NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
International
April 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On December 13, 2007, Administrative Law Judge John H. West issued the attached decision. The Respondent Union filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge’s decision.
The National Labor Relations 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,1 and conclusions and to adopt the recommended Order as modified.2
For the reasons stated by the judge, we agree that the Respondent Union violated Section 8(b)(1)(A) and (b)(2) of the Act, and its duty of fair representation, by departing from its established referral procedure when it dispatched member David Waters to work at a tank farm refurbishing project operated by Minnesota Limited (ML).
The Board has long held that a departure from established exclusive hiring hall rules that denies employment to an applicant
inherently encourages union membership, breaches the duty of fair representation . . ., 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 representative function.
Operating Engineers
Local 406 (Ford, Bacon & Davis Construction Corp.), 262 NLRB 50, 51
(1982), enfd.
The Board has found that isolated referral errors in the operation of union hiring halls resulting from “mere negligence” are not unlawful.4 However, Thomason’s sustained insistence on referring Waters, compounded by the Local’s refusal to correct his action even in the face of protest, was not mere negligence.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Union of Operating Engineers, Local 150, AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Referring a member, or refusing to refer Richard Chiado or any other member, for a job in violation of the Respondent’s established, nondiscriminatory referral procedure.
(b) Threatening to deny work to Richard Chiado if he asserted his referral rights under the Respondent’s established hiring hall procedure.
(c) 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 necessary to effectuate the policies of the Act.
(a) Make whole Richard Chiado, or any other qualified individual whom it should have referred to Minnesota Limited, Inc. at its Pontiac, Illinois tank farm site, for any loss of earnings and other benefits suffered as a result of Respondent’s referral of David Waters in violation of its established hiring hall procedure, in the manner set forth in the remedy section of the decision.
(b) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(c) Within 14 days
after service by the Region, post at its
(d) Sign and return to the Regional Director sufficient copies of the notice for posting by Minnesota Limited, Inc., if willing, at all places where notices to employees working at the Minnesota Limited, Inc., Pontiac, Illinois tank farm jobsite are customarily posted.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees and members
Posted by Order of the
National Labor Relations Board
An Agency of
the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refer any member, or refuse
to refer Richard Chiado or any other
member, for a job in violation of the
We will not threaten
to deny you work if you assert your referral rights under the
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will make whole Richard Chiado or any other qualified individual who should have been referred, pursuant to the Union’s referral procedure, to Minnesota Limited, Inc. at its Pontiac, Illinois tank farm site, for any loss of earnings and other benefits suffered as a result of our referral of a member to that site in violation of the Union’s established referral procedure.
International
Deborah A. Fisher, Esq., for the General Counsel.
Dale D. Pierson, Esq., of Countryside,
DECISION
Statement of the Case
John H. West,
Administrative Law Judge. This case was
tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by counsel for the General Counsel and the Respondent, I make the following
Findings of Fact
i.
jurisdiction
Minnesota Limited, Inc. (ML), a corporation with a jobsite
located, inter alia, in
ii. alleged
unfair labor practices
Respondent operates in
With respect to pipelines, the national pipeline agreement (GC Exh. 6), which is negotiated by the International Union of Operating Engineers, is administered by the locals, including Local 150. Under the national pipeline agreement employers are permitted to bring their regular employees to staff any job up to 50 percent of the number of employees required for the job. Usually there is a prejob conference involving the employer and Local 150. What is involved, including the staffing of the project, would be discussed at this conference. Dan Regan, who is assistant to the president of Local 150 and the director of Pipeline and Distribution, testified that under the national pipeline agreement a member of Local 150 cannot solicit work directly with an employer signatory to that agreement and if he did, he could be disciplined.
Counsel for the General Counsel and the Respondent stipulated that Respondent’s offices, with respect to its referral procedure under the building agreement (GC Exh. 2) and the heavy and highway and underground construction agreement (GC Exh. 4)—with regard to construction work, operate as exclusive hiring halls; and Respondent stipulated that the local’s offices do refer individuals from the same lists to other industries but in other industries that are not construction it cannot be an exclusive hiring hall by law but rather it has to be considered a referral hall, and the Heavy Highway and Building and the pipeline agreements are all construction agreements.5
When called by counsel for the General Counsel, Regan testified that he oversees the business agent in pipeline; that each of the eight districts of Local 150 has a referral office; that District 5’s office is located in Utica, Illinois; that article II, section 7 of the building agreement refers to addendum no. 1 (GC Exh. 3) of the agreement, which addendum sets forth the procedures to be followed by the referral offices in making referrals to employers who are signatory to the building agreement; that article XII of the heavy and highway and underground construction agreement refers to addendum no. 1, which is the same addendum referred to in the building agreement and which, as noted above, sets forth the procedures to be followed by the referral offices in making referrals to employers who are signatory to the heavy and highway and underground construction agreement;6 that in each district the same referral office is used for both the building agreement and the heavy and highway and underground construction agreement; that article II(I) of the national pipeline agreement, which—as noted above—is General Counsel’s Exhibit 6, provides that an employer has the right to employ and bring onto the job men who are regular employees of that employer, with the limitation that the employer cannot bring on more than 50 percent of the employees on the job; that article II(N) of the national pipeline agreement provides that in the event a valid nondiscriminatory exclusive referral procedure has been established by collective bargaining between a local of the Union and an association of highway and heavy contractors in the area in which the job is to be done, the employer agrees to utilize such referral procedures; that the referral procedure that article II(N) of the national pipeline agreement refers to is set forth in addendum no. 1 (GC Exh. 3); that the prejob is also “part of it” (Tr. p. 32); that article II(N)(a) reads “Nothing in this Agreement shall affect the Employer’s inherent right to determine the competency and qualifications of his employees and his right to reject and discharge men accordingly”; that paragraph 9 of addendum no. 1 (GC Exh. 3) provides “The Employer may reject any registrant dispatched by a Referral Office for employment. The Employer shall determine the registrant’s ability and competence to satisfactorily perform the work prior to on the job employment.” (This paragraph goes on to indicate “Such determination shall not be the responsibility of the Union.”); that each district referral office maintains its own separate list; that addendum no. 1 provides that all registrants are to be dispatched in the order of registrant’s date of registration as available for work, and in accordance with their experience; that the dispatchers are the individuals who determine who is to be referred and who make the referrals under addendum no. 1; that the dispatchers review the work history cards and the employment history of registrants to determine their capabilities; that all of the dispatchers in the eight offices report to Pauline Leitzell, who is the dispatch supervisor and who is located in Local 150’s Countryside, Illinois office; that as of February 2007, there was no separate pipeline referral list; that the dispatchers referred members to the pipeline jobs from the same list from which they made referrals under the building agreement and heavy and highway agreement; and that Roddie Thomason, who has been Respondent’s pipeline business representative for 13.5 months, has his office in Countryside.
