Iron Workers Local 505 (Snelson-Anvil)

IRON WORKERS LOCAL 505 (SNELSON-ANVIL) Ironworkers Local Union No. 505, affiliated with International Association of Bridge , Structural, Ornamental Reinforced Ironworkers, AFL-CIO (Snelson-Anvil, Inc.) and Thomas Sturdevant. Case 19-CB-5058 19 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 December 19841 Administrative Law Judge James M. Kennedy -issued the attached deci- sion . The General Counsel filed exceptions and a supporting brief, and the - Respondent filed an op- posing brief. The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that - the Respondent did not violate Section 8(b)(1)(A) of the Act when -it re- ferred employees previously laid off back to the Employer (Snelson-Anvil, Inc.) irrespective of the order of - employees' signatures on the out-of-work list. For the reasons set forth below, we disagree.2 The parties stipulated and the judge found that the Respondent operates an exclusive hiring hall and that pursuant to the applicable collective-bar- gaining agreement it provides the first source of qualified ironworkers to the Employer. Calvin Tinsley is the Union 's business manager and makes all referrals . Although the agreement does not specify the procedure by which employees are re- ferred, it does provide that referrals will be made in a nondiscriminatory manner . The parties stipu- lated also that the Respondent has posted in the hiring hall a set of referral rules which provide' in pertinent part that all applicants are 'categorized as group A, group B, or -group C employees,3 that each category is to be exhausted before going to the next, and that within each category referrals I All dates refer to 1984 unless otherwise stated 2 In view of our finding that the Respondent violated Sec 8(b)(1)(A) of the Act as independently alleged in the complaint, we find it unneces- sary to consider whether the Respondent's conduct also constituted a breach of its duty of fair representation or to pass on the judge's determi- nation that the complaint was-deficient insofar as it -failed to allege that Sec 8(b)(2) was also violated - 3 The categories reflect the applicants' levels of skill and the length of time they have worked in the jurisdictional area of the Respondent This case concerns only group B employees, i e, those registrants who, re- gardless of time worked in the geographic area, have worked at the trade as journeymen or apprentices and previously passed a journeyman exami- nation conducted by a duly constituted local union 1113 are to-be made in the order in which the appli- cants' names appear on the out-of-work list.4 - The record reveals that Charging Party Thomas Sturdevant and. his partner Amadeo Nappi were laid off by the Employer on 4 -November 1983 along with 23 other employees. Although Sturde- vant and Nappi were the first of the group B em- ployees laid off by the Employer to sign the out-of- work register at the hiring hall, they were not the first referred when the Employer began calling back employees.'5 Thus, -referral slips show that employee Bill Moody was referrred back to the Employer on 3 January, and on 16 January eight more employees were referred back. Pursuant to the Employer's 2 February request, 13 more em- ployees, including Sturdevant and .Nappi,• were re- ferred back to the Employer on 6 February.6 Tinsley stated that he made the callback referrals on the basis of the registrants' presence in the hiring hall on the date the Employer specified it needed employees.7 Tinsley explained that recall referrals have been made consistently on this basis for at least 3 years pursuant to an unwritten but well-known rule. . - The Respondent contended, and the judge found, that .the posted referral rules do not apply to call- back situations and that its unwritten recall referral rule is nondiscriminatory in both policy and appli- cation.- The General Counsel.excepted, arguing first that the posted rules apply to callback situations and that this deviation from the posted procedure is unlawful, and second that, even if the Board finds the posted rules do not cover callback refer- rals, the practice of referring applicants on the basis of their presence in the hiring hall is inherent- ly arbitrary and unlawful.8 We- find merit in these contentions. In the absence of a contractual requirement, there is no requirement.in Board law that referral rules be posted. Nor is there a requirement that re- ferral rules be incorporated in a contract. Howev- er, the Board does require that referrals, whether made pursuant. to written or unwritten rules, be based on objective criteria and applied in a nondis- 4 The rules also state that where an employer requires and calls for employees possessing special skills and abilities, the Union shall refer the first applicant on the out-of-work list who meets such criteria - 6 The Employer specifically requested that the laid-off employees be referred back to it because it had certified them as competent 6 Nappi telephoned Tinsley on an unspecified date between 16 January and 2 February to find out why he and Sturdevant had not been referred and told Tinsley they both were definitely interested in being recalled Tinsley telephoned Nappi after hearing from the Employer on 2 Febru- ary It is not clear whether Sturdevant and Nappi were present at the hall on 6 February when they were referred ' The eighth employee referred out on 16 January was not physically present in the hall, but happened-to telephone at the time Tinsley was