Operating Engineers Local 3 (Agc Of California)

OPERATING ENGINEERS LOCAL 3 (AGC OF CALIFORNIA) 231 Operating Engineers Local Union No 3 of the Inter- national Union of Operating Engineers, AFL- CIO (Associated General Contractors of Cali- fornia) and Arthur R Cole. Case 32-CB-1339 21 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 5 January 1984 Administrative Law Judge Clifford H Anderson issued the attached decision The General Counsel filed exceptions and a sup- porting brief The Respondent filed cross-excep- tions and a supporting 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 conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra twe law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard this case in trial in Oakland, California, on August 29, 1983, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the Na- tional Labor Relations Board on April 27, 1983, based on a charge filed by Arthur R Cole, an individual, against Operating Engineers Local Union No 3 of the Interna- tional Union of Operating Engineers, AFL-CIO (Re- spondent or the Union) The complaint, as amended, alleges and the answer, as amended, denies that Respondent acted arbitrarily, capri- ciously and/or because of Cole's intraunion political ac- tivities in refusing to place Cole on Respondent's "pre- ferred" employment referral list at its Oakland, Califor- nia job placement office in March 1983 in violation of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act) All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine and cross-examine witnesses, to argue orally, and to file posthearing briefs On the entire record herein, including briefs from the General Counsel and Respondent, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing' FINDINGS OF FACT I JURISDICTION At all times material, Associated General Contractors of California, Inc (AGC) has been a voluntary associa- tion of employers engaged in the construction industry, and has been organized for a purpose, inter aim, of repre- senting its employer-members in negotiating and adminis- tering labor contracts with the collective-bargaining rep- resentatives of the employees of its employer-members During the past 12-month period, the employer-mem- bers of AGC, in the aggregate, in the course and con- duct of their respective business operations, purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California II LABOR ORGANIZATION STATUS Respondent is now and at all times material has been a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE A Relevant Hiring Hall Provisions At relevant times Respondent pursuant to contract has maintained an exclusive hiring hall or job placement center for the provision of operating engineers to signa- tory employers including members of the AGC The rel- evant placement center regulations establish criteria for classifying jobseekers into various classes, e g, A, B, C, etc, with applicants in higher classifications enjoying preference in referral over lower classified applicants The regulations also contain the following language con- cerning a "preferred" registration 04 10 02 List A for those who are classified as Class A Employees "Preferred" registration on List A shall be permitted with respect to the following classifications Assistant to Engineer—(Group 1) Compressor Operator—(Group 2) Compressors (Over 2)—(Group 5) Elevator Operator—(Group 4) Forklift or Lumber Stacker (construction job- site)—(Group 4) Generators—(Group 5) Material Hoist (1 drum)—(Group 4) I Through the amended pleadings, joint exhibits, and stipulations of fact, the parties substantially reduced the matters in dispute at the hear mg Where not otherwise noted, these findings are based on the plead ings, stipulations and/or uncontested documentary and testimonial evi dence 272 NLRB No 45 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Material Hoist (2 or more drums)—(Group 7) Pumps (Over 2)—(Group 5) Refrigeration Plant—(Group 7) Tugger Hoist—(Group 3) Welding Machines (powered other than by elec- tricity)—(Group 5) 04.10.03 An Employee making a Preferred registra- tion shall: (a) be ineligible to register and shall not register for work in any classification which is not Preferred; (b) be fifty-five (55) or more years of age and have had at least ten (10) years of employment or avail- ability for employment in any one or more classi- fications set out in Section 01.00.00 of this Agree- ment on the type or kind of craft work covered by this Agreement in Northern California, North- ern Nevada, Utah or Hawaii; provided, however, that a person who does not meet such requirements above, but who has a physi- cal handicap preventing his employment in any classification except one which is Preferred and is a Class A Employee or acquired such handicap as a result of an industrial accident while employed as an Operating Engineer, shall be permitted to so reg- ister. The regulations contain the following provisions relat- ing to disputes regarding the referral process: 04.10.45 Any Employee or applicant for employ- ment aggrieved by the operation of the registration facilities or Job Placement Center of the Union or these Regulations as applied to him has the right to submit his grievance to the Committee provided for in 04.11.00 of these Job Placement Regulations, pro- vided that such submission is made in writing within ten (10) days after the occurrence of the grievance. The Committee shall have full power to adjust the grievance and its decision thereon shall be final and binding upon the Employee or appli- cant for employment and upon all other parties hereto. 