Leitzell testified that she has been the dispatch supervisor for 5 years; that it is her job to make sure that all of the District offices of Local 150 are run the same; that she was a regular dispatcher for 3 years and before that she was the office manager for the apprenticeship office of Local 150; that she has worked for Local 150 for 21 years; that she works in District 1 in Countryside, which is in the Chicago, Illinois area, and she fills work orders for her area; that Local 150 dispatchers fill work orders and send people to work; that addendum no. 1 are the rules of dispatch; that when a contractor calls in and asks for an operator of a specific piece of equipment, the dispatcher goes to the first member on the out-of-work list whose workcard indicates that the member can operate that equipment; that the fact that the member can operate the involved piece of equipment has to be on the member’s workcard before the dispatcher can call that member; that a business agent has no role in dispatching members to work; that District 5 has fewer members on its out-of-work list and it is not as busy as District 1; that there is usually a prejob conference with a pipeline job; that the stewards on a pipeline job have the right to call the union hall and place an order for the contractor instead of having the contractor do it; that there is no other way she would take a request from an employer for employees; and that the employer has to call and place a work order.
Frank Studer, who has been a member of Local 150 for 20 years, testified that he is a journeyman and he went through the apprenticeship program; that he was appointed a business representative of Local 150 from 1994 until 2006; that as a business representative he was involved in approximately 100 pipeline prejob conferences; that he is familiar with the referral system under the national pipeline agreement which has two facets to it in that either the union is a nondiscriminatory referral hall or the union keeps a pipeline list that contractors are allowed to choose from; that in Local 150’s case, the Union has a nondiscriminatory out-of-work list, a referral system that is negotiated in the Union’s heavy and highway collective-bargaining agreement and in the national pipeline agreement, and dispatchers fall under that rule; that the referral system under the heavy and highway agreement is the same as the referral system under the national pipeline agreement, and addendum no. 1 applies to both; that employees in Local 150’s jurisdiction cannot go out and find his own job in Local 150’s jurisdiction; that under the national pipeline agreement under Local 150’s jurisdiction a member who wants to work has to sign up on the various out-of-work lists in the different districts where work would be available and wait for the dispatcher to call him; that according to the mainline pipeline agreement, if a local has an exclusive hiring hall procedure that is negotiated within its heavy and highway agreement, which in Local 150’s case is addendum no. 1, then all dispatches after the company hires its regular employees, are to come through that procedure; that when he was a business representative covering pipeline jobs, Thomason was the steward on many of those jobs; that in 2005, he had a conversation with Thomason outside the hall at Local 150’s District 2; that at the time Thomason was working under him as the steward on a small pipeline job; that Thomason had come to the hall to place a work order for a side boom operator that he needed the next day; that the next operator, Mike Goodwin, was available but Thomason did not feel that Goodwin was qualified to handle the side boom that he was going to be sent out on; that he told Thomason that the dispatcher makes the call, the dispatcher said that Goodwin was the next qualified guy, “He has got side boom on his card, Roddie. He is the next guy that is going to go” (Tr. p. 180); and that
. . . Roddie had said to me that the particular side boom that Mike was going to run was going to need someone who was able to work without counting on other side boom operators to pick up his slack. He is not going to be between other guys picking up a piece of pipe that required more than one. There were valves involved that were very heavy, and close to capacity for that machine, and he felt it was over Mike’s ability.
I said to Roddie that ‘If Mike says he can do the work, it is not for us to decide. The contractor is going to have to make that call, Roddie.
Roddie said that if Mike was any kind of a guy, he would refuse the job, because he knows he is not qualified to do it.
I then said to Roddie, . . . ‘Roddie, we are not building an all-star team. If the guy says he can do the job, we have to send him.’
At that point, Roddie produces a copy of the Pipeline Agreement to me, and went over parts of the agreement that cover areas of the country where locals do not have exclusive hiring halls, where locals have to provide a list of operators that are qualified to do work and the contractors are allowed to pick from that list. Roddie felt that that was the system that we should be using here.
I told Roddie, ‘If you read a little further into the agreement, it says in the agreement, that if you have an excusive hiring hall, that prevails,’ and Roddie said that he didn’t believe that that should be the case.
I told Roddie, at that point, ‘I will go straight to Bill Dugan [who was at the time and still is President of Local 150] and get an answer for you. I will go right to the top.’
The next day I called Bill’s office, and I asked Bill if he had time for me to stop up and talk to him about . . . an interpretation of the agreement.
Bill said I could stop up that afternoon. [Tr. pp. 180 and 181.]
Studer further testified that he met with Dugan; that he told Dugan about the question and Dugan, without hesitation, said “we have never allowed contractors to pick their own people. Addendum no. 1, the hiring hall, prevails on that.” (Tr. p. 182); that in his presence Dugan, using a speaker phone so that he could also hear what was being said, telephoned two International vice presidents who were also business managers of other Locals of the Operating Engineers; that the two vice presidents, Gerald Ellis and Fred Durschek, told Dugan that they never allowed the contractor to pick, their hiring hall prevails, the contractor has to take the member in order off the list, and it is up to the contractor to decide whether or not they are qualified after the Union refers the member to the job; that Dugan then told him that he had his answer not only from him but also from the two other International vice presidents; that the next time he talked to Thomason he told him what Dugan and the two International vice presidents had said; and that he told Thomason
Roddie, I took it to Bill, and Bill says Addendum No. 1 rules, and our dispatches are going to come in order. Whoever the dispatcher says is up, that is who you are going to get, and the contractor is going to have to make the decision as to whether or not they are qualified. [Tr. p. 185.]
