Local No.324, Operating Engineers

LOCAL NO. 324, OPERATING ENGINEERS Local No. 324, International Union of Operating En- gineers, AFL-CIO (Michigan Chapter, Associated General Contractors of America , Inc.) and Melvin Carlson. Case 30-CB-688 October 22, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, PENELLO, AND WALTHER On October 20, 1975, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a limited exception and a brief in support of the Ad- ministrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. We disagree with our dissenting colleague's' view that Respondent's duty of fair representation did not encompass supplying Melvin Carlson with job refer- ral information. We find that inherent in 4 union's duty of fair representation is an obligation to deal fairly with an employee's request for information as to his relative position on the out-of-work register for purposes ofjob referral through an exclusive hiring hall. In Miranda Fuel Company, Inc.,' the Board defined the scope of a union's duty of fair representation as "the right [of employees] to be free from unfair or irrelevant or invidious treatment . . . in matters af- fecting their employment." 3 We agree with the Ad- ministrative Law Judge that Melvin Carlson's efforts to protect his seniority rights by requesting Respon- dent's assistance in determining the names, address- es, and telephone numbers" of individuals on either side of his name on its out-of-work register clearly involved a "matter affecting [his] employment." We therefore agree with the Administrative Law Judge that Respondent's arbitrary refusal to comply with Carson's reasonable and manageable request for job- referral information breached its duty of fair repre- sentation and thereby violated Section 8(b)(1)(A) of the-Act. , In Miranda Fuel Company, Inc., supra, the Board ' Respondent has requested oral argument This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 140 NLRB 181 (1962). 3Id at 185 587 quoted from an opinion of the Court of Appeals for the District of Columbia Circuit 4 which stated, inter alia: Among the most important of labor standards imposed by the Act as amended is that of fair dealing, which is demanded of unions in their dealings with employees. . . . The requirement of fair dealing between a union and its members is in a sense fiduciary in nature and arises out of two factors. One is the degree of dependence of the individual employee, on the union organiza- tion; the other, a corollary of the first, is the comprehensive power vested in the union with respect to the individual. We find that Carlson was completely dependent on Respondent for the protection of his referral rights. Business Agent Koski himself testified that Carlson would not have been permitted to copy the names, addresses, and telephone numbers of employees on the out-of-work register. Thus, Respondent's' refusal to prepare such a list deprived Carlson of the only means whereby he could fully investigate whether or not his referral rights were being protected.' Con- trary to our colleague, we find that the' Union's com- prehensive and exclusive power and authority in this matter affecting Carlson's employment automatically obligated it to deal fairly with Carlson's request for job-referral information. We agree with the Administrative Law-Judge that the reasons given by Respondent for its refusal to supply job-referral information are insufficient. Its alleged interest in preserving the anonymity or priva- cy of its members is inconsistent with its admitted policy of allowing members to inspect the out-of- work files. Moreover, Respondent's claim that prepa- ration of a list of out-of-work employees would be unduly burdensome is totally undermined by its ad- mission that out-of-work indices containing names, phone numbers, and layoff dates are in existence and are in the possession of its business agents and it was Respondent who refused to permit Carlson to make his own list. Accordingly, we agree with the Adminis- trative Law Judge that Respondent unjustifiably re- fused to furnish Carlson with job-referral informa- tion in violation of Section 8(b)(1)(A)Jof the Act. ORDER Pursuant to Section 10(c) of the National Labor 4International Union of Electrical, Radio and Machine Workers, AFL- CIO, Frigidaire Local 801 v. N L R B, N L R B v General Motors Corpora- tion, Frigidaire Division, 307 F 2d 679, 683 (C A D C, 1962) 5 Although Carlson would have been permitted to inspect the cards in the Respondent's out-of-work file, in the absence of a photographic memory he could not have obtained all of the information he considered necessary to determine his referral status 226 NLRB No. 91 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent, Local No. 324, International Union of Operating Engineers, AFL-CIO, Escanaba, Michigan, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. MEMBER FANNING, dissenting in part: This case concerns a union's duty to deal' fairly with employees it represents, the extent of that duty, and whether a union can violate it even though it has not acted in bad faith or from hostility. Unlike my colleagues, I believe that duty does not extend be- yond matters which the union controls and that, as we have previously held, a union's duty to represent employees fairly -protects employees from their representative's hostility, but not from mere negli- gence or lack of responsiveness. Melvin Carlson, a political rival- of Union Business Agent Dale Koski, believed he was being discrimi- nated against in referrals from the hiring hall. In or- der to find out if his suspicion was correct, Carlson asked Koski where he stood on referrals. The work records of registrants are kept on individual cards which are placed in chronological order in a separate file when the registrant is out of work and Koski answered Carlson's question by showing him his rel- ative position in the out-of-work file. Carlson did not believe that was very accurate and, still wondering if he was receiving his share of referrals, asked Koski to prepare a list of the 50 names, addresses, and phone numbers on either side of his name in the card file. Although he, did not explain it to Koski, Carlson in- tended to call those on the list to see whether they were being referred when he was not. The list was never prepared and furnished to Carlson; conversely, Carlson gave no indication that he was willing to make out the list himself. He did not ask for that privilege and the matter was not litigated. Since the list was not forthcoming, Carlson_ filed charges and a complaint was issued alleging that the Union had violated Section 8(b)(1)(A), both by dis- criminating in job referrals and by not furnishing the list. At the hearing the General Counsel noted that if he had seen the Union's referral records, probably no complaint would have been issued alleging discrimi- nation in job referrals. The records showed that there had been no discrimination against Carlson, who had been at least as much beneficiary as victim of depar- tures from seniority in referral. While referrals were not always made in accordance with seniority, varia- tions were based on other, nondiscriminatory factors. Although the Administrative Law Judge's intuition suggested that Carlson might well have been the vic- tim of some subtle form of "discrimination, the evi- dence did not support a finding that the Union had discriminated against Carlson. However, although Carlson had not been discrimi- nated against, that did not dispose of whether or not the list of 100 names which he wanted Koski to pre- pare for him had been withheld unlawfully. The list would not have had. much value because referrals were not made on the basis of seniority alone, nor is it likely that the beneficiaries, if there had been any, of discrimination against Carlson would have been out of work. Despite that, the Administrative Law Judge held that because the information was relevant to the referral system the Union could not "arbitrari- ly" refuse to provide Carlson the list. And, he con- cluded, the Union had acted arbitrarily because it had not provided substantial reasons for not under- taking the task Carlson had set for Koski. I think that is rather farfetched. The information Carlson wanted was never withheld from him. Koski simply did not put it in the format Carlson wanted; that is quite another matter. Koski's failure to pre- pare a lengthy list, which Carlson appears to have been unwilling to prepare for himself, is not sinister nor even surprising. The most likely answer is that Koski did not want to do the work because there was little need for it, or,value, either to Carlson or to the Union, in it. The duty of fair representation was not developed for application to these, housekeeping matters nor to justify Board or court supervision of a union's- ev- eryday affairs, the efficiency of its services, or its re- sponsiveness to its members. A -labor organization's duty to deal fairly with its members and employees it represents has developed as a corollary to union power,and authority,' and applies only to actions in its representative capacity.' The duty does not apply to union actions in other matters because outside that sphere it lacks the power and authority which trigger the duty. Similarly, furnishing Carlson with the list he demanded is not within any duty of fair representation because Carlson could have prepared it himself. Even where a labor organization does have a duty to deal fairly with its members, it is breached only when it deals in bad faith. "Arbitrary conduct" by labor organizations has been condemned in those terms, but as a characterization of unfair or invidious action which restrains or coerces employees. A labor organization does not restrain or coerce employees 6 Vaca v Sipes, 386 U 5 171 (1967), Steele v. Louisville & Nashville R R Co, 323 U S. 192, JUE, Frigidaire Local 801 v N.L.R.B, 307 F 2d 679 (CAD C, 1962) 7 Miranda Fuel Company, Inc 140 NLRB 181 (1962), I dissented for other reasons LOCAL NO. 324, OPERATING ENGINEERS 589 by a simple failure to provide clerical assistance re- quested by employees it represents.' It is for the Union's constituents, not the Board, to judge the quality of its service. I would dismiss the complaint. III. THE