04.10.46 In the event of a deadlock, either party may request the appointment of a seventh (7th) member who shall have no business or financial connection with either party. In the event said members are unable unanimously to agree upon the identity of said seventh (7th) member, the choice shall be made by either party requesting the Federal Mediation and Conciliation Service to submit a list of five (5) arbitrators from which the said seventh (7th) member shall be chosen by each party striking two (2) names from said list, the arbitrator whose name then remains becoming the said seventh (7th) member. The matter shall then proceed to arbitra- tion before the Committee as so composed with all due expedition. The decision of said Committee shall be determined by a majority of its members and shall be rendered within ten (10) days after such submission. Said decision shall be within the scope and terms of these Job Placement Regulations and shall be final and binding on all parties hereto. Pending such decision, work shall be continued in accordance with the provisions of this Agreement. The expense of employing said seventh (7th) person shall be borne equally by both parties. 04 10.47 Forms for the submission of such grievance shall be available at all times in each Job Placement Center 04.10.48 These Regulations, including the special provisions governing specific Job Placement Cen- ters referred to in 04.10.13 of these Regulations, shall be posted on the bulletin board in each Union Job Placement Center and the bulletin board of the Individual Employer where notices to Employees and applicants for employment are posted. 04.11.00 COMMITTEE 04.11.01 There shall be a Committe composed of three (3) members appointed by the collective bar- gaining representative of the Employer and three (3) members appointed by the Union, which Com- mittee shall operate by majority rule and shall have the authority to make such changes in the job place- ment procedures as from time to time may be ad- ministratively advisable, desirable, or necessary to the end that the foregoing non-discriminatory job placement provisions will be operated as effecicient- ly and accurately as possible. On October 20, 1982, following internal discussions among union officials regarding perceived abuses of the "handicap" qualification enabling hiring hall users to transfer to the preferred list, Respondent's business man- ager T. J. Stapleton issued the following letter on Re- spondent's letterhead to the Union's various job-referral offices: October 20, 1982 TO: ALL DISTRICT REPRESENTATIVES, BUSINESS REPRESENTATIVES & DISPATCHERS SUBJECT: PHYSICAL HANDICAP Dear Sir and Brother: Question has arisen as to what constitutes a physical handicap under 04.10.03 of the Job Placement Reg- ulations sufficient to allow an individual to register on the Preferred List. That Section requires that the "physical handicap" must prevent an individual's employment "in any classification except one which is preferred." An individual seeking preferred registration should present a letter from a physician or other sufficient evidence substantiating that he has a physical handi- cap which prevents his employment in all classifica- tions except those that are preferred. If a dispatcher believes that the individual is capable of working in a classification other than those on the Preferred OPERATING ENGINEERS LOCAL 3 (AGC OF CALIFORNIA) 233 List, the matter should be referred to the District Representative for disposition If the District Representative also believes that the individual does not meet the requirements of 04 1003, the individual should be so advised and told that he has a right to appeal the determination to the Job Placement Regulations Committee B Events Concerning Arthur R Cole Arthur R Cole has been a member of Respondent for about 10 years Generally Cole registers at Respondent's Oakland referral office and has for many years been re- ferred from the A list, save for a period 5 or 6 years ago when he was placed on the preferred list after breaking his ankle in an on-the-job accident Cole suffered another on-the-job accident on January 28, 1981, injuring his back As a result he was treated by a Dr Robert Lee and remained on disability for some months Cole filed a workman's compensation claim based on this accident with the assistance of Respondent That claim remains in process without final resolution In February 1982 an internal union political campaign began concerning upcoming contested elections for vari- ous positions within Respondent A candidate for the po- sition of financial secretary was then Business Agent Norris Casey Cole campaigned for Casey's opponent in the election contest and, on one occasion, directly told Casey he was not favorably disposed towards his candi- dacy Casey was elected in August 1982 and took office in September His duties and responsibilities included, inter aim, the operation of Respondent's