Teamsters Local 282 (General Contractors)

TEAMSTERS' LOCAL 282 (GENERAL CONTRACTORS) 733 Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (The General ,Contractors Association of New York, Inc.) and Ted Katsaros. Case 29- CB-4648 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 31 December 1984 Administrative Law Judge Thomas T. Trunkes issued the attached deci- sion. The Respondent and the Employer filed ex- ceptions and supporting briefs, the General Counsel filed cross-exceptions and a supporting brief, and the Charging Party filed a brief in opposition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions except as modified herein, and to adopt the recommended Order as modified. The Respondent has been a party to collective- bargaining agreements with the General Contrac-, tors Association (GCA) and the Building Contrac- tors Association (BCA) applicable in the heavy construction and highrise construction industries, respectively.I Each agreement provides for ap- pointment by the Union of Working Teamster Foremen (WTFs) on jobs costing more than a specified amount. Their duties, as set forth in the contract are, inter alia, to receive and distribute materials on the jobsite; dispatch and coordinate trucks on the site; handle all grievances involving the collective-bargaining agreements on the site; and coordinate all safety efforts relating to Team- sters on the site. At the hearing, the parties stipu- lated that the terms "onsite steward" or "job stew- ard" are synonymous with WTF. Ted Katsaros and Walter Kudla were longtime members of the Respondent and for a number of years spearheaded a dissident movement within the Local. Their dissident activities included running unsuccessfully against the incumbent union leader- ship in elections. On 2 April 1981 Katsaros wrote to Respondent Secretary-Treasurer Robert Sasso requesting referrals to jobs in the highrise industry and information regarding the number of applicants who had requested such employment from the Re- spondent, and- who the Respondent would consider for referral to highrise employment before consid- ering Katsaros. Sasso's reply indicated only that Katsaros had been "added to that list" but did not contain any of the requested information.2 Katsaros wrote a second letter reiterating his earlier request, adding that he would also like to know the names, addresses, and phone numbers of all applicants who had been referred during the previous 6 months and all those on the "list" mentioned in Sasso's letter. Sasso's response this time stated that highrise hiring was not done through a union hiring list and the fact "that some officers and Business Agents of this local may, on their own' develop a list at the request of members, like yourself,'in no way estab- lishes any obligation upon signatory employers when hiring unit personnel." A third letter from Katsaros requested Sasso's assistance in securing employment with a specific employer, to which Sasso replied that he had contacted that employer's shop steward. Although none of these letters men- tions the WTF position, the parties stipulated that "the only source of employment sought by Mr. Kudla and Mr. Katsaros ... is the classification of employment known as Working Teamster Foreman under Section 25 of the high-rise contract of 1978 through 1982." As of the date of the hearing, nei- ther member had been referred to a position as a WTF. Assuming arguendo that WTFs are equivalent to general shop stewards, the judge found that WTFs and stewards are appointed through an "exclusive hiring hall," and that prior experience in the high- rise industry was not a prerequisite for appointment to these positions. He further found no evidence that the Respondent's assignment of WTFs reflect- ed concern for placing experienced stewards on "potentially troublesome jobsites," or that Katsaros and Kudla were "being punished by Respondent Union for any dereliction of duty, inexperience, or incompetence on their part." Relying on these find- ings, he concluded that the sole reason Katsaros and Kudla were denied the opportunity to serve as WTFs was because of their activities against the administration of the Union, which activities he further found "in no manner would have any effect on their performance as WTFs." The judge rejected the Respondent's argument that Shenango, Inc., 1237 NLRB' 1355 (1978), sup- ported its position that it was legitimately, entitled to refuse to appoint Katsaros and Kudla as WTFs. Contrary to the judge, the agreements in effect at the time of the hearing were effective from 1982 to 1984 The immediately preceding 2 Kudla sent Sasso a letter in May 1981 identical in content to Kat- agreements covered 1978 to 1982, and the succeeding agreements cover saros' 2 April letter, and received in reply a letter identical to that fast 1984 to 1987 sent by Sasso to Katsaros 280 NLRB No. 86 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this regard, the judge concluded that Shenango held that a union could lawfully remove a member from the position of plant safety commitee chair- man for loyalty reasons because that position in- volved "policymaking" responsibilities. The judge thus found that, because the duties of a WTF are not of a policymaking nature, the Respondent had no authority to refuse to refer Katsaros or Kudla to the position. Finally, the judge found that the Board's decision in Teamsters Local 282 (General Contractors), 262 NLRB 528 (1982), in which the Board found WTFs to be agents of the respondent for purposes of Section 8(b)(7)(C), did not conflict with his fording that WTFs are employees and as such cannot be discriminated against for "invidious and illegitimate" reasons. The Respondent excepts to the judge's finding that it violated Section 8(b)(1)(A) by failing to refer Katsaros and Kudla. We agree with the Re- spondent. As a preliminary matter, we agree with the Re- spondent that WTFs are the equivalent of shop stewards. The contract provides that they handle all grievances at the jobsite pertaining to Teamsters employed there and that they are responsible for safety matters and administration of the collective- bargaining agreement at the site. In addition, the record indicates that, while shop stewards visit job- sites where members from that