UNFAIR LABOR PRACTICES A. The Allegation of Discrimination Against Melvin Carlson 1. Carlson's intraunion activities 8 General Truck Drivers, Chauffeurs and Helpers Union, Local No 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Great Western Unifreight System), 209 NLRB 446 (1974), also see my separate concurrence DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This proceed- ing was heard at Escanaba, Michigan, on December 3, 1974, and April 15, 1975. The complaint, based on a charge and amended charge filed, respectively, on April 24 and June 12, 1974, alleges that since on or about November 26, 1973, Respondent has, in various ways, discriminated against Melvin Carlson, the Charging Party, in the opera- tion of its hiring hall system because of Carlson's "political and intraunion activities," in violation of Section 8(b)(1)(A).' As a second violation, the complaint alleges that Respondent, on or about February 13, 1974, refused to honor Carlson's request for information pertaining to its referral system; this conduct is also asserted to be violative of Section 8(b)(1)(A). Respondent's answer denies the commission of any unfair labor practices. Upon the entire record,2 and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS At the hearing, the parties stipulated, and I find, that Michigan Chapter, Associated General Contractors of America, Inc. (AGC), is an organization of employers en- gaged in the building and construction industry in the State of Michigan; that during the; year preceding the hear- ing, a representative period, a number of AGC's member- employers purchased goods and materials valued in excess of $50,000 directly from suppliers 'located outside the State of Michigan; and that, at all times) material, AGC has been an "employer" engaged in commerce or in an industry "af- fecting commerce" within the meaning of Section 2(2), (6), and (7) of the Act. II. THE STATUS OF RESPONDENT The answer admits, and I find, that Respondent is a labor organization within the meaning of Section 2(5) of the Act. i The complaint does not specifically allege a violation of Sec 8 (b)(2). 2 Certain errors in the transcript have been duly noted and corrected. At all times material, Respondent has operated an exclu- sive hiring hall throughout the State of Michigan pursuant to its bargaining agreement with the Michigan Chapter, Associated General Contractors of America, Inc. We are here concerned with the operation of that hiring hall in the Upper Peninsula of Michigan. The office in charge of the hiring hall in that area is located in Escanaba; it is run primarily by Business Agent Dale Koski. Koski estimated that approximately 800 members of Respondent reside in the Upper Peninsula. Melvin Carlson, the Charging Party, a member of Respondent, uses the hiring hall in Escanaba. Carlson has been a member of Respondent since 1953. In 1971, he campaigned vigorously against the then-incum- bent administration of Respondent, headed by a business manager named Myers. Carlson ran, unsuccessfully, as an independent candidate for vice president of the Local (there were four other candidates for the job). Also running for office, against the incumbent administration, was a slate called "Sober's Action Slate," which included Koski, who was running for the office of auditor. In the course of the campaign, Carlson published two newsletters attacking the current Myers Administration, and only peripherally attacking the Sober's slate. The latter group also upbraided the Myers administration. In June or July 1971, Carlson had a "heated" personal encounter with Koski about the platform on which Koski was running. During the same period, at a meeting conducted by Koski's slate, Carlson passed out literature which was the subject of "hostile" remarks made by Keith Sober, the slate's candidate for business manager. Sober's group won the election. In April 1973, Carlson spoke against an administration proposal at a meeting of Respondent in Detroit; the proposal was de- feated. In July 1973, at a construction project, Carlson crit- icized Koski, in a "rather heated"' conversation, for failing to enforce the bargaining agreement, and also told Sober that the agreement was in violation of the International constitution. Sober called Carlson a "smart ass lawyer." 2. The operation of the hiring hall; the alleged discrimination In relevant part, the complaint, which issued on Novem- ber 4, 1974, alleges that, since "on or about November 26, 1973, and continuing at all times since then, Respondent has restrained and coerced and has discriminated against Charging Party in the operation of its, hiring hall system, all because of Charging Party's engaging in political and intra- union activities." When the case came on for hearing on December 3, 1974, General Counsel had not had an opportunity to in- vestigate the foregoing allegation by examining the most probative evidence available-the hiring hall records. Re- spondent refused to honor a subpoena directing Koski to 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produce those records at the December 4 hearing; General Counsel thereafter obtained district court enforcement of the subpena; and Respondent complied with the order of the district court. When the hearing resumed on April 15, 1975, General Counsel announced that he had examined the hiring hall records and that "consequently, General Counsel is less convinced that there has been a discrimination situation in regard to Mr. Carlson .... Now, in looking at the total picture in all, General Counsel is somewhat questionable or doubtful whether, given all information that we now have, General Counsel would have issued a complaint in the first place ...." Nonetheless, because of certain rec- ords to be discussed below, General Counsel chose to pro- ceed on this portion of the complaint. In his brief, however, General Counsel, while suggesting that there might be a basis for finding a violation, asks for no monetary remedy for Carlson, "due to the circumstances peculiar to this case, inasmuch as it would be very nearly impossible to de- termine' which jobs Carlson and other members would have been entitled to." The only hiring hall records put into evidence by Gener- al Counsel were 250 "Work Record" cards, representing a portion of such records examined by him.3 A "Work Rec- ord" card is maintained for each user of the hiring hall; the front of the card (which is not in evidence for the 250 cards offered) gives relevant data pertaining to the employee, such as name, address, and the work functions he is capa- ble of performing; the other side contains informal hand- written notations, made by either a_ business agent or a secretary, showing referrals of the employee by the hall; attempts to refer and, often, an employee's reason for re- fusing a referral; layoff dates; notes that an employee had checked in at the hall; and miscellaneous data. The hall does not issue seniority or out-of-work lists. Koski testified that, when employees register as "out of work," either by coming to the hall or phoning in, their cards are transferred to an out-of-work file box, and their names, telephone numbers, and layoff dates entered on se- parators maintained in the box on a monthly basis; as they are successfully referred to work, the referral is entered on the card, their names are lined out on the monthly separa- tor, and their cards removed from the file box and placed in the alphabetized master file. Thus, the most practical way to ascertain standing of a certain employee on the out-of-work register at a particular time is to count the total number of names appearing on the monthly separa- tors for the months preceding that of the registration date of the employee whose standing is being ascertained. After some time has elapsed, and names have been lined out as a result of referrals, it appears that it would be complicated to reconstruct a seniority list for any given date in the past. Koski further testified that attempts to refer a registrant are made by telephone, and that "normally" the hall will make two, such attempts, but not always, since a "referral generally has to be made within the same day." If a mem- 3 Although it was not stated how many cards were not proffered, Koski's "guess" that Respondent had 800 members in the Upper Peninsula suggests that the cards in evidence represent less than a third of the membership using the hall. her refuses a referral, he does not forfeit his standing on the out-of-work register.4 Of the 250 cards in evidence, as I understand the record, the parties agreed that General Counsel would stake his case on only the inferences arising from 21 of the cards, as to which he interrogated Koski, and that Respondent would not be required to explain or otherwise be held ac- countable for inferences which might be drawn from cards not so examined into .5 Thus, the transcript contains the following, somewhat garbled, statement by counsel for Re- spondent, made after General Counsel had moved the ad- mission of the cards, and not demurred to by General Counsel: Might I make this statement for the record? Pursuant to an off-the-record discussion, it is my understanding that counsel for the General Counsel is not claiming that all 250 cards support discrimination charges, but rather that counsel has questions regarding certain of those cards as exhibits which may support or not sup- port a discrimination charge. It's my understanding that counsel will identify those cards among the 250 now offered by way of examination of Mr. Koski and that the Respondent need not be concerned in the writing of a brief or any further proceedings where any of those cards introduced, as exhibits which are notified as relevant to the charge to the questioning by counsel for the General Counsel of Mr. Koski [SIC]6 With that understanding, I will both stipulate to the authenticity of the copies tendered and as to their ad- missibility. Subsequently, I asked General Counsel to confirm my un- derstanding that "the cards other than the ones which you will specifically bring to my attention are offered solely as some sort of contextual evidence"; he replied in the affir- mative, adding that he felt "the record should reflect the entire situation, the work situation during the time period involved here and in order that the full picture can be elic- ited and so we did want the whole context of the situation to be reflected in the record." Clearly, the 250 cards, being only a portion of the total number on file, do not reflect the "entire" work situation during the time period involved. I conclude from the foregoing statements that, in attempting to prove discrimination against Carlson, General Counsel agreed to rely only on the 21 cards as to which Koski was thereafter interrogated,' and that the other cards are in evidence as "contextual" background which fills out the 4 Prior to July 1974, referrals were made by Koski and another business agent, Bernard Bodette , who died in that month. In September 1974. his son, William Bodette , was appointed business agent, and he and Koski were thereafter in charge of making referrals 5 By specifying those cards which , in his view, militated against a finding of discrimination, however, as later discussed , I assume that General Coun- sel intended to afford Respondent the right to rely on the remainder of the cards for succor 6 Probably should read "further proceedings with any of those cards intro- duced as exhibits which are not identified as relevant to the charge by the questioning by counsel for General Counsel of Mr Koski." 