Plumbers Local 230

PLUMBERS LOCAL 230 315 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Local 230, AFL- CIO and Kevin R Conley Case 21-CB-9928 March 16, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On January 26, 1988, Administrative Law Judge Richard D Taplitz 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 only to the extent consistent with this Decision and Order The judge found that the Respondent's failure to dispatch employee Mark Collins because of a change in hiring hall rules of which Collins had not been aware was not violative of the Act The General Counsel excepts, contending that under the Board's decision in Operating Engineers Local 406 (Ford Construction),' the Respondent's conduct violated the Act We find merit in the General Counsel's exception The facts are not in dispute On June 12, 1987, the Respondent failed to dispatch Mark Collins from its exclusive hiring hall to a job even though he was first on the out of-work list When Collins complained, the Respondent informed him that be- cause he had not written the word "anything" after his name on the out-of-work list, he was eligible for referral only to commercial jobs Because the job to be filled on June 12 was residential work, Collins was not eligible Prior to 1983, applicants signing the out-of work list had no choice between residential and commer- cial work In response to complaints from both ap- plicants and employers, the Respondent changed the system in 1983, allowing applicants to designate whether they wanted to be referred to commercial work only or residential work only Sometime be- tween 1984 and 1986 the system was changed again, requiring applicants to write the word "any- thing" after their name if they wanted to be re- ferred to both commercial and residential jobs, 1 262 NLRB 50 51 (1982) enfd 701 F 2d 504 (5th Cit 1983) without this designation, the applicant would be re ferred only to commercial jobs Prior to the filing of the instant charge, the Re- spondent had no written rules for the operation of the hiring hall Changes in hiring hall rules were sometimes discussed at union meetings and by the dispatchers, usually in response to applicants' ques tions It is undisputed that a number of applicants, including Collins and Charging Party Kevin Conley, were never informed of the `anything" rule,2 although a number of other applicants were so informed It is also undisputed that Collins lost about 6 days' pay by not being referred to the June 12 job The judge, characterizing the issue as a "narrow one," defined it as "involv[ing] the question of whether the Union met its obligation to notify ap- plicants for employment of a change in hiring hall rules " The judge found that the Respondent did meet its obligation here The judge found that the `anything" rule in itself was lawful and that there was no requirement under Board law that it be re duced to writing The judge distinguished the Board's decision in Operating Engineers, supra 3 on the basis that that decision involved a union's devi- ation from an established hiring hall rule rather than, like here, a new rule, consistently followed and applied to all applicants equally The judge further concluded that the Respond- ent had an obligation to inform job applicants of its change in hiring hall rules and that the Respondent "took a slipshod approach to notifying applicants about the change and that it was negligent in not taking reasonable steps to make sure that all em- ployees knew of it " He found, however, that to es- tablish a violation "something more than mere neg- ligence or the exercise of poor judgment on the part of the Union must be shown Boilermakers Local 374 (Combustion Engineering), 284 NLRB 1382 (1987), citing Rainey Security Agency, 274 NLRB 269, 270 (1985) Because the Respondent did discuss the "anything" rule at union meetings and at the hiring hall and as a number of employ- ees did in fact learn of the rule, the judge found 2 Collins testified that he noticed that some applicants on the out-of work list had written anything after their names He asked other appli cants what that meant but received no answer He never asked any Re spondent official to explain what anything meant 3 In that case in pertinent part the respondent union had a posted hiring hall rule that provided that any person who was referred to a job lasting longer than 5 days would have his name removed from the out-of work list In accord with this rule an applicant for referral turned down a 6 day job The record established however that the respondent had in fact changed the rule to allow employees to accept 6-day jobs without having their names removed from the list but that the respondent had failed to notify applicants of the change until after issuance of the com plaint in the case The Board found inter alia that the respondents de parture from its established hiring hall procedures and its failure to notify applicants of the change violated Sec 8(b)(1)(A) and (2) 293 NLRB No 34 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the "something more" had not been estab- lished We agree with the judge that the Respondent had an obligation to notify job applicants of its change in the hiring hall rules and that the issue presented in this case is whether the Respondent gave adequate notice of the "anything" rule Con- trary to the judge, however, we find the Board's decision in Operating Engineers to be controlling In