employer's "bam" are working, shop stewards do not visit such sites if there is a WTF assigned there. Clearly then, their functions are in large measure interchange- able.3 In this context, we note that as a general rule unions, as well as employers, are vested with the right to select their own representatives for collec- tive bargaining. KDEN Broadcasting Co., 225 NLRB 25 (1976); Fitzsimons Mfg. Co., 251 NLRB 375 (1980). However, collective bargaining in- cludes processing grievances and administration of collective-bargaining agreements, functions per- formed by the WTFs here. See generally NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Gulton Electra-Voice, 266 NLRB 406 (1983). In addition, it is well established that unions may appoint specific individuals as stewards based on the individual's experience and the union's assessment of the needs of the jobsite. See Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974); Pile Drivers Local 2375 (Offshore Welding), 267 NLRB 320 (1983). Moreover, the Board in Shenango, above, held that it was not a violation of Section 8(b)(1)(A) for a union to remove a member from an appointed position be- cause of that member's support for opposition can- s Additionally, as found by the Board in Teamsters Local 282, above, WTFs are agents of the Union didates in a union election. The Board there stated that the union has a valid interest in placing in cer- tain offices employees it determines can best serve the union and its membership and that "[t]he union is legitmately entitled to hostility or displeasure toward dissidence in such positions where team- work, loyalty, and cooperation are necessary to enable the union to administer the contract and carry out its side of the relationship with the em- ployer." 237 NLRB at 1355. The Board in Shen- ango did not distinguish between a union's removal of members from policymaking as opposed to non- policymaking positions in establishing that "loyal- ty" may be a legitimate selection criteria. We find in light of the above that, in these cir- cumstances, the Respondent could legitimately consider loyalty a criterion in selecting candidates for WTF positions. Accordingly, Sasso's conces- sion at the hearing that a steward must be a "team player" and "loyal" is not, as such, evidence of un- lawful intent. Nor is Sasso's assertion that, in his estimation, neither Katsaros nor Kudla met the per- sonal qualifications of loyalty established by the Respondent for WTFs. There is, moreover, no pro- bative evidence that the Respondent applied this loyalty standard in an arbitrary or invidious fash- ion.4 Accordingly, we find that in these circum- stances the General Counsel has not established a prima facie case that the Respondent's failure to refer Katsaros and Kudla violated the Act, and we shall dismiss this portion of the complaint. We agree with the judge, however, that the Re- spondent's refusal to provide Katsaros and Kudla with the information they requested in their letters to the Respondent violated Section 8(b)(1)(A). The judge found that although there was no evidence that a referral list for WTFs as such was main- tained by the Respondent, WTFs, as employees, have the right of access to job-referral lists, and the Respondent's refusal to provide the information therefore breached its duty of fair representation. The Respondent excepts to this conclusion, main- taining that it has neither the obligation nor the ability to provide members with a nonexistent re- ferral list for WTF positions. The information requested by Katsaros consisted of "the number of applicants who have requested 4 The General Counsel excepts to the j udge's rejection at the hearing of evidence regarding the names , hiring dates, and locations of individ- uals appointed to positions from 1980 to the dates of the hearing We find it unnecessary to pass on the propriety of the judge's ruling, however, because the General Counsel's offer of proof does not address the "loyal- ty" or other qualifications of the individuals appointed and, thus, would not have aided the General Counsel's case Similarly, we note that Siisso's concession that relatives of high union officials have been ap- pointed to WTF positions does not, by itself, establish arbitrary applica- tion of selection criteria TEAMSTERS LOCAL 282 (GENERAL CONTRACTORS) [highrise] employment from Local 282 prior to this date, and who Local 282 will consider for referral to High-Rise employment before they consider my request"; what his position on the list was ; and the names, addresses, and phone numbers of "all those job applicants who have been referred to High- Rise work during the past six months (please in- clude date of referral)" and "all those on the refer- ral list referred to you [sic ] in your letter of April 7, 1981 ." We agree with the judge that a union has an obligation to deal fairly with an employee's re- quest for job-referral information and that an em- ployee is entitled to access to job-referral lists to determine his relative position in order to protect his referral rights. Operating Engineers Local 324 (AGC of Michigan), 226 NLRB 587 (1976). Al- though there is no evidence of a formal referral list for WTFs, the Respondent has not demonstrated that it has none of the information requested in any form or that it would be unduly burdensome for it to compile at least some of it . Moreover, the Re- spondent admitted that some officers and business agents keep hiring lists of members not binding on employers, which lists may fall within the purview of the information request. Accordingly, we find that the Respondent has not established sufficient reason for its refusal to provide the information sought and accordingly this refusal violated Sec- tion 8(b)(l)(A). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Brooklyn, New York, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a) and reletter the subse- quent paragraphs. 2. Delete paragraphs 2(a) and (b) and reletter the subsequent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To 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. 735 WE WILL NOT restrain or coerce employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act by arbitrarily refusing to honor requests for information made by employees who have a reasonable need therefor pertaining to the appointment of members to positions as Working Teamster Foremen. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. LOCAL 282, INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA Lynn Neugebauer and Max Schwartz, Esqs., for the Gen- eral Counsel. J. Warren Mangan, Esq. (O'Connor & Mangan), of New York, New York, for the Respondent. Ted Katsaros pro se, of Mount Vernon, New York, for the Charging Party. Susan M. Jennik and Daniel E. Clifton, Esqs. (Clifton & Schwartz), of New York, New York, for Walter Kudla. DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge. The above proceeding was heard in Brooklyn, New York, on May 21 and 25, 1984, and in New York, New York, on July 10, 1984, predicated on a charge filed on August 17, 1981, and a first amended charge filed on August 20, 1981, by Ted Katsaros, an individual (Katsaros or the Charging Party), and a complaint and notice of hearing issued thereon on October 4, 1983, pursuant to Section 10(b) of the National Labor Relations Act, which alleges that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Re- spondent or the Union) violated Section 8(b)(1)(A) and (2) of the Act by refusing to provide Katsaros and Walter Kudla with information regarding their place on the list for referrals to job openings maintained by Re- spondent and by refusing to refer them to employment as Working Teamsters Foremen (WTFs) with employers with whom Respondent had collective-bargaining agree- ments. All parties were represented at and participated in the hearing and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to file briefs, and to argue orally. All parties waived oral argu- ment. However, the General Counsel, Respondent, and counsel for Kudla filed briefs. In addition, Katsaros sub- mitted a memorandum. The issues presented in this case are the following: 1. Whether the WTFs, also known as onsite stewards, are to be treated the same as shop stewards? 2. Whether Respondent has the right to appoint WTFs as it sees fit, and for any reason whatsoever, without being subject to the provisions of the Act? 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Whether Respondent violated the Act by refusing to refer Katsaros and Kudla to positions as WTFs? 4. Whether Respondent violated the Act by refusing to furnish Katsaros and Kudla with information with re- spect to their standing on the referral list for employ- ment as WTFs? On the entire record in this case, including my obser- vation of the demeanor of all witnesses, my evaluation of the transcript and exhibits, and due consideration of all briefs and memoranda filed by the parties, I make the following FINDINGS OF FACT III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For many years Respondent has been recognized as the exclusive collective-bargaining representative by BCA and its employer-members for employees in the fol- lowing unit: All truck drivers employed by BCA employer- members who are party to the High-Rise Contract negotiated by Respondent and BCA and who work within the City of New York or Nassau and Suffolk Counties, New York. 1. JURISDICTION The General Contractors Association of New York, Inc. (GCA), located in New York, New York, a non- profit association incorporated in the State of New York, is composed of employer-members engaged in construc- tion in many States of the United States. GCA performs, among other things, the function of negotiating and ad- ministering collective -bargaining agreements (heavy con- struction and excavating contracts) on behalf of its em- ployer-members with labor organizations, including Re- spondent, which represent various of the members' em- ployees. During the past year, the employer-members of GCA performed construction services valued in excess of $50,000 outside the State of New York and purchased materials valued in excess of $50,000 outside the State of New York which were delivered to their construction sites within the State of New York. The Building Contractors Association (BCA), located in New York, New York, a nonprofit association incor- porated in the State of New York, is composed of em- ployer-members engaged in construction work. BCA performs, among other things, the function of negotiating and administering collective-bargaining agreements (highrise contracts) on behalf of its employer-members with labor organizations , including Respondent, which represents employees of various BCA employer-mem- bers. During the past year, in the course of their business operations, the employer-members of BCA performed construction services valued in excess of $50,000 outside the State of New York and purchased materials valued in excess of $50,000 outside the State of New York which were delivered to their construction sites within the State of New York. The complaint alleges, Respondent admits, and I find that GCA and BCA are, and have been at all times mate- rial, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is now, and has been at all times materi- al, a labor organization withing the meaning of Section 2(5) of the Act. The most recent highrise contract is effective from 1982 to 1986. The contract contains the following provi- sions in section 12(4): The Employer shall notify the Union of any job opening in a category covered by this Agreement and shall afford the Union an opportunity to refer applicants for the position. The Employer shall retain the right to reject any job applicant referred by the Union. In the event of such rejection, the Employer shall notify the Union. The Union shall then have the opportunity to refer other applicants to the Employer until the required number of applicants are obtained. In addition, for many years Respondent has been rec- ognized as the exclusive collective-bargaining representa- tive by GCA and its employer-members for employees in the following unit: All truck drivers employed by GCA employer- members who are party to the Heavy Contruction and Excavating Contract negotiated by Respondent and GCA and who work within the City of New York or Naussau and Suffolk counties, New York. The most recent agreement is effective from 1982 to 1986. The agreement contains a provision in section 25 requiring, inter alia, that a WTF be employed by its