7 The "16 plus the other 5 I've mentioned that would arguably support a discrimination; this discrimination allegation in the complaint" were speci- fied by General Counsel as G. C Exhs. 140, 208, 210, 245, and 260, pertain- ing to the period November 27, 1973-July 7, 1974, and G C Exhs 40, 55, 69, 78, 88, 89, 90, 93, 131, 144, 155, 173, 174, 201, 228, and 242, pertaining to the period subsequent to October 7, 1974 LOCAL NO. 324, OPERATING ENGINEERS picture, which may not be used against Respondent, and which tends to militate against a finding of discrimination, as General Counsel candidly conceded. It should first be noted that the bargaining agreement itself prescribes no criteria for referral from the hiring hall other than that selection "shall be on a non-discriminatory basis." While the relevant provision refers to "mutually agreeable standards established shall be on anon-discrimi- natory basis," there is no evidence that Respondent and the contracting employer association have ever established such standards. At the hearing held in December 1974, however, before Respondent was required to produce its records, Koski stated that the criterion for referral (other than work qualification) was seniority on the register. The latter was determined by the "earliest lay-off date"-when an employer called for a referral, "[w]e then start looking through the cards for who is qualified and then the earliest lay-off date is the one that's called." After the records were produced, however, and it was determined that between November 26, 1973, and February 5, 1975, some 21 em- ployees with "lay-off dates" at least nominally inferior to Carlson's were called for jobs in preference to Carlson, Koski explained these apparent deviations essentially by citing factors which departed from a strict "first-in-first- out" procedure. Thus, if an employee's card showed that he had worked a "short job" before his last layoff, that would not preju- dice the standing on the register which he held prior to taking the "short job." 8 A "shortjob," according to Koski, is something like 3 weeks, but it might range above that, perhaps by a matter of additional weeks; gauging its "shortness" might be influenced by the fact that the em- ployee had not had much employment through the hiring hall in the preceding year or so. Again, Koski's decision to refer out of seniority might be affected by an employee's need for "insurance hours" 9 or for sufficient work to quali- fy him for unemployment insurance benefits. Furthermore, said Koski, starting "from the top" in making referrals is often disregarded when an employee has evidenced in the past that he does not desire short jobs or only 'wants to work in a particular area. In addition, Koski will, on his own, and regardless of seniority, refer an applicant to an anticipated "short" job if the job is in the vicinity in which the employee resides.10 In two instances, referrals were made on the basis of the employees' physical condition. I set out verbatim below Carlson's "Work Record" (Resp. Exh. 1) in pertinent part, beginning with 1971, when he first ran for office: Laid off 10/15/71 . . . Didn't notify Hall. White Card (Pipefitters) 10/18/71 . . . Didn't noti- fy Hall. (DBK) Laid off 3/1/72 Called for 11 Terre Haute Empire Mine 4/7/72 8 Koski explained the reason for this practice as being that if employees suffer forfeitures for taking shortjobs , they will refuse to take them 9 Koski testified that to maintain eligibility under the Union's insurance program an employee must work specified amounts of time quarterly, semi- annually, or yearly 10 Charging Party Carlson was well aware of this practice and, in fact, at the hearing, predicated his complaint in part on the fact that he thought he was not being similarly favored. 591 Laid off 6/30/72 Called for 61-B Hoover 7/17/72 Came in 7/17/72-said he would wait for Glad- stone job Called for Terre Haute Republic-Refused for above reason Called 10/2/72-Cornell-Leech (Tilden) Requested lay-off 7/13/73 Called for U.P. Steel 8/13/73 No ans. Called for Universal Tank-Nahma-8/16/73- refused-Wife ill and must be with her and job isn't long enough! ! Called for P & H truck crane-Champion-Tilden- No ans. 8/17/73 A.B.I.-Empire-American Crawler 8/30/73 Requested lay-off 11/26/73 Called for piledriving rig-Ontonagon paper mill- not home will call back per housemaid-never did call back 3/1/74 Ck'd at Hall 3/26/74 Called for A & P Pump Crete Refused 4/22/74 Ck'd at Hall 5/2/74 Called for Ontonagon Paper Mill 5/6/74- piledriving rig i"No" Called for Brown-Minn. Tank (Tilden)-5/20/74 4100 Manitowoc "No" Ck'd at Hall 5/29/74 Ck'd at Hall 6/18/74 Called for McKee (Empire) 6/24/74 (80 ton Mobile Crane) -"No.'" Called for Adolphson and Peterson-Amer. crawler crane-Marquette Power House-Refused 6/27/74 Sent on Unit Crane-Proksch-Esky-7/11/74 Laid off 10/7/74 Ck'd at Hall! 11/7/74 Ck'd at Had 11/18/74 It will be noted that, after Carlson's political bid in 1971, the Respondent made four attempts in 1972 to refer him, two of which offers he accepted, and four in August 1973, 1 month after he had requested layoff from the Cornell- Leech job to which Respondent had referred him in Octo- ber 1972, and also close on the heels of the two anti-admin- istration incidents in April and July 1973; he accepted the referral to A.B.I. Empire and worked until November 1973. Carlson testified that he "requested layoff" on Novem- ber 26, 1973, because the work situation demanded that one employee be laid off, and he agreed to accept the lay- off. He thereafter notified the hiring hall of the layoff, probably on the following day.12 ii "Called for" means that the Respondent attempted to contact the em- ployee for referral to the indicated job Normally, when such a notation is not followed by some entry such as "refused" or "no answer," it means that the employee accepted the referral ii There is some conflict in the record as to when the notification was given Carlson testified that his habit was to give such notification immedi- ately after layoff Koski testified that he doubted that Carlson notified the hall until February 13, 1974, when he came to the hall to ascertain his relative seniority position on the out-of-work register. On that day, Koski "stuck his thumb" in the file box to show Carlson his position in the out-of- work binder, which suggests that Carlson's card was contained in that bind- Continued 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 16, 1973, Carlson went to work out of trade-as a pipefitter-for Grunau Pipefitting Company at the Empire Mine project. While he worked that job, until July 11, 1974, he spoke frequently on the jobsite to Busi- ness Agent Bodette (considered a "pretty good friend" by Carlson) about the possibility of being referred from the hall as an operating engineer. The first such call he received from the hall came on March 1, 1974, some 3 months after his November 26, 1973, layoff. Carlson was not at home when the call came in. While Carlson testified that he attempted to return the call from Bodette (taken not by a "housemaid," but by his ill wife's companion), he was unable to contact Bodette that evening. He did not try to contact Bodette again on the following workday. The offer was for a job in Ontona- gon, about 180 miles from his hometown of Gladstone.13 Carlson turned down the next job, for "A & P Pump Crete," offered to him by Bodette on April 22, 1974, be- cause the latter told him the job would last only 1 or 2 days. Carlson stated that he refused the job because he believed that taking it would send him to the bottom of the out-of-work roster . Carlson's testimony with respect to this and other referrals discloses what the remainder of the rec- ord indicates is a misunderstanding of the referral sys- tem-a belief that taking short jobs would cause him to sacrifice his standing on the out-of-work list. On April 24, Carlson filed - the discrimination charge presently under consideration. On May 6, May 20, and June 24 and 27, 1974, he was called for jobs, all of which he refused on the ground that their distances (at least 70 miles and more) from his home were too great and his belief that he had then achieved sufficient seniorit4y on the roster to be referred to a job closer to his home.l On July 11, 1974, Respondent referred Carlson to a job in Escanaba , 7 miles from Gladstone. He accepted the job and was laid off from it on October 7, 1974. Carlson promptly reported to the hall. Thereafter, and as of the last date of hearing on April 15, 1975 , Respondent did not, to Carlson's knowledge, re- fer him to any jobs. Whether it attempted to do so will be discussed infra. As set forth above, General Counsel stated at the hear- mg that he perceived two potential periods of discrimina- tion. The first would be from his requested layoff from the A.B.I. Empire job, until March 1, 1974 (and perhaps there- after), when Carlson received a call from the hiring hall to er, meaning that he must have registered as being out of work at some prior time . On the other hand, Carlson's testimony that when he asked Koski about his standing, "we both agreed more or less that [his layoff date] was on November 26" might indicate either that his card was in the register and they were simply trying to ascertain which part it could be found in, or that Carlson had not in fact registered for layoff prior to February 1974 At any rate, as discussed below, it is clear that beginning in late 1973 and thereafter, Business Agent Bernard Bodette was well aware that Carlson was not working in the trade 13 There is no evidence that Carlson knew at the time where the job was located. 