Operating Engineers Local 12 (Nevada Contractors)

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1066 (N.L.R.B. 2005)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 131
1066
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO (Nevada Contractors
Association) and John L. Scott, an Individual.
Case 28-CB-6173
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 14, 2005, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions, a supporting brief,
and an answering 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, and conclusions1 and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Interna-
tional Union of Operating Engineers, Local Union No.
12, AFL-CIO, its officers, agents, and representatives
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a):

1 Even applying a more stringent standard articulated in some cases,
we agree with the judge that the Charging Party here has shown a “rea-
sonable belief” that the Respondent treated him unfairly and thus that it
violated Sec. 8(b)(1)(A) by failing to timely reply to the Charging
Party’s request for information. See, e.g. International Brotherhood of
Boilermakers Local 197 (Northeastern State Boilermaker Employers),
318 NLRB 205 (1995).
2 We have modified the judge’s recommended order to more closely
reflect the violation found and the Board’s usual remedial provisions.
Although we have adopted the judge’s recommended Order as modi-
fied, we do not require the Respondent to afford the Charging Party
access to other registrants’ social security numbers and the Respondent
may redact those numbers from the documents provided pursuant to
this Order. See Carpenters Local 102 (Millwright Employers Assn),
317 NLRB 1099 (1995).
Member Schaumber would require the Respondent to produce the
requested information found relevant by the judge, absent social secu-
rity numbers, for the period between the Charging Party’s May 31,
2004 request and May 5, 2004, the date he filed the charge in Case 28-
CB-6114. That charge, which alleged that the Respondent unlawfully
failed to refer the Charging Party to available jobs, was dismissed by
the Regional Director on June 18, 2004 and the dismissal was not ap-
pealed. In Member Schaumber’s view, the General Counsel has not
demonstrated a basis for requiring the Respondent to furnish the infor-
mation for the period of time covered by the dismissed charge, or for
periods of time subsequent to the date of his request.
“(a) Refusing to make available to John L. Scott cer-
tain job referral information requested in his May 31,
2004 letter.”
2. Substitute the following for paragraph 1(b):
“(b) 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.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
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 with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT refuse to make available to John L. Scott
certain job referral information requested in his May 31,
2004 letter.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL furnish John L. Scott, a registrant on the out-
of work list, with job referral information consisting of
hiring hall lists for six months prior to the filing of the
instant charge, dispatch “Introduction” forms pertaining
only to those referrals for which Scott was registered in
accordance with his work history cards, for six months
prior to the filing of the instant charge, and Scott’s work
history cards for six months prior to the filing of the in-
stant charge.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 12, AFL-CIO
Mary C. Teer, Esq., Las Vegas, Nevada, for the General
Counsel
David Koppelman, Esq., House Counsel, Pasadena, Califor-
nia, for the Union
Jeffrey Boxer, Esq., of Stern and Ford, Los Angeles, Califor-
nia, for the Union
OPERATING ENGINEERS LOCAL 12 (NEVADA CONTRACTORS ASSN.) 1067
Gary G. Branton, Esq., of Albright, Stoddard, Warnick &
Palmer, Las Vegas, Nevada, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge: Pursuant
to notice a hearing in this matter was held before me in Las
Vegas, Nevada on March 1, 2005. The charge was filed on
September 27, 2004 by John L. Scott, an Individual. On No-
vember 30, 2004, the Regional Director for Region 28 of the
National Labor Relations Board (Board) issued a Complaint
and Notice of Hearing alleging violations by International Un-
ion of Operating Engineers, Local Union No. 12, AFL–CIO
(Respondent or Union) of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended (Act). The Respondent, in its
answer to the complaint, denies that it has violated the Act as
alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (General
Counsel), counsel for the Respondent, and counsel for the
Charging Party.
Upon the entire record, and based upon my observation of
the witnesses and consideration of the briefs submitted, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Nevada Contractors Association,
herein called NCA, has been an organization composed of vari-
ous employers engaged in the construction industry, one pur-
pose of which is to represent its employer-members in negotiat-
ing and administering collective-bargaining agreements with
various labor organizations, including the Respondent. The
employer-members of the NCA collectively in conducting their
business operations described above, annually purchase and
receive at their facilities located in the State of Nevada, goods
valued in excess of $50,000 directly from points outside the
State of Nevada. It is admitted and I find that the NCA and its
collective employer-members have each been employers en-
gaged in commerce within the meaning of Sections 2(2), (6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Re-
spondent has violated Section 8(b)(1)(A) of the Act by failing
to timely provide the charging party with certain requested
hiring hall job referral information.
B. Facts
The Union operates an exclusive hiring hall for the purpose
of dispatching workers for employment on jobs covered by
collective bargaining agreements between the Union and vari-
ous multi-employer associations or signatory contractors.
