INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18, AFL-CIO (Precision Pipeline)

National Labor Relations Board - Board Decisions

Aug 20, 2015

362 NLRB No. 176 (N.L.R.B. 2015)

362 NLRB No. 176
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Union of Operating Engineers Local 18
(Precision Pipeline, LLC) and Stephen A. Wiltse
and Pipe Line Contractors Association,
Intervenor
International Union of Operating Engineers Local 18
(Rockford Corporation) and Gary Lanoux and
Pipe Line Contractors Association, Intervenor.
Cases 09–CB–109639 and 09–CB–118659
August 20, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND JOHNSON
On June 25, 2014, Administrative Law Judge David I.
Goldman issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent and the Intervenor Pipe Line Contractors Asso-
ciation filed answering briefs, and the General Counsel
filed a reply brief.
The National Labor Relations Board has delegated 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 complaint is dismissed.
Dated, Washington, D.C. August 20, 2015
Philip A. Miscimarra, Member
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Catherine A. Terrell, Esq., for the General Counsel.
William I. Fadel, Esq. (IUOP Local 18), of Cleveland, Ohio,
for the Respondent.
Elizabeth Cyr, Esq. (Akin, Gump, Strauss, Hauer & Feld), of
Washington, DC, for the Intervenor.
DECISION AND RECOMMENDED
ORDER
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. A pre-job
conference report is a form completed by representatives from a
local union and an employer before commencing work on a job
covered under the nationwide collective-bargaining agreement
between the local union’s international union and the employ-
er’s national association of pipeline contractors.
In these unfair labor practice cases, the government alleges
that a local union’s refusal to furnish its members with pre-job
reports upon request is arbitrary and, therefore, a breach of the
duty of fair representation owed by the local union to its mem-
bers. As discussed herein, I find that the union’s motivation for
not disclosing the pre-job reports upon demand is rational, in-
deed substantial. But rational and thus, nonarbitrary, is enough
to require dismissal of the complaint under the controlling Su-
preme Court precedent. There is no basis for the government to
override the local union’s judgment that there would be nega-
tive consequences for the union, its members, and its relation-
ship with the contractors, if pre-job reports were disclosed upon
demand. And that is particularly so here. Even assuming that
an employee with a particularized need to review a pre-job
report—perhaps on grounds that it contained information rele-
vant to his grievance—would have a specific interest in the pre-
job report that would render the union’s rationale for nondisclo-
sure irrational, the employees in this case have no such interest.
I dismiss the complaint.
STATEMENT OF THE CASE
On July 22, 2013, Stephen A. Wiltse (Wiltse) filed an unfair
labor practice charge alleging violations of the National Labor
Relations Act (Act) by the International Union of Operating
Engineers Local 18 (Local 18), docketed by Region 9 of the
National Labor Relations Board (Board) as Case 09–CB–
109639. Based on an investigation into the charge, on Septem-
ber 26, 2013, the Board’s Acting General Counsel, by the Re-
gional Director for Region 9 of the Board, issued a complaint
and a notice of hearing alleging that Local 18 violated the Act.
Local 18 filed an answer to the complaint denying all alleged
violations of the Act.
On December 10, 2013, Gary Lanoux (Lanoux) filed an un-
fair labor practice charge alleging violations of the Act by Lo-
cal 18, docketed by Region 9 of the Board as Case 09–CB–
118659. Based on an investigation into the charge, on March 6,
2014, the Board’s General Counsel, by the Regional Director
for Region 9 of the Board, issued an order consolidating Cases
09–CB–109639 and 09–CB–118659, issued a consolidated
complaint alleging that Local 18 violated the Act, and an order
rescheduling the hearing. Local 18 filed an answer to the con-
solidated complaint denying all alleged violations of the Act.
A trial was conducted in this matter on April 14 and 15,
2014, in Cincinnati, Ohio. At the commencement of the hear-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, I granted a motion to intervene in the proceedings filed by
the Pipe Line Contractors Association (PLCA).1 At trial the
Respondent filed a motion to dismiss the proceedings, which I
took under advisement but declined to rule on before hearing
the evidence in the case. Counsel for the General Counsel,
Local 18, and the PLCA, filed excellent post-trial briefs in sup-
port of their positions by May 20, 2014. I granted a motion to
file reply briefs and the parties filed 3-page reply briefs by June
3, 2014. On the entire record, I make the following findings,
conclusions of law, and recommendations.
JURISDICTION
The Respondent Local 18 is a labor organization within the
meaning of Section 2(5) of the Act. Precision Pipeline, LLP
(Precision) is a gas pipeline contractor in the construction in-
dustry, with an office and place of business in Eau Clair, Wis-
consin. During the past 12 months, in conducting its opera-
tions, it performed services valued in excess of $50,000 in
states other than the State of Wisconsin. It is alleged in the
complaint, not denied by the Respondent (and therefore deemed
admitted),2 and I find, that at all material times, Precision has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. As discussed herein, since
at least 1949, the International Union of Operating Engineers
(IUOE or International Union) is and has been a party to a se-
ries of collective-bargaining agreements—currently called the
National Pipeline Agreement (NPA)—with the PLCA. The
NPA currently applies to pipeline construction work performed
by signatory contractor-employers throughout the continental
United States. In 2011, the NPA was entered into effective
February 1, 2011, through at least January 31, 2014, and for
purposes of our case is the relevant version of the NPA. Preci-
sion was a signatory contractor to the NPA. In the NPA, the
PLCA and its assenting contractors recognize the IUOE as the
exclusive representative of all employees in the classifications
of work covered by the agreement. The Respondent Local 18
is one of many local unions that is authorized to represent the
IUOE for certain purposes under the agreement, including rep-
resenting the IUOE at pre-job conferences occurring within the
designated jurisdiction of Local 18. Charging Parties Wiltse
and Lanoux were members of Local 18 and, at various times in
2013, worked for signatory contractors on work covered by the
collective bargaining agreement, and at which Local 18 repre-
sented the IUOE for purposes of the pre-job conferences,
among other duties. Based on the foregoing, I find that this
dispute affects commerce and that the Board has jurisdiction of
this case pursuant to Section 10(a) of the Act.

