Operative Plasterers & Cement Masons, Local No. 299

National Labor Relations Board - Board Decisions

Sep 16, 1981

257 N.L.R.B. 1386 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operative Plasterers & Cement Masons, Local No.
299 (Wyoming Contractors Association, Inc.)
and Jimmey Ray Hamilton. Case 27-CB-1425
September 16, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 20, 1981, Administrative Law
Judge Timothy D. Nelson issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative lass judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Sndurd Dry
Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT I01 THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: I
heard this case in Cheyenne, Wyoming, on August 26,
1980. It arose when Charging Party Jimmy Ray Hamil-
ton (herein Hamilton) filed an unfair labor practice
charge on February 28, 1980, with the Regional Director
for Region 27 of the National Labor Relations Board
(herein the Board) against Operative Plasterers &
Cement Masons, Local No. 299 (herein the Union). On
April 23, 1980, after an investigation, the Regional Di-
rector issued a complaint and notice of hearing against
the Union alleging, in substance, that the Union operates
an exclusive hiring hall by maintaining two referral lists
which are "a sham and hav[e] no import with regard to
referrals"; and that, since December 3, 1979, the Union
has refused to refer Hamilton for work "because of arbi-
trary, unfair, and invidious reasons, and for reasons other
257 NLRB No. 173
than the employee's failure to tender periodic dues and
the initiation fees uniformly required as a condition of
acquiring or retaining membership." The alleged mainte-
nance by the Union of two referral lists which are a
"sham" having "no import with regard to referrals" is
characterized in the complaint as being violative of Sec-
tion 8(b)(1)(A) of the National Labor Relations Act,
which section prohibits labor organizations from "re-
straining or coercing" employees in the exercise of rights
guaranteed in Section 7 of the Act. The alleged refusal
to refer Hamilton to jobs since December 3, 1979, is
characterized in the complaint as being violative of Sec-
tion 8(b)(2) of the Act, which section prohibits labor or-
ganizations from "causing or attempting to cause an em-
ployer to discriminate against an employee in violation
of subsection (a)(3)" (the latter subsection itself prohibit-
ing discrimination by an employer "to encourage or dis-
courage membership in any labor organization").
The charge and the complaint were duly served on the
Union. The Union duly answered the complaint, admit-
ting its status as a labor organization within the meaning
of the Act and that its hiring hall served employers who
were engaged in commerce within the meaning of the
Act, but denying all substantive allegations of wrongdo-
ing.
All parties were given full opportunity to appear at
the hearing and to present evidence and arguments.
Counsel for the General Counsel and counsel for the
Union filed timely, written briefs after the hearing which
I have carefully considered.
Upon the entire record, including my observations of
the witnesses as they testified, and upon my assessment
of probabilities, I reach the following:
I. INI)INGS OF FACT AND PRELIMINARY
CONCLUSIONS
A. General Background
The Union is chartered to represent employees in the
plastering and cement finishing trade throughout Wyo-
ming and a portion of western Nebraska. At the time of
the hearing, the Union had between 130 and 150 mem-
bers (all journeymen) scattered throughout its territorial
jurisdiction, including about 50 in the Cheyenne area
where the Union maintains its business office, and groups
ranging in size from 10 to 20 in or near the other princi-
pal cities in Wyoming.
All of the Union's functions, including negotiation and
policing of labor agreements, operation of its hiring hall,
and related recordkeeping, bookkeeping, and other mis-
cellaneous tasks, are performed exclusively by two per-
sons: Business Agent Richard Gonzales and his wife,
Sandra Gonzales. Richard is the chief executive officer.
As a nominal "secretary," Sandra performs a large vari-
ety of ministerial, clerical, and bookkeeping tasks.
Richard is a journeyman cement mason who has held
his current position as business agent for 7 years. He
spends substantial portions of each week away from the
Cheyenne office traveling throughout the Union's terri-
tory and handling the myriad tasks associated with repre-
sentation of construction industry employees in a large,
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OPERATIVE PLASTERERS & CEMENT MASONS. LOCAl. NO. 299
but sparsely populated region which is undergoing some-
thing of an economic boom. As a consequence of Rich-
ard's regular absences, many, if not most, of the day-to-
day tasks performed out of the Cheyenne office, includ-
ing administration of the hiring hall system, have been
left, in fact, to Sandra.
B. Pertinent Contractual Relationship
The Union represents employees who perform both
residential and commercial or "industrial" construction
cement masonry work and it makes referrals to contrac-
tors engaged in both categories of work. We are here
concerned with the admitted exclusive collective-bar-
gaining relationship between the Union and certain em-
ployer-members of Wyoming Contractors Association,
Inc. (herein called the Association).2 They are currently
parties to a statewide labor agreement having effective
duration between July 1, 1979, and June 30, 1982.
That labor agreement contains these provisions perti-
nent to hiring and referral:
ARTICLE VI
HIRING PROCEDURE
SECTION 1.-FURNISHING OF WORK-
ERS-The Employer agrees that he will give the
Union the first opportunity to furnish and the Union
agrees to furnish all classes of employment that are
provided for in this Agreement. The Employer fur-
ther agrees that all requests for workers will be
placed with the Union dispatching office forty eight
(48) hours preceding the day for which the Em-
ployer requests workers to be furnished. If the re-
quested workers do not appear for work at the Em-
ployer's project at the hour requested, after such
reasonable prior request for employees, the Em-
ployer shall be at liberty to hire from any source
available the same number of workers so requested.
The Union agrees not to dispatch workers involving
travel and subsistence without approval by the Em-
ployer.
SECTION 2.-CANCELLATION OF
ORDERS FOR WORKERS-If the Employer has
placed an order with the Union for furnishing of
workers at a certain beginning hour of employment
The record reflects, and I notice in any case, that Wyoming, like
other western mountain States, has been the recent target of intensified
exploration for and development of coal, oil, and uranium resources.
Large-scale construction activities, including power plant construction,
have been associated with this phenomenom
2 One of which members, as the parties agree in pleadings as amended
at hearing, is Morrison-Knudsen Company. Inc. (herein called M-K). an
Idaho-incorporated contractor doing business at material times in Wyo-
ming which annually purchases and receives goods and materials valued
in excess of $50,000 directly from outside Wyoming, and which is there-
fore involved in interstate commerce within the meaning of the Act. To
the extent that other contractors are referred to in the record, it is pre-
sumed that they are likewise members of the Association, that they are
likewise bound to the statewide agreement, and, therefore, that their par-
ticipation in a multiemployer collective-bargaining unit which includes
M-K warrants treating them as being likewise subject to the Board's ju-
risdiction. Accordingly, as to all complained-of aspects of the Union's op-
eration of the exclusive hiring hall discussed below, the Board has juris-
diction to consider their legality.
at a particular time, he shall give notice of such
cancellation to the Union dispatching office one (I)
hour prior to reporting time on the work day for
which such workers have been requested or at the
time the Employer cancels his concrete order,
whichever time first occurs.
SECTION 3.-QUALIFIED JOURNEYMEN-
Contractors shall employ only qualified journeymen
Cement Masons. A journeyman Cement Mason
shall be qualified for employment who has had at
least three years actual practical working experience
as a Cement Mason, as a journeyman or apprentice,
in the building and construction industry.
SECTION 4.-REGISTRATION-The Union
shall establish and maintain open and nondiscrimina-
tory employment lists for qualified applicants desir-
ing employment on work covered by this Agree-
ment and all qualified applicants shall be entitled to
registration and dispatch free of charges. Every ap-
plicant shall be responsible for furnishing such data,
records, names of employers and length of employ-
ment as may be deemed necessary. Applicants shall
be registered in the order of time and date of regis-
tration on the appropriate out-of-work list.
