Carpenters Local 35 (Construction Employers Assn.)

National Labor Relations Board - Board Decisions

Apr 26, 1995

317 N.L.R.B. 18 (N.L.R.B. 1995)

18
317 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Member Browning agrees with the judge’s finding that Charging
Party Blanton, a member of the Respondent, reasonably believed that
he had been discriminatorily denied referrals from the Respondent’s
exclusive hiring hall. Accordingly, she agrees that Blanton has a
right to copies of the requested hiring hall information. See Car-
penters Local 608 (Various Employers), 279 NLRB 747, 757 (1986),
enfd. 811 F.2d 149, 152 (2d Cir. 1987). She does not rely on the
judge’s citation to Operating Engineers Local 513 (Various Employ-
ers), 308 NLRB 1300, 1303 (1992), which suggests ‘‘that it is
enough to establish a right to hiring hall information that the appli-
cant [in good faith] simply wishes to see it.’’
1 Unless stated otherwise, all dates occurred in 1993.
2 The motion to strike portions of Respondent’s brief is denied.
Carpenters Local Union No. 35, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO (Construction Employers Associa-
tion of California) and John Blanton. Case 20–
CB–9313
April 26, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On November 22, 1994, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
1. Prior to the conclusion of the General Counsel’s
case in chief, the General Counsel moved to amend the
complaint to allege that the Respondent unlawfully re-
fused to permit Charging Party John Blanton to make
copies of the requested hiring hall information. The
judge granted the motion on the grounds that the Re-
gion’s notification to the Respondent of the determina-
tion to issue complaint and the General Counsel’s
opening statement made clear that the refusal to make
copies was at issue, and that the Respondent was not
surprised or prejudiced by the amendment. The Re-
spondent excepts to the judge’s ruling on the ground
that it was prejudiced by the change in the General
Counsel’s legal theory. We disagree.
In addition to the judge’s reasoning, we observe that
the amendment was closely related to the timely filed
charge in that they both arose from the same factual
circumstances, involved the same legal theory and de-
fenses, and alleged a violation of the same section of
the Act. The Respondent’s refusal to permit copying
was fully litigated at the hearing, both in the Respond-
ent’s cross-examination of the General Counsel’s wit-
nesses and in the Respondent’s presentation of evi-
dence. Thus, the Respondent has failed to show that it
was prejudiced by the judge’s granting of the General
Counsel’s motion to amend the complaint. See Chil-
dren’s Mercy Hospital, 311 NLRB 204 fn. 2 (1993).
2. The Respondent has also excepted to the judge’s
denial of its request to recuse Region 20 from handling
this proceeding. We find the judge’s ruling proper.
The Respondent contends that Supervisory Attorney
Ralph Muller is both the brother-in-law of General
Counsel witness Endriulaitis and the supervisor to
counsel for the General Counsel Mary Vail. The record
shows that Muller did not participate in the investiga-
tion of the case or in the Region’s decision to issue
complaint. When it appeared that Endriulaitis might be
used as a General Counsel witness, Muller imme-
diately recused himself from supervising Vail and from
further participation in the case. Accordingly, we find
that there was no impropriety on the part of the Region
and deny the Respondent’s request to have the Region
recused from this matter.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carpenters Local Union
No. 35, United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, San Rafael, California, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
Mary Vail, Esq., for the General Counsel.
Paul D. Supton (Van Bourg, Weinberg, Roger & Rosenfeld),
of San Francisco, California, for the Respondent.
John Blanton, of San Rafael, California, appearing pro se.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in San Francisco, California, on March 22,
1994. On July 1, 1993,1 the Acting Regional Director for Re-
gion 20 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing, based on an unfair
labor practice charge filed May 20, alleging violations of
Section 8(b)(1)(A) of the National Labor Relations Act, 29
U.S.C. § 151 et seq. (the Act). All parties have been afforded
full opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, and to file briefs.2 Based on
the entire record, on the briefs that were filed, and on my
observation of the demeanor of the witnesses, I enter the fol-
lowing
19CARPENTERS LOCAL 35 (CONSTRUCTION EMPLOYERS ASSN.)
3 Blanton, himself, had never previously sued Respondent, al-
though he then had a civil suit pending against its former financial
secretary and senior business agent.
FINDINGS OF FACT
I. JURISDICTION
At all material times Construction Employers Association
of California (the Association) has been an organization com-
posed of various employers engaged in the construction and
building trades. One purpose of the Association is to rep-
resent its employer-members in negotiating and administrat-
ing collective-bargaining contracts with various labor organi-
zations. At all material times employer-members of the Asso-
ciation have authorized it to represent them in negotiating
and administering collective-bargaining contracts with var-
ious labor organizations, including Carpenters 46 Northern
California Counties Conference Board, United Brotherhood
of Carpenters and Joiners of America (AFL–CIO) (California
Conference Board), an unincorporated organization com-
prised of constituent local unions which it represents, as one
purpose of its existence, in dealing with employers concern-
ing terms and conditions of employment for employees who
are members of or represented by those constituent local
unions.
In the course and conduct of the above-described business
operations during calendar year 1992, employer-members of
the Association collectively purchased and received at their
California facilities directly from points outside of California
goods valued in excess of $50,000. Therefore, I conclude, as
admitted in the answer of Carpenters Local Union No. 35 to
the complaint, that at all material times employer-members
of the Association collectively have been engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times Carpenters Local Union No. 35,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO (Respondent) has been a labor organization within
the meaning of Section 2(5) of the Act and, further, has been
one of the constituent local union members of California
Conference Board.
