United Assoc. of Plumbers

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2003

36-CB-002437 (N.L.R.B. Feb. 10, 2003)

JD(SF)-09–03
Tualatin, OR

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

UNITED ASSOCIATION OF PLUMBERS
AND STEAMFITTERS, LOCAL 290, AFL-CIO1

and Case 36-CB-2437

THOMAS N. TASSINARI, An Individual

Linda J. Scheldrup, Esq.,
of Portland, Oregon for the General Counsel.

Stephen H. Buckley, Esq.,
(Brownstein, Rask, Sweeney and Kerr)
of Portland, Oregon for Respondent.

Daniel Dickerson, Esq.
of Portland, Oregon for Charging Party.

DECISION

Statement of the Case

John J. McCarrick, Administrative Law Judge. This case was tried before me in Portland,
Oregon, on November 19, 2002, upon the General Counsel’s complaint which alleges that
Plumbers, Steamfitters, and Marine Fitters, Local 290 affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO (Respondent) violated Section 8(b)(1)(A) of the National Labor Relations Act,
as amended, 29 U.S.C. Section 151, et seq. (Act). The principal issue presented is whether
Respondent violated the Act by refusing to provide the Charging Party, Thomas N. Tassinari
(Tassinari) with copies of dispatch records for the period of time he was a registrant on the out
of work list and with a complete copy of its hiring hall rules.

Respondents filed a timely answer and denied any wrongdoing.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the oral argument of Counsel for the General Counsel and the brief of
Respondent, I make the following

1 In its brief, Respondent moved to correct its name to Plumbers, Steamfitters, and Marine
Fitters, Local 290 affiliated with the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. The Complaint
will be amended to reflect Respondent’s correct name.

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Findings of Fact

I. Jurisdiction

The Plumbing and Mechanical Contractors Association (Association) is a multi-employer
association of employers engaged in plumbing, steamfitting and mechanical contracting work
with offices and place of business in Wilsonville, Oregon. One of its purposes is to represent
employer-members in the state of Oregon, southwest Washington and northern California in
collective bargaining with Respondent.

At all times material herein certain employer-members of the Association have duly
authorized it to represent them in collective bargaining negotiations with Respondent.

In the course of their collective business operations, employer-members of the
Association annually have combined sales of goods and services valued in excess of $500,000
and combined purchases of goods and materials valued in excess of $50,000 which are
shipped to their state of Oregon projects directly from outside the state of Oregon.

Respondent admitted and I find that the Association and its employer-members are
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act

Respondent admitted and I find that it is a labor organization within the meaning of
Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Facts

Respondent operates an exclusive hiring hall for journeymen and apprentice plumbers
and steamfitters pursuant to its agreement with the Association in Tualatin, Oregon.2 Mike
Warhurst (Warhurst) is Respondent’s business agent and dispatcher and Wendy Lively (Lively)
is Respondent’s dispatch secretary.

On January 17, 20023 Tassinari, a steamfitter and member of Steamfitters Local 250 in
Los Angeles, California, went to Respondent’s Tualatin office and registered on the B referral
list for steamfitters from neighboring states.

On about May 23, Tassinari received a letter from Respondent dated May 21. The letter
stated that Tassinari’s name was removed from the Hiring Hall Register on May 21 because:

You rejected three job offers either by turning a job offer down or not being
available to answer the Hiring Agent’s telephone call. You may re-sign the Hiring
Hall Register thirty days after the date our name was removed.

On May 24, Tassinari called Respondent and spoke with Warhurst. Tassinari asked why
his name had been removed from the hiring hall register. Warhurst replied that he did not talk
2 Respondent and the Association have been parties to a collective bargaining agreement
(agreement) effective from April 1, 1997 through March 31, 2003, covering journeymen and
apprentice plumbers and steamfitters working for employer-members of the Association..
3 All dates herein refer to 2002 unless otherwise specified.