1 In addition, at the commencement of the hearing, I granted counsel
for the General Counsel’s motion to amend the consolidated complaint.
Throughout this decision references to “the complaint” are to the extant
amended version of the consolidated complaint. Posthearing, at my
direction, counsel for the General Counsel submitted a revised GC Exh.
7(b), which is intended to substitute for the incomplete version of GC
Exh. 7(b) offered at trial. There has been no objection to the revised
submission. I hereby substitute it for the original.
2 See, Board Rules and Regulation Sec. 102.20.
UNFAIR LABOR PRACTICES
INTRODUCTION
The PLCA is an association of approximately 74 pipeline
construction contractors. One of its chief functions is to act as
the agent for its member contractors in labor negotiations for
industry-wide collective-bargaining agreements with unions
representing employees in the pipeline industry. The IUOE is a
labor organization representing employees in, among other
industries, the pipeline construction industry and one of the
unions that negotiates collective-bargaining agreements with
the PLCA. As stated above, the PLCA and the IUOE were
parties to an NPA that by its terms was effective February 1,
2011, through at least January 31, 2014.
The NPA provides the terms and conditions prevailing at a
broad range of pipeline transportation and construction work,
including laying cross country pipeline, stationary work per-
formed at compressor stations (which feed the power source to
localities), and related maintenance work performed throughout
the United States. (Work performed in Hawaii and Alaska are
also “covered” by the agreement, but the agreement provides
that the applicable wage rates and any special conditions will
be negotiated specifically for that work.) The employer mem-
bers of the PLCA that sign the agreement are bound to operate
under its terms. In practice and custom, most employer mem-
bers of the PLCA sign on to the NPA. This includes Precision
Pipeline, Rockford Corporation (Rockford), and CBC, Inc.
(CBC), each of which is a contractor member of the PLCA,
which performs work under the agreements negotiated by the
PLCA.
The NPA provides that the employers recognize the IUOE as
the “exclusive representative of all Employees in the classifica-
tions of work covered by this Agreement for the purpose of
collective bargaining . . . .” Art. II(A). The NPA further pro-
vides that “All of the work covered by this Agreement shall be
done under and in accordance with the terms and conditions of
this Agreement.” Art. I(E). Further, the NPA provides that
“This Agreement shall supersede all other agreements between
[the PLCA and signatory contractors] and any local of the [In-
ternational] Union for any work covered herein.” Art. I(M).
The NPA also provides (art. XIII) for “special amendments”—
agreements between the PLCA and the IUOE providing for
“special wages and conditions for specific areas or projects,”
which may be negotiated between the IUOE and the PLCA “in
order to be more competitive in certain areas of the country.”
Throughout the country, local unions affiliated with the
IUOE are organized around geographic districts. The Re-
spondent in this case, Local 18 is one such local union. Its
jurisdiction is the State of Ohio, save for the three eastern Ohio
counties of Mahoning, Trumbull, and Columbiana. In addition,
Local 18 covers four counties in northern Kentucky.
Pipeline projects are typically awarded to a prime contractor
pursuant to a competitive bidding process conducted by the
owner or client commissioning the work, often a gas or energy
company. Employers prepare bids by preparing crews sheets
estimating the needed number of employees, equipment, and
the anticipated costs of those items. In preparing these bids,
employers rely on previous bids and previous actual job costs
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 3
on awarded work. Thus, an employer’s bidding calculations for
awarded work will be a basis for future bids. Operator labor
costs comprise approximately 25 percent of overall labor costs.
Total labor costs comprise approximately 40 percent of total
job costs.
Donald Thorn is the president of an employer contractor and
a longtime PLCA board member, who has held numerous high-
level positions with the association, including president, vice-
president, and treasurer. From 2002 to 2012, he was on the
PLCA’s labor committee that negotiates the NPA with the In-
ternational Union. Thorn testified credibly that, armed with a
