Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. AFL-CIO (Master Plumbers and Heating Contractors of the Twin Cities (Benton Harbor and St. Joseph, Michigan))

LOCAL 513, PLUMBERS Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL- CIO (Master Plumbers and Heating Contrac- tors of the Twin Cities (Benton Harbor and St. Joseph, Michigan)) and Claude Swigart, as agent for l.ocal 70, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Mechanical Contractors Association of Grand Rapids) and Claude Swi- gart, as agent for Local 154 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Shoreline Mechanical Contractors) and Richard W. Lawrick. Cases 7- CB-4912. 7-CB-4985(1), and 7-CB-4985(2) September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On December 16, 1981, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief, Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The facts, as found by the Administrative Law Judge, are undisputed. The Respondent, Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, has a collec- tive-bargaining agreement with the Master Plumb- ers and Heating Contractors of the Twin Cities. Under this agreement, Local 513 operates, through its business agent, Claude Swigart, an exclusive hiring hall. The Administrative Law Judge found that Local 513 had an established procedure for re- ferrals from the hiring hall for jobs within the Local's geographic jurisdiction. Under this proce- dure, when a contractor needs an employee, Local 513 must be given the opportunity to make the re- ferral. If after 48 hours the Local is unable to meet the contractor's needs, then the contractor may go elsewhere to secure employees. 264 NLRB No. 59 The Administrative Law Judge further found that sister locals for other geographic areas, specifi- cally Locals 70 and 154 of the same International, had substantially identical hiring hall arrangements under their respective collective-bargaining agree- ments. In addition, in order to prevent "unfair competition" between the locals' members for any available work, the locals have had an arrangement that an individual member may be on only one out- of-work list at a time-that of the local where he has kept his membership. Thus, a member of Local 513 cannot go into the geographical area of Local 70, for example, and have his name placed on the Local 70 out-of-work list unless he transfers his membership to that local. The Administrative Law Judge found that in recent years the area in which Local 513 has juris- diction has been severely depressed, and work has been slow. Locals 70 and 154, on the other hand, sometimes are asked to supply more workers than they are able through their own out-of-work lists. The record supports a finding that on those occa- sions, rather than permitting the employer to invoke its contractual right to hire from other sources, each local has called other sister locals to assist in supplying the necessary number of work- ers. The General Counsel alleges that Respondent, through Business Agent Swigart. violated Section 8(b)(l)(A) and (2) of the Act on two separate occa- sions when it arbitrarily and capriciously failed to refer Richard Lawrick to jobs outside its geograph- ic jurisdiction, and Section 8(b)(l)(A) when Swi- gart refused to permit Lawrick to copy the out-of- work list used for referrals. With respect to these specific allegations, the Administrative Law Judge found that in September 1980 Robert Kenney, business manager for Local 154, spoke to Swigart at a meeting and asked him to furnish 8 or 10 employees for one of Local 154's contractors. As found by the Administrative Law Judge, Swigart called a number of his members he knew were out of work who had expressed a will- ingness to travel outside the area. He told them to report to Kenney at the Local 154 hall in order to be referred to a job. He did not use his out-of-work list or have any other standard for determining whom to call other than his memory of who had said they would travel. Again, in September, Otis Fahl, the business manager for Local 70, contacted Swigart by tele- phone and asked him to refer men to him. As before, Swigart called upon his memory of those who had indicated a willingness to work outside the geographical area and called upon those indi- viduals to report to Fahl for referral to a job. 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Administrative Law Judge found that at least three Local 513 members who went to work pursuant to these contacts had been on Local 513's out-of-work list a shorter period than Lawrick. Further, Swigart did not contact Lawrick to ask if he was interested in being referred to a job in the jurisdiction of Local 154 or of Local 70. About this time, Lawrick came to the Local 513 union hall and asked to look at the out-of-work list. Swigart showed him the list. Two days later, Law- rick returned and again asked to see the list and also to have a copy of it made for him. Swigart re- fused. He stated at the hearing that Lawrick and other members have a right to look at the list, and "if they want to take off the top six names, I don't mind as long as they are going to do it, but I don't think a Xerox copy of the list is anything to be floating around the country. I think it's the local union's business." On these facts the Administrative Law Judge concluded that Swigart was not acting as an agent for either Local 70 or 154 when he referred em- ployees to them, and that accordingly