SECTION 5.-NONDISCRIMINATORY SE-
LECTION OF APPLICANTS-Selection of appli-
cants for referral to jobs shall be on a nondiscrimi-
natory basis and shall not be based on, or in any
way affected by, Union membership, policies or re-
quirements.
SECTION 6.-LIMITED PRIORITY OF RE-
FERRAL AND HIRE FOR LOCAL JOURNEY-
MEN
(A) In the interest of providing an opportunity of
employment for all qualified journeymen Cement
Masons, while at the same time securing a fair dis-
tribution of employment for those journeymen who
have had previous employment with contractors,
parties to this Agreement or predecessor agree-
ments, at all times during the progress of a job, fifty
percent (50%) of the qualified journeymen Cement
Masons employed by the contractor, plus the odd
worker, if any, shall be "local journeymen." The re-
maining fifty percent (50%) of the work force may
be "local" or nonlocal journeymen.
(B) A "local journeyman" is a qualified journey-
man who has worked for a contractor or contrac-
tors at least one hundred eighty (180) working days
out of the last three (3) years under the terms and
conditions of this or predecessor agreements and
who maintained residence of the past six (6) months
within the state of Wyoming.
(C) Resident under this paragraph shall mean a
person who has maintained his permanent home in
the above defined geographical area for a period of
not less than six (6) months or who, having had a
permanent home in this area, temporarily left with
the intention of returning to this area as his perma-
nent home.
SECTION 7.-DISPATCH OF WORKERS-
Upon request of a contractor for a Cement Mason,
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union shall make referrals from the appropriate
out-of-work list in the following order of prefer-
ence:
(A) Where a contractor does not make a special
request, as defined below, the first person referred
except that, where the contractor making the re-
quest for journeymen has not employed the re-
quired fifty percent (50%) ratio of "local journey-
men," then the first "local journeymen" on the list
shall be referred until the required 50% ratio of
"local journeymen" have been employed by the
contractor.
(B) Where a contractor makes a special request
for key workers, the request shall be honored. Spe-
cial request for particular Cement Masons previous-
ly employed by a contractor making the request
and who have been employed within one hundred
fifty (150) days previous to the request shall also be
honored, except that in both of the above cases
where the journeyman request is not a "local jour-
neyman" and the contractor making the request
does not have the required ratio of "local journey-
men," the request shall not be honored. The dis-
patcher shall dispatch persons possessing special
skills and abilities in the order in which their names
appear on the out-of-work list in accordance with
the requirement that at least fifty (50%) of the jour-
neymen on the job, plus the odd worker, are "local
journeymen."
SECTION 8.-APPRENTICES
(A) When more than five (5) journeymen are re-
quired to be employed on a project for five (5) or
more continuous days, the six (6th) worker hired by
the employer shall be an apprentice, if available.
(B) If two (2) or more journeymen are used, the
Employer, at his option may request the third (3rd)
worker hired to be an apprentice if available.
SECTION 9.-LEGAL COMPLIANCE RE-
GARDING APPLICANTS FOR EMPLOY-
MENT-The Union agrees to comply with all
laws, regulations and relevant orders, state and fed-
eral, with regard to the acceptance, selection, classi-
fication and referral of applicants for Union mem-
bership and/or applicants for employment, without
discrimination because of race, creed or national
origin. The Union further agrees that it will provide
the Employer with all information available to them
to enable the Employer to comply with the forego-
ing statutes, orders and regulations, including the
preparation and filing of such reports as may be
necessary. The Union hereby agrees to indemnify
and hold harmless the Employer from any losses or
damages resulting from any act of the Union to
comply with all the foregoing laws, statutes, orders
and regulations, including court costs and attorney's
fees authorized by the Union.
From the quoted section I above and from incidental
evidence regarding the operation of the hiring and refer-
ral system, I conclude that the Union is the "exclusive"
source for referrals to employer-members of the Associ-
ation as that term is traditionally used in labor law.3
From the quoted sections 6 and 7 above, I conclude
that the hiring and referral system described in the agree-
ment lawfully 4 provides that preference in referrals be
given to "local journeymen," as they are defined in the
agreement.
From the quoted sections 6 and 7 above, and, more
particularly, from sections 7(A) and (B), I conclude that
the labor agreement grants to contractor-employers
broad discretion in the selection of journeymen from the
hiring hall list, subject only to the "50% local journey-
man" requirement alluded to throughout sections 6 and
7. Thus, assuming that there are substantial members of
journeymen awaiting referral from the hiring hall, a con-
tractor-employer may, subject only to the "50% local
journeymen" rule, virtually have his pick of employees,
without regard to their relative placement on the hiring
hall list or the length of time that they have been out of
work.
C. The Way the Hiring Hall Works in Fact
The record contains much testimony from various wit-
nesses about how the Union operates its hiring hall. Both
Richard and Sandra testified at considerable length on
the subject. Other witnesses (who were journeymen
members of the Union) tended in their testimony to focus
on specific instances in which, in their on-the-job capaci-
ties as supervisory agents of contractors, they called the
Union for referrals to specific construction jobs. Some of
the testimony is conflicting. Richard's testimony particu-
larly contains seeming internal inconsistencies which are
unnecessary to detail, since I place very little weight on
his descriptions of the operation except insofar as they
are corroborated by more reliable testimony concerning
actual practices in specific instances.5
3 See, e.g., International Association of Bridge. Structural and Ornamen-
tal Ironworkers AFL-CIO. Local Union No. 577 (Various Employers in
Hannibal, Missouri Area), 199 NLRB 37, 42 (1972). This conclusion car-
ries with it certain legal consequences discussed more fully below. One
such consequence is that it gives rise to a duty of fair representation on
the Union's part towards employees (including jobseekers) in the unit
covered by the labor agreement. Miranda Fuel Company, Inc., 140 NLRB
181 (1962). Another consequence is that Sec. 8(bX2) of the Act-not
merely Sec. 8(b)(l)(A)-is implicated by a failure of the Union for imper-
missible reasons to refer applicants for jobs in that unit. Various Employ-
ers, supra.
4 The General Counsel does not in any manner attack the lawfulness of
the hiring hall arrangement as it is described in the agreement and I
theretfore presume its legality. I note also that Sec. 8(f)(4) of the Act ex-
pressly permits a hiring hall agreement which "specifies minimum train-
ing or experience qualifications for employment or provides for priority
in opportunities for employment based upon length of service with such
employer, in the industry or in the particular geographical area." See also
Interstate Electric Co.. er a. 227 NLRB 1991 (1977).
A note on witness credibility: There are few disputes of any ultimate
significance regarding facts of which more than one witness had firsthand
knowledge. I have not fully credited any particular witness except as
may be noted below. Richard and Sandra struck me as being essentially
sincere and candid witnesses. Jimmey Ray Hamilton did not so impress
me, nor did his wife, Krista. I have nevertheless given limited credence
to some aspects of the testimony of each of those witnesses-in some
cases crediting Jimmey Hamilton over Richard. As between Richard and
Sandra's various descriptions regarding the operation of the hiring hall, I
have largely ignored Richard's rather sweeping and internally inconsis-
Continued
1388
OPERATIVE PLASTERERS & CEMENT MASONS, LOCAL NO. 299
The wealth of testimony about the hiring hall oper-
ation notwithstanding, there is no single body of testimo-
ny which systematically describes how it functions.