The Charging Party, John L. Scott, has been a member of the
Union for many years, during which he has utilized the Union’s
hiring hall to obtain employment. Sometime during 2004, be-
cause he was not receiving referrals to jobs even though he was
near the top of the hiring hall out-of-work list, he believed he
was being skipped or overlooked by hiring hall personnel. To
ascertain whether hiring hall personnel were treating him fairly
in accordance with established hiring hall practices, he re-
quested certain information. Thus, by letter dated May 31,
2004,1 he directed a letter to the Union as follows:
I hereby request, pursuant to Operating Engineers Local Un-
ion No. 3 of the International Union of Operating Engineers,
AFL-CIO (Kiewit Pacific Co.) and Cynthia Albert, 324
NLRB No. 4, that all pertinent information regarding the dis-
patching of jobs to Union Members of Local 12, Southern
Nevada District, through its hiring hall, located at 360
Shadow Lane, Las Vegas, Nevada, and any and all other
means of dispatching be provided to me at the above listed
address. This information is to include but not be limited to:
1. The names of all persons who, for the past two (2)
years have asked to be referred to jobs by Local 12,
Southern Nevada District, or have asked that their names
be placed on the out-of-work list for job referrals;
2. The date or dates of each request;
3. The date or dates of each subsequent referral of such
person to a job, including the name and the location of
such person on the out-of-work list, the name of the em-
ployer to whom referred, piece of equipment dispatched
for, and identification of the jobsite to which referred; and
4. The date or dates of each hire and of any subsequent
layoff or discharge, including the name of the person hired
and/or laid off, the name of the employer and the identifi-
cation of the jobsite. 2
Please provide this information to me no later than
July 1, 2004. In the event you choose not to provide me
this information, please sign a copy of this letter, and re-
turn to me.
The Union did not reply to this letter, and on August 31,
2004, Scott’s attorney wrote a letter to the Union stating that
Scott had a good faith belief that he had been discriminated
against by the Union ”because of charges he filed against you
several years ago and because of a charge he filed with the
National Labor Relations Board on May 5, 2004, in Case No.
28-CB-6114.” The letter goes on to demand production of the
records requested by Scott, and states that Scott will seek all
legal remedies available to obtain such records.

1 Although this request is dated May 31, 2004, it appears that the
Union did not receive it until on or about July 22, 2004.
2 This request for information is virtually identical to the language
contained in the request for information set forth in the aforementioned
Board decision.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD1068
By letter dated September 8, 2004, the Union’s attorney re-
plied to the August 31, 2004 letter from Scott’s attorney, inter
alia, as follows:
Local 12 does not believe that Mr. Scott has a good faith ba-
sis for alleging that he has been discriminated against by Local
12 in regards to job referrals. Over the past several years, Mr.
Scott has filed numerous unfair labor practice charges against
Local 12, alleging such discrimination. In each instance, Local
12 has provided the relevant records to the National Labor Re-
lations Board, and in each case the charge has been found to be
meritless. See e.g., NLRB Case Nos. 28–CB–6114, 28–CB–
5096, 28–CB–5008, 28–CB–4942, 28–CB–4944, 28–CB–4882.
Local 12 concludes that this latest request is not made in good
faith, but rather is made for the purpose of harassment and an-
noyance of Local 12.
Additionally, the request seeks documents pertaining to nu-
merous individuals and signatory employers, each of which has
privacy rights which would be invaded by these requests. The
requested documents also go far beyond anything pertaining to
Mr. Scott’s individual circumstances and the requests are there-
fore overbroad in the extreme.
The charge referred to in both of the aforementioned letters,
Case 28-CB-6114, was filed by Scott on May 5, 2004, and was
dismissed by the Regional Director for Region 28 on June 18,
2004, as follows:
Decision to dismiss: Based on [the investigation of the
charge], I have concluded that further proceedings are not
warranted, and I am dismissing your charge for the follow-
ing reason:
Your charge alleges that the Union breached its duty of fair
representation by failing to refer you from its hiring hall. The
evidence adduced failed to support this allegation. In this re-
gard, the evidence reflects that on various occasions the Un-
ion attempted to contact you for work referrals. However,
your late acknowledgement of these referrals resulted in other
workers being referred. There is no evidence that the Union
harbors any animus towards you, or that their actions were
discriminatorily motivated.
This decision to dismiss was not appealed by Scott.
There are three types of documents utilized by the hiring hall
to process referrals: the out-of-work-list showing the priority
of the individuals seeking referrals; the personal job history
cards listing the work and machinery which each individual is
willing or not willing to accept and/or operate, and the date,
time, and relevant details of each contact between hiring hall
personnel and the individual seeking “dispatchment,” regard-
less of whether the contact is initiated by the hiring hall or the
individual seeking dispatchment; and dispatch “Introduction”
forms containing the name of the employer, the name of the
individual being dispatched, the type of machinery the individ-
ual is to operate, the date and time the order was received, the
individual’s reporting date and time, and whether the individual
was dispatched pursuant to the employer’s specific request for
that individual, or was dispatched by the hiring hall by “open
order,” that is, in order of seniority on the hiring-hall-list.