And Studer further testified that it is the job of the dispatcher in the referral hall to decide who has the qualifications for the job and should be sent out.
On cross-examination Studer testified that it is not true, in his experience, that even under addendum no. 1 the prejob conference can modify the hiring hall provisions, the actual taking of men off of the list in rank order; and that he knows of no case where in the prejob conference a signatory contractor or a business agent is allowed to renegotiate the national pipeline agreement. Subsequently, Studer testified that in the approximately 100 prejob conferences he participated in not once did either the contractor or the business agent approach what was going on in terms of the prejob conference being able to modify addendum no. 1.
General Counsel’s Exhibit 15 is the out-of-work lists from
Respondent’s
General Counsel’s Exhibit 10 is an “I.U.O.E. PIPELINE
PRE-JOB CONFERENCE REPORT” dated “1-12-07.” The contractor named on the form is ML. The job location is
Thomason testified that he became a pipeline business agent for Local 150 about 14 months before he testified at the trial herein; that before that he was a part-time instructor at Local 150’s training site since 2001 over the Pipeline Division; that he taught side boom, which are pipe layers, backhoes, and angle blade dozers; that he has worked in pipeline in about a total of 15-named states since 1969;8 that he served as a pipeline union steward from 1989 to 2006, working part time as an instructor; that a union steward on a pipeline project (a) attempts to get as many of his fellow members out on the job as possible, as opposed to individuals from other locals, (b) makes sure that the first operator sent out is the very best and will not be rejected because this can increase the percentage of operators that Local 150 gets to dispatch, and (c) calls in work orders to have the union refer out members; that nonunion contracting companies are increasing their market share in the pipeline industry; that the contractor can call in to the union hall and then make anyone referred out to the job do a proficiency test on the equipment involved before the contractor ever lets the member who was referred out on the right-of-way; that he did the prejob on the BP large storage Tank Farm project in Pontiac, it was supposed to be a 24- or 25-month project, and it involved refurbishing the facility; that the general contractor on the job was ML, which is a national pipeline contractor that he had worked for before; that since the manifolds were inside the tank farm it meant that product was going into the tank farm at mainline pressure; that there was no metering stations outside or inside the tank farm; that part of the refurbishing involves replacing pipe, namely replacing all of the branch and lateral lines which feed the tanks inside the tank farm itself, which is work customarily done under the pipeline agreement; that if there was a metering station outside of the tank farm itself, then what goes on the going away side of the metering station comes under distribution; that it would not come under building and trades anyway, not taking up and relaying the pipe; that pre-jobbing pipeline projects is part of his current responsibilities as business agent; that as business agent he has attended at least 100 pipeline prejobs; that his objective at the pipeline prejob conference is to get as many Local 150 members on the job as possible; that in the winter of 2005–2006 ML did some work at the involved tank farm and Dave Waters, who was working on the project,9 would call him because he was not familiar with the agreement; that he called Brian Borwig, who works out of District 8 and who worked for ML before, asked him if he was interested in being the steward at the tank farm, and Borwig accepted; that General Counsel’s Exhibit 10 is the “1/12/07” prejob under the national pipeline agreement which he signed for the involved project; that Borwig and Local 150 boom truck operator Craig Walker, who is considered a key man for ML since he is never off their payroll, also attended the involved prejob; that Gary Norris, who is ML’s general superintendent, and Ron Reed, who is a Company foreman under Norris, attended the prejob; that “this is one of the very pre-jobs that I didn’t go into decisions and clarifications and attach it to the pre-job” (Tr. p. 312); that it was agreed at this prejob that Local 150 would supply 100 percent Local 150 members; that it was proposed that there would be up to six operators within a week and one half if the material came in; and that there was a shortage of pipeline material in this country at the time.
On cross-examination Thomason testified that, with respect to his testimony that an objective of his is to get as many Local 150 members as he can on a job, under either the building agreement or the heavy and highway agreement a business agent wants to minimize the number of key men that an employer brings in with it; that he is not that familiar with addendum no. 1 but he thought he read it; that, in his opinion addendum no. 1 does not apply to pipelines but rather “the most experienced applies on pipeline jobs” (Tr. p. 340); that in 2005–2006 it was Dick Waters, who is Dave Waters’ father, who called him about the ML Pontiac tank farm project which had been prejobbed under the building agreement;10 and that it was totally wrong to prejob the 2005–2006 ML Pontiac tank farm project under the building agreement.
On re-cross, Thomason testified that he only put backhoe and truck crane on the prejob conference report, General Counsel’s Exhibit 10, because no one knew the situation with the material and the project was shut down three times because they did not have the material.