III. ALLEGED UNFAIR LABOR PRACTICES
During 1988 the Association and California Conference
Board, on behalf of their respective members, entered into a
collective-bargaining contract, effective from April 1, 1988,
through June 15, 1993. Section 49 of that contract sets forth,
as the complaint alleges and answer admits, ‘‘an exclusive
hiring provision . . . requiring, inter alia, that Respondent
operate a hiring hall and be the sole and exclusive source of
referrals of employees to employment with the employer-
members of the Association for work when the work [is
within the] geographic jurisdiction of Respondent.’’
The Charging Party, John Blanton, has been a carpenter
since 1979 and a member of Respondent since 1985. He tes-
tified that he had been out of work in April and had been
registered on the out-of-work list maintained in the hiring
hall operated by Respondent, pursuant to section 49 of the
above-described contract, ‘‘[a]s of the spring of 1993[.]’’ By
letter dated May 4, Blanton and six other ‘‘members of [Re-
spondent] and registered on the ‘Out of Work List’ . . . or
. . . forced, by lack of work coming out of [Respondent’s]
hiring hall, to seek registration on another Local ‘Out of
Work List,’ respectfully request the following documents[.]’’
Requested in the letter was enumerated information ‘‘pertain-
ing to the functioning of [Respondent’s] hiring hall[.]’’ There
is no need to further describe information in that category
which the letter requested, since there is no contention that
the information encompassed by that aspect of the May 4 let-
ter had been withheld from the letter signers. Instead, the
complaint focuses on the information sought in the succeed-
ing portion of their letter.
The letter continues by asserting, inter alia, ‘‘I have good
faith and reason to believe I have been, and am being dis-
criminated against by [Respondent] in job referrals,’’ and,
to determine whether I have been or am being discrimi-
nated against, I seek information concerning the identity
of persons on the [Respondent’s] job referral list(s), and
of the persons who have been referred to jobs, as well
as dates the said persons who have been referred to
jobs, as well as the dates of referral, dates of hire, and
date of last preceding discharge.
Please forward to me by ‘‘Return Mail’’ the names,
addresses and telephone numbers or [sic] all persons
who, during the past six months, have asked to be re-
ferred to jobs by [Respondent], or have asked that their
names be placed on a list for job referral, together with:
(A) The date or dates of each request.
(B) The date or dates of each subsequent referral of
such person to a job, including the name of person so
referred, the name of the employer to whom referred,
and identification of the job site to which referred.
(C) The date or dates of each hire and of any subse-
quent layoff or discharge, including the name of the
person hired and/or laid off, the name of the employer,
and the identification of the job site.
I shall, of course, be prepared to pay a reasonable
cost for reproducing the information requested.
We respectfully request, as trade unionists, that cop-
ies of all these documents be mailed to each of us indi-
vidually at the address listed below next to our name,
and that requested information be mailed no later than
May 27, 1993.
It is undisputed that Respondent received the letter.
Nor is it undisputed that shortly afterward Blanton partici-
pated in a conversation with Paul M. Cohen, then president
of Respondent and, for purposes of this proceeding only, an
admitted agent of Respondent within the meaning of Section
2(13) of the Act. During that conversation, which was placed
on May 10, the complaint alleges that Respondent violated
Section 8(b)(1)(A) of the Act because Cohen allegedly ‘‘told
Blanton he would not be furnished the information because
he had concertedly with fellow employee/members filed a
grievance and lawsuit against Respondent.’’
As to that allegation, Blanton testified that Cohen had
said, ‘‘You guys who signed this aren’t going to get this in-
formation. There’s two guys here, John and Robin, who sued
the union for 8,000 bucks, and all you want this information
for is to sue the union.’’3 Cohen testified that he had partici-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pated in more than one May conversation with Blanton. In
one of them, testified Cohen, he had said, ‘‘we were not
going to respond to their request. They could come in and
examine the documents.’’ When Blanton said, ‘‘so you’re
not going to respond to our request,’’ according to Cohen,
he had replied, in essence, ‘‘I’m not going to give you this,
so that you can go on a fishing expedition.’’
Yet, as his testimony regarding this conversation pro-
gressed further, Cohen’s account began to correspond more
and more closely to the above-quoted one by Blanton. Asked
if he had said ‘‘anything to the effect that you weren’t going
to give him the records because he had filed grievances or
because he had sued the union, or words to that effect,’’
Cohen answered equivocally, ‘‘I don’t believe so.’’ Asked
next if anything further had been said during that conversa-
tion, Cohen acknowledged, ‘‘I believe I may have said some-
thing about previous lawsuits.’’ Questioned further, Cohen
conceded ultimately:
I said that I wasn’t—I repeated—I mean, essentially
the same thing I had said when I said I’m not going
to let him go on a fishing expedition. I’m not going to
let him look for an excuse—I’m not going to give him
this to look for an excuse to file more lawsuits against
the local.
Eventually Cohen responded to the May 4 letter with iden-
tically worded letters of his own, sent to each of the May
4 letter signers. That letter, dated June 1, states, in pertinent
part:
This is in response to your request for information
submitted to me by letter dated May 4, 1993.
Persons who utilize [Respondent’s] hiring hall for
the purposes of seeking employment are entitled to re-
view the out-of-work list and the dispatch records for
a period of six months preceding the request. You are
not entitled to copies of any of the documents, but you
are free to make notes from any of the documents you
review. No material may be removed from the premises
of [Respondent]. If you wish to take advantage of this
and review these documents, please call and make an
appointment so that we can be sure a business rep-
resentative will be available.