From the mutually harmonious testimony of all of the
witnesses, however, these general findings may be
reached: At least until the investigation of Hamilton's
charge took place, the Union maintained two "lists"
within a single spiral notebook. These were called by
Richard and Sandra the "A" and "B" lists.
The "A" list consisted of "local" journeymen; i.e.,
those who resided within Wyoming and who had estab-
lished by on-the-job performance that they possessed
customary skills associated with experience in a variety
of residential and industrial cement masonry tasks.
The "B" list functioned largely as the repository for
names of local journeymen who, due to injury, illness, or
absence, were unavailable for referral. It was also used as
the repository for names of jobseekers with whom the
Union had no familiarity and who had not yet estab-
lished competence in the trade to the Union's satisfac-
tion.
As to individuals on the "B" list who were available
for work but who had not established to the Union's sat-
isfaction that they possessed the full range of journeyman
skills, Richard and/or Sandra would nevertheless make
an effort to refer them to jobs where the contractor-em-
ployer had not preempted the opportunity by making
"by-name" requests and where the job in question ap-
peared to be within their capabilities as reflected in the
experience form which they were asked to complete
when they first registered with the Union for referral.
Once a "B"-listed jobseeker was thus dispatched to a
job of any substantial duration and the Union had re-
ceived no complaints about his performance from his em-
ployer, he would be transferred to the "A" list (without
apparent regard to his length of residency and/or his
technical satisfaction of the terms "local journeyman" or
"qualified journeyman" as they appear in the labor
agreement). Thus, placement on the "A" list appears to
reflect that the Union had been satisfied that those thus
placed possessed at least minimum journeyman skills.
Such individuals would thereafter be dispatched to jobs
within their respective apparent skill ranges and where
the contractor-employer had not preempted this possibil-
ity by filling his needs through "name" requests.
It must be recalled that Richard (and to some degree,
Sandra, as well) were aware from their experience and
familiarity with the relatively small membership of the
ranges of job skills possessed by the individuals on the
"A" list. Accordingly, it was frequently the case (when
the contractor-employer left it to the Union to select a
journeyman for referral) that judgments as to which
person to refer were influenced by considerations of skill
and experience more than the length of time an individu-
al had been "on the bench" awaiting referral. Since not
all jobs required special or unique skills, however, length
of time on the bench controlled when several apparently
qualified "A"-listees were available.
tent statements in favor of Sandra's more systematic descriptions of its
actual operation. Sandra had greater day-to-day familiarity with and re-
sponsibility for the operation of the hiring hall.
In considering whom to refer to a specific job call, the
location of the job determined which pool of available
registrants would be drawn on. Thus, the Union would
look to Cheyenne-area registrants to fill a job call in that
area even if there was a registrant residing in a more dis-
tant locality who had been out of work longer than all of
the Cheyenne registrants. 6
During the relatively short summer construction
season, there have been-in recent times at least-job
calls in sufficient numbers to keep the bench empty; i.e.,
not only "A"-listees were regularly referred out as soon
as they completed an employment stint, but available
"B"-listees as well. In some cases during the peak con-
struction season, Richard would even call on persons
whom he knew around the State who had never signed
up for referral in order to fill contractors' requests for
qualified help.
During the winter months, however (which is the
period during which Charging Party Hamilton was alleg-
edly wrongfully denied referral by the Union), the above
description of the operation of the hiring hall becomes
somewhat academic. For, during that relatively inactive
construction period, there are numerous journeymen on
the bench awaiting referral. Because of this, and because
the labor agreement gives contractors broad discretion in
making "name" selections, the Union plays a mostly pas-
sive role in the referral process. Thus, as Sandra credibly
described the typical process during the winter of 1979-
80, a contractor's agent will simply call, identify the job
and number of persons he needs, ask: "Who's on the
list?" and pick persons by name who are known to the
hiring agent.
If the Union has any influence at all in this process, it
is limited to making appeals on behalf of a given regis-
trant or registrants on the bench to the effect: "So-and-so
has been out of work for a long time and he's a pretty
good man. How about taking him?"' I infer from the tes-
timony of some of the journeymen called as witnesses for
the Union that these appeals have some influence when
they or their union member-counterparts with other con-
tractors are acting in supervisory positions which allow
them to make the job call to the Union.
D. Hamilton's Difficulties
Jimmey Ray Hamilton first appeared at the Cheyenne
office of the Union in early September 1979. The record
is vague as to when he had first become a resident of
Wyoming. The only testimony on this subject was from
his wife, Krista, who appeared to be ccnfused, but who
said that she and her husband had first lived in Cheyenne
from "May or June, 1979 to March, 1980," but who also
said that they lived in Wheatland "from May, 1979 to-
wards the end of May, 1980." I find that the Hamiltons
6 This practice is seemingly authorized by the labor agreement which
at sec. I quoted above prohibits the Union, absent the contractor's agree-
ment, from dispatching workers where "travel and subsistence" is re-
quired (the labor agreement elsewhere provides for travel and subsistence
premiums to be paid to workers dispatched from a remote "dispatch
point").
' Another variation (adapted from Richard's testimony): "So-and-so
needs more worktime in order to qualify for unemployment benefits. Can
you use him?"
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first came to Wyoming in May 1979, living first for a
brief period in Cheyenne, then later in Wheatland
throughout the period with which we are concerned.'
Hamilton had come from a variety of academic and
work pursuits in the Eastern United States. In the final
year before moving to Wyoming, Hamilton had been
employed as a journalist with a newspaper in Virginia
and had been attending school part time. For some time
before that, he had been pursuing a college degree in
mass communications. In the preceding 5 years, he had
also been in college, and had also driven a truck, and
had worked several short-term residential jobs for
cement contractors. Before then, he had been in the
United States Air Force for 5-1/2 years. At best, his ex-
perience in cement masonry work had been intermittent
and on a "moonlighting" basis for the period of about 5
years immediately before his move to Wyoming. Neither
had it included work in anything but the most routine,
residential masonry jobs (e.g., patio, sidewalk, and drive-
way work).9
When Hamilton and his wife first appeared at the
Union's hall in Cheyenne in September 1979, he intro-
duced himself to Richard, who asked him several ques-
tions about his background and experience. Crediting
Hamilton, Hamilton told Richard, inter alia, that he did
not have much heavy construction experience (in fact,
on this record, he had not had any such experience).
Richard gave Hamilton an experience form to com-
plete. °i On this form, Richard checked 8 of 18 specific
types of typical masonry work described therein." The
boxes checked by Hamilton included only routine tasks.
Hamilton also listed two employers whom he had
worked for in the space calling for cement work experi-
ence in the past "3 years." Here, Hamilton represented
that he had worked for "2-1/2 years" for a Virginia con-
struction firm doing "block laying"; 2 and "I year" for a
Cheyenne contractor doing "footers and foundations."' 3
8 To the extent that the duration of Hamilton's residence in Wyoming
is relevant to a determination of what referral category he was entitled
to, I conceive it to have been the General Counsel's burden to show, if
he contended that Hamilton was entitled to "local journeyman" treat-
ment, exactly how long Hamilton had been a Wyoming resident. Having
made a confused record on this point, the General Counsel is not entitled
to a finding that Hamilton had been a resident of Wyoming for more than
6 months prior to his first registration with the Union.