In response to Respondent’s counsel’s questions, Regan testified
that the objective of the
General Counsel’s Exhibit 9 is a work order. As here pertinent, the printed portion of the form reads as follows:
|
Date__________________ |
Time__________ |
By___________ |
|
Contractor______________________________________________ Location of
Job__________________________________________ |
||
|
|
City__________________________ Equipment_____________________ |
|
|
What is Wanted_________ |
||
|
|
|
Time:________ |
|
|
Sent__________ |
By:__________ |
|
When Wanted__________ |
|
|
|
Call From_____________ |
|
|
|
Phone No._____________ |
|
|
As here pertinent, the following handwriting appears on
the first line of the form: “1/24/07,” “2:30,” and “SB.” “Minnesota Ltd” is written on the second line
of the form. “Pontiac (Tank Farm)–B
& B State Rt . . . 23” is written on the third line of the form. “Brian Borwig–Steward 150–641/990-6086” and “
Sheila Brewer, who was a dispatcher at Local 150’s District 5 referral hall in Utica for 21 years until August 23, testified that she ran the whole office at District 5, including dispatching members to jobs; that she reported to Business Agents Randy Hill, Terry Waldron, and Kevin Trolio; that when she served as dispatcher the contractors would call the hall when they needed an operating engineer; that she would go down the out-of-work list looking at the members skills and qualifications and dispatch members to the jobs; that she is familiar with the building agreement, the heavy and highway agreement, and addendum no. 1 which is the procedures the dispatchers follow as they go down the out-of-work list and dispatch members; that the building agreement and the heavy and highway agreement both refer to addendum no. 1; that when she made referrals under the national pipeline agreement she followed addendum no. 1 in making those referrals; that for the members to obtain work under any of these three agreements, the members had to call in or stop in at the referral hall and have their name placed on the out-of-work list according to their call in date and time; that the same procedure was followed for all three of these agreements, including the national pipeline agreement; that the referral list was posted in the referral hall in the reception area so that the members could review it; that Karen Milano worked with her as a dispatcher for about 1 year; that when someone calls in to register for referral the dispatcher records the name, date and time of the call on the out-of-work register; that the register is updated on the computer daily and a printed copy is posted weekly; that when she needs to make a referral she starts at the lowest number and looks to see whether they have the experience and qualifications; that in the District 5 office the dispatcher actually makes the referral; that she is the one who makes the decision whether or not the individual is qualified, after looking at the member’s workcards and sometimes calling and asking the member about his skills; that, as here pertinent, she always went to the main list first, which list contained the names of members who had their card for 4 or more years; that she would go according to addendum no. 1; that when she made the decision on who to send to the job she would telephone the member and tell the member to go to the job; that General Counsel’s Exhibit 15 are out-of-work lists of District 5; that, as noted above, on the out-of-work list dated January 26, Richard Chiado is number 95 and David Waters is number 108; that the name of David Waters is not on the out-of-work list dated February 9 because he was dispatched out; that all of the handwriting on General Counsel’s Exhibit 9, the January 24 work order described above, is hers, and the “SB” at the top right hand corner are her initials; that she became aware on January 24 that ML had a job in District 5 at a tank farm in Pontiac when Thomason telephoned; that when Thomason first called she was not in the office and he spoke with Debbie Cargill, who was a 1-week sub (Cargill normally works as a dispatcher in District 2 in Joliet, Illinois.) because Molina was on vacation; that when she returned from lunch Debbie told her that Thomason called; that Thomason called later that day at 2:30 p.m. and she spoke with him at that time; and that
He [Thomason] called regarding a job in Pontiac, and immediately mentioned Dave Waters’ name, and I told him that Dave was, at that time, was 109 on our list, and he did not have pipeline OQ.
Roddie [Thomason] just kept insisting that no one else could perform this work.
. . . .
I just said, I am supposed to follow my out-of-work list, and I even gave him the names, because he is familiar with all of the pipeliners.
The job wasn’t supposed to start for a couple of weeks, and then, I read the names. I read Stan Shevokas, Jim Shannon, Richard Chiado . . . I started naming all of my names that were ahead of Dave Waters on the out-of-work list.
. . . .
I just explained to him that there were several members that had pipeline OQ ahead of Dave Waters, on the out of work list, and he said that the job was two weeks away, and that he insisted that he needed Dave Waters, that he had the skills that he needed for this particular job, and that he would call me back in two weeks. [Tr. pp. 202–207.]
Brewer further testified that she got the names she gave Thomason by going down her out-of-work list, seeing who had pipeline OQ and dozer work; that when she came back from lunch on January 24 Debbie told her that Thomason had called, what Thomason said regarding what he wanted, and Debbie told Thomason that he would have to call back when Shelia Brewer was there; that Debbie did not write a work order when she spoke with Thomason; that as indicated by the time on the work order, “2:30,” she, Brewer, wrote the work order when Thomason called back; that she wrote “OQ” on the work order because she thought that every pipeline job required the operator to have OQ, because she thought why do we have the training, that was the whole point; that she crossed “OQ” out when Thomason told her that he did not need it; that as indicated on the work order, she sent Dave Waters to the tank farm job in Pontiac on “2/1” and she initialed this; that when Thomason called her back on about February 1, they repeated the January 24 conversation and Thomason also told her that if anybody had any questions, because she was still concerned about going that far down the list, they should speak with him; that this is why she put the “per Roddie Thomason” on the work order; that she knew that Dave Waters was not OQ because she asked him and he told her that he was scheduled to take OQ on February 3, so she felt a little bit better; that Dave Waters did not take pipeline OQ on February 3; that in giving the names of members to Thomason she reviewed the out-of-work list, workcards, and the employment history of the various people who signed the out-of-work list and were ahead of Dave Waters; that Steve Joiner was number 44 on the January 26 out-of-work list, Jim Cavallini was number 64, Stanley Shevokas was number 84, and Richard Chiado was number 95; that she did not type “ Fin–Pipeline” under the category “DOZER” on the last page of David Waters’ workcard (GC Exh. 11), but rather Debbie put that on the card the week she was there “[a]fter all these calls with . . . Thomason [on January 24]” (Tr. p. 217); that she saw Dave Waters’ workcard as of January 24, and “ Fin–Pipeline” under “DOZER” was typed on the last page; that she did not write “Right Away, cleanup, Shading” on the last page of Dave Waters’ card and she did not know whose handwriting it is and when this was written on the card, and she does not put qualifications down in the “CLASSIFICATIONS” area of the card where this handwriting is found; that the “HAZMAT 3-1404” at the top of the last of Dave Waters’ card looks like the handwriting of Molina; and that with respect to the entry “PIPELINE OPERATOR QUAL., 12/5/,” the entry is not complete but at the time of the involved referral she knew that Dave Waters’ pipeline OQ had expired.12
Thomason testified that sometime after the involved prejob conference the steward at the Pontiac tank farm job, Borwig, called him and asked him if he knew a good pipeline dozer operator in District 5 that knew how to topsoil, right-of-way, backfill, and clean up; that he gave Borwig two names, Tom Walgenbach and Dave Waters, both of whom he considered to be do-all dozer operators; that he told Borwig that he needed somebody who knows how to shade the pipe so that there would not be a lot of debris on it; that he called District 5 in Utica from District 2 in Joliet and spoke with Debbie Cargill, who at the time was filling in for Karen Molina who was on vacation; that Debbie Cargill is a dispatcher from District 2; and that
A. I explained to her what Brian needed and she started going down the list—
Q. What list?
A. Whatever list District 5 has.
Q. The District 5 out-of-work list?
A. Yeah.
Q. And did she give you names of operators?
A. Yes.
Q. How many
operators did she identify for you?
