentially goes to another
feature of the alleged unlawful operation and in my mind, if so
determined by me, could be remedied through the customary
cease-and-desist mechanism of my recommended Order. In
that sense, no formal amendment is necessary.
The Respondent’s main defense is that Local 200 did not op-
erate as an exclusive referral system and, if so determined, as
the Board case law indicates, the Respondent would not neces-
sarily be obligated to notify individuals requesting referrals of
any objective rules, practices, and changes thereto, etc. it used
in making referrals. Based on this defense, if successful, the
Respondent would escape liability to Buban as well as any
putative other employees similarly situated.
So, on balance, in the exercise of my discretion, I would find
and conclude that the proposed amendment is broadly encom-
passed within the existing complaint allegations, and if a viola-
tion is found and the evidence supports a finding consistent
with the amendment, then I will fashion an appropriate recom-
mended remedy. The motion for the proposed amendment is
denied.
B. Basic Issues Presented
Did the Union operate an exclusive hiring hall for the drivers
and warehouse employees without utilizing or not consistently
utilizing objective criteria in referring applicants for employ-
ment at the Elm Road Project, in violation of Section
8(b)(1)(A) of the Act?
Did the Union refuse to refer Buban (and other similarly sit-
uated employees) for employment at the Elm Road Project,
more particularly the warehouse, for reasons other than his
failure to pay applicable dues and fees, and thereby causing
Bechtel to discriminate against him in violation of Section
8(b)(2) and 8(a)(3) of the Act?
Did the Union operate a nonexclusive hiring hall and fail and
refuse to refer Buban for employment the Elm Road Project
because he engaged in protected activities to include engaging
in internal union matters, including running for and holding
union office?
V. THE LAW AND LEGAL PRINCIPLES APPLICABLE TO THE
UNFAIR LABOR PRACTICE ALLEGATION
Section 8(b) of the Act9 provides in (pertinent part):

It shall be an unfair labor practice for a labor organiza-
tion or its agents—

(1) to restrain or coerce (A) employees in the exercise
of the rights guaranteed in section 7 [section 157 of this ti-
tle]: Provided, That this paragraph shall not impair the
right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership
therein;

. . . .

(2) to cause or attempt to cause an employer to dis-
criminate against an employee in violation of subsection
(a)(3) [of subsection a(3) of this section] or to discriminate
against an employee with respect to whom membership in
such organization has been denied or terminated on some
ground other than his failure to tender periodic dues and
the initiation fees uniformly required as a condition of ac-
quiring or retaining membership.

The Supreme Court in Vaca v. Sipes,10 a 1967 case, held that
a union has a statutory duty of fair representation to serve the
interests of all of its members for whom it acts as their exclu-
sive representative in any given bargaining unit.
Therefore, it is well established that a union that operates an
exclusive hiring hall job referral system or arrangement may
not discriminate against and among employees in the way it
refers employees for employment. Laborers Local 334
(Kvaerner Songer), 335 NLRB 597 (2001).
Under an exclusive hiring hall, basically the employer and
the Union will be the sole source of referral of applicants for
employment with the employer. The employer thus gives up its
right to hire from any other source.11

9 29 U.S.C. § 158(b).
10 386 U.S. 171 (1967).
11 Ironworkers Local 46, 320 NLRB 982 (1996), enf. denied 149
F.3d 93 (2d Cir. 1998).
TEAMSTERS UNION NO. 200 1851
The Board has long recognized that an exclusive hiring hall
can lawfully be based on not only a written agreement between
an employer and a labor organization12 but also through oral
understandings or course of conduct or practice between the
parties.13 In the case of a course of conduct or practice situa-
tion, the Board refers to these as a “defacto” exclusive hiring
hall.
The party asserting the existence of an exclusive hiring hall
arrangement bears the burden of establishing this fact. Carpen-
ters Local 537 (E. I. Du Pont), 303 NLRB 419, 429 (1991).
A union that operates a nonexclusive hiring hall is not
obliged to follow a nondiscriminatory referral system (Team-
sters Local 460 (Superior Asphalt)), 300 NLRB 441 (1990),
because in such a case, the union lacks the power to put jobs
out of reach of the workers. Carpenters Local 537, supra at
419; Carpenters Local 370 (Eastern Contractors Assn.), 332
NLRB 174 (2000).
Generally, defacto exclusive hiring halls may be determined
where there is an implicit understanding between the employer
and the union that an exclusive referral practice would be con-
tinued. Electrical Workers Local 2115 (National Electrical
Contractors Assn.), 136 NLRB 1618, 1619 (1962), enfd. 322
F.2d 1022 (2d Cir. 1963).
A union operating a hiring hall—irrespective of whether it is
exclusive or nonexclusive—owes referral applicants a duty of
fair representation and is obligated to operate the hiring hall in
a manner free from any arbitrary or invidious considerations.
Teamsters Local 519 (Rust Engineering), 276 NLRB 898
(1985). A union’s refusal to assist a member in obtaining jobs
may violate Section 8(b)(1)(A) when the referral is in retalia-
tion for the member’s having engaged in protected activity.
Plasterers Local 121, 264 NLRB 192 (1982).
Furthermore, the Board in Boilermakers Local 374 (Con-
struction Engineering), 284 NLRB 1382, 1383 (1987), enfd.
852 F.2d 1353 (D.C. Cir. 1988), noted:

This code of acceptable conduct necessary extends to
the institution of any referral rules which the union adopts
in accord with contractual provisions. In other words, the
referral rules themselves, including any referral grievance
mechanism, cannot be discriminatory or arbitrary. Labor-
ers Local 304 (AGC of California), 265 NLRB 602
(1982).

A union must make good-faith effort to give notice of rule
changes governing operation of an exclusive hiring hall, and in
a manner calculated to reach all employees who use the exclu-
sive hiring hall; but standards must be objective to be valid.
Teamsters Local 657 (Texia Productions), 342 NLRB 637
(2004).
In Sheet Metal Workers Local 19, 321 NLRB 1147 (1996),
the Board held that under an exclusive hiring hall system, if

12 Longshoremen ILWU Local 19 (Albin Stevedore Co.), 144 NLRB
1443 (1963).
13 Laborers Local 135 (Bechtel Corp.), 271 NLRB 777 (1984), enfd.
mem. 782 F.2d 1030 (3d Cir. 1986); Teamsters Local 174 (Totem Bev-
erages), 226 NLRB 690 (1976); Teamsters Local 293 (Beverage Dis-
tributors), 302 NLRB 403 (1991); and Morrison-Knudsen Co., 291
NLRB 250 (1988).
there is a change of rules governing the system, the union must
make a good-faith effort to give timely notice of the changes in
manner reasonably calculated to reach all those using the hiring
hall.14
A union may violate Section 8(b)(1)(A) when it denies arbi-
trarily a charging party’s request for job referral information
when the request is reasonably directed toward ascertaining
whether the member has been fairly treated with respect to
being referred to jobs. Operating Engineers Local 3 (Kiewi
Pacific Co.), 324 NLRB 14 (1997).
It should be noted that a union’s mistakes or mere negligence
in the operation of an exclusive hiring hall may not violate the
union’s duty of fair representation. For example, the Board
held in Plumbers Local 342 (Contra Costa Electric), 329
NLRB 688 (1999), a union’s negligent failure to refer a charg-
ing party to a job in proper order from its exclusive hiring hall
was not unlawful because the conduct was not arbitrary or dis-
criminatory, or in bad faith.
The Board has held that certain types of information can be
disclosed by the exclusive union hall pursuant to the duty of
fair representation to verify the accuracy of hall data and ensure
that the hall’s hiring operations are not conducted in a discrimi-
natory way basically to ensure that the Union is dealing fairly
with the requests of employees. In that regard, the names, ad-
dresses, and telephone numbers of list registrants, dispatch
records, dates of referral, and out-of-work lists are producible,
and a union’s refusal to supply members of this type of infor-
mation may pose a violation of Section 8(b)(1)(A).15 Iron
Workers Local 27 (Morrison-Knudson), 313 NLRB 215 (1993).
In fact, the Board has further held that it is a per se violation for
a union not to let members view an out-of-work list. Laborers
Local 423 (G.F.C), 313 NLRB 807 (1991).
Notably, a union’s duty of fair representation in the opera-
tion of a referral system—exclusive—is obligatory and must be
free from arbitrary or invidious considerations, but the Board
does not necessarily require that the hall rules and procedures
be either written or posted. Longshoremen ILA Local 20
(Ryan-Walsh Stevedoring Co.), 323 NLRB 1115 (1977).
As noted, Section 8(b) states that a labor organization may
not lawfully cause or attempt to cause an employer to discrimi-
nate against an employee. The Board has held that causing or
attempting to cause discrimination need not exclusively take
the form of an overt demand by the union or the employer.
Rather, the discrimination may be made out (under the circum-
stances) by the mere failure by the union to refer an employee
for work without directing the employer not to hire him.
In fact, in Electrical Workers Local 675 (S & M Electric
Co.), 223 NLRB 1499 (1976), enfd. mem. 556 F.2d 574 (4th
Cir. 1977), the Board noted:

14 See also Electrical Workers Local 6 (San Francisco Electrical
Contractors), 318 NLRB 109 (1995), noting that a union may change
its rules and procedures, but notice must be made to all hiring hall users
and the union is obligated to supply information about hall procedures,
and the individual’s particular place in the register if requested.
15 Social Security numbers of registrants may not be disclosed. Car-
penters Local 102 (Millwright Employees Assn.), 317 NLRB 1099
(1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1852
The Board has consistently found a violation of Section
8(b)(1)(A) and (2) of the Act where a union has discriminato-
rily refused to refer an employee for employment pursuant to
the terms of an exclusive referral system in effect between the
union and the employer. Such union conduct, by its very na-
ture indirectly induces the employer to refuse employment to
that employee in violation of Section 8(a)(3). [Id. at 1499.
(Footnotes omitted.)]16