Scott’s work history cards, introduced into evidence, show
that Scott was willing to operate only a limited number of ma-
chines, was not willing to work nights, and was not willing to
accept out of town referrals, test site referrals, hazardous mate-
rial referrals, or rock, sand and gravel referrals. Scott’s work
history cards also show that Scott was called on various occa-
sions by hiring hall dispatchers at the home phone and cell
phone numbers listed on his work history card for the purpose
of notifying him of available referrals.3 On these occasions, the
dispatcher either left a message on his answering machine and
Scott did not call back in a timely fashion, or Scott answered
and said he did not want to accept certain work, or Scott ini-
tially answered his cell phone and stated he was unable to hear
the dispatcher, but then did not answer when the dispatcher
called back. Scott testified that as his cell phone does not have
a feature that records the caller’s number, he was unable to
know when any particular call was from the hiring hall.
C. Analysis and Conclusions
The General Counsel maintains that Scott, as a individual
dependent upon the Union’s exclusive hiring hall for his liveli-
hood, is entitled as a matter of right to relevant hiring hall in-
formation in order to ascertain that he is being treated fairly by
hiring hall dispatchers, and that no discriminatory or unlawful
motivation on the part of the Union is required as a predicate
for such an information request. I agree.
Thus, in Operating Engineers Local 513, 308 NLRB 1300,
1302-3 (1992), the Board adopted the decision of the adminis-
trative law judge who analyzed this issue and concluded that
“[I]n the absence of some good reason advanced by Respondent
for withholding the information, it should be made available
without the necessity of laying a foundation.” I find that Scott
is entitled to the information simply because he is a hiring hall
registrant, so long as the information request is made in good
faith.
The Union declined to furnish the requested information on
the basis that Scott’s request was not made in good faith but
rather was “made for the purpose of harassment and annoyance
of Local 12. “ The record evidence shows that Scott had filed
many charges against the Union, and that the Regional Director
for Region 28 had dismissed his May 5, 2004 charge in Case
28-CB-6114, alleging that the Union breached its duty of fair
representation by failing to refer Scott from its hiring hall.
Nevertheless, it appears that Scott, despite being high on the
out-of-work list, received no calls from hiring hall dispatchers
between May 5, 2004 and September 13, 2004, a period of four
months. Under these circumstances, it seems reasonable to
assume that Scott’s July 22, 2004 information request was
made because he either believed he was being skipped over in
retaliation for the charge he had filed against the Union, or
because he wanted the Union to be cognizant of the fact that he
intended to closely monitor the situation so that he would not
be skipped over. Accordingly, I conclude the facts are insuffi-

3 Scott’s work history cards show that these calls from a hiring hall
dispatcher to Scott were made on March 14, April 1, April 23, April 26,
May 5, September 13, September 14, September 17, and October 10,
2004.
OPERATING ENGINEERS LOCAL 12 (NEVADA CONTRACTORS ASSN.) 1069
cient to show, as asserted by the Union, that Scott’s information
request was merely for the purpose of harassing or annoying
the Union. I therefore find that that the Union has violated
Section 8(b)(1)(A) of the Act by failing to timely provided
Scott with the requested information.
At the hearing the parties disagreed regarding the hiring hall
information to which Scott should be entitled. Since the filing
of the instant charge the Union has furnished Scott with certain
hiring hall lists showing the status of all hiring hall registrants
on the lists, Scott’s work history cards for several months, and
copies of dispatch “Introduction” forms showing dispatchments
to any particular job that Scot, according to his work history
card, would have accepted had he been called by the hiring hall
dispatchers. Further, at the hearing, the Union’s attorney stated
that the Union had no objection to furnishing Scott with similar
information for up to six months prior to the filing of the
charge.
The General Counsel, however, maintains that the Union
should also furnish Scott with all copies of dispatch “Introduc-
tion” forms for the pertinent time period, even though Scott has
disqualified himself for such jobs on his work history card and
therefore has declined in advance to accept such jobs. In this
regard, the rationale of the General Counsel seems to be that
access to all of these dispatches would enable Scott to ascertain
the number and frequency of dispatches for particular pieces of
equipment so that perhaps he could modify his work history
card to include such pieces of equipment, thus giving him more
work opportunities. I do not agree. It is perfectly obvious that
the more limitations a hiring hall registrant places upon his job
opportunities, the fewer referrals he will receive and the longer
he will have to wait for such referrals; and the converse is also,
of course, true. To require the Union to provide Scott with the
numerous documents suggested by the General Counsel would
seem, under the circumstances, to place an undue and unneces-
sary burden upon the Union, and would not be helpful to Scott
in his quest to insure that he was being treated fairly. Thus,
Scott’s testimony shows that he has voluntarily limited his job
opportunities for reasons personal to himself. Indeed, when
asked why his personal work history cards note that he is un-
willing to operate certain types of equipment, Scot testified,
“They’re too hard on your health.”