these refer- rals were not pursuant to an exclusive hiring hall. Since there was no exclusive hiring hall, the Ad- ministrative Law Judge found that Local 513 would violate Section 8(b)(1)(A) only if Swigart's failure to tell a member of work was motivated by that member's having engaged in activity protected by Section 7 of the Act. The Administrative Law Judge found that Lawrick had questioned Swigart about Swigart's expenses as business agent, and had even suggested that Swigart was drinking on the job. He further found, however, that Lawrick had been making similar accusations for over 10 years throughout which time Swigart had regularly re- ferred him to jobs. He therefore concluded that Swigart's failure to refer Lawrick was not motivat- ed by Lawrick's protected activity. With respect to Swigart's refusal to permit Lawrick to copy the out-of-work list, the Administrative Law Judge found that Respondent violated Section 8(b)(1)(A). The Administrative Law Judge found that the list was maintained pursuant to the exclusive hiring hall arrangement and that Lawrick had a right to copy it. There were no exceptions to this finding. The General Counsel has excepted, however, to the Administrative Law Judge's dismissal of the al- legations that Respondent's failure to refer Lawrick to out-of-town jobs violated Section 8(b)(1)(A) and (2) of the Act. As a threshold matter, the General Counsel argues that the Administrative Law Judge erred in concluding that the referrals in issue were not in the context of an exclusive hiring hall. The General Counsel notes that Locals 154 and 70 had exclusive hiring hall arrangements and the General Counsel argues that in asking Swigart to fulfill their contractual obligation, the locals caused Swi- gart to act as their agent for purposes of maintain- ing the exclusive hiring hall. The General Counsel points out that the employees referred by Swigart reported directly to Locals 154 and 70, not to the prospective employers. In our view, the question of whether Swigart was acting pursuant to an exclusive hiring hall is critical, since, as the Administrative Law Judge concluded, Swigart's "admittedly haphazard system for notifying members of out-of-town work . . . would not withstand scrutiny as an exclusive hiring hall." Therefore, if the Administrative Law Judge erred in finding that the referrals were pursuant to a "non-exclusive system," then he also erred in concluding that the failure to refer did not violate Section 8(b)(l)(A) and (2) of the Act. After careful consideration, we find merit to the General Counsel's exceptions. Contrary to the Ad- ministrative Law Judge, we find that Swigart's re- ferrals to the out-of-town jobs were made on behalf of Locals 154 and 70 in order to fulfill their con- tractual obligations. In so holding, we are follow- ing our "clear statutory mandate to apply the ordi- nary law of agency ... .": Thus, the Board has adopted the fundamental rule of agency that "authority to act as an agent in a given manner will be implied when- ever the conduct of the principal is such as to show that he actually intended to confer the authority."' Here, representatives of both Local 154 and Local 70 called Swigart and authorized him to secure employees for their respective jobs. Swigart, acting under their authority, secured the needed employees and referred them to these locals. Indeed Swigart recognized his obligation to secure employees on their behalf. He testified that when a sister local called for referrals, "you better fill it." Under the circumstances, we find that Swigart, in making the referrals, was acting as an agent of the sister locals. Accordingly, the referrals were made pursuant to an exclusive hiring hall.3 i Local 90, Operative Plasterers and Cement Masons' International Associ- ation of the United States and Canada. AFL CIO (Southern Illinois Build- ers Association), 236 NLRB 329, 331 (1978), quoting International Long- shoremen's and Warehousemen's Union. C IO (Sunset Line and Twine Co.), 79 NLRB 1487, 1507 (1948). 2 Id I Our dissenting colleague misapprehends the central issue here. the question is the nature and extent of Swigart's responsibility when select- ing members for referral pursuant to the request of other locals. If the referrals were pursuant to an exclusive hinng hall, then they could not be made, as they were, in an "admittedly haphazard" manner. We have found that the referrals were through a hiring hall because Swigart was authorized by representatives from other locals to fulfill their contractual Continued 416 LOCAL 513, PLUMBERS We have reversed the Administrative Law Judge's finding that Swigart was not an agent. The Administrative Lac, Judge also found, however, that Swigart's method for referral was "haphazard" and could not withstand scrutiny when examined as part of an exclusive hiring hall arrangement. We adopt this finding. Thus, Local 513 had a well-es- tablished procedure for referrals but Swigart failed to follow this procedure in September when he re- ferred members who had been on the out-of work list for a shorter period than Lawrick. According- ly, on these facts, we find that Respondent violated Section 8(b)(1)(A) and (2) of the Act since it arbi- trarily failed to follow its established system for re- ferrals. 