Where an alleged violation turns on motive, as in the instant
case, the Board requires that the charge be analyzed under the
framework set out in Wright Line, 251 NLRB 1083 (1968),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The Wright Line analysis is applicable to alleged viola-
tions of Section 8(a)(3) and (b)(1)(A).17
Under Wright Line, the General Counsel must establish (1)
that the employee/union member engaged in protected concert-
ed activity; (2) the employer/union has knowledge of that activ-
ity; and (3) animus or hostility toward this activity was a moti-
vating factor in the employer/union’s decision to take the ad-
verse action in question against the employee/union member.
Once the General Counsel establishes initially that the em-
ployee/union member’s protected activity was a motivating
factor in the decision, the burden of persuasion shifts to the
employer/union to show that it would have taken the same ac-
tion even in the absence of the protected activity. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
It is also well settled, however, that when an employer/union’s
stated motives for the actions are found to be false, the circum-
stances may warrant an inference that the true motive is one that
the employer/union desires to conceal. The motive may be in-
ferred from the total circumstances provided. Moreover, under
certain circumstances, the Board will infer animus in the absence
of direct evidence. That finding may be inferred from the record
as a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991).
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, as noted, even
without direct evidence. Evidence of suspicious timing (Adco
Electric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th
Cir. 1993)), and false reasons given in defense (Electronic Data
Systems Corp., 305 NLRB 219 (1991)), may support an infer-
ence of animus and discriminatory motivation.
The employer/union’s burden under Wright Line requires it
“to establish its Wright Line defense only by a preponderance
of evidence.” The respondent’s defense does not fail simply
because not all of the evidence supports it, or even because
some evidence tends to negate it. Merillat Industries, 307
NLRB 1301, 1303 (1992).
To establish an affirmative defense, “[a]n employer [union]
cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the pro

16 See also Plumbers Local 420 (Carrier Corp.), 347 NLRB 563
(2006).
17 See Plasterers Local 21, 264 NLRB at 192.
tected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), enfd. 99 F.3d 1139 (6th Cir. 1996).18
Notably, the test applies regardless of whether the case in-
volves pretextual reasons or dual motivation. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984). The Board
has held that, “[A] finding of pretext necessarily means that the
reasons advanced by the employer [union] either did not exist
or were not in fact relied upon, thereby leaving intact the infer-
ence of wrongful motive.” Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). In
short, a finding of pretext defeats any attempt by the [union] to
show that it would have not referred the discriminatee absent
his protected activities. Golden State Foods Corp., 340 NLRB
382 (2003).
It should be noted that irrespective of the exclusive or non-
exclusive nature of the hiring hall, a union may violate Section
8(b)(2) if it causes an employer to discriminate against an em-
ployee(s) because they have opposed a union business agent
during a (recent) election. Carpenters Local 626 (Strawbridge
& Clothiers), 310 NLRB 500 (1993). In short, a union may not
retaliate against employees for engaging in protected activity.
Carpenters Local 370 (Eastern Contractors Assn.), 332 NLRB
174 (2000).19
VI. THE GENERAL COUNSEL’S WITNESS
Timothy Buban
Buban testified that he has been a member of the Union since
1984 and has held a number of official positions with Local
200, including recording secretary (1995–2000); and secretary-
treasurer (2004–2006).20 According to Buban, the secretary-
treasurer, the top executive within the Local’s hierarchy is re-
sponsible for the hiring of union personnel, administering fi-
nances, assigning staff, and generally represents the Local in
terms of dealing with the membership and other constituent
groups, including various employers.
Buban also testified that since about 1990 or 1991, he has
been involved with and actually joined a group of Teamsters
dedicated to reform of the Teamster International called Team-
sters for a Democratic Union (TDU). Buban volunteered that
TDU has had a contentious relationship with the current Team-
sters International leadership under James Hoffa and, as such,
his group had operated as a political rival to the current leader-
ship.
Buban stated that every 5 years the International puts on a
major convention. Buban said that over the years he has served
as a Local 200 convention delegate, but specifically in 1999,
2001, 2002,21 and in 2006.

18 With some license, I have bracketed the legal rubric here to make
it conform to a discriminatory nonreferral case.
19 See Newspaper & Mail Deliverers (City & Suburban Delivery),
332 NLRB 870 (2000), in context of nonexclusive referral, a member
crossed a picket line during an earlier strike/lockout and the union
refused to recommend members for certain positions at employer’s
facilities.
20 There is no dispute as to Buban’s good standing as a dues-paying
member of Local 200.
21 Buban stated that the Teamsters sometimes convene special con-
ventions, and did so in 2002 as he recalled.
TEAMSTERS UNION NO. 200 1853
According to Buban, at the major convention, the elected
delegates participate in discussions for changes in the union
constitution, nominate members for election to International
offices, devise a slate of nominees, and speak to these issues on
the convention floor.
Buban said that in February 2006, Local 200 conducted an
election to select delegates for the 2006 convention and he was
on a slate of candidates designated the Buban-Connell slate.
Buban said that his slate was opposed by a rival group of Local
200 members who called themselves Teamsters 4 Teamsters,
headed by Michael Gurich, and generally known as the Gurich
slate.22 Buban said that his slate won this delegates’ race and
he and his group attended the 2006 International convention.
Buban testified further that at the 2006 convention, he stood
as a candidate for International vice president while supporting
the candidacy of Tom Leedham against Hoffa. Buban related
that he was unsuccessful in his own bid for the vice presidency
and Hoffa’s slate ultimately won.
Buban stated that having served his 3-year term as secretary-
treasurer from 2004–2006, he ran for reelection with a slate
principally composed of himself, Darryl Connell, and Carol
Simon. Buban said he was opposed by a rival group consisting
of Tom Millonzi, Tom Bennett, Jeff Flayter, and Tim Pinter,
collectively known as the Millonzi-Bennett slate. According to
Buban, the campaign was vigorously pursued by all parties and
highly contentious and even involved International officials.
Buban testified that Michael Gurich was an active campaigner
for the Millonzi-Bennett slate and engaged in leafleting for that
slate.
Buban said that the Local 200 election took place in October
2006, and the Teamsters 4 Teamsters (Millonzi-Bennett) slate
won. Buban said that while his term officially would end at the
end of December 2006, he resigned his position in October
2006, and went to work for Bechtel at the Elm Road power
plant site that month. Buban said that he resigned because he
needed a job and wanted to get on the seniority list before the
new Local 200 administration took office.
Buban stated (in effect) that he put himself to work at the
Elm Road site on October 7, 2006, driving a bus which shuttled
employees about the worksite. Buban also noted that other
members of his slate—Frank Ardellini, Jim Lyons, and Carol
Simon—also went to work at Elm Road. Buban said that he
worked at the Bechtel project for about 11 months but was laid
off around September 14, 2007. However, he believed that his
layoff was improper, contrary to the existing project labor
agreement, and he filed a grievance. Buban volunteered that
Gurich, as of January 1, 2007, was employed as Local 200’s
business agent and was responsible for handling all Elm Road
Project grievances, including his.23
Buban said that over the telephone and in person he fre-
quently spoke with Gurich about this grievance and his desire

22 See GC Exh. 15, a copy of Teamsters 4 Teamsters campaign mate-
rial listing members of the slate which includes a picture of Gurich and
others on his slate.
23 See GC Exh. 13. Buban identified this document as a copy of the
grievance he filed; this document appears to have been received by
Local 200 on September 20, 2007.
to return to working at Bechtel, either as a bus driver, a 5-ton
truckdriver, or even working in the warehouse, that any of these
positions would be suitable. Buban noted that Gurich seemed
initially under the impression that he only wanted to return to
driving the bus, but he corrected him and advised him that he
would gladly work in other jobs.
Buban recalled a conversation with Gurich around January
2008, just prior to a regular general Local 200 membership
meeting. According to Buban, Gurich approached him and
informed him that later that month there was to be a grievance
meeting with Bechtel and that his (Buban’s) driver qualifica-
tions would probably be challenged. Buban said that he re-
sponded, acknowledging that this might be true, but queried
Gurich about a warehouse job, and told him that he was willing
to work there. According to Buban, Gurich said that he did not
think there were openings then available in the warehouse and
the conversation basically ended on this note.
Buban said that the grievance meeting did take place about a
couple of weeks after this conversation, but he was ultimately
not successful—the grievance was dropped. Buban stated that
he found out about the International’s dropping of his grievance
sometime in April 2008.
Buban went on to say that because his grievance was lost, he
asked Gurich to put him on Local 200’s job referral list, he
believed, in April 2008. Buban explained how this happened.
First, Buban noted that while he held office he did not know
whether Local 200 maintained a referral list for the Elm Road
Project and, in any case, these referrals were not his responsi-
bility as secretary-treasurer. However, around April 2008, he
received a call from one of his former slate members, Carol
Simon, telling him that Gurich had mentioned to her that he
(Buban) evidently was not interested in going back to work at
Bechtel because he had not signed up for the out-of-work list.
Buban said that this prompted him to call Gurich (the same
day) and discuss the matter.
According to Buban, when he reached Gurich, Gurich admit-
ted that he had spoken to Simon and made the comments about
his not having signed up on the referral list. Buban stated that to
avoid all confusion, he told Gurich to put him on the list for
Bechtel and that he would take any job at the Elm Road site.
Buban was shown a copy of a document purporting to be the
Elm Road referral list24 and testified that he had never before
seen (or been informed about) any written policies or rules
regarding the list or the operation of the referral process. How-
ever, Buban noted that he had requested a copy of the referral
list as part of a general request for referral information around
August 23, 2008, in person at the union hall from another Local
200 business agent, Randy Monroe,25 because Gurich was not

24 At this point in his examination on direct by the General Counsel,
Buban was shown a copy of GC Exh. 9, already in evidence. This
exhibit was admitted through Michael Gurich testifying as an adverse
witness called by the General Counsel. Gurich testified, as noted, that
this was the Elm Road referral list he created in January 2007 upon
assuming the business agent position with Local 200.
25 At the hearing, the Respondent’s counsel stipulated and agreed
that Monroe was then employed as a business agent for Local 200 and
was a statutory agent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1854
there; nor were any of the other officers, namely, Millonzi and
Bennett.
Buban said that he asked Monroe for a copy of the referral
list, any written rules, any notices posted at the hall, and basi-
cally any documentation regarding the referral process. Ac-
cording to Buban, Monroe did not provide any such infor-
mation but did jot down his requests and agreed to put the note
on Tom Benvenuto’s desk.26 Buban testified that the conversa-
tion with Monroe concluded with this but he never received his
requested information, including the referral list and, further-
more, he was never contacted by anyone from the Local regard-
ing his request.27
Buban stated that since his September 2007 layoff from Elm
Road, he has never been referred to the Elm Road site for any
jobs, either driving or warehouse. Regarding the warehouse
position, Buban related that he had worked in warehouse jobs;
for instance, at Consolidated Freightways for about 23 years as
a loading dock forklift operator, a skill he retains to the present.
Buban opined that Gurich knew of his prior warehouse experi-
ence because this information was contained in Buban’s cam-
paign literature, just as he knew that Gurich’s experience lay in
driving redi-mix concrete trucks. Buban noted that Gurich at
no time suggested to him that he should obtain additional driv-
ing experience to overcome any objections to his driver qualifi-
cations by any employer, let alone Bechtel.
Michael Gurich28
Gurich stated that at the time of the hearing, he had been
employed by Local 200 as a business representative or agent
for about 2 years and 9 months; he has been a member of Local
200 for about 25 years and worked in the construction industry
primarily driving a ready redi-mix concrete truck. Gurich also
noted that during his career he has served as a steward for the
Local.
Gurich outlined his duties and responsibilities as Local 200’s
business representative which included handling grievances,
negotiating labor agreements, dealing with the members and
employer representatives, and handling equal employment and
Board charges.
Gurich stated that Local 200’s current leadership included