At the outset of this proceeding Scott maintained that he
should be furnished his own work history cards as well as the
work history cards of all hiring hall registrants. The Union
objected on the basis that this was not included within the alle-
gations of the complaint. The General Counsel agreed. The
General Counsel was then given the opportunity to amend the
complaint in this regard, and specifically declined to do so. In
his brief, Scott maintains that the nature and importance of his
access to the work history cards of all hiring hall registrants has
been fully litigated and that therefore the issue, having been
litigated, should be resolved in this proceeding. I do not agree
that the matter has been fully litigated, as the Union, having
been put on notice that production of work history cards for
hiring hall registrants other than Scott was not an issue in this
proceeding, may have refrained from proffering further evi-
dence or making further arguments.4 Moreover, even assuming
arguendo that the matter was fully litigated, the General Coun-
sel has specifically determined that neither Scott’s information
request nor the complaint allegations encompass the work his-
tory cards of hiring hall registrants other than Scott.
It appears that the hiring hall information which I have found
should be furnished to Scott is sufficient to permit him to de-
termine whether he has been skipped over in the hiring hall
process. Thus, from the hiring hall lists, Scott will be able to
ascertain his ranking on the list during any pertinent time; from
the dispatch “Information” forms Scott will be able to ascertain
who was dispatched to any job for which Scott was registered,
when that individual was dispatched, and whether or not the
individual was specifically requested by the employer (in which
case established hiring hall procedure provides that that indi-
vidual should be dispatched even if he or she is lower than
Scott on the hiring hall list); and from his own personal history
cards, Scott will be able to ascertain whether the cards accu-
rately reflect the jobs and equipment Scott was willing to ac-
cept and/or operate, and the dates, time, and details of any
communications between Scott and hiring hall personnel.
CONCLUSIONS OF LAW
1. The NCA and its collective employer-members have each
been employers engaged in commerce within the meaning of
Sections 2(2), (6) and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has violated and is violating Section
8(b)(1)(A) of the Act as found herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(b)(1)(A) of the Act, I recommend that it be re-
quired to cease and desist therefrom and from in any other like
or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights under Section 7 of the
Act. I shall also recommend the posting of an appropriate no-
tice, attached hereto as “Appendix.”
ORDER5
The Respondent, International Union of Operating Engi-
neers, Local Union NO. 12, AFL-CIO, , its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:

4 It should be noted that Scott’s work history cards, furnished to
Scott, are reflective of work history cards in general: they are not com-
puterized or typed but are small ledger cards written or filled out in
longhand by the dispatcher who happens to be calling or speaking to
Scott at any given time; they are often not readily legible; and they
contain messages and abbreviations that are sometimes indecipherable
absent testimony of the author of the particular entry on the card.
Moreover, given the number of hiring hall registrants, it appears that
the work history cards of all registrants would be voluminous.
5 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD1070
(a) Interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act by refusing to
honor requests for information made by registrants seeking
employment under the Union’s exclusive hiring hall procedure.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
1. Take the following affirmative action, which is necessary
to effectuate the purposes of the Act:
(a) Furnish John L. Scott with job referral information con-
sisting of hiring hall lists for six months prior to the filing of the
instant charge, dispatch “Introduction” forms pertaining only to
those referrals for which Scott was registered in accordance
with his work history cards, for six months prior to the filing of
the instant charge, and Scott’s work history cards for six
months prior to the filing of the instant charge.
(b) Within 14 days after service by the Region, post at its of-
fice and hiring hall copies of the attached notice marked “Ap-
pendix.”6 Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being duly signed by Re-
spondent’s representative, shall be posted immediately upon
receipt thereof, and shall remain posted by Respondent for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to members or hiring hall registrants are
customarily posted. Reasonable steps shall be taken by the

6 If this Order is enforced by a judgment of the United States Court
of Appeals, the wording 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 and Order of
the National Labor Relations Board.”
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.
Dated: April 14, 2005
APPENDIX
NOTICE TO EMPLOYEES
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 abide by this
notice.
WE WILL NOT refuse to make available in a timely fashion
relevant job referral information requested by registrants on the
hiring hall out-of-work list in order to insure that they are being
fairly treated in accordance with established hiring hall prac-
tices.
WE WILL furnish John L. Scott, a registrant on the out-of
work list, with certain information he has requested.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce registrants on the out-of-work list in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL UNION NO. 12, AFL–CIO