Plumbers Local 136 (Shaw Co.)

PLUMBERS LOCAL 136 (SHAW CO.) Local No. 136, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada (B. F. Shaw Company) and Jerry D. Richey and Bob L. Boyd and Chester L. Ness and Em- ploying Plumbers and Steam Fitters and Air Conditioning and Refrigeration Contractors of Evansville, Indiana, Party to the Contract. Cases 25-CB-4986-2, 25-CB-5019, 25-CB- 5022, and 25-CB-5022-2 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 12 August 1983 Administrative Law Judge William F. Jacobs issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.' 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 conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local No. 136, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Evansville, Indiana, its officers, agents, and representatives, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the complaint alle- gations to which no violations have been found are dismissed. I The Respondent's motion to quash the General Counsel's exceptions is denied 2 In adopting the judge's findings and conclusions, we rely simply on his finding that, on the facts of this case, the General Counsel did not prove by a preponderance of the evidence that the Respondent discrimi- nated against the Charging Parties on the basis of union membership or in retaliation against them for the exercise of Sec 7 rights or that the Re- spondent discriminated generally against applicants on the basis of union membership Given the scope of the exceptions before us, we are not pre- sented with the question, distinct from the issue of discrimination based on union membership, whether the hiring hall was operated on the basis of unlawfully arbitrary factors Cornele A. Overstreet, Esq., for the General Counsel. Sydney L. Berger, Esq., of Evansville, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE 847 WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on various dates between Feb- ruary 28 and March 10, 1983, at Evansville, Indiana. Charges in Cases 25-CB-4986-2 and 25-CB-5019 were filed by Jerry D. Richey on September 9 and October 27, 1982,1 respectively. Case 25-CB-5022 was filed by Bob L. Boyd on November 3, and Case 25-CB-5022-2 was filed by Chester Leroy Ness2 on November 5. All Charging Parties filed as individuals. Complaint in Case 25-CB-4986 issued October 28 and alleges that Local No. 136, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada (the Union or Local 136) failed and refused to register for referral and refer Jerry Richey for employment because he was not a member of the Union and caused B. F. Shaw Company to lay off Bob L. Boyd and Jerry Richey. An order consolidating cases, complaint and notice of hearing issued December 10 alleging further that the Union failed and refused to register for referral and refer Bob L. Boyd and Chester L. Ness, "as well as many other employees whose names are unknown," for employment because they were not members of the Union and refused to provide Richey with copies of its out-of-work lists and referral and other records reflecting all applications for referral from its hiring hall despite its fiduciary obligation to provide such information. In its answers, the Union denies the com- mission of any unfair labor practices. Representatives of all parties were present and were given full opportunity to participate in the hearing. Briefs were subsequently filed by the Union and the General Counsel. Based on the entire record including my observation of the witnesses and after due consider- ation of oral argument and briefs submitted, I make the following FINDINGS OF FACT 1. THE LABOR ORGANIZATION The Union admits jurisdiction and its status as a labor organization. I so find. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-The Exclusive Hiring Hall Issue3 The Union maintains its principal office and hiring hall in Evansville and regional offices and hiring halls in Bloomington and New Albany, Indiana. It has for years maintained a bargaining relationship with Employing Plumbers and Steamfitters and Air Conditioning and Re- frigeration Contractors of Evansville, Indiana, an organi- zation of construction industry employers (the Associa- tion). The most recent collective-bargaining agreement, I Dates are in 1982 unless otherwise indicated 2 Chester Leroy Ness' name was amended at the hearing 9 The Union denies in its answer that it operates an exclusive hiring hall It did not argue the issue at hearing or in its brief 280 NLRB No. 99 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective May 1, 1982, through March 31, 1985, provides in relevant part: ARTICLE III Hiring Procedure 14. This hiring procedure agreement is entered into between the Employing Plumbers and Steamfit- ters and Air Conditioning and Refrigeration Con- tractors of Evansville, Indiana and Journeymen Local Union No. 136 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada of Evansville , Indiana. 15. Section 1. When hiring men, the initial re- quest for the furnishing of men shall be made to the Business Manager of the Local Union or to the rep- resentative designated by such Business Manager. The Local Union shall refer all applicants for em- ployment according to the following minimum standards. 16 Section 2. The Local Union shall select and refer applicants for employment without discrimina- tion against such applicants by reason of member- ship or non-membership in the Local Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitution- al provisions or any other aspect or obligation of Union membership, policies, or requirements. All such selection and referral shall be in accordance with the following procedure. 17. Section 3 The Employers shall have the right to reject any applicant for employment referral by Local Union. 18. Section 4. A copy of the referral procedure set forth in this Agreement shall be posted on the Bulletin Board in the office of the Local Union and in the office of the Employers who are parties to this Agreement. A copy shall also be furnished each applicant for employment. 19. Section 5. The Local Union agrees to furnish at all times to the Employer duly qualified Journey- men and Apprentices in sufficient number as may be necessary to properly execute work contracted for by the Employer in the manner and under the con- ditions specified in this Agreement. 20 Section 6. Employer shall only employ quali- fied journeymen plumbers and pipefitters. Journey- men plumbers and pipefitters shall be qualified for employment under this Agreement who have had four (4) years' actual practical working experience in the plumbing or pipe fitting trade in the building and construction industry, and have passed an ex- amination given by the Local Union or have been previously employed as a journeyman under this Agreement, and have passed an examination given by the city and have a city journeyman's license for the class of work he is employed to perform. Mean- ing city plumbing license for drainage and sanitary work. City steamfitters license for all other steamfit- ting or pipe fitting. City refrigeration license for re- frigeration installers . This section also includes welders, plumber welders or fitter welders. 21. Section 7. Employer shall hire qualified jour- neymen plumbers and pipe fitters by notifying the Business Manager of the Local Union or the repre- sentative designated by said Business Manager. Whenever an Employer requires a Journeyman plumber or pipe fitter on any job, he shall notify the Business Manager of the Local Union or the repre- sentative designated by said Business Manager at the Local Union Office, either in writing or by tele- phone, stating the location, starting time , approxi- mate duration of the job, the type of work to be performed and the number of workmen required. 22. Section 8. The Local Union shall establish and maintain an appropriate registration facility for qualified applicants available for employment as journeymen plumbers and pipe fitters . Qualified ap- plicants shall be registered as either plumber or pipe fitter, in the order of time and date of registration. Each applicant for employment shall be required to furnish such data, records, names of employers and licenses as may be deemed necessary and each ap- plication shall complete such form or registration as may be submitted to him. Applicants for employ- ment shall also list any special skills that they pos- sess. All applications for employment shall be made at the office of the Local Union. No. 136, 2300 St. Joe Industrial Park Drive, Evansville, Indiana 47712, or wherever said office may from time to time be located 23. Section 9 Upon the request of an Employer for plumbers or pipe fitters, the Local Union shall refer registrants to Employer from the out -of-work list on a first in, first out basis; this is, the first man registered shall be the first man referred except that: 24. (a) Requests by Employer for key men to act as supervisors, general foremen or foremen shall be honored without regard to the requested applicant's position on the out-of-work list. First qualified ap- plicant for such key jobs shall be referred to Em- ployer by the Local Union. 25. (b) Requests by Employer for particular plumbers or pipe fitters previously employed under this Agreement by the Employer and who have been laid off or terminated by the Employer within ninety (90) days previous to the request shall be given preference of rehire and shall be dispatched to the Employer, regardless of their position on the out-of-work list 26. (c) Bona fide requests by Employer for plumbers or pipe fitters with special skills and abili- ties will be honored The Business Manager of the Local Union and/or the representative designated by said Business Manager may dispatch persons possessing such skills and abilities in the order which their names appear on the out-of-work list. Such a decision of the Business Manager of the Local Union in referring registrants is appealable to the Joint Committee as herein provided. PLUMBERS LOCAL 136 (SHAW CO) 27 (d) Any applicant who is referred to employ- ment but is rejected by the Employer shall maintain his position on the out-of-work list. Any applicant who has a good and sufficient reason for rejecting employment or for not being available when offered employment, shall maintain his position on the out- of-work list. Applicants who are offered employ- ment and reject same without good and sufficient reason shall be stricken from the out-of-work list. 28. Section 10. Administration of the referral pro- cedure established under this Agreement shall be the joint responsibility of the bargaining committee composed of three (3) representatives of the Em- ployer and three (3) representatives of the Local Union Clarence Coleman, the Union's business agent in charge of the daily administration of the contract is also in charge of the operation of the hiring hall, assisted by Donald Potts, another business agent . Coleman credibly testified that the Union usually becomes aware of avail- able work through telephone calls from a company offi- cial who advises the Union of the existence of job open- ings and requests the referral of a certain number of em- ployees Companies making such requests may be mem- bers of the Association or nonsignatory companies merely following the hiring hall procedure In the latter case, the Company must sign a local contract with the Union and must use the Union's hiring hall exclusively to obtain employees. If a nonunion contractor comes into the Union's jurisdiction, the Union makes an effort to get the company to sign a local agreement. If successful, the company must use the Union's hiring hall exclusively. If unsuccessful, and the nonunion contractor refuses to sign the local agreement, it may not use the services of the hiring hall and no referrals are sent to that company. As far as members of the local are concerned, they are not permitted to go out and seek employment at jobsites within the Union's jurisdictional area on their own. Nor are union members free to seek employment with non- union companies. Travelers, members of other locals seeking employment within the Union's geographical ju- risdiction, are subject to the same rules as members of the Union and are subject to being fined if they breach local rules From the documentary evidence and from the credited testimony of Coleman, I conclude that the Association and the Union entered into a collective-bar- gaining agreement on May 1, 1982, and that since that date, in accordance with article III of that agreement, the Union has been the sole and exclusive source of re- ferrals of employees for employment with the member companies of the Association B. The Referral System The Union's membership consists of approximately 1200 individuals all permanently residing within its geo- graphical boundries that consists of 25 counties in Indi- ana and 4 counties in Illinois. Anyone who desires mem- bership in the Union must establish permanent residence within these 29 counties