In addition, Respondent has taken the firm position, through-
out the period encompassed by this proceeding, that address-
es and telephone numbers of hiring hall registrants are con-
fidential and will not be revealed.
With regard to the absolute refusal to disclose addresses
and telephone numbers, the General Counsel alleges and ar-
gues that it constitutes an unlawful refusal to provide infor-
mation, in violation of Section 8(b)(1)(A) of the Act. As to
the above-quoted portion of Cohen’s June 1 letter, the Gen-
eral Counsel argues that Respondent’s refusal to furnish cop-
ies of documents enumerating hiring hall registrations for
dispatch and referrals also violates Section 8(b)(1)(A) of the
Act. That latter argument however had bred a procedural, as
well as a substantive, dispute.
Subparagraph 7(c) of the complaint described Respond-
ent’s allegedly unlawful conduct, in connection with the in-
formation request, in these terms: ‘‘had failed and refused to
furnish Blanton with the information.’’ As to addresses and
telephone numbers, that is surely a complete description. As
to the hiring hall records of registrations and referrals, that
allegation however makes no mention of a failure to furnish
copies. Yet, the General Counsel’s brief make plain that a re-
fusal to make or allow copies is the only unlawful conduct
being alleged with regard to that aspect of this case: because
Respondent ‘‘refused to allow Blanton to make copies of cer-
tain hiring hall dispatch records.’’
Before resting at the conclusion of her case-in-chief, coun-
sel for the General Counsel moved to amend subparagraph
7(c) of the complaint—‘‘largely for clarity purposes,’’ she
represented—to add, ‘‘and refused to permit Blanton to make
copies of same information.’’ Respondent’s counsel opposed
the motion, arguing that, ‘‘It’s a change in the theory, and
it comes at a time when I’ve put on a major portion of my
case, both in argument and in examining adverse witnesses,’’
although he allowed that, ‘‘I know you’re going to grant it,
because it’s routinely granted.’’ In fact, I did so. In his brief,
Respondent’s counsel however requests that I revisit that rul-
ing and reverse it on the ground that the motion to amend
had been too belated, being made ‘‘only after General Coun-
sel ha[d] finished eliciting evidence and after cross-examina-
tion ha[d] concluded.’’
I decline to reverse my ruling. As counsel acknowledged,
a motion to amend a complaint made during a hearing is not
an extraordinary event. Section 102.17 of the Board’s Rules
and Regulations specifically allows such motions to be made
even ‘‘after the case has been transferred to the Board,’’ fol-
lowing issuance of administrative law judges’ decisions. Cer-
tainly Section 102.17 does qualify ability to amend com-
plaints by requiring that such motions be granted ‘‘upon such
terms as may be deemed just,’’ and in different cir-
cumstances Respondent might be able to prevail on the basis
of that qualification. Here a review of the record however
discloses that an allegation predicated on refusal to allow
copying had not been so surprising as Respondent seeks to
portray.
In the third sentence of her opening statement, made be-
fore any witness had been called, counsel for the General
Counsel stated expressly that, ‘‘The pertinent part of the in-
formation request is the request for six months of dispatch
records and the opportunity to go to the hall, photocopy
them, and tender to the union photocopying costs associated
with reproduction of the six months of dispatch records.’’
This had not been the first notice to Respondent that copying
was a central aspect of the instant case. In a letter dated June
22 to one of Respondent’s counsel (R. Exh. 10), the Re-
gional Office gave notice that, as a result of an agenda, ‘‘It
was determined that the Region will issue complaint on July
2, 1993 on the Union’s refusal to allow the Charging Party
and others to make photocopies of the requested written in-
formation upon payment of reasonable costs.’’ Indeed, in a
reply letter dated June 28 (R. Exh. 9), counsel replied: ‘‘The
records you are talking about do contain personal informa-
tion which is confidential and privileged. For that reason it
may not be copied without the consent of the members
whose information is in question.’’
Obviously, the complaint’s description of the alleged un-
lawful conduct might have been pled with greater care. Yet,
‘‘it is settled law that particularity of pleading is not required
of a complaint issued by the Board.’’ (Citations omitted.)
Bob’s Casing Crews, Inc. v. NLRB, 458 F.2d 1301, 1304–
21CARPENTERS LOCAL 35 (CONSTRUCTION EMPLOYERS ASSN.)
4 Nor am I authorized, in the circumstances presented here, to
make any finding regarding the asserted impropriety of the Regional
Office’s handling of this case in light of the fact that one of the May
4 letter signers, Walter Endriulaitis, is a brother-in-law of a super-
vising attorney in Region 20. Endriulaitis may or may not have
boasted to other employees about the relationship, in an effort to en-
hance his own stature with them. But there is no showing of pros-
ecutorial misconduct by the supervising attorney, nor by other Re-
gional personnel, that can be said to adversely affect Respondent in
the investigation and prosecution of the very narrow, and largely ad-
mitted, facts underlying the allegations at issue. As a general propo-
sition it may be that Regional handling of such situations should be
subject to greater restrictions and to a requirement that charged par-
ties be given notice of familial relationships in particular cases. I
have no authority however to dictate to the General Counsel how to
process investigations, so long as there is no resulting misconduct
or interference with a respondent’s right to a fair hearing. As stated,
there is no basis for concluding that one or the other of those situa-
tions occurred here.
5 Obviously, there are differences between those two courses. But
in the circumstances presented in the instant case, there is no distinc-
tion between them for purposes of evaluating whether or not Re-
spondent violated the Act.
