Plumbers Local 375 (H.C. Price)

National Labor Relations Board - Board Decisions

Dec 30, 1999

330 N.L.R.B. 383 (N.L.R.B. 1999)

PLUMBERS LOCAL 375 (H. C. PRICE CONSTRUCTION) 383
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada, Local 375, AFL–CIO
(H. C. Price Construction Co.) and David C.
Vonder Haar. Case 19–CB–8032
December 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 30, 1998, Administrative Law Judge Clifford
H. Anderson issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The judge found that the Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act by failing, between
November 1996 and January 1997, to refer Charging
Party David Vonder Haar to jobs from the Respondent’s
exclusive hiring hall. The judge reached that conclusion
even though, as he also found, the Union did not act ma-
liciously or even negligently. He found, instead, that
James Laiti, the Union’s dispatcher, had, through no fault
of Vonder Haar, formed the good faith but mistaken be-
lief that Vonder Haar actually did not want to work dur-
ing that period, even though he had signed the referral
register in October 1996.2
The judge noted that the Board had consistently found
that, when a union fails to refer an applicant for em-
ployment in the proper order from an exclusive hiring
hall, it violates its duty of fair representation and Section
8(b)(1)(A) and (2) unless its actions are justified by a
lawful union-security clause or are necessary to the effi-
cient operation of the hiring hall. See, e.g., Iron Workers
Local 118 (California Erectors), 309 NLRB 808 (1992).
Applying what he characterized as the Board’s “strict
liability” standard to the facts of this case, the judge
found that the Union’s failure to refer Vonder Haar in the
proper order was unlawful.
After the judge issued his decision, the Board issued
its decision in Steamfitters Local 342 (Contra Costa
Electric), 329 NLRB 688 (1999). In that case, the Board
overruled California Erectors and other decisions hold-
ing that a union’s mere negligence in its failure to dis-
patch an applicant in the proper order from an exclusive
hiring hall violates the duty of fair representation.3 The
Board also held that mere negligence in failing to follow
hiring hall procedures does not violate Section
8(b)(1)(A) and (2) independent of the duty of fair repre-
sentation, because simple mistakes do not carry the coer-
cive message that hiring hall users had better support the
union if they expect to be treated fairly in job referrals.
Accordingly, the Board dismissed the allegation that the
union had acted unlawfully by mere negligence in failing
to refer an applicant for employment from its hiring hall.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and brief adequately present the issues and
the positions of the parties.
2 In fact, Vonder Haar had told Laiti that he did not want to work.
However, the judge found that he did so in May or June 1996, rather
than in October of that year, as Laiti recalled.
We find that Contra Costa Electric applies in the con-
text of this case. As noted above, the judge found that
the Union’s failure to refer Vonder Haar was not moti-
vated by malice toward him and, indeed, was not even
negligent, but rather resulted from Laiti’s mistaken but
good-faith belief that Vonder Haar did not want to work
during the period in question. Neither the General Coun-
sel nor the Charging Party has excepted to these findings.
Accordingly, consistent with Contra Costa Electric, we
find, contrary to the judge, that Laiti’s failure to refer
Vonder Haar did not breach the Respondent’s duty of
fair representation or violate Section 8(b)(1)(A) and (2).4
ORDER
The National Labor Relations Board orders that the
Respondent, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 375, AFL–CIO, Fair-
banks, Alaska, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Refusing to allow hiring hall users to inspect hiring
hall records.
(b) Threatening to deny referrals to any hiring hall user
because he or she complains of a failure to refer him or
her to employment and/or because he or she has asked to
inspect the hiring hall records.
3 The Board relied on Steelworkers v. Rawson, 495 U.S. 362 (1990),
in which the Supreme Court held that mere negligence, even in the
enforcement of a collective-bargaining agreement, does not breach a
union’s duty of fair representation. The Board also relied on Air Line
Pilots Assn. v. O’Neill, 499 U.S. 65 (1991), in which the Court noted
that the duty of fair representation applies to the operation of hiring
halls, and held that the same test for determining whether the duty has
been breached—i.e., whether the union’s conduct was “arbitrary, dis-
criminatory, or in bad faith”—applies to all union activity. The Board
read those decisions together as foreclosing a finding that negligence in
the operation of a hiring hall constitutes a breach of the duty. The
Board further noted that in so holding, it was acting consistently with
its decisions finding that mere negligence in other union conduct (e.g.,
grievance processing) does not breach the duty of fair representation,
and also with its early decisions applying the duty of fair representation
to the operation of hiring halls.