26 Benvenuto testified at the hearing and stated that he is a member
of Local 200 and since January 2007, he has been employed by Local
200 as a business representative and for about 3 months, one of his
assignments was the Bechtel Elm Road Project. Other aspects of his
testimony will be discussed later herein.
27 Buban testified that he secretly recorded his conversation with
Monroe and produced a copy of the recording disc at the hearing. The
disc is contained in GC Exh. 22; Buban also produced a copy of a tran-
script he prepared (several weeks before the hearing) of the recording.
Buban also explained how he and an associate played the tape and
sentence by sentence prepared a transcript in longhand (copies of which
were discarded) and then typed up the final product. The transcript is
contained in GC Exh. 23.
28 Gurich was called by both the General Counsel and the Respond-
ent. As a witness for the General Counsel, Gurich, on motion, was
declared “adverse” by me pursuant to Rule 611(c) of the Federal Rules.
Gurich is an admitted agent under the Act.
Tom Millonzi, secretary-treasurer;29 Tom Bennett, president;
Tim Pinter, vice president; and Jeff Flayter, recording secretary.
The Local’s executive board is composed of these persons and
two others, Jim Hilgenberg and Keith Ellenbecher. Gurich
noted that this leadership group was part of a slate of candidates
elected by the membership in October 2006; this slate, the Mil-
lonzi-Bennett slate, defeated a rival slate composed of Buban,
Darryl Cornell, and Carol Simon, and some others. Gurich
admitted that he campaigned for Millonzi-Bennett, mainly by
distributing campaign materials. Gurich noted that he and the
other current business representatives were hired by the Mil-
lonzi executive board.30
Directing himself to the Elm Road Project, Gurich noted that
this was a power plant construction project for which Bechtel
served as the general contractor, which commenced in 2005
and was scheduled for completion sometime in 2010.
Gurich testified that he was aware of and familiar with the
project labor agreement, the area agreement, and the addendum
agreement which governed the referral of Local 200 employees
to the Elm Road Project and that upon his assumption of the
business representative position in January 2007, he was the
union official responsible for making the referrals that came by
way of Bechtel’s requisition requests.31 Gurich explained how
he made referrals to the Elm Road Project.
According to Gurich, when he assumed the business repre-
sentative position in January 2007, he started receiving tele-
phone calls from members asking where they stood on Local
200’s referral or out-of-work list. Gurich said that he told them
that he did not know of any such list, and that there was none
such in the file. Gurich said that he thereupon investigated the
matter, contacting former Buban administration officials and
Bechtel’s project manager, Greg Glynn, all of whom said they
were unaware of any referral list. Gurich said that he then de-
cided to create a referral list32 and informed Bechtel that he had
done so and was ready to send employees to Elm Road upon
request. In March 2007, Gurich stated that Bechtel sent the
first requisition for employees.
Gurich noted that the referral process did not commence
without a hitch. According to Gurich, some of the early
Bechtel requisition forms contained the names of persons to be
hired at the site, and this prompted him to inquire of a contact
Bechtel employee, Sharon Tooze, why this was so. Gurich
stated that Tooze told him that she had been given the names as
out-of work members.33 Gurich said that he informed Tooze
that these individuals were not on his list. According to Gurich,

29 Gurich confirmed that secretary-treasurer is the highest executive
position in Local 200.
30 Gurich identified the other business representatives currently em-
ployed by Local 200, namely, Jeff Bandur, Steve Nelson, Jim Seelow,
Darrick Jordan, Randy Monroe, Tom Benvenuto, and Bob Prinz.
31 Gurich identified GC Exhs. 8(a) through (r), the Bechtel requisi-
tion forms for March 21, 2007, through September 12, 2008, and the
employee referrals he sent in response.
32 Gurich identified GC Exh. 9 as the referral list he created.
33 Gurich identified GC Exh. 8(a), which listed Mike Dercola, Gary
Karnes, and Carol Simon as the persons submitted by Bechtel on the
requisition. As noted, Simon was a member of the Buban administra-
tion.
TEAMSTERS UNION NO. 200 1855
Tooze responded and told him to send whomever he wanted.
On March 22, 2007, he sent a fax to Bechtel (Glynn) with the
names of three drivers (from his referral list) who were to re-
port at the site on March 27, 2007.
Gurich stated that on March 27, he, Tom Benvenuto, a fel-
low business representative, along with three designated refer-
ral list members, Christine Ballewski, Brian Topczewski, and
Roland O’Hearn, went to Elm Road to place these employees.
However, Bechtel told him that Ballewski and Topczewski
were hired, but O’Hearn was not. Gurich said that Bechtel
informed him that the three-employee requisition had been
filled and instructed him and O’Hearn to leave the site.
Gurich testified that later that day the matter was resolved
and, shortly thereafter, members Carol Simon, Gary Karnes,
Ballewski, and O’Hearn ultimately went to work at the site.34
Gurich also related another incident of a problematic nature
regarding the Bechtel contract that occurred on or about June
26 and 27, 2007. Gurich stated that Local 200 filed grievances
8864 and 8865 regarding referrals to the Elm Road site. How-
ever, this, too, was settled by him and Glynn with no involve-
ment of the Teamsters International, basically by their mutual
agreement to follow the dictates of the project labor agreement
and Glynn’s agreement to give the Union up to 48 hours to
send employees. Gurich, however, testified that he understood
that irrespective of their agreement, Bechtel did not have to
accept persons he sent in response to the requisition requests.
According to Gurich, from that time (March 27–June 26, 2007)
to the present, Bechtel hired Local 200 members under this
understanding; that is, Bechtel would send requisitions and
Local 200 would fill the requisition requests with members he
referred within 48 hours.
Gurich testified that these problems aside, nonetheless, he
did not believe that Local 200 operated an exclusive referral
system for the Bechtel contract. However, Gurich further testi-
fied that as he made the referral decisions, he believed that he
was consistent in the way he put people to work, using what he
described as his informal work list; however, Gurich conceded
that his referral system was not an “exact science.” (Tr. 295.)
Gurich stated that in making referrals, he may have looked at
the qualifications (driver or warehouse) of the person he was
considering; whether they had worked at the Bechtel project
previously; whether the general foreman at the site thought the
person had done a good job; whether the person had good at-
tendance at the site; the person’s willingness (based on the
foreman’s opinion) to work overtime; and whether the person
had received what he described as a “fair deal” working at
Bechtel. Gurich admitted that he has never informed anyone
(the membership) of the factors he employed in making refer-
rals to Elm Road.35 On balance, Gurich stated that generally he

34 Simon, Karnes, and another member, Dercola, were on the origi-
nal requisition. According to Gurich, Dercola chose not to go to work
at Bechtel, basically because he was then engaged in negotiating a
contract with another employer and Gurich needed him there. Gurich
emphasized that this was his decision and not Bechtel’s. (Tr. 249.)
35 It goes without saying that Gurich’s factors were never written and
published (posted) in any meaningful way during the times material
herein and beyond. I note that on direct examination by the Respond-
ent’s counsel, Gurich was queried about several referrals he made to
preferred to send members who had previously worked at Elm
Road, but had been laid off, back to the Elm Road site (Tr.
304); Gurich stated, however, he did not do this in all cases.
(Tr. 305.)
Gurich stated that for prospective Elm Road employees dur-
ing 2007–2008, he employed no set rules to put members on
the referral list. According to Gurich, members would just
come to the hall or knew someone such as a business agent at
the hall, or telephoned asking to be placed on the informal out-
of-work list. Gurich also admitted that there were no formal
instructions for those who wanted to be placed on the list.
At the hearing, Gurich stated that “We simply ask that pro-
spective employees leave their names, telephone numbers and
qualifications at the hall.” Gurich stated that even this infor-
mation/instruction since March 2007 was not posted at the hall,
and that the Union in fact did nothing to inform the prospective
employees about the procedures to get on the list for employ-
ment at Elm Road (Tr. 71), such as notifying the members in
writing that it maintains a referral list for Elm Road, posting
such a notice at the hall (Tr. 73), or periodically informing
those on the list when they could be referred out (Tr. 85).
Gurich volunteered that the referral list is “public,” but the
Union has not taken steps to notify people on the list that it was
public, which, he explained, meant that anyone who requested
to see the list could see it. Gurich further noted that he put no
one on the referral list without his asking to be placed on it.
While admitting that Local 200 did not have written rules or
policies governing referrals to Elm Road, Gurich, nonetheless,
insisted there were the unwritten ones as he had explained, and
that basically he viewed his system as an informal referral sys-
tem that relied in part on his discretion in making referrals.
Gurich also volunteered that as he administered the referral
system, there were no requirements for getting on the list. (Tr.
84.) He also noted that while the persons on his list were listed
in numerical order, he did not always refer them in that order;
he mainly looked at their qualifications and layoff status.
Turning to Buban, Gurich acknowledged that he knew him
as the former secretary-treasurer of Local 200 and that Buban
had lost his reelection bid in 2006. Gurich also acknowledged
that he knew that Buban (and some members of his administra-
tion) had gone to work for Bechtel after his election loss.
Gurich readily admitted that he believed that Buban and his
former administration members had manipulated the referral
process to get their jobs at Bechtel, basically by putting their
names ahead of others awaiting a referral to Bechtel. Gurich
believed that this was not right or proper and candidly stated
that Buban should not have secured his job at Elm Road that
way.