9 From these, and from other findings below, it is clear that Hamilton
did not possess "journeyman" skills in cement masonry as the term is or-
dinarily understood, and that, in any case, he would not have satisfied the
test set forth in the labor agreement at art. VI, sec. 3, which requires "at
least 3 years actual practical working experience as a Cement Mason, as a
journeyman or apprentice, in the building and construction industry." At
best, crediting Hamilton's estimate solely for present purposes he had
worked a lifetime total of 300 days as a cement mason before arriving at
the Union's hiring hall. As of the time of the hearing herein, he still did
not know what a "screed" was (i.e., a temporary form or leveling device
used in virtually every type of foundation, sidewalk, or driveway pour).
'° Resp. Exh. I.
" Respondent's witness Eddie Vijil credibly testified that a "qualified
journeyman" should have experience ir. all of the 18 typical job tasks set
forth on the Union's experience form.
12 In fact, as his cited testimony shows, he did not work anything near
"2-1/2 years" for a single Virginia masonry contractor.
"3 Since I have found that Hamilton first arrived in Cheyenne in May
1979, this entry was plainly an exaggeration. In addition, as he testified,
albeit vaguely, his work for the Cheyenne contractor was "on and off."
and did not add up to a full year's experience.
Hamilton's wife further recalled that Richard told her
husband during their first meeting that when the Union
sent him to a job Hamilton would have to furnish his
own tools. When Hamilton asked about the payment of
union dues, Richard told him that the Union permitted
"a reasonable amount of time for somebody coming in
new to pay . . . dues."
There was no specific discussion about which "list"
Hamilton's name would be placed on. Consistent with
the practice earlier described, however, Richard admit-
tedly entered Hamilton's name on the "B" list, reflecting
that Hamilton's qualifications were not yet personally
known to Richard. This did not prejudice Hamilton.
Within about 2 weeks, Richard dispatched Hamilton to a
job, but Hamilton could not respond because of a foot
injury. Shortly afterwards, Richard again dispatched him
to a job but, upon Hamilton's arrival, the foreman said
there had been a mistake and no one was needed. Hamil-
ton called Richard from the site and Richard promised
to "straighten it out." Richard again dispatched Hamil-
ton on October 22 to a job with Morrison-Knudsen at
the Laramie River Power Station near Wheatland. Rich-
ard worked at this job until he was laid off during a re-
duction in force on November 29. 4
After his layoff, on or about December 3, Hamilton
notified the Union that he was out of work. What hap-
pened thereafter between Hamilton and Sandra and
Richard is in substantial dispute, although everyone
agrees that Hamilton received no further dispatches until
after he filed the charge with the Board in February
1980.
Summarizing Hamilton's testimony (as well as that of
his wife, who figured in some of the exchanges reported
below): Hamilton (or his wife) made numerous contacts
by telephone or in person with either Sandra or Richard.
Prior to about mid-February 1980, Hamilton would peri-
odically inquire about work possibilities and he would be
told by Richard or Sandra that there were a given
number of persons "on the list" and Hamilton would be
given vague estimates as to how long it would be before
he could be dispatched. 5
At least twice during this period, crediting the Hamil-
tons, Hamilton asked "if it would help" to pay union
dues and initiation fees. Each time Richard said that it
would "not make any difference as far as [Hamilton's]
placement on the list." In each case, Richard told Hamil-
ton that he would not have to pay dues or fees until he
got back to work, and, then, that he should pay them as
soon as he was able to.
Hamilton's wife testified further that in about mid-Feb-
ruary,'6 she called Sandra, who told her that Hamilton
was "Number 2 on the list." Shortly afterward, on or
about February 19, Hamilton learned that some men had
been dispatched to a I-day job with a construction firm
called "Centric." He testified that he then called the
"' Neither Hamilton's charge nor the complaint attacks the Union's
treatment of Hamilton prior to December 1979. 1 therefore assume that
Hamilton was accorded regular and lawful treatment in dispatch during
the above-described September to December 1979 period.
s This general testimony is not in dispute and I therefore credit it.
ri Hamilton's wife said it was in "late February," but context shows
that the conversation next reported was before February 19. 1981.
1390
OPERATIVE PLASTERERS & CEMENT MASONS. LOCAL NO. 299
Union's Cheyenne office and spoke with Richard. Hamil-
ton recalls Richard explaining that Hamilton had not
been sent to the Centric job because Hamilton was
"Number I on the 'B' list," but that there were about 20
persons on the "A" list who would have referral prior-
ity. According to Hamilton, Richard explained that the
"A" list was "for guys that he knew well and had been
masons in the local for a long time and ones that had
made their book," and that the "B" list "was for guys he
didn't know very well and had not paid their dues."
Hamilton states that Richard then told him that if a job
came up that none of the "A"-listees wanted Richard
would send Hamilton out on it. 7
Upon hearing for the first time that he was on some-
thing called the "B" list, Hamilton testified, he went to
the Cheyenne office personally and spoke with Sandra.
She told him that Richard was not in and that he should
address his complaint to Richard. Hamilton also de-
scribed a conversation with Sandra which he said oc-
curred the next day, but which more probably took
place during their face-to-face meeting. Here, according
to Hamilton, Sandra told him that there were "some
drunks and unreliables" on the "A" list and that he
would be called before them. When Hamilton asked
about the -day Centric job to which several persons had
been dispatched, Sandra told him that they had been sent
because they had been requested "by name." Hamilton
expressed disbelief that "every contractor in the State of
Wyoming was asking for people by name." Sandra re-
plied to the effect that many of the tradesmen were not
working.
The next day, Hamilton recalled vaguely, he called
Richard, who acted "annoyed" and "pretty much told
me not to call him, that he would call me." Believing by
then that he was being given a runaround, Hamilton
made an angry call to the office of the secretary of the
Wyoming AFL-CIO, Keith Henning. Crediting Carol
Fowles, Henning's secretary, and, discrediting Hamilton
as to any discrepancies (based on the demeanor of the re-
spective witnesses), Hamilton angrily and profanely com-
plained that he was being treated unfairly by the Union
and also threatened to hire a lawyer and to call a press
conference if he did not hear from Henning (who was
out of the office at the time). Fowles telephoned the
Union and reported to Sandra what Hamilton had done.
Sandra so informed Richard. Hamilton never made per-
sonal contact with Henning.
On or about February 22, Richard telephoned Hamil-
ton. Their conversation is disputed. Hamilton's wife lis-
tened in on an extension phone. Richard's recollection of
the conversation was poor and he was uneasy and eva-
sive in testifying on the subject. I credit mostly Hamilton
and his wife in these composite findings: Richard angrily
called Hamilton a "fucking sonofabitch" for complaining
to Henning's office. Richard complained that he had
' Richard's testimony about this conversation was vague and I there-
fore credit Hamilton. except for his seemingly embellished recollection
that Richard made reference to payment of dues as being a criterion for
referral priority. The record elsewhere shows that his dues payment
status was not influential in Hamilton's treatment by the Union Since
Richard had not accepted Hamilton's earlier offer to pay dues, I con-
clude that Richard did not tell Hamilton anything to the effect that dues
payments would enhance his referral prospects.
been "busting [his] ass to get [Hamilton] a job." Hamil-
ton made some reference to "getting" Richard through a
lawyer and vowed that Richard would "pay for his
house and his family." Richard said that he would "get"
Hamilton or would have someone "get" him. Richard
made a suggestion that the two meet the next day. Ham-
ilton declined. Richard said that his proposal was to
meet to discuss their differences and that he wanted to
explain to Hamilton why Hamilton had not been dis-
patched. Hamilton thought Richard was challenging him
to fight. The conversation ended inconclusively.