4 We adopt, for the reasons stated by the judge, his finding that the
Union at a later date violated Sec. 8(b)(1)(A) by refusing to permit
Vonder Haar to examine hiring hall records. The judge additionally
found that in response to Vonder Haar’s request, Wingfield unlawfully
threatened to withhold future referrals from Vonder Haar, and the Un-
ion has not excepted to that finding.
330 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide David C. Vonder Haar reasonable time and
opportunity to inspect any and all hiring hall records that
will enable him to determine whether he has been prop-
erly treated under hiring hall rules and regulations.
(b) Within 14 days after service by the Region, post at
its Fairbanks, Alaska offices and hiring halls copies of
the attached notice marked “Appendix.”5 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees and members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX

NOTICE TO MEMBERS AND HIRING HALL USERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to allow hiring hall users to in-
spect hiring hall records.
WE WILL NOT threaten to deny referrals to any hiring
hall user because he or she complains of a failure to refer
him or her to employment and/or because he or she has
asked to inspect our hiring hall records.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL provide David Vonder Haar reasonable time
and opportunity to inspect any and all hiring hall records
that will enable him to determine whether he has been
properly treated under hiring hall rules and regulations.

UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL
375, AFL–CIO

Patrick Dunham, Esq., for the General Counsel.
Arthur Lyle Robson, Esq., of Fairbanks, Alaska, for the Re-
spondent.
David Vonder Haar, of Fairbanks, Alaska, pro se.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
this case in trial in Fairbanks, Alaska, on January 27 and 28,
1998, pursuant to a complaint and notice of hearing issued by
the Regional Director for Region 19 of the National Labor Re-
lations Board on September 2, 1997, based on a charge in Case
19–CA–8032 filed on February 18, 1997, by David Vonder
Haar, an individual (sometimes the Charging Party) against
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local 375, AFL–CIO1 ( the Union or the Respondent).
The complaint alleges that the Respondent violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act) by
failing to provide the Charging Party with access to hiring hall
records and by threatening him with the loss of future employ-
ment, because the Charging Party was protesting the Union’s
failure to refer him to employment and its refusal to allow him
access to hiring hall records. The complaint further alleges that
the Respondent violated Section 8(b)(1)(A) and (2) of the Act
by refusing to refer the Charging Party to employment through
its hiring hall during the period November 18, 1996, to Febru-
ary 3, 1997. The Respondent denies that it has violated the Act.
FINDINGS OF FACT
On the entire record2 herein including briefs from the Re-
spondent and the General Counsel, I make the following find-
ings of fact.3
I. JURISDICTION
H. C. Price Construction Co. is a State of Alaska corporation
with an office and place of business in Anchorage, Alaska,
where it is engaged in the construction business. During its
business operations H. C. Price Construction Co. has annually
purchased and received directly from points outside the State of
Alaska, or from suppliers within the State which in turn ob-
1 The Respondent’s name appears as corrected in its answer.
2 The General Counsel’s motion to correct transcript is granted.
3 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
PLUMBERS LOCAL 375 (H. C. PRICE CONSTRUCTION) 385
tained such goods from outside the State, goods, and services
valued in excess of $50,000 and in the same periods has sold
and shipped goods and services valued in excess of $50,000
from its facility to points outside the State of Alaska, or to cus-
tomers within the State, which customers themselves were en-
gaged in interstate commerce by other than indirect means.
Based on the above, there is no dispute and I find that H. C.