that case, as in the instant case, the respondent union made a change in its hiring hall rules without giving notice of the change to the employees who used the hiring hall for job referrals In finding the violation, the Board stated, "[t]his failure to give timely notice of a significant change in referral pro cedures was arbitrary and in breach of its duty to represent job applicants fairly by keeping them in formed about matters critical to their employment status " Id at 51 (footnote omitted) The judge himself found that the Respondent took a "slipshod" approach to notifying applicants about the change, that a number of employees did not learn of the change in a timely fashion, and that the Respondent was negligent in not taking reasonable steps to make sure that all employees knew of the change Under Operating Engineers, these findings establish the violation The judge's reliance on Boilermakers Local 374 to require a showing of "something more" than mere negligence to establish a violation is mis- placed That case concerned whether a particular hiring hall rule that compelled an applicant for re- ferral to post a $100 bond before a grievance con cerning the operation of the hiring hall could be processed was arbitrary and therefore violated the union's duty of fair representation Here, however, the issue does not involve the validity of a hiring hall rule, but rather the notice that must be given when a rule is changed In sum, we find that the Respondent failed to make a good faith effort to give timely notice of the rule change in a manner reasonably calculated to reach all those who used the exclusive hiring hall Accordingly, we find that the Respondent, by failing to dispatch Collins on June 12 for noncom pliance with the change, violated Section 8(b)(1)(A) and (2) of the Act CONCLUSIONS OF LAW 1 By failing to adequately notify job applicants of the change in its hiring hall rules and by failing to dispatch employee Mark Collins on June 12, 1987, for noncompliance with the change, the Re- spondent has violated Section 8(b)(1)(A) and (2) of the Act 2 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, we shall order it to cease and desist and take affirmative action that is necessary to effectuate the policies of the Act We shall order the Respondent to make employee Mark Collins whole for any loss of earnings and other benefits suffered as a result of the Respondent's unlawful failure to dispatch him on June 12, 1987, with backpay to be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded 4 ORDER The National Labor Relations Board orders that the Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 230, AFL-CIO, its officers, agents, and representa- tives, shall 1 Cease and desist from (a) Failing to adequately notify job applicants of changes in the hiring hall rules and failing to dis- patch Mark Collins or any other employee because of his noncompliance with such changes (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Make whole Mark Collins for any loss of earnings and other benefits suffered as a result of the Respondent's failure to dispatch him on June 12, 1987, in the manner set forth in the remedy sec- tion of the decision (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its facilities in San Diego, California, copies of the attached notice marked "Appendix "5 * 283 NLRB 1173 (1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 s 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 Continued PLUMBERS LOCAL 230 Copies of the notice, on forms provided by the Re gional Director for Region 21, after being signed by the Respondent's authorized representative, 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 are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 ordered us to post and abide by this notice WE WILL NOT fail to adequately notify job appli- cants of changes in our hiring hall rules and to dis patch Mark Collins or other employees because of their noncompliance with those changes WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL make whole Mark Collins for any loss of earnings and other benefits suffered as a result of our failure to dispatch him on June 12, 1987, with interest UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUS TRY OF THE UNITED STATES AND CANADA, LOCAL 230, AFL-CIO Robert R Petering Esq, for the General Counsel Elizabeth Rosenfeld Esq (Pappy & Daves) of Los Ange les, California, for the Respondent Kevin R Conley, for himself DECISION STATEMENT OF THE CASE RICHARD D TAPLITZ, Administrative Law Judge This case was tried in San Diego California on Novem ber 19 1987 The complaint which was based on a 317 charge filed on June 15, 1987, by Kevin R Conley issued on July 30, 1987, alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 230 AFL-CIO (the Respondent or the Union) violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act Issue The central issue is whether the Union violated the Act by failing to adequately publicize a nonwritten hiring hall rule with the result that Mark Collins was improperly denied dispatch to a job All parties were given full opportunity to participate, to introduce evidence, to examine and cross examine wit nesses to argue orally, and to file briefs Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Union On the entire record of the case and from my observa tion of the witnesses and their demeanor, I make the fol lowing FINDINGS OF FACT I JURISDICTION The