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about these matters on the phone and Tassinari had to come to the Union office to talk about
his removal. Later that day Tassinari went to Respondent’s office in Tualatin where both
Warhurst and Lively were present. The office had a glass window about four by four feet that
separated the lobby from the working part of the office. Taped to the window were the three
page 1995 Amendments to the Rules and Regulations for the Referral and Hiring Procedures
(Amendments)4 and a two page letter dated September 27, 1995 that summarized the
Amendments. The 1995 Amendments amended the following parts of Respondent’s Rules and
Regulations for the Referral and Hiring Procedures dated September 29, 1993:

Section 2-METHOD OF HIRING PERSONNEL,
Paragraph D. THE HIRING HALL REGISTER, Subparagraph 4;

Section 3-HIRING HALL PROCEDURE,
Paragraph A. REGISTRATION

Paragraph G. PHYSICAL AVAILABILITY FOR WORK, Subparagraph 1

Paragraph J. MAINTENANCE AND LOSS OF POSITION ON HIRING
REGISTER, Subparagraph 2, Work Rejection

The Amendments also added a new Subparagraph 5 to Paragraph J.

Tassinari told Lively his name and said, “I have three strikes against me. I would like to
find out what they are.” Tassinari then asked to see the hiring hall register. Lively replied, “No, I
can’t show it to you.” Tassinari then asked Lively for copies of the three strikes. Lively looked
at Warhurst, who shook his head in the negative. Lively then said, “No, I cannot give you copies
of the three strikes.” Tassinari asked Lively if she would tell him what the hiring hall register
said so he could know what the three strikes were. Lively then told Tassinari that the three
strikes were, “On May 7 at 5:18 p.m. there is a busy signal. Strike one. May 21, message
unreturned, strike two. April 17, strike three, message unreturned.” Tassinari then asked
Warhurst if he could appeal the matter. Warhurst replied, “You can go ahead and try but
nobody has ever won.”5 On May 25, Tassinari filed an appeal of his removal from the hiring
hall register on the basis that he had not refused referrals.6

On May 28, Tassinari returned to Respondent’s Tualatin office to obtain a copy of the
hiring hall rules. Both Warhurst and Lively were present. Tassinari asked Warhurst for a copy
of the hiring hall rules and Warhurst said, pointing to the documents taped to the window, “Right
there.” After walking out of Respondent’s office briefly, Tassinari returned and asked Lively,
4 General Counsel’s Exh. 4.
5 Warhurst testified that Tassinari only asked the dates and why he was removed from the
out of work list. Warhurst said Lively told Tassinari the dates of the strikes and then showed
him the referral sheets. Warhurst denied Tassinari asked for copies of the hiring hall records.
Lively was never called as a witness. In his brief Respondent’s Counsel refers to a dismissal
letter from the Regional Director for Region 19 dated September 30, 2002, which finds in part
that Lively showed Tassinari the hiring lists. First, the letter was not offered into evidence at the
hearing and is not part of the record. Second, I am not bound by the contents of the Regional
Director’s letter from another case. Finally, there is nothing in the contents of the Regional
Director’s letter that is inconsistent with Tassinari’s testimony. I credit the testimony of Tassinari
which was given in a more detailed and complete manner than that of Warhurst.
6 General Counsel’s Exh. 3.

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“Are copies of these (hiring hall) rules available for people if they ask?” Lively replied, “I’ll find
out. I have to check with Mike (Warhurst).” Lively looked at Warhurst, who nodded his head in
the affirmative. Lively then supplied Tassinari with copies of the 1995 hiring hall rules
Amendments taped to the window. As Tassinari was leaving Respondent’s office, in the parking
lot, he found a copy of Respondent’s 19 page Rules and Regulations for the Referral and Hiring
Procedures dated April 1, 1999.7

B. Analysis and Conclusions

1. The Refusal to Provide the Job Referral Records.

In International Brotherhood of Boilermakers, Local 197 (Northeastern State Boilermaker
Employers), 318 NLRB 205 (1995), the Board concluded:

A union's duty of fair representation includes an obligation to provide access to
job referral lists to allow an individual to determine whether his referral rights are
being protected. Operating Engineers Local 324, 226 NLRB 587 (1976). Thus, a
union violates Section 8(b)(1)(A) when it arbitrarily denies a member's request for
job referral information, when that request is reasonably directed towards
ascertaining whether the member has been fairly treated with respect to
obtaining job referrals. [NLRB v. Carpenters Local 608, 811 F.2d 149, 152 (2d
Cir. 1987), enfg. 279 NLRB 747 (1986).] When a member seeks photocopies of
hiring hall information because he reasonably believes he has been treated
unfairly by the hiring hall, the union acts arbitrarily by denying the requested
photocopies, unless the union can show the refusal is necessary to vindicate
legitimate union interests. Carpenters Local 608, supra at 755-757. See also
Carpenters Local 35Construction Employers Assn.), 317 NLRB 18 (1995).