The basis for referring permanent local residents (members) for employment is the out-of-work list and no 849 one is on this out-of-work list but permanent local resi- dents who, according to Coleman, it happens, are also members but members who do not have travel cards4 outstanding Thus, Coleman testified he has only the names of permanent local residents on the out-of-work lists because they are reliable and dependable. As Cole- man testified, "A guy on travel card most of the time is a transient and he's just passing through and you never know whether he's going to be available or not." Simi- larly, a local resident, a member of the Union, who takes out a travel card, is still considered a permanent local resident but treated as any other traveler. Thus, when a member of the Union takes out his travel card and leaves the area to work in another local's jurisdiction, his name is taken off the out-of-work list and he is put on the travel card list that Coleman maintains separately. Those individuals on the out-of-work list are referred on a first- in, first-out basis. Other applicants for referral are not. These are discussed infra. Individuals placed on the out-of-work list are placed there in accordance with their date of layoff from their previous job. Whoever is laid off first is the next one to be added to the out-of-work list provided, of course, he is a permanent resident. Even if a permanent resident who is laid off from his job fails to report his layoff to the hiring hall for several days, and other permanent residents laid off later report in before him, the individ- ual who was laid off first gets his name placed on the list above those who were laid off after him but reported in earlier. If several employees are laid off on the same day, they are placed on the out-of-work list in accordance with the day and time of their reporting to the hall. There are, however, exceptions to these procedures. One exception concerns a situation when an employer calls in and requires help immediately and Coleman does not have time to search around and find the people at the top of the list or send telegrams and wait until the fol- lowing day Under these circumstances he does not follow the precise order of the names on the out-of-work list. Another exception occurs when a contractor calls in and requests the services of a particular individual by name. In that case, if the employee requested has worked for that contractor within the past 90 days, he is referred without regard to his place on the out-of-work list. A third exception concerns a situation when a new job is about to be started and the out-of-jurisdiction contractor, who has the right to choose his own foreman, decides to relinquish that right and leave it to Coleman to choose the foreman. Coleman will not necessarily follow the out-of-work list but may choose someone who is more capable of performing the foreman's duties than the top man on the list Still another exception involves the ap- pointment on a job of a steward. Coleman testified that in his opinion the steward represents the Union and must reflect Coleman's thinking about the Union's interests on the job. Therefore, he may choose someone other than 4 The Union, as well as other locals, issues travel cards to members who are working within the geographical jurisdiction of another local rather than within the geographical jurisdiction of his home local The individuals carrying travel cards are called travelers 5 The list is posted on the wall of the hiring hall 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the individual at the top of the list to be steward on the job so that Coleman will not have to be at the jobsite himself. There are also situations when a vacancy at a jobsite must be filled by an individual with special skills.6 In that case, Coleman may skip over one or more indi- viduals on the out-of-work list who do not possess that special skill and choose someone who does. It is the indi- vidual himself who determines whether or not he is spe- cially skilled. Finally, there are those persons on the out- of-work list who for one reason or another may not wish to work at the time the job opening occurs. They may be on vacation at the time , engaged in employment out- side the trade or for some personal reason may not desire employment just then. Coleman, on being advised of the situation, will skip over that person and choose someone further down the list to fill the vacancy. If an individual is referred to a job and works for 15 or more consecutive workdays, his name is removed from the out-of-work list. If an individual is referred to a job and he works less than 15 consecutive workdays, he may or may not remain on the out-of-work list in his original position. Thus, if after working a few days, the referred employee decides that he does not like the job and quits of his own volition, requests layoff, or is fired for cause, he is placed at the bottom of the list. If, on the other hand, he works for less than 15 consecutive days and loses his job through no fault of his own, his name stays on the list in its original position . If an individual rejects a referral or he is rejected by the contractor on reporting to work for whatever reason, including busting (failing) a welding test, his name remains on the out-of- work list where it was. If an individual works for less than 15 days for one employer, then leaves to work for a second employer, it depends solely on whether his switch of jobs was voluntary or not, regarding whether his name would stay at the same position on the list or go to the bottom. The permanent residents (members) are always re- ferred out to employment before applicants who are not permanent residents. This is so regardless of whether or not a nonpermanent resident reports to the hall before a permanent resident or even if the nonpermanent resident is the only individual in the hall. Coleman will still at- tempt to contact a permanent resident and offer that in- dividual the referral before offering the job to the travel- er or other nonpermanent resident. In short, a permanent resident always has rights over a traveler. Travlers are full-fledged members of the International and of a local other than the local in whose jurisdiction he is currently residing and/or working. If an individual belonging to one local wishes to work in another local's geographical area , he must take out a travel card and carry it to the local's office in whose area he wishes to work. In order to get a travel card, the individual must There are separate lists maintained for plumbers, fitters, and refriger- ation mechanics When a contractor specifies that he requires an employ- ee within one of these classifications , the individual at the top of that par- ticular classification list is sent If the contractor does not specify, then the employee on any of the lists who has been out of work the longest is sent. If a welder is requested , then Coleman or Potts goes down all three lists to find a plumber-welder or a fitter welder to fill the need, the one laid off the longest being referred . The lists are prepared every Monday have his dues paid through the current month. The trav- eler is permitted to take his travel card to any local in whose jurisdiction he wishes to work. In order to be re- ferred for employment by the host local, the traveler must first deposit his travel card. The right to deposit his .travel card is guaranteed, whether there is work avail- able or not, and he may keep his travel card on deposit as long as he desires. Once having deposited his travel card with the host local, a traveler may withdraw it by contacting an officer of that local, in the case of the Union herein, Coleman or the Union' s financial secre- tary. After withdrawing his travel card from one local, a traveler is free to deposit it with any other local. Some- times a traveler may request by telephone that his travel card be forwarded to another local and this is usually done as a matter of courtesy although a local may refuse this type of request and insist that the traveler pick up his travel card personally. Most of the time the travel card must already be on deposit before a traveler is re- ferred although there are occasions when a traveler is re- ferred with the understanding that he will deposit his card within a few days of arriving. This occurs when there is a sudden demand for a large number of employ- ees from a contractor and there are not a sufficient number of home local members to fill the request. Under these circumstances Coleman will contact other locals and request that travelers be sent directly to the jobsite with the understanding that their travel cards be deposit- ed shortly thereafter. This situation, however, is the ex- ception to the rule that travel cards be deposited before referral. When a traveler deposits his travel card with the Union it is a signal to Coleman that that traveler de- sires work within the jurisdiction. Similarly, when the traveler withdraws his card it means he has left the area or is not seeking employment within the Union's jurisdic- tion. Although a traveler has his card on file at one local, he is not supposed to be working in any other local's geographical jurisdiction. The Union enforces this rule but occasionally it is breached. If a traveler breaks this rule, Coleman nevertheless sends the traveler a bill for all the time the traveler has his card on deposit with the Union, even if that traveler is working in another local's jurisdiction. Coleman is somewhat familiar with some travelers while others are total strangers to him. Some of them have special skills of which Coleman is aware while others have no skills at all and may even have purchased their cards from crooked business agents in order to seek employment based on these cards within the Union's ju- risdiction. Thus, Coleman may be unfamiliar with the ca- pabilities of some travelers while, because of their fre- quent use of the Union's hiring hall, he may be quite fa- miliar with the skills possessed by others. Information about particular travelers is received by Coleman by simply asking them about their qualifications or from other workers who have worked with them at the job- site. No records of travelers' special skills are kept on file although a traveler's file is kept that indicates to which jobs a particular traveler has been referred. A traveler, according to Coleman, is a nonpermanent resident by definition, for if he has a travel card on file, PLUMBERS LOCAL 136 (SHAW CO.) his permanent residence is assumed to be where his home local is, regardless of whether his travel card bears a local temporary address or his permanent address located outside the Union's geographical jurisdiction. If a travel- er wishes to become a permanent resident within the Union's jurisdiction and be placed on the permanent resi- dents' out-of-work list, there are specific procedures out- lined in the constitution by means of which this can be accomplished. Coleman and Potts both testified credibly and in agreement with each other about how they refer appli- cants for employment. As far as permanent residents are concerned the out-of-work list is used and but for the ex- ceptions noted earlier members are sent out in the order they appear on the list. Before any travelers are referred, the out-of-work list of permanent residents is fully ex- hausted because, as Coleman testified, these are the people who are always available, can be depended on, and whose skills are known. Whereas a specific procedure is followed in the refer- ral of permanent residents, referral of travelers, Coleman admits, follows no particular pattern. No permanent list of travelers similar to the out-of-work list for permanent residents is maintained. The only way Coleman knows when a traveler is looking for work is when the traveler deposits his card at the hall or appears at the hall person- ally and applies for referral. If no work is available, Coleman will advise an inquiring traveler of this fact and perhaps advise him to come back the following week. No record is kept of these inquiries and no priority for referral given to travelers on the basis of the order in which they apply. Sometimes, however, if a traveler re- quests referral when there is no work, and a job becomes available later that day, Coleman may call him by tele- phone and refer him. Not necessarily, however. On the other hand, if Coleman is advised at 4 or 5 o'clock in the afternoon of a job opening for the following day, he will not call the traveler back but will wait until the follow- ing morning at which time he will, assuming no perma- nent residents are available, go through the card file? and see which of the travelers has been laid off the long- est and, if that person has the qualifications to do the job, he will call that person and refer him for employment. On other occasions, when a contractor calls in for a re- ferral, Coleman may choose to refer one traveler rather