making the referrals e The General Counsel stipulated that there is no animus involved 275 NLRB No. 159 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminatory manner. See Operating Engineers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50(1982). . As stated earlier, the Respondent asserts that the posted rules apply only to initial referrals of em- ployees to employers and do not apply to callback referrals. However, the posted rules state -that "Employers 'will hire workers by calling the Union" and provide general procedures for the`re- ferral of,-"applicants for employment." The Re= spondent in its , attempt to explain its departure from the posted rules is unable to cite any provi= Sion limiting the rules' application regarding call- backs except for a provision specifically permitting employers to call back two employees within a 6- month period following a job.9 The Respondent does not contend that its practice is based on this two-person callback rule: Because there is nothing in the language of the - rules which indicates that they were intended to apply only to ,first time re- ferrals to particular employers, our reading of the rules convinces - us-that they govern the order of all referrals including callbacks. Thus, the-'Respond- ent's posted rules clearly state that applicants Will be referred in the ' order of their place on the -refer- ral list . Since the Respondent - departed from' its own hiring hall rules by passing over Sturdevant and Nappi in favor of other applicants on 3 and 16 January 1984,1 0• we conclude that the Respondent has violated Section 8 (b)(1)(A) of the Act in these 11 - - - referrals . '-Furthermore, even assuming' that the posted rules did not apply to callback situations, the Re- spondent has, in any event, violated Section 8(b)(1)(A) because the -Respondent's reliance on- a -registrant's physical- presence in the hiring hall to justify out-of-sequence referrals is misplaced. It is well established that the use of this criterion, with- out more, falls short of the objective , nondiscrim- inatory standard which the Board has held must be the basis for hiring hall referrals . 12 Moreover, in our -view nothing in the record substantiates the judge's finding that registrants "who were present in the hall during dispatch hours have an interest at least somewhat greater in immediate work" -than those -not present in the hall. As the General Coun= sel pointed out on brief, the objectivity of presence as a referral criterion would seriously be brought into question in the event 'that the number of regis- 9 The rules also allow for the;direct hire of superintendents, general foremen, and foremen, -an exception not here relevant to For the purposes of finding a 'violation , it is irrelevant whether under the posted hiring hall procedures any other applicants would have had greater priority for referral "-See Ford, Bacon & Davis Construction, above, Operating Engineers Local 450 (AGC of Houston), 267 NLRB 775 (1983) 12 See 'Plumbers Local 619 (Bechtel Corp ), 268 NLRB 766 (1984) trants present exceeded the number of employer re- quests. For 'this reason, even assuming that the posted rules did not apply to callback situations and that presence based referrals were in fact the governing rule, we would find that referrals so made are not based on objective criteria and are therefore unlawful.13 On the basis of all of the •foregoingi we -find ,that the Respondent violated Section 8(b)(1)(A) of the Act. - CONCLUSIONS OF LAW ; 1. The Union is a labor organization within the meaning of Section 2(6) and (7) of the Act. 2. Snelson-Anvil, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By deviating from its posted referral rules and making recall referrals on the basis of registrants' physical presence in the hall, the Union has violat- ed Section 8(b)(1)(A)-of the Act. - 4. The above unfair -labor practices affect com- merce within the meaning of Section 2(6) of the Act. - REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of the Act, we shall order that, it cease and desist there- from and.that it take certain affirmative action de- signed to effectuate the policies • of the Act. To remedy the Respondent's unlawful deviation from its posted hiring hall rules, we shall require that Thomas •Sturdevant and.'Amadeo Nappi be made whole for. any loss of earnings they may have suf- fered by reason of the Respondent's unlawful con- duct. Backpay shall be .computed in the manner set forth in F. W._ Woolworth Co.,-90 NLRB 289 (1950), with interest, thereon as prescribed in Florida Steel Corp., 231 NLRB 651 _ (1977).14 ORDER The National Labor Relations -Board orders that the Respondent, Ironworkers Local Union No. 505, affiliated with International Association of Bridge, Structural, Ornamental Reinforced Iron- workers, AFL-CIO, Bellingham, Washington, its officers, agents, and representatives, shall 1. Cease and desist from - (a) Operating its hiring hall by making referrals in a manner that deviates from its posted -rules and making referrals on the basis of -registrants" physi- 13 See Polis Wallcovering Co, 262 NLRB 1336 (1982) • ' 14 See generally Isis Plumbing Co , 138 NLRB 716'(1962) IRON WORKERS LOCAL 505 (SNELSON-ANVIL) cal presence in the, hiring hall or other unobjective criteria. - (b) Failing and refusing to refer Thomas Sturde- vant and Amadeo Nappi to 'callback work as em- ployees of Snelson-Anvil', Inc., or of any other em- ployer, pursuant to the operation' of an exclusive hiring hall and referral