Bechtel—I will not go through each in detail—but in discussing them
Gurich stated that these aforementioned factors in some respects (and
not consistently so) were employed by him in making the referrals. My
examination of Gurich’s out-of-work list in conjunction with his testi-
mony leads me to conclude that the persons he referred were not select-
ed in the numerical order in which they appear on the list. Also, it
seems clear that Gurich utilized his referral criteria rather subjectively.
See Gurich’s testimony—Tr. 292–303—on cross-examination by the
General Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1856
Asked about his views on Buban’s administration and the
way he ran the Local during his tenure, Gurich stated he was
not opposed to Buban on these grounds and actually was not
really familiar with his running of the Local; for instance, in
terms of how he handled union finances or bargaining or ad-
ministered the contracts. Gurich denied not liking Buban per-
sonally or even politically.
Gurich stated that he was aware that Buban, along with about
10 or more other members, was laid off by Bechtel in the fall of
200736 and that Buban filed grievances regarding that layoff
and Gurich processed them.37
Gurich further recalled that Buban persistently contacted the
Local many times regarding his grievance, and he spoke with
him many times. Gurich also noted that he wrote to Buban on
October 23, 2007, about his grievances and also on November
27, 2007,38 and otherwise monitored the status of his grievances
with the Milwaukee Building and Construction Trades Council.
Gurich acknowledged that he knew that Buban wanted to return
to Bechtel, but Buban only specifically told him of his desire
once in April 2008. According to Gurich, a significant barrier
to Buban’s returning to work at Elm Road was his lack of qual-
ification as a class A driver and that Buban never informed him
that he was willing to work in a nondriver (warehouse) posi-
tion.
Based on his telephone log, Gurich recalled putting Buban
on the referral list around April 15, 2008.
39
He stated that at the
time, the Union assumed that the Building Trades Council (of
the International) would arbitrate Buban’s layoff grievance, that
he would prevail and then be returned to his former job driving

36 See GC Exh. 12, a copy of a document entitled “seniority list,”
which Gurich identified as having been produced by Local 200 pursu-
ant to the Board investigation. The list contains the names of Buban
and 10 other employees he said were laid off at the time by Bechtel.
According to Gurich, Bechtel ultimately laid off all class B drivers,
which was Buban’s classification.
37 See GC Exh. 13, copies of two grievances filed by Buban on about
September 20, 2007, one for alleging a subcontracting violation of the
contract and the other alleging his improper layoff on September 14,
2007.
38 See R. Exh. 5, a copy of Gurich’s letter to Buban advising him of
the status of his grievances among other matters pertinent thereto, in-
cluding advancing the matter to step 3 of the grievance process. See
also R. Exh. 6, Gurich’s November 27, 2007 letter to Buban also refer-
ring to Buban’s grievances and related matters. Notably, on January 3,
2008, Gurich advised Bechtel by letter of the Union’s intention to ad-
vance Buban’s grievances to step 3. (R. Exh. 7.) It should be noted
that these two letters to Buban indicate that Buban’s grievances were
becoming somewhat controversial and suggestive of the early stages of
a less than friendly relationship between the Union (Gurich) and Bu-
ban. This will be discussed later herein.
39 According to Gurich’s referral list, Buban occupies the numerical
slot #113 with a question mark (?) by his name and telephone number;
no date is included. Many of the other Local 200 members on the list
have designations such as “qualified,” warehouse, “ASE certified,”
“class B only,” and “ex power plant.” Gurich noted that “qualified”
meant that the person was able to drive or operate the types of vehicles
being used on the Elm Road Project. According to Gurich, he did not
actually know Buban’s qualifications for purposes of employment
eligibility at Elm Road, except his not having class A driver competen-
cy.
the bus. However, Building Trades did not move Buban’s case
to arbitration.40 According to Gurich, he believed that this was
the first time Buban had requested to be put on the out-of-work
list since he was laid off in September 2007, and noted that
Buban’s request came about 4 days before the Building Trades
Council denied Buban’s request for arbitration which, if he had
prevailed, may have returned him to his former position at the
site.
Gurich stated that to him it was always Buban’s single desire
to go back to his bus driving job at Elm Road and prior to re-
questing to be put on the out-of work list in April 2008, Buban
had never requested to work in the warehouse and that is why
his name appears on page 17 of the out-of-work list at number
113.41
Gurich noted that Buban never filed any grievances over any
members’ being sent to the warehouse out of order nor did he
file any internal charges against the Union. Gurich further not-
ed that Bechtel has not called for any class B drivers (like Bu-
ban) since his layoff in September 2007, and that even mem-
bers with more seniority than Buban have not been returned to
work there.
Regarding the tape-recorded conversation between Buban
and Monroe, Gurich stated that he was unaware before the
hearing that the two had conversed about Buban’s obtaining a
copy of the out-of-work list and other referral documentation.
Gurich insisted that he has given copies of the list to anyone
who asked, including former members of Buban’s administra-
tion, namely, Carol Simon and Frank Ardellini, and that he
would never have denied Buban a copy if he had asked him.
Gurich conceded that Buban was more senior than some of
the persons he referred to Bechtel; for example, Arnold Cheske
had been initially hired by Bechtel on April 24, 2007, and laid
off with Buban in the fall of 2007. However, Gurich stated that
while seniority is a fair way of making referrals, it is only a part
of his system. According to Gurich, Cheske was sent back to
Bechtel because he (Gurich) did not think Cheske got a “fair
shake” when he was initially laid off, so when Bechtel request-
ed four class A drivers on May 16, 2008, he sent Cheske back
to the site.42

40 See R. Exh. 12, a letter from Lyle Balistreri of the Milwaukee
Building and Trades Council to Gurich dated April 18, 2008, informing
him that Buban’s grievance would not be taken to arbitration. Also see
R. Exh. 13, a copy of a letter from the Milwaukee Building and Trades
Council dated April 18, 2008, in reference to Buban’s subcontracting
and layoff grievances, informing Greg Glynn, labor relations manager
for Bechtel, that the Council had decided not to process further either
grievance (that is, proceeding to step 4 arbitration under the contract),
with copies sent to Buban and Gurich.
It should be noted that by letter dated January 28, 2008, Gurich
wrote to Glynn of Bechtel informing him that the Union was going to
move Buban’s grievances to arbitration (see R. Exh. 8), but clearly
there was a later reversal on the decision, based on the letters referred
to above.
41 It should be noted that Gurich testified that his list began at num-
ber 40 in January 2007 when he devised the list because he believed
there were about that many Local 200 members then working at Elm
Road.
42 See GC Exh. 8(b), p. 3, Gurich’s response to Bechtel’s requisition
of April 16, 2007. Notably, Buban’s seniority date was October 17,
TEAMSTERS UNION NO. 200 1857
Gurich testified that Buban has never asked to see the refer-
ral list for Elm Road, and he could not recall if Buban ever
asked for the rules, policies, and procedures for the Local 200
referrals; and to his knowledge, Buban has never asked anyone
in the Union for documentation relating to the referral of work-
ers to Elm Road.43
Gurich stated that Buban dealt with another former business
agent of the Union regarding Buban’s grievances, and Gurich
gave that agent a copy of his referral list. Accordingly, Gurich
believed that Buban was given a copy of the referral list by that
agent. Gurich insisted that Buban never asked him for the refer-
ral list.
John Gomaz
Gomaz testified that he was a Local 200 member and had
been so affiliated off and on for about 40 years, but has never
held union office. Gomaz stated that he was currently em-
ployed at the Elm Road Project as a driver44 and has been so
employed since about March 2008. Gomaz stated that he start-
ed working at the project in February 2006, but not continuous-
ly; Gomaz volunteered that he was involved in an on-the-job
altercation at the site and was suspended around November
2006 for misconduct and took up working for a local trucking
company for the next 6 months.
Gomaz testified that he eventually went back to the project at
Elm Road. Gomaz recalled that he received an unsolicited call
from Gurich offering him a driver position at Elm Road; Gom-
az specifically and insistently recalled not asking Gurich to be
placed on the Bechtel out-of-work list in either 2007 or 2008,
and never asked to be referred out.
According to Gomaz, Gurich never mentioned to him a re-
ferral list or any such rules explaining how Local 200 refers
workers to Bechtel.45

2006, according to GC Exh. 12. At the time of their respective layoffs
in 2007, Buban drove a bus and Cheske a 5-ton truck. However,
Gurich testified that at the time of his initial layoff, Cheske was work-
ing in the warehouse although he regarded him as a skilled driver who
was not given a “fair chance” to drive at Bechtel. When called by the
Respondent, Gurich said that Cheske should not have been laid off
because Bechtel was then laying off drivers and Cheske was a ware-
house worker. Gurich said that he believed Cheske had not filed a
complaint (as had Buban), had done a good job while at the warehouse
in 2007, and had been requested by the general foreman. So, on May
16, 2008, he sent Cheske back to the warehouse (GC Exh. 8(n)) per
Bechtel’s request for warehouse workers. I should note that Gurich’s
handling of Cheske clearly indicates his subjective application of the
criteria he employed in making referrals to Elm Road.
43 Gurich testified that he was not aware of Buban’s charge that since
August 22, 2008, the Union had failed and refused to provide infor-
mation relating to his question of the referral system; he never received
a copy of the charge. However, Gurich admitted that he did receive a
copy of the complaint but turned everything over to the Union’s attor-
ney. Gurich was clearly not aware of the recorded conversation be-
tween Buban and Business Agent Monroe on August 23, 2008. I
should note that I did not find Gurich’s testimony along these lines to
be very convincing and, in fact, was not credible.
44 Gomaz was a class A driver who could operate heavy equipment.
45 Gomaz believed that any communication with Gurich was by tele-
phone, and he could not recall his calling Gurich about returning to
Bechtel. I note that Gomaz had some trouble with dates, but to me he
Gomaz volunteered that he honestly believed that he did not
have the option of going back to Bechtel (because of his mis-
conduct) and recalled when out of work, going to the hall to get
a withdrawal card (to avoid being assessed dues), but not ever
speaking with Gurich about returning to Bechtel during any
time prior to calendar 2007.
Gomaz believed he was referred to a local trucking company
by someone other than Gurich prior to being sent back to
Bechtel; he stated that he did not even know who Gurich was
prior to being called by him in July 2007.
James Lyons
Lyons testified that he was a member of Local 200 and has
been affiliated with the Union for about 6 years. Lyons stated
that he is currently employed at the Elm Road Project and
works in one of the two warehouses located at the site; he has
worked there for about 3 years.
Lyons described his job as essentially operating the forklifts
used to load and unload the trucks; he performs this function 7–
8 hours per day and this is a critical skill for a warehouse job at
Elm Road.
Lyons testified that he knew several Local 200 members em-
ployed at one time or the other in the warehouse at Elm Road.
Directing himself to the spring of 2008, he knew that Margo
Bonaparte, Matt Anderson, and Scott Olson had not worked for
Bechtel at the warehouse in the past; however, Cheske had
prior warehouse experience. Lyons recalled that at the time, all
were referred to warehouse #2 at some point, with a total of
three members working any one time.46
Lyons recalled being required to train both Anderson and
Bonaparte in the operation of the forklift and familiarize them
with the warehouse and its operations. He noted that neither
Anderson nor Bonaparte, prior to his training them, knew how
to operate a forklift and that when they were referred, it was the
first time he had been required to train any referrals.47 Regard-
ing Cheske, Lyons said that he worked with him in warehouse
#2 for several months prior to the spring and summer of 2008,
perhaps in 2007; he believed that Cheske was laid off ultimate-
ly and currently is not working in warehouse #2.