than another based on his having better qualifications or, on the other hand, he may choose another traveler be- cause he had shown up at the hall the previous Friday, then again the following Monday. Each morning at the hiring hall a number of applicants for referral usually show up. Some are permanent resi- dents while others are travelers. The names of the appli- cants reporting to the hall that particular morning are written down by the office girl who then gives the names to Coleman or Potts. If there is no work available that day, Coleman tells the applicants and throws the list of names away. This would be done late in the morning about 10 or 11 a.m. If there is work available Coleman Cards are kept on file for each employee referred The cards contain such information as dates on which telephone calls were made to him for purposes of referral, dates of referral, and dates of layoff 851 or Potts first refers the out-of-work members and if there are still jobs available, they refer out travelers who are present in the hall, who have their travel cards on depos- it,' and who have the necessary qualifications or special skills. If there are still jobs available after those present have been referred, Coleman or Potts will go through the traveler cards to see which of them have the qualifi- cations or special skills to perform the work. They may choose the first traveler they come across in the file or the one who has been out of work the longest. These, too, are travelers whose travel cards are already on de- posit with the Union. These travelers are then contacted by telephone or telegram for referral. If there are present in the hall several travelers await- ing referral, all with their travel cards on file and with the necessary qualifications, Coleman or Potts will choose the one whom he believes to be most qualified. If there are several travelers present, all with their travel cards on deposit and all with equal skill, Potts on occa- sion will refer the one who has been out of work the longest. On the other hand, he may also, at times, choose the one who arrived at the hall and signed in first. Potts like Coleman follows no set pattern in making referrals. After all referrals are made the list is thrown away. This is done on a daily basis. If after all of the permanent residents and travelers have been referred, there are still jobs available, Cole- man will contact other locals and have them send their people to the Union with their travel cards. If several hundred people are needed Coleman may enlist the aid of business agents at other locals and ask them each to contact and send down 50 men or as many as are avail- able. Under these circumstances, however, Coleman will set aside maybe 20 places for the people who have travel cards already on deposit to be contacted and offered re- ferral. 1. Failure to refer Jerry D. Richey The complaint alleges that from May 1 until July 12, 1982, the Union failed and refused to register for referral and to refer for employment Jerry Richey because he is not a member of the Union. Richey is a welder,9 pres- ently living in Hazelton, Indiana , a town within the Union's geographical jurisdiction. He has lived there for 5-1/2 years. Richey is not a member of the Union but of a sister local, Local 344, Oklahoma City. He has been a member of that local since 1972 but has not worked out- side the jurisdiction of Local 136 since he moved to Ha- zelton. According to the records, when Richey first moved to Hazelton in 1977 he deposited his travel card with Local 136 and kept it on deposit through January 1980 except for a few days in 1979 when it was returned to him be- 8 Travelers who have their travel cards on deposit are given preferred treatment as opposed to those who do not because the charges paid as travel card dues by those who have deposited them help to defray the expense of operating the hall When a traveler deposits his travel card it indicates to Coleman that the traveler wants to work in the area and be one of the available pool of employees used to fill job requests from con- tractors 8 Richey's ability as a welder is not to question 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause a strike was in progress. Richey redeposited his travel card later in January 1980 and kept it on deposit until October 1980 at which time he withdrew it once again for a period of about 2 weeks. On November 18, 1980, he again deposited his travel card and kept it on deposit until February 27, 1981 . During this entire period Richey paid his travel card dues each month without fail. During this period, while Richey's travel card was on file he received a number of referrals : On January 13, 1977, the same day he deposited his travel card, he was referred to Southern Instruments, a job which lasted 1 day; on September 25, 1978 , he was referred to Industrial Contractors Inc., which job he quit on October 30, 1978; on November 15, 1978, he was referred to Southern In- struments again where he worked until February 7, 1979; on February 12, 1979, he was referred to Dieg Brothers where he worked until April 25, 1979, at which time the job ended due to a strike ; on May 11 , 1979, he was re- ferred to Pullman Kellogg where he worked until De- cember 14, 1979, on which date he was fired; on January 28, 1980, he was reemployed at Pullman Kellogg and worked there until he was laid off on June 19, 1980; on July 10, 1980, he was referred to Dieg Brothers where he worked until sometime in September 1980; and on November 18, 1980, he was referred to Foster Wheeler where he was fired for excessive absenteeism according to the card supplied by Local 136. The record indicates that during the period September 13, 1977, through Feb- ruary 18, 1981 , while Richey's travel card was on depos- it with the Union, he was referred for employment and worked as a result of those referrals on nine occasions. Following Richey's layoff from Dieg Brothers in Sep- tember 1980 he withdrew his traveler's card on October 30. He nevertheless reported to the union hall thereafter seeking referral. There were a number of travelers on layoff status at the time . In November a job opened up in Gibson County and the Union was having a difficult time filling the demand for hot welders . Two or three times Potts stuck his head out of his office door into the hall and stated that hot welders were needed . Richey volunteered to Potts that he was qualified to do this work. Potts on two or three occasions told Richey to return the following day. Then one day Potts announced that there were no more jobs available . This announce- ment was within a week of the day the jobs first became available. Richey, disturbed at this turn of events, ques- tioned Potts on the fact that jobs were available that he could have filled, but was not being referred while others were sent out. At some point during this conver- sation, according to Richey , Coleman, who had appar- ently overheard the discussion, came to the door and called Richey into the hallway and told him that if he "didn't like it, to pick up his travel card and go on down the road." Despite this alleged statement and apparent anger on both sides, Coleman then invited Richey and Potts back into his office. A conversation ensued, which lasted about 30 minutes. During this conversation Richey repeated the criticism that he had earlier voiced to Potts. He then reminded Coleman that he already had 37 months working out of the local and wished to transfer into Local 136. Coleman replied that Richey was at- tempting to transfer incorrectly, that he had guys work- ing out of Local 136 for up to 10 years in the same situa- tion as Richey and that they had not been cleared either.' ° Richey stated that he had his time in and was a good welder but that he did not want any trouble but just wanted to work. He dropped the subject of transfer entirely for the time being." Richey was thereupon re- ferred to the Foster Wheeler job in Gibson County. This was on November 18, the same day he deposited his travel card with the Union. Thus, it is clear that the pre- vious few days when other applicants were referred out to the Gibson job while he was not , he had not had his travel card on deposit and although it is not certain that this was the reason he was not referred, it is quite likely that in accordance with the usual procedure credibly de- scribed by Coleman and Potts, qualified travelers with their cards on file were referred before other travelers. Moreover, although Richey testified that he had with- drawn his travel card on October 30 because either Potts or Coleman told him to do so , an allegation which both denied, Richey also admitted that he had gone on vaca- tion in October 1980 and it is as likely as not he with- drew his card on October 30 to take it with him on vaca- tion as the record shows was the practice of certain other travelers. As noted earlier, Richey was fired from the Foster Wheeler job on February 18, 1981 . On February 27, Richey voluntarily withdrew his travel card from the union hiring hall and obtained employment with a rela- tive, outside the trade as an estimator and supervisor. He admittedly did not seek employment within the trade, deposit his travel card with the Union , or pay travel card dues to the Union thereafter for over a year. The record shows no contact by Richey with the Union until May 1982. About the first of May 1982 Richey reported to the hiring hall for the first time in over a year. On that day he signed up, giving his name , local, and classification to the clerical on duty. He did not deposit his travel card' 2 because, he testified, "You don't deposit your travel card until they call you in to give you the job." This testimo- ny is contrary to that of Coleman and Potts and is not credited as being a true reflection of the standard proce- dure. Rather, I find that travelers would frequently de- posit their travel cards with the Union , pay travel card dues, either weekly or monthly, and thereby obtain pre- ferred treatment over those travelers who chose to wait until offered referral before depositing their card . Indeed, Richey had followed the system as described by Cole- man for 43 months before he left the trade in February 1981 to pursue other interests . When he returned in May 10 Specific procedures for transfer are outlined in the UA constitution that Richey had not followed See G C. Exh. 2, sec 230. 11 The General Counsel tried to make much of the fact that Coleman did not explain to Richey the procedure for transferring into the local. G C Exh 51(D), however, indicates that Richey was well aware of the procedure required and even cited the appropriate sections of the consti- tution Nevertheless, he chose not to pursue his rights at the time 12 G C Br at 8 states that Richey deposited his travel card with the Union on reporting to the hiring hall in early May (citing Tr 826) The General Counsel is in error for on the cited page Richey specifically denied that he deposited his travel card PLUMBERS LOCAL 136 (SHAW CO.) 1982 he did not deposit his travel card as he had done before and was therefore denied the preferred treatment that he had received and that others received when they had their travel cards already on deposit. Richey's travel card was either revoked or expired sometime in 1982, ac- cording to Richey, but was later reinstated. Nevertheless, the supposed reinstated travel card was never deposited with the Union and according to the Union's records, Richey's union card was used in its stead. Regarding his attempts to obtain work at the Union's hiring hall in May 1982 and thereafter, Richey testified as follows: Richey reported to the hiring hall on May 1 after an absence of over a year and found groups of men standing around talking. He was not referred out that day. He reported to the hall May 2 earlier than he had the day before. He was not sent out that day either. The third day and every day in May thereaf- ter he reported between 10 and 15 minutes before 8 a.m. but was never sent out. During the first week in May Richey was always among the earliest five to eight individuals to arrive at the hall. Thereafter, for about a period of 2 weeks, he made it a point to be first on the daily list. Each day the office worker in charge of making the list would take the names of those who filed into the hall, the name of the local to which each belonged, his classification- plumber, fitter, or welder and would note whether or not the applicant had worked out of the local before. Each morning Richey provided this infor- mation which she wrote on a small pad of paper. Anywhere between the first and third or fourth day people were being referred out, both local perma- nent residents and travelers. In accordance with the usual custom, during these first few days in May, after everyone had signed in, the clerical would tell all the local people to go into the conference room. After the local permanent residents were referred, certain of the travelers sitting