6 It is to that very area which Respondent has looked in making
some arguments advanced in its brief.
1305 (5th Cir. 1972). Here, as in that case, ‘‘even assuming
arguendo that the complaint was not sufficiently detailed to
put [Respondent] on notice . . . as to the precise facts at
issue,’’ the Regional Office’s June 22 letter and the above-
quoted portion of the General Counsel’s opening statement
identified specifically that refusal to allow copying is at issue
in the instant case. Moreover, short of argumentative general-
ities, Respondent’s argument in opposition to the amendment
makes no particularized showing of prejudice to it as a result
of granting the amendment, so that the complaint now more
precisely alleges that which has been known to Respondent
for many months before the hearing opened. Therefore, no
injustice resulted from granting the motion to amend the
complaint and I deny, in effect, the motion to reconsider and
reverse my ruling granting that motion.4
IV. DISCUSSION
As quoted in section III, supra, save for registrants’ ad-
dresses and telephone numbers, in his June 1 letter Cohen of-
fered Blanton and the other May 4 letter signers an oppor-
tunity ‘‘to review the out-of-work list and the dispatch
records for a period of six months preceding [their] request.’’
Consequently, as to those records there is no basis for con-
cluding that there had been an unlawful refusal to allow in-
spection; the only issue involving them is an alleged unlaw-
ful refusal to furnish mechanically reproduced copies of them
or to allow one or more of the letter signers to make such
copies.5
Respondent concedes that the Board has found a violation
of Section 8(b)(1)(A) of the Act where a labor organization
refused, inter alia, to duplicate or permit duplication of hiring
hall records in response to a request, with respect to hiring
hall registrants and referrals, worded identically to that re-
cited in the May 4 letter. Carpenters Local 608 (Various Em-
ployers), 279 NLRB 747 (1986), enfd. 811 F.2d 149 (2d Cir.
1987), cert. denied 484 U.S. 817 (1987). Indeed, with regard
to that portion of it, the May 4 letter had been prepared by
copying the request transmitted to Carpenters Local 608 in
that case. Thus, in preparing their request, the May 4 letter
signers relied on the precedent of Carpenters Local 608 in
requesting that they be furnished copies of Respondent’s hir-
ing records, in return for payment of ‘‘a reasonable cost for
reproducing the information requested.’’
Nevertheless, Respondent argues that, as to furnishing cop-
ies, or allowing duplication, Local 608 should not be re-
garded as precedential because, in that case, ‘‘the Adminis-
trative Law Judge presumed a right to copy was encom-
passed in the right to inspect. The Board silently adopted his
opinion.’’ At first blush that argument might appear to be an
accurate one. An examination of the Board’s remedial modi-
fication in that case however refutes any argument that the
Board did not evaluate the ‘‘right to copy’’ aspect of the
judge’s decision and, instead, merely rubber-stamped what he
had written.
In paragraphs 1(a) and (b) and 2(a) of his recommended
Order the administrative law judge specified only inspecting
and reviewing hiring hall records. In its Order the Board
modified each of those paragraphs by inserting ‘‘photocopy,
or duplicate,’’ adding also ‘‘(on payment of reasonable
costs)’’ in each instance. As a result, there is no basis for
concluding that, in Carpenters Local 608, the Board merely
‘‘adopted’’ the judge’s right-to-copy conclusion, without
independently considering that aspect of that case. To the
contrary, by the Order’s modifications the Board dem-
onstrated its consideration of that issue in most telling form.
Furthermore, the Board agreed with a like conclusion, that
a respondent labor organization had violated Section
8(b)(1)(A) of the Act by refusing to allow requested ‘‘copies
of dispatches for a specified 6-month period,’’ in the subse-
quent case of Service Employees Local 9 (Blumenfeld Enter-
prises), 290 NLRB 1, 4 (1988) (quotation from conclusions
of law section). Consequently, there is no basis for conclud-
ing that doubt exists as to whether or not the Board truly has
evaluated and resolved the issue of refusals to furnish copies
of hiring hall records to employees, or to allow employees
to make those copies, under Serction 8(b)(1)(A) of the Act.
Yet, implicit in Respondent’s above-quoted argument is
the subsidiary argument that the Board has never bothered to
explain specifically how copying, or allowing duplicating,
fits into the overall statutory scheme of hiring hall regulation
and, concomitantly, to explain why failure to do it, or to per-
mit it to be done, violates Section 8(b)(1)(A) of the Act. To
that extent Respondent voices an accurate argument, but not
one fatal to the General Counsel’s allegation here that ‘‘re-
fusal to allow Blanton to make copies’’ violates Section
8(b)(1)(A) of the Act.
In the analogous area of employer obligation to furnish
relevant information requested by employees’ bargaining
agents,6 the Board has concluded that ‘‘sound policy dictates
that required documentary information should be furnished
by photocopy.’’ American Telephone & Telegraph Co., 250
NLRB 47, 47 (1980). In reaching that result, the Board relied
on the ‘‘almost universal practice of most businesses of using
photocopying equipment in copying documents.’’ Id. In en-
forcing the Board’s photocopying conclusion, the circuit
court also relied on the ‘‘now nearly universal use of photo-
copies in business affairs,’’ Communications Workers Local
1051 v. NLRB, 644 F.2d 923, 929 (1st Cir. 1981), in con-
junction with the Supreme Court’s admonition that ‘‘respon-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sibility to adapt the Act to changing patterns of industrial life
is entrusted to the Board.’’ NLRB v. Weingarten, Inc., 420
U.S. 251, 266 (1975). In evaluating the duty to furnish re-
quested information, those underlying observations by the
Board and by the circuit court are no less applicable to labor
organizations than to employers.