A. Three.
Q. Do you remember who they were?
A. Yes, because Jim
Shannon was the first name that she called, and I said, ‘Well, that can’t be,
because he is in
Q. Who came
next?
A. Stanley
Shevokas, or something like that.[13]
. . . .
Q. So, was Mr.
Shevokas available?
A. No, the way I
understood it, he was on vacation.
Q. Okay, and so who came next?
A. Dave Waters.
Q. Did he fill the experience requests of Mr. Borwig, on behalf of Minnesota Limited?
A. Yes, yes, he did.
Q. And what happened next?
. . . .
A. . . . [the dozer] was supposed to come in [to the tank farm], but it was delayed.
Q. Okay, so how did that affect the dispatch of Mr. Waters to the project?
A. He had to wait four or five days to come . . . out [to the job]. [Tr. pp. 318–320.]
Regarding Richard Chiado, Thomason testified that he
worked with him in 1996 or 1997 in District 7 of Local 150 in Maryville,
Indiana, on a Coolset pipeline project; that at the time he was running a side
boom for tie-ins and Richard Chiado was oiling on a backhoe; that he did not
see Richard Chiado operate any equipment on that job; that he has worked with
Richard Chiado on a total of four or five jobs; that in 2000, he was a steward
on the Vector job for Sheehan and he called Richard Chiado out as an oiler on
behalf of the contractor; that he next worked with Richard Chiado in 2002, on
the Guardian project for contractor H. C. Price when he, Thomason, was a
steward and Richard Chiado was originally assigned to operate a hoe pulling the
backfill and topsoil out of the fields; that allegedly he received complaint
from the foreman regarding Richard Chiado’s performance (The foreman who
allegedly complained was not called as a witness by the Respondent.) and he
moved Richard Chiado to another position on the job; that subsequently Richard
Chiado quit the Guardian project; that he thought that he succeeded in getting
Richard Chiado a layoff on the Guardian project so that he could draw
unemployment; that when he went about securing a dozer operator for the ML tank
farm project in early 2007 he did not consider Richard Chiado and the
dispatcher did not offer Richard Chiado as a candidate, his name never came up;
that based in his experience with Richard Chiado, he did not believe that
Richard Chiado had the skills to run a finish dozer on the ML pipeline project,
especially with respect to right-of-way or clean up because Richard Chiado “just
hadn’t been around it enough. It is something
you have got to be around several years before you can do it by yourself” (Tr.
p. 329); that based on his 30 years of experience, he believed that it takes an
otherwise skilled operator a “good eight to ten years” (Id.) to become a good
pipeline finish dozer operator and, to his knowledge, Richard Chiado did not
have such experience (Thomason then conceded that, to his knowledge, Dave
Waters also did not have such experience. Subsequently, it appears that
Thomason changed his answer to yes, Dave Waters did have such experience.);
that, in his opinion, Dave Waters was qualified for the finish dozer operator
job at the ML tank farm project; that even a highly skilled non-pipeline dozer
operator cannot operate a cleanup dozer on a pipeline because on a pipeline the
only stakes are on each side of the right-of-way; and that there would be a
risk involved in having someone who is not a cleanup trained, pipeline dozer
operator “[d]epending on if you are working over or around a bunch or existing
loaded gas lines. . . .” (Tr. p. 336.)
On cross-examination, Thomason testified that the Pontiac tank farm job involved removing old pipe; that when the old pipe is removed it is no longer pressurized; that you could not remove a live line; that on the H. C. Price Guardian job in 2002 when Richard Chiado came to the job he told Richard Chiado that he was going to operate an excavator; that he did not think that Richard Chiado told him that he had never operated an excavator on a pipeline job before; that he had never seen Richard Chiado operate an excavator on a pipeline job before; that the complaints were about Richard Chiado’s operation of the excavator and not about any operation of a dozer on that job; that he did not remember if Richard Chiado had been sent out to operate a dozer on that job; that he could not remember if on that job Richard Chiado asked for a layoff from the H. C. Price job; that he does not know how many years Dave Waters has got on a dozer; that he looked at Dave Waters’ work history card on February 13; that the card shows that Dave Waters on “5/17/2000” worked ‘Dozer with Murphy Brothers’; that Dave Waters worked less than 2 months on that job; that while the cards indicate that Dave Waters worked as a dozer operator for T. J. Lambrecht—a road and heavy highway contractor, they do not show that Dave Waters worked as a dozer operator on any other pipeline job other than the aforementioned May 17, 2000 Murphy Brothers job; that Debbie Cargill is still employed by Local 150 as a dispatcher in District 2 in Joliet; that Debbie Cargill has been a dispatcher since the 1990s; that other than the one occasion when Debbie Cargill was substituting as a dispatcher in the District 5 Utica office, he had never known her to work at the District 5 office before; that he did not have conversations with Shelia Brewer the same day he spoke with Debbie Cargill at the District 5 office; and that he did have conversations with Brewer about a week later.
On re-direct, Thomason testified that Dave Waters card, General Counsel’s Exhibit 11, also has an entry dated “7/10/02 Dist 2 Price, Rockdale Dozer” and Price is a pipeline contractor.14
And on re-cross, Thomason testified that while the entry on Dave Waters’ workcard shows “11/30/01 Dist 3 U.S. Pipe–oiler,” Dave Waters was not an oiler very long on this job, and after a couple of days Dave Waters went on cleanup dozer. The next entry on Dave Waters’ card is “4/15/02 . . . RI.” According to the testimony of Leitzell, “RI means reported in, to put his name on the list.” (Tr. p. 356.)