The Board in Boilermakers Local 197 found that legitimate union interests might include
preserving confidential information, overbroad or burdensome requests.

In the instant case, I have found that Tassinari made a request for job information to
establish that he had not refused work, that Respondent refused access to the job referral lists
and refused to make photocopies of the lists. Respondent argues that the information Tassinari
sought contained confidential information justifying its refusal to furnish the referral records.
However, that argument fails because according to Warhurst, Respondent has a policy of
allowing individuals to examine referral records. Under these circumstances Respondent
cannot maintain that the records are confidential. I find that in refusing to allow access to
referral records and in refusing to give Tassinari copies of the referral records, Respondent
violated Section 8(b)(1)(A) of the Act.

2. The Refusal to Provide Copies of the Hiring Hall Procedures.

A union is obligated to supply information about the hiring hall procedures and particular
individuals' places on the registrar on request Electrical Workers, IBEW Local 6 (San Francisco
Electrical Contractors Association), 318 NLRB 109, 124-125 (1995); Electrical Workers IBEW
Local 575 (Coleman Electric), 270 NLRB 66 (1984); Bartenders Local 165 (Nevada Resort
Assn.), 261 NLRB 420 (1982); Operating Engineers Local 324 (Michigan Chapter, AGC), 226
NLRB 587 (1976). The Board goes further and finds a statutory obligation to "give applicants
7 General Counsel’s Exh. 5.

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for employment adequate notice of its hiring hall procedures," Electrical Workers IBEW Local 11
(Los Angeles NECA), 270 NLRB 424, 426 (1984). In IBEW Local 6, supra at page 134 the
Board affirmed the administrative law judge’s test for determining when a union must inform
hiring hall users of hiring hall procedures:

I find the Union's duty to make reasonable efforts to inform hiring hall users of all
aspects of hiring hall operations turns on a simple test of relevancy. Is the
information respecting the particular aspect of the hiring hall operation in
question necessary to the hiring hall users' intelligent utilization of the
employment referral system? If so, the union operating the hiring hall must make
reasonable efforts to inform the users of the necessary information.

Reasonableness is a factual question which will of course be judged in context. .
. . There is no limit on the rules, practices, or procedures of any kind which must
be disclosed so long as their disclosure is reasonably necessary to the hiring hall
users to allow intelligent use of the hiring hall system. The test is one of the hiring
hall users' need for the information, not the form or type of information involved.
Hiring halls dispense or allot employment opportunities, i.e., jobs. The obtaining
of employment is serious business and information respecting the obtaining of
employment through the hiring hall process--from commencement of that
process through to the conclusion--is of critical importance to hiring hall users to
obtain desired employment.

Tassinari requested and Respondent provided him with the 1995 Amendments to the
hiring hall rules. At no time was Tassinari furnished with a complete, current copy of all the
hiring hall procedures. Respondent contends it had no obligation to furnish Tassinari with a
complete set of hiring hall rules since all he requested was the 1995 Amendments. This
argument is without merit. By posting the 1995 Amendments on Respondent’s office window
and referring to them as the hiring hall rules, Respondent created the impression that these
were the complete and current rules then in effect. In fact the 1995 Amendments had been
superceded by the 1999 rules. The 1999 rules contained provisions relevant to Tassinari’s
intelligent utilization of the hiring hall that were not in the 1995 Amendments, including rules
dealing with layoff priorities, appeals process, definitions of work availability, order of
registration, requirements that the work registers were available for inspection by registrants,
limitation of work availability to special skills and hours registrants needed to be available for
work referral. Tassinari was entitled to a complete copy of the 1999 hiring hall rules not merely
a partial set of amendments. By failing to provide Tassinari with a complete and current set of
hiring hall procedures, Respondent violated Section 8(b)(1)(A) of the Act.