Some concluding findings are required regarding the
events up to this point. I have already made some limited
adverse credibility resolutions regarding the Hamiltons'
accounts of these events but, in general, they are not dis-
puted. The only additional material dispute that I can
detect is that Sandra emphatically denied, as the Hamil-
tons contended, that Sandra ever told Hamilton or his
wife that Hamilton occupied a specific position "on the
list." Sandra was especially emphatic in denying that she
had ever said, in mid-February, that Hamilton was
"Number 2 on the list." I credit Sandra as to these de-
nials. Given the nature of the hiring hall operation in the
winter months, it is doubtful that anyone could know
with certainty when a referral applicant's "number"
would come up. Also, as a matter of policy, Sandra testi-
fied credibly, she would not disclose this information
but, instead, would only tell a caller that there were a
certain number of persons awaiting referral. I conclude
that Sandra imparted no more than the latter type of in-
formation when the Hamiltons called in the period
before mid-February. I further conclude that Sandra
never told Hamilton's wife that he was "Number 2" or
any other specific "number."
As to why Hamilton had not been dispatched between
his layoff from M-K on November 29, 1979, to February
28, 1980, when he filed the instant charge, I make the
following findings: Hamilton's stay on the M-K job was
marked by poor performance. Crediting the testimony of
foreman Eddie Vijil, who was in charge of a crew num-
bering up to 12 men, Hamilton showed up on the job
without a set of tools. Vijil loaned him some tools which
he used thereafter. 18
Vijil also testified that Hamilton was regularly tardy in
arriving for work and that he missed several days of
work. Hamilton does not dispute that his attendance was
less than constant. Vijil, corroborated by fellow M-K
employee James Abeyta, testified credibly that Hamilton
showed little or no knowledge of the industrial cement
construction techniques being used on the power plant
project for which M-K was responsible. Vijil states that
he and other crewmembers were required to teach Ham-
ilton the basic techniques. When it came time to reduce
the work force, crediting Vijil, the job superintendent in-
" Hamilton admits that he did not have tools on his first day, but he
states that he brought his own tools thereafter for the balance of the 5
weeks he was on the M-K job. I credit Vijil. even allowing for the possi-
bility that Hamilton brought some additional tools of his own after the
first day. Vijil was credible in his demeanor and had no stake in the out-
come. Sandra credibly testified that sometime during the peried of Ham-
iltion' 5 weeks at M-K. the hiring agent. "Mike," complained to her:
"What are ou doing sending me turkcs ,lth no tools'
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
structed Vijil to include Hamilton in the layoff due, pri-
marily, to his recent poor attendance. '9
Sandra testified that Hamilton was still considered eli-
gible for referral notwithstanding his marginal back-
ground and the poor report on him from M-K. She and
Richard agree that Richard told her not to count the one
bad report from M-K against him. I so find. It is evident,
however, that, until the charge herein was investigated,
the Union was treating Hamilton as a non-"local jour-
neyman" and that his name was being carried on the
Union's "B" list. For obvious reasons, this made it less
likely that he would be referred to any given job call for
a journeyman than would someone being carried on the
"A" list.
Sandra systematically reviewed every dispatch made
from the hall in the pre-March 1980 period and suggest-
ed reasons in each case why Hamilton was not referred.
Most of these were either geographically inappropriate
or resulted from "name" requests. As to a few, she
claims from vague recollection that she tried to call
Hamilton at home but received no answer. I credit her,
particularly as to the "by name" and "geographic inap-
propriateness" reasons.20 There was no showing to the
contrary as to these alleged reasons and Sandra appeared
to be sincere. In addition, the only dispatch which the
General Counsel seemed to challenge was the one in
mid-February to Centric's job near Wheatland. As to
that job, Foreman Gallegos substantially corroborated
Sandra that he selected the men to be dispatched after
Sandra named the persons on the list. Neither Gallegos
nor Sandra specifically recalled whether Hamilton's
name was offered for Gallegos' consideration.
After Hamilton filed the instant charge on February
28, 1980, an investigating agent for the Board met with
Sandra and Richard in March. He told them something
at the time about the "A" and "B" lists which caused
them to conclude that maintaining separate lists was un-
lawful and that they should consolidate those lists.
Thereafter, Hamilton's name was carried on the newly
consolidated list. Crediting Sandra, she thereafter "bent
over backward" to find dispatches for Hamilton. He was
dispatched to a job with Hansel-Phelps in Sweetwater on
March 17, but he did not answer the dispatch due to dif-
'9 In March, after Hamilton filed the charge, the Union dispatched him
again to a -day job with M-K over the protest of M-K's hiring agent.
Sandra credibly testified that she wished to avoid further charges by
Hamilton of discrimination against him. She further told M-K's agent that
unless M-K formally requested in writing that Hamilton not be dis-
patched he would be referred for future calls. On April 15, the Union
received a letter from M-K's business manager (Resp. Exh. 3) stating that
Hamilton was "less than a marginal employee," that he did not possess
necessary tools and displayed "little or none of the qualities expected of a
journeyman cement mason," that his absence and tardiness record was
poor and required shifting of personnel to "cover" for him, and, finally,
"[ilf Mr. Hamilton is again referred to Morrison-Knudsen without his
tools, he will be terminated on the spot and directed to return to the
hall."
'0 As to the "no-answer" reason, I retain some doubts. While Hamilton
and his wife acknowledged that they could not be certain that someone
was always at home to answer the telephone, neither was Sandra com-
pletely sure in those few "no-answer" instances that this was the real
reason. Rather her testimony was in the hypothetical mood (i.e., "I'm
sure I would have called him for this job"). I believe that Sandra was
sincere in attempting to recall what had happened, but that she had no
distinct recollection. Therefore, the accuracy of her testimony here is in
question.
ficulties with his truck. Sandra credibly recalled, howev-
er, that she had prearranged with another Wheatland dis-
patchee to drive Hamilton to and from the site but that
Hamilton had refused this arrangement. She further cre-
dibly recalled that Hamilton called the Cheyenne hall 2
hours after he had been due to appear for work to say
that his truck problems made it impossible for him to
take the dispatch. Hamilton does not deny these details
and I credit Sandra.
Sandra again dispatched Hamilton to a -day job with
M-K on March 25 and he accepted that job.2" Thereaf-
ter, he received no further dispatches in the month of
April 1980. Again, as she had done for the earlier period,
Sandra attempted systematically to recall why Hamilton
did not receive any of the dispatches in April 1980.
Again, taking the dispatches one-by-one, she reported
that they were either geographically inappropriate for
Hamilton, or were filled by "name" selections from the
"local journeymen" list, or she had tried to telephone
Hamilton to dispatch him and received no answer.
Again, I credit her testimony as to the geographic inap-
propriateness and "name" reasons, but retain doubts
about the accuracy, but not the sincerity, of the "no-
answer" reason.
By May 1, 1980, Hamilton had moved his family to a
new location and had not communicated this fact to the
Union, nor left a forwarding address or telephone
number. On May 15, the Union mailed a certified letter
to Hamilton at his last-known Wheatland address. The
letter stated, inter alia:
We have tried several times the past two weeks
to reach you by phone at the number you gave us.
. .. That number is no longer in service.
So that you will not miss any more opportunities
for work, please advise this office of a phone
number where you can be reached.
Hamilton's wife somehow learned of the letter and
signed the receipt for it on May 21. Hamilton made no
further effort to make contact with the Union until, he
says, sometime in June. Hamilton described the ensuing
conversation which, in the absence of contrary evidence,
I credit, as follows: Hamilton asked Richard, "What the
situation was." Richard replied: "I really don't owe you
anything." Hamilton asked: "What about work up
around Cody?" Richard replied: "There might be some-
thing in six months." Hamilton said: "That's what I
thought," and hung up. Hamilton admittedly did not
inform Richard of his current whereabouts. There was
no further communication between Hamilton and the
Union.