Associated General Contractors San Diego Chap ter and the Plumbing and Pipefitting Industries Council are employer associations that exist in part for the pur pose of representing their employer members in negotiat ing and administering collective bargaining agreements with various labor organizations including the Union The employer members of those associations derive gross revenues in excess of $500,000 and purchase and receive goods valued in excess of $50,000 directly from suppliers located outside the State of California Each of the em ployer members of those associations are employers en gaged in commerce within the meaning of Section 2(6) and (7) of the Act Pursuant to collective bargaining agreements with those associations the Union maintains an exclusive hiring referral hall at its main office located at 3909 Center Street San Diego California The Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Union s Refusal to Refer Mark Collins to Employment on June 12 1987 The Union maintains a written out of work list that it uses in referring applicants for employment from the hiring hall Mark Collins has been a member of the Union since 1978 and he has used the hall about 20 times The last time he signed the list was December 9, 1986 and at that time there were 109 names above his He gradually worked his way up the list until late May 1987 when he became no 1 on the list During that entire time he was under the impression that he was ell gible for any jobs that came in That understanding was based on conversations he had had sometime before with various union officials As he approached the top of the list he checked the list and noticed that some applicants 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had written anything next to their names He asked other applicants for employment what anything meant but the other applicants did not answer his question t Collins understanding was that he was eligible for any type of referral unless he put down a comment on the out of work list indicating that he did not want certain work As is set forth in more detail below, at one time that was the procedure The hiring hall receives calls for primarily two types of work One is residential, which involves houses and apartment houses The other is com mercial, which includes all other types of construction At the times relevant here, the hiring hall did not have any written procedures and there was nothing posted to explain eligibility rules The hiring hall has a procedure by which applicants can call the hall the night before the dispatch and hear a recorded announcement indicating the dispatches that are to be made the following day As Collins approached the top of the list he began calling in regularly and coming to the hall about twice a week On June 12, 1987, he arrived at the hall about 8 am On that day David Floris, one of the Union s business representatives, was the dispatcher 2 At 8 15 a in Flons came into the dispatch hall and said that he had a call for a residential job from Tabera Sons in La Costa Flops opened the out of work book and called the name of the person who was listed 22 on the out of work list That person did not respond and he was given a strike Under the hiring hall rules an applicant can refuse a referral twice and still retain his position on the list However the third refusal is the third strike and the applicant is lowered to the bottom of the list Floris then called the name of the person who was no 44 on the out of work list, Ted Miller Miller said that he would take the job Collins, who was no 1 on the list then asked why he did not get the job Flons replied that it was because Collins had not put anything" next to his name Collins responded that he did not know anything about that and it was the first he heard of it Floris said that it was common knowledge that an appli cant had to put `anything to be eligible for any job that came up There were about 10 or 15 applicants in the room at the time Some said that they knew about the anything rule for a few months One of them Mike Shepherd, said he just found out about it 2 weeks before Two or three of the people said that they had not heard about it at all Kevin Conley, the Charging Party was also present during that conversation He told Flons that he was not aware of the need to write anything Flops said that unless an applicant put down anything he would just be sent to commercial work Collins said that he was not aware of any such rule and that if the Union was going to have such a rule, it should be posted so that the members would know what to do Floris ac knowledged that the rule was not posted and said that he i Collins testified that he did not remember who he asked about the anything notation but that he believed they were union members There is no indication in the record that he asked the dispatcher or any union official 2 The answer admits that Flops is an agent of the Union The Union has five business agents and they each act as dispatcher for a month at a time so that each business agent dispatches 1 out of 5 months should see Bob Daly, the business manager Collins said that he would go upstairs and sign the book right away with the word anything Flons replied that Collins would have to wait 24 hours before the new designation would take effect and Collins replied that it did not seem fair because he was there and ready to go 3 Collins and Conley then went upstairs in the