4 AMENDED REMEDY Having found that the Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, we shall order it to cease and desist therefrom and to take certain af- firmative action to effectuate the policies of the Act. Having found that the Union unlawfully caused Richard Lawrick to be denied referral to work on at least two occasions since September 1980, we shall order it to make him whole for any loss of earnings suffered as a result of the discrimination against him by payment to him of sums of money equal to that which he normally would have earned as wages from the date of the discrimination against him, until such time as Respondent proper- ly refers him to employment pursuant to the lawful operation of its referral system, less net earnings during such period. Backpay and interest thereon is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). Finally, we shall order Respondent to maintain and operate its exclusive job-referral system in a nonarbitrary and noncapricious manner. obligations to furnish workers from the hiring hall The hiring hall ar- rangement vwas exclusive because the other locals, through Swigart, re- tained control over the selection of the workers to be employed, and em- ployment could not be obtained in any other manner Contrary to the dissent, this finding is not belied by the fact that members of one local could apply for work at another local, since they could do so only after they received authorization, in the form of a travel card, from the home local. Moreover, contrary to the dissent, there is no legal impediment to holding Local 513 responsible for the acts of its business agent. Thus, al- though he wa, .cting pursuant to the hiring hall arrangement of his fellow locals, he swas doing so in his capacity as a representative of Local 513; hence, Local 513 is responsible for his conduct. 4Having found that Respondent was acting pursuant to an exclusive hiring hall, we do not reach the alternative issue raised by the General Counsel's exceptions, as to whether Respondent's failure to refer Lawrick was motivated by animus toward L awrick because of his protected activ- ities ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO, Benton Harbor, Michigan, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(a) and re- letter the subsequent paragraphs accordingly: "(a) Making referrals in an arbitrary or capri- cious manner." 2. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly: "(a) Maintain and operate the exclusive job refer- ral system in a nonarbitrary and noncapricious manner. "(b) Make Richard Lawrick whole for any loss of earnings suffered as a result of the discrimination against him by payment to him of sums of money equal to that which he normally would have earned as wages from the date of the discrimination against him, until such times as Respondent Union properly refers him to employment pursuant to the lawful operation of its referral system." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER FANNING, dissenting: I agree with the Administrative Law Judge's De- cision and would dismiss the complaint allegations regarding Section 8(b)(1)(A) and (2). 5 The facts are not in dispute. Swigart is the busi- ness manager for Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Locals 154 and 70 are sister locals of 513. Each Local has its own geographical area within which each operates an exclusive hiring'hall pursuant to collective-bargaining agree- ments between the Locals and the separate employ- ers whom each serves within its own geographic area. It is an unwritten practice among the business managers that if a local exhausts its out-of-work list that business manager will inform the business man- agers of the other locals that there is work availa- ble in his area. The business managers of the other locals in turn notify any member they believe I I would adopt pro forma, in the absence of exceptions, the Adminis- trative Law Judge's finding that Respondent violated Sec. 8(bXl)(A) by denying a member an opportunity to copy Respondent's out-of-work list 417 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD might be interested in out-of-town work. It is this practice which the majority now finds violates Sec- tion 8(b)(1)(A) and (2) of the Act because the refer- rals were made without regard to any objective criteria. To arrive at this result the majority finds that when Kenny, business manager for Local 154, informed Swigart of available work in Local 154's geographic area,6 Swigart became an agent of Local 154. Thus, any member whom he told of the work became a "referral" made pursuant to an ex- clusive hiring hall agreement and the referral was subject to the "objective criteria standard" which Swigart admittedly did not follow. As found by the Administrative Law Judge, there is no evidence of any agency relationship be- tween Swigart, as business manager for Local 513, and either of the sister locals. Swigart was merely performing a service for his members by informing them that there was work available. The practice was an additional service, above and beyond that which was required by the exclusive hiring hall agreements between the local union and the em- ployers. Nothing can be derived from Swigart's conduct, or that of the other business managers, that could lead to the conclusion that Swigart was clothed with any authority, actual or apparent, to operate an exclusive hiring hall for Local 70 or Local 154. This is made clear by the undisputed fact that any member of one local could apply for work at another local and, if that local had ex- hausted its out-of-work list, would be referred. To find