Oakland job placement office In this capacity, he participated in the meetings among Respondent's staff in September 1982 which resulted in the October 20, 1982 memorandum, quoted supra On February 1, 1983, Cole filed the instant charge based on a dispute not here relevant Soon thereafter he fell and aggravated his 1981 back injury On February 7, 1983, Cole returned to Dr Lee for additional treatment Cole testified that he determined "it might be time to go over on to the preferred list" and that he explained to Dr Lee the different jobs available on the preferred and nonpreferred lists Cole is not 55 years of age and thus does not qualify on that basis for placement on the pre- ferred list Approximately 1 week later, Cole learned of a potential position he desired, which was only available to registrants on the preferred register On February 22, 1983, Cole called the dispatcher at the Oakland job placement office and asked to be transferred to the pre- ferred list The dispatcher told Cole he would have to talk to Casey about the matter Cole reached Casey by telephone on the evening of February 24 Cole told Casey he would like to be taken off the A list and put on the preferred list Casey said Cole had to have "some- thing" from his doctor to do so Cole demurred, indicat- ing he did not believe that this was required under the job placement regulations Cole stood firm and told Casey if he did not like the doctor's requirement to come in and file a grievance Cole then asked what was needed from his doctor and Casey said a letter Cole asked who would pay the associated doctor's fee and Casey said that Cole would have to pay Following this exchange, the conversation ended Cole visted Dr Lee on Febru- ary 28 and told him of his view that the preferred list would provide him employment opportunities which would involve less "bouncing around" and would re- quire less sitting in the same position Dr Lee said he would "write something up" and mail it to Cole Dr Lee prepared and mailed the following letter on his let- terhead which was received by Cole on or about March 5 March 1, 1983 RE Arthur Cole DOB [Date of Birth] 11-21-40 DOI [Date of Injury] 1-18-81 To Whom It May Concern This is to advise you that the above-captioned patient has been under my medical care recently He had previously been evaluated in 1981 following an industrial injury in January of that year The patient's condition is that of chronic low back pain due to chronic low back strain It is advisable that the patient have some restric- tions as to his work These restrictions should in- clude the avoidance of prolonged sitting in a moving vehicle which irregularly buckles or bumps Additionally, the patient should avoid lifting greater than 30 lbs on an intermittent basis It is hopeful that these restrictions can be met If there should be any further medical information that I might supply, please let me know Sincerely, /s/ DKL Daniel K Lee, M D Cole went to Respondent's Oakland office the follow- ing Monday, March 8, 1983 He presented Dr Lee's letter to the dispatcher and again asked to be transferred to the preferred list The dispatcher read the letter and told Cole he would have to talk to Casey Casey was hailed and given Cole's letter which he read Cole testi- fied to the events which followed He recalled that Casey asked Cole [W]hat are you going to do if you have to lift 30 pounds I said I'm going to go get a laborer give me a hand And he said I ought to make you file a grievance And I looked up at him and I said Casey, you can't make me do anything He got very huffy, reached under the counter, grabbed a bunch of grievance forms, take 'em, take 'ern, take 'ern, he was yelling at me Cole took his doctor's letter and the grievance forms from Casey and left He did not thereafter file a griev- ance nor was he placed on the Oakland preferred list 2 2 Additional evidence was adduced that Cole later successfully regis tered on the preferred list at Respondent s San Francisco job placement office and that he later accepted nonpreferred or class A employment dis Continued 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C Analysis and Conclusions 1 Issues Respondent initially asserts that Cole failed to exhaust his internal remedies within the Union and under the col- lective-bargaining agreement and argues the complaint should therefore be dismissed without reaching the merits Counsel for the General Counsel did not address this issue at the trial or on brief Counsel for the General Counsel advances two theories of a violation First he argues that Cole was treated adversely by Casey because of Cole's political opposition in the 1982 election Second he argues that, even absent a finding of overt discrimina- tion because of Cole's political activities, the Union's handling of Cole's request was so arbitrary and invidious as to breach the Union's duty of fair representation thus violating Section 8(b)(1)(A) and (2) of the Act The Union argues the political opposition theory of the Gen- eral Counsel is simply lacking in factual support As to the arbitrary and invidious conduct theory of the Gener- al Counsel, the Union makes several points First it argues that the General Counsel concedes its referral classification system is not facially invalid