2' It was after this second dispatch to M-K that M-K reported by letter
dated April 15 to the Union that Hamilton was "less than marginal" and
did not possess necessary tools (see fn. 19, supra). Hamilton denied that
this was the case from the witness stand but, for the balance of April, the
Union had no information to contradict the letter from M-K. And, as is
set forth below, on May 1, Hamilton disappeared from his former resi-
dence at Wheatland and the Union had no way thereafter to reach him.
1392
OPERATIVE PLASTERERS & CEMENT MASONS, LOCAL NO. 299
E. Factual Conclusions Regarding Alleged Bypassing
of Hamilton
Reserving for later consideration the question of the
lawfulness of the Union's treatment of Hamilton, I draw
these summary conclusions from the foregoing findings
and from the record as a whole about why Hamilton did
not work more regularly during the period in question.
First, the period with which I concern myself is the
period after Hamilton's initial layoff from M-K at the
end of November 1979 through April 1980. The General
Counsel has virtually conceded in remarks made during
the hearing as well as by his failure to deal with the
point on brief that Hamilton's disappearance on and after
May 1, 1980, absolved the Union from any further re-
sponsibility to seek him out for job referrals. I would so
conclude in any case. Hamilton's inconclusive conversa-
tion with Richard in June was not enough to trigger on
the Union's part some new duty to treat him as a job ap-
plicant-especially when Hamilton did not disclose how
he might be reached by the Union if a referral possibility
were to arise.
Concerning that relevant period (winter 1979-80), 1
find, in summary, as follows: Hamilton had failed to sat-
isfy the Union by any reasonable means that he was enti-
tled to registration as a "local journeyman." While the
Union did not appear to be concerned about the 6-month
residency test for qualifying as "local," it had ample
grounds for doubting that he was a "journeyman." 22 His
initial placement on the "B" list in September was not
challenged by the complaint and I must take this as a
concession by the General Counsel that there was noth-
ing inherently violative of Hamilton's rights in the
Union's having made this initial classification judgment. 23
When Hamilton was continued on the "B" list after his
initial layoff from M-K, the Union thereby indicated its
continuing doubts as to his qualifications as a journey-
man. It was this placement judgment which contributed
heavily to his failure to be called for jobs in the ensuing
period before he filed his charge with the Board. While
the Union did not completely remove him from consid-
eration for further referrals, I find that the Union made
no effort to "push" him when contractors called for
qualified help. I am satisfied that this was based solely on
the Union's judgment that he was not qualified for most,
if not all, of the jobs which were called into the hiring
hall. 24
I do not find it to be suggestive of any ulterior pur-
pose that Sandra was not convincing in her vague recol-
lection that she attempted without success to telephone
Hamilton for some of the referrals during the period in
question. Whether she even had a duty to seek out Ham-
22 Not only was his professed background in the trade at best facially
marginal, but he had also affirmatively demonstrated on the M-K job that
he was unprepared to perform the variety of tasks associated with posses-
sion of "journeyman" skills.
23 It was also, in my opinion, an entirely reasonable judgment for the
Union to make given his marginal background even as he professed it,
and given the Union's contractual duty to refer only "qualified" journey-
men.
24 Put another way, I am satisfied from the utter absence in the record
of any contrary indications that the Union was not prompted by hostile
considerations based either on Hamilton's lack of union membership or
on some personality conflict.
ilton for journeyman referrals under the circumstances is
doubtful. For the moment, it suffices to observe that her
inability to recall the particular circumstances of every
dispatch made throughout that period was understanda-
ble. 25 Far from being an indicator of bad faith, Sandra's
willingness to concede that there were jobs for which
she would have treated Hamilton as qualified suggests
candor on her part and a good-faith desire to treat him
fairly.
In any case, the existence of numerous out-of-work
"local journeymen" whose qualifications were known to
the Union virtually precluded the possibility that Hamil-
ton would be referred. This was because contractors
generally exercised their contractual right to select refer-
rals "by name" and because, in cases where the Union
had some opening to use its own discretion, there were
always others available whom the Union could conscien-
tiously refer as being "qualified."
I might infer from the fact that the Union somehow
managed to find two jobs in March 1980 for Hamilton
that it had been intentionally refusing to consider him for
referrals during the preceding period. I do not so infer.
Rather, I am satisfied that Hamilton's charge to the
Board caused the Union to double its efforts-not be-
cause Richard and Sandra had somehow come to view
Hamilton's qualifications in a more favorable light, but
only in an effort to avoid any appearance of discrimina-
tion and to get the Government off its back. 26 To this
extent, therefore, they were giving him extraordinary
treatment.
II. LEGAL ANAIYSIS AND CONCLUSIONS
The complaint was tightly focused. It alleges that the
Union's maintenance of two lists was a "sham" which
had "no import" to the referral process; and, therefore,
that such a dual list system amounted to a per se viola-
tion of Section 8(b)(1)(A). It further alleged that the
Union violated Section 8(b)(2) of the Act by failing to
dispatch Hamilton after December 3, 1979, "because of
arbitrary, unfair, and invidious reasons, and for reasons
other than [Hamilton's] failure to tender periodic dues
and the initiation fees uniformly required as a condition
of acquiring or retaining membership in [the Union."]
(Emphasis supplied.)
2 The absence of systematic and fully business like records of registra-
tion and referrals was likewise understandable and did not constitute evi-
dence that Hamilton was being treated irregularly. The Union was the
labor organization counterpart of a mom-and-pop business. Sandra was
beleaguered by the numerous tasks which fell to her to handle in Rich-
ard's frequent business absences. The somewhat sorry state of Respond-
ent's records was, therefore, merely the product of the circumstances. It
is not, per se, a violation of the Act for a union to maintain poor re-
cords-or none at all. Local 394, Laborers International Union of North
Ameria, AFL-CIO (Building Contractors Association of New Jersey). 247
NLRB 97, fn. 2 (1980).
26 There is ample evidence that Hamilton's call to Henning's office at
the Wyoming AFL-CIO triggered Richard's resentment Notwithstand-
ing that, there is affirmative evidence that the Union, for the reasons
noted, increased its efforts to find jobs for Hamilton It is also likely that
Richard and Sandra do not feel warmly towards Hamilton for having
filed the Board charges (including for his assertion therein-itself un-
founded on this record-that "Richard takes care of his fellow Mexicans
[sic] first") Again, the record suggests that, this likely ill-will notwith-
standing, the Union sought harder than ever to find jobs for him.
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the former allegation, I find it to be meritless.
As I have found above, the labor agreement itself lawful-
ly provided for referral priorities for employees seeking
employment in the unit which it covered. Briefly, sum-
marized, it authorized a system whereby at least 50 per-
cent of the referrals to any given employer be "local
journeymen." It further established specific, objective,
and lawful, criteria for determining whether a jobseeker
was entitled to be regarded as, first, a "journeyman," and
second, as "local." It further required that duly regis-
tered journeymen who resided in a given area be given
priority for referrals to jobs in that area, in order to
minimize the chances that employers would incur travel
and subsistence expenses associated with the dispatch of
persons from a more remote dispatch point.
The General Counsel has never identified exactly what
it is about the "A" and "B" list system used by the
Union which was "sham" and which had "no import" to
the referral process. Neither has the General Counsel
suggested how the Union's dual list system, per se, serves
any improper purpose. Indeed, the General Counsel has
simply abandoned that allegation in his brief. I am there-
fore left at a loss to determine at what, if anything, that
cryptic allegation was directed.