system in a manner that de- viates,,from its; posted rules or on the basis of their physical presence in the hiring hall or any other unobjective criteria. (c) In any like or related manner restraining or coercing registrants for referral in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Operate its hiring hall by in the manner de- scribed in the posted rules and. in accordance with objective criteria. (b) Make Thomas Sturdevant and, Aniadeo Nappi whole in the manner set forth in the section' of this Decision and Order entitled "Remedy." (c) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all hiring records, -registration and re-registra- tion lists, referral: slips,,and other documents neces- sary to analyze and compute the amounts of back- pay due Sturdevant and Nappi under the terms of the Order. (d) Post at its hiring hall in Bellingham, Wash- ington, copies of the attached,. notice marked "Ap- pendix."15 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in ' conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material.., (e) Notify the Regional Director in -writing within 20 days -from the date of this Order what steps the Respondent has taken to comply. '5 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read `Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX - NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor_ Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT operate our exclusive hiring hall in a manner that deviates from the posted rules or make callback referrals on the basis of registrants' presence in the hiring hall or any-other unobjective criteria. - WE WILL NOT in any like or related manner re- strain or coerce registrants for referral or callbacks in the exercise of the rights guaranteed them by Section 7 of the Act. . WE WILL operate our hiring hall by making re- ferrals and callbacks in the manner described in the posted rules and in accordance with objective cri- teria. WE WILL make -whole Thomas Sturdevant and Amadeo Nappi for any loss of earnings suffered by them as a result of our failure to refer them for recall in the manner described in the posted hiring hall rules... • - •IRONWORKERS LOCAL UNION No. 505, AFFILIATED WITH INTERNATION- AL ASSOCIATION OF BRIDGE, STRUC- TURAL, ORNAMENTAL REINFORCED IRONWORKERS, AFL-CIO DECISION - JAMES M KENNEDY, Administrative Law Judge. This case' was tried before me in Seattle, Washington, on August 30, 1984,1 pursuant to a complaint issued by the Regional Director for Region 19 on March 30. It is based upon a charge filed on February 1 by Thomas Sturdevant, an individual (Sturdevant) and alleges - that Ironworkers Local Union No 505, affiliated with Inter- national Association -of Bridge, Structural, Ornamental Reinforced Ironworkers, AFL-CIO (Respondent) has engaged in a violation of Section 8(b)(l)(A) of the Na- tional Labor Relations Act -(the Act). - • Issue The principal issue is whether or not Respondent breached its duty to fairly represent two employees, Sturdevant and Amadeo Nappi, by failing to refer them for reemployment with Snelson-Anvil, Inc. at its facility in Anacortes, Washington, on January 3 and 16 ' Unless otherwise indicated all dates herein are 1984 1116 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD All parties were given full opportunity to participate and to introduce relevant evidence. After the commence- ment of the hearing, the General Counsel and'Respond- ent entered into a stipulation of facts. No testimony was taken and there is no factual dispute requiring resolution; neither have I been barred from interpreting the stipula- tion in light of either logic or experience. Based on the entire record, including the pleadings and the stipulation, I make the following FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS Snelson-Anvil, Inc is a Delaware corporation with an office and place of business in Anacoftes, Washington, where it is engaged in the business' of modular fabrica- tion and construction for the petrochemical industry. During, the past 12 months Snelson-Anvil's combined direct-and indirect outflow of goods and services exceed- ed $50,000 I find, therefore, that Snelson-Anvil has been at all material times an employer engaged in commerce within - the meaning of Section 2(2), (6), and (7) of the Act - II THE LABOR ORGANIZATION INVOLVED - Respondent admits that it is, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act III..THE ALLEGED UNFAIR LABOR PRACTICES As noted above the record consists principally of a stipulation. It incorporates the affidavit of Union Busi- ness Manager Calvin L. Tinsley,. the hiring hall rules posted in the Union's dispatch office, the "boomer" (traveler) out-of-work list, some monthly report-in signa- tures by which employees demonstrate their continuing interest in keeping their out-of-work signatures active, several referral slips, and the collective-bargaining con- tract In addition, the parties have orally supplemented Tinsley's affidavit Finally, the parties have stipulated that the General Counsel has no evidence to support an allegation of animus of any sort against •Sturdevant 'or Nappi The Facts According to the stipulation, the Employer, Snelson- Anvil, was a party to the collective-bargaining agree- ment in evidence That contract is between two chapters of the Associated' General Contractors of America and three Ironworker Locals, including Respondent. Accord- Ing to schedule,B.5 of the contract, the covered einploy- ers have recognized that "the Union