an agency relationship based on the scant evidence in this case places an unduly harsh, impractical, and unnecessary burden on Respond- ent, its sister locals, and the employers. Moreover, even if I were to accept the major- ity's theory of agency, I would not find a violation in this case. Thus, the majority finds that Swigart was the agent for Locals 70 and 154. However, the exclusivity of the hiring hall is derived from the collective-bargaining agreements between Locals 70 and 154 and their respective employers. Thus, Local 513 cannot be liable for the actions of an agent for Locals 70 and 1547 who was operating an exclusive hiring hall pursuant to collective-bar- gaining agreements between those locals and their employers-collective-bargaining agreements to which Local 513 is not, and never has been, a party. It is the principal who is responsible for the acts of the agent, not a third party. For the reasons set forth above, I dissent. 6 The same situation also occurred when L ocal 70 informed Swigart of available work in its geographic area. I These locals were made as parties but not Respondents. APPENDIX NoTICE To MEMBERS POSTED BY ORDER OF THE NATIONAI LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL. NOT maintain and operate our ex- clusive job-referral system in an arbitrary or capricious manner. WE WILL. NOT arbitrarily fail or refuse to refer Richard Lawrick to jobs through our ex- clusive job-referral system. WE WILI. NOT interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act by arbitrarily refus- ing to honor requests for information, made by employees on the out-of-work register who have a reasonable need therefor, pertaining to the hiring hall system operated by this Union. WE WILI. make whole Richard Lawrick for any loss of earnings suffered as a result of our discrimination against him, with interest. WE WI.L. maintain and operate our exclu- sive job-referral system in a nonarbitrary manner. LOCAL 513, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING IN- DUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO DECISION STATEMENT OF IHE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard before me on September 30, 1981, at Berrien Center, Michigan, upon the General Counsel's complaint which alleges generally that the Respondent Union and its business agent violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amend- ed, 29 U.S.C. § 151, et seq., by the maintenance and dis- criminatory operation of an exclusive hiring hall system. Named as parties are two other labor organizations; however, there is no allegation that either violated the Act. They did appear by counsel.' Following submission of the bnefs in this matter, counsel for these Unions moved for permission to submit a reply brief "in order to correct what we would consider to be significant factual distortions and now that the General Counsel's theory has been enunciated for the first time, give the Respondents an opportunity to reply to the newly announced Continued 418 LOCAL 513, PLUMBERS The Respondent generally denies that it has engaged in any violations of the Act and specifically denies that it operated a hiring hall in a discriminatory manner. Upon the record as a whole,2 including my observa- tion of the witnesses, briefs, and arguments of counsel, I hereby issue the follosing: FINDIN(;S OF F.\C- AND) CONCI USIONS OF LAVV 1. J l RISI)ICI ION The jurisdictional facts alleged in the consolidated complaint are admitted and I find: Master Plumbers and Heating Contractors of the Twin Cities (Benton Harbor and St. Joseph, Michigan) (herein Master Contractors), Mechanical Contractors Association of Grand Rapids (herein Mechanical Contractors), and Shoreline Mechani- cal Contractors (herein Shoreline) are associations repre- senting employers engaged in the mechanical contracting industry each of which, through their individual mem- bers, during the 12 months preceding the filing of the complaint herein, performed services in excess of $100,000 and each of which has purchased and caused to be brought to jobsites directly from points outside the State of Michigan goods and materials valued in excess of $50,000. Each association is, and at all material times herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. 'THE LABOR ORGANIZATIONS INVO.VED The Respondent, Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL- CIO (herein Local 513), is a labor organization within the meaning of Section 2(5) of the Act. Local 513 is the exclusive collective-bargaining repre- sentative, within the meaning of Section 9(a) of the Act, of all plumbers and pipefitters, but excluding office cleri- cal employees, guards. and supervisors as defined in the Act, employed by members of Master Contractors. Local 513 and Master Contractors have been parties to successive collective-bargaining agreements, the most recent of which is effective from June 15, 1980, to June 14, 1982. Local 70, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein Local 70), is the exclusive collective-bargaining representative, within the meaning of Section 9(a) of the Act, of all journeymen, plumbers. plumber welders, public utility plumbers, gas fitters, lead burners, marine plumbers and steam fitters, pipefitters, pipefitter welders, refrigeration and air-conditioning fitters, and all their apprentices, but excluding office clerical employees, guards, and supervi- sors as defined in the Act, employed by members of Me- chanical