Price Construction Co. is and has been at all times material an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union is an affiliated local of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL–CIO and has
long represented employees in northern Alaska in the plumbing
and pipefitting trades. As part of its representation of employ-
ees, the Union negotiates and signs collective-bargaining
agreements with employers, including H. C. Price Construction
Co., and operates an exclusive hiring hall for plumbers and
pipefitters in Fairbanks, Alaska. As part of the operation of its
hiring hall, the Union maintains a written Fairbanks Hiring Hall
Agreement which is by its terms a compilation of hiring rules,
regulations and procedures followed by the Union in the opera-
tion of its hiring hall.
The Fairbanks Hiring Hall Agreement asserts in selected
parts:
Section 5. Hiring Hall Method of Operation
The hiring hall shall be open on a rotational basis to all
applicants who have demonstrated their competence and
skill. . . . The hiring hall shall be nondiscriminatory. . . . It
shall be the burden of the union to establish that denial of
access to the hiring hall established hereby is based on
grounds consistent with the provisions of Section
8(b)(1)(A) and Section 8(b)(2) of the National Labor Rela-
tions Act.
Section 7. Reregistration of Availability
Applicants for registration shall be required to (a) sign
the hiring hall register in order to register and (b) sign
again once within each additional period of 90 days. Fail-
ure to do so shall result in (a) the applicant’s name being
removed from the hiring hall register and (b) being placed
at the bottom of the appropriate [registration category]
when he again attempts to registered his availability for
employment.
Section 13. Availability for Work
A. All applicants must be physically available for
work offers within 24 hours after call by the hiring agent
without good cause being shown. Failure to be available
within the time specified, and without good cause shown,
shall be charged against the applicant as a work rejection.
Section 14. Maintenance and Loss of Position o[n] the
Hiring Register
C. Any applicant may reject offers of suitable work
made to him by the hiring agent but this shall be a work
rejection.
Section 16. Rejection
Any applicant accumulating three work rejections and
not accepting employment from the hiring hall register
within a single ninety (90) day period (from sign up to re-
moval) may be moved to the bottom of the hiring hall reg-
ister.

There is no dispute that the hiring hall was operated at all
material times in a flexible manner. Thus individuals who were
unavailable for work for set periods such as during a trip or
vacation or who limited the jobs they sought or rejected work
were allowed to remain on the list without being “moved to the
bottom of the hiring hall register.”
The Union’s business manager is J. C. Wingfield and its hir-
ing hall Dispatcher is James Laiti. These individuals were un-
disputed agents of the Respondent. David Vonder Haar has
been a journeyman pipefitter for many years utilizing the Un-
ion’s Fairbanks hiring hall.
B. Events
David Vonder Haar’s brother died on April 2, 1996. There is
no dispute that Vonder Haar had a close relationship with his
brother and was upset by his death. Although registered on the
Respondent’s hiring hall out-of-work list, Vonder Haar told Jim
Laiti sometime in May or June 1996 to forgo dispatching him.
More specifically, in Vonder Haar’s recollection, he told Laiti:
“I’m not ready. My head is just not into it.” Thereafter he told
Laiti he was ready to be dispatched and was in consequence
dispatched to a position with Price in August 1996 at a remote
site in Healy, Alaska.
During Vonder Haar’s employment with Price while on
regular rest and rehabilitation leave, he testified he became ill
with the flu and was late in returning to work. Thereafter in
October he was informed that he needed to be physically pre-
sent in Fairbanks to handle certain legal affairs regarding his
brother’s estate. When a leave was not granted, he resigned his
employment while preserving his eligibility to return on a new
dispatch and left the job on or about October 24, 1996. Price’s
supervisorial dealings with Vonder Haar in these regards were
also made known to an extent to union agents on the job and
were communicated again to an extent to union officials at the
Fairbanks office. It may be fairly said from the testimony re-
specting this chain of events taken as a whole that James Laiti
came to believe from these communications that Vonder Haar’s
despond respecting his brother continued.