affords the first source of qualified ironworkers in the classifications cov- ered" by the agreement. Aside from the requirement that an employer first seek employees-through': the Union, the, contract, itself contains no rules about how Respondent is to select employees for referral. The referral rules themselves are posted in the hiring hall On its face that document applies to an initial hiring by a specific employer It does, however, contain a pro- vision, section 3 1 dealing with the right of an employer to "call back" employees. The "call-back" rules are re- strictive, stating that an employer can only call back "two men within a six (6) -,month period following 'a job." Except for a requirement that a callback be con- firmed in writing, there is no•other reference to callback situations. The remainder of the rules deal with initial hiring situations and sets forth three priority lists. Group A' is to be exhausted before 'referring employees from group B, and group B is to-be•exhausted before=goirig.toi group C. There is no allegation that the-groupings them- selves are unlawful As a matter of practice, the group A employees are individuals' who have met certain experi- ence. requirements and who, have lived in the geographi- cal',lurisdiction of Respondent for 3 years. Group B re- feii•al applicants are similarly experienced but who have lived in the geographical area for less than 3 years. The group C employees are not considered here. All the employees involved in this case are in group B On November 4, 1983, 25 group B-employees were laid off by Snelson-Anvil at its Anacortes facility." Almost im- mediately thereafter 23 of them signed the group B out- of-work list. The first two of this group were Charging Party Sturdevant and his partner Nappi. In December 1983 and January and February 1984, pursuant to the rules, they re-registered So did most of the other. 23 who had been laid off'by Snelson-Anvil. The reregistra- tion had the effect of keeping their names active for re- ferral. Had they not re-registered their names "would have been stricken for lack of interest. In January, according to Business Manager Tinsley, Ted Wald of Snelson-Anvil advised the Union that his Company was going to recall some welders. Wald asked Tinsley (after the Union had exhausted all the A' list welders) to send the same travelers who had previously worked for Snelson-Anvil as they had been "certified" (as competent) by that company. Tinsley agreed. Although Tinsley's affidavit does not reflect it, Snel- son-Anvil must have actually made the request for weld- ers sometime in early January, for one,of the B list call- backs, Bill Moody, was issued a referral slip to Snelson- Anvil on January 3. Tinsley explained that Moody was in the hall at the time the call came in-and that was, the reason he was referred. - An additional call came on January 16. At that time Tinsley issued referral slips to seven of the B list welders in the category requested by ' Snelson-Anvil. Like Moody, each: of these individuals was also present in the hall. An eighth, individual, who also qualified for recall, telephoned during the dispatch hours that day inquiring about work.- Tinsley issued him a referral slip to Snelson- Anvil, too. All nine of these. individuals . were below Sturdevant and Nappi on the out-of-work- list. ., , . The stipulation, incorporating Tinsley's -affidavit as supplemented, explains: "Although the [posted] rules do not specify that a person receives priority for referral if they are in the hall, that is the way the hall operates in a `call back' situation . . .,and that this is the way, it has been since I have-been business manager and dispatcher, a period of 3 years." Sometime during the next 2 weeks Nappi telephoned Tinsley at a time -when Tinsley- was absent. Tinsley attempted to return the call on three oc- IRON WORKERS LOCAL 505 (SNELSON-ANVIL) 1117 casions but had some difficulty. Finally he reached Nappi,.who said that he was having telephone problems. Tinsley. explained to Nappi why the other nine-had been re-referred to Snelson-Anvil. He did not talk to Sturde- vant during this time, but accepted Nappi's assertion that both he and Sturdevant wanted to go back- to Snelson- Anvil. About. February 2,' Snelson-Anvil called for 13 more people.; Tinsleyl telephoned -Nappi who said he would advise Sturdevant. They were both referred to Snelson- Anvil on February 6. Tinsley says he was then able to refer all of the remaining people who had been laid off by Snelson-Anvil in November. The parties have stipulated that the General Counsel has no evidence to support an' allegation of animus of any sort by the Union against either Sturdevant or Nappi. Thus, there are no facts to support a claim that Respondent's failure to refer those two during January was because of any Section 7 activity or because Tinsley or some other union official held a grudge against either of them. ' However, Tinsley agrees he "had not told the people who were laid off and on the out-of-work list that they would get priority referral if they were [present] in the hall when the [call-back] came in." On the other hand, it does not appear that the practice was kept secret either,; having been in effect for 3 years. One may presume that the nine who were in the hall on January' 3 and 16 were aware of it. Why else would they be present? IV. ANALYSIS A Preliminary Observations With respect to the factual explication recited above, it is well to note that the individuals involved here