and attacks only the Union's application of it in this specific case Second the Union emphasizes that Casey acted reason- ably, indeed correctly, given the information before him at the time he denied Cole's request 2 The argument concerning Cole's failure to exhaust internal remedies The Union correctly asserts that Cole could have but did not appeal Casey's refusal to transfer his name to the preferred list to the joint committee under the job place- ment regulations quoted, supra The Union argues initial- ly that this failure bars his claim here It also correctly asserts that Cole did not exhaust his internal remedies within the Union before taking his claim to the National Labor Relations Board (Board) as required by the Con- stitution of the International Union of Operating Engi- neers which binds both Cole and Respondent In support of its second argument regarding the neces- sary exhaustion of internal union remedies, the Union, on brief, correctly cites numerous Federal court decisions supporting its argument that internal remedies must be exhausted before a suit against the Union is commenced in Federal court The cases, however, are not Board cases and do not deal with or apply to charges filed with patches in Oakland Each side seeks to use this information variously to support its position on the merits of Casey's March 8, 1983 denial of Cole s request to be placed on the preferred list I find this postevent evi dence to be without significant value in deciding the issues in the case Post March 8, 1983 misconduct by Cole, as is argued by Respondent, if it occurred on this record, has little relevance in deciding the propriety of the Union's action on March 8 Cole s success in registering in San Fran cisco, as is advanced by the General Counsel, is equally of little value in deciding the merits of the Oakland action because the San Francisco agents of Respondent did not have the same information before them at the time they allowed Cole to register on the preferred list For the same reason, the testimony of Robert Skidgel, a union agent, regarding his views and opinions concerning the transfer request, must be similarly dis- counted Thus only the events up to and including March 8, 1983, are, in my view, determinative in deciding the issues raised by the complaint herein the Board which result in actions brought by the Gener- al Counsel alleging violations of Section 8(b) of the Act The Board holds there is no obligation for an individual to exhaust internal union remedies before filing a charge with the Board and further holds that such an omission is not a defense to an action alleging a violation of the Act Operating Engineers Local 400 (Hdde Construction), 225 NLRB 596, 605-606 (1976) Accordingly, I reject the Union's argument here The Board reaches the identical result regarding employee failure to pursue contractual remedies See, e g, Pipefitters Local 392 (Kaiser Engi- neers), 252 NLRB 417 fn 1 (1980) Accordingly, I reject this argument as well Thus Cole's failure to pursue either internal union or contractual relief does not limit his right to file a charge nor the General Counsel's right to prosecute the instant action 3 The political opposition theory of the General Counsel I reject the General Counsel's argument that Casey acted as he did because of Cole's opposition to Casey in the 1982 union elections I do so because of a lack of convincing supporting evidence The mere fact that Cole opposed Casey in February 1982, and said so to Casey's face, is simply not sufficient evidence, on this record, to support the General Counsel's contention here Cole ex- perienced no difficulties in being dispatched out of Oak- land after February 1982 on the A list There is simply no evidence that Casey ever threatened Cole or others during or after the election campaign or evidenced animus against Cole because of his political opposition to Casey While it is true the evidence reveals the two men had a somewhat brittle relationship, which manifested in abrupt and difficult conversations, I am satisfied, particu- larly on considering the demeanor of the two during their testimony, that this somewhat strained relationship was a result of the divergent personalities of the two men rather than a result of earlier intraunion political dif- ferences Considering the record as a whole, I find the General Counsel has not produced sufficient evidence to support his contention here Accordingly, I reject this al- legation of the complaint 4 The arbitrary and invidious conduct theory of the General Counsel There is little dispute regarding the law which applies to union operation of hiring hall referral systems The General Counsel, on brief, correctly cites cases holding that a referral system may not be operated by a labor or- ganization without objective criteria or standards and that a system "based solely upon subjective criteria with- out any objective criteria is itself violative [of the Act] Laborers Local 394 (Building Contractors), 247 NLRB 97, 104 (1980), relying on Teamsters Local 174 (Totem Bever- ages), 226 NLRB 690 (1976) Turning to the facts of this case, the standards of the referral rules for placement on the preferred list con- tained in Respondent's job placement regulation, as quoted in full supra, are