appeared sincere in his attempts to put accurate dates on the matters
about which he testified. For instance, he initially testified that he went
back to the Elm Road Project in March 2008, then later (Tr. 231) said
he returned to Bechtel in July 2007. This corresponds with Gomaz’
testimony that he worked for a trucking company for about 6 months
after being suspended in November 2006. I note that Gurich, respond-
ing to a Bechtel requisition request, referred Gomaz to the site on July
17, 2007, as a driver. (See GC Exh. 8(i).)
46 Lyons said that at the time of the hearing there currently were two
warehouses in operation at Elm Road, but that at one time there were
about five warehouses; four were offsite; one was onsite.
47 Anderson was referred by Gurich to the Bechtel site on March 7,
2008, for the warehouse (GC Exh. 8(i)); Olson, Bonaparte, and Cheske
were referred to the warehouse on May 16, 2008 (GC Exh. 8(n)), by
Gurich. The requisitions stipulated that the persons referred needed to
be qualified on forklift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1858
VII. THE RESPONDENT’S WITNESSES
Tom Benvenuto
Benvenuto testified that he has been employed by Local 200
as a business representative since January 2007;48 his duties and
responsibilities including administering the Local’s contracts
with signatory employers, handling grievances, and generally
dealing with issues involving the membership. Benvenuto
stated that most of the contracts he is responsible for are in the
construction industry; the Bechtel agreement was one such, but
he was only involved with Bechtel for about 3 months.
Benvenuto testified that when he assumed his duties in early
2007, he was greeted by calls from various Local 200 members
asking for their respective places on the out-of-work list for the
Elm Road Project, along with even non-Local 200 persons
desiring to be put on the list.
Benvenuto stated that he, however, could not find such a list
even after an exhaustive search of the Local’s files. According
to Benvenuto, he queried the former Buban administration
business representatives, specifically Frank Ardellini—the last
Buban-hired representative he knew to have handled the
Bechtel contract—and was told that no referral list existed.49
According to Benvenuto, Gurich also undertook a studious
search for the out-of-work list, but could not find one.
Benvenuto stated that, nonetheless, when the members start-
ed calling in, he recorded their calls on yellow sticky (post-it)
notes and placed them on Gurich’s desk. Benvenuto noted that
for his part at the time, he had a very busy workload and was
merely taking the referral calls and passing the information on
to Gurich.
Benvenuto stated that in the end, both he and Gurich were
never able to find a referral list either at the hall, or at the
worksite. Benvenuto said that he undertook no responsibility
or part in putting the names on the list, or referring anyone off
of it to Elm Road.50
Benvenuto, however, recalled that in March 2007, Bechtel
sent in two requisition forms; one had no names on it and the
other had three names listed.51 However, according to Benve-
nuto, this requisition presented an issue of concern to the Local.
Benvenuto stated that first, according to the project labor
agreement, Local 200 had the right to fill a requisition request
within 48 hours of the request. Second, one of the persons on

48 Benvenuto, an admitted agent of Local 200, was on the Millonzi-
Bennett ticket that ousted the Buban administration.
49 Benvenuto stated that he also queried Vincent Klingbeil, the gen-
eral foreman at Bechtel during Buban’s last term in office, and Kevin
Tatroe, the water truckdriver at Bechtel; both men told him that no such
list existed. Ardellini did not testify at the hearing. No other Buban
administration officials or agents testified at the hearing.
50 Benvenuto noted that he merely gave Gurich the “tags” (the post-it
notes) but never saw what he did with them and never saw a physical
referral list, but he believed that one was being created (by Gurich) at
the time. (Tr. 339.) I note that GC Exh. 8(b) indicates that Benvenuto
referred Terry Floss to Bechtel for a driver’s job on July 24, 2008.
51 Benvenuto identified the Bechtel requisition form dated March 21,
2007 (GC Exh. 8(a)), that listed Mike Dercola, Gary Karnes, and Carol
Simon. The requisition stated that two class B drivers and one class A
driver were needed by March 27, 2007. Frank Ardellini of the Buban
administration is listed as the union contact person on the form.
the list, Mike Dercola, a bargaining committee member, was
then involved in contract negotiations with another company
and was needed there. Benvenuto said that he and Gurich im-
mediately contacted Greg Glynn and Sharon Tooze at Bechtel
(and complained) about the matter; in the end, according to
Benvenuto, Tooze said that we (Local 200) were to send four
people, the ones who are next (on the Local 200 list?). Benve-
nuto stated that on March 11, 2007, Gurich then referred three
persons, Christina Ballewski, Brian Topczewski, and Richard
O’Hearn, and forwarded their names to Bechtel.
Benvenuto said that both he and Gurich accompanied the
three to the Bechtel site on their scheduled show-up date.
However, when the employees arrived at the site orienta-
tion/receiving trailer, only Christine Ballewski was accepted;
the other two were turned away because the positions had been,
according to the Bechtel representatives, already filled.
According to Benvenuto, both he and Gurich immediately
went to the trailer to meet with Glynn, the Bechtel labor rela-
tions manager, to arrange a meeting about the matter. The
meeting took place with Local 200 general foreman, Klingbeil
and steward Tatroe also attending, and with Glynn and another
Bechtel representative, Larry Brown. Benvenuto stated that
Gurich and he had a grievance prepared, basically grieving over
“not allowing us to refer people to the project” (Tr. 334) and
asked Tatroe to sign it; Tatroe refused to sign it. Benvenuto
stated that Gurich and Glynn “had words,” and Gurich left the
meeting. Benvenuto said that he remained and discussed with
Glynn the labor agreement that permitted Local 200 to send
referrals within the 48-hour period and the Local’s intention to
file a grievance over the matter. Benvenuto stated that after
this encounter, he had no involvement with any requisitions and
referrals to the Elm Road Project.
Turning to Buban, Benvenuto recalled communicating with
him both by telephone and in person in his capacity as a local
business representative; Benvenuto believed his first contact
with him occurred some time in March 2008 when Buban
dropped off his grievance at the union hall.52 At the time, Ben-
venuto recalled receiving the grievances and making copies and
time-stamping them for Buban, and inquiring of him whether
he wanted to speak to Gurich. According to Benvenuto, Buban
declined his invitation, and this was the only time he ever spoke
with him in person as a union official about Bechtel. However,
since he answered Gurich’s telephone at the hall on occasion,
he recalled speaking to Buban off and on but, as he did with all
of Gurich’s calls, he merely noted the call, the time of the call,
and any message included, and included these on a call log.
Benvenuto identified a union call log (GC Exh. 16) and not-
ed an entry dated April 14 (“4-14”) in his handwriting reflect-
ing Buban’s having called that day. Benvenuto stated that his
recollection was that Buban called that day to ask to be put on
the Bechtel referral list. According to Benvenuto, this was the
first time Buban had so requested, but that Buban had never
requested (of him) to see a copy of the referral list for the

52 Benvenuto identified copies of Buban’s grievance contained in
GC Exh. 13.
TEAMSTERS UNION NO. 200 1859
Bechtel project, and in fact no other members had asked for a
copy.
Arnold K. Cheske
Cheske testified that he was not currently employed and not
currently affiliated with Local 200,53 but when he was a mem-
ber, he was referred to the Bechtel project by Gurich who told
him about a referral list and asked whether he (Cheske) wanted
is name placed on it. Cheske said that he did and was eventual-
ly referred to Elm Road.
Cheske recalled asking Gurich if there was any work, and he
knew from his experience with other companies that unions
maintained a list for out-of-work members; and that the union
would place a member’s name on the list. According to Ches-
ke, Gurich responded that he was working out some details
with Bechtel and when work was available, he (Cheske) would
be called. Cheske recalled that Gurich was the only Local 200
representative he ever spoke with about Bechtel and never
spoke with anyone from Bechtel regarding a job.
According to Cheske, he found out about the referral list in
January 2007 and believed that his first referral as a driver was
April 23, 2007; he drove the (shuttle) bus onsite; Cheske said
he held this position for about 2-1/2 months. Cheske said that
he also worked at the site warehouse; that Vince (Klingbeil),
whom he described as the site supervisor, asked him if he
would like to work in the Bechtel warehouse. Cheske stated
that he worked at the warehouse up to August 3, 2007, when he
was laid off.54
Cheske stated that after his layoff in August 2007, he called
the hall and asked Gurich to be put back on the list for a future
opening. Cheske said he was not called back until May 20,
2008, by Gurich.
Cheske recalled that prior to his August 2007 layoff, Jeff
(last name unknown), a warehouse supervisor, and Klingbeil
told him that he was doing an outstanding job in the warehouse.
Be that as it may, Cheske said that he reported to Bechtel on
May 20, 2008, for orientation, and Klingbeil explained to him
in his office the requirements of the job and also informed him
that he was in a better position in the warehouse, and that
Klingbeil was happy to have sent him back. Cheske said that
he worked in the warehouse from May 20 through July 25,
2008.
Cheske noted that in 2008, he had been laid off from a driver
position. Therefore, he believed that he should have been re-
hired as a class A driver, but was sent to the warehouse, so then
he was called back to the warehouse.55
Cheske noted that he always let Gurich know when he was