are all group B referral registrants. Respondent, as is common in the construction industry, refers to these individuals as "boomers," ' meaning they are most likely to be tempo- rary residents of the area, in pursuit of "boom" construc- tionsituations. Thus, they are far more transient than the= group A registrants who have resided in the geographi-' cal area•for a longer period and who are considered per- manent residents. It appears self-evident that Tinsley was aware of this and could reasonably conclude that boomers who are present in the hall during dispatch hours have an interest at -least somewhat greater in im- mediate work than 'a boomer-who is not in the hall. There is-also the probability' that a "boomer" not in-the hall -may have traveled; elsewhere to seek work. Thus, it would -not be unreasonable bf Tinsley to conclude that" the individuals who were present in the' hall wanted to. work 'most. 'And, although' it -cannot be -presumed that boomers not present in the hall did not want' to work, Tinsley's 'assumption, that those' present. had a higher degree of interest in' working at that; moment than .those who were not is perfectly , rational • . : - Second, it appears clear that the posted hiring hall rules' are an , extracontractual document. Thus, if those rules are breached, any cause of action a grievant might have would- not be grounded in the collective-bargaining contract but on: some other theory.- These might run, the gamut ' of various laws -against discrimination (including the Act), laws regulating employment agencies, internal union-procedures, etc 2 - Third, I note that Tinsley had no difficulty in ignoring the callback restriction, i e, two to an employer with a written confirmation, where it was to the benefit of all The agreement Tinsley made with Snelson-Anvil to permit it to recall previously employed individuals is per- fectly rational and makes good sense for it was no doubt necessary to the effective performance of the Union's function of representing its constituency.3 - Finally, since the posted hiring hall rules clearly deal with initial employment. situations, rather than -recalls,_ they do not literally need to be followed in recall situa- tions. It may be that following the dispatch order set forth in rules during callback situations might have avoided the problems which have occurred here, but the written rules do not cover a situation such -as this. In fact, however, Respondent has a long-established prac- tice which does. B. The Applicable Law It should be observed at the outset that the complaint alleges Respondent violated Section 8(b)(1)(A) only, not Section 8(b)(2).4 Moreover, the complaint is clearly couched in terms alleging that Respondent breached the duty of fair representation and the discrimination "prong" of Section 8(b)(1)(A) has not been invoked.. Paragraph 8 of the complaint asserts only that Respond- ent "has failed to fairly represent' Thomas Sturdevant and 'Amadeo Nappi for reasons which are unfair, arbi- trary, invidious and - a • breach of the fiduciary duty" al= legedly owed to the employees 5 Without 'belaboring the z'I observe that there is language in the document appearing to suggest that there has been an agreement between an employer and the Union to require the Union to conform-to the-rules, but the collective-bargaining contract does not incorporate the rules nor is there any separate signature line demonstrating their acceptance, by the Associated General Contrac- tors or any specific employer I speculate that the language may have ap- peared in some prior 'collective-bargaining agreement and 'although no longer contractual is nonetheless convenient to post since it reflects, for the most part, the actual practice - 3 Operating Engineers Local 18 (William F Murphy), 204 NLRB 681 (1973), remanded 496 F 2d 1308 (6th Cir 1974), reaffirmed 220 NLRB 147 (1975). Ironworkers Local 433 (AGC of California). 228 NLRB 1420, 1438 (1977), enfd, 600 F 2d 770 (9th Cir 1979) Cf Painters Local' 1555 (Stephen Strickland), 241 NLRB 741. 74.2 (1979) 4-Sec 8(b) states - It-shall be an unfair labor practice for a labor organization or its agents-. • (1) to restrain or coerce (A) employees in the exercise of the rightsy guaranteed in section 7 "- (2) to cause or attempt to cause an em- ployer to discriminate against an 'employee in violation' of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied. or terminated on some-ground other than his failure to tender the periodic dues and. the initiation fees uniformly required as a condition of acquiring or retaining membership ' - 5 The Board has held that a union does not stand in a' fiduciary rela- tionship to the employees it represents Rather, it has said , the relation- ship is analogous to that between legislator and constitutent Service Em- ployees Local 579 (Beverly Manor Convalescent Center), 229 NLRB 692 In 2 (1977) Accordingly, the complaint in this respect is deficient as a matter of law The fiduciary capacity theory will not be further-pursued here , . - 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD history of the doctrine of the duty of fair representation; suffice it to say that it is a judicial creation, first getting Supreme Court recognition in Steele v. Louisville & Nash- ville R. Co., 323 U.S. 192 (1944). In 1962 the Board in Miranda Fuel Co., 140 NLRB 181 (1963), enf denied 326 F.2d 172 (2d Cir. 1963), incorporated' the doctrine into the Act. The Board's acceptance of the doctrine was rec- ognized by the Court in