in the hall would be called in and referred out. Some were welders and some were travelers who had never worked out of the local before. Richey testified further: From May 5 to the end of May, roughly 70 trav- elers were sent out.13 After the end of May and throughout June, Richey only came to the hall from one to three times a week because he felt that Cole- man and Potts still held a grudge against him be- cause of the argument they had had back in No- vember 1980. During this period, he was sometimes first, sometimes last, and sometimes in the middle of the line but regardless of his place in the line he was not sent out, while in all there were from 100 13 The General Counsel points out correctly that certain named travel- ers were referred out on May 12 and 20 by Coleman and Potts while Richey remained on the bench All those named were classified as weld- ers. There is no evidence, however, that these individuals did not have their travel cards on file and if they did, they would have been given preference over Richey who did not I will assume that they did and that Coleman and Potts followed their usual referral procedure 853 to 130 travelers sent out during these 2 months. Several of these travelers would present their travel cards at the time they went up to the window but the cards would not be taken until they went back to get their referrals from Potts and Coleman. When Coleman and Potts were through referring travelers, those left in the hall were advised that there were no more jobs available and they left. By July Richey had decided not to return to the hall to seek referral. Under cross-examination Richey testified that he could not say whether or not other travelers were sent out before him on May 1 because he could not speak to spe- cific dates but only "in general time frames." He testified similarly regarding May 2 but added that he was at the hall every day that it was open in May but did not keep track of the number of travelers referred each day be- cause he did not realize what was happening to him, that they were jumping over him to send other travelers in- stead of him. On further cross-examination Richey agreed with the Union's counsel that May 1 was a Saturday and the hiring hall was closed on that day. Richey then further agreed that because the local's contract expired on May 1, no one at all was referred out that first week of May. At this point the Union's counsel offered documentation, which was received into the record and shows that no referrals except one were made from April 27 until May 10. Richey at this point admitted that much of his testi- mony concerning the referrals made during the first week in May was in error. Coleman testified that he could not recall if Richey re- ported to the hiring hall between March 1 and July 12, 1982, nor why he was not referred out during that period. Coleman could not recall the referral situation at that time nor could he think of any reason Richey would not have been sent out if he had been in the hall and had been qualified for referral to any particular job. In early June, Richey called his home local in Oklaho- ma City to discuss with his business agent the procedure for transferring from that local to Local 136. The busi- ness agent advised Richey to contact the International. On June 10 Richey contacted the International in Wash- ington, D.C., for the purpose of discussing grievance procedures and the possibility of transferring from Local 344 to Local 136. He spoke by telephone to one Stein, then followed up the discussion with a letter to the gen- eral president dated June 14 inquiring about transferring. In his letter, Richey advised the general president that he had lived within the jurisdiction of Local 136 from Sep- tember 1977 through September 1980 and had paid travel card dues for that entire period. He then described his argument of November 1980 with Coleman and Potts and how he was at that time referred to the 3-month job from which he was fired in February 1981. He then noted how he left the trade in February 1981 and worked with his son-in-law through April 1982. He then complained that although he had "signed up" every day during the month of May, Coleman never referred him out although between 100 and 150 referrals of other trav- elers were made during this period. He complained that 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coleman's failure to refer him was a result of the argu- ment, which occurred a year and a half before, in No- vember 1980. On June 25 Richey received a letter from the general president advising him that his correspond- ence had been forwarded to International Representative Oliver Dunn for handling. Dunn undertook an investiga- tion of Richey's situation, visiting Local 136, talking to Coleman and Potts, and checking the records. He ad- vised Coleman that Richey was not eligible for transfer because he did not have 3 years' continuous service. The pertinent paragraph of the constitution dealing with transfer rights states: (d) No transfer card shall be issued to a journeyman member unless also he has had a valid travel card on file in the Local Union to which he wishes to transfer for at least three years prior to his applica- tion for the transfer card. Regarding Richey's complaint, contained in his June 14 letter to the general office, that he was not being re- ferred, Dunn apparently spoke to Potts about it because on July 12 Potts engaged Richey in a conversation and asked him what the problem was. Richey replied that he had been sitting out front for 2-1/2 months trying to get a job. Potts was "extremely nice" and referred Richey out to a contractor named Schneider. In lieu of a travel- er's card, which apparently Richey no longer possessed, he deposited his union card. i 4 At the same time, accord- ing to Richey, he gave Potts his transfer card and stated that he wanted to transfer his membership to Local 136. Potts replied that he would have to get the okay from the general office in Washington. Potts later told Cole- man that Richey had presented a transfer card but Cole- man did nothing about it. On July 31 Dunn gave Richey a letter containing his findings regarding the investigation of the complaints contained in Richey's letter of June 14. In his July 31 letter, Dunn advised Richey that he had investigated his work record as reflected by the Union's referral cards and found that Richey had paid travel card dues for 43 months in a row up through 1980 just as he had claimed. He noted that Richey had claimed in his letter of June 14, 1982, that he had requested transfer to Local 136 back in the latter part of 1980 and then had gone to work for Angel Construction Co. (his son-in-law) after withdrawing his travel card. He pointed out that Ri- chey's letter of June 14, 1982, was the first the Interna- tional had heard about the November 1980 request for transfer and charged that Richey should have contacted the International Union when the problem first arose rather than 1-1/2 years later. He concluded that because Richey had withdrawn his travel card in February 1981 and had not paid travel card dues since that time, that is for almost 1-1/2 years, he had broken the continuity of service and was not eligible for transfer. (It would appear that sec. 230(d) of the AU constitution supports Dunn's conclusion and I so find.) Richey stayed on the Schneider job until September 3 at which time he was laid off. On September 10 he was 14 This is according to Coleman and to the Union's records notified by telephone by Potts to go back to work at Schneider where he worked until his layoff on October 22. Meanwhile, on September 9, Richey filed a charge in Case 25-CB-4986-2, a copy of which was served on the Union on September 10, the day of his second referral to Schneider. October 22, the day of Richey's second layoff from Schneider, was a Friday. He reported back to the hiring hall the very next workday, Monday, October 25. There were, however, no referrals that day. The next day Potts called Richey's home and told his wife that there was a job available. He was subsequently sent to work for B. F. Shaw in Rockport where he worked until he was laid off January 6, 1983. From the record it is perfectly clear that after Richey's return to the hiring hall in May 1982, after an absence of about a year, a number of permanent residents were referred to jobs while Richey received no such re- ferrals. This, however, was historically the case and was nothing new. The Union, through Coleman, takes the position that the purpose of the hiring hall provision in its labor agreement with the Association and other non- signatory contractors is to make certain that there is always a pool of qualified workers available from which the participating contractors can reliably draw with con- fidence. Coleman's position is that this purpose can best be effectuated by referring permanent residents whom he personally knows to be always available, reliable, and qualified. The practice then has been historically to give such permanent residents priority over travelers when referrals are to be made. The Board has long held that giving priority to certain referral applicants over others on the basis of geography to insure employment to those living permanently within the jurisdiction is a legitimate exercise of a local operating a hiring hall and is not vio- lative of the Act. Townsend & Bottum, Inc., 147 NLRB 929 (1964); Consolidated Gas & Service Co., 155 NLRB 850 (1965); Carpenters (Jamestown Metal), 194 NLRB 159 (1971). And Coleman's purpose of supplying permanent local residents on a priority basis to contractors doing business in the area in order to insure those contractors that they will have a pool of available, reliable, and qualified employees to choose from is merely the corol- lary to the proposition that a local may give priority to its permanent residents to insure them employment. Fur- ther, the Board has held that merely because the crite- rion of residence in the area can only be met by mem- bers of the respondent local is not a sufficient basis to warrant the conclusion that its motivation is necessarily discrimination based on membership in one local union rather than another. Plaza Builders, 134 NLRB 751 (1961); Carpenters, supra. Coleman testified that after referring all the permanent residents on the out-of-work list he then gives priority to those travelers who have their travel cards on file and that he does this because by their putting their travel cards on file they give notice that they are both avail- able, reliable, and "want to work." Further, by keeping their travel cards on file over a period of time these trav- elers give Coleman and Potts a greater opportunity to become aware of and judge their qualifications. Thus, the considerations behind Coleman's choosing to give PLUMBERS LOCAL 136 (SHAW CO.) priority to travelers with travel cards on deposit over those who do not have travel cards on deposit are simi- lar to those behind his giving the higher priority to per- manent residents . It appears to be merely a matter of degree. Travelers who deposit their travel cards with a local assure that local that they are not holding down jobs in other jurisdictions and are therefore reliably available to work within its area. This is a legitimate consideration and the Board has found it so. Townsend & Bottum, supra. Finally, travelers who deposit their travel cards with the Union also pay travel card dues that are used to defray the expense of running the hiring hall. Giving priority in referral to those travelers who are willing to pay such a fee on a nondiscriminatory basis is not violative of the Act. Operating Engineers Local 825 (H. John Homan Co.), 137 NLRB 1043 (1962). I am convinced that Coleman and Potts operated the Union's hiring hall in May, June, and July 1982 just as they had previously, giving lawful priority in referral first to permanent residents on the out-of-work list, then to travlers who had deposited their travel cards. There is no clear evidence in the record why Richey was skipped over in favor of referring other travelers. That is to say neither Coleman nor Potts could testify about any par- ticular reason for doing so at the time, granting that Richey was, in fact, at the hiring hall during this period as he testified. The General Counsel argues that Richey should have been considered as available, reliable, and qualified as any permanent resident because he had lived within the jurisdiction for 5-1/2 years. However, in No- vember 1980 when he had the necessary 3 years' resi- dence with his travel card on deposit, he chose not to pursue the procedures necessary to transfer into Local 136. He did not, at that time, request his home local to forward a transfer card to Local 136 when he had al- ready met the requirements of having his travel card on deposit for 3 years. Instead, after accepting one or more referrals as a traveler, he chose to withdraw his travel card, thus indicating to the Union that he was no longer available for referral. He then disappeared from the scene for over a year, putting into question his reliability. If after 15 months Richey showed up at the hiring hall, as he did, but did not deposit a traveler's card or seek to explain why he did not, it is understandable why Cole- man and Potts might choose to refer those individuals whom they considered more available and reliable before referring Richey. In doing so, I do not believe that the motivation was discriminatory. The General Counsel argues or at least infers that the discussion or argument that took place in November 1980 was the basis for the decision not to refer Richey in May, June, and July 1982. I reject this position for the following reasons: 1. The discussion or argument that occurred in No- vember 1980 resulted in Richey being referred out to a job that very day which lasted 3 months. If this dis- cussion/conversation/argument was that serious, Cole- man would not have referred Richey to a job immediate- ly thereafter and then wait a year and a half to discrimi- nate against him on job referrals in May 1982. 