union hall and spoke to the Union s Business Manager Bob Daly 4 Conley explained the situation to Daly who said that the rule was in effect even before he had gotten into office Collins asked why it was not posted and Daly re plied that it was common knowledge that everybody knew it, and that if Collins had come to meetings, he would have known it Daly also said that Collins could go to the Labor Board Collins did attend two union meetings One was in De cember 1986 and the other was June 1987 At those meetings he did not hear anything about the anything rule The rule was not mentioned in the Union s newslet ter and was not posted Collins remained no 1 on the out of work list On June 12, 1987, he signed anything on the list Within a week Collins was referred to a residential job Apparent ly that job did not last as long as the one he would have been referred to if he had been sent to work on June 12 In their opening statements, counsel for both the General Counsel and the Union stated that Collins lost about 6 days work In addition counsel for the Union stated that written rules have now been promulgated for the hiring hall B The History of the Signup Procedure Prior to 1983 applicants simply signed the out of work list and had no choice between residential and commer cial work There was dissatisfaction with that system from the point of view of both the applicants and the employers Residential work tended to require more speed and was more physically demanding than commer cial work Many of the older applicants did not want to be referred to the residential work However if such an applicant s name was called from the referral list for a residential job and the applicant refused the job he would have to take a strike If such an applicant had two strikes and the next job was residential the applicant would be faced with a choice of taking the work that he did not want or being dropped to the bottom of the list Sometimes such an applicant took the job and could not keep up with the work That resulted in complaints from employers to the effect that the referred employees were too slow The Union changed the system in 1983 to 3 The Union has a longstanding rule that if an applicant changes his status on the hiring list he cannot be sent out until the following day Union Business Representative John Duvall testified that the rule was needed so that applicants could not avoid a strike by making changes after they knew what the calls were going to be Thus if an applicant is exempt from strikes because he is on the sick list he cannot say he is off the sick list after he hears the calls for the day but must wait for the following day In addition if a job is for less than 5 days an applicant can refuse the job and still avoid a strike If an applicant does accept the job he drops to the bottom of the list after he has received 8 hours pay * The answer admits that Daly is an agent of the Union PLUMBERS LOCAL 230 319 allow applicants to designate the type of work they wanted so that if they only wanted commercial work, they would not have to take a strike by being offered and refusing residential work Under the new system if an applicant put down P for plumber, it meant that he would be dispatched only for commercial work He would not be offered or be given a strike for refusing residential work If the applicant put down residential, ' he would only be sent to residential work Apparently the system was somewhat confusing and sometime between 1984 and March 1986 it was changed again5 so that an applicant who wanted to be available for all types of work could write anything Plumber continued to mean only commercial work and residen tial continued to mean only residential work C Efforts to Notify Applicants for Employment About the Rule Changes As of June 12, 1987 when Collins was denied referral to a residential job because he had not put anything" on the out of work list, some applicants knew of the any thing rule and others did not Collins and Conley both credibly testified that they were unaware of the rule at that time Some applicants who were in the hiring hall on June 12 also indicated that they did not know the rule Others stated that they were aware of it The rules were not in writing and there was no attempt to inform the applicants of the rules by any posting procedures John Duvall, one of the Union s business represents tives, credibly testified that when the rule was changed, he explained it to the applicants when he was dispatch ing He dispatched 1 out of 5 months and he answered questions whenever they were asked concerning the dis patching procedure He also credibly testified that the dispatching rules were discussed at least four or five times during meetings between 1983 and January 1987 and that the discussion usually came up in response to questions by members Union Business Representative Floris also credibly tes tified that he recalled a union meeting at which the resi dential rule was explained Dan Leonard a union member of 10 years standing credibly testified that he found out about the new proce dure during the latter part of 1986 when he spoke about it to Floris and he heard the same thing from general talk around the hinng hall He also credibly testified that the rules had been discussed at membership meetings four or five times in the last 4 years Bryan Lovell the Union s recording secretary, credi bly testified that he heard of the `anything rule at a union