Not surprisingly, given the proscriptions of those separate
subdivisions of Section 8 of the Act, there is a distinction
between policies underlying the obligation to allow employee
inspection of hiring hall records and those underlying em-
ployers’ obligation to furnish relevant information to bargain-
ing agents. The latter is rooted in the objective of promoting
the collective-bargaining process and, in consequence, there
is an obligation to exercise ‘‘‘diligence and promptness’ in
bargaining matters.’’ American Telephone & Telegraph,
supra. By contrast, labor organizations operating exclusive
hiring halls, such as Respondent, have an obligation to do so
in a manner that is neither discriminatory, nor unreasonable,
arbitrary, and invidious. See discussion Painters Local 1140
(Harmon Contract), 292 NLRB 723, 733 (1989), and cases
cited there. In consequence, ‘‘inherent in a union’s duty of
fair representation is an obligation to deal fairly with an em-
ployee’s request for information as to his relative position on
the out-of-work register for purposes of job referral through
an exclusive hiring hall.’’ Operating Engineers Local 324
(Michigan Chapter AGC), 226 NLRB 587, 587 (1976).
Yet, the distinction in those underlying policies, and in the
dimensions of obligations arising from each of them, does
not give rise to a difference in the need to furnish reproduc-
tions, or to allow copies to be made, in the two situations.
The Board is under no lesser duty to adapt the Act to chang-
ing patterns of industrial life under Section 8(b)(1)(A) of the
Act than under Section 8(a)(5) of the Act. Subject to quali-
fications discussed below, the universality of document re-
production ordinarily is no less true of common practice by
labor organizations than by employers. Moreover, the inher-
ent benefit of reviewing photocopied or otherwise mechani-
cally reproduced documents is one no less naturally enjoyed
by employees, examining copies of hiring hall records, than
is enjoyed by labor organizations, examining bargaining-re-
lated information supplied by employers.
In short, the obligation of fair dealing imposed under Sec-
tion 8(b)(1)(A) of the Act is served no less by ‘‘diligence
and promptness’’ in furnishing copies of hiring hall records
than is served by obliging employers to furnish copies of
bargaining-related information to their employees’ bargaining
agents under Section 8(a)(5) of the Act. Therefore, there is
a sound policy basis for obliging labor organizations to fur-
nish duplicates of hiring hall records on request by reg-
istrants prepared to pay the cost of doing so, as was con-
cluded in Carpenters Local 608 and in Service Employees
Local 9.
In American Telephone & Telegraph, supra, the Board
identified two limitations to its basic rule of requiring photo-
copies to be furnished: lack of photocopying equipment and,
second, undue inconvenience. As to the first one, Respondent
has not claimed that it lacks photocopying equipment. More-
over, much of the registration and referral information sought
by the May 4 letter has been loaded onto a personal com-
puter. Printouts of at least some such information are periodi-
cally posted in the hiring hall and those, or other, printouts
are inserted into binders maintained as records of Respond-
ent’s hiring hall operations. At no point has Respondent con-
tended that, by one means or another, it could not have re-
produced or duplicated, through equipment available to it,
copies of the records showing the information specified in
the May 4 letter.
Nor did Respondent adduce evidence that could support a
conclusion of undue inconvenience if obliged to make those
copies, or allow them to be made. Obviously, one source of
inconvenience could arise from time taken and effort ex-
pended by Respondent’s personnel to make the requested
copies. When testifying, Cohen however made no assertions
that could support a conclusion that time and effort by Re-
spondent’s personnel, to make duplicates, rises to a level of
undue inconvenience. Nor did he advance such an assertion
in his June 1 letter. Instead, there he simply asserted that the
May 4 letter signers ‘‘are not entitled to copies of any of the
documents,’’ without providing any statutorily acceptable
reason. Moreover, there is no contention, nor evidence to
support one had it been advanced, that Respondent would
have suffered any inconvenience by, as an alternative, per-
mitting the letter signers to use Respondent’s duplicating
equipment to make copies of those hiring hall records.
Another source of undue inconvenience might be the cost
of making copies. Yet, neither was cost asserted by Respond-
ent as a reason for not furnishing copies or for not allowing
the May 4 letter signers to make them. Inasmuch as the May
4 letter specifically offers ‘‘to pay a reasonable cost for re-
producing the information requested,’’ it would be somewhat
difficult to now rely on cost as the basis for concluding that
undue inconvenience had been created by the copying re-
quest made in it.
In its brief, Respondent does protest that compliance with
the May 4 letter’s request for copies would have obliged it
to prepare seven sets of hiring hall registration and dispatch
records, one for each of that letter’s signers. That is an accu-
rate assertion, but it is somewhat late in the day to advance
it. The letter signers had offered to pay for reasonable repro-
duction costs. Cohen made no mention whatsoever in his
June 1 letter of any burden, based on cost or on any other
factor, created by making multiple copies of the records.
Given the reproduction and collating capacity of modern du-
plicating machines and of the ability of computers to print
out multiple copies, there is no basis for finding merit in a
belatedly asserted protest about the number of sets of copies
sought by the May 4 letter.