Following his departure from the Price job, Vonder Haar re-
turned to Fairbanks, concluded his legal obligations concerning
his brother’s estate and then visited the hiring hall in Fairbanks
on October 28, 1996. He testified that at the hall he signed the
out-of-work list and had a conversation with the Union’s busi-
ness manager, J. C. Wingfield. Vonder Haar testified that he
told Wingfield that he was qualified for and would accept in-
strumentation work—a specialized dispatch requiring special-
ized skills and experience—asserting to Wingfield: “I’m ready
to go back to work.” Vonder Haar testified he asked Wingfield
about the reason that he had to resign his Price position rather
than receive time off from the Company to return to Fairbanks
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
to conduct his business. Wingfield in Vonder Haar’s memory
told him to simply sign the book and when work was available
he would be notified. He recalled that Wingfield became de-
fensive about his questions respecting the Price work asserting
in some heat that he had nothing to do with the Price decision.
Wingfield did not address this specific conversation in his tes-
timony.
James Laiti testified that at or about the time of Vonder
Haar’s October 28, 1996 registration on the out-of-work list, he
had a conversation, likely by phone, with Vonder Haar in
which Vonder Haar said he could not go to work that “my
head’s not into it”—essentially a reprise of the conversation
testified to by Vonder Haar but located by him on an earlier
occasion.
Vonder Haar signed the book on October 28, 1996, and
waited for a dispatch. He testified that from time to time he
would call the hall and speak to either James Laiti or the Re-
spondent’s longtime secretary Sylvia Aversa inquiring about
work generally and receiving general replies. Aversa testified
that had she received such a call from Vonder Haar during this
period, she would not have commented on the availability of
dispatch opportunities for she, without exception, let either
Laiti or Wingfield discuss those matters with hiring hall regis-
trants.
James Laiti testified that, based on Vonder Haar’s statements
to him and from what he had heard respecting Vonder Haar’s
circumstances at the Price job in October, he believed that
Vonder Haar did not in fact want to return immediately to work
and therefore did not immediately dispatch him to work. In
early November, however, Laiti testified he had a substantial
employer request for workers which normally would have
caused him to contact all those on the list about the work. He
recalled he called and left messages for all on the list on that
occasion without a specific recollection of his actions regarding
Vonder Haar.
There is no dispute that Vonder Haar did not receive a dis-
patch from October 28 until the events of late January as dis-
cussed, infra. There is also no dispute that during that period
Vonder Haar in the normal course would have received dis-
patches based on his October 28, 1996 place on the out-of-work
list during that period.
Vonder Haar came to the Union’s hiring hall in late January
and spoke initially to secretary Aversa. He asked her to see the
books and was referred by her to Laiti. She testified that all
users of the hiring hall could inspect the hiring hall registration
sheets but that a flat space or work area was needed and she
referred such requests to Laiti so that a means of inspection
could be afforded the requesting registrant.
Laiti, in Vonder Haar’s recollection, came to the window and
asked him why he wanted to see the books to which Vonder
Haar replied he wanted to determine if he had been bypassed.
Vonder Haar continued:

Q. Okay. And what did Mr. Laiti say to you?
A. Well, he looked startled by what I’d said, and he
says, I thought you were waiting for an instrumentation
job.
Q. And did you respond to that?
A. Yes. I told him that—I indicated that I would like
to work on instrumentation, because I had the experience
as an electronic technician, but that I’d signed the dispatch
in the anticipation of taking any job, and that I specifically
said I wanted to go back to Healy.
Q. Was there any more to the conversation?
A. No. Jimmy says, well, I didn’t think you wanted to
work, and at that point in time, J. C. [Wingfield] came in.

Vonder Haar testified that Wingfield asked why Vonder
Haar was there and Laiti told him that Vonder Haar wanted to
see the books. At this Wingfield took umbrage and in some
heat recounted things the Union had done for Vonder Haar, that
Vonder Haar was ungrateful, that he Wingfield had a note in
his log that Vonder Haar did not want work. When Vonder
Haar asked to see that log entry, Wingfield became enraged and
stood up indicating in coarse language he did not have to show
Vonder Haar anything and generally challenging Vonder Haar
asserting, inter alia, in Vonder Haar’s memory: “[Y]ou’ll never
work out of this hall again.”