em- ployer-members on construction sites where the total gross cost of all construction on the site is $25 million or over, and that it shall be one of the duties of the WTF to check deliveries to a jobsite and route trucks to their proper spot on the job. Section 25 of the agreement further provides at para- greph 5: The Union shall appoint the WTF. He shall per- form the normal duties of a Teamsters. He will fur- ther perform in the manner directed by the Em- ployer. He shall receive, process, inventory and dis- tribute all materials received on the job site, and shall dispatch and coordinate all trucks operating on the job site. He shall work at his Employer's direction and shall haul for any Employer or Employers in a vehicle provided by his Employer, but shall not deprive Employees on the seniority list of the Employer or TEAMSTERS LOCAL 282 (GENERAL CONTRACTORS) any other Employer of their normal work opportu- nities. He shall handle all grievances involving the application of this Agreement on the site, shall co- ordinate safety efforts relating to Teamsters on the site, and shall be allowed a reasonable amount of time to conduct Union business consistent with the concept that he is a working Teamster. The WTF shall be treated as a Shop Steward for purposes of the discharge clause. Kudla testified that the position of WTF was estab- lished by James Geoghan, former president of Local 282, and continued by Presidents John Cody and Robert Sasso, the last named being the incumbent president since the early part of 1984. Kudla stated that the duties of the WTF included policing the jobsite to ascertain the equipment and trucks entering the jobsite were driven by union drivers by challenging an unknown driver to prove he was a paid-up union member. Kudla further stated that every Teamsters member was obliged to chal- lenge unknown drivers to ascertain their union status. The undisputed testimony at the hearing established that although Respondent did not operate an exclusive hiring hall with respect to journeymen drivers, the posi- tions of WTFs, also know as onsite stewards and general shop stewards, were obtained exclusively through Re- spondent's hiring hall. B. Union Activities of Katsaros and Kudla Both Katsaros and Kudla have been members of Re- spondent for many years, each having worked as truck- drivers for more than 20 years. It is conceded by Re- spondent that both individuals have had a long history of dissident activities in union affairs in opposition to in- cumbent union officials. The evidence further revealed that both Katsaros and Kudla are members of a dissent group called Fear of Reprisals Ends (FORE). Since 1977, FORE has published a newsletter critical of union administration and has dissident candidates in union elec- tions. Katsaros and Kudla have unsuccessfully run for president and secretary-treasurer of Respondent respec- tively. Furthermore, Kudla unsuccessfully ran for busi- ness agent in 1981. In addition, both Katsaros and Kudla have been named discriminatees in charges filed against Respondent with the Board, and Katsaros has been a plaintiff in an action against Cody, Sasso, and others in their capacity as trustees of Respondent's pension trust fund. C. The Alleged Violations On April 2, 1981, Katsaros wrote Sasso, at the time secretary-treasurer of Respondent, the following letter: Dear Sir and Brother: I would like to make it known to Local 282 that I am presently out of work and desire to work in the High-Rise Industry. Section 12(4) of the 1978- 1982 High-Rise Contract between the High-Rise contractors and Local 282 provided that the union be notified of all job openings in the industry and 737 that the union be afforded an opportunity to refer applicants to the position. I believe that I am fully qualified for such work and request that I be re- ferred to High-Rise work the next time such a job opening is brought to the union' s attention, or at least that I be referred immediately after any appli- cants who have submitted their names to Local 282 for such a referral prior to this date. In addition, I request that I be informed of the number of applicants who have requested such em- ployment from Local 282 prior to this date, and who Local 282 will consider for referral to High- Rise employment before they consider my request. (Of course if no list of such applicants exist you need not supply me with the above requested infor- mation.) If the union wishes to refer me to a High-Rise job I can be reached in writing at the above address or by phone at (telephone number]. Fraternally, Ted Katsaros By certified letter, dated April 7, 1981, Sasso respond- ed to Katsaros as follows: Dear Sir and Brother: I acknowledge receipt of your letter, dated April 2, 1981, regarding job opportunities in the industry. Your name has been added to that list. Fraternally yours, Robert Sasso Secretary-Treasurer On May 6, 1981, Katsaros wrote Sasso the following: Dear Sir and Brother: On April 2, 1981, 1 wrote to you requesting re- ferral to employment in the High Rise Industry. In that letter I not only requested to be placed on whatever referral list existed, but I requested the names of all those job applicants who were on the referral list ahead of me. On April 7, 1981, 1 was sent a reply which simply stated that my name had been added to a list. I was not supplied with any names, nor was I told what position I held on the list. Based upon 282's past discriminatory action against me I feel that I have ample reason to believe that I am not being treated properly with regard to High-Rise work. I have been asking for referral to such work since October 1977. In November 1977 you wrote to me, in response to that request, and stated that High-Rise hiring was not done through a union hiring list. Now you state that there is a list. Once again I request that I be told what my posi- tion on the list is. In addition, I would like to know the names, addresses and phone numbers of -all those job applicants who have been referred to High-Rise work during the past six months (please include the date of referral); 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -all those on the referral list referred to you in your letter of April 7, 1981. Thank you for your assistance. Fraternally yours, Ted