14 It was Carlson's belief that three construction jobs requiring the use of operating engineers were then , or about to be, in progress in the Gladstone area . The records, however, indicate that only a few such jobs became avail- able on these project sites beginning in the summer of 1974 General Coun- sel did not question Koski about most of these referrals, they occurred, in large part, at a tune when Carlson had already (in July 1974) been assigned to a job in the Gladstone area work at the Ontonagon paper mill ; the second would be after Carlson's layoff from the Escanaba job on October 7, 1974. As indicated, the parties set forth at the hearing their understanding that General Counsel would rely on only 5 referral cards of other employees during the first period and 16 cards during the second period as possible predi- cates for inferring discrimination against Carlson ; conse- quently, I consider myself bound to ignore the remaining cards, except insofar as they give rise to inferences support- ing Respondent's defense. The first period of nonreferral: After his layoff on Novem- ber 27, 1973, Carlson received no referrals from the hall for 3 months, until March 1, 1974. My review of the 250 cards indicates, however, that the March 1 referral to Carlson (and, to a lesser extent, the next referral of April 22, 1974) constituted, at least on paper, and based on a rule of strict seniority, favoritism toward Carlson . Thus, the records show that the March 1 referral constituted a preference over 62 hiring .hall users who had layoff dates preceding November 26, 1973, and who received no referrals until after March 1 , 1974. 15 In addition, the next referral to Carl- son, on April 22, 1974, prior' to his filing a charge in this case, technically preferred him over 43 employees who, strictly on the basis of seniority stemming from the, last layoff date, had a superior claim.16 Discrimination, however, is hardly ever blatant. There clearly exists the possibility that the referrals made to Carl- son in 1974 were subtle , token attempts to give an appear- ance of fairness . Carlson testified that Business Agent Bo- dette told him that the April 22, ' 1974, referral was only a 2-day job. On the other hand, there is nothing in the record to indicate that the attempted March 1 referral was to be similarly limited, and as to the four referrals which Carlson rejected in May and June (made after, it should be noted, his charge was filed), his primary reason for refusing was that the jobs were unacceptably distant from his home base (his mistaken notion that acceptance would cause a forfei- ture of his seniority on the register also may have entered into these refusals). The evidence of a preference to Carlson , which, as Gen- eral Counsel candidly stated, diminished the prospect of finding discrimination, was countervailed to some extent by evidence of five employees (G.C. Exhs. 140, 208, 210, 245, 260) whose last layoff date occurred after November 26, 1973, but who received referrals prior to March 1, 1974. General Counsel questioned Koski about these deviations from a "first-in-first-out" standard. Koski appeared, at best, to be attempting to reconstruct what must have hap- pened, rather than recalling what the reasons for these re- ferrals had in fact been. He explained these referrals as representing three employees who had worked "short jobs" leading to their post-November 26 layoffs, which did not require a forfeiture of their previous standing on the out- of-work list, and two employees who had only had a limit- 1s G C Exhs. 25---27, 34, 35, 42, 43, 49, 51, 52, 55, 57, 61, 62, 70, 74, 75, 80, 81, 84, 87, 90, 92, 94, 95, 99, 103, 105, 106, 111, 115, 125, 127, 128, 174- -177, 179, 183, 184, 186, 193, 197, 209, 218, 222--224, 227, 228, 230--232, 234, 235, 237, 240, 251, 254, 257, 259 16 G.C Exhs 25, 26, 42, 51, 52, 55, 57, 62, 70, 75, 80, 81, 84, 87, 90, 92, 99, 103, 105, 111, 125, 127, 128, 174, 177, 183, 184, 186, 197, 218, 222, 223, 227, 228, 231, 232, 234, 237, 240, 251, 254, 257, 259 LOCAL NO. 324, OPERATING ENGINEERS ed amount of work in 1973 17 and needed additional hours of work for both union insurance coverage and unemploy- ment insurance qualification. The cards seem to support Koski's explanations of the exceptions made for these five employees. Looking at Carlson's card, it shows that he worked a total of nearly 9-1/2 months, by referral from the hall, in 1973. In addi- tion, although Koski seemed to testify that he had not known of Carlson's work status until at least February 1974, Carlson testified that Business Agent Bodette knew that, beginning December 16, 1973, Carlson was working out of trade as a pipefitter.18 Accordingly, insofar as it might be argued that Respondent failed to bend the senior- ity principle in Carlson's behalf as it did for some of the five employees who had had little employment, as dis- cussed above, there would have been no apparent reason for doing so. Similarly, insofar as it might be contended that Carlson did not receive the benefit of the "short job" exception 19 for maintaining a prior layoff date as his se- niority date, his work record shows that he had worked nearly 3 months at the job from which he laid off on No- vember 26, 1973. It should also be pointed out that these five referrals constituted a preference, based on strict priority dates, not only over Carlson but also over many other employees who had been laid off prior to the layoff dates of these five employees and did not receive referrals until after the five employees. Based solely on the five cards proffered by General Counsel to show discrimination during the 1973-74 season, to which, as indicated, I feel obliged to limit my consider- ation, I have no basis for inferring discrimination against Carlson because of, in the words of the complaint, his "po- litical and intra-union activities." I note that after those activities began in the summer of 1971, and through No- vember 26, 1973, Carlson received eight attempted referrals from the hall; he accepted three of the jobs, for a total of about 15 months' work. He was in fact preferred over 62 employees, on a straight seniority basis, for the March 1, 1974, attempted referral, and over 43 employees for the April 22 referral. In these circumstances, and on the basis of the limited data for consideration at my disposal, I find it difficult to conclude that Carlson was discriminated against during the period from November 26, 1973, to July 11, 1974, when he was offered, and accepted, a job in Esca- naba. The second period of nonreferral: After Carlson had worked 3 months at the Escanaba job, and was laid off on October 7, 1974, he had obtained no work as a result of referrals from the hall as of April 15, 1975, the last date of the hearing.20 Initially, consideration of whether Carlson 17 One of these was Noyes, whose card (G C Exh. 245) does not include entries prior to October 24, 1973, which apparently appeared on an earlier card for Noyes not put into evidence. 18 Carlson testified that his compensation as a pipefitter was about the same as that accruing to an operating engineer, and he had other "fringe benefits" while so employed, 19 While Koski first testified that generally a "short job" would be 3 weeks, he expanded that definition later on, including one 7-week job as a "short job" because of the particular employee's prior lack of gainful em- ployment 593 was the victim of discrimination during this period is limit- ed by the fact that the records in evidence were copied by counsel for the General Counsel on February 5, 1975; there is no evidence in the. record as to the number of referrals, if any, made after that date, and I therefore can- not assume that any were made. I am, of course, further limited by the agreement of counsel that only the referrals made after October 7 to 16 employees about which Koski was examined, could be used against Respondent in evalu- ating the charge of discrimination. Koski explained the preference of the 16 employees, all of whose last layoff dates followed Carlson's October 7 date,21 as follows: one job involved heavy work, and the employee -referred was young and strapping (Carlson ap- peared to be neither); six were cases in which the layoff subsequent to Carlson's was from.a "short job" which did not cause forfeiture of the six employees' prior layoff se- niority; three were situations in which the assigned job was of short duration and/or at a distance which, according to Koski's experience, most employees would not travel for, a few days work; three involved cases in which the employee had only had a small amount of work in the past year;22 the reasons for one such referral were that the employee had only worked a short period in the preceding year and was a "severe diabetic" who needed special attention; one employee had been working out of a trade (as a pipefitter), and his time spent doing so did not cause a forfeiture of his original layoff date; one such referral (on November 6, 1974) was explained as based on the fact that the employee was a "heavy equipment mechanic,"-presumably a rare commodity, and also that he had not had much work since August? Some of ^ these explanations are convincing; a few, such as Dwa's case, raise doubts in my mind as to their reliabili- ty?a On the other hand, as General Counsel pointed out at the hearing, and as the records show, there are 31 employ- ees with layoff dates earlier than Carlson's (5 in October, 20 Koski testified, however, that Respondent twice called Carlson on Jan- uary 20, 1975, for