53 Cheske testified that he has never been an officer or steward in the
Buban administration; he had no official role in Local 200 during the
Buban tenure.
54 Cheske recalled that a member named Don worked with him; but
he could not remember anyone named Jim Lyons working with him at
that time.
55 Cheske’s testimony here is not altogether clear. I interpret him to
mean that he had been sent to the warehouse earlier when he should
have gone back as a driver. However, having been sent to the ware-
house, he was then returned to the warehouse by Gurich when a ware-
house spot was available.
out of work and asked to be put back on the referral list for
future openings. Cheske stated that it was his understanding
that this was a requirement, that if he did not call Local 200, he
would not be called back to Bechtel. Cheske said that he un-
derstood that not calling the Local would be interpreted to
mean he was not interested in getting another job. In fact, ac-
cording to Cheske, Gurich specifically told him that he had to
contact Local 200 to ask to be put back on the referral list in
order to be referred out. However, Cheske noted that Gurich
did not provide any other rules or procedures he needed to fol-
low regarding referrals to Bechtel.
VIII. THE PARTIES’ POSITIONS
The General Counsel contends essentially that Local 200 op-
erated an exclusive job referral service for the Elm
Road/Bechtel project; however, it operated this exclusive refer-
ral services arbitrarily and made referrals to the project
worksite, more particularly the warehouse, without a consistent
application of objective criteria, the effect of which was to deny
Buban (and other similarly situated employees) a fair oppor-
tunity to be employed at the Elm Road Project, and more par-
ticularly the warehouse. The General Counsel further contends
that Local 200 failed to notify persons seeking referral to Elm
Road of any objective rules, practices, or criteria it used in ac-
tually making referrals or even the existence of any such objec-
tive rules, procedures, practices, or other criteria.
The General Counsel further submits that Local 200 operated
an exclusive referral service for the Elm Road Project discrimi-
natorily from April 2008 to the present by denying Buban em-
ployment opportunities at the Elm Road warehouse facility
because of his having engaged in internal union activities, in-
cluding serving as secretary-treasurer. Lastly, the General
Counsel submits that Local 200 breached its statutory duties by
failing to provide Buban within the pertinent information he
sought regarding the Local’s referral service for the Elm Road
Project. The General Counsel asserts that based on the forego-
ing, Local 200 violated Section 8(b)(1)(A) and (b)(2) of the
Act.
The Respondent first asserts that Local 200 utilized an in-
formal referral process that was consistently and orderly ap-
plied based on an out-of-work list of prospective employees
who were referred, taking into account the next name on the
list, the qualification of the person, and his/her seniority and
layoff status. The Respondent further maintains that its out-of-
work referral system, as governed by the specific contractual
language giving rise to referrals to Elm Road, does not establish
an exclusive hiring hall. On the strength of these contentions,
essentially that there was no exclusive hiring hall arrangement
in place at Local 200 for purposes of referring individuals to the
Elm Road Project, Local 200 did not owe a duty of fair repre-
sentation to any person related to the list, and no duty to pro-
vide information about referrals or the procedures attendant to
referrals as well. The Respondent asserts that no unfair arbi-
trary or discriminatory action was ever taken against or with
respect to Buban that was related to the out-of-work list.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1860
The Respondent has also asserted certain defenses both in
the several answers to the complaint and on brief.56 I will treat
only with the affirmative defenses that the Respondent has
asserted and maintained in its brief, and will consider the other
affirmative defenses to the extent they do not overlap with
those asserted in the Respondent’s brief as having been aban-
doned.
The Respondent in part IV of its brief generally asserts that
the Board is estopped from finding in favor of Buban by dint of
(a) his having waived his right to pursue his claims (against
Local 200) because he never filed a grievance over the failure
to refer him back to Bechtel, or even expressed his desire to the
Local to go back to Bechtel via the referral process; (b) his
failure to exhaust and abide by internal union remedies as set
out and mandated by the Union’s constitution and bylaws and
that Buban as a high-level office and long-time member knew
of the requirement; and (c) his claims being barred by Section
10(b) (29 U.S.C. § 160(b)) of the Act because Buban pursued
no internal remedies, and there was no tolling of the limitations
period.
The Respondent specifically contends that to a certainty Bu-
ban knew that he had not been previously placed on the referral
list in April 2008. However, he did not file a charge specific to
the failure to put his name on the referral list until December
10, 2008, more than the 6 months permitted under the 6-month
limitation of Section 10(b). The Respondent further asserts that
any alleged violations cannot be considered continuing in na-
ture because there have been no requisitions from Bechtel for
employees to fill jobs for which Buban was qualified since that
date.
The General Counsel in response contends that an employee
who claims that he is denied employment through his union
hiring hall is not required to exhaust internal union rules and
procedures, because there is an overriding public interest in
allowing the employee unimpeded access to the Board, and that
only in the case of plainly internal affairs should that access be
denied.
As pointed out by the General Counsel, I note that Gurich
could not explain the internal complaint or grievance process
that Buban could or should have followed or pursued, and more
to the point Buban’s complaint about his treatment by Gurich in
the referral process would have to go through the very admin-
istration with which he was at political odds and whose conduct
produced his claim of discrimination and unfair treatment. In
my view, this was not a matter clearly or plainly internal.
Moreover, in my view, under the circumstances any complaint
Buban might have filed against his perceived perpetrator would
have been an exercise in futility. Be that as it may, on the au-
thority of NLRB v. Marine & Shipbuilding Workers (United
States Lines Co.).57 Buban was under no obligation to pursue
and follow any pertinent internal rules and procedures of Local

56 In its initial answer, the Respondent asserted in six enumerated
paragraphs affirmative defenses. In its amended answer, the Respond-
ent asserted in eight enumerated paragraphs its affirmative defenses. In
its second amended answer, the Respondent in 10 enumerated para-
graphs asserted its affirmative defenses.
57 391 U.S. 418 (1968).
200 in order to vindicate his claim that he was denied fair rep-
resentation in its operation of the referral system associated
with the Bechtel contract. I would reject this defense for these
reasons.
The General Counsel also contends that Buban’s claims are
not time barred under the Act. He notes that under Board law
the 10(b) period begins to run only after the aggrieved party
receives actual or constructive notice of the conduct constitut-
ing the alleged unfair labor practice, and in such cases has cus-
tomarily 6 months to file a charge. However, he correctly notes
that the 10(b) period can be tolled if the violations at issue are
or can be considered continuing or ongoing in nature.
It is important to note that the gravamen of Buban’s claims
against Local 200 from his first filing to the last filed lay in his
assertion that Local 200 breached its duty of fair representation
to him.
Buban filed his first charge on June 13, 2008, and alleged
Local’s failure to process a grievance relating to his September
2007 layoff. Buban’s second charge was filed on September
17, 2008, and renewed his claim regarding the Local’s handling
of his grievance and added a charge of breach of duty by failing
to refer him for work at Bechtel. So, accepting as fact that
Buban knew or should have known of a possible violation by
Local 200 regarding its handling and operation of the referral
system with respect to him, by April 14, 2008, it is clear that
he timely filed his referral system charges within a 5-month
period. Buban, of course, later filed a second amended charge
on December 10, 2008, which again included the former arbi-
tration grievance and discriminatory failure to refer him to
Bechtel, but also a new charge alleging Local 200’s failure to
allow him to inspect referral system documents. It should be
noted that in the December charges Buban stated that Local
200, from at least beginning March 2008 and continuing to
date, engaged in discriminatory conduct against him, inter alia,
by failing to put his name on the referral list, knowing that he
wished to return to work at Bechtel. Buban’s third amended
charge filed on April 29, 2009, essentially incorporated the
aforementioned charges, and stated the continuing nature of
Local 200’s unlawful treatment of him in connection with the
operation of the referral system.
Thus, on this record of the pleadings, it can hardly be gain-
said that Buban’s charges as contained in the complaint are
time barred. Even if, arguendo, some of Buban’s charges were
filed without the 6-month period, in agreement with the Gen-
eral Counsel, I would find and conclude that all are certainly
closely related to one and the other in terms of Local 200’s
alleged unlawful treatment of Buban over a period of time, and
in my view are of a continuing and ongoing nature.
I would find and conclude that Buban’s charges and the
complaint allegations related thereto are not time barred by
Section 10(b) of the Act.
Discussion and Conclusions
It is not altogether clear on this record exactly how Local
200 operated its referral service before Gurich was hired as the
business agent for the Elm Road Project by the Millonzi admin-
istration which assumed leadership after the defeat of the Bu-
ban administration in the fall of 2006. However, it is undisput-
TEAMSTERS UNION NO. 200 1861
ed that the labor agreements with Bechtel were in force and
effect prior to Gurich and that the Local did have members
working at the site prior to January 1, 2007. Commonsense
dictates a finding that these employees certainly had to be re-
ferred in some fashion.
Gurich credibly testified that at the time he undertook re-
sponsibility for the Bechtel contract, he believed that Local 200
had about 40 employees onsite and consequently started his
referral list at 41. Then there is Buban who seemingly referred
himself to the site in October 2006 when he resigned the secre-
tary-treasurer position and drove a bus from that point until
September 2007, when he was laid off.
Also, I note that no requisitions from Bechtel covering the
period prior to January 1, 2007, were adduced at the hearing.
However, the credited testimony of Bechtel’s Glynn indicates
that there was a referral system in place with Local 200 from
the inception of the Elm Road Project and that the terms of the
pertinent labor agreements governed the process.
In any case, Gurich credibly testified that when he assumed
responsibility for the Bechtel contract in January 2007, he
could find no documentation for a referral list that the inquiring
members asked about. Gurich then launched a search of the
Local’s files and queried former Buban administration officials
about the list and finding none, ultimately created his own re-
ferral list. Gurich evidently either did not search for any
Bechtel requisition forms covering the period before he as-
sumed his responsibilities for the Bechtel contract, or could not
find any; none were produced at the hearing.
In March 2007, Gurich received the first of the Bechtel req-
uisition forms for which he was responsible, but the forms al-
ready contained the names of persons whom he had not select-
ed and, in the case of one employee, did not even know. As I
view the matter, it was at this point in operation of the Local
200 referral system that a change from whatever prior practice
had existed took place, that Gurich (and Local 200) established
(to his credit) or perhaps reestablished a formal—not infor-
mal—referral system for the Bechtel project. It is clear from
the testimony of Gurich and Benvenuto that Local 200 believed
that Local 200 was solely entitled to make the referrals of Local
200 employees to the Elm Road Project and made an issue of
the matter first with Tooze, then at the jobsite when two of his
referrals were not hired, and then later filing formal grievances
over the matter. In the end, Local 200 and Bechtel agreed that
all referrals to Elm Road would be governed by the pertinent
provisions of the labor agreement in effect at the time.
It is undisputed that the contract provisions previously set
out in this decision govern the matter of employee referrals to
Elm Road. In summary, these provisions provide that Local
200 administered and controlled its referrals and only in the
event that it did not make a referral within 48 hours after
Bechtel made a request for employees, Bechtel was free to
employ applicants for employment from any source. In my
view, the terms of the contracts clearly and reasonably create an
exclusive referral system. The only limit to exclusivity was and
is the requirement that the right be exercised within 48 hours.
The time limitation in my view is in no way in derogation of
the exclusive nature of the Local’s entitlement to provide em-
ployment at Elm Road exclusively; it merely requires the Local
to exercise its right within a given time frame so that Bechtel
can assure itself that its project will be manned in a timely fash-
ion.
The next question is how did the parties actually conduct
themselves in and under the referral system. It is clear that
after their agreement, both Gurich and Bechtel (Glynn) operat-
ed precisely along the lines and dictates of the labor contracts,
that is, Bechtel submitted employee requisition forms; and
Gurich submitted names of qualified employees he believed
met the qualifications listed on the requisitions; Bechtel in prac-
tice, without exception, accepted Gurich’s submissions and
employed his referrals. Moreover, according to Glynn, Bechtel
not only never hired any applicants for Teamster jobs off the
street, but additionally directed all such applicants where ap-
propriate to Local 200 to sign up on the out-of-work list. So
consistent with the main tangents considered by the Board to
determine referral system exclusivity—the contract terms and
the conduct of the parties operating within the referral system—
Local 200 clearly at least from January 1, 2007, when Gurich
took over, to the present operated and continues to operate as
an exclusive hiring hall regarding the Elm Road Project.58
Accordingly, having determined that from at least January 1,
2007, to the present, Local 200 has operated as an exclusive
hiring hall for the Bechtel Elm Road Project, we turn to what
was and is required for its lawful operation.
Consistent with the authorities previously cited, Local 200 was
and is required to operate its exclusive hiring hall by and through
objective rules and procedures, consistently applied to all Elm
Road Project applicants because it was the sole source of em-
ployment there, at least for a 48-hour period after the submission
of an employee requisition by Bechtel.
Based on Gurich’s testimony, it seems that he did have and
employed arguably objective criteria in making referrals to
Bechtel. For instance, Gurich stated that he used seniority, or
prior experience at the project; favorable recommendations from
the general foreman; good conduct; applicant qualifications (class
A or B driving status); and willingness to do overtime as factors
governing his referrals. However, it is clear from his testimony
that he did not consistently apply these factors (such as with
Cheske, and Lyons, or Gomaz) to all applicants on the list. How-
ever, the most serious deficiency in Gurich’s administration of
the referral hall was that, as I heard the evidence, no one on or off
the referral list that he alone created knew of his referral criteria.
So even if one were to view his factors as objective, they were
neither known by word of mouth nor published in any fashion so
that applicants could determine if they were eligible for employ-
ment at Elm Road. It seems that anyone who knew of the list had
no way of knowing what to expect from Gurich as to where they