On rebuttal, Richard Chiado testified that District 5 Business Agent Terry Waldron referred him to the aforementioned H. C. Price job telling Chiado that he was dispatched out to operate a dozer on final clean up; that when he got to the job he reported to the steward, Thomason; that Thomason put him on an excavator even though he told Thomason that up to that point in time he, Chiado, did not have any experience running an excavator; that Thomason said “That’s okay, we will take care of you, and everything will be all right. We will put you in an easy spot” (Tr. p. 387); that he was never made aware of any complaint by H. C. Price about his operation of the excavator; that he left that job because it was over 100 miles from his home, he had worked on the job for about 4 months, he was raising his daughter on his own, and after 4 months of living away from his house he felt he needed to get home; and that he asked Thomason if he could be laid off, if at all possible, and that is what took place.
On cross-examination, Brewer testified that Thomason called on February 1 to confirm Dave Waters referral on February 5 to the Pontiac tank farm job; that in February 2007, Business Agents Hill and Waldron were no longer business agents, and Business Agent Trolio was no longer working out of District 5; that it always used to be that the business agent was her immediate supervisor; that she is supposed to report to Leitzell who is the head dispatcher; that if a member is referred to a job, the contractor may reject that member since the contractor has the final say on who is qualified; that as described in addendum no. 1, list no. 1 is the list of journeymen members who have been operators for more than 4 years, list no. 2 is the list of members who have been operators for more than 4 years but they are out of District members, list no. 3 is the members who have been operators for less than 4 years, list 4 is out of District under 4 years, list 5 are the operators with permits, and list 6 are the apprentices; and that Thomason argued with her that only David Waters could do the work and he kept insisting that David Waters was the most qualified.
Richard Chiado testified that he first saw General Counsel’s Exhibit 9, which is the above-described work order called in by Thomason on January 24, which was taken by Brewer, when he found out he was passed on the out-of-work list in February 2007; that backfill is burying the pipe; that if shading is required, the operator puts a foot of rock free material on top of the pipe to pad against the rocks touching the pipe before filling the ditch with any kind of dirt, except black dirt; that clean up the right-of-way is putting the ground back to the way it was before the ditch was originally dug; that final finish is the same thing as clean up the right-of-way; that finish work in the heavy and highway trade is much harder to do than it is in pipeline because with the former the operator has to cut the ground to within a tenth of an inch, and there are grades all over the ground on grade stakes and the operator has to be able to match those grades and cut it accordingly; that to do final finish in the pipeline industry the operator just matches the two sides of the right-of-way together in the field and make it look natural like it used to look, which is pretty simple; that he is familiar with the Pontiac tank farm jobsite in that he has been by it many times; that there are tanks, valves, pipes sticking out of the ground, and beams around the entire tank farm; that he has operated a dozer on beams along a creek crossing and slopes similar to the involved beams; that he has operated an angle dozer on pipeline work and in the heavy and highway industry; that he has done finish work under the heavy and highway agreement, and in his opinion such finish work is much more difficult than pipeline finish work because with the heavy and highway finish work the operator is cutting to a tenth of a foot whereas on the pipeline the operator is just matching two sides of a field together, making sure that there are no low spots; that he has worked on pipeline jobs with Dave Waters, who also started out as an oiler and then became a dozer operator; and that he has worked with Thomason on pipeline jobs, namely, on a Coolset job where Thomason was just a normal operator on the job, on a Sheehan job where Thomason was the steward, on an H. C. Price pipeline where Thomason was a steward, and on the Murphy Brothers pipeline where Thomason was just an operator.
When called by counsel for the General Counsel, Regan testified that in February 2007, ML, which has been a signatory to the pipeline agreement for over 30 years, was working on a pipeline job within the confines of a tank farm in Pontiac, Illinois; that Thomason did the prejob conference on behalf of Local 150 on this job; that member Dave Waters was referred to this job by Local 150 to operate a bulldozer for ML; that subsequently he became aware that another Local 150 member, Richard Chiado, claimed that he was ahead of Waters on the referral list, he was qualified to do the job, and he—if not others ahead of him on the list—should have been sent out to that job; that Brewer and Milano were the dispatchers at the District 5 referral office in Utica; and that Pontiac is located within District 5.
As noted above, General Counsel’s Exhibit 11 is David Water’s work history card. The last two entries on the fourth page of the exhibit read as follows: “2/13/07 [in the ‘DATE’ column], 2:00 [in the ‘TIME’ column], [and] Op removed from job per P.L. Back on [in the ‘REMARKS’ column]” and “2/14/07, 3:26, Cancel CI per R.T. opr still @ MN,” respectively.
With respect to their qualifications on a workcard, Regan testified that the individual member can put down whatever he wants on the card; that on the last page of David Waters card, General Counsel’s Exhibit 11, Dozer is checked and “Fin–Pipeline” is typed above the word; that to him this means that Waters is a finished pipeline dozer operator; that on the same page under “CLASSIFICATIONS” 150 is typed and “Right of way, cleanup Shading” is handwritten; and that this handwritten entry indicates that Waters does the finished right-of-way work with a dozer.
Richard Chiado, who has been a member of Local 150 for approximately 14 years, testified that he is a member in good standing; that at all times in 2007, his dues and initiation fees have been paid up; that he has been a journeyman for about 10 years;15 that he can operate a bulldozer, excavator, track-hoe, loader, front-end loaders, combination hoes, belt placers, concrete pavers, and a grease truck; that he has worked on 8 to 10 pipeline jobs under the pipeline agreement, which jobs involved pressurized gas lines; that “Operator Qualification” (OQ), as noted above, is a course the Union offers at a training site where the operator takes tests and is taught safety regulations and different forms of safety, and methods of pipelining; that General Counsel’s Exhibit 7 is his card which shows that he has OQ and some other qualifications; that he received the card in 2006, when he took the course and it expires on “2/25/2009”; that Thomason, who was a steward on a pipeline at the time, was one of the training site instructors for the OQ class; that Thomason and the other instructors told him that he would not be allowed on pipelines unless he had the OQ class; that his home referral office in Local 150 is District 5 but he receives less than 50 percent of his referrals from this District; that he also receives referrals from Local 150’s Districts 1, 2, 4, and 7; that he is registered on list 1, the journeymen’s list, at the District 5 office; that he has been signing the journeyman’s list for about 13 years; that the dispatcher adds the name of someone who contacts the Utica office to register for referral; that the names on the out-of-work list are numbered and members are referred out to jobs in the order that they appear on the list if they are qualified for the job; that dispatchers Brewer and Milano, who work in Local 150’s District 5 office in Utica, have personally contacted him and sent him out to work; that when he is laid off from a job he telephones the union hall and tells the dispatcher that he has been laid off and his name is placed on the bottom of the out-of-work list; that if the job does not last for more than 10 days, he does not lose his seniority or his place on the out-of-work list; and that he is not aware of any differences in the referral procedure under the building agreement, the heavy and highway agreement, and the pipeline agreement.