Vonder Haar testified the conversation continued with Laiti
asserting: “from what I remember, he says, you never wanted
to work anyway.” Vonder Haar demurred and said he wanted
to return to the Price job in Healy. The conversation between
the three continued. Wingfield still upset told Vonder Haar:
“you want to go back to Healy, he says, I’ll send your goddamn
ass back there today.” Vonder Haar left the hall at this point,
but was telephoned by Haiti later that day and received and
accepted a dispatch to Healy.
Wingfield testified that in late January Vonder Haar came
into the hall. Wingfield inquired of the reason for Vonder
Haar’s visit and was told by Laiti that Vonder Haar was ques-
tioning the hiring hall procedures. Wingfield conceded that,
being upset with any challenge to the hiring hall’s operation
and the honesty of his colleagues Laiti and Aversa, he “ex-
ploded on him that day.” Wingfield denied however either
threatening Vonder Haar with loss of future employment or
threatening him with retaliation for his actions in complaining
about the failure to dispatch him. Rather Wingfield testified
that when he learned that Vonder Haar wanted to go back to the
Price-Healy job, he offered to dispatch Vonder Haar back to the
job immediately and when Vonder Haar did not respond to that
offer and left the hall, he told Laiti to be sure to call Vonder
Haar later that day with the Price-Healy job dispatch offer.
There is no dispute that the same evening the job offer was
communicated to Vonder Haar by phone, Vonder Haar ac-
cepted the dispatch and the job placement was made with Von-
der Haar commencing employment at Price on or about Febru-
ary 3, 1997.
C. Analysis and Conclusions
1. The failure to dispatch allegation—Paragraph 5 of
the complaint
a. Threshold arguments rejected on credibility
grounds4
The General Counsel argued that the Union willfully refused
Vonder Haar a dispatch at a time he would otherwise have re-
ceived one because of the union agents’ hostility to him predi-
cated on Vonder Haar’s earlier refusal to sign forms allowing a
portion of his wages to be deducted and remitted to a union

4 The resolutions in this section of this decision are based on the
probabilities of events and the entire record but are primarily driven by
the credibility of the witnesses during the relevant portions of their
testimony. I do not believe that any witness in this proceeding was
consciously lying. I found however that recollections respecting these
events seemingly varied widely in their accuracy.
PLUMBERS LOCAL 375 (H. C. PRICE CONSTRUCTION) 387
associated political fund. Without belaboring the issue, I sim-
ply find there is insufficient evidence to support the assertion.
Other witnesses testified credibly that they too had from time to
time declined to have such payments deducted from their wages
without adverse impact. Following the incident in issue the
union dispatched Vonder Haar and assisted him in other mat-
ters. Finally, the accused agents of the Respondent credibly
denied that the refusal to contribute to the fund was a factor in
the failure to dispatch Vonder Haar during the events in ques-
tion.
To the extent that Vonder Haar supports this animus argu-
ment with testimony that he telephoned the hall in November
and December and spoke with the hiring hall secretary, Aversa,
I discredit his testimony and credit the different version of
Aversa regarding these events. She credibly testified that she
never discussed work availability with hiring hall users and
would always suggest that the users talk to either Laiti or Wing-
field respecting such matters. So, too, I do not rely on Vonder
Haar’s testimony that he spoke to Laiti sometime in January
about work and was told none was immediately available. The
date of the call was not established and the call itself was not
definitive respecting either Vonder Haar’s desire to go to work
or that there was in fact work available.
The Union argued that Vonder Haar specifically asked the
Union not to dispatch him during the period after his October
registration and, further, that Vonder Haar was notified by tele-
phone message on his answering machine of job opportunities
after his October out-of-work registration and failed to respond
to those messages. I credit Vonder Haar’s denial of these asser-
tions over Laiti’s contrary assertions. Vonder Haar’s denials
were far more certain and convincing in this regard that Laiti’s
vague and tentative recitation.