58 It should be noted that in my view, at the time he was assigned the
Elm Road Bechtel contract, Gurich evidently was faced with a some-
what chaotic situation and, to his credit, tried to bring some order and
system to the Local’s referral process. Based on his testimony at the
hearing, however, it seems he was mistaken in his understanding of
what constituted an exclusive as opposed to a nonexclusive hiring hall.
He admitted on the witness stand that essentially the instant matter
(from investigation to trial) provided him with additional education
about his statutory duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1862
stood on the list, and when and upon what terms one could be
referred out to Bechtel.
Another deficiency in Gurich’s administration of the exclu-
sive hiring hall was his resort to purely subjective criteria to
include deciding whether an employee was given a “fair shake”
while employed at Bechtel (Cheske) or deserved to be returned
to the site irrespective of misconduct at the site (Gomaz). Ap-
plicants for employment at Bechtel, especially persons with
some “history” like Buban, could not have known of this con-
sideration and therefore could be disadvantaged in the applica-
tion process. Also, Gurich, for his own reasons, did not con-
sistently, if at all, refer applicants based on their numerical
standing on his list. So if an applicant were to request his nu-
merical standing on the list, in point of fact, this did not under
Gurich’s system mean that he would be next referred out if
qualified based on his number. This again inures to the detri-
ment of applicants who normally would believe that they would
be referred out to appropriate jobs based on their place on the
list, absent other contrary rules and procedures understood and
communicated to them by the Local.
So while Gurich may be said to have employed arguably
some objective criteria in referring employees to Elm Road, he
did not in my view make his criteria known to the applicants in
any meaningful way; he applied his criteria inconsistently; and
he supplemented these criteria with subjective notions and oth-
er considerations he deemed applicable.
Thus, on bottom, I would find and conclude that Local 200,
through Gurich, breached its duty of fair representation in the
operation of its exclusive employee referral system by an in-
consistent application of arguably objective as well as clearly
subjective criteria or facts, or without informing or notifying its
membership or other applicants for employment at the Elm
Road Bechtel Project in any meaningful way of these factors or
criteria.
Turning to complaint allegations involving Buban (and other
employees similarly situated), the Local is charged first with
not honoring his request of August 22–23, 2008, to review the
referral list and all other documentation pertaining to the exclu-
sive referral system operated by it. Local 200 is also charged
with failing and refusing to refer Buban for employment at the
warehouse at Elm Road since April 2008, because he engaged
in internal union activities, to include specifically previously
holding the office of Local 200 secretary-treasurer.
The Local is further charged with failing and refusing to re-
fer since March 2008, Buban and other employees to the Elm
Road Project warehouse without using objective criteria when
selecting persons for referral there. The Local’s conduct in
these particulars as charged constitute violations of Section
8(b)(1)(A), restraint and coercion of the employees’ exercise of
their Section 7 rights, and Section 8(b)(2), causing Bechtel to
discriminate against Buban (and other employees) in violation
of Section 8(a)(3) of the Act.
As to Buban’s August 2008 information request, Gurich in-
sisted that Buban did not ask him personally for any referral
system documentation, particularly the referral list, and he did
not know whether such a request had been made by Buban to
another Local agent, and if he had known of Buban’s request,
he would have complied with it. However, in point of fact,
Buban made the referral information request of Monroe and to
date that request has not been honored. I find it immaterial that
Gurich may not have been directly requested to provide the
referral system documentation.
In my view, Gurich, as the union official or employee
charged with the operation of an exclusive hiring hall, cannot
avoid his statutory duty by hiding behind another agent. Of
course, if the Local 200 hiring hall rules and procedures, in-
cluding the referral list, were generally known or posted and
published, then this type of problem would not present itself.
That point aside, Gurich evidently elected to keep his Bechtel
referral rules, procedures, criteria, and evidently the referral list
close to his vest and in that way Buban’s request went unan-
swered.
Accordingly, no one in the Local could honor a simple re-
quest by a referral list applicant concerned about not being
referred to Bechtel because Gurich did not see it necessary to
make the rules and the list available. I note in passing that in
all likelihood there was also no documentation other than the
referral list that could have been provided to Buban at the time,
since Gurich’s criteria or referral factors were known solely to
him and were never committed to written form. However, I
would find and conclude, nonetheless, that Local 200 violated
Section 8(b)(1)(A) by not providing to Buban the requested
documentation about the employee referral system for the Elm
Road Project and that the violation is ongoing and continuing.
Turning to the remaining charges, which are somewhat simi-
lar and to an extent overlapping in that Buban essentially was
allegedly denied in April 2008 a warehouse referral because of
his having engaged in internal union activities and holding
union office, and because Gurich did not employ objective
criteria or factors in making referrals for employment at
Bechtel’s warehouse to the detriment of Buban and other em-
ployees who were similarly situated to him as early as March
2008. As I read the charges, the gravamen of the Local’s un-
lawful conduct toward Buban reposes in possible retaliation
and hostility because he engaged in internal dissident activities
and the way he ran the Local while secretary-treasurer, a possi-
ble violation of Section 8(b)(2) and (a)(3). The General Coun-
sel’s evidence and theory of liability seems to point in that di-
rection. By not employing objective criteria in making referrals
to Bechtel for warehouse positions even before Buban request-
ed that his name be placed on the out-of-work list—March
2008—Local 200 allegedly violated Section 8(b)(1)(A) with
respect to not only Buban but other employees similarly situat-
ed to him.
First, based on the requisition forms, Bechtel requested
warehouse workers on the following dates and Gurich respond-
ed with the name of a selected employee:

March 11, 2008, one employee
May 12, 2008, three employees59
September 12, 2008, one employee

Therefore, there were warehouse jobs available to Buban af-
ter April 14–15, 2008, when he asked to have his name placed