not under attack by the General Counsel Rather the General Counsel challenges the way the Union applied that standard in general under the Oc- OPERATING ENGINEERS LOCAL 3 (AGC OF CALIFORNIA) 235 tober 20, 1982 memorandum and, in particular as to Cole Counsel for the General Counsel argues on brief Respondent's response to what it termed abuse of the preferred list was its letter of October 20, 1982 (RE2) The letter failed to establish any objective criteria or standards to be used by Union officials in determining when to deny preferred list status It provides that if a District Representative "believes," for some reason, that he is not eligible for the pre- ferred list, that individual's request should be denied Thus, the Respondent has directed dispatch- ers and District Representatives to substitute their impressions and beliefs as to members' [sic] physical disabilities for the medical judgment of the mem- ber's [sic] physician Robert Skidgel, District Repre- sentative of Respondent's San Francisco office, tes- tified the decision to place or not to place an indi- vidual on the preferred list ultimately comes down to the personal judgment of the union official (Tr 76-77) It is this exercise of subjective personal judgment in denying Cole's placement on the pre- ferred list which General Counsel contends consti- tutes unlawful discrimination Thus the General Counsel appears to argue initially that the procedures established in the October 20 memo- randum require per se invalid "subjective personal judg- ments" in ruling on "handicap" issues and that Casey's decision regarding Cole was such an improper decision because of the subjective standard applied The General Counsel also argues that Casey's conduct was independ- ently capricious and arbitrary Respondent defends Casey's rejection of Cole's request by noting that Dr Lee's letter offered in support of Cole's claim refers to only a 1981 injury and that Casey in March 1983 well knew Cole had regularly worked at jobs filled from the nonpreferred list since 1981 The Union argues further that the unchallenged job place- ment regulations require those applicants under 55 years of age to demonstrate that their handicap prevents em- ployment in all classifications except preferred classifica- tions and that neither Cole's request or Dr Lee's letter fulfilled this plain and objective requirement of the regu- lation 3 Thus argues the Union, Casey could have prop- erly formed and did form a reasonable belief that Cole was not qualified for a transfer to the preferred list The Union further notes that Casey invited Cole to invoke the next or higher stage in the classification determina- tion procedure, if Cole wished to challenge Casey's re- fusal to reclassify him Thus he gave Cole grievance forms used to take such an appeal Given all that Casey knew at the time he made his decision, argues the Union, 3 Much testimony was taken concerning the requirements of skill and physical effort required in both preferred and nonpreferred classifications The two classifications are not susceptible to simple generalizations con cerning job requirements Some jobs in each classification involve little exertion and some jobs in each classification require little skill with the preferred jobs generally involving fewer skills It is clear that Dr Lee's letter recital of Cole's work limits does not, by its terms, definitively re strict him to preferred classification jobs Thus, as the Union argues, the letter does not by its terms alone entitle Cole to a transfer to the pre ferred register under the regulations his decision and actions were not only not arbitrary and discriminatory, they were also correct The General Counsel's argument here, as noted, has two elements The first is that any decision by a Union agent to deny a transfer application supported by a letter signed by a doctor is a "subjective personal judgment" which must run afoul of the Board's prohibition against classification systems based solely on subjective rather than objective cntena While not made directly, the General Counsel's argument implies that the October 20, 1982 letter, if considered as a part of the hiring hall reg- istration system rules, taints the entire preferred classifi- cation process and any refusal to reclassify an employee by putting him or her on the preferred list based on the memorandum's instructions is a per se violation of the Act I reject this implicit argument of the General Coun- sel as representing a misunderstanding of the distinction between a system without objective standards and a system which requires human judgment in applying ob- jective standards to varying human conditions All objec- tive standards are met or tested by the consideration of evidence Evidence must be weighed, conflicting evi- dence evaluated, and all relevant circumstances consid- ered Personal judgment in evaluating such evidence in order to determine if an objective standard has been met is a frequent and necessary part of decision making Board cases require that unions avoid arbitrary or capri- cious acts which injure those they represent It does not require, nor could such a standard be achieved by mor- tals even if required by law, that personal consideration of evidence and personal evaluation