a job in Kingsford, Michigan, but could not contact him These attempts do not appear on the copy of Carlson's workcard in evi- dence, since that copy was produced and entered in evidence on December 3, 1974, thus predating the alleged calls. Counsel for Respondent repre- sented that Carlson's actual card shows the attempted referral , and Carlson, of course, was in no position to deny that such calls had been made 2i G C Exhs 40, 55, 69, 78, 88-90, 93, 131,' 144, 155, 173, 174, 201, 228, 242 22 As to one of these, Groleau, Koski testified that he had no employment between October 1973 and September 1974 Since Groleau's current card (G C Exh 89) shows only his employment experience beginning September 30, 1974, and since Groleau's prior card was not introduced , there is no way toAuestion the validity of Koski's testimony in the respect On this latter point, the card of this employee, Dwa, shows quite the contrary- he was laid off on August 2, worked from August 19 , to September 21, and from September 25 to October 6, and apparently worked from shortly thereafter until October 17 (G C Exh. 131). Prior to August 2, Dwa had worked for over 6 months in 1974 Compared to the work,expenence of many other employees disclosed by the cards, Dwa had enjoyed a prosper- ous year But the first reason, given by Koski, that Dwa was a "heavy equip- ment mechanic," impliedly an unusual skill, is not controverted by other evidence u In examining the other records of attempted referrals after October 7, 1974, certain other cards leg, G.C. Exhs 65, 83, 89, 123, 145, 154) also suggest unwarranted preferences, either in terms of strict seniority or in Koski's terms of doling out the work 'io the most needy, regardless of senior- ity. Since, however, counsel have agreed that 1 am not to rely on records about which Koski was not questioned, I shall disregard these cards. -594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12 in September, 7 in August, 3 in July, and 4 at earlier times) and many others with layoff dates relatively close to Carlson's (24 laid. off by October 31, and 26 more laid off by November 15) who, as of February 5, 1975, had re- ceived no referrals. General Counsel argues,that if I were to determine that Koski's explanation of these. 16 cards (and the 5 examined relative to ,the period between November 26, 1973-July 141, 1974) was spunous,`I could properly conclude that Carlson was the victim of discrimination. For this -proposition, he cites International. Union of Operating Engineers, Local 406, AFL-CIO •(New Orleans Chapter, Associated General Con- tractors of America, Inc.), 189 NLRB 255 (1971). In that case, the Administrative Law Judge, whose decision was adopted by the Board, did hold that a finding of discrimi- nation against a registrant-because of his political activities was not "precluded because there were other names on the out-of-work list with earlier registration dates than Dufour's. ,Manifestly, discrimination against these other registrants was-neither charged nor litigated" (189 NLRB at 265). The decision contains no other details about the number or circumstances of these "other names"; it does, however, indicate factual distinctions between the opera- tion of that hiring hall and this one. I note, however, that in Local Union No. 181, International Union of Operating Engi- neers, AFL-CIO (Nicholson Construction Company), 148 NLRB 750 (1964). the Trial Examiner, also affirmed by the Board, appeared to opt for a contrary thesis-that the exis- tence of- other persons discriminated against gave rise to an inference that the Charging Party had not been specifically discriminated against; and placed a burden on the General Counsel to show that the other apparent discriminatees were of a similar stripe with the alleged discriminatee: "Any unfairness which may have resulted from the manner in which the [hiring hall] was operated was apparently felt not alone by the supporters of Williams, but also by others who were not shown to have supported Williams or op- posed the candidacy of Watkins. Indeed, that system ap- parently operated in Meeks' favor at times and, indeed, perhaps even on August 19, in that he was called in prefer- ence to a few crane operators who were on the out-of-work list longer than he was." (148 NLRB at 756; emphasis sup- plied.) As discussed, the record shows that for the two periods involved here, the 21 referrals examined into worked a dis- crimination, on a straight seniority basis, not only against Carlson but against many other applicants. In such circum- stances, even if I were to discredit Koski. (which, on the limited record before me and in the absence of contradic- tion of Koski's testimony, I do not), I would have consider- able difficulty in finding support for the complaint allega- tion that Carlson was discriminated against because of his "political and intra-union activities." The fact that Koski might have improperly preferred 21 employees, thereby ef- fecting a general discrimination against so many others, does not in my view afford a reasonable foundation for 'inferring that the basis for a single one of those many other discriminations was his "political and -intra-union activi- ties", Furthermore, in the first period considered, as shown above,, in March and April 1974, Carlson was preferred over a large number of employees who, again on- the basis of strict seniority, might have been entitled to the jobs he was offered. The same is true of the second period, based on the asserted effort to refer Carlson to the Kingsford job on January 20, 1975. In addition, I take- cognizance of the fact that Carlson had consistently refused the referrals made to him in May and June 1974 on the ground-that he-desired work close to home. He refused work at the Ontonagon paper mill, the Tilden mine, the Empire mine, and the Marquette power house. The records show that a great many of the referrals made between October 7, 1974, and February 5, 1975, were to theseprojects or to similarly distant locations. After this experience, it would not be unreasonable to decide that it would be fruitless to attempt to refer Carlson to such loca- tions. In all, considering the Respondent's referrals to Carlson after his 1971 election efforts, which'kept him working fair- ly steadily until November -1973; the limited and confusing nature .of the evidence which I am authorized to consider as evidence of discrimination here; the not-implausible character of Koski's explanation of most of the 21 cards; and the fact that the statistical discrimination, if any, would encompass not only Carlson but a substantial num- ber of other employees, I feel constrained to conclude that General Counsel has not shown, by a preponderance of the evidence, that Carlson was discriminated against because of his political dissidence. I am reluctant to so conclude because I strongly intuit that Carlson was, in fact, the vic- tim of`discrimination so,motivated; intuition, however, is no substitute for hard evidence. Perhaps if all the cards were eligible for consideration; if Koski was interrogated about them all, and if a computer was set to work on the issue, a case could be made out; but that is not the posture of this proceeding. The, main thrust of General Counsel's brief is devoted not to the foregoing issue, but to a contention that the hiring hall is operated in such a random fashion, without any sort of uniform standards or guidelines, that its opera- tion necessarily constitutes unfair, invidious, and irrelevant conduct within the meaning of Miranda Fuel, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963). General Counsel asks me to so conclude, and to order Respondent, inter alia, to "formulate reasonable and logical standards for the operation of its referral system, post those, standards in its union hall so that its members can be apprised as to how the system operates, and abide by those standards." The complaint, however, does not raise the broad and important question of the requirement for standards in the operation of a hiring hall; it alleges only that Carlson was discriminated against for his "political and intra-union ac- tivities." The case was not heard on the basis of whether, and what, standards must be employed in the operation of a hiring hall; General Counsel did not move to amend the complaint to include such an issue; and Respondent's brief does not touch on it. Because of the significance of the proposed finding, and the likelihood that the case would have been heard quite differently on such a theory, I do not believe that the issue is properly before me for decision. I. U.O.E., Local 406, AFL-CIO (New Orleans Chapter, AGC), supra, 189 NLRB at 264. LOCAL NO. 324, OPERATING ENGINEERS This is not to say that the issue should not be pursued in another forum. As General Counsel accurately points out, the factors on which Respondent relies in making referrals are "completely devoid of boundaries, parameters, guide- lines or definitions." As now run by Koski, the hiring hall, whether benevolently operated or not, is his fiefdom. Gen- eral Counsel notes, with only slight exaggeration, that "[a]ny unemployed member could doubtless be referred for a particular job ahead of any other member, and Respon- dent would be able to justify it on, the basis of some combi- nation" of factors. Such near-absolute power vested in a union- official is plainly a potentially dangerous thing.21 It may in fact be none of the Board's business how a hiring hall is run, as long as it-is not shown to be operated discriminatorily. See Local 357 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 676 (1961). And I appreciate the problems inher- ent in operating a large hiring hall. It would seem a waste of resources, for example, to require a union to plow rigidly through a long list of registrants for every referral, calling each registrant in turn by seniority, even though the busi- ness agent knows full well that the first 50 registrants, for reasons of their own,, willrefuse a -given job. It further may be a valid consideration in- determining order of hire for a hiring hall to choose among registrants on the basis of an equitable distribution of work. Cf. N.L.R.B. v. News Syndi- cate Company 365 U.S. 695. 