Katsaros On May 19, 1981, by certified mail, Sasso responded to Katsaros as follows: Dear Sir and Brother: I acknowlege receipt of your letter of May 6, 1981. High-Rise hiring is not done through a union hiring list. The fact that some officers and Business Agents of this local may, on their own develop a list at the request of members, like yourself, in no way estab- lishes any obligation upon signatory employers when hiring unit personnel. Fraternally Yours, Robert Sasso Secretary-Treasurer On May 12, 1981, Kudla sent a letter to Sasso which, with the exception of his name, address, and telephone number, was identical in content to the letter of Katsaros dated April 2, 1981, and received by certified mail a letter identical to that sent to Katsaros by Sasso on April 7, 1981. On May 17, 1983, by certified mail, Katsaros wrote to Sasso as follows: Dear Brother Sasso: As I have done in the past, I would like to remind you that I am still interested in being re- ferred to jobs within the jurisdiction of Local 282. 1 am aware that my name was placed some time ago on your referral list. On 5/12/83. I applied for a job at Willets Point Construction and left with manage- ment my name, address and phone number. I respectfully request that you contact the Shop Steward of Willets Point, Mr. Robert Worhacz, and inform him of my job application and to seek all that he can do in his capacity as Shop Steward to find me employment at Willets Point Construction. I would appricate receiving acknowledgement of this request and your disposition of it. Fraternally yours, Ted Katsaros By Certified mail, dated May 20, 1983, Sasso replied to Katsaros as follows: Dear Brother Katsaros: This is to acknowledge receipt of your letter dated May 17, 1983. I have given a copy of your letter to Brother Worhauz. He assures me that he will do whatever he can to help you. He informed me that he expects some jobs to be opening soon on the night shift. He expects the Em- ployer will seek to fill these openings from (a) group of individuals with whom it has had a prior employment relationship and then (b) from a pool of job applicants similar to yourself. Fraternally yours, Robert Sasso Secretary-Treasurer Kudla testified that at the end of May 1981 he had a conversation with Sasso in reference to his requests for employment and the job-referral list. When Sasso stated that his name had been placed on a list, Kudla requested from Sasso a copy of the highrise industry contract to ascertain his rights under the contract. Sasso responded that as Kudla was not employed in the highrise industry, he would not give Kudla a copy of that contract. Kudla further testified at no time did he ever receive a referral list from Respondent, he was not shown the list by Respondent, and he has never been referred to work by Respondent subsequent to his requests in 1981.' Robert Sasso, president of Respondent, testified as fol- lows: At every jobsite at which members of Respondent work within the jurisdiction of Respondent there is a WTF. The WTF need not be experienced in the highrise industry. When asked by the General Counsel what standards Sasso used to appoint WTFs, he responded as follows: No. 1, a steward is a very important factor. His po- sition should be no less than a first-line supervisor on the job. He is my link or the Union's link to the membership. He's my spokesman. He is also a team player. He's loyal. And, he represents the members out in the street. I, as the president or the interim president, don't have the time to be out there. My functions are in the office every day. So he is a very important asset out there. Also, he has to be very popular with the men. The contract is a two- way street. He also has to tell the men when they're wrong. He also has to tell the Employer when they're wrong. Later, Sasso testified that, as with shop stewards, a WTF has the responsibility for representing members of Respondent in grievance negotiations with the Employ- er. Sasso also asserted that there were approximately 3500 to 4000 members of Respondent, and he knew most of them by their first names. He conceded that experience in the highrise industry was not a requirement to be ap- pointed as a WTF. He further stated that WTF retains his seniority on the jobsite until the completion of the job, whereas a shop steward has superseniority on the job, but if he is no longer a shop steward, he falls back to his seniority position with that job. A shop steward appointment is not made on a seniority basis, but can be an appointment from other jobs. ' Kudla acknowledged that he retired in 1982 TEAMSTERS LOCAL 282 (GENERAL CONTRACTORS) Sasso conceded that various relatives of officials of Respondent had been appointed as a WTF over the past several years. Many of these appointees had less seniority than either Katsaros or Kudla. Sasso further acknowl- edged that in his estimation neither Kudla nor Katsaros were loyal enough union members for him to make ap- pointments of them as WTFs. The parties stipulated the following: Since April 2, 1981, and May 12, 1981, the Re- spondent has failed and refused and continued to fail and refuse to refer Mr. Katsaros and Mr. Walter Kudla to employment as a Working Teamster Fore- man with the GCA and/or BCA employer-mem- bers and that the only source of employment sought by Mr. Kudla and Mr. Katsaros that is an issue in this proceeding is the classification of employment known as Working Teamster Foreman under Sec- tion 25 of the high-rise contract of 1978 through 1982. D. Discussion and Analysis 1. Refusal to refer Katsaros and Kudla to WTF positions Respondent contends that WTFs are stewards as de- fined in the collective-bargaining agreements and that the agreements and Respondent's constitution and bylaws au- thorize Respondent to appoint stewards as it sees fit without any regard to seniority. The General Counsel contends that WTFs, although synonymous with on job stewards, are not stewards as defined in collective-bargaining agreements and the con- stitution and bylaws of Respondent and, therefore, Re- spondent does not have the right to appoint WTFs as it sees fit, but must appoint them through a legitimate, non- discriminatory procedure. Counsel for Kudla contends that, assuming arguendo, shop stewards and WTFs