It is accurate that Respondent offered note taking as an al-
ternative to furnishing copies of its hiring hall records. To
support the adequacy of that proposed alternative, it cites
Roadway Express, 275 NLRB 1107 (1985). But that case in-
volved a request for ‘‘a single-page letter which could be
easily read and understood in a matter of minutes.’’ That was
the reason that the Board distinguished the photocopy re-
quirement of American Telephone & Telegraph, supra, from
the situation presented in Roadway Express. By contrast, as
Respondent concedes, many more than merely a single docu-
ment is encompassed by the May 4 letter’s request. Accord-
ingly, the holding of Roadway Express—and of Abercrombie
& Fitch Co., 206 NLRB 464 (1973), involving a request for
copies of 3-1/2 pages of ‘‘uncomplicated records’’—is not
pertinent to the situation presented by the request for copies
of hiring hall records for a 6-month period.
23CARPENTERS LOCAL 35 (CONSTRUCTION EMPLOYERS ASSN.)
Beyond that, as an objective matter, note taking is not in-
herently an adequate substitute for mechanical reproduction
nor for computer printouts of those records. ‘‘In no reason-
ably foreseeable set of circumstances could it be said that
handcopying is superior to photocopying in terms of effi-
ciency and reliability of duplication.’’ Communications
Workers Local 1051 v. NLRB, supra, 644 F.2d at 929. In
fact, Respondent has made no showing that note taking—
which is, after all, a form of handcopying, a synonym ex-
pressly used to describe it in Respondent’s brief (subsec. H
on p. 24)—would be more efficient or would yield a more
accurate product than mechanical reproduction of its hiring
hall records.
It should not pass unnoticed that a complete and accurate
evaluation of hiring hall operations during a 6-month period
requires review and comparison of a number of documents.
Anyone attempting to conduct it will have to cross-reference
and, probably, re-cross-reference a number of documents to
reach accurate and reliable conclusions concerning the pro-
priety of each dispatch or referral during that period. In no
sense can it be said that such an examination at Respondent’s
hiring hall, even with note taking allowed, ‘‘is superior to
[doing so from mechanically reproduced copies] in terms of
efficiency and reliability[.]’’ Id.
Furthermore, the proposed note taking alternative inher-
ently obliges the May 4 letter signers to conduct their evalua-
tion under the watchful eyes of Respondent’s officials, who
may or may not become eventual objects of alleged dispatch-
ing improprieties. That concern is not an abstract one in the
circumstances presented by the instant case. As described in
section III, supra, on first receiving the May 4 letter, Cohen
concededly had warned that he was ‘‘not going to let
[Blanton] go on a fishing expedition’’ by ‘‘giv[ing] him this
to look for an excuse to file more lawsuits against’’ Re-
spondent. Of course, an unfair labor practice charge is natu-
rally encompassed by the term ‘‘lawsuit.’’ And it is one
means by which employees can secure relief from hiring
halls being operated in a discriminatory fashion or in a man-
ner that is unreasonable, arbitrary, or invidious. Therefore,
telling an employee that he/she may not have access to hiring
hall records because what they disclose may lead that em-
ployee to file lawsuits naturally tends to restrain or coerce
that employee’s ability to engage in activity protected by the
Act. It thereby violates Section 8(b)(1)(A) of the Act.
It should also be pointed out that the note taking alter-
native hardly represents less of a burden even for Respond-
ent, itself, than does mechanical reproduction. For the court’s
disposal of that type of suggested alternative in the context
of an alleged violation of Section 8(a)(5) of the Act is aptly
applied to Respondent’s note taking proposal; ‘‘Common
sense suggests that the burden of permitting photocopying
will never exceed that of overseeing union [here, employee]
scribes.’’ Communications Workers Local 1051 v. NLRB,
supra.
In addition to the foregoing defenses directed to the gen-
eral obligation to provide duplicates, Respondent advances
certain additional defenses tailored to the facts of this par-
ticular case. First, it contends that the information sought by
the May 4 letter had not been adequately described or identi-
fied. But at no point in his June 1 letter did Cohen assert
that he did not understand which documents the May 4 letter
signers were asking to have copied. Nor, though he spoke
with each one of them about their request, is there evidence
that Cohen ever verbally expressed any lack of understanding
as to which documents they sought to inspect and have cop-
ied. To the contrary, the letter signers were invited to inspect
the identified documents in Respondent’s hall and to take
whatever notes they desired. That invitation is hardly consist-
ent with a contention, now advanced for the first time, that
Respondent had been unable to understand what information
was being sought.
To be sure, by its terms, that portion of the May 4 letter
describing documents to be copied and produced is not whol-
ly unambiguous. Nevertheless, the Board has upheld the suf-
ficiency of identically worded requests in Carpenters Local
608, supra, and in Service Employees Local 9, supra. Fur-
thermore, even had Respondent truly not understood all as-
pects of that request, it had every opportunity to elicit clari-
fication during the period after receipt of the May 4 letter.
It simply cannot lie silently in the weeds awaiting a hearing
on its refusal to provide information and, then, suddenly
spring out protesting the clarity of the request’s wording.
Second, Respondent accuses Blanton of bad faith in hav-
ing made the request. Yet, as set forth in section III, supra,
as of May 4 Blanton had been registered for dispatch from
Respondent’s hiring hall. He testified, without contradiction,
that he had been out of work. He had been led to believe
that there was an upcoming project—construction of a jail in
San Rafael, California—on which would be working contrac-
tors and subcontractors employing personnel dispatched from
Respondent’s hiring hall. Whether that information was or
was not truly accurate, it afforded Blanton with a basis for
believing that dispatches to that project would be forthcom-
ing from Respondent’s hiring hall. That belief, which there
is no basis for concluding that Blanton had formulated in
other than good faith, gave rise to a natural interest ‘‘as to
relative position on the out-of-work register for purposes of
job referral through an exclusive hiring hall.’’ Operating En-
gineers Local 324, supra.