702 (1961); International Union of Operating Engineers, Local 18, AFL-CIO (Ohio Contrac- tors Association), 204 NLRB 681 (1973), and cases cited therein Z6 But there inheres an enormous potential for abuse in a hiring hall which maintains no published pnori- ty, lists, which operates with no written standards for refer- ral, and in which the livelihood of men has been confined to the unbridled discretion of a few union officials. There are many records here, not examined into at hearing, which facially suggest discrimination or preference and which beg for explanation. Why, for example, were there a number of employees on the register with layoff dates as early as June, July, August, and September, 1974,', who were apparently available but who had received no refer- rals as of February 5, 1975? Why was it, as Koski testified, 25 As the Trial Examiner noted in Local Union No 181, L U 0 E, AFL- CIO, supra, 148 NLRB at 753, "This referral procedure also makes possible the exercise of favoritism or discrimination without easy detection " 26 In I'U 0 E, Local 18, 204 NLRB at 681, the Board declared a broad rule that "[w]hen a union prevents an employee from being hired [the Board] will infer-or, if you please, adopt a presumption that-the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power But the inference may be over- come, where the facts show that the union action was necessary to the effective performance of its function of representing its constituency " Ev- ery time one employee is-referred from a union hiring hall, of course, it effectively means that the Union has "prevent[ed] an[otherl employee from being hired " But it seems unlikely that the Board intended that, in order to justify each referral, the Union must demonstrate that "the union action was necessary to the effective performance of its function of representing its constituency." More apposite. perhaps, is the Miranda requirement that a union refrain from "unfair or irrelevant or invidious treatment," 140 NLRB 181, 185 (1962), or the Board's holding in Marquette Cement Manufacturing Company, 213 NLRB 182 (1974), that the Union "acted in furtherance of a valid objective for the benefit of the membership as a whole-" See General Truck Drivers, Local 315, International Brotherhood of Teamsters (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975) 595 that employee Groleau had received no work for 12 months? There may be valid answers to these and many other questions which the records raise; they should be sought. While I would suppose that Section 10(b) would lay to rest the possibility of further Board proceedings as to these particular records, the broader question of whether a hiring hall may be operated m,this fashion should be pur- - sued. B. The Refusal of Information to Carlson, on February 13, 1974 The complaint alleges that on February 13, 1974, Re- spondent violated Section 8(b)(1)(A) by refusing to comply with Carlson's request for certain information pertaining to the referral system. According to Carlson, on February 13; he asked Koski in the hiring hall for his standing on the out-of-work list. Koski "stuck his thumb" in the center of the file containing the work records and told Carlson "Here's where you stand in the file." Carlson elicited a numerical standing from Ko- ski. Carlson was not sure of the number told to, him: "I was thinking of the number 62, but it could have been 50 to 62." Carlson then asked Koski "if he would give me a list of-the number of people, as I recall it, it was 50-people ahead of me and behind. me on the list." He told Koski he wanted the "name and address and telephone number" of the 100 people involved. According to Carlson, Koski told him that he would mail him the information, but never did so. Carlson testified that he wanted the information "to prove I was being prejudiced against." He suspected; that he was not being given "an accurate count" because of the summary manner in which Koski had ascertained his standing. Carlson undoubtedly believed on February 13, 1974, having received no referrals since-his November 26, 1973, layoff, that he was the object of discrimination. Carl- son testified that he would have used the information he had requested to telephone the employees, or some of them, to determine whether, in fact, they were workin'g.27 Koski was unclear about why he failed to comply with Carlson's request. At the December 3, 1974, hearing, he said, "It's on advice of counsel. Maybe he can explain that." He also alluded, however, to the fact that "a few" registrants have unlisted numbers and to a belief held in February 1974 that "a lot of the members do not want phone numbers or any information given-out." Thereafter, at the April 15, 1975, hearing, Koski testified that, in the interim, he had asked , "possibly 20 or 25" members how they felt about disclosure of the information, and they were all opposed; he could only name three such persons, how- ever. At the latter hearing, he also apparently announced a policy that registrants could look at all the referral cards, 27 Koski testified that Carlson asked only for information as to the 20 applicants ahead of him on the register, and that he only told Carlson he would "check on the thing " I tend to think Carlson's testimony is,more reliable on the first conflict As to the second, I doubt that Koski would have simply agreed to mail such information to Carlson, I imagine that both accounts were partially accurate That is, Koski said he would check it out and, if it was deemed appropriate, he would send the information to Carl- son 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but not copy down the names, addresses,- or telephone numbers. General Counsel advances the proposition that-"the'stat- utorily imposed duty of fair representation requires, at a very minimum, that whenever a member has reasonable cause- to believe he is being discriminated against by a union operating an exclusive hiring hall and requests refer- ral information within the possession of the Union relevant to the determination of whether or not he is, in fact, being treated fairly, the Union is required to furnish that infor- mation, and its failure to do so constitutes a violation of Section 8(b)(1)(A) of the Act." At the threshold is a question of the nature of the issue before me. The complaint alleges that the violation oc- curred when Carlson' "requested that Respondent furnish him with certain information pertaining to its referral sys- tem .... but Respondent did then fail and refuse, and has at all times failed and refused, to furnish the requested information." Carlson testified that, on February 13, he asked Koski "if he would give me a list" of the 100 people requested. As discussed, it-seems probable that Koski indi- cated-uncertainty about the matter, but said he would send the information to Carlson if he concluded that,it=was ap- propriate to do so. At the hearing, as noted, Respondent took the position that it-not only objected to supplying the information to Carlson, but that it also'would object to Carlson copying the `information himself. The General Counsel's brief (which speaks in general terms of the Union being "re- quired to furnish . . . information," the "release of - re- quested referral information," "disclosure of information," ect.) does not in so many words pinpoint the nature of the duty-allegedly owed to registrants-whether it is asserted that a union is legally required to itself compile the request- ed data or whether a union need at least honor a request by an applicant to examine the records and himself copy in- f ormation `therefrom. At one point in his brief, however, General Counsel an- ticipates that Respondent will advance, as justification for its refusal, the argument that granting such requests "will be burdensome and inconvenient," and that a disclosure requirement "will result in the floodgates being burst with requests for information, resulting in great expense, chaos and confusion." General Counsel reject's this anticipated argument by asserting that, because there had- been no such requests in the past, there is no reasonable basis for believing that a'disclosure requirement "will result in any significant burden or inconvenience to the Union," and that, in any event, "any such legitimate `business' interest Respondent might have for maintaining its policy of pro- hibiting the release of this information is clearly out- weighed by the substantiality of the members' interests in securing the information." In its brief, Respondent clearly assumes the issue to be only whether it was required to furnish Carlson a list of names, addresses, and telephone numbers on request. Since the complaint allegation necessarily reflects the underlying facts which purportedly gave rise to the alleged violation, and since the General Counsel and, certainly, the Respondent appear to treat the issue as being whether the Respondent was obligated to comply with Carlson's -re- quest that Respondent furnish him a list of names, address- es, and 4elephone numbers of 100-individuals on the out- of-work register, I shall treat the complaint as addressing only that issue, and not any broader question as to Carlson's right to copy information from Respondent's rec- ords.28 , In Miranda Fuel, supra, 140 NLRB at 185, the Board held that Section 8(b)(I)(A)= of the Act "prohibits labor organizations, when acting in a -statutory representative ca- pacity, from taking action against any employee upon con- siderations or' classifications which are irrelevant, invidi- ous, or unfair." While it might be contended that, in operating a hiring hall, a union is not "acting in a statutory representative capacity." but rather as an employment agency for an employer, that argument seems to have been put to rest by the Board's dicta in Miranda, 140 NLRB at 184, and its holding in Houston Maritime Association, Inc., 168 NLRB 615, 617, 626, fn. 14, (1967), enforcement de- nied 426,F.2d 584 (C.A. 5, 1970). As the Board spelled it out in Miranda, the duty of fair representation derives from a union's Section 9 authority to act as exclusive representative of all the employees: "By its selection as bargaining representative, it has become the agent of all the employees„ charged with the responsibility of