855 2. Between the November 1980 argument and July 1982, the subject of that discussion was never again al- luded to or mentioned by either Coleman or Potts. 3. Important changes in Richey's status took place be- tween the November 1980 incident and May 1982, which convinces me that these changes, i.e., from a steady, available, reliable, contributing traveler with his travel card on deposit to an absentee , nonreliable, noncontribut- ing individual, were the bases for any failure to refer him if, in fact, there can be said to have been a failure to refer in May, June, and July 1982. Having found no evidence that the November 18, 1980 discussion had anything to do with the Union's failure to refer Richey in May, June , and July 1982, I am inclined to recommend the dismissal of the allegation concerning the Union's failure to refer Richey inasmuch as the burden of proving the allegation, the discriminatory mo- tivation, is on the General Counsel, and the General Counsel has failed to prove this allegation . Sheet Metal Workers Local 20 (Employers Assn.), 233 NLRB 732 (1977). 2. Failure to refer Bob Boyd Boyd is a welder and fitter who lives in Evansville, but who owns a home in Benton, Kentucky. His welding experience goes back to 1947 and his plumbing experi- ence to 1954. He attended welding school for 7 months in 1955 and 1956. In December 1956 he bought a pipefit- ters book in Greenville, Mississippi, from Local 618 for $250. In 1959 he became a member of Local 798, Tulsa, Oklahoma, a pipeline local. In 1973 he lost his book for failure to pay dues. Subsequently, he paid $540 to the Greenville local to be reinstated and be put to work. After working in Greenville for 5 months, he went north. Boyd never went through an apprenticeship pro- gram nor took any test sponsored by any local of the AU, or by the city of Evansville.15 He failed welding tests in June 1976, April 1977, and August 1978, and quit jobs or was laid off for unsatisfactory work in August 1977 and July 1978.16 He was fired from a job in July 1981. According to Boyd he has been referred to the Gibson County jobsite eight times in the past 10 years. Since working within the jurisdiction of Local 136 Boyd has been referred to just about all the companies working in the area, including B. F. Shaw , Pullman Kellogg, Grin- nell, Foster Wheeler, Maaco, Crawford and Russell, In- dustrial Contractors, Petersburg Associates, Dieg Broth- ers, Helfrich, and B & W, and Webb Mechanical. Thus, from the record it is clear that over the years Boyd has received a number of job referrals through Local 136. is See sec 6 of the collective-bargaining agreement Although the Union argues in its bnef that one reason it did not refer Boyd was be- cause he was not qualified as a journeyman under the contract, I find this argument unpersuasive in light of the fact that the record shows that little attention was paid to these niceties by Coleman or Potts when refer- ring Boyd and other employees to jobs i a The Union, in its brief, argues that Boyd was unqualified and unreli- able However, the record indicates that failing welding tests is a common occurrence as is quitting I doubt that Boyd's history of employ- ment in these respects were controlling insofar as Coleman's decision to refer or not to refer him are concerned 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In May 1974 Bob Smith, Coleman's predecessor, re- ferred Boyd to the Texaco Refinery job to work for Bechtel. Since that time, according to Boyd, he has worked out of the Local 136 hiring hall off and on for the various companies listed, supra. However, during the same period of time he has also worked outside the Local 136 jurisdiction in California, northern Indiana, Arkansas, Kentucky, and Tennessee. Boyd testified that he had to travel around to get a job when there was nothing available through the Local 136 hiring hall. Since living in Local 136's jurisdiction Boyd has lived in four different apartments in Evansville, two or three apartments in Mt. Vernon, and has also lived in Mt. Carmel and Princeton. At the same time, apparently, he has owned and maintained a home in Benton, Kentucky, outside the jurisdiction of Local 136. In August or Sep- tember 1979 Boyd left a job with Pullman Kellogg within the jurisdiction to go to work in California, then returned to Evansville in May 1980. In May 1980 he went to the hiring hall but did not get any work. He therefore went over to Local 633 where he obtained a referral to a job, which lasted through June and July into August 1980. On returning to the jurisdiction of Local 136 in September 1980, Coleman referred Boyd to Webb Mechanical for a job. Boyd quit or was laid off at Webb Mechanical in November 1980. After failing to obtain a referral through the hiring hall following his ter- mination at Webb Mechanical, Boyd returned to Califor- nia and worked there through January and February 1981. In March he returned to the jurisdiction of Local 136 but failed to obtain a referral. He therefore again left the area, this time for Fort Smith, Arkansas, then to Rus- selville, Arkansas. In May Boyd again returned to Ev- ansville, but after failing to obtain work through Local 136's hiring hall he requested and received a referral through the Terre Haute local to a job in Marion, Indi- ana. While traveling around to Arkansas and elsewhere, Boyd did not maintain a household within Local 136's jurisdiction but rather kept some belongings there with a friend. Boyd worked in Marion until July 24, at which time he returned to Evansville. On July 26 he reported to the hall and was referred by Coleman to a job work- ing for Don Helfrich. Boyd worked on the job for 4 hours, then left to take care of personal business. The following day he was fired. In August 1981 Boyd attend- ed a pipefitter's convention, then once again went to the west coast to work. When he returned and failed to obtain a referral from Local 136 he went to work in Pa- ducah, Kentucky, and worked there, just 52 miles from his home, being referred to that job by Local 182 He worked on the Paducah job from September 1981 to Jan- uary 1982 during which time he came to Local 136's hiring hall a couple of times to see about referrals but was told on those occasions that there was no work. When the job in Paducah ended, Boyd again reported to the Local 136 hiring hall seeking referral. He reported to the hall between 1 and 4 days per week beginning in February and was usually among the first 10 applicants to arrive-sometime between 7:30 and 8 a.m. He noticed on these occasions, as freely admitted by Coleman, that local men were always sent out before him regardless of how much earlier he arrived at the hall before them and regardless of his place in line. He also noticed travelers being sent out before him even though he had arrived at the hall before them. He noted that some travelers were referred out to two or three jobs while he received no referrals at all. By July Boyd had decided that he was not getting the same number of referrals that the members of Local 136, the permanent residents, 17 were receiving so he decided to transfer into Local 136. On July 6 and 7 he obtained a transfer card from his home local in Vicksburg, Missis- sippi, along with the necessary letter18 from the business manager of that local advising "To Whom It May Con- cern" that Boyd was a member in good standing who was fully paid up in his dues and assessments. Mean- while, Boyd sought the advice of an attorney, Joseph Yocum, who advised him to deposit the transfer card with Local 136. On July 12 Boyd placed his transfer card, his travel card initially issued by the Vicksburg local on November 26, 1973, and issued again on January 7, 1982, by Local 184, Peducah, Kentucky, plus the "To Whom It May Concern" letter, described above, in a sealed envelope addressed to Coleman and presented it to one of the office workers at the Union's hiring hall. He told the clerical to give the envelope to Coleman but made no attempt to discuss the matter with Coleman personally. When Coleman received the envelope from the clerical, he checked the contents and mailed every- thing back to Boyd. Coleman testified that he sent the materials proffered by Boyd back to him because he did not know what to do with them. Coleman noted that there was no message included in the envelope along with the cards; there was no signed statement indicating that Boyd intended to permanently change and move "his domicile and residence" to Local 136's jurisdic- tion; i 9 and finally, Coleman was aware that Boyd, like Richey, had not kept his travel card on deposit with Local 136 for a full 36 consecutive months as required by the AU constitution and was therefore ineligible for transfer at the time. Further, inasmuch as the travel card was not accompanied by a travel card dues payment Coleman could not conclude that Boyd desired to depos- it his travel card in order to be given the priority ordi- narily given to travelers with their cards on file. Not knowing what to do with the cards, Coleman promptly returned them. This was on July 16. He testified that if Boyd had stayed around, he would have discussed the problem with him, but he did not. On July 26 Yocum wrote a letter to Coleman in which he noted that he represented Boyd and that Boyd had been having trouble depositing his travel and transfer cards with Local 136 He added that Boyd's "bona fides of this hope to transfer into Local 136" were enclosed and that Boyd had the necessary qualifications, had es- tablished his residence within Local 136's jurisdiction, 19 Although Boyd had lived in Local 136's jurisdiction for 10 years, off and on, and has rented various apartments, as noted above, and kept clothes and other personal belongings at the home of a friend, he never registered as a voter or indicated in any other way that he was or intend- ed to be a permanent resident 18 The letter required by the AU constitution regarding transfers 19 A requirement under sec 230 of the AU constitution PLUMBERS LOCAL 136 (SHAW CO.) and since 1974 had worked under the Local 136 agree- ment. Yocum concluded his letter by stating that Boyd was qualified to have his cards deposited and requesting that Coleman do what he could to see that he be permit- ted to become a member of Local 136. On receiving Yocum's letter Coleman immediately re- ferred it to the Union's counsel, Sidney Berger. In the meantime, however, a big job opened up during the last week in July. It was the GE shutdown and Industrial Contractors was hiring a large number of employees for this work including many welders. Coleman testified that although he could not recall whether Boyd had been sent out between March 1 and the last week in July, he could recall that on the occasion of the GE shutdown there were large numbers of applicants for referral in the hall and that Boyd was among them. Coleman stated that he referred out a number of those present but when he went out into the hall to refer Boyd, he had already left. 20 Not having been referred out of the hall for several months, the last time Boyd visited the hall was August 9. On August 10, however, Berger wrote a letter to Yocum in reply to Yocum's earlier letter to Coleman. In it he denied that the Union had refused to permit Boyd to de- posit his travel card, pointing out that he had, in fact, done so on numerous occasions in past years. Berger stated further: However, Mr. Boyd is not eligible for transfer into Local 136 because he has not complied with the requirements of the UA Constitution and ByLaws which require that in order to be eligible for transfer, Mr. Boyd must have a valid travel card on file in Local 136 for at least 3 years prior to his application for transfer. Mr. Boyd withdrew his travel card from Local 136 on July 31, 1981, and therefore is not eligible for transfer. With reference to your statement that others have been