That allegation must fall in any case. While the con-
tract did not specifically call for the maintenance of "A"
and "B" lists of the type that the Union employed, I
have no difficulty in finding that those dual lists served
an important purpose in aiding the Union in determining
whether or not to send a given registrant to a given job.
I have found that the principal significance of the dual
lists for purposes of this case is that they established two
categories of registrants-those that had satisfactorily
demonstrated that they possessed journeyman skills and
those that had not. Plainly, therefore, they had relevance
to the most basic requirement in the contract that only
"qualified journeymen" be referred. Incidentally, both
lists contained a registrant's residence address, telephone
number, and last date of employment-likewise informa-
tion needed by the Union to apply the various contrac-
tual requirements outlined above pertaining to referral.
Thus, they were neither "sham" nor irrelevant to the re-
ferral operation from those standpoints either. And, con-
trary to the occasional and inconclusive intimations by
the General Counsel, placing a jobseeker's name on the
"B" list was not tantamount to throwing it in the trash.
Hamilton's own experience in being referred from the
"B" list wholly precludes that interpretation. A "B"-
listee simply had fewer practical chances to be nomi-
nated by the Union or selected by an employer for
jobs-especially during the winter months, when the
bench was full of qualified journeymen, and "local" ones
at that, who were entitled to at least 50 percent of the
jobs even before other qualified journeymen could be
reached.
Accordingly, there was nothing inherently "sham" or
unlawful per se27 about the Union's maintenance of the
5" The lawfulness of the Union's choice to place Hamilton on the "B"
list is, of course, a separate question, which I address below.
two lists, and the complaint allegation under discussion
must therefore be dismissed.
Addressing the second, and principal, allegation of the
complaint, that pertaining to the failure of the Union to
dispatch Hamilton since December 3, 1979, some prelimi-
nary observations are in order: First, the language
chosen in the complaint-that the Union was motivated
by "arbitrary, unfair, and invidious reasons" and by rea-
sons other than Hamilton's failure to satisfy certain mem-
bership requirements-clearly invokes a "fair representa-
tion" theory of violation under Mliranda, supra. While
the "fair representation" phrase encompasses a variety of
potentially unlawful practices, the only thing that may be
said for certain is that it rules out any claim that the
Union was merely discriminating against Hamilton be-
cause he was not a member of the Union or had failed in
some other way to satisfy membership requirements. 2 8
It is therefore most remarkable to me that the first ar-
gument suggested by the General Counsel on brief is that
Hamilton was the victim of discrimination because he
was not a member of the Union. The General Counsel
here relies on certain general testimony of Richard in
which he described the "A" list as being comprised of
"members" of the Union.2 9
I reject this contention pro forma. If the prosecution's
complaint was intended to challenge an alleged practice
by the Union of giving low priority in referrals to Ham-
ilton or other persons who had not satisfied "member-
ship" requirements, then the General Counsel certainly
knew how to plead that theory; and, for the reasons
noted, it expressly ruled such a theory out of the case by
the language which it chose. It is simply too late at the
briefing stage for the General Counsel to advance a
theory of violation which was never fairly encompassed
by the pleadings, which thereby failed to satisfy even
minimal due process "notice" requirements, and which
thereby precluded the possibility of full litigation of the
theory.3 0
I also reject it on its merits. The record elsewhere
shows that the Union was not anxious about, or resentful
of, Hamilton's failure to join the Union or pay dues to it.
Richard repeatedly assured Hamilton that he need not
pay dues or initiation fees to the Union until he had re-
ceived sufficient work referrals to afford it and he fur-
ther expressly disabused Hamilton of any notion that he
might get referred sooner if he tendered such dues or
fees. Rather, as I have elsewhere concluded, it was the
Union's judgment that Hamilton was not a fully qualified
journeyman which had an adverse impact on his referral
opportunities.
Having identified the Union's decision not to treat
Hamilton as a fully qualified "local journeyman" as the
only basis for an argument that the Union did something
2 Were there any lingering doubt on the point, the complaint clause
which asserts that the Union was motivated by reasons "other than" his
failure to satisfy uniform membership requirements conclusively rules out
any theory of discrimination based on lack of union "membership."
:9 Richard elsewhere stated, however, that nonmembers had likewise
been placed on the "A" list
1 Camay Drilling Company, 254 NLRB 239, fn. 9 (1981).
1394
OPERATIVE PLASTERERS & CEMENT MASONS. LOCAL NO. 299
to him which tended to impair3 his chances for more
job referrals than he actually received in the winter of
1979-80, it remains to determine whether the Union so
acted in derogation of its obligations under the Act. I
have noted the prima facie applicability of the Miranda
fair representation doctrine to the Union's relationship
with Hamilton. Miranda teaches that, where, as here, a
labor organization enjoys status as the exclusive collec-
tive-bargaining representative of a unit of employees, it
owes a duty which is statutory in origin to refrain "from
taking action against any emplovee upon considerations
or classifications which are irrelevant, invidious, or
unfair."32 The Miranda majority took pains, however, to
echo the view of Justice Harlan in Local 35733 that "the
Act was not intended to interfere significantly with those
activities of employer and union which are justified by
nondiscriminatory business purposes, or by nondiscrimi-
natory attempts to benefit all the represented employ-
ees." 34
I note, moreover, the Board's holding in Operating En-
gineers, Local 18,35 that a legal presumption of unlawful
"encouragement of membership" in violation of Section
8(b)(2) of the Act flows from the mere proof that a
union has taken action to have an employee discharged
or to "prevent" his hire, and that the burden then shifts
to the union to show that its actions were somehow nec-
essary to the effective performance of its representation
of its constituency. (Ibid.)
When read together, these cases establish not only that
a union may not take action impairing a represented em-
ployee's job tenure or prospects based on arbitrary,
unfair, irrelevant, or invidious considerations, but also
that the union bears the practical affirmative burden of
justifying virtually any such "impairment" action by
showing that its action was taken to fulfill its overriding
duty to represent the legitimate interests of its constitu-
ency.
I have found that the Union did "impair" Hamilton's
job referral prospects by treating him at all times materi-
al herein as something less than a broadly-qualified
"local journeyman"-with emphasis on the "journey-
man" portion of the phrase. The question which is there-
fore raised is whether the Union's actions in this regard
were done in good faith, based on rational consider-
ations, and were linked in some way to its need effective-
ly to represent its constituency as a whole.
I answer this question affirmatively. Control over and
regulation of the hiring process through the operation of
exclusive hiring halls is the-common and perhaps essen-
tial-means through which unions in the building and
construction industry may effectively represent employ-
ees in that industry.36 But, in order to achieve that exclu-
31 It bears repeating that the decision by the Union to treat Hamilton as
something less than a fully qualified journeyman only had the tendency
to impair Hamilton's referral chances. It has not been demonstrated that.
but for this decision. Hamilton would have been referred to an) particu-
lar job during the period in question
. 140 NLRB at 185.
3:' Local 357. International Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America [Los .Angeles-Seattle Motor Expries] s.
N.L.R.B., 365 U.S. 667, 681-682 (1961).
4 140 NLRB at 187.