representing their interests fairly and impartially." The foregoing, statutory obligation of an exclusive bargaining representative, the' Board held, is subsumed 'into an opera- tive right of employees' by Section 7, which grants employ- ees the right "to bargain collectively through representa- tives of their own choosing"; the Section' 9 obligation of unions, translated" into a concomitant Section 7 employee right to require observance of that obligation, thus protects employees from "unfair or irrelevant or indivious treat- ment by their exclusive bargaining agent in matters affect- ing their employment." (140 NLRB at 185.)' '' In Miranda,` quoting Steele v. Louisville & Nashville Rail- road Co., 323 U.S. 192, 203 (1944), the Board defined the duty, as prescribed in Steele, to mean that "differences in treatment must relate to `relevant' differences, and the Court [in Steele] thereupon concluded that `discriminations based on race alone are obviously irrelevant and invidi- oiis."' (140 NLRB at 185.) In the present case, there are no "differences in treatment" or "discriminations." The rec- ord makes clear that Respondent would afford to no other employee the information it denied to Carlson. This raises the question, then, whether a union can,be in breach of its duty of fair representation when it takes a position affect- ing the entire bargaining unit which might be classified as "arbitrary" or "unfair." The question must be answered in the affirmative. The underlying thesis of the duty of fair representation is that since employees have, surrendered to the Union the author- ity to represent themselves, the grant of such authority to the exclusive bargaining agent "includes a statutory obliga- tion to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with 28 Carlson gave no indication at the hearing that he had wanted the op- portunity to copy the information himself or that he would have done so if permitted He believed that it was incumbent on the Respondent to furnish such a list. LOCAL NO. 324, OPERATING ENGINEERS complete good faith and honesty, and to avoid arbitrary conduct," Vaca v. Sipes, 386 U.S. 171, 177 (1967). The stat- site divests employees of the right of self-representation and vests in their union the right to make employment- related decisions which would otherwise have belonged to' the employees alone; that all employees in a bargaining unit may suffer from a union's perversion of its statutory duty to "avoid arbitrary conduct" is no less an abuse of the authority transferred by the statute than if the union's con- duct affects only part of the group. In the seminal case recognizing the duty of fair represen- tation, Steele v. Louisville & Nashville R. R., Co., supra, the Court treated only with a case of racial discrimination; and responded in- appropriate terms, finding inherent in the role of exclusive bargaining agent a duty to provide "equal protection" to all members of the unit.29 Subsequently, however, by virtue of the Supreme Court's decision in Vaca v. Sipes supra, the recognized duty of fair representation "has since been expanded as a principle of general applica- tion to collective bargaining representatives who are re- quired to serve the interests of all members without hostili- ty or discrimination toward any, to exercise [their] discretion with complete good faith and honesty, and to avoid arbitrary conduct."' N:lo A. Bazarte v. United Trans- portation Union, 429 F.2d 868, 871 (C.A. 3 (1970). The Fourth Circuit has noted that "The repeated references in Vaca to `arbitrary' union conduct reflected a calculated broadening of the fair representation standards," Allen L. Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 469, F,2d 181, 183 (C.A. 4, 1972); accord, Beriault v. Local 40, Super Cargoes & Checkers of the International Longshoremen's & Warehousemen's Union, et al., 501 F.2d 258 (C.A. 9, 1974), and cases cited therein.3o Thus, the duty of fair representation is no longer posited only on a failure to afford "equal protection," but, as well, encompasses the obligation to provide substantive and procedural due process in taking action or refraining there- from, without reference to whether the union's conduct ef- fects a discrimination as such. See, e.g., Al Mumford y. James M. Glover, 503 F.2d 878, 885, fn. 8 (C.A. 5, 1974) (valid cause of action may lie where union renegotiated a pension plan contrary to the, wishes of most of the unit employees; although "[a]ll previous fair representation cases which have come to the attention of this court in- volved the allegation of either an individual or a minority of the membership," a complaint affecting a majority is not barred); cf. Knitweave Finishing Co., Inc., 183 NLRB 1148, 1166-67 (1970); Hargrove v. Brotherhood of Locomotive En- gineers, et al., 116 F.Supp. 3 (D.C.D.C., 1953); Buchholtz v. Swift & Co. 62 FRD 581; ,Willie Aikens v. LW. Abel, 373 F.Supp. 425 (W.D; Pa., 1974) (dicta). But cf. Benjamin M. Pastrana v. Folding Box, Corrugated Box and Display Work- ers Local 381 212 F.Supp. 639'(S.D.N.Y.) (1962). 29 "We think the Railway Labor Act imposes upon the statutory represen- tative of a craft at least as exacting a duty to protect equally the interests of the members of-the craft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates,' 323 U.S 192. 30 The Board, in fact, had already condemned "arbitrary" conduct in Miranda Fuel, 140 NLRB at 185, 186, some 4 years before the issuance of Vaca 597 Clearly, if "arbitrary conduct" alone constitutes a suffi- cient basis for finding a breach of the duty, it matters not whether that conduct affects a single individual or the en- tire group. Obviously, for example, a class-action by all members of a bargaining unit alleging that the union offi- cers had decided to stop processing all grievances because of the burden involved would present a cognizable claim that the union had violated its duty of fair representation. Similarly, a claim that union officers had taken money from an employer in return for negotiating an unsatisfac- tory contract would clearly violate the union's duty to "ex- ercise its discretion with complete good faith and honesty," Vaca v. Sipes, supra. In the present case, it should be noted that. Respondent's refusal to furnish information does not immediately im- pinge on Carlson's employment status.- But in Miranda, the Board broadly defined-the scope of the duty as "the right [of employees] to be free from unfair or irrelevant or invidi- ous treatment .:. in matters affecting their employment" (140 NLRB at 185; emphasis supplied). In Bazarte, supra, the court expansively delineated- the duty as applying to "the negotiation, administration, and enforcement of collec- tive bargaining agreements," 429 F.2d at 871 (emphasis supplied), and in Mumford, supra, the court even more sweepingly stated, "Such a- duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all union dealings implicit in the Congressional grant to unions, in 29 U.S.C.A. § 159(a), of the exclusive power to represent all employees in the collective bargaining -unit." 503 F.2d at 882. In this case, Carlson's efforts to obtain information to determine whether the Respondent was nondiscriminatorily operating its hiring hall with respect to his own employment opportu-, nities, the latter right being guaranteed him by the collec- tive-bargaining agreement, was plainly a "matter affecting [his] employment" and thus within the ambit of the duty of fair .representation. For purposes of this case, the primary question appears to be whether the Respondent has engaged in "arbitrary conduct" in refusing the, requested information. In General Truck Drivers, Warehousemen, Helpers and Automotive Em- ployees, Local 315, supra, the Board held that the duty to avoid arbitrary conduct "must mean at least that there be a reason for action taken." In Ford Motor Company v. Huff- man, 345 U.S. 330, 338 (1953), the Supreme Court suggest- ed that the reason underlying a particular action of a union may not easily be challenged: "A wide range, of reason- ableness must be allowed a statutory bargaining represen- tative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion." But the Board plainly does not mean that any reason advanced by a union is sufficient, and the Supreme Court's "wide range of reasonableness" standard implies, of course, the existence of conduct which is not reasonable, and therefore prohibited. Furthermore, as General Counsel points out, citing International Union of Electrical Radio and Machine Workers, AFL-CIO, Frigidaire Local 801 v. N.L.R.B., 307 F.2d 679, 683 (C.A.D.C., 1962), it need be borne in mind that "the requirement of fair dealing be- 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween a union and its members is'in a sense fiduciary in nature . . . . A union may not treat as adversaries either its members or those potential members whose continued employment is dependent upon union membership .. . The union is the agent for employees ... . In this case, the following reasons are assigned for the Respondent's decision not to furnish the list requested by Carlson. Koski testified that "a few" registrants were jeal- ous enough of their privacy to have unlisted telephone numbers; while,, in pursuit of employment, they confided these numbers in the hiring hall, they presumably would not care to make the numbers accessible to any registrant who walked into the hall and asked for such information 31 Similarly, some of the registrants told Koski, apparently primarily after the request was made, that they preferred that their phone numbers not be bandied about. I first must say that it would appear that the foregoing considerations did not personally animate Koski's refusal on February 13, as evidenced by his referral to counsel at the hearing of the question why he refused Carlson's re- quest. Furthermore, I see no legitimate basis for refusing to give out the telephone numbers of those employees who are in fact listed in the directory; they have made their numbers available to the public, regardless of any concern privately expressed to Koski about not desiring disclosure. At any rate, as the Board indicated in Excelsior Underwear Inc., 156 NLRB 1236, 1244 (1966), it will not presume that harassment will follow release of such information. Those "few" employees who have unlisted numbers, however, ob- viously have indicated a desire to maintain their privacy. But this objection could have been cured by only furnish- ing Carlson the telephone numbers of those whose tele- phones are listed in the directory 32 Respondent made no such offer 33 - Tliel final reason alluded to by Respondent in its brief is that the preparation of the list would entail an onerous burden on Respondent, requiring, conjecturally, the con- struction of "hundreds of different sequential lists" if a number of employees requested such information. As a theoretical matter, I do not perceive the necessity of preparing "hundreds of different sequential lists." All that Respondent would be required to do, if it had no such list, would' be, upon the first request, to make up a list of infor- mation pertaining to'' all persons on the out-of-work regis- ter. Thereafter,' as referrals were made and new registrants added, this master list could be kept current by striking out the names of those referred and adding the new names to the bottom of the list. Whenever a request for the list was properly made,' Respondent could' furnish a copy, of the master list as it then stood. 