Conclusions of Law

1. Respondent is a labor organization within the meaning of Section 2(5) of the Act.

2. The Plumbing and Mechanical Contractors Association, a multi-employer association
of employers and its employer-members, are employers affecting commerce within
the meaning of Section 2(2), (6) and (7) of the Act.

3. By refusing to provide Thomas Tassinari with access to referral records, by refusing
to provide copies of referral records and by refusing to provide copies of current
hiring hall procedures, Respondent breached its duty of fair representation and
engaged in conduct that violated Section 8(b)(1)(A) of the Act.

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4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.

The Remedy8

Having found that Respondent engaged in serious unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and
desist from said unlawful acts and conduct and to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. Respondent shall be ordered to provide
Thomas Tassinari with access to and copies of referral records for the periods of time he was
on the out of work list and provide him with a current copy of Respondent’s hiring hall
procedures.

On the above findings of fact and conclusions of law and on the entire record, I issue the
following recommended 9

ORDER

Respondent, Plumbers, Steamfitters and Marine Fitters, Local 290 affiliated with the
United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, Tualatin, Oregon, its officers, agents, and
representatives, shall

1. Cease and desist from

(a) Arbitrarily denying requests for photocopies of referral records from employees
who are registered for referral from its exclusive hiring hall and who reasonably
believe they have been improperly denied referrals.

(b) Arbitrarily denying requests for copies of current and complete hiring hall rules
from employees who are registered for referral from its exclusive hiring hall.

(c) In any like or related manner restraining or coercing 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.
8 In the Complaint the General Counsel has sought a broad remedy, including an order that
Respondent post on bulletin boards maintained by contractors bound to the Agreement, a copy
of the Board Notice in this matter. The record does not support such a broad remedy. Only
Charging Party was affected by Respondent’s unfair labor practices. There is no evidence of
widespread refusal to provide hiring hall records or procedures as in Electrical Workers, IBEW
Local 6, supra. Posting a Board Notice at Respondent’s facility in Tualatin, Oregon where the
unfair labor practices took place, should be sufficient notice to employees and members to
remedy the unfair labor practices committed.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.

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(a) Honor Thomas N. Tassinari's request for photocopies of referral records on
payment of reasonable costs for those photocopies or, alternatively, allow him to
photocopy those records.

(b) Honor Thomas N. Tassinari’s request for complete and current hiring hall rules.

(c) Within 14 days after service by the Region, post at its hiring hall in Tualatin,
Oregon copies of the attached notice marked “Appendix.”10 Copies of the notice,
on forms provided by the Regional Director for Region 19, after being signed by
the Respondent's authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the
pendancy of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since May 24, 2002.

(d) Notify the Regional Director in writing within 20 days from the date of this Order
what steps the Respondent has taken to comply.

Dated, San Francisco, California, this 10th day of February.

_____________________
John J. McCarrick
Administrative Law Judge

10 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(SF)-09–03
Tualatin, OR
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 violated 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 for you on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT arbitrarily deny requests for photocopies of referral records from employees who are
registered for referral from our exclusive hiring hall and who reasonably believe they have been
improperly denied referrals.

WE WILL NOT arbitrarily deny requests for complete and current copies of hiring hall rules from
employees who are registered for referral from our exclusive hiring hall.

WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

WE WILL honor Thomas N. Tassinari’s request for photocopies of referral records on payment of
reasonable costs for those photocopies or, alternatively, allow him to photocopy those records.

WE WILL honor Thomas N. Tassinari’s request for complete and current copies of our hiring hall rules.

UNITED ASSOCIATION OF PLUMBERS AND
STEAMFITTERS, LOCAL 290, AFL-CIO
(Labor Organization)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.

601 SW 2nd Avenue, Suite 1910, Portland, Oregon 97204-3170
(503) 326-3085, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
(206) 220-6284 OR THE OFFICER-IN-CHARGE OF SUBREGION 36, (503)-326-3289.