I also discredit the testimony of James Laiti respecting his
identification of the timing of his critical conversation with
Vonder Haar, wherein Vonder Haar specifically indicated he
did not want to work. Laiti suggested such a conversation oc-
curred in October 1996. I credit Vonder Haar that such a con-
versation with Laiti occurred months earlier before he was dis-
patched to the Price job in August 1996 but did not occur after
that time. Laiti’s memory respecting the timing of the conver-
sation was less than crystal clear. Further, his testimony on the
matter was not consistent and also suggested the conversation
had occurred in the summer months.
b. Resolution of the factual question of what occurred
Considering the record as a whole and the credibility resolu-
tions described above, I find and conclude that Union agent
James Laiti came to believe that David Vonder Haar was not
able or willing to accept dispatches even though he registered
on the out-of-work list in October 1996 and, in consequence,
Laiti did not dispatch Vonder Haar even though he was other-
wise eligible for dispatch during the November 1997—January
1997 period.
I find further that Laiti formed this impression from Vonder
Haar’s pre-October conversations with Laiti as well as Vonder
Haar’s circumstances in leaving the Price job in October to the
extent those circumstances were reported to Laiti and the Union
in Fairbanks by Price based individuals. Importantly, I find
that Laiti’s impression was based on pre-October events and
reports of Vonder Haar’s October job termination and was not
based on anything that Vonder Haar told him or the Union on
or after he registered on the out-of-work list in October 1996.
Finally, I find that Vonder Haar would have accepted a job
referral issued by the Union during this period and, in conse-
quence of his not having received such a referral to which he
was entitled, he missed a period of work.
c. The law of hiring hall operation
The General Counsel relies on the longstanding principle re-
cently repeated in Iron Workers Local 118 (California Erec-
tors), 309 NLRB 808 (1992), that in the operation of a hiring
hall, when a union denies a hiring hall registrant work that he or
she would otherwise be entitled to, without a justification re-
lated to the efficient operation of the hiring hall, it inherently
breaches its duty of fair representation to the hiring hall user
and violates Section 8(b)(1)(A) and (2) of the Act. This is so
because the Board holds that a union operating a hiring hall
controls the users’ employment opportunities and, therefore,
has a fiduciary duty to those users not to wrongfully deny them
employment. This strict liability standard means that the gov-
ernment need not show that the union acted negligently or de-
nied a hiring hall user a job opportunity based on invidious or
unfair considerations in establishing a violation of Section
8(b)(2) of the Act.
d. Conclusion
On this record I do not find that Laiti and the Union acted
out of malice or even acted negligently. I do find, however,
that Laiti, and therefore the Union, was mistaken in its good-
faith belief that Vonder Haar would not accept work and there-
fore it was proper to pass him over until he indicated a readi-
ness to resume work. Since I explicitly do not find that Vonder
Haar was to blame for the mistaken impression taken by Laiti
of Vonder Haar’s intentions, the Union may not successfully
argue that Vonder Haar was to blame for the mistake. That
being so, under the strict liability standard the Board imposes,
the Union in passing over Vonder Haar violated Section
8(b)(1)(A) and (2) of the Act and is therefore liable to Vonder
Haar for the loss of wages and other benefits of employment he
suffered when he was not dispatched to work to which he was
entitled under the rules of the hiring hall. I, therefore, sustain
this portion of the General Counsel’s complaint.
2. The failure to show hiring hall records on request and
threat allegations—complaint paragraph 6
In evaluating these allegations, it is necessary to resolve the
conflicting versions of the Vonder Haar-Laiti-Wingfield con-
versation at the hall in late January as described, supra. I credit
Vonder Haar’s specific recollections over Wingfield and Laiti’s
incomplete version of events and general denials. Laiti did not
testify respecting the details of the entire conversation. Wing-
field conceded he was angry and “exploded” on Vonder Haar
that day.
There is no dispute that the Union has procedures in place
and normally follows those procedures to allow requesting
hiring hall users to inspect the hiring hall records. In the instant
case there is also no doubt that Vonder Haar made such a re-
quest, was initially directed by Aversa to Laiti to fulfill that
request, but then events got out of hand. The dispute between
Wingfield and Vonder Haar intervened and the records were
never offered to or shown to Vonder Haar. I credit Vonder
Haar that Wingfield told him in some heat that he did not have
to show Vonder Haar any records. Given this finding and the
entire context of events, I further find that at least in this one
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
instance involving Vonder Haar, the Union must be held to
have refused to allow inspection of its hiring hall records.