31 As Respondent points out, the fact that only Carlson asked for data would not, once the principle was established, preclude any registrant, who beheved.himseif to be the subject of discrimination, from requesting a list of all of the names, addresses, and phone numbers on all the cards in the, out-of-work register 32 While Carlson requested the telephone numbers of 100 people, there is no showing in the record that any of the 100 individuals involved in fact had unlisted numbers Koski was questioned, about this, but did not know 33 As to the duty to make an alternative offer of information, cf General Electric Company, 150 NLRB 192, 261 (1964), and cases cited therein at fn 90. More importantly, however, although Respondent refers to the matter in its brief, the logistical problem was never mentioned by Koski at the hearing as a reason for denying the information to Carlson. Koski, in fact, conceded that he agreed to "check out" the request, without noting any concern about the physical problem of preparing a list. The reason for this, I believe, is disclosed by Koski's testimony at the hearing indicating that such a list was already in existence. He testified that when he and the other business agent are traveling, "we carry indexes of out-of-work men with us." The indexes contain "the names and phone-num- bers and lay-off date" of the men on the register. Unless the reason for ostensibly arbitrary conduct is "apparent," the Board said in General Truck Drivers, Local 315, supra, "we will have no choice but to deem the con- duct arbitrary if the union does not tell us what [the reason] is." And in N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 35 (1967), the Supreme Court warned against speculat- ing about justification(". .. the Court of Appeals miscon- strued the function of judicial review when it proceeded nonetheless to speculate upon what might have motivated the company.") If there were any practical problems about reproducing the list already in existence, or any reason why that list would not have served Carlson'.s purposes, Re- spondent has not told us about them. In my judgment, Respondent has failed to advance any legitimate reasons for withholding from Carlson the list re- quested. Koski testified that he had no objection to Carl- son perusing the out-of-work register, even-for a period of time long enough to memorize some names and phone numbers; yet he offered no colorably valid reason for not furnishing the limited information requested, as discussed above, despite the fact that he already apparently had a list which would have met Carlson's requirements. As previ- ously noted, he was not even sure of the reason at the hearing: "It's"on advice of counsel. Maybe he can explain that." This is not to say that I consider the information request- ed to be of inestimable value to Carlson. Still, its use might have produced some evidence that the' referral system was out of kilter and being operated in a way which adversely affected Carlson's interests. Conversely, the information adduced from the other employees might have satisfied Carlson that he was being properly treated. In these cir- cumstances; where an employee seeks information from his collective-bargaining agent in a "matter affecting his em- ployment," and the Union establishes on the record no arguably reasonable basis for refusing to supply thatinfor- mation, I must conclude that the'Unign's conduct is arbi- trary. A union is a service agency, designed to further the inter- ests of the employees it represents. There is no reason for it to be a closed society, unresponsive to reasonable requests of the unit employees. As the Court of Appeals for the District of Columbia Circuit noted in I. U.E., Frigidaire Lo- cal 801 v. N. L. R. B., supra, 307 F.2d at 683 (per Burger, J.), a union, as the agent of employees, is subject to the positive obligation set forth in Restatement (Second), Agency §381 (1958): "to use reasonable efforts to give his principal-in- formation which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire LOCAL NO. 324, OPERATING ENGINEERS to have." On the evidence before me, there is nothing to show that Carlson's request required Respondent to exert efforts which might be deemed unreasonable and beyond the call of the duty described. I do not, of course, pass on any other situation which might arise in the future. Respondent could well receive other requests for other relevant information which it might adequately justify refusing to honor. Indeed, there might be such reasons here, but they are not in the record nor are they "apparent" to me. I hold only that, on this record, no legitimate reason appears for Respondent's re- fusal to furnish the list of names, addresses, and telephone numbers requested by Carlson on February 13, 1974, and that by such arbitrary conduct, Respondent has violated Section 8(b)(1)A) 34 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth above have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take affirmative action designed to effec- tuate the policies of the Act. As General Counsel points out, the information request- ed on February 13, 1974, would be useless to Carlson at this time, and a requirement that Respondent now produce the information would be inappropriate. General Counsel seeks, rather, a prospective order requiring Respondent to "release to inquiring members who have a reasonable cause to believe they are being discriminated against rele- vant referral information within its possession, including, but not limited to, the names, addresses and phone num- bers of unemployed members." I see no basis for limiting an order to "members who have a reasonable cause to believe they are being discrimi- nated against." Preliminarily, of course, there may be regis- trants for whom Respondent is the agent but who are not "members." Primarily, I think that where it exists, the duty to furnish information runs to any registrant who may have a reasonable use for such information, and not simply to those who have "reasonable cause to believe they are being discriminated against." However, because the nature of fu- ture requests may vary considerably, and because Respon- dent may have justifiable reasons for refusing such requests which have not been litigated on this limited record, I shall confine my recommended order to requiring Respondent 34 If the issue were before me of whether Carlson was improperly denied the right to copy the requested information himself, I would, a fortiori, find that such denial was violative of the Act Respondent has made no contention based on various sections of the Landrum-Griffin Act, such as 29 U S C §§414, 431(c), and 481(c). I do not construe those provisions as delimiting the scope of a union's obligation to furnish information to the employees it represents. 599 to refrain from arbitrarily denying referral information to registrants. CONCLUSIONS OF LAW 1. Michigan Chapter of the Associated General Con- tractors, Inc., and its employer-members, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing, on February 13, 1974, to supply Melvin Carlson the list of names, addresses, and telephone num- bers of 100 employees on Respondent's out-of-work regis- ter, Respondent breached its duty of fair representation and interfered with, restrained, and coerced Carlson in the exercise of his rights under Section 7 of the Act, thereby violating 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) of the Act. 5. Except as set forth above, Respondent has not violat- ed the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER35 Local No. 324, International Union of Operating Engi- neers, AFL-CIO, Escanaba, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act by arbitrarily refusing to honor requests for information, made by employees on the out-of-work register who have a reasonable need therefor, pertaining to the exclusive refer- ral system operated by Respondent. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its office in Escanaba, Michigan, copies of the attached notice marked "Appendix." 36 Copies of said notice, to be furnished by the Regional Director for Region 30, shall, after being duly signed by an authorized repre- sentative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places 36 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 36 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where notices to members and registrants are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges violations of the Act other than found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT interfere with, restrain, or coerce em- ployees in the exercise of their rights under Section 7 of the Act by artitrarily refusing to honor requests for information, made by employees on the out-of-work register who have a reasonable need therefor, pertain- ing to the hiring hall system operated by this Union. LOCAL No. 324, INTERNATIONAL UNION' OF OPERATING ENGINEERS, AFL-CIO (MICHIGAN CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC.)