With respect to his work history, Richard Chiado testified that General Counsel’s Exhibits 8(a) and (b) are his workcard and work history, respectively; that the Utica dispatchers have access to these documents and they know what jobs a member can handle; that he has done pipeline work for Murphy Brothers, Coolset, Sheehan, Brandenburg Drainage, H. C. Price, and ARB; that, as indicated in General Counsel’s Exhibit 8(a), on “12/3/96” he was dispatched to Coolset as an oiler; that this was his first pipeline job (natural gas), it lasted 3 to 4 months, and he also worked as a excavator on the job; that he was dispatched on “11/10/98” by District 2 to ARB (the workcard entry refers to “ARBY”), it involved a high pressure pipeline, the job lasted less than a month, and he was an oiler and ran a crane and a directional bore for a little while on this job; that on “7/2/99” he was dispatched to Murphy Brothers to work as a mechanic (grease truck) on a big pipeline job which lasted 4 or 5 months; that on “10/11/99” (Actually the last digit in the entry is “5” but it is obviously a mistake in that the entry was made between “10/11/99” and “12/6/99.”) he was dispatched to Brandenburg Drainage for a couple of months to run a dozer final finishing the farmer’s fields on a repair job where the dirt had settled around a pipeline and tiles had been broken; that on “12/13/99” he was dispatched to Murphy Brothers to work on the same pipeline he had worked on earlier in the year, he was called back as an oiler, and he ended up, after oiling for a week, running a dozer for about a month clearing the right-of-way for some creek crossings and some road bores, backfilling the ditch, and putting the right-of-way back for the creek crossing and road bore; that on “5/1/00” he was dispatched to Murphy Brothers for a couple of months to operate a dozer clearing right-of-way, backfilling the ditch, and taking piles of black dirt and putting the black dirt on the field to restore it to its original condition; that on “8/22/02” he was dispatched to H. C. Price to be a dozer operator, Thomason, who was the steward on the job, had him running a hoe on final clean up for 4 or 5 months; and that, as set forth in General Counsel’s Exhibit 8(b) on “7/3/2000” he was dispatched to Sheehan/Monee as an oiler on the Vector Pipeline job, he oiled a crane, and the job did not last too long (He took another job.) because he was too far away from home.
On cross-examination, Richard Chiado testified that the next entry on his workcard after “12/3/96 Dpd. Dist.7, Coolset, Oiler” is “1/16/97 . . . CI”; that he could not recall if he was oiling for Coolset for maybe 6 weeks; that with respect to the “7/2/99 . . . Dpd Murphy Grease Trk Princeton” entry on his workcard, he was on and off that Alliance pipeline job for Murphy Brothers and he, at that time, worked for Murphy Brothers until September 16, 1999; that with respect to the “11/10/98 . . . Dist. 2, Arby” entry, he next called in to the union on “11/30/98” so he worked that job for 20 days; that he was dispatched again to Murphy Brothers for the Alliance Pipeline on “12/13/99”; that the next entry on his workcard shows that he called into the Union on “1/7/00” which means that this time he worked for 3 weeks on the Alliance Pipeline; that from “5/1/00” to “7/8/00” he worked for Murphy Brothers stripping and cleaning up the right-of-way; that he operated a D-5 dozer on his “10/11/99” dispatch to Brandenburg in Hillsdale and the job involved working under the pipeline agreement fixing broken field drain tiles and doing finishing work; that the “8/22/02” H. C. Price job, where he operated a backhoe for 4 months, was the last pipeline job he worked on; that on jobs after this he operated different kinds of equipment, including dozers, but none of it was pipeline work; that he went to the training site to take the OQ class, he took a written test, he took practical tests in the field, including spotting defects in pipe and the way a ditch looked, but he did not do practical tests on equipment; that on the “OPERATOR QUALIFICATION TRAINING VERIFICATION” page of Respondent’s Exhibit 1, which is the documentation for his OQ class, where he indicates that he has 10-years experience in natural gas and other gas he meant that he worked on and off over a 10-year period; that he did not have 10-years transmission mainline experience; that a member gets to put on his workcard what equipment he can operate proficiently; that “12/13/07 . . . mbr in to upgrade card–Fin Dozer” appears on the first page of General Counsel’s Exhibit 8(a); that on February 13, he went to District 5’s union hall and added finish dozer to his card; that on February 27, he had his workcard indicate, with respect to all makes of backhoe, that he did all rough work and no pipeline work; that while Dave Waters is a very good dozer operator, they had equal experience; that he could not say whether Waters was a better finish dozer operator than he was since he had not worked with him for a while; that the steward on a pipeline job is the one who basically calls in for operators; that on a pipeline job there could be up to 12 separate crews and the steward can move people from one crew to another; that on the H. C. Price job Thomason was the steward; and that on the H. C. Price job he was switched from one final crew to a different final crew, and then he was switched to testing at the end so that he could stay on the job until the end.
On re-direct, Richard Chaido testified that he operated a finish dozer for T. J. Lambrect for a good solid 4 years doing road construction; that he operated a D-6 LGP wide-path dozer for this company doing final finish grade on landfill cells; that a D-6 LGP wide-path dozer is a low ground pressure dozer that is used for doing finish work most of the time; that he has also finished roads, house pads, and bridge cones but none of that was under the pipeline agreement; and that he has quite a bit of experience with dozer finishing.