are equivalent in every respect , Respondent cannot lawfully appoint or refer individual members to such position based on political loyalty. Many of the legal principles which are applicable to the instant case were aptly expounded by my learned colleague Administrative Law Judge Jay R . Pollack in Pile Drivers Local 2375 (Offshore Welding), 267 NLRB 320, 323 (1983), in which he stated the following: In Ashley, Hickham-Uhr Co., 210 NLRB 32, 33 (1974), the Board found that a union's reasons in ap- pointing a steward, which resulted in the layoff of another employee, were material and relevant, and critical to the issue of whether it thereby committed an unfair labor practice. The Board held that when the circumstances do not involve an objective of furthering, requiring, or conditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that im- pinge upon the employment relationships which are arbitrary, invidious, or irrelevant to legitimate union interests. In Dairylea Cooperative, 219 NLRB 656 (1975), the Board held that grants of superseniority to stew- 739 ards for purposes other than layoff and recall are "presumptively unlawful and the burden is on the union to rebut the presumption ." The Board's reason for exempting layoff and recall situations from the scope of the adverse presumption is the desirability of "encouraging the continued presence of the steward on the job," which continuity "fur- thers the effective administration of bargaining agreements . . . [and) thereby not only serves a le- gitimate statutory purpose but also redounds in its effects to the benefit of all unit employees." 219 NLRB at 658. Thereafter, in Painters District Council 2 (Paint- smiths, Inc.), 239 NLRB 1378 (1979), the Board held that a union seeking to enforce a steward pref- erence clause in a new hire context acts in further- ance of a legitimate interest in ensuring it would have present on the jobsite a steward who would be more disposed to enforce trade rules and police the contract than one designated from the employer's employee complement. In Teamsters Local 959 (Ocean Technology), 239 NLRB 1387 (1979), the Board held that where the steward preference clause does nothing more than grant the union dis- cretion to send a steward to a job in place of an- other employee who would otherwise have been entitled to that referral, there is no presumption of illegality. Thus, even after the Board's Dairylea de- cision, the test remains whether the union's conduct was "arbitrary, invidious, or irrelevant to its legiti- mate interest." 239 NLRB at 1389. See also Carpen- ters Local 49 (Scott & Duncan), 239 NLRB 1370, 1371 (1979). In general, the Board has held that, "in operating an exclusive hiring hall, a union owes a duty of fair representation to all applicants for referral, and it may not act arbitrarily without objective criteria or standards, or in disregard of the provisions of its collective-bargaining agreements." Boilermakers Local 154 (Western Pa. Service Contractors Assn.), 253 NLRB 747, 759 (1980); Iron Workers Local 433 (Associated General Contractors of Calif.), 228 NLRB 1420, 1437- 1440 (1977), enfd. 600 F.2d. 770 (9th Cir. 1979) More specifically, in Pattern Makers (Michigan Pattern Mfrs.), 233 NLRB 430 (1977), enfd. 622 F.2d 269 (6th Cir. 1980), the Board found unlawful a union 's practice of giving former busi- ness managers and current members of its executive committee referral preference by placing their names at the top of the out-of-work list. First, the benefit conferred by the union in that case went beyond the Dairylea standard of job retention; it granted actual job preference for initial hiring. Second, the preference granted the current mem- bers of the excutive committee did not bear any direct relationship to the administration of the col- lective-bargaining agreement on the job. The mem- bers of the executive committee performed no stew- ard function at the plant. Third, the preference to former business managers accomplished nothing more than rewarding those individuals for past serv- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ice to the union. Accordingly, the Board found that the referral preferences in that case served no legiti- mate union interest. In Teamsters Local 282 (Explo, Inc.), 229 NLRB 347 (1977), the Board found that the union violated Section 8(b)(1)(A) and (2) when its business agent conferred a steward position and concomitant superseniority on his son-in-law. The Board found the union's defense that the appointment of an experienced steward was necessary to be a pretext. The union's real reasons for the steward ap- pointment were to give the son-in-law a high-paying job and to retaliate against certain employees of the compa- ny for their intraunion activities. Thus, the Board found the steward appointment to be arbitrary, individious, and discriminatory to the union's employee-members and a violation of the union's duty of fair representation to the employees. Another principle relevant to the instant matter can be found in General American Transportation Corp., 227 NLRB 1695 (1977), which states "a steward is an em- ployee and as an employee is fully entitled to the protec- tion afforded employees under our Act." In that case, the Board held that the respondent union violated the Act by its removal of an area steward who had filed an unfair labor practice charge against his employer and re- fused to withdraw the charge when requested by re- spondent union to do so. In the same decision, the Board further pointed out the following: Clearly the potential or actual loss of the benefits and emoluments which usually attend his office will have a powerful inhibiting effect on a steward who finds himself the object of his union's displeasure. And the cases have so held. Moreover, one must also consider that by removing a steward from office for exercising his legally protected right to free access to the Board, the Union not only takes action that is adverse to that particular individual, but it announces to all other employees its willing- ness and ability to retaliate should they arouse its antagonism by seeking to exercise their protected rights. Before applying the legal principles, as enunicated by Judge Pollack and the Board, it is necessary to analyze the