referred to work, Mr. Boyd has also been referred to work on numerous occasions by Local 136. Therefore there is no foundation for Mr. Boyd's complaint. After receiving Berger's August 10 letter, Boyd again left Local 136's jurisdiction to go home to Kentucky to sell his house and did not return to the Evansville area until later in the month. During this period Coleman un- successfully attempted to contact Boyd by telephone to refer him to a job. On his return to Evansville, Boyd, on August 27, filled out a charge form that was docketed September 3 in the Indianapolis Regional Office of the National Labor Relations Board. The charge alleged that the Union discriminatorily refused Boyd's transfer of 20 Foreman Charles Mullemx, an employee of Industrial Contractors, testified that during the GE shutdown and the hiring of welders for that job, Boyd's name was discussed by management personnel as a possible hire The superintendent and general foreman decided that they did not wish to hire Boyd because they had had problems with him on previous jobs Coleman testified that he would have sent Boyd anyway despite management's objection, had Boyd been present 857 membership and discriminatorily refused to refer him for hire to various contractors. Following the filing of the charge and while it was still pending, Yocum, on September 17, wrote the fol- lowing letter to Coleman over Boyd's signature: Dear Sir and Brother: I do not wish to cause anyone any trouble, and I am loyal to our Union and its principles, but all I have is my trade and without work, I am just out of luck. I have many financial responsibilities, and this just adds to my problems. So as to avoid any problems at the Hall and yet to make it clear I wish to work, I am writing this letter to ask, due to the circumstances, that I be given consideration for work. I have worked out of Local 136 in the past, and am sure my work shows I am qualified to do a good job for any contractor you refer me to from the Hall This letter is notice of my availabilty for work. Sincerely yours, /s/ Bob L Boyd As a result of Boyd's letter, Coleman on September 22 sent the following mailgram to Boyd. Dear Sir and Brother: We have been unable to contact you by phone. If you would like to go to work, please report to the Local 136 union hall September 24, 1982. Fraternal- ly, Clarence E. Coleman, Business Manager Local 136. Coleman credibly testified that but for the letter he would not have offered to refer Boyd because he did not, at the time, have his travel card on deposit. If Boyd had had his travel card on deposit (and had paid his travel card dues), Coleman stated, there would have been no problem with considering him for referral. Though Coleman's mailgram of September 22 request- ed Boyd to report to the Union's hiring hall on Septem- ber 24, he did not do so because he was back in Ken- tucky once again trying to sell his house and apparently did not get the message. When he finally did get back to Evansville and got the message, he went to the hiring hall to talk to Coleman. This was on September 29. When Boyd arrived at the hall Coleman asked him where he had been and whether he was ready to go to work. Boyd replied that he had been out in the hall for 8 months, 1 to 4 days a week, signed up and waiting for referral. Coleman replied that he did not know where Boyd had been, that he and his travel card had been in and out of the hall like a yo-yo. Coleman then noted that Boyd had brought charges against the Union for not re- ferring him and for not permitting him to transfer into the Local. He advised Boyd that in order to transfer into the Local, an individual would have to maintain his travel card on file for 36 consecutive months. He then offered Boyd a referral to a job with B. F. Shaw which Boyd accepted. While in the process of referring Boyd to the job he asked Boyd to consider dropping the 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges because he felt there was no basis for them.21 Boyd did not reply. Coleman then wrote out the referral to the B. F. Shaw job in Gibson County. Boyd went to work for Foster Wheeler on September 29. On October 1 he went to Yocum and told him to drop the charges against the Union. On the same date Yocum filed a withdrawal request that was approved by the Regional Director on October 14. Meanwhile Boyd reported to work at the Gibson County job as a welder but only remained on the job for 4-1/2 days after which he quit because he was being harassed by fellow employ- ees. There is no evidence in the record that either the Union or its officials were behind this harassment. Nev- ertheless, Boyd called Coleman and told him about the problem. Coleman promised to send Boyd to another job, in Rockport, which he did, on October 12 or 13. Boyd worked there again for B. F. Shaw as a welder but after a day and a half failed the welding test. After fail- ing the test, Boyd called Coleman and told him about it. Coleman offered to send Boyd back to B. F. Shaw as a fitter. Boyd accepted the referral and reported to B. F. Shaw where he worked until January 1983. The above facts indicate that Boyd like Richey re- ceived a certain number of referrals but far fewer than did those applicants who were permanent residents and fewer than those travelers who had their travel cards on deposit. The Union's reasons for giving priority to these categories of referral applicants have already been dis- cussed and I have found them to be legitimate nondis- criminatory reasons for referring individuals in those cat- egories over Richey. On the same basis and for the same reasons I find that the Union's decision to refer those preferred individuals over Boyd was not violative of the Act. Similarly, I find that the Union's insistence that Boyd deposit his travel card and pay travel card dues for 36 months before being considered for transfer was a le- gitimate exercise of it rights under the AU constitution and was not discriminatorily motivated. 3. Failure to refer Chester Ness Chester Ness has been working in the trade since 1957 doing plumbing, fitting, and welding. He worked in the 1960s at various construction sites throughout the coun- try on permit through various locals. He was not then a member of any union. In the mid-1960s Ness became a member of the local in Kokomo, Indiana, which merged with Local 440, Indianapolis in 1975. Ness never served the 4-year apprenticeship to become a journeyman plumber or fitter but took a plumbing and steamfitting test at the time he joined the Kokomo local in the late 1960s. Ness is licensed by the State of Indiana and took a test to obtain this license. He never took tests given by Local 136 nor by the city of Evansville but has taken tests in various localities throughout the country when required to do so. In 1973 Ness moved to St. Francis- ville, Illinois, within the geographic jurisdiction of Local 136 where he has maintained a residence ever since. 21 Boyd testified that Coleman stated that if Boyd would drop the charges, Coleman would work with him any way he could and whenever he could, implying a quid pro quo offer Coleman denied that he attempt- ed to make such an arrangement I credit Coleman Though he lives within the jurisdiction of Local 136, he has remained a member of Local 440, working out of In- dianapolis on travel card. Ness was working out of Evansville as early as 1970 even before he moved to St. Francisville. There was usu- ally plenty of work and Local 136 treated him very well, according to his own testimony. He received quite a few referrals through that local, working for ITT, Grinnell, Pullman Kellogg, Foster Wheeler, Power Process Piping, and others, always as a fitter, though he did some welding on the job occasionally. In 1977 or 1978 Ness approached Coleman about transferring into Local 136. Coleman told Ness that in order for a traveler to transfer in, he would have to have 5 years'22 travel card receipts. He told Ness to bring in his receipts. Ness did so and showed Coleman some re- ceipts for travel card dues that he had been paying over the previous years, some to Coleman but mostly to Cole- man's predecessor. The collection of receipts, however, were not complete. There were no receipts for certain months. Ness explained that on certain occasions he had paid the previous business manager by cash at his home and would receive referrals there but would not in these instances receive a receipt for the money paid for travel dues. Though Coleman undertook an investigation of sorts,23 it could not be proved that Ness had paid a suffi- cient number of consecutive months' travel dues to qual- ify for transfer of his membership into Local 136. A few days after this discussion, Ness returned to the hall where Coleman told Ness of his unsuccessful efforts to track down where Ness had worked during the periods not covered by existing receipts. He also advised Ness to follow up on the matter to see if he could obtain some proof of having worked in the area during the periods in question and told him that he would take it from there. Coleman offered to take the matter up with the execu- tive board and discuss it with them but Ness replied, "No problem, forget about it!" The matter was dropped. When Coleman became business manager in 1977, the practice of issuing referrals for cash was discontinued. Nevertheless, Ness still did not manage to maintain his travel card on deposit for the necessary 36 continuous months because he withdrew it each time he went on va- cation in order to avoid having to pay dues. Vacation was earned by working a certain number of hours each year and the very fact that Ness earned vacations in 1977, 1978, and 1979 indicates that he was receiving a sufficient number of referrals to keep him working stead- ily. In 1980 Ness changed his relationship with Local 136. Whereas in previous years he had his travel card on de- posit on a fairly continuous basis except for vacation pe- riods, after October 1980 Ness decided not to put his 22 The constitution was changed in 1981 to require only 3 years' travel card receipts. Za Ness listed for Coleman the contractors for whom he worked during the periods for which he had no receipts Coleman checked the Union's books to confirm that these contractors were in the area at the time He also asked Ness the names of the general foreman , steward, and fellow employees with whom he worked Ness told him but when the records were checked neither Ness' name nor the names of alleged fellow employees showed up in the records PLUMBERS LOCAL 136 (SHAW CO) travel card on deposit until after he was referred to a job and there is no evidence he paid any travel card dues after that month.24 Thus, Ness voluntarily withdrew from the priority category of regular dues paying travel- ers who kept their travel cards on file and joined those who would wait for a referral before depositing their travel card. From a comparison of what had occurred before and after the voluntary change in his relationship with Local 136, it is apparent that when he deposited his travel card and paid dues on a regular basis, Ness ob- tained many referrals and when he stopped depositing his card and paying dues on a regular basis he received far fewer referrals. I perceive a cause and effect here and conclude that the failure of Ness to deposit his card and pay his travel card dues resulted in his failure to be re- ferred. To analyze the latter period more closely, the record indicates that in January 1982 Ness began work- ing in Robinson, Illinois, outside Local 136's jurisdiction, at the Marathon Refinery for Bechtel Corporation. He worked on this job until his layoff on March 12, 1982. Within 2 or 3 days of his layoff at Marathon, Ness went to work for Sheehan Pipe Line Construction Company and worked there for 7 days. Within 2 or 3 days of his layoff from Sheehan, Ness went to work at the same re- finery for J. L. Allen and continued working for Allen until April 15, 1982, at which time he was laid off. Thus, for all of 1982 up until April 15, Ness worked out of, de- posited his travel card with, and paid dues to a local other than Local 136, namely, to Local 157. He appar- ently had little or nothing to do with Local 136. Following his layoff from J. L. Allen on April 15, Ness went to the Local 136 hiring hall to seek referral. He showed up once or twice each week, showing up first or close to first every morning each time, but re- ceived no referrals. He therefore went to Marble Hill, to a field office in New Washington, Indiana, of Local 157, Terre Haute where the business agent referred him to a job on May 8. At Marble Hill Ness went to work for Cherne Contractors. Throughout June and July Ness would visit the Local 136 hiring hall once or twice to obtain referral, at the same time holding down his other job outside Local 136's jurisdiction. His visits to the Local 136 hiring hall were made possible because his other job was outside and when it was rained out, he was free to apply at Local 136's hiring hall. On July 23 or 24 Coleman was advised that there would be a shutdown at the GE plant requiring a major referral of over 100 employees on July 26. By previous arrangement the hiring hall was opened up early on July 26 at 6 a.m. in order to have time to refer the employees out and have them report to the job by 8 a.m. as the contractors required. On July 26 there were a lot of men dispatched out of the hall in connection with the GE job. Coleman could not recall seeing Ness among those present on July 26 but testified that if he had been there, he would have been dispatched as would Richey and Boyd because Coleman sent everyone who was avail- 24 The record contains no travel card dues receipts for Ness after Oc- tober 1980 although it does contain receipts for all but a few months for the period 1976-1980 859 able.25 He did not contact Ness by telephone because he did not have his travel card on deposit. 