Contractors and is a labor organization within theory." I do not believe the General Counsel's recitation of facts maten- ally deviated from the record. Further. the theory set forth in the Gener- al Counsel's brief is substantially that given during the hearing Accord- ingly, I deny the motion to submii a reply brief 2 G.C. Exh 7. National Industrial Maintenance Agreement, is re- ceived the meaning of Section 2(5) of the Act. In connection with its representation of employees, Local 70 and Me- chanical Contractors have been parties to successive col- lective-bargaining agreements, the most recent of which is effective from June 1, 1980, through May 31, 1982. Local 154, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein Local 154), is a labor organization within the meaning of Section 2(5) of the Act and has been the exclusive collective-bar- gaining representative, within the meaning of Section 9(a) of the Act, of all plumbers and pipefitters, but ex- cluding office clerical employees, guards, and supervisors as defined in the Act, employed by members of Shore- line. Local 154 and Shoreline have been parties to successive collective-bargaining agreements, the most recent of which is effective from July 1, 1980, through June 30. 1982. 111. THE ALL.EGED UNFAIR LABOR PRACTICES A. Background Facts As indicated, Locals 513, 154, and 70 represent plumb- ers and pipefitters in specifically defined geographical areas. While the three are affiliates of the same Interna- tional union, there is otherwise no connection between them. Each has its own officers, elected pursuant to its own bylaws, Each has a business manager who is the chief executive officer of the local and each negotiates its own collective-bargaining agreements. Within the perim- eters of the International constitution, each has its own rules concerning acceptance of members, referral of em- ployees to jobs, the wages and expenses of the business manager, and so forth. Each local, pursuant to its respective collective-bar- gaining agreement, operates an exclusive hiring hall. While the hiring hall clauses are worded differently, they are substantially identical. When a contractor needs an employee, the local union must be given the opportunity to make the referral. If after 48 hours the Local is unable to meet the contractor's needs, then the contractor may go elsewhere to secure employees. Each local keeps an out-of-work list of its members who are not currently employed. Thus when a member ceases being employed for any reason, he contacts the union office and his name and date out of work is placed on the list. Then, when a contractor calls for employees, those on the out-of-work list are referred, or at least given an opportunity to be referred, in the order of their seniority on the list. (The circumstances under which one would lose his place on the list are not material here.) To prevent unfair competition for available work, an individual can be on only one out-of-work list at a time-that of the local where he keeps his membership. Thus, a member of Local 513 cannot go into the geo- graphical area of Local 70 and have his name placed on the Local 70 out-of-work list unless he transfers his membership to that local. However, a member of Local 513 could be issued a travel card and present himself to 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Local 70 business manager for work, and, if work is available, would be referred. This case involves the alleged arbitrary and/or dis- criminatory failure of Claude Swigart, the business man- ager of Local 513, to refer one Richard Lawrick, a member of Local 513, to jobs within the geographical ju- risdictions of Locals 70 and 154 in September 1980. The evidence establishes that on May 16, 1980, Law- rick was placed on the out-of-work list of Local 513 and was not thereafter referred to any jobs by Swigart until April 1981. The evidence also shows that the area in which Local 513 has jurisdiction has been severely de- pressed over the last several years and work has been quite slow. In September Swigart happened to talk with Robert Kenney, the business manager for Local 154. Kenney told Swigart that one of the contractors in his area needed employees and asked if Swigart could furnish 8 or 10. Swigart testified that this conversation was on a Saturday afternoon at a meeting they both attended in Marquette, about 9-1/2 or 10 hours driving time from Swigart's home. On his return home Sunday, Swigart called a number of his members he knew were out of work who had expressed a willingness to travel outside the area. He told them to report to Kenney at the Local 154 hall in order to be referred to a job. He did not use his out-of-work list or have any other standard for deter- mining whom to call than his memory of who had said he would travel. Similarly in September, Otis Fahl, the business man- ager for Local 70, called Swigart to say that one of the contractors in his area needed employees and asked if Swigart could refer men to him. Again Swigart called upon his memory of those of his members who had indi- cated a willingness to work outside the geographical area. He called them to report to Fahl for referral to a job. The evidence demonstrates that at least three Local 513 members who went to work pursuant to these con- tacts had been on the Local 513 out-of-work list a lesser period than Lawrick. Further, Swigart did not contact Lawrick to ask if he were interested in being