Brewer testified that she knew from Richard Chiado’s workcard, General Counsel’s Exhibit 8(a), that he had worked pipelines before; that Coolset, ARB, Murphy Brothers, Brandenburg, Sheehan, and H. G. Price are pipeline contractors; that since District 5 is a smaller District she got to know the members’ skills; that she knew from Richard Chiado’s work history that prior to February 2007, he operated a dozer on a pipeline job; that, in her opinion, it showed that he was qualified to do the pipeline work requested by ML; and that it was the same with Robert Joiner, James Cavallini, and Stanley Shevokas.
On cross-examination, Brewer testified that on the first page of Richard Chiado’s workcard, General Counsel’s Exhibit 8(a), she wrote “2-13-07 Finish no GPS” after “DOZER” and she wrote “2/13/07, 12:00, mbr in to upgrade card–added Fin Dozer”; that she knew that Richard Chiado could run a finish dozer before these entries were made on his workcard; that she would have asked Richard Chiado if he could run a finish dozer on pipeline; that she also looks at the members work history and Richard Chiado was dispatched on a dozer to Murphy Brothers, which is a pipeline company; that she would just assume that Richard Chiado has run pipeline on a dozer, the member goes out and performs the job, and if he does not make it, he is let go; that she would ask the member if he ran a finish dozer on a pipeline and she would take the member at his word; that she knew that Richard Chiado had run a finish dozer and she would have asked him if he ran a finish dozer on a pipeline; that nowhere on Richard Chiado’s workcard is it indicated that he operated (a) a finish dozer on pipeline projects, (b) a dozer on the right-of-way of a pipeline project, or (c) a dozer shading pipe on a pipeline project; and that on January 24, based on the information on Dave Waters’ workcard (GC Exh. 11), David Waters qualified for dispatch to the ML Pontiac work project as the work order was written in January 24.
On redirect Brewer testified that she knew that Richard Chiado had done finish dozer work on nonpipeline jobs.
Richard Chiado testified that on February 12, his father, Ronald Chiado, who was a business agent for Local 150 for about 20 years before he retired in 2002, telephoned him and told him that he had been passed over on the out-of-work list by Dave Waters for a job in Pontiac at a tank farm for ML; that his father told him that he was number 95 on the list and Waters was number 109; that he then telephoned District 5 union hall and asked Brewer why he was passed over for this job on the out-of-work list; that Brewer told him that she had nothing to do with it and he should contact the business agent about it; that he spoke with Business Agent Joe Steichen who told him that he did not know why he had been passed over, he did not blame him for being unhappy about being passed over on the out-of-work list, but it was not his department or his call and he should call Thomason; that Brewer told him that she had talked to Thomason, the pipeline business agent, and told him that there were other people on the list before the man who was dispatched, Dave Waters, and Brewer told him that Thomason said that “he didn’t care, and that is who he wanted to send out to the job” (Tr. p. 102); that he telephoned Thomason and left a message; that later that same day he went to District 5 union hall with his father and looked at the list himself; that he was 95th on the list and David Waters was 109 on the list; that the dispatchers then told him that they told Thomason, who requested Waters, that there were other people on the out-of-work list who were eligible for this job and Thomason said “he didn’t care and he wanted to send this man” (Tr. p. 104); that on page 2 of the out-of-work list dated January 26, General Counsel’s Exhibit 15, his name is 95th and Dave Waters name is 108th; that Thomason returned his telephone call later that day; that he told Thomason that he was very unhappy about being passed over on the list; that Thomason told him that he was not qualified for the job; that he told Thomason that he was qualified for the job, he had OQ training, and an operator is not supposed to be allowed out on a job unless the operator has it; and that he told Thomason that he planned on doing something about it and Thomason said “I was fucking with the wrong cat, . . . I wasn’t going to see very much pipeline work anymore . . . [and] he was going to make a fool out of me” (Tr. p. 106).
On cross-examination, Richard Chiado testified that in February 2007, Steichen had not been a business agent for very long and he did not have any pipeline experience.
Ronald Chiado testified that on February 13, Thomason telephoned him at home; that he had not telephoned Thomason first; that Thomason said that he did not consider his son Richard qualified to run the dozer on the pipeline; that he argued with Thomason over that, telling Thomason that over the last 4 years Richard had been operating a finishing dozer for T. J. Lambrect, a road and heavy highway contractor, and that Richard was qualified to do the job; and that
[Thomason] said he saved my boy’s ass on the one job that he had, as an operator, several times, and I told him that nobody had to save his ass on the Lambrect job, running [a] dozer, and that I considered him qualified to run [a] backfill dozer on that project.
He then said, if I didn’t back off, I didn’t know what kind of cat I was . . . fucking with, but if I didn’t back off, my boy would never see another pipeline. He also called me a burned out Business Agent, and . . . [then] I hung up on him. [Tr. pp. 166 and 167.]
Thomason testified that he got an anonymous phone call and he was given a phone number to call Richard Chiado so he called the number and ended up speaking with Business Agent Randy Hill; that Hill gave him Richard Chiado’s telephone number; that when he telephoned that number he got Ronald Chiado; that Ronald Chiado said “Why are calling me? You need to be talking to my boy. My boy is a lot better dozer hand than Dave Waters.” (Tr. p. 331); that Ronald Chiado gave him Richard Chiado’s telephone number; and that he did not tell Ronald Chiado that Richard Chiado would not work pipeline again.
Thomason testified that after getting Richard Chiado’s telephone number from Ronald Chiado, he telephoned Richard Chiado; that Richard Chiado said you jumped me on the out-of-work list; that he then said
‘Richard, your name never came up. There were only three names called to me. One guy was working for Sheehan Pipeline, one guy was on vacation, and Dave Waters,’ I had had him on right-of-way dozers, etc., all the from [sic] front to back, and I said ‘[y]our name never came up,’ and it didn’t.
. . . .
. . . Well, I don’t think he believed me. I told him to call Debbie, because Debbie is the one who placed the ord