26 Coleman called other locals to have them send additional help for the GE project and by July 28 had referred everyone. Ness testified that he was present in the hall on July 26 and that all of the travelers were sent out except himself although he had been the first one on line.27 Then Potts stuck his head out of the door and said, "That's it!" so that Ness was the only one present who was not sent out. According to Ness some of the travelers referred out on July 26 had their cards on deposit and some did not. He testified that he knew that some of them did not have cards on deposit because they told him so. 28 Some of the travelers sent out this day had never before been referred out of Local 136. In September 1982 Ness was working at Marble Hill, on a travel card deposited with Local 157. Prior to this date Ness had been working the same way out of Local 157 but when his job was weathered out because of rain or snow, he would go to Local 136's hiring hall to see what else was available. In September Ness was termi- nated at his Marble Hill job, but was hired within 4 days by Bechtel to work, once again, at Marble Hill. Shortly thereafter, Ness was again terminated, and this time re- ported to Local 136's hiring hall for referral within 2 days of his termination by Bechtel. This was on Septem- ber 16 and he was in line at the Local 136 hiring hall before the hall opened though he was not first in line. A number of local members and several travelers were there before him. Nevertheless, he got into the hall first and was placed first on the list. As it turned out, only local residents were sent out, but no travelers. The fol- lowing day, Ness signed up again first. This time, after local permanent residents were referred out, certain trav- elers were referred out including those who arrived at the hall after Ness. Following, September 17, Ness re- ported to the Local 136 hiring hall for referral every day throughout the rest of September, all of October, and early November,29 usually first, but never further back than fifth or sixth. Regardless of his place in line, others both in front and behind him were sent out to jobs whereas he was not. On one occasion the hall was cleared but Ness remained behind in the hall without re- ferral. During this period, according to Ness, there were openings but he was not referred and on more than one occasion both Potts and Coleman told Ness that he 25 Some applicants who reported on July 26 were not sent out until July 27 or 28 Coleman tried to save some jobs for regular travelers who frequently deposit their cards with Local 136 In this sense he gave fa- vored treatment to these people over occasional travelers 26 As noted earlier Coleman does not refer applicants unless their travel cards are on deposit This is to prevent a man from holding down more than one job at the same time If Ness had his card on deposit in Terre Haute or Marble Hill he would not be eligible for referral out of Local 136 27 Ness reported to Local 136's hiring hall on July 26 though he was still employed at Cherne because he had heard in advance about the GE shutdown and knew that there would be a good deal of overtime avail- able if referral was obtained 28 There were no witnesses called to substantiate Ness' testimony on this point 2s Twice during this period Ness telephoned rather than report in person, but with the same result 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might as well pick up his travel card" because they would not be sending him out for a month or so. Cole- man testified that there was no particular reason he would not send Ness out ahead of other applicants but would not send him out if in Coleman's opinion Ness were not as qualified as the others for a specific job. In October Ness continued to report to the Local 136 hiring hall. Frequently first in line, the secretary taking names of applicants for referral often put Ness' name down in the middle of the list. When Ness brought this fact to her attention the secretary merely shrugged and ignored him. During this period Ness looked for work everywhere. Though he found jobs in different places he could not afford the journey. On October 30 Ness mailed in the charge in Case 25- CB-5022-2 charging the Union with a refusal to refer him. The charge was docketed and served on the Union November 5. On November 8 or 9 the hall was fairly crowded. The permanent residents were called back and referred out first, as usual. Ness was sitting in the hall. All of a sudden Potts called Ness' name along with sev- eral others. They were brought to the back offices where they were asked if they wanted to work. All agreed that they wanted to work. Ness then deposited his card and was referred out to Industrial Contractors. Two of the other men referred out with him had been, according to the records, just laid off the week before while he had been out of work for several weeks. The job to which Ness was referred lasted 9 days, after which he returned to the hall for further referral. This was on November 23. On November 23 when Ness visited the hall there were only three or four applicants for referral present. Shortly after Ness signed up, Potts came out to the lobby and asked Ness, "Do you still have those charges against the local?" Ness replied that he did, whereupon Potts rejoined, "I ain't got nothing for you." Ness left. Inasmuch as no one was referred out that day, however, I do not read into Pott's statement any inference of dis- criminatory intent. Later during the week of November 23 Ness again vis- ited the hiring hall. He was sitting in the lobby after Coleman and Potts had called the members of the local, i.e., the permanent local residents, into the back room for referral and had sent them out. At this point Coleman came out into the hall where Ness and other applicants for referral were standing around. Coleman said that he did not have any work and would not be sending anyone out. Then, according to Ness, Coleman looked at him and said that he might as well pick up his travel card. He added that Ness could go outside the side door if he wanted to and watch how many referrals Coleman sent out. Ness was not referred that day. Ness was never sent out thereafter, even though he went to the union hall throughout November and December. From the credited testimony of Ness it is clear that Coleman was aware that Ness had been keeping track of 30 I do not credit Ness' testimony on this score because the record in- dicates that his travel card had not been deposited and there was thus nothing for him to pick up He did not deposit his card until he was re- ferred to a job on November 8 or 9. the number and circumstances of referrals made by Cole- man and Potts. It is equally obvious from Coleman's remark that he was annoyed with the fact that Ness was keeping tabs on his referrals and had filed a charge against the Union. One might conclude from the evi- dence of Coleman's demonstrated annoyance that Ness' later failure to be referred was a product of such annoy- ance and therefore discriminatorily motivated. However, because the activity engaged in before the incident and after was the same, I cannot find the necessary cause- and-effect relationship to conclude that a violation oc- curred. Throughout December 1982 and January 1983 Ness would report to Local 136's hiring hall whenever his other full-time job within Local 157's jurisdiction was weathered out. Nine times out of ten, Potts would come to the door and say nothing was available and Ness would not receive a referral. On those days that he re- ported to the hall, other people were referred out. They may, according to Ness, have been travelers or they may not have been. As of February 14, 1983, Ness began working out of Grissom Air Force Base, a job he obtained through his home local, Local 440. That local, of course, has his travel card. I conclude that Chester Ness was not referred out by Local 136 who favored local permanent residents over him in the referral of jobs because they were more avail- able and reliable than he was. I find such preference to be lawful. Similarly, I conclude that Chester Ness was not referred out by Local 136 who favored travelers with their travel cards on deposit over him in the refer- ral of jobs because they were more available and reliable and because they were willing to contribute financially to the maintenance of Local 136's hiring hall by paying travel card dues. I find this type of preferential treatment to be also lawful. In short, I find that a local may give priority in referral to certain individuals because they are permanent local residents and/or because they have shown in the past that they are more often available and therefore more reliable and/or because they are willing to contribute financially to the local's existence by plac- ing their travel cards on deposit and paying dues in ad- vance of receiving referrals. Inasmuch as these are the bases for the actions taken by the Union in the instant case, they are not in violation of the Act and I recom- mend that the allegations concerning the refusal of the Union to refer Richey, Boyd, and Ness be dismissed. 4. Failure to refer other employees The consolidated complaint alleges that the Union failed and refused to register for referral and to refer "many other employees whose names are unknown to [the Regional Director], but well-known to the Respond- ent." In order to prove this allegation the General Coun- sel subpoenaed and placed in evidence the available records of the Union, documents numbering in the thou- sands, the purpose being to reconstruct the out-of-work lists and thereby show a pattern of discrimination against many applicants for referral. Counsel for the General Consel promised to attach these reconstructed out-of- PLUMBERS LOCAL 136 (SHAW CO.) work lists as an appendix to his brief. He cautioned how- ever: "It may turn out [that] if I find that that is either fruitless or such a Herculean task that its impossible to do, then I will simply refer to the inconsistencies in the documents to prove parts of my case." Counsel for the General Counsel attached no reconstructed out-of-work lists nor any other similar appendices to his brief. I con- clude that the task of reconstructing the out-of-work lists turned out to be, as he foresaw, either fruitless or too Hurculean to undertake. In either case no pattern of dis- crimination was proven by the proposed method. More- over, counsel for the General Counsel in his brief did not point out any inconsistencies in the documents sufficient to warrant a finding that a pattern of unlawful discrimi- nation exists. What counsel did was to decry the fact that the Union does not keep adequate records sufficient to enable counsel to prove his case. I agree with counsel and sympathize with him. However, the Board has said- While written rules or standards for the referral of employees and written records showing the actual referrals made are certainly relevant evidence as to whether Respondent used objective standards, it is conceivable that a union could prove by means of other evidence that it had consistently used ob- jective standards for the referral of employees with- out having established any written rules or kept any written records. Therefore, we would not find that a union's failure to keep written records or to use written rules in referring employees would, standing along, constitute a violation of Sec. 8(b)(1)(A) and (2) of the Act.31 In other words, if the Union does not wish to maintain its daily records of referrals it need not do so. The General Counsel also argues quite correctly that the subjective criteria used by Coleman and Potts in de- termining who to refer leaves the referral system open to all kinds of abuse. However, it is not within the province of the Board to design or redesign the system or lack of system that a particular local may use in operating its hiring hall. The Board is confined to determining wheth- er unlawful discrimination has in fact been practiced.32 If strict rules of operation are to be required of a local in the running of its hiring hall, it is up to the legislature, not the Board, to provide such.33 Coleman's and Potts' referral practices did not fit any particular pattern. In making referrals they considered an individual's availability, dependability, and regularity of service as well as competancy. These are all nondiscrim- inatory considerations in determining the order of refer- ral.34 Similarly, great weight was given by Coleman and Potts to whether or not an individual maintained his card on deposit and paid traveler card dues. This too has been found to be a legitimate nondiscriminatory consideration by the Board.35 The application of those criteria by 11 Laborers Local 394 (Wakil Abdunafi), 247 NLRB 97 fn 2 (1980) 32 Teamsters Local 357 v NLRB, 365 U S 667 (1961) 33 Ibid 94 NLRB v. News Syndicate Co, 365 U S 695 (1961) 35 Operating Engineers Local 825 (H John Homan Co.), 137 NLRB 1043 (1962) 861 Coleman and Potts resulted in the creation of two cate- gories of priorities, first, permanent residence36-a cate- gory coextensive with membership in the Union, and second travelers with their travel cards on deposit and dues paid up. Because it is quite possible, by following the steps outlined in the AU constitution to be placed in the permanent residence category, or by depositing one's traveler's card and paying dues thereon to be placed in the secondary category, the requirements cannot be con- sidered discriminatory. Inasmuch as counsel for the the General Counsel did not prove that any individuals were treated differently or discriminatorily by the application of the above criteria or by the categorization, and this is his burden, Sheet Metal Workers Local 20 (Employers Assn.), 233 NLRB 732 (1977), I shall recommend dismis- sal of the allegation concerning the failure to refer "other employees." 