Even if Blanton’s concern had not been tied to dispatch
to a particular job, his request, and those of other May 4 let-
ter signers, would not thereby be invalidated for lack of
‘‘reasonable belief’’ that he had been discriminated against
in dispatching which had occurred. Furthermore, the Board
relatively recently agreed with the conclusion ‘‘that it is
enough to establish a right to hiring hall information that the
applicant simply wishes to see it.’’ Operating Engineers
Local 513 (Various Employers), 308 NLRB 1300, 1303
(1992). As that decision goes on to point out, that wish to
inspect is a consideration wholly separate from the issue of
good faith.
Respondent’s bad-faith accusation appears aimed primarily
at the letter signers’ failure to accept Cohen’s offer to inspect
the requested records at Respondent’s hiring hall and, there,
to take notes and, second, at Blanton’s later request for the
same records, but for a 3-year period, when he had not even
inspected the records already made available to him under
the terms of Cohen’s June 1 letter. No allegation however
has been made on the basis of Blanton’s subsequent 3-year
information request. Accordingly, that is a matter wholly col-
lateral to the issue arising from the request made on May 4.
As to the letter signers’ failure to respond to Cohen’s June
1 offer, as concluded above, that offer did not provide the
information in the form requested and to which the letter
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signers were entitled. To the contrary, it denied the request
for copies. Consequently, those employees could not be
obliged to accept less than that to which they were entitled
under the Act. And their unwillingness to do so hardly evi-
dences a lack of good faith. In fact, given Cohen’s then re-
cent pronouncement about not allowing inspection of hiring
hall records as a means for filing a lawsuit against Respond-
ent—never retracted, so far as the record discloses—there is
no basis for attributing bad faith to Blanton for not trying to
inspect registration and dispatch records in the hiring hall
under the watchful eyes of Cohen and other officials and em-
ployees of Respondent.
Third, Respondent contends that it had no custody of some
requested records. Yet, at no point did Cohen, or any other
official of Respondent, make such a statement to Blanton or
to the other letter signers. To the contrary, that contention
appears to be contradicted by Cohen’s June 1 offer to allow
the letter signers to inspect the records requested in their
May 4 letter to Respondent. In any event, Respondent is not
obliged to produce that which it does not possess. It however
is obliged to say so when it receives a request for records
over which it has no control.
Fourth, Respondent contends that some records were not
in the form requested by the May 4 letter. Again, that con-
tention tends to be contradicted by Respondent’s failure to
tell that to the letter signers, on receipt of their request, and,
moreover, by its invitation to inspect at the hiring hall the
seemingly very records which it now contends that it does
not possess in the form requested. Again, Respondent is no
more obliged to re-format records than it is to create records
which it does not possess. But it is obliged to level with em-
ployees making a proper request for information.
Therefore, I conclude that by refusing to furnish copies or
duplicates of hiring hall records requested by the May 4 let-
ter, Respondent violated Section 8(b)(1)(A) of the Act. Fur-
thermore, I conclude that it violated Section 8(b)(1)(A) of the
Act by refusing, altogether, to provide addresses and tele-
phone numbers of registrants on its out-of-work list.
In Operating Engineers Local 324, supra, the Board con-
cluded that the respondent labor organization had violated
Section 8(b)(1)(A) of the Act by refusing to disclose, inter
alia, addresses and telephone numbers of hiring hall reg-
istrants. Further, addresses and telephone numbers of reg-
istrants were among the information encompassed in Car-
penters Local 608, supra. With specific regard to disclosure
of addresses and telephone numbers, the circuit court pointed
out that ‘‘dissidents will need this information to verify the
accuracy of hiring hall records’’ in NLRB v. Carpenters
Local 608, supra, 811 F.2d at 154.
To be sure, the court added that the Board could have con-
sidered alternatives for providing that same information. But
it did not direct the Board to do so. And the Board has not
subsequently reversed its position that addresses and tele-
phone numbers of hiring hall registrants must be disclosed,
on receipt of a proper request for them, though it has been
presented with the opportunity to do so, had that been its dis-
position. Operating Engineers Local 513 (Various Employ-
ers), supra. This case would appear to be an inopportune oc-
casion for doing so, in light of Cohen’s unretracted warning
that he did not intend to allow Blanton to go on a fishing
expedition through Respondent’s records ‘‘to look for an ex-
cuse to file more lawsuits against’’ it.
I pointed out above that there is no obligation to create
records which a labor organization does not ordinarily main-
tain. Moreover, there may be some situations where it would
be an undue inconvenience to present information. Respond-
ent has presented no evidence however that either of those
situations existed and presented a problem for providing ad-
dresses and telephone numbers of persons referred from its
hiring hall during the 6-month period prior to May 4. Con-
sequently, these are not considerations that need be further
addressed in the context of the instant case.
Respondent does contend that addresses and telephone
numbers are barred from disclosure by its International
body’s constitution and laws (R. Exh. 6, p. 63). Yet, as
pointed out above, production of such information is needed
‘‘to verify the accuracy of hiring hall records,’’ NLRB v.
Carpenters Local 608, supra, and, accordingly, their disclo-
sure is a necessary incident of Respondent’s overall statutory
duty to deal fairly with requests for hiring hall information
by employees, to ensure that hiring hall operations are not
being conducted discriminatorily, nor in an unreasonable, ar-
bitrary, and invidious manner. That statutory policy and the
duty arising from it may not be frustrated by application to
particularized information requests of confidentiality asser-
tions based on general and broadly worded internal policies
of labor organizations.