: International Union of Operating Engineers. Local 18. AFL-CIO (Wl-
ham F Murphy), 204 NLRB 681 (1973)
i" Local 3s7, 365 U.S at 672-674.
sive hiring hall status with construction industry employ-
ers, some quid pro quo is usually required. As herein, it
usually takes the form of contractual requirement that
the union furnish only "qualified" help. Thus, when a
union seeks, in the interests of its constituency as a
whole, to have initial influence in the regularizing and de-
casualization of the hiring process through the operation
of an exclusive hiring hall, it must have credibility with
employers as being a reliable source for the furnishing of
trained and experienced personnel. And, while it is true
that the Union's primary purpose is not so much to act
as a "screening" agency for employers as it is to ensure
that its constituents get their fair share of work opportu-
nities under controlled conditions, a union necessarily
must employ reasonable eligibility standards in selecting
applicants for referral. If it fails to do so and uncritically
refers individuals to jobs without regard to their qualifi-
cations for the work, it ceases to have any real value to
employers in the industry and thereby undermines its
own proper interest in playing a central role in the hiring
process.
Accordingly, it is beyond doubt that a union may use
reasonable judgment in determining whether to send a
given individual to a given job. This is so without regard
to the presence or absence of specific, additional "qualifi-
cations" restrictions which may be inserted into labor
agreements providing for exclusive hiring halls. Especial-
ly where, as here, a union has lawfully committed itself
by contract to make classification judgments relating to a
jobseeker's qualifications, it is an unmistakable part of a
union's effective performance of its representative func-
tion to avoid referring individuals who do not satisfy the
contractual prerequisites for referral.
I have found that the Union's judgment as to Hamil-
ton's lack of journeyman skills was the only reason why
Hamilton was not included in the "A" or priority refer-
ral group. There is a total absence of evidence of any
bad-faith or hostile considerations on Richard's or San-
dra's part in making this judgment. I have further con-
cluded that this judgment was not based on arbitrary,
whimsical, or irrelevant considerations. Rather, it was
genuinely based on objective indications that Hamilton's
background experience was marginal (i.e., Hamilton's
own "experience" form-itself exaggerated) and further
on objective indications that he was a substandard per-
former on the initial M-K job (i.e., reports from M-K's
agent that Hamilton was a "turkey" without journey-
man's tools, and reports from its own member, Vijil, that
Hamilton had no grasp of even basic industrial cement
masonry techniques).
Significantly, the General Counsel has never directly
urged that Hamilton was objectively entitled to classifi-
cation as a "local journeyman," although such a premise
would appear to be implicit in his attack on the Union's
treatment of Hamilton. Thus, the General Counsel never
undertook, as part of his prima facie presentation, to
show that Hamilton had fulfilled either the "residency"
or the "experience" requirements for treatment as a
"local journeyman." 37 As I have noted above, there is
" 1o the extent that there i evidence in the record hearing on either
of those qucstlion, it as adduced primaril by the Unioln', coLuniiel
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence warranting the conclusion that Hamilton had
not been a Colorado resident for a full 6 months before
registering in September 1979, even though the Union
does not seem to have been influenced by this considera-
tion. There is also evidence warranting the conclusion
that Hamilton possessed neither the "3 years" of "actual
practical" experience required for treatment as a "jour-
neyman," nor sufficiently varied experience in the range
of work commonly performed by cement masons. The
fact that Hamilton did not know even by the time of
hearing what a "screed" was strongly shows, as I find,
that even his claimed experience was an exaggeration
and that, as the Union eventually concluded, he barely
possessed even minimal background and experience in
the trade.
Accordingly, even if it was not the General Counsel's
threshhold burden (and I think it was) to show that
Hamilton was entitled to classification as a "journeyman"
or "local journeyman" (depending on the theory of vio-
lation),3 8 I have found that the overall record establishes
that he was not entitled to either such classification and
that it was not "arbitrary" for the Union to have made
the same judgment.
Additional (Nonalleged) Theories Urged by the
General Counsel
As I have done regarding the General Counsel's un-
timely and unlitigated contention that Hamilton was dis-
criminated against because he was not a "member" of
the Union, I likewise reject, pro forma, these additional
theories and arguments in the General Counsel's brief
which were never fairly encompassed by the two sub-
stantive allegations in the complaint and which therefore
were never fully litigated:
1. The contention that some (unidentified) section of
the Act was violated by Richard's failure to tell Hamil-
ton that the Union maintained two lists. 39
Alternatively, on the merits, it is clear that, until on or
about February 19, 1980, when Hamilton angrily pressed
Richard and Sandra regarding why he had not been dis-
patched for some time, the details of the Union's oper-
ation of its referral system had never been discussed. The
a, It is arguable, under a literal reading of the burden-of-proof analysis
suggested in Operating Engineers, Local 18, supra, that all the General
Counsel need show, prima facie, is that a union took action which im-
paired an employee's job tenure or prospects, and that the burden then
shifts to the Union to demonstrate that its actions were necessary as part
of its representative function. But, in a hiring hall case, it seems to me
that the General Counsel should bear an additional prima facie burden of
showing that the alleged victim of wrongful treatment was at least appar-
ently eligible for referral in whatever category may be applicable. Put all-
other way, it is contrary to practical experience for there to be a pre-
sumption that anyone who registers for referral with a union-operated
hiring hall is entitled to referral from a priority category; and, therefore,
the Union's defensive burden should not be imposed unless and until
some showing has been made by the General Counsel that an employee
was apparently qualified for, but did not receive, a particular job dis-
patch. Such a clearly imposed prima jiie burden would assist the Gener-
al Counsel in focusing his investigation of charges pertaining to hiring
hall violations and would avoid hearings such as the one herein where.
ultimately, it is not seriously disputed that the alleged discriminatee failed
to satisfy legitimate and objective qualifications for referral as a journey-
man.
'9G.C Br., p. 5.
subject simply had not come up. However, the Union's
referral records and its spiral notebook containing the
"A" and "B" lists were maintained in the Cheyenne
office and were freely available for inspection, crediting
Sandra's uncontradicted testimony on the point. It is also
undisputed that the Union never refused any request by
Hamilton to make information pertaining to his job pros-
pects available to him. For these reasons, Local No. 324,
Internatinal Union of Operating Engineers, AFL-CIO
(Michigan Chapter, Associated General Contractors of
America, Inc.), 226 NLRB 587 (1976), cited by the Gen-
eral Counsel, is utterly inapposite.
2. The contention that the Union's "conduct is clearly
inconsistent with and contrary to the . . . agreement's
hiring hall provisions," and is thus unlawfully "arbi-
trary." 40
Alternatively, I reject this contention on the merits.
The General Counsel has failed to identify precisely
which "conduct" by the Union and which "hiring hall
provisions" he is talking about. In the absence of some
specific challenge, it suffices to note that I have else-
where found and concluded above that the Union's refer-
ral practice insofar as they affected Hamilton were based
on nondiscriminatory and rational considerations and
were seemingly harmonious with the provisions of the
labor agreement.
CONCLUSIONS OF LAW
I. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The Union's operation of its exclusive hiring hall
pursuant to its current labor agreement with the Associ-
ation implicates employers who are in commerce within
the meaning of Section 2(6) and (7) of the Act and there-
fore the Board has jurisdiction over the complained-of
actions of the Union herein.
3. The Union did not, by its complained-of actions,
violate any provisions of the Act.
4. To the extent that it has been or may be argued that
conduct by the Union other than that challenged by the
complaint also violated the Act, those theories were
never fairly encompassed by the complaint and the facts
underlying them were not fully litigated; and, according-
ly, they must be rejected, pro forma. Alternatively, they
are not supported by a preponderance of credible evi-
dence in the record as a whole.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, I hereby issue
this recommended:
ORDER 4 1
The complaint is dismissed in its entirety.
"' Ibid.
4" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1396