meeting Counsel for the General Counsel in his brief has made an analysis of the residential, commercial, and "any thing notations on the hiring hall records Though there is no way to determine when such notations were placed on the records the inference is warranted that gradually b Union Business Representative John Duvall initially testified that the change was made in 1984 However later in his testimony he seemed quite confused and unsure about the date Business Agent Flons credibly testified that the anything rule was in effect poor to his taking office in March 1986 In any event the change was made well before December 9 1986 when Collins last signed the out of work list more and more people became aware of the new rules and started to make such entries However no clear pic ture is presented as to just how many applicants knew of the rules and how many did not What is apparent is that the hiring hall was run on an extremely casual basis and that notification to applicants of rule changes was hap hazard at best with great reliance on word of mouth communications between members The rules were spo radically discussed at union meetings and they were also occasionally discussed during the operation of the hiring hall There was no systematic attempt to notify employ ees, no written rules, and no postings Some of the apple cants learned of the rule changes and others did not The Union s notification procedure was chaotic and ineffi cient However, there is no evidence in the record to in dicate that the Union purposely kept the applicants unin formed or misinformed concerning the hiring hall rules The Union was partially ineffective and was negligent in the dissemination of information concerning the rule changes but there is no evidence in the record that there was any intentional misleading, that there was any at tempt to discriminate against nonmember applicants, or that there was any hostility directed against Collins or anyone else D Analysis and Conclusions The issue here is a narrow one It involves the ques tion of whether the Union met its obligation to notify ap plicants for employment of a change in hiring hall rules The change in itself was lawful Under the new rule an applicant could write anything next to his name and make himself available for any work that came in or he could limit the type of work he would take without run ping the risk that he would be dropped to the bottom of the list for refusing work that he did not want The change was also desirable from the employers point of view and was initiated in part because of employer pro tests against the old system The change was not intend ed nor did it have the effect of discriminating against nonunion members, was not based on the Union s hostili ty toward anyone and was not unfair or invidious in any sense The fact that the change was not reduced to writ ing did not make the change unlawful 6 Though the distinction is not always clearly drawn there is a sharp difference between a legitimate change in hiring hall rules and an unlawful deviation from such rules Hiring hall rules need not be static and if proper notice is given and the change is in itself a legitimate one there is nothing unlawful in keeping hiring hall rules up to date Once a change has been made there is a new hiring hall rule That is very different from a situation 6 As the Board held in Iron Workers Local 505 (Snelson Anvil) 275 NLRB 1113 at 1113-1114 (1985) In the absence of a contractual requirement there is no require ment in Board law that referral rules be posted Nor is there a re quirement that referral rules be incorporated in a contract However the Board does require that referrals whether made pursuant to written or unwritten rules be based on objective criteria and applied in a nondiscriminatory manner See also Laborers Local 1334 (Western Sign) 281 NLRB 185 (1986) La borers Local 394 (Building Contractors) 247 NLRB 97 fn 2 (1980) enfd mem 659 F 2d 252 (D C Cir 1981) 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD where hiring hall rules are ignored or where there is a deviation from existing hiring hall rules 7 In the instant case we have a change in a hiring hall rule rather than a departure from established hiring hall procedures When a change is made in a hiring hall rule notice must be given to the job applicants Thus in Operating Engineers Local 406 (Ford Construction) supra at 51,8 the Board held This failure to give timely notice of a significant change in referral procedures was arbitrary and in breach of its duty to represent job applicants fairly by keeping them informed about matters critical to their employment status The key question is what type of notice is legally suffi cient The Board has held that such notice must be ade quate Electrical Workers IBEW Local 11 (Los Angeles NECA), 270 NLRB 424, 426 (1984), enfd 772 F 2d 571 (9th Cir 1985), Teamsters Local 519 (Rust Engineering), 276 NLRB 898 fn 3 (1985) However, in this context adequate appears to be synonymous with legally suf ficient and does not indicate what criteria are to be used in making that determination There is a line of cases that does appear to spell out the criteria to be ap plied in determining the legal sufficiency of notice to em ployees concerning matters affecting their employment The basic proposition is set forth in Painters Local 1310 (Reliance Electric) 270 NLRB 506 (1984), in which a shop steward was negligent in answering