Obviously, there may be situations where abuse might
likely follow from disclosure of addresses and telephone
numbers in certain circumstances. But those circumstances
can be considered whenever they arise. Here, there is no con-
tention of possible abuse of disclosed addresses and tele-
phone numbers by any of the May 4 letter signers. More im-
portantly, there is no evidence of even a likelihood of such
abuse by any of them. In these circumstances, labor organi-
zations are not at liberty to invoke general internal constitu-
tional or other proscriptions to create a confidentiality bar
that would inherently frustrate enforcement of their statutory
duty to deal fairly with employees in the operation of exclu-
sive hiring halls.
Even less persuasive is the confidentiality defense raised
on the basis of a policy adopted by Respondent in response
to members’ objections to posting of dispatching records in
the hiring hall. In the first place, that policy was not formu-
lated until December, over 6 months after the letter signers’
request, and, thus, could not have influenced Cohen’s June
1 response to it. Second, that policy extended only to posting
in a public location and there is no basis for concluding that
any of the May 4 letter signers intended to publicly post cop-
ies of records provided to him. Finally, notwithstanding that
policy, the records are maintained in binders accessible to
whoever desires to examine their contents. As a result, exam-
ination of those records has never been barred absolutely
and, consequently, it cannot be maintained persuasively that
those records are confidential.
CONCLUSIONS OF LAW
Carpenters Local Union No. 35, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO has violated
Section 8(b)(1)(A) of the Act, and thereby has committed un-
fair labor practices affecting commerce, by refusing to dis-
close to employees registered for dispatch from its exclusive
hiring hall the addresses and telephone numbers of persons
registered and referred to jobs from that hall during the 6-
25CARPENTERS LOCAL 35 (CONSTRUCTION EMPLOYERS ASSN.)
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
month period preceding a request for that information, by ar-
bitrarily denying those employees copies or duplicates of hir-
ing hall records for a 6-month period preceding a request for
that information, where payment of reasonable costs for
doing so has been offered by those employees, and by telling
an employee that hiring hall records could not be reviewed
to obtain information to file a lawsuit against it.
REMEDY
Having found that Carpenters Local Union No. 35, United
Brotherhood of Carpenters and Joiners of America, AFL–
CIO has engaged in certain unfair labor practices, I shall rec-
ommend that it be ordered to cease and desist therefrom and,
further, that it be ordered to take certain affirmative action
to effectuate the policies of the Act. With respect to the lat-
ter, it shall be ordered to make available to Walter J.
Endriuliatis, John Blanton, Bob Clark, Lawrence Reynolds,
Burton P. Rowe, James Rich, and Fred Esson addresses and
telephone numbers of persons registered for referral from its
hiring hall during the 6-month period prior to May 4, 1993,
and to provide each of them with photocopies or duplicates,
or to permit each of them to make photocopies or duplicates,
of hiring hall records requested in their letter of May 4,
1993, on payment of reasonable costs for doing so. See Op-
erating Engineers Local 513 (Various Employers), supra, 308
NLRB at fn. 1.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Carpenters Local Union No. 35, United
Brotherhood of Carpenters and Joiners of America, AFL–
CIO, San Rafael, California, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Denying employees registered for referral from its ex-
clusive hiring hall the right to addresses and telephone num-
bers of persons registered for referral from that hall.
(b) Denying employees registered for referral from its ex-
clusive hiring hall the right to copies or duplicates of hiring
hall records, on payment of reasonable costs for doing so,
described in the letter of May 4, 1993, sent by Walter J.
Endriuliatis, John Blanton, Bob Clark, Lawrence Reynolds,
Burton P. Rowe, James Rich, and Fred Esson.
(c) Telling employees registered for referral from its ex-
clusive hiring hall that they will not be allowed to review
hiring hall records to obtain information to file lawsuits
against it.
(d) 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 ef-
fectuate the policies of the Act.
(a) Honor the May 4, 1993 request of Walter J.
Endriuliatis, John Blanton, Bob Clark, Lawrence Reynolds,
Burton P. Rowe, James Rich, and Fred Esson for copies or
duplicates of hiring hall records, including addresses and
telephone numbers of persons registered for referral from that
hall, on payment of reasonable costs for those copies or du-
plicates or, alternatively, for allowing those employees to
copy or duplicate those records.
(b) Post at its hiring hall copies of the attached notice
marked ‘‘Appendix.’’8 Copies of the notice, on forms pro-
vided by the Regional Director for Region 20, 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 in-
cluding all places where notices to members and employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT deny employees registered for referral from
our hiring hall the right to addresses and telephone numbers
of persons who are registered for referral from our hiring
hall.
WE WILL NOT deny employees registered for referral from
our hiring hall the right to copies or duplicates of hiring hall
records, on payment of reasonable costs for making those
copies or duplicates.
WE WILL NOT tell employees registered for referral from
our hiring hall that they will not be allowed to review hiring
hall records to obtain information to file lawsuits against us.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL honor the May 4, 1993 request of Walter J.
Endriuliatis, John Blanton, Bob Clark, Lawrence Reynolds,
Burton P. Rowe, James Rich, and Fred Esson for copies or
duplicates of hiring hall records, including addresses and
telephone numbers of persons registered for referral from that
hall, on payment of reasonable costs for those copies or du-
plicates or, alternatively, for allowing those employees to
copy or duplicate those records.
CARPENTERS LOCAL UNION NO. 35, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL–CIO