facts of the instant case. First, I find that no credibility problems exist in the in- stant case. From the testimony of Katsaros and Kudla, buttressed by various documents received into evidence, there is no question that both Katsaros and Kudla had requested from Respondent that they be considered for positions in the highrise industry as WTFs. Although Sasso responded to the requests by letter, stating that they would be placed on a hiring list, neither of the two employees were ever referred to employment by Re- spondent as WTFs. At the hearing, Sasso made it pre- fectly clear that neither Katsaros or Kudla met the per- sonal qualifications of loyalty established by Respondent for appointing various employees to the position of WTF. He futher conceded that many of the employees appointed as WTFs were relatives of high officials of Respondent.2 In contrast to Pile Drivers Local 2375, supra, in which the Board found that the union had a "legitimate and valid concern for placing an experienced steward on a potentially troublesome jobsite," no evidence was ad- duced in the instant case that Respondent 's assignments reflected similarly valid concerns. Furthermore, no evi- dence was adduced that either Katsaros or Kudla was being punished by Respondent Union for any dereliction of duty, inexperience, or incompetence on his part. I am compelled to conclude that the sole reason both individ- uals were denied an opportunity to serve as WTFs was because of their activities, as described in the facts, supra, against the administration of Respondent Union. I further find that these anti-administration activities of Katsaros and Kudla in no manner would have any effect on their performance as WTFs. Both Katsaros and Kudla impressed me as being loyal union members of Responent Union and, although they may have differ- ences with the administration of the Respondent Union, there is no indication that they would not perform the duties of a WTF, such as checking the union member- ship of drivers entering a jobsite. Respondent argues in its brief that Shenango Inc., 237 NLRB 1355 (1978), sup- ports its position that Respondent is legitimately entitled to reject Katsaros and Kudla from the WTF position. In Shenango, the Board found no violation when the union removed an employee from his position as chairman of the plant safety committee. The Board reasoned that the position involved policy decisions concerning plant safety. In light of the policymaking nature of the posi- tion, the Board held, "The Union is legitimately entitled to hostility or displeasure toward dissidence in such posi- tions where teamwork, loyalty, and cooperation are nec- essary to enable the union to administer the contract and carry out its side of the relationship with the employer." Supra at 1355. The Board stated further in Shenango, supra at 1355, "The issue is one of balancing the employ- ee's Section 7 right to engage in internal union affairs against the legitimacy of the union interest at stake in the particular case." In Shenango, the Board dismissed the complaint on the basis that the individual removed was in a policymaking position of the union. Unlike Shenago, in the instant case, the position of shop steward is not a policymaking posi- tion. Thus, article 4 of Respondent's bylaws clearly lays out the duties and responsibilities of shop stewards, and only when a shop steward fails to carry out his assigned duties can he be removed, and only then by the execu- tive board of the Union, not by the president of the Union. Assuming, arguendo, Respondent is correct that a WTF is the equivalent of a shop steward, I find that the WTF enjoys the same rights and privileges as a shop steward, i.e., as an employee he is fully entitled to the 2 Although the General Counsel desired that records be presented by Respondent to show the name , numbers, and dates of appointments of WTFs to prove her case, I reject this evidence on the basis that it was unnecessary to establish a violation I find such matter to be a compliance problem, which can be solved at a later date TEAMSTERS LOCAL 282 (GENERAL CONTRACTORS) protection afforded employees under the Act. As the duties of a WTF are not of a policymaking nature, Re- spondent has no authority to refuse to refer Katsaros or Kudla to the position and would only be free to dis- charge them in the event that they fail to perform their defined, limited duties. Respondent makes further reference to a Board deci- sion in Teamsters Local 282 General Contractors, 262 NLRB 528, 530 (1982), in which it states the following: In his analysis of the 8(b)(7)(C) complaint allega- tions, the Administrative Law Judge found, inter alia, that the action by the working Teamsters fore- men on May 21, 22, and 23 conveyed a "signal" to the drivers of trucks making deliveries to affected GCA jobsites to refuse to make deliveries. He fur- ther found that such actions constituted picketing within the meaning of Section 8(b)(7)(C), that Re- spondent was legally responsible for the strike and picketing activity, and that an object of the picket- ing was to force or require GCA members to rec- ognize and bargain with Respondent who was not currently certified or recognized as the representa- tive of such newly sought employees. At first blush, there appears to be a conflict between the holding of the Board that a steward enjoys the rights of employees and that a WTF is an agent of the Union for purposes of establishing a violation under Section 8(bX7XC) of the Act. However, I find no such conflict exists. The WTF is both an employee of his employer and an agent of his union-depending on what functions he is performing . Any union can expect any of its agents to act within the scope of his union authority and can discipline him if he fails to exercise those duties prudent- ly. However, as the WTF is also an employee of his em- ployer, a union cannot discriminate against him for invid- ious and illegitimate reasons by refusing to refer him to a position as WTF, as Respondent did here to Katsaros and Kudla. To summarize, for the reasons detailed above, I find that Respondent, by its failure to refer Katsaros and Kudla to positions as WTFs, violated Section 8(b)(1)(A) and (2) of the Act. 2. Refusal to furnish information regarding