referred to a job in the jurisdiction of Local 154 or Local 70. About this time, Lawrick came to the Local 513 union hall and asked to look at the out-of-work list because, ac- cording to his testimony, he had heard rumors that people junior to him on the list had been referred to jobs. Swigart showed him the list. Two days later, Law- rick returned and again asked to see the list and asked to have a copy of it made for him. This Swigart refused. He testified that Lawrick and other members have a right to look at the list, and "if they want to take off the top six names, I don't mind as long as they are going to do it, but I don't think a Xerox copy of the list is any- thing to be floating around the country. I think it's the local union's business." B. Issues On these facts, the General Counsel contends that Swigart was the agent of Locals 70 and 154. Since each had an exclusive hiring hall and since his failure to refer Lawrick was arbitrary and capricious Local 513 thereby violated Section 8(b)(1)(A) and (2) of the Act. Further, the General Counsel contends that Swigart specifically discriminated against Lawrick because Lawrick had ex- ercised his protected right to criticize Swigart at Local 513 meetings. Finally the General Counsel contends that, when Swi- gart refused to let Lawrick copy the out-of-work list, Local 513 violated Section 8(b)(1)(A) of the Act. C. Analysis and Concluding Findings 1. The out-of-town jobs Where a union has an agreement with an employer to be the exclusive source of employees, though potentially a source of disparate treatment among employees, such is nevertheless permissible. Local 357, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667 (1961). However, to be lawful, operation of an exclusive hiring hall must have "objective criteria or standards for the referral of employees." Local 394, Laborers' Interna- tional Union of North America, AFL-CIO (Wakil Abdun- ofi), 247 NLRB 97 (1980). Where the union does not have such objective criteria or does not follow the crite- ria it has, failure to refer is violative of Section 8(b)(l)(A) and (2) of the Act. On the other hand, unions are sometimes a source of employment without having an agreement with employ- ers to be exclusive. In such a situation, the failure of the union to refer a potential employee is not a violation of Section 8(b)(2), regardless of reason, because the union did not cause the employer to discriminate in violation of Section 8(a)(3). However, if the failure to refer was to penalize one for exercising his Section 7 rights, such would be a violation of Section 8(b)(1)(A). Hoisting and Portable Engineers, Local No. 4 (The Carlson-Corporation), 189 NLRB 366 (1971). Similarly, in Local Union No. 13, an Affiliate of the United Association of Plumbers and Apprentices of the Plumbing and PipeFitting Industry of the United States and Canada (Mechanical Contractors Association of Rochester, Inc.), 212 NLRB 477 (1974), the union had a nonexclu- sive hiring hall and it had failed to refer a member for employment. While the analysis was focused on the union's breach of its duty of fair representation, the reason the union refused to refer him was because he was not a member and had worked for a nonunion con- tractor. The union was found in violation of Section 8(b)(1)(A). In Buffalo Typographical Union No. 9, affiliated with In- ternational Typographical Union, AFL-CIO (Buffalo Cou- rier Express Co.), 202 NLRB 156 (1973), the Board held that where a union does not have an exclusive agreement with an employer to refer, the failure to do so is viola- tive of Section 8(b)(1)(A) only if there is proof that the union was motivated by the individual's having engaged in activities protected by Section 7 of the Act. Thus the threshold question is whether Local 513 had an exclusive hiring agreement with employers outside its jurisdiction or whether referral of its members to con- 420 LOCAL 513, PLUMBERS tractors with whom it had no collective-bargaining agreement was nonexclusive. The General Counsel argues that when Swigart an- swered the call from fellow business managers for em- ployees Local 513 became a party to the exclusive hiring hall arrangements Locals 70 and 154 had with the con- tractors in their respective jurisdictions. I do not believe that facts of this case support such a conclusion. It appears from the record that when a business man- ager has no more members to refer, to help contractors find employees, he will contact other sources of qualified workers. The business manager does this to protect "his contractors" from potential penalties by attempting to furnish qualified workers as soon as possible. And when a business manager who has members not working is contacted, as a service to his members, he tells them of the availability of out-of-town work. But he makes no other effort to fill the need for requested employees. According to Swigart, if he is unable to send as many as he says he can, he might not be called the next time. One of the business manager's principal responsibilities is to get work for his members within the geographical area of a local, then elsewhere if possible. He therefore wants other business managers to tell him of work avail- ability. Beyond that, Swigart will sometimes call other locals and even travel in search of potential work for his members. Thus when Kenney called Swigart and asked for men, Kenney was performing a service for an employer with whom he had