59 Gurich sent Scott Olson, Margo Bonaparte, and Arnold Cheske to
the warehouse per this requisition.
TEAMSTERS UNION NO. 200 1863
on the out-of-work list—as he said, for any job available at Elm
Road. Of course, he was not referred then or at any time sub-
sequent. On the issue of whether Gurich made referrals to the
Bechtel warehouse facilities using an objective criteria, based
on his testimony it seems that he did indeed employ a criteria
that arguably could be considered objective at least as to Ches-
ke, a former warehouse employee, but who had less seniority
than Buban.
However, as I have previously determined any criteria or
factors (objective or subjective) that Gurich may have em-
ployed to make referrals to Bechtel for any available jobs were
known only to himself; that is, they were never published or
posted at the hall or, as far as the record discloses, revealed to
any other Local 200 officials. In my view, any criteria objec-
tive or otherwise for referral that is basically secret, or at the
least not published or otherwise made available to and known
by the job-seeking membership, is tantamount to not having
one. Among the persons who were sent to the warehouse, both
Buban and Cheske had Bechtel Elm Road experience, but
Cheske had less seniority than Buban but also had prior ware-
house experience, which Buban did not. Neither Buban nor
any other members could reasonably know what criteria Gurich
would use and did use to refer Cheske out under such circum-
stances. Margo Bonaparte and Scott Olson were sent out to the
warehouse in spite of having no prior warehouse experience—
contrary to the requisition’s requirements—and according to
the credible testimony of Lyons, he had to train a man named
Anderson referred in March 2008, as well as Bonaparte in fork-
lift operation. Buban credibly testified that he had ample ware-
house type experience, especially operating forklifts, and that
Gurich should have known this. But for whatever reason,
Gurich sent totally inexperienced workers to the warehouse
instead of Buban. I might add that Gurich was not credible to
the extent he testified that he did not know Buban’s qualifica-
tions. Gurich clearly knew Buban’s class B driver qualifica-
tions, so his placing a question mark on his referral list regard-
ing Buban’s qualifications seems disingenuous.
So it seems clear that while Gurich may have employed
some arguably objective criteria in making the warehouse refer-
rals, he kept that criteria to himself and applied the criteria
secretly and applied it in any way he alone deemed fit. In the
context of the operation of an exclusive hiring hall, this ap-
proach is not permissible. I would find and conclude that with
respect to employee referrals to the Elm Road Project’s ware-
house facilities in March and April 2008, Gurich operated the
Local’s exclusive referral system without consistently employ-
ing known and published objective criteria in violation of Sec-
tion 8(b)(1)(A).
Last we turn to the Local’s claimed discrimination or the
causing thereof against Buban for his internal union activity
and holding of union office.
As previously noted, in determining unlawful discrimination
occurring in the context of union referral situations, the Wright
Line analysis is required.
First, it is to a certainty well established that Buban engaged
in internal activities as a member of Local 200, and ultimately
rose to the highest office, secretary-treasurer. It is also beyond
dispute that Gurich supported the current leadership of Local
200 which defeated Buban’s administration in a hotly conten-
tious election held in 2006, embers of which seemingly did not
die until sometime in 2007.60 Gurich was later hired as busi-
ness agent by the current leadership and was assigned the
Bechtel Elm Road Project contract and charged with handling
not only the referral process but also any grievances that may
be filed on behalf of the Local.
By his own admission, Gurich harbored some resentment of
Buban from the beginning of his tenure, believing as he stated
on the record—that Buban wrongly placed himself ahead of
other members on the referral list and in that way secured the
bus driver job at Bechtel in October 2006. When Buban was
laid off in September 2007 by Bechtel, and filed a grievance,
Gurich handled that matter. Notably even in this effort, Gurich
and Buban seemed to be at odds, given the tenor and tone of
Gurich’s letters to Buban in October and November 2007.
Notably, Gurich, in his November 27, 2007 letter to Buban,
complained about Buban’s charge of a conflict of interest on
Gurich’s part and former secretary-treasurer’s having accused
Local 200 of wrongdoing; and that Buban was not the ordinary
grievant and his grievances were not the ordinary grievances.61
It is clear to me that Gurich harbored animus against Buban on
at least three grounds: Buban’s political opposition to the Mil-
lonzi-Bennett administration that Gurich supported; Buban’s
placing himself ahead of other members for a Bechtel job when
leaving office; and Buban’s charges against Gurich and the
Local for alleged conflict of interest and wrongdoing in the
context of the Local’s handling of Buban’s grievances.
As to warehouse positions at Bechtel, Buban stated that he
was qualified to perform the available jobs there; that he had
substantial experience operating forklifts which, based on the
credible evidence, was a critical part of the job and required by
Bechtel in the requisitions. Buban’s qualifications in this re-
gard in my view are undisputed.62 The record reflects that after
Buban was placed on the referral list, Gurich referred other
Local 200 members on the referral list for warehouse positions
who were not as qualified as Buban, especially in terms of a
forklift operation. Of course, as I have found, Gurich did not
consistently apply his proffered criteria for referrals, so this
result probably was unavoidable but, nonetheless, was discrim-
inatory in effect, especially to Buban and others like him.
So, on balance, I would find and conclude that the General
Counsel fully met his Wright Line obligation, prima facie, to

60 See GC Exhs. 15–19, and 21. These documents are various cam-
paign materials and newsletters that were circulated and distributed
during the Local 200 election campaign and afterwards. Buban (and
his administration) figures prominently in these materials and often is
the subject of substantial negative criticisms by the Millonzi-Bennett
team.
61 This letter from Gurich was in response to a draft letter Buban de-
livered to the Local around October 23, 2007, which Gurich said con-
tained somewhat hysterical allegations that Local 200 was in some way
responsible for Buban’s layoff from the Bechtel project. The Novem-
ber 27 letter is contained in R. Exh. 6; the October 23 letter is contained
in R. Exh. 5.
62 Buban testified that Gurich knew or should have known of his pri-
or experience in warehouse/loading dock work, both of which require
forklift operation. Gurich did not deny this, saying only that Buban’s
driver’s qualifications (for class A) were insufficient.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1864
show that Buban was unlawfully discriminated against by
Gurich (and Local 200) by denying him a referral to the Bechtel
warehouse at Elm Road.
As to the Respondent’s defense, there seems to be little
meaningful proffered, except that Local 200 fairly operated a
nonexclusive employee referral system and, accordingly, owed
Buban no duty to refer him when he was not on the referral list,
and he had expressed no interest in going to the warehouse.
Moreover, the Respondent asserts that the persons who were
sent to the warehouse after Buban’s name was placed on the list
were ahead of him and, therefore, were rightfully sent out by
Gurich who did not harbor any animus against Buban.
I have set out at length that Local 200, through Gurich, oper-
ated an exclusive referral system which by law is required to
operate with certain formalities in order to vindicate a union’s
duty of fair representation to the membership. This was not
done in this case and Buban, who clearly was out of favor with
Gurich, if not the current Local 200 leadership, was in my mind
discriminated against by him especially with respect to refer-
ring him to a warehouse opening. Moreover, because Gurich
operated the referral system unlawfully, other employees simi-
larly situated to Buban regarding warehouse openings at
Bechtel may have also been discriminated against. I will rec-
ommend an appropriate remedy to cover such individuals.
Based on the foregoing, I would find and conclude that the
Respondent, Local 200, has not met its burden to show that
irrespective of Buban’s protected activities, it would have taken
the action complained of against him, that is, not refer him to a
warehouse job after his name was placed on the referral list in
April 2008.
CONCLUSIONS OF LAW
1. Bechtel Construction Company is and has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent, Teamsters “General” Local Union No.
200, an affiliate of the International Brotherhood of Teamsters,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent operated an exclusive hiring hall or re-
ferral system in which it referred applicants for employment
with Bechtel Construction Company, specifically its Elm Road
Power Generating Station Project at Oak Creek, Wisconsin,
beginning around January 1, 2007, and continuing to the pre-
sent.
4. The Respondent operated the exclusive hiring hall with-
out consistently using publicized and known objective criteria
or factors in referring applicants for employment in violation of
Section 8(b)(1)(A) of the Act.
5. From about April 14–15, 2008, and continuing to the pre-
sent, the Respondent failed and refused to refer for employment
at the Employer’s aforementioned Elm Road Power Generating
Station Project, specifically for available jobs at the warehouse
facilities, employee and member in good standing, Timothy
Buban (and other employees similarly situated), causing
Bechtel Construction Company to discriminate against him
(and them) in violation of Section 8(a)(3) and (b)(2) of the
Act.63
6. From about April 14–15, 2008, until the present, the Re-
spondent failed and refused to refer Buban for employment at
the Elm Road Power Generating Station, specifically the ware-
house facilities for reasons other than the failure of Buban to
tender period dues and initiation fees uniformly required for
membership in the Respondent, in violation of Section 8(a)(3)
and (b) of the Act.
7. From about April 14–15, 2008, until the present, the Re-
spondent failed and refused to refer for employment an em-
ployee and member in good standing with the Respondent,
Buban, because he engaged in internal union activities, includ-
ing serving in the elected office of secretary-treasurer, in viola-
tion of Section 8(b)(1)(A) of the Act.
8. From about March 11, 2008, the Respondent operated the
exclusive hiring hall without consistently using publicized and
known objective criteria or factors in referring applicants for
employment to the Elm Road Power Generating Station Pro-
ject, specifically for available jobs at the warehouse facilities,
in violation of Section 8(b)(1)(A).
9. From about August 23, 2008, to the present, the Respond-
ent failed to provide members and applicants for employment
pertinent information (including job referral lists, rules, polices,
and procedure notices) that would allow them to determine if
their Section 7 rights are being protected, followed, and main-
tained.
10. The unfair labor practices of the Respondent as set out
above affect commerce within the meaning of Section 2(6) and
(7) of the Act.
11. The Respondent has not violated the Act in any other
manner.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily denied
Timothy Buban referral for employment, I shall recommend
that it be ordered to make him whole for any loss of earnings or
benefits he may have suffered from about April 14–15, 2008,
through the date of this Order or the termination of the Elm
Road Project’s hiring activities for Local 200 referrals, which-
ever event is later in time,64 because of such discrimination,
less any net interim earnings, to be computed on a quarterly

63 No other such employees were identified at the hearing. I have in-
cluded this category of employees on the strength of their inclusion in
the complaint and relevant Board authorities, namely Teamsters Local
328 (Blount Bros.), 274 NLRB 1053, 1060 (1985). However, it would
be my recommendation that any such persons identified at the compli-
ance stage of the proceedings at the least must have been treated with
animus by Local 200 because of some activity connected to their exer-
cise of Sec. 7 rights, as was Buban, to be in a meaningful way similarly
situated to him as alleged in the complaint. I leave to the compliance
process the determination of such persons, if any.
64 I leave to the compliance stage of the proceedings the determina-
tion of the period of the discrimination.
TEAMSTERS UNION NO. 200 1865
basis in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as provided in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
I further recommend that the Respondent be ordered to noti-
fy Buban in writing that use of the Respondent’s referral sys-
tem will be available to him on an equal and nondiscriminatory
basis with other employees and applicants, and to so refer him;
and to take remedial action in accordance with the standards set
forth in Indian Hills Care Center, 321 NLRB 144 (1996), and
Ferguson Electric Co., 335 NLRB 142 (2001). I shall also
recommend that the Respondent be required to post appropriate
notices.
[Recommended Order omitted from publication.]