referrals of WTFs Having found that WTFs are employees under the Act with all the rights and privileges of employees, I now ad- dress the question of whether Respondent violated the Act by failing and refusing to provide information to Katsaros and Kudla with respect to their positions on the referral list for WTFs. Based on the testimony of Katsaros and Kudla, and various documents submitted into evidence. I find that it is undisputed that both Katsaros and Kudla requested Sasso and Respondent to furnish each of them with in- formation with respect to their positions on the referral list for WTFs. It is also clear that Respondent at no time furnished the requested information to the two individ- uals. 741 Although Respondent apparently takes no position with respect to this alleged violation of the Act, it is clear that the refusal to furnish information is based on Respondent's position that WTFs are stewards who are appointed by Respondent for whatever reasons that Re- spondent sees fit. Having decided that Board law and prior decisions have shown this defense to be untenable, I am compelled to conclude that Respondent violated Section 8(b)(1)(A) of the Act by its failure to provide the information requested by Katsaros and Kudla. As the General Counsel correctly indicates in her brief, the Board has held that inherent in a union's duty of fair representation is an obligation to deal fairly with an employee's request for information regarding his rela- tive position on a register for purposes of job referral. Operating Engineers Local 324 (AGC of Michigan), 226 NLRB 587 (1976). In the same case, the Board further held that an employee is entitled to access to a job-refer- ral register to determine the names, addresses, and tele- phone numbers of individuals on either side of his name to protect his referral rights. See also Carpenters Local 1080 (Burch & Lamb), 255 NLRB 80 (1981). Relying on the undisputed facts of the instant case, it is clear that for Katsaros and Kudla to protect their re- ferral rights and to determine whether Respondent was properly referring individuals to positions of WTF, they must have access to the referral list from which the WFTs were sent. Although Sasso indicated by letter that both Katsaros and Kudla were placed on a referral list, his own testimony made it clear that Sasso had no inten- tion of ever referring either of these individuals to the WTF job when he indicated that he did not consider either of them to be loyal enough to qualify for the posi- tion. The evidence failed to establish that any such refer- ral list is maintained by Respondent in view of the fact that Sasso acknowledges that his appointments to WTF positions are based on a subjective criteria and that he or his predecessors were authorized to make such appoint- ments without following any seniority system. In light of the Board's decision which grants employees the right of access to job-referral lists, and in view of my finding that WTFs, as employees, are entitled to all rights and bene- fits of any employee, I find that Respondent, by refusing and failing to provide Katsaros and Kudla with the infor- mation requested by them, breached its duty of fair rep- resentation with respect to Katsaros and Kudla and therefore violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. GCA, BCA, and their respective employer-members are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to furnish Katsaros and Kudla, respec- tively, with information regarding their respective places on a list for referrals to job openings for Working Team- sters Foremen, Respondent violated Section 8(b)(1)(A) of the Act. 4. By failing and refusing to refer to employment Kat- saros and Kudla, respectively, as Working Teamsters 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foremen with GCA and/or BCA employer-members, Respondent had violated Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it cease and desist therefrom and take the certain affirmative action to ef- fectuate the policies of the Act. Having found that Respondent unlawfully caused Ted Katsaros and Walter Kudla to be denied referral to work as Working Teamsters Foremen since April 2, 1981, and May 12, 1981, respectively, I shall order Respondent to make each of them whole for any loss of earnings suf- fered as a result of the discrimination against them by payment to each of them sums of money equal to that which each of them normally would have earned as wages from the date of the discrimination against them until such time as Respondent properly refers them to employment pursuant to the lawful operation of its refer- ral system, less net earnings during such period . Backpay and interest thereon is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). I shall further order Respondent to maintain and oper- ate its exclusive job-referral system as relating to Work- ing Teamsters Foremen in a nonarbitratory and nonca- pricious manner. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of a If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses America, Brooklyn, New York, its officer, agents, and representatives, shall 1. Cease and desist from (a) Making referrals to positions of Working Teamsters Foremen in an arbitrary or capricious manner. (b) Restraining or coercing employes in the exercise of their rights guaranteed by Section 7 of the Act by arbi- trarily refusing to honor requests for information made by employees who have reasonable need therefore per- taining to the exclusive referral system operated by Re- spondent. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Maintain and operate the exclusive job-referral system in a nonarbitrary and noncapricious manner. (b) Make whole Ted Katsaros and Walter Kudla for any loss of earnings suffered as a result of the discrimina- tion against them by payment to them of sums of money equal to that which they normally would have earned as wages from the dates of the discrimination against them until such time as Respondent properly refers them to employment pursuant to the lawful operation of its refer- ral system. (c) Post at its facilities at 1975 Linden Boulevard, Elmont, New York, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 4 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."