5. The layoff of Boyd and Richey Coleman testified that the Union does not get involved in management decisions regarding layoffs. Management decides who it will lay off and when. If there are to be more than two employees laid off management is sup- posed to give 24 hours' notice. Sometimes the foreman decides which employees will be laid off. The layoff has nothing to do with seniority. The company has the option of keeping or laying off whomever it chooses in any order it chooses. Occasionally a company will ask Coleman to send out a particular individual whom it wishes to be a foreman on a job and Coleman complies with such requests. It is the General Counsel's position that it is the union affili- ation of these supervisors that results in the laying off of travelers before local union members. This broad charge is, however, denied by witnesses37 for the Union as are accusations by the General Counsel's witnesses that on many occasions travelers have been asked to drag up (quit) to enable union members to continue to work. Be- cause these charges are not alleged per se in the com- plaint, however, I shall make no finding concerning them. I note, however, that the Supreme Court has ruled that the fact that foremen are in charge of hiring and firing and by contract must be union members does not automatically give rise to a presumption of discriminato- ry motivation.38 Consequently, I find that the evidence in the record is insufficient to warrant the conclusion that the layoffs of Boyd and Richey, which are, in fact, alleged in the complaint, were part of a larger pattern of 36 The General Counsel argues that permanent residence equates to maintaining a local address over a long period of time The Union main- tains that the term means something more-a willingness to make oneself reliably available to be part of the labor pool from which referrals are made The Union's definition precludes individuals such as the Charging Parties who, though they have local addresses, refuse to demonstrate their dependability by keeping their travel cards on file and paying travel card dues 37 Witnesses for the Union who have served as foremen and general foremen testified about the various criteria they use in determining which employees should be kept and which laid off They stated that their posi- tions as members of management rather than as union members or offi- cers are controlling when deciding on layoffs 38 NLRB Y News Syndicate Co, supra. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination against travelers in general resulting from the union affiliation of certain members of management. Concerning the particular circumstances surrounding the layoffs of Boyd and Richey by B. F. Shaw on Janu- ary 6, 1983, which are the specific subjects of the allega- tions contained in the complaints, the record indicates that Coleman referred both Richey and Boyd to the B. F. Shaw job the previous fall. Both performed satisfacto- rily on the job so far as the evidence indicates. On Janu- ary 5, 1983, Boyd was working for Joey DeTalente. About 1:45 p.m. DeTalente came over to Boyd and said that there was going to be a layoff and that Boyd was in it. Boyd asked if his work had been satisfactory and De- Talente replied that it was. No reason was given to Boyd by DeTalente for his layoff. Richey, just prior to his layoff, had been engaged in pulling copper. On January 5 Richey's superior, Burden, advised him that he was among those included in the layoff. Richey asked Burden if there was anything wrong with his work. Burden replied that Richey had been doing a great job. Richey then asked why he was being laid off. Burden replied that he did not have anything to do with the decision to lay off Richey, that the order had come from the front office. Richey and Boyd both turned in their tools and left the job. Altogether four em- ployees were laid off that day including Boyd, Richey, one member of Local 136, and another traveler. On January 6 Richey went to Potts and told him that he had been laid off when, in fact, someone else should have been laid off rather than himself. Potts advised Coleman of Richey's complaint and Coleman went out to the jobsite to investigate. He talked to the assistant project superintendent Bob Carter, who gave him the names of four additional people to talk to. He spoke to three of the four39 and was advised that Richey had been working on a crew pulling copper tubing, that there were five welders on the crew, and the welders were no longer needed. It was therefore decided that Richey should be laid off because he was the last welder on the crew. Coleman denies that he had anything to do with the decision to lay off Boyd and Richey. Although both Coleman and Potts were seen on the jobsite at different times before the layoff, I find this fact of little probative value inasmuch as both, as officers of the Union, would have legitimate reasons for being there, unrelated to the layoffs in question, i.e., the handling of grievances. I rec- ognize also that at the time of their layoffs both Boyd and Richey had outstanding charges against the Local, which would afford the Union a motive for seeking their termination. Despite this fact, however, I find no evi- dence in the record of the Union's complicity in B. F. Shaw's decision to lay off Boyd and Richey and recom- mend dismissal of this allegation. 6. Richey's request to the Union for information On September 9 Richey filed his first charge against the Union alleging that it discriminatorily refused to refer him for employment. On October 21 Richey wrote 89 The fourth was not available at the jobsite a letter to the Union'40 to Coleman's attention, in which he requested copies of the out-of-work lists, referral records indicating applications for referrals, and referrals made during the period May 1 through July 12 together with an explanation about the basis on which referrals were made. Although Coleman had the requested materi- als on hand at the time Richey hand carried the letter to the union hall, he refused to make them available and thereafter sought counsel from the Union's attorney about what to do about the request. On October 26 Coleman wrote to Richey replying to his request of October 21. In his letter, Coleman in- formed Richey that he was seeking advice of counsel and would reply to Richey's request after obtaining advice from his attorney. On October 27 Richey filed a second charge in which he alleged as violative of the Act, the Union's refusal to provide the information re- quested. On November 9 Coleman wrote to Richey call- ing into question Richey's "good faith" in filing the charge against the Union before he had a chance to obtain legal advice and implicitly refusing the requested information on those grounds. Subsequently, in accord- ance with the Union's standard procedure, the requested out-of-work lists were discarded. The Union, in its brief, acknowledges that under Board rulings,41 it is required to make its work referral records available for inspection at reasonable times and under reasonable circumstances. It argues, however, that in the instant case the Union is justified in refusing to furnish the requested documents because it "was obvi- ously an improper attempt to assist the General Counsel in the prosecution of the complaint, rather than a good faith effort to obtain information which any applicant to the hiring hall is entitled to.,, I disagree with the Union's position. It appears that when the Union gave no indication that it intended to comply with Richey's request for the information to which he was entitled, Richey filed his second charge al- leging the refusal. The charge, far from indicating an ul- terior motive, was clearly supportive of his initial request and reflected a serious intent to pursue his rights under the law. Moreover, the Union's position, that Richey ini- tially had a right to inspect the referral records but waived those rights by filing a charge, is clearly unten- able for it would result in depriving the Charging Party of vested rights because he pursued those rights through the use of Board processes. The Board would undermine its own existence if it punished charging parties for filing charges. I find that the Union, by refusing to provide Richey with the information to which he was entitled, violated Section 8(b)(1)(A) of the Act.42 On the foregoing findings of fact, and on the entire record in the case, I make the following 40 Richey was advised by a Board agent of his right to this informa- tion The Board agent apparently helped draft the request 4' Operating Engineers Local 324 (Michigan Chapter), 226 NLRB 587 (1976). 42 Ibid I I PLUMBERS LOCAL 136 (SHAW CO.) CONCLUSIONS OF LAW 1. Employing Plumbers and Steamfitters and Air Con- ditioning and Refrigeration Contractors of Evansville, Indiana, and its employer-members are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is now, and has been at all times materi- al, a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to provide Jerry D. Richey with copies of its out-of-work lists, referrals, and other records re- flecting all applications for referral from its hiring hall as lawfully requested by him, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that the Union unlawfully refused to provide Jerry D. Richey with the information described above in Conclu- sion of Law 3, I shall recommend that, on request duly made, it be ordered to do so. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed43 ORDER The Respondent, Local No. 136, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Evans- ville, Indiana, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to provide Jerry D. Richey with copies of its out-of-work lists, referrals, and other records reflect- ing all applications for referral from its hiring hall. (b) 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. 43 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 863 2. Take the following affirmative action necesssary to effectuate the policies of the Act. (a) On request, provide to Jerry D. Richey copies of its out-of-work lists, referrals, and other records reflect- ing all applications for referrals from its hiring hall. (b) Post at its main office and hiring hall in Evansville, Indiana, copies of the attached notice marked "Appen- dix."44 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by authorized representative of the Respondent Union, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members or applicants for referral are customarily posted. Reasonable steps shall be taken by the Union to ensure that the no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 44 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 " 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to provide Jerry D. Richey with copies of our out-of-work lists, referrals, and other records reflecting all applications for referral from our hiring hall. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, provide Jerry D. Richey with copies of our out-of-work lists, referrals, and other records reflecting all applications for referral from our hiring hall. LOCAL No. 136 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA