Local Union 460 Of The United Association Of Jour-Neyman And Apprentices Of The Plumbing And Pipefitting Industry Of The United States And Canada (Mcauliffe Mechanical, Inc., Et Al.)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 460 of the United Association of Jour- neyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (McAuliffe Mechanical, Inc., et al.) and Stanley Wayne Helvey and Rex J. Adams and Chris Wirth. Cases 31-CB-6234, 31-CB-6238, and 31-CB-6246 22 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 24 February 1986 Administrative Law Judge Harold A. Kennedy issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Homer T Ball Jr., Esq., for the General Counsel. Eugene Miller, Esq., of Seaside, California, for the Re- spondent. DECISION STATEMENT OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge. This matter was initiated by charges filed by three indi- viduals, Stanley Wayne Helvey, Rex J. Adams, and Chris Wirth, against Respondent Local Union 460 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Local 460 or the Union). In a con- solidated complaint issued on 30 July 1985 Respondent is charged with violating Section 8(b)(1)(A) of the National Labor Relations Act by dispatching persons listed on its seniority lists without first offering the positions to others holding more senior positions on the lists.' The legality of two union dispatches are in issue-the dispatch of a welder for a 1-day job on 2 May 1985 to McAuliffe Mechanical, Inc., in Palmdale, California, and the dispatch of a fitter to a 6- or 7-day job at the Alma- den Refinery in McFarland, California. The case was heard by me in Bakersfield, California, on 1 October 1985. Respondent admitted virtually all the allegations of the complaint. Respondent conceded jurisdiction by agreeing 280 NLRB No. 136 that an official of McAuliffe Mechanical Inc. would, if called, testify that the Company is a California corpora- tion with a place of business in Palmdale, California, where it is engaged in business as a plumbing and me- chanical contractor; also, that in the past 12 months the Company had provided services valued in excess of $50,000 for the Navy and Air Force and that such serv- ices have a substantial impact on the national defense. Respondent specifically admitted in its answer the fol- lowing: 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Laurence Henry and Don Park have acted as "agents" of Respondent within the meaning of Section 2(13) of the Act. 3. The Plumbing and Mechanical Contractors Associa- tion of Kern, Inyo, and Mono Counties, Inc. (the Asso- ciation) is an employer association, which admits to membership employers in the building and construction industry, including McAuliffe, and exists, in part, for the purpose of negotiating, executing, and administering mul- tiemployer collective-bargaining agreements on behalf of its employer-members with the collective-bargaining rep- resentative of their employees, including Respondent. 4. Respondent and the Association have been parties to a collective-bargaining agreement covering wages, hours, and other terms and conditions of employment of certain of the Association's employees, which agreement by its terms is effective from July 1, 1984, to June 30, 1987. 5. Pursuant to the collective-bargaining agreement Re- spondent has maintained and administered an exclusive hiring system or procedure whereby it has, and exercises, exclusive authority to refer employees for employment to the various employer-members of the Association and other nonmembers, including those who adopt the Asso- ciation-Respondent agreements on a single employer basis such as Schmidt Co. 6. The Association agreement, as administered by the parties, establishes and maintains in effect an agreement, arrangement, practice, or understanding that provides, inter alia, with respect to an exclusive job referral system, as follows: Out-of-work lists are maintained for separate classi- fications, with a numerical seniority designation from which an employer may request without refer- ence to seniority an individual employed within the past 6 months. An employer may select 50 percent of his manpower request by name, but the other 50 percent must be dispatched from the lists in numeri- cal sequence of a seniority. 7. Respondent, acting through Don Park, about 2 May 1985, in honoring a request by McAuliffe for a welder, on a nonname basis, dispatched an individual holding po- sition 29 on the welder's seniority list, without offering the position to individuals of greater seniority. 8. Respondent, acting through Laurence Henry, about 31 May 1985, in honoring a request by Schmidt Co. for a fitter, on a nonname basis, dispatched an individual hold- PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL) ing position 61 on the fitter's seniority list without offer- ing the position to individuals of greater seniority. The General Counsel introduced the following docu- ments at the outset of the trial without objection: General Counsel's Exhibit 2, a copy of the collec- tive-bargaining agreement referred to in the com- plaint; General Counsel Exhibit 3, a copy of the welders' seniority list as of 1 May 1985, referred to in the complaint (par. 10(a)); General Counsel's Ex- hibit 4(a), a copy of the fitters' seniority list as of 1 May 1985; and General Counsel's Exhibit 4(b), a copy of the fitters' seniority list as of 1 June 1985. Seven witnesses testified. Counsel for the General Counsel called five witnesses on his case-in-chief. Re- spondent recalled two of the General Counsel' s witnesses (Bryson and Hayes) and presented two other witnesses. A summary of the testimony of each witness follows. Rex Adams, a member of Local 460 for approximately 16 years, testified that as far as he knew the written rules governing referral of workers are set forth in the collec- tive-bargaining agreement identified as General Counsel's Exhibit 2. He identified his name as being No. 40 on General Counsel's Exhibit 3, the welders' 1 May 1985 se- niority list that he had seen exhibited at the Local's union hall. According to Adams, if a worker were dispatched to a job lasting for less than 40 hours he would keep his posi- tion on the seniority list. If dispatched to a job lasting more than 40 hours, his name would then be dropped from the list. Adams stated that union members can expect to be dis- patched daily by telephone between the hours of 8 a.m. and 5 p.m. A worker can advise the union hall of a tem- porary telephone number where he can be reached during the day, but, according to Adams, he would not expect the Union to call him after 5 p.m. Adams was asked if the "40-hour rule," which he had referred to on direct examination, is contained in the col- lective-bargaining agreement. Adams said he did not know, but he agreed that the rule had been applied by the Union in dispatching welders and fitters during his 16 years of membership in the Union. Stanley Wayne Helvey testified that he had been a member of the Union for 11 years. He, like Adams, said he knew of no written rules governing union referrals other than what appear in the collective-bargaining agreement. He identified himself as holding position 32 on the 1 May fitters' list (G.C. Exh. 4(a)) and position 27 on the June fitters list (G.C. Exh. 4(b)). Adams testified over on objection that he would have accepted a dis- patch to the 6- or 7-day fitter's job with the Schmidt Co. On cross-examination Helvey said he had signed up for work at the hall in November 1984 and had not been offered a job between that time and 31 May 1985. He said he was aware of the Union's 40-hour rule and that he would have taken any job during that period of time whether it was a 40-hour job or not. Curtis Hayes testified that he has been a member of the Union for over 6 years. He identified himself as No. 4 on the welder's list (G.C. Exh. 4). According to Hayes, he was available for work as a welder on 2 May 1985 and 1231 would have taken a welder 's job at McAuliffe Mechani- cal, Inc. on that date had he received a dispatch for it. Hayes stated on cross-examination that he knew about the 40-hour rule, and he would have accepted the job even if it were to have lasted over 40 hours.2 Chris Wirth testified that he had been a member of the Union for 16 years . He said the collective-bargaining agreement contained the written rules governing referral of workers . He said he had read the collective -bargaining agreement, but had seen nothing in the agreement per- taining to the 40-hour rule. Wirth testified that the Union should be able to reach workers whose names are on the Union 's seniority lists between 8 a.m. and 5 p.m. He stated that workers are supposed to go to the union hall to sign the seniority list but explained that there were occasions (e.g., out of town) when a worker may call up and get his name on the list. According to Wirth, a worker may "as a general rule" turn down three jobs before his name would go "back down to the bottom of this list." He acknowledged on cross-examination that he knew of no one who had lost his place on the list by turning down three jobs, howev- er.3 Jeff A. Bryson was called by the General Counsel and questioned about his duties and authority as business manager of Local 460, a position he has held for almost 4 years . He holds the highest post in the Union , an elect- ed position, and does "just about everything there is" to do in the Union : dispatches, judges grievances, sits on boards and committees, etc. Bryson explained how General Counsel's Exhibit 3, the welders' seniority list, evolved and the significance of certain entries made on it. When recalled to testify as a defense witness, Bryson stated that there are two elected union agents , Laurence Henry and Don Park, both of whom work under Bry- son's supervision. The two agents perform the same "basic duties" Bryson performs. Park is stationed in the "high desert" area, which includes Inyo, Mono, and Eastern Kern County, and Henry covers the "rest of Kern County." Both Henry and Park dispatch workers from the Union's dispatch lists as does Bryson.4 Bryson indicated that there was considerable unem- ployment in the Union's membership, ranging 40 to 45 percent for both fitters and welders. According to Bryson, a fitter does the layout work for the welder. A welder can do the work of a fitter , but a fitter cannot do the work of a welder. A worker can only sign one dis- patch list, however. A dispatch list is prepared for each category (i.e., fitter, welder) each month. A union secretary types up the names left over from the previous month's list and added to the list are the names of those who have signed on during the current month.5 The collective-bargaining agreement, according to Bryson, allows an employer to call for the dispatch of a worker irrespective of his place on the list under certain circumstances not relevant here.' Bryson agreed that the so-called 40-hour rule, referred to by worker witnesses, had been applied by the Union for at least 24 years. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryson disagreed with Chris Wirth's testimony that a worker would lose his place on the dispatch list if he were to turn down three jobs. Bryson stated that work- ers may turn down dispatches by the Union. This often occurs, he said, when workers are dispatched to a short job, and the worker has another job, even though it may be one paying a lesser wage. Sometimes workers on a dispatch list are not available because they are on "travel" or are "doing something else." Bryson stated that he confers with Union Agents Henry and Park two or so times a week to be informed about the availability of persons on the Union's dispatch lists. Bryson said he could look at a dispatch list and know generally who would be available for dispatch. Bryson indicated that when dispatching from a list he calls the first man on the dispatch list he knows to be available. He tries to call between 8 a.m. and 5 p.m., but he may call after 5 p.m. He calls alternate telephone numbers that workers may have given the union hall, and he might wait for a period to get in touch with a particular worker if he thinks the worker would want the job. For a "borderline job" it might take days to go through the list of names on a dispatch list to find a worker, Bryson said. Bryson said he dispatched Julian Ortig and Nick Ed- gecomb (listed Nos. 2 and 29, respectively on dispatch list G.C. Exh. 4(a)) in May 1985. Bryson stated that Helvey had told him more than once between November 1984 and the end of May 1985 that if dispatched to a short job, or for one even if lasting for 3 weeks, he would quit after 38 hours to keep his name at the top of the list. Bryson said he had also talked with Hayes after the latter had been away on travel status. According to Bryson, Hayes stated that he wanted a "good job," which Bryson understood to mean a job that would last 6 months or even "maybe a three month job." Hayes eventually took a 6-month job. Bryson said Helvey was dispatched to work for R. P. Richards for a job "on the desert" after 31 May 1985. Helvey worked on that job, Brown said, for 2 or 3 days. On cross-examination , Bryson stated that he was not involved in either of the dispatches that were in issue here-the dispatch of a welder for a 1-day job with McAuliffe in May 1985 and a dispatch of a fitter for a 6- to 7-day job with the Schmidt Company on 31 May 1985. Bryson characterized the Schmidt dispatch as a "bad job" for a worker on the top of the list because it puts you at the bottom of the list." Laurence Henry said he had been a business agent for Local 460 for over 5 years. He testified that he dis- patches welders as well as fitters out of the hiring hall. Henry explained that the Union prepares a referral or dispatch slip whenever a worker is referred to a job as follows: Well, we fill in the contractor' s name, the date of referral, the time that they are to be on the job site, the employee's Social Security number, the employ- ee, the employer's address or the job site to where he is to report to, the employeee's name and his job description, whether he is a pipe fitter or a welder, instrument technician or whatever, whatever the re- quest was for. It also has the wage scale, the fringe benefits, the health and welfare, pension vacation. The employee may pick up the slip at the hall or the Union may attempt to deliver it to the dispatched worker. Henry said he handled the Friday, 31 May 1985, dis- patch to the Schmidt job. The Schmidt Co. had called while he was at lunch and advised a union secretary it needed two fitters to work for 6 or 7 days at the Alma- den Refinery near McFarland, California. The job was to start on the following Monday, June 3. There was only one job to be filled from the fitters' dispatch list because Schmidt had requested that one of the fitters' jobs be filled by a specific worker, Sal Gonza- lez, as the employer was allowed to do under the collec- tive-bargaining contract. Sometime after 5 p.m., Henry decided to dispatch Danny Threewit, No. 61 on the fit- ters' list, to fill the one available job at the Schmidt job. Henry said he knew that Threewit would take the Schmidt job because Threewit had been in the office that day and had said "he would take anything that we had to offer." Threewit had spoken first with Union Business Manager Bryson and then told Henry that he was desti- tute and would take a job no matter how long it would last. Henry claimed that he knew, based on "past experi- ence," that the 60 people ahead of Threewit on the fit- ters' list would not have taken the Schmidt dispatch. It was a "short job," and workers want a job that would last longer. Some persons on the list were on travel status, some were working on other jobs, and some were disabled. Henry said Threewit was not a friend and that he had no personal or political reason to choose him for the Schmidt job. Many indicated that it is a long process to go through a dispatch list. According to Henry, it would have taken a day and a half and maybe more time to go through the fitters' dispatch list to find a worker for the Schmidt job. Henry said he had other union duties to perform that weekend, and he could not have gone through the list. Henry testified that he discussed the fitters list with Bryson before dispatching Threewit to the Schmidt job. "Bryson and I went down through the list," Henry said, and the two of them "agreed that there wasn't anybody in between . . . . Threewit and the top of the list that would probably have taken the job." Henry said in dispatching he takes into account that "most of the guys will refuse" to consider a 2- or 3-day job. Henry said : "They can't afford to take a short job for a week, it's going to knock them off of the out of work list." According to Henry, Stan Helvey had told him, probably in May 1985, that he would take "a 38- hour or less" job, but he would not take a short job that would take him off the list. On cross-examination, Henry stated that union officials in the usual case take action "right away" to fill a dis- patch. He explained that an employer may, under the collective-bargaining agreement, fill a job with a worker of its own choosing if the Union cannot make a dispatch in 48 hours, but it does not often do so. PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL) Henry agreed that he had told a Board agent he had dispatched Threewit on 31 May because Threewit was in the hall that day , a day when Henry was busy with other things, and that Henry had said he was destitute and would take any job . But, he said, "that isn't the only reason" for dispatching Threewit. The normal procedure in making a dispatch , according to Henry, is to "come down the list" to find people to dispatch but that in doing so the Union would pick per- sons who are "qualified." Henry was questioned about his knowledge of persons who held a higher position than Threewit on the fitters' list. Henry stated that Doyle Jimerson, Stan Walker, and Mike Jones were employed at the time of the Schmidt dispatch and would not have accepted the dispatch. Henry maintained that at the time some were disabled (Burrows, McGee, Cornelius, Brandon), some were away or on travel (Baker and Combs along with Howell, who was in jail), and some were waiting for a desert job (Jones, Findley, Joyner) or a longer one (Simmons, Lampkin, and Stout). Henry repeated that Helvey told him he would take a job of "38 hours or less or a long job." Henry did not recall Curtis Hayes telling him that he was willing to take any job, and he seemed somewhat uncertain about others (Myers and Moreno).' Henry agreed that he spoke to none of the persons on the dis- patch list except Gonzalez and Threewit. Don Park said he had been a business agent for Local 460 for nearly 5 years. He said he regularly confers with Union Officials Bryson and Henry . He said his "normal procedure" is to refer dispatch calls he gets to the hall so Bryson or Henry can handle them. Park said, however, that he does get calls for jobs that he dispatches himself, at times at night and on weekends from his home. Park indicated that he was generally aware of who the persons are on the dispatch lists, their availability for jobs, and what their qualifications are. Park said he handled the 2 May 1985 dispatch to McAuliffe Mechanical . He recalled that he received the call for the job while at his home on Thursday evening between 5 and 5 :30 p.m . The Company wanted one welder for 1 day beginning the following day at 7 a.m., 105 miles away in Palmdale, California. Park said he looked at his copy of the dispatch list and "knew the man [he] could get." Park had been at the hiring hall the day before , and his copy of the dispatch list was up-to- date. Park said he dispatched Robert House , No. 29 on the welders' list (G.C. Exh. 3), to McAuliffe because he knew House was available. According to Park, House had called "about every other night" and his (Park's) notes indicated that House would be available. Park added that he knew from his notes the availability of people on the welders' dispatch list. He testified: Those that I know are unavailable, those that I know are working as superintendents , those that I know that are ill, those that are pipeline welders that won't accept regular work, those that are out on travel cards, those that are living in Sacramento. Park said he had no social or political ties to House. 1233 Park stated that he would have been up "more than all night" if he had tried to call the 28 men who were ahead of House on the welder's list. Moreover, he would have had to make the calls on a credit card . He said he had made 53 long-distance calls over a weekend trying to make a dispatch shortly before making the McAuliffe dispatch. Park said he knew Curtis Hayes, who had testified ear- lier. Park thought Hayes had been on travel status prior to March and remembered Hayes as one who had "always wanted to wait on a longer job ."8 Park said he recalled that when he last spoke with Hayes he (Hayes) said he did not want to lose his place on the list. Park stated that Hayes did go on a later job on "the 20th of the month" for a "lot longer job." Under direct questioning by union counsel, Park agreed that there were people on the list who were on travel status, some who were on disability , some who were working on other jobs, some who did not want a short job and some who only wanted a job on the desert. On cross-examination, Park said there were two rea- sons for dispatching House to the 2 May McAuliffe job: "I didn't figure anybody else would take the one day job and the other thing was the essence , was of that time you know, to get it filled." Park agreed that the hiring hall procedure called for the Union to go down the list of names on that dispatch list, in a sequential manner except for a "special" case. He acknowledged that Hayes had never said he would not take a 1-day job and that the McAuliffe dispatch was not "special." Park maintained that the dispatch of House to the McAuliffe job was justified because it was a "hurried thing" and the call came in after 5 p.m. Park agreed that he should have called Bob Byron, No. 3 on the welders' list (G.C. Exh. 3), but he said that Byron was "never available" before when he had called him. Park responded to the General Counsel 's questions about certain other persons listed ahead of House on the welders' list: Hughey , No. 5, reportedly was away in Ar- izona; Tolles, No. 6, was on travel status; Cargill, No. 13, owned a business and did not "seem to be interested in employment;" Morris, No. 15, was waiting for a job with the Scott Company ; there was no telephone number for Molina, No. 16; Hoyt, No. 18, lived in Sacramento, approximately 300 miles north of Bakersfield , which was 100 or so miles north of Palmdale ; Johnson, No. 21, owned a business and did not want a job; Pence, No. 22, lived near Sacramento and wanted only a long job; Early, No. 24, was unable to work; both Lehman, No. 25, and Griggs, No. 26, had other jobs and would only take long jobs; Barker, No. 27, was away and did not want a job; Ruemmler, No. 28A, had recently returned from travel status but Park was not aware of it; and Rich, No. 28B, was dispatched the same day House was, on 2 May.' In 1973 the Board expressed the following view of hiring hall referral systems in Operating Engineers Local 18 (Ohio Contractors), 204 NLRB 681 (1973), as follows: When a union prevents an employee from being hired or causes an employee's discharge, it has dem- onstrated its influence over the employee and its 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a pre- sumption that-the effect of its action is to encour- age 'union membership on the part of all employees who have perceived that exercise of power. But the inference may be overcome, or the presumption re- butted, not only when the interference with em- ployment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its con- stituency.1 ° In contending Respondent violated Section 8(b)(1)(A) of the Act, the General Counsel relies on the Board's recent decision in Operating Engineers Local 825 (Build- ing Contractors), 272 NLRB 186 (1984), enfd. 770 F.2d 1073 (2d Cir. 1985), and certain cases cited therein. The General Counsel refers to the portion of the Board's de- cision which states: [T]he Board has held that a union which, as here, operates an exclusive hiring hall must represent all individuals who seek to utilize the hall in a fair and impartial manner.9 The labor organization conduct- ing such an operation has a duty to conform with and apply lawful contractual standards in adminis- tering the referral system, and any departure from the established procedures resulting in a denial of employment constitutes discrimination which inher- ently encourages union membership. By engaging in such conduct in this case, the Respondent has vio- lated Section 8(b)(l)(A) and (2) of the Act.10 e Plumbers Local 725 (Powers Regulator Ca), 225 NLRB 138, 143 (1976) 10 Id. at 143; Operating Engineers Local 513 (S.J Groves & Sons Co.), 199 NLRB 921, 922 (1972). While stating that evidence of a union's motivation is not a prerequisite to a finding of discrimination , the Board held, in finding violation of both Section 8(b)(1)(A) and (2)11 of the Act, that the record in Local 825 "clearly demonstrated the Respondent's animus against Harvan," the Charging Party. Respondent conceded that the pleadings and admis- sions it made at the hearing established a prima facie vio- lation of Section 8(b)(1)(A). Respondent's counsel stated at the hearing: In theory the General Counsel still has proven an 8(b)(1)(A) if I don't introduce my defense. The Board has said when you are running an exclu- sive hiring hall, you got to follow those rules. If you don't follow those rules without a good excuse, you are in violation of 8(b)(1)(A). And that's exact- ly what the General Counsel has pleaded. Relying on Operating Engineers Local 450 (Houston AGC), 267 NLRB 775 (1983), and Operating Engineers Local 406 (Ford, Bacon & Davis), 262 NLRB 50 (1982), enfd. 701 F.2d 504 (5th Cir. 1983), Respondent contends that deviations from hiring hall procedures do not consti- tute violations of the Act if necessary to the effective performance of its representation function and the union is acting for a valid objective for the benefit of the mem- bership as a whole. The Board in Local Union 450 and Local 406 clearly indicated a union is bound to follow established referral procedures. Quoting from the Board's decision in Operat- ing Engineers Local 406 at 51: The Board has held that any departure from estab- lished exclusive hiring hall procedures which results in a denial of employment to an applicant falls within that class of discrimination which inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the union demonstrates that its interference with employment was pursuant to a valid union-security clause or was necessary to the effective performance of its repre- sentative function.5 5 See, e g, Journeymen Pipe Fitters Local No. 392, affiliated with the United Association of Journeymen and Apprentices of the Plumb- ing and Pepe Fitting Industry of US. and Canada, AFL-CIO (Kaiser Engineers Inc.), 252 NLRB 417 (1980), and cases cited therein Also, the Board stated in Operating Engineers Local 450 (at fn. 2): In these circumstances-i.e., Respondent has de- signed specific objective hiring hall procedures-we believe Board precedent compels finding a violation of the Act when Respondent departs from those procedures. It is true that the Board has found vio- lations based upon the application of a rule because the rule as applied did not conform to the standard of fairness required of a union hiring hall system. It is equally clear that the Board has premised hiring hall violations upon the nature of the rule itself, or upon the arbitrary departure from the rule, rather than solely upon the application of the rule. Cf. Op- erating Engineers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50 at 50-51 and fn. 6 (1982), enfd. 701 F.2d 504 (5th Cir. 1983) (violation premised upon arbitrary departure from self-estab- lished referral system); Boilermakers Local 667 (Union Boiler Co.), 242 NLRB 1153, 1155 (1979) (violation premised upon vagueness and indefinite- ness of rule itself.) We believe Respondent's failure to follow its referral system procedures is such an arbitrary departure from its hiring hall rules. Respondent argued at the hearing that the Board's cases and the record here show that the dispatches it made to the McAuliffe and Schmidt jobs on 2 and 31 May, respectively, were justified as follows: Both Mr. Park, both Mr. Henry were under the gun as far as time was concerned . Both dispatches were to be filled after five o'clock. There was no obliga- tion for the members to be home or available, so calling would have probably been futile. Based on past performance it would have taken hours to have PLUMBERS LOCAL 460 (MCAULIFFE MECHANICAL) made all the necessary calls. In Mr. Park's case, he had to fill the job for seven o'clock the next morn- ing. In Mr. Henry's case, he was faced with a week- end in which he was not available to act as a dis- patcher, in fact, shouldn't even have to be a dis- patcher on the weekend. The trouble is on the one that had to be filled on the following Monday, Mr. Henry was not available to act as a dispatcher, that was the problem. And he couldn't work any further that night because other Union business required his attendance and his ap- pearance. I would suggest that the people that run the hiring hall are not supposed to be automations. They rec- ognize and should be permitted, based upon their past experience, to rely on the fact that some people, though their names are on the out of work list, are not available for employment. In the obvi- ous cases, travel card, disability, other employment. Where members have told the Union that they are only interested in long jobs, it is an exercise in futility to require a business agent in the middle of the night to call somebody for a one day job. It is an exercise in futility to have the business agent call people who have said they don't want short jobs. The Administrative Law Judge has to recognize the realities of the situation, the particular unem- ployment problem that existed in Kern County, the fact that so many people are out of work, there's a longer out of work list and to lose your place on that list is economic suicide. And you can't afford to. And these people on the out of work list are not stupid. They are not going to lose their place on the list for a job in excess of forty hours, not when it's taken them months to move up to a position where they might be able to get a job of long duration. And to require the business agents, under the fac- tual setting in this case, at night, over the weekend, for short term jobs to just go through this ritual, this routine of making fifty or sixty phone calls to fill that one job is not required and their failure to do so under the facts of this case amount to di mini- mus and is not a violation of the Act. I am persuaded that Park's dispatch of Robert House to the 1-day welder's job with McAuliffe Mechanical, Inc., in Palmdale, California, 105 miles away, was justi- fied and not a violation of the Act. As Respondent's counsel pointed out, Park did not know of the request for a dispatch until after office hours on 2 May, and he had to act promptly if the Union was to provide a welder at the McAuliffe job in the Palmdale site as re- quested.12 Park had good reason to believe that House, No. 29 on the welder's dispatch list (G.C. Exh. 3), could fill the job and probably the only one who would, given the circumstances of time and likely unavailability of anyone else on the welders' list. Park testified credibly that he understood Hayes, who was No. 4 on the list, would not have been interested in a 1-day job. 1235 Hayes testified that he had indicated prior to the 2 May dispatch to another dispatcher (Henry) that he would take any job, but I am unable to believe that he was available for the McAuliffe job and would have con- sidered leaving his then home on the coast (Pismo Beach), driving 500 miles round trip for a 1-day job. Such testimony of Hayes was not credible, and I reject it. The 31 May dispatch of Danny Threewit by Business Agent Henry to a 6- or 7-day fitter's job with the Schmidt Co. at McFarland, California, presents a more difficult issue, but I am unable to hold such action violat- ed the Act as the General Counsel contends. Threewit was No. 61 on the fitters' seniority list, but the General Counsel did not rebut the Union's showing that it acted reasonably under all the circumstances in dispatching Threewit. There was a limited time available to Henry to process the Schmidt request, although it is not clear why he waited until after 5 p.m. on that Friday to give the referral to Threewit.13 Henry knew Threewit, who had been in the hiring hall that day to report that he would take any job, would accept the Schmidt dispatch. And having conferred with Business Manager Bryson regard- ing the fitters' list, Henry concluded, reasonably, that there probably was no one ahead of Threewit who would have taken the "bad job" with the Schmidt Co.14 The only evidence indicating that the dispatch of Threewit was not appropriate was the testimony of Stan- ley Helvey. Helvey, who was No. 32 on the 1 May fit- ters' list, testified he would have taken the Schmidt dis- patch. Both Business Agent Henry and Business Manager Bryson testified, however, that Helvey had told them that he would accept a job of 38 hours' duration or less but not a "short job" that would cause him to lose his place on the dispatch list. I credit such testimony of Bryson and Henry. It is to be noted that there is no evidence of hostility, arbitrariness, or union preference in the Union's dispatch of either House or Threewit. I conclude that Business Agents Park and Henry reasonably believed that they were acting in accord with the collective -bargaining agreement and valid rules of the Union's hiring hall.15 For the foregoing reasons, I make the following CONCLUSIONS OF LAW 1. Respondent Local Union 460 of the United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada is a labor organization within the meaning of Section 2(5) of the Act. 2. McAuliffe Mechanical, Inc. is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. It was not established that Respondent violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 ORDER The complaint is dismissed in its entirety. 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Page intentionally left blank.]