a contract. When Swigart undertook to furnish employees to Kenney for referral, Swigart was performing a service for his members who were not working. Swigart had no obligation to the employer nor any agreement, exclusive or otherwise, to provide em- ployees for any contractor in the geographical jurisdic- tion of Local 70. When Swigart learned of out-of-juris- diction jobs, he told those of his out-of-work members he thought would be interested. Beyond that he had nothing to do with their actual referral to the job. That was done by the local business manager. Although Swigart was in fact a source of employment for his members, and was the one whom Kenney con- tacted to fill his need (although presumptively Kenney could, and did, call on other business managers), such does not mean that Local 513 became a party to Local 70's collective-bargaining agreement. Nor do these facts establish that 513 thereby created an exclusive hiring hall for work outside its geographical area. Further, I conclude that when Swigart undertook to render a service for his members, and simultaneously do a favor for a fellow business manager, he did not thereby become the agent of Local 70 or Local 154. Nothing that Kenney nor Fahl did can be said to have clothed Swi- gart with any authority to act on behalf of Local 70 or Local 154. Nor is there evidence that Local 70 or Local 154 had any right of control over Swigart with respect to this matter. At all times Swigart was acting only on behalf of Local 513 and his membership. On these facts I cannot conclude that Local 70 or Local 154 created an agency relationship with Swigart. But in any event, as noted above, these locals have not been accused of violating the Act. In short, I conclude that as to jobs originating outside the geographical area of Local 513, with contractors with whom Local 513 had no agreement, at most, there was a nonexclusive referral service provided by Local 513 through Swigart. And in providing this service Swi- gart was not the agent of any local but Local 513. Fur- ther, Lawrick, as any other member. could have secured employment at the jobs in question by contacting direct- ly Local 70 or Local 154. Lawrick did not do so, though it appears that he in fact knew about these jobs. Thus Local 513 would violate Section 8(b)(1)(A) only if Swi- gart's failure to tell a member of work were motivated by that member's having engaged in activity protected by Section 7 of the Act. This, therefore, is fundamentally a motive case. The issue is whether when Swigart failed to notify Lawrick of the possibility of work he did so because Lawrick en- gaged in activity protected by Section 7 of the Act. I conclude he did not. Although there is some evidence from which it is pos- sible to infer an unlawful motive on Swigart's part, on balance such an inference is not warranted. Swigart has been the business manager of Local 513 for 7 years and before that was the financial secretary. He also has served as a trustee for the various fringe benefit funds, as had Lawrick until recently. Lawrick has taken an active interest in the Union over the years and according to his testimony is one of the few who attends every meeting. According to Lawrick, at every union meeting since Swigart has been the busi- ness manager, Lawrick has questioned Swigart's ex- penses. Lawrick testified that he felt Swigart's expenses were too high, "I just wanted to make sure that I wasn't paying his liquor bill." Lawrick's testimony with regard to union meetings and his allegations at those meetings of Swigart's misuse of expenses was generally vague and conclusionary. However, he did testify to a specific matter: "When they read off expenses of $200 and I asked what it was for, you don't get no answer." He later testified, concerning this $200 matter, "The figure was probably out of the air." He had no specific incident in mind. Thus Law- rick's testimony was not very reliable; however, that he had been feuding with Swigart for more than 10 years is undisputed. For a member of a union to question the expenses of an officer or otherwise to speak out at union meetings, even though stating unpopular and minority opinions, is activity protected by Section 7 of the Act. The question though is whether Swigart was moved by this activity of Lawrick to discriminate against him in September 1980 by failing to advise him of possible jobs. I conclude he was not. First, there is no evidence of any disparate treatment of Lawrick at any other time. Lawrick does not allege any other occasion when Swigart may have discriminat- ed against him. To the contrary, in 1979 Swigart had ad- vised Lawrick of a job outside Local 513's jurisdiction which Lawrick had taken, "then I was down in the hall one night and he [Swigart] needed a man for Battle Creek and he couldn't get one, so he asked me if I 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to take it. So I quit Port Sheldon that night and went to Battle Creek the next morning." Battle Creek was also outside the jurisdiction of Local 513. In testify- ing about the Battle Creek job Lawrick testified, "it was about a three week job. Beautiful time." It was a good job of which Swigart notified Lawrick. Yet even at that time, by his own admission, Lawrick was feuding with Swigart concerning Swigart's alleged excessive expenses, and Lawrick's not so subtle sugges- tion that Swigart was "drinking" on the job. In fact this had been going on for years. That Swigart told Lawrick about out-of-town jobs, and good ones at that, in the context of Lawrick's con- tinual bickering indicates that Swigart was not disposed to discriminate against him. Indeed, I conclude that over the years Swigart has learned to accommodate himself to Lawrick. Swigart testified that Lawrick was one member who would not take an out-of-town job if it meant being gone from home overnight. Lawrick admitted this, testifying that he would rather draw unemployment compensation than work at a job which required him to be gone at night. To those out-of-town jobs he did take, supra, he commuted. At least one of the jobs involved here was sufficiently distant to indicate staying over, although some who took the job apparently did commute. In any event, Swigart credibly testified that Lawrick never indi- cated a willingness to go outside the geographical area to work. Swigart's admittedly haphazard system for notify- ing members of out-of-town work was to notify those who had told him they were willing to travel. Though haphazard, the system does have a practical basis. When Swigart gets calls from fellow business managers the time in which he must find someone is invariably short- an afternoon call for a morning job. This is opposed to the hiring hall where the union has 48 hours to fill a re- quest for employees; and, presumably, at least, local members out of work will take jobs within the Local's jurisdiction. Again not everyone is willing to work out of town, even if they can commute. Such a system would not withstand scrutiny as an ex- clusive hiring hall. But it was not. As a nonexclusive system it does not per se violate the Act. And I conclude that on the evidence before me it cannot be inferred that Swigart's failure to tell Lawrick of these jobs was moti- vated by any acts of Lawrick protected by Section 7 of the Act. The objective evidence corroborates Swigart's generally credible testimony that his failure to tell Law- rick of the out-of-town jobs was in no way related to Lawrick's activity at union meetings. I conclude that Re- spondent did not violate Section 8(b)(1)(A) and (2). 2. The out-of-work list Feeling that he had been unfairly treated concerning job referrals, Lawrick asked to see the out-of-work list. Swigart let him. Two days later Lawrick returned to the union hall and asked to have a copy of the list, which Swigart refused. He testified: Q. Why didn't you want him to make a Xerox copy of it? A. Time consuming more than anything else. The list is always available for the members to look at, and if they want to take off the top six names, I don't mind as long as they are going to do it, but I don't think a Xerox copy of the list is anything to be floating around the country. I think it's the Local union's business. The members are entitled to it, fine, there is no problem there, but it doesn't belong out of the hall, floating around. In an almost identical situation the Board held that where a union operates an exclusive hiring hall, it is "automatically obligated" to honor a member's request for job-referral information. Local No. 324, International Union of Operating Engineers, AFL-CIO (Michigan Chap- ter, Associated General Contractors of America, Inc.), 226 NLRB 587 (1976). Further, there, as here, the union's "alleged interest in preserving the anonymity or privacy of its members is inconsistent with its admitted policy of allowing members to inspect the out-of-work files." The Board also rejected the union's claim that to allow the member to copy the list would be too burdensome. Respondent here offered no persuasive justification for denying Lawrick the opportunity to copy the out-of- work list, which is, presumptively, a right he enjoys. Thus Swigart's refusal on September 26, 1980, was a breach of the Respondent's duty of fair representation of Lawrick, and was violative of Section 8(b)(l)(A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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, within the mean- ing of Section 2(6) and (7) of the Act. V. REMEDY Having concluded that Respondent engaged in an unfair labor practice in violation of Section 8(b)(l)(A), I shall recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record in this matter, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, Local 513, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: s 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 find- ings, 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. 422 LOCAL 513, PLUMBERS (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 exclu- sive referral 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 nec- essary to effectuate the policies of the Act: (a) Post at its Benton Harbor, Michigan hall, copies of the attached notice marked "Appendix." 4 Copies of said In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted hb Order of the National Lahor Relations Board" shall read "Posted Pursu- notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members and registrants are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 7. in svrit- ing, within 20 days from the date of this ()rder, \% hat steps Respondent has taken to comply herevwith. It IS FURTI HER ORI)I-RII) that the complaint be., and it hereby is, dismissed insofar as it alleges violations of the Act other than found herein. ant to a Judgment (if the United Stales Ciurt of Appeals Elfircling an Order of the Nationral Lahbor Rel.liolv, Bo(ardl" 423