Vaca v. Sipes, 386- U.S. 17.1 (1967) Indeed it is the Yaca case which sets forth the current standards by which a union's conduct is to .be measured in determining whether it breaches the duty. The Court, there stated: "A breach of the statutory duty-of fair rep- resentation occurs only- when a union's conduct towards a member of the collective-bargaining unit is arbitrary,, discriminatory, or in bad faith. See Humphrey v. Moore, [375 U.S. 335 (1964)1; Ford Motor Co. v. Huffman [345 U.S. 330 (1953)1." Yaca v. Sipes, supra at 190. " Concededly, neither Vaca nor any of the other fair' representation cases decided by the Supreme Court are hiring hall cases. Vaca itself involved a union's refusal to process a grievance to arbitration Nonetheless, the Court stated in Vaca that the plaintiff has the duty of proving arbitrary or bad-faith conduct on the part of the union in-processing his grievance. Id. at 193. Further- more, the Court- observed in the case that "there was no evidence that.any union officer was personally hostile to [the plaintiff] or that the union acted at any- time other than in -good faith." Id. at 194 Therefore, the Court re- versed the jury verdict in favor of the plaintiff, finding that the state court had not applied the proper Federal standards to the case, i.e., had not applied the "arbitrary, discriminatory, or . . . bad faith" test. The Court has used even stronger language to describe the test. In Motor Coach Employees v. Lockridge, 403 U.S. 274, 301 (1971), the Court said: "The duty of fair repre- sentation was judicially evolved . to enforce fully the principle that no individual union member may suffer, in- vidious, hostile treatment [by the Union] . . and carries with it the need [of the plaintiff] to adduce substantial evidence of discrimination that is intentional, severe, and" unrelated to, legitimate union objectives." The quoted language, as can be seen, discusses both the test and the burden of proof required. The question of proof must be "substantial" because of the discretion available to the union regarding the manner in which it represents em- ployees. As the Court has said: "A wide range of reason- ableness must be allowed a statutory bargaining repre- sentative in serving the unit it represents, subject always to complete good faith and honesty of purpose-in the ex- ercise of its discretion Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Humphrey Y. Moore, 375 U.S. 335, 349 (1964). The rule of reasonableness and good faith has been applied by the Board to hiring hall contexts: New York Lithographers No. 1-P (Publishers Assn. of New York), 258 NLRB 1043 (1981); Plumbers Local 40 `(Me- chanical Contractors Assn. of Washington), 242 NLRB 1157, 1163 (1979) The Board's test for the breach of the duty is similar, but the words are slightly different In Miranda Fuel,' supra, the Board said it would find a breach when the conduct was "unfair, irrelevant or invidious.' Another word commonly seen in the cases is "capricious." It should also be observed that-the Board, in applying the doctrine of fair representation to hiring hall situa- tions, has generally interwined it with a "discrimination theory, usually Section 8(b)(2), but sometimes the dis- crimination prong of Section 8(b)(1)(A). One of the early examples of such a combination of theories is Boilermak- ers Local 169 (Riley Stoker Corp.), 209 NLRB 140 at 150 (1974): More recent is a case cited by the General Coun- sel, Operating Engineers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50 (1982), enfd. 701 F.2d 504 (5th Cir. 1983). Both cases can be characterized as easily proving discrimination against the charging party be- cause of their union membership, clearly barred by Sec- tion 8(b)(2). In addition , there are cases, involving both Section 8(b)(1)(A) and which assert that a union's failure to dispatch "inherently encourages union membership and therefore violates Section 8(b)(1)(A) and (2) without regard to the presence of uhlawful motivation." Operat- ing Engineers Local 18 (William_F. Murphy), supra; La- borers Local 135 (Bechtel Power Corp.), 271 NLRB 777, 781 (1984). Sometimes, therefore, the Board will imply a discriminatory motive where nothing else is' apparent. See Electrical Workers IBEW Local 592 (United Engineers & Construction Co.), 223 NLRB 899, 901 (1976); Asbestos Workers Local 22 (Rosendahl, Inc.), 212 NLRB 913 (1974). . Although the facts tend to vary in these cases, a common thread throughout all of them is that where there is a discriminatory or vindictive motive, proven or implied, the Board will also find a breach of the duty of .fair representation .. Such findings seem both elementary and self-evident. Obviously if a labor union violates a law or acts vindictively toward an individual, it has not treated him fairly and it literally meets the standards set forth in Vaca and Miranda Fuel, i.e., the union's conduct in violating a law or abusing an individual must necessar- ily be either arbitrary, discriminatory, unfair, invidious, in bad faith, or some combination of these. Yet it is well to keep in mind that the two-theories are .separate and distinct . Indeed , the Board has adopted this administrative law judge's language specifying the differ- ences. Dalziel Supply. Co., 235 NLRB 56, 62-63 (1978). There it was said. "[T]he elements of the violation are entirely different. A discrimination case requires proof of intent to penalize an individual for engaging in a protect- ed right. . . . However, fair representation