and judgment not be undertaken by union agents in applying established hiring hall standards and procedures to specific situations as they arise I have considered the Union's classification standards, construing the October 20, 1982 letter to be a part of those standards, to determine if they are fatally subjec- tive under Board cases Even though the classification system utilizes union agents to act on their personal be- liefs regarding the asserted handicaps of employee appli- cants, I do not find this discretion factually arbitrary or without sufficient objective standards The Union's busi- ness agents are presumably familiar with the physical re- quirements of the jobs on the job placement roles They, as medical laymen, are not able to make medical diag- noses, but are able to determine if a handicap claim is consistent with a given individual's work history and can determine if the asserted handicap is sufficient to support the transfer request under the regulations quoted supra Thus, in these ways at least a business agent need not accept a doctor's letter as a definitive determination of or justification for a transfer request 4 The second part of the General Counsel's theory is that Casey, irrespective of the system's validity, in exer- cising his personal judgment as to Cole, acted arbitrarily 4 There is no evidence to suggest, nor does the General Counsel con tend, that the October 20, 1982 memorandum was issued in other than a good faith effort to reduce abuse of the preferred classification It is of course obvious that if large numbers of young healthy registrants transfer to that list, its utility to the truly qualified will be substantially dimin 'shed 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and capriciously in denying Cole a transfer to the pre- ferred list The record indicates that, while Casey had denied other requests for transfers to the preferred regis- ter based on asserted handicaps, during the relevant period Casey acquiesced in several transfer requests based on back pain handicaps The General Counsel argues that this past practice, as well as the fact that Cole presented a doctor's letter to Casey, rendered Casey's rejection of Cole's claim arbitrary and capri- cious I have considered the General Counsel's arguments re- garding Casey's application of his personal judgment to the transfer request in light of Casey's knowledge of Cole's situation at the time I find, in part based on Casey's persuasive demeanor as a witness, that his ac- tions were based on a sincere belief that Cole was not qualified for transfer to the preferred register Further I find that his determination was not arbitrary and capri- cious as defined by Board standards and thus did not constitute a violation of the Act At the time Casey re- jected Cole's request, Cole had not presented unambi- gious evidence that he was objectively qualified for the preferred list As noted supra, Dr Lee's letter did not definitely qualify Cole for the preferred list Further Casey at the time of the request had formed a good-faith belief that Cole was seeking to abuse the system by ob- taining an undeserved transfer 5 In reaching this conclu- sion I have considered, but do not find sufficient to sup- port the General Counsel's claim, the fact that Casey did not inquire further of Cole or Dr Lee regarding the spe- cifics of Cole's condition Neither, of course, did Cole proceed further Under all the circumstances, including the fact that there was a higher body established and available to review rejected applications to transfer to 5 Casey was also aware of the Union s recent efforts to limit abuse of the preferred register by more rigorously scrutinizing claims of handicap the preferred register 8 and that Casey invited Cole to seek such review, I do not find that Casey, and hence the Union, violated the Act in rejecting Cole 7 Accord- ingly I shall dismiss this aspect of the complaint CONCLUSIONS OF LAW 1 The employer-members of the Associated General Contractors of America, Inc are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Union has not violated the Act as alleged in the complaint Based on these findings of fact and conclusions of law and on the entire record, I issue the following recom- mended8 ORDER The complaint shall be dismissed 5 I have previously held that a failure to exhaust contractual remedies does not preclude Board ajudication of a union s actions in denying a re quest for a referral system classification change That is not to say how ever that the existence of a review procedure which was available to review the action under contest here is not relevant in evaluating the fair ness of the system as a whole or in considering if the actions of Casey here were within the range of permissible conduct 7 In making this conclusion I specifically decline to determine if, in fact, Cole was qualified for the preferred list Given my finding of a good faith action by Casey, were Casey in fact wrong in rejecting Cole such an error would be one of judgment and It is clear that "the burden of demonstrating breach of duty by the Union involves more than demonstrating mere errors in judgment Hines v Anchor Motor Freight, 424 US 554, 570-571 fn 16 (1976) 8 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