Board law is clear and the parties did not dispute that such
records must be shown to hiring hall users on request. Bar-
tenders & Beverage Dispensers Local 165 (Nevada Resort
Assn.), 261 NLRB 420 (1982). Accordingly, I find that in not
disclosing its records to Vonder Haar, the Union violated Sec-
tion 8(b)(1)(A) of the Act as alleged in the complaint.
I have credited Vonder Haar’s testimony that in the middle
of a lengthy “explosion” Wingfield told him he would never
work out of the hiring hall again. This is a classic violation of
Section 8(b)(1)(A) of the Act. This statement by Wingfield,
however, was followed immediately afterwards by Wingfield’s
telling Vonder Haar he could be dispatched back to the Price-
Healy job. Indeed that dispatch offer was repeated, accepted
and consummated later that day in Vonder Haar’s recollection.
In such a setting a threat to deny an individual the use of the
hiring hall may be regarded as either retracted, remedied, or at
least ameliorated by the immediately following contrary ac-
tion—the offer of an immediate dispatch through the hall.
I do not find the entire context of events sufficiently benign
to find the threat violation of the Act remedied by Wingfield’s
subsequent actions. First, of course, Wingfield never explicitly
withdrew his threat. Further, the earlier period during which
Vonder Haar was asserting he had been denied a dispatch—and
respecting which I have found a violation of law—was not
resolved in this conversation. Nor had Wingfield retracted his
refusal to open the books—a refusal I have found a violation of
the Act herein. In such a context where there were unremedied
unfair labor practices, Wingfield’s threat that Vonder Haar
would not work out of the hall again would not have reasonably
been regarded as entirely withdrawn by the subsequent dispatch
offer. Thus, the violation was not and has not been remedied
by the Union. Accordingly, I find the Union violated Section
8(b)(1)(A) of the Act by threatening to deny Vonder Haar fu-
ture use of the hiring hall as alleged in the complaint.
REMEDY
Having found the Union has engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act including the posting of a
remedial notice consistent with the Board’s decision in Indian
Hills Care Centers, 321 NLRB 87 (1996).
Although there was no dispute that Vonder Haar was passed
over for certain work, it is not appropriate in an unfair labor
practice proceeding to identify the particular job or jobs lost by
a discriminatee. Electrical Workers IBEW Local 6 (San Fran-
cisco Electrical Contractors), 318 NLRB 109, 142 (1995).
Accordingly, I shall direct the Respondent to make Vonder
Haar whole, with interest, for the loss of job opportunities from
November 1996 through January 1997, as identified in the
compliance stage of these proceedings, caused by the Respon-
dents violation of Section 8(b)(2) of the Act as found herein.
Such make-whole remedy shall include payment to Vonder
Haar and the contractual fringe trusts for all loss of wages and
benefits and contractual fringe benefits, plus appropriate late
trust payment penalties as provided by the collective-bargaining
agreement, which would have been paid for the employment
lost as a result of the Respondent’s unfair labor practices.
Backpay shall be calculated in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as provided
in New Horizons for the Retarded, 283 NLRB 1173 (1987); see
also Florida Steel Corp., 231 NLRB 651 (1977), and Isis
Plumbing Co., 138 NLRB 716 (1962). Contractual payments
shall be made consistent with Merryweather Optical Co., 224
NLRB 1213 (1976).
CONCLUSIONS OF LAW
1. H. C. Price Construction Co. is and has been at all times
material an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Respondent is and has been at all relevant times, a la-
bor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) of the Act by:
(a) Refusing to allow a hiring hall user to inspect its hiring
hall books.
(b) Threatening to deny a hiring hall user the use of the hir-
ing hall because the hiring hall user complained of a failure to
refer him to employment and because the Union had refused to
allow inspection of its hiring hall books.
4. The Respondent violated Section 8(b)(1)(A) and (2) of the
Act by failing and refusing to dispatch David Vonder Haar to
employment to which he was entitled under the rules and regu-
lations of its hiring hall.
5. The unfair labor practices described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]