cases are proven not by the [Union's] motive, but by whether it met a duty of fair play as imposed upon it by law." Fur- thermore, it is clear that the duty is not breached where the union is forgetful, commits an inadvertent error, or is negligent . Operating Engineers Local 18 (Ohio Pipeline Construction Co.), 144 NLRB 1365 (1963); General Truck- drivers Local 692 (Great Western : Unifreight System), 209 NLRB 446 (1974). Cf. New York Lithographers No. 1-P, supra at 1048. Thus, it is not necessarily a-breach of the duty of fair representation for a union to act to the detri- ment of an individual whom it represents . The_ Board has held: "[I]t is not every act of disparate treatment or neg- ligent conduct which is proscribed by Section 8(b)(1)(A), I IRON WORKERS LOCAL 505 (SNELSON-ANVIL) but only those which have been motivated by hostile, in- vidious, irrelevant, or unfair considerations." Steelworkers Local 2869 (Kaiser Steel Corp.), 239 NLRB 982 (1978). Indeed, these decisions are clearly consistent with Vaca. Forgetfulness, error, and negligence cannot be classified as arbitrary, discriminatory, or in bad faith The question which must be answered is whether or not in a hiring hall context the duty of fair representation test is any different than it would be in other contexts. I think' ii 'is -fair to say that in recent years the Board has, in the Section 8(b)(2) and the (1)(A) discrimination cases, modified the mode of proof. The Board has resorted to a presumption to assist it in deciding hiring hall cases. It now presumes that whenever a union operating an exclu- sive hiring hall fails to refer a properly registered indi- vidual a prima facie case has been established under Sec- tion 8(b)(1)(A) and/or (2). Under this procedure the Board presumes • that the denial of- a job opportunity in- herently encourages union membership. Operating Engi- neers Local 18 (William F. Murphy), supra; Asbestos Workers Local 22 (Rosendahl, Inc.), supra; Operating En- gineers Local 406 (Ford, Bacon & Davis Construction Corp.), supra, Operating Engineers Local 450 (Houston Chapter AGC), 267 NLRB 775, 810 (1984). The presump- tion is not a strong' one but does shift the burden of proof, requiring the Union to explain its conduct. Sheet Metal Workers Local 20 (Robert Rainey Jr.), 253 NLRB 166, 169 (1980). That analysis is well suited to a discrimi- nationcase where motive or its substitute, the foreseea- ble or natural consequence, is an element of the viola- tion. Radio Officers Union v. NLRB, 347 U.S. 17 (1954); NLRB v. 'Transportation Management Corp.; 462 U.S. 393 (1983). Cf. NLRB Y. Schroeder, 726 F.2d 967, 971 (3d Cir. 1984). Yet, motive analysis and the presumptions available to ^ assist a factfinder in determining motive are not properly a part of the fair representation doctrine. As noted previously in Dalziel, supra, the doctrine consists of an affirmative duty of fair play imposed upon the union by law. Moreover, the Supreme Court in Vaca and the Board in Miranda Fuel clearly set forth the means of determining the nature of that duty: union conduct which is arbitrary, unfair, invidious, or in bad faith. To my knowledge, there has never been a case before the Board which has presented the duty of fair represen- tation in a hiring hall context completely free of discrimi- natory motive or'some sort of knowledge regarding the actual impact-scienter, if you will. In this case the pleadings are narrowly drawn, -specifically omitting the expected 8(b)(2) allegation or any claim that the Union engaged in deliberate conduct. specifically aimed at the two'discriminatees cognizable under Section 8(b)(1)(A). Moreover, the parties have stipulated that there is no evidence to.'support such a contention. Consequently, I am not at liberty to apply discrimination (intent) logic in resolving the issues presented here. First, the pleadings specifically 'decline to make that allegation and, second, it is an inappropriate analysis under the fair representa- tion, doctrine. Therefore,. -I do not believe myself to be bound by any hiring hall case in which there appears an element of scienter. Such analysis has been determined here, both.by the parties and by the applicable law, to be inappropriate. Furthermore, regarding those cases which 1119 contain findings involving both discrimination and the duty of fair representation, as it may be inferred that the duty of fair representation is encompassed under, the aegis of discrimination analysis, the fair representation language found therein (e g, Ford, Davis & Bacon, supra) does not control this case. Accordingly, I find that the appropriate rule of law in measuring whether or not Re- spondent here breached the duty of fair representation in failing to refer for re-employment Sturdevant and Nappi to Snelson-Anvil is the test of Vaca v. Sipes, supra, and/or Miranda Fuel, supra. Thus I must ask whether Respondent has engaged in conduct which was arbitrary, capricious, or in bad faith. I conclude that it has not. This was a callback situation; therefore, the posted hiring hall rules did not specifically apply. Had they been, neither Sturdevant nor Nappi would have been eli- gible for referral, as.only two group A employees would have qualified. Second, the Union did not breach any collective-bargaining contract, for . the rules are not a part of the applicable agreement . Thus those cases find- ing a breach of the duty because of a clear contract vio- lation do not apply. See, for example, Pipe Fitters Local 392 (Kaiser Engineers), 252 NLRB, 417, 422 (1980), in turn citing Miranda Fuel, supra; also, Plumbers Local 619 (Bechtel Power Corp.), 268 NLRB 766 at 769 (1984). Third, although Union Business Manager Tinsley con- cedes that he did not specifically tell Sturdevant and Nappi of their need to be present in the hall to be eligi- ble for callbacks, the practice is no secret. Many group B applicants were aware of the practice. Thus it appears that at some point the Union had informed group B reg- istrants of the,practice, even though the stipulation says that it had not done so for this particular job. Although Sturdevant and Nappi were not told of it, neither is there evidence that they were denied the information In view of the stipulation that Respondent has no animus toward them, it seems likely that their ignorance of the practice was due either to Tinsley's forgetfulness or negligence. Yet, that is not condemnable under the fair representa- tion doctrine Ohio Pipeline Construction Co. and Great Western Unifreight Systems, both supra. In fact, travelers such as Sturdevant and Nappi, unfa- miliar with the operations of a host hiring hall, are prob- ably under some obligation to act reasonably themselves. An administrative law judge, with Board approval, has said- "Some caution must be exercised to assure that Board remedies are not invoked so as to disturb, through application of mechanistic principles, the relative rights of working men to a job where such rights are estab- lished by nondiscriminatory, uniformly applicable stand- ards, which though unpublished, are known, or at least should have been known to the individual who invokes Board processes to perfect a claim of preference against others competing for work." Electrical Workers IBEW Local 592 (United Engineers), 223 NLRB 899, 901, 902 (1976). There is nothing in the record demonstrating whether they took any, steps to inform themselves of either the posted ruless or the callback practices. Could 6 Nappi did not ask for a copy of the posted rules until his conversa- tion with Tinsley in late January 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they have avoided the problem by ordinary prudence on their part9 It would seem so. In addition, the Board has held that a union must uti- lize objective criteria in operating its hiring hall. Team- sters Local 174 (Totem Beverages), 226 NLRB 690, 699- 700 (1976). It seems to me that Tinsley did so here. It was not unreasonable of Tinsley to look to those group B individuals present in the hall for callback referrals. Their mere presence must have been sufficient to signal him that they were the most interested in seeking imme- diate work. Knowing that the group B individuals were travelers and more mobile than anyone else, it was logi- cal for him to assume that those group B persons not present in the hall were not as interested as those who were. In fact the entire practice is based on that knowl- edge. Given that, its implementation, at least 3 years ear- lier, appears to be well within the area of good-faith dis- cretion enjoyed by union officials as recognized in Ford Motor Co. v. Huffman, supra; New York Lithographers, supra. When one individual showed interest in work by telephoning Tinsley, he was instantly dispatched. When Nappi telephoned he, too, was quickly dispatched, as was his friend Sturdevant and that based only upon Nappi's word. I cannot conclude here that Tinsley was acting arbitrarily or capriciously. Certainly he was not acting in bad faith.7 As held by the. Supreme Court in Vaca and Motor Coach Employees, both supra, the burden is on the Gen- 7 Upon these findings, even if one were to apply discrimination analy- sis, and require Respondent to rebut the presumption of a puma facie case, these facts would sufficiently rebut it Moreover, it would be most difficult to say that Tinsley's conduct inherently encouraged union mem- bership because there were no membership considerations involved, all were group B travelers eral Counsel to demonstrate by substantial evidence that Respondent acted in a manner inconsistent with its duty to represent all unit members fairly. The stipulation, as reasonably interpreted,- does not do so. In fact, the con- trary can be discerned. Respondent applied its longstand- ing, reasonably well-published practice, to the two com- plainants. It did so in an evenhanded manner and did not single them out in any way..Thus there is no suggestion that Respondent had any ' specific knowledge that its practice would deprive Sturdevant, Nappi, or any group B employee of a recall to Snelson-Anvil. From Respond- ent's perspective its practice simply permitted those trav- elers who had demonstrated by their presence that they wanted the work most to have the work. As in Vaca there is no hostility to these two unit members, nor is there any bad faith. Moreover, as iri Huffman, its pur- pose was certainly honest. Accordingly, I shall recom- mend dismissal of the complaint. Cf. New York Lithogra- phers No. 1-P, supra at 1046-49. CONCLUSIONS OF LAW 1. Snelson-Anvil, Inc. is an employer engaged in com- merce within the meaning of Section 2(2), (6)1__ and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent, during January 1984, did not breach its duty to fairly represent bargaining unit employees Thomas Sturdevant and Amadeo Nappi when it did not refer them for reemployment by Snelson-Anvil because they were not physically present in the hiring hall. [Recommended Order for dismissal omitted from pub- lication.] ..