an employee s question with the result that the employee was dis charged The Board held at 506 It is well settled that negligent action or nonac tion of a union by itself will not be considered to be arbitrary, irrelevant, invidious or unfair so as to constitute a breach of the duty of fair representation violative of the Act Teamsters Local 692 (Great Western Untfreight System) 209 NLRB 446 448 (1974) We recently reaffirmed that as an element of the duty of fair representation a union s agents must refrain from purposely keeping unit employees uninformed or misinformed concerning grievances or matters affecting employment Teamsters Local 282 (Transit Mix Concrete) 267 NLRB 1130 (1983) Plainly put, unlike purposeful conduct simple negli gence does not violate the duty of fair represents tion under the Act A similar result was reached in Auto Workers Local 167 (General Motors Corp) 286 NLRB 1167 (1987), in which 7 In Operating Engineers Local 406 (Ford Construction) 262 NLRB 50 51 (1982) enfd 701 F 2d 504 (5th Cir 1983) the Board held The Board has held that any departure from established 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 representa tion owed to all hiring hall users and violates Section 8(b)(1)(A) and (2) unless the union demonstrates that its interference with employ ment was pursuant to a valid union security clause or was necessary to the effective performance of its representative function 8 See also Carpenters Local 720 (UMC of Louisiana) 276 NLRB 59 (1985) enf denied 798 F 2d 781 (5th Cir 1986) Stage Employees IATSE Local 41 (Theater of Stars) 278 NLRB 894 (1986) the Board held that a union must refrain from purposely keeping unit employees uninformed or misinformed con cerning grievances or matters affecting employment that mere negligent action or nonaction alone does not constitute a breach of the duty of fair representation vio lative of the Act and that a union does not violate the Act simply by giving to an employee an incorrect inter pretation of the governing bargaining agreement so long as it is not deliberately misleading or deliberately incor rect The basic logic of the above cases has been applied to hiring halls In Boilermakers Local 374 (Combustion Engt neering) 284 NLRB 1382, 1383 (1987) the Board dis cussed the union s code of acceptable conduct with specific reference to a hiring hall, holding It is well established that since a union has such comprehensive authority vested in it when it acts as the exclusive agent of users of a hiring hall and be cause the users must place such dependence on the union that there necessarily arises a fiduciary duty on the part of the union not to conduct itself in an arbitrary invidious, or discriminatory manner when representing those who seek to be referred out for employment by it Teamsters Local 519 (Rust Engt neering) 276 NLRB 898 908 (1985) Thus it has been repeatedly held that once a union embarks on the operation of an exclusive hiring hall it must con duct the hiring hall in a fair and impartial manner This code of acceptable conduct necessarily extends to the institution of any referral rules which the union adopts in accord with contractual provisions In other words the referral rules themselves in cluding any referral grievance mechanism, cannot be discriminatory or arbitrary Laborers Local 304 (AGC of California) 265 NLRB 602 (1982) To support a finding of arbitrariness something more than mere negligence or the exercise of poor judgment on the part of the Union must be shown Rainey Security Agency 274 NLRB 269 270 (1985) See also Teamsters Local 92 (Great Western Uni freight), 209 NLRB 446 (1974) I believe that the holding in that case is controlling and that for the General Counsel to establish that the Union violated the Act by giving legally insufficient notice of the change of hiring hall rules, it must be shown that the Union s actions in that regard were arbitrary rather than negligent or the exercise of poor judgment In the instant case the Union spoke about the changes in hiring hall rules at some meetings and answered ques tions from the floor concerning those changes, and in ad dition at least one business agent, who acted as dispatch er 1 out of 5 months told applicants at the hiring hall about the changes and answered their questions Appar ently the Union relied heavily on notification through word of mouth communications between members In fact a number of employees did learn of the change well before the refusal to refer Collins It is also clear that a number of employees, including Collins, did not learn of the change in a timely fashion As indicated above I be lieve that the Union took a slipshod approach to notify PLUMBERS LOCAL 230 ing applicants about the change and that it was negligent in not taking reasonable steps to make sure that all em ployees knew of it However , under the criteria set forth in Boilermakers Local 374 and the other cases cited above, to prove a violation something more than mere negligence or the exercise of poor judgment on the part of the Union must be shown That something more has not been established by the General Counsel and I 321 shall therefore recommend that the complaint be dis missed in its entirety CONCLUSION OF LAW The General Counsel has not established by a prepon derance of the credible evidence that the Union violated the Act as alleged in the complaint [Recommended Order for dismissal omitted from pub lication ]