contractor’s labor costs or total job costs, a competitor “would
have a very good idea of how I estimate my work. And [con-
sequently], a very good idea of what they would need to do to
underprice another job somewhere.”
The pre-job conference
When an employer bound to the NPA obtains a job that is
covered under the NPA, it agrees to notify the International
Union about the job (“the location, size and length of the pro-
posed pipe line and the proposed starting date”). In turn, the
International Union “agrees to advise Employer which local
union or local unions have jurisdiction of the job, and Employer
will then contact each local union having jurisdiction for the
purpose of arranging a pre-job conference.” Art. II(C).
As set forth in the NPA (Art. II(D)):
Representatives of the Employer and all local unions with ju-
risdiction over the job authorized to represent the Union shall
hold a pre-job conference for the entire area covered by the
job. . . . It shall be the purpose of the pre-job conference to
agree upon such matters as the length of the work week, the
number of Employees to be employed, the applicable wage
rates in accordance with the Contract, and any other matters
not including any interpretation of the clauses of this Agree-
ment, it being agreed that interpretation of this Agreement
should be made between the [PLCA] the International Union
. . .so that proper application thereof may be made on the jobs.
The NPA adds (Art. II(D)) that demands made at the pre-job
conference may not conflict with or go beyond the terms and
conditions of the NPA. (“No representative of any individual
Employer and no representative of the [International] Union or
any of its local unions shall demand at the pre-job conference,
or at any other time during the continuance of the job, any term
or condition not covered by this Agreement”). The NPA fur-
ther provides that
A copy of the report made of each pre-job conference shall be
furnished to the [PLCA] and to the International Union . . .
and no agreement made at any pre-job conference which adds
to or modifies, in any way, the terms and conditions of this
Agreement, shall be binding on any individual Employer or
the [International] Union, or any of its local unions, unless
approved and ratified by the [PLCA] and the International
Union.
As noted, one of the key functions of the pre-job conference
is to establish the number and classification under the NPA of
employees that the contractor will require for the job. This
determination is subject to the NPA’s hiring rules. Specifically,
without regard to the local union’s jurisdiction, the Employer
on the job “shall have the right to employ and bring into the job
. . . up to fifty percent (50 percent) of the required Employees
as Regular Employees.” Art. II(I). The term “Regular Em-
ployees” refers to “those who are regularly and customarily
employed by the individual Employer . . . and who, because of
their special knowledge and experience in pipe line construc-
tion, are considered as ‘key men.’” In other words, the em-
ployer can mandate that up to 50 percent of the workforce on a
job be composed of its “key men,” also known as “travelers.”
As stated in the NPA, “At the pre-job conference Employer
shall notify the Union and/or local union(s) of the number and
classifications of Regular Employees. Before the start of the
job Employer will furnish where possible Union and/or local
union(s) with a list of the names, social security numbers, and,
if possible, Union register numbers of the Regular Employees
to be hired initially.”
The remainder of the work force for the job is supplied by
the local union (assuming it has enough qualified employees).
Pursuant to the NPA, where an exclusive referral procedure has
been established through collective bargaining between the
local union and an area association of highway and heavy con-
tractors the “[International] Union shall notify the [PLCA] . . .
as to the existence of such exclusive referral procedures, and
Employer agrees to utilize such referral procedures . . . .” This
is the case for Local 18, which maintains a collective-
bargaining agreement with an exclusive referral procedure with
the Ohio Highway and Heavy Contractors Association. Thus,
this procedure is used by the employer and Local 18 to hire
operators on NPA projects after the Employer has identified its
“key men.”3
Accordingly, the hiring procedures, manning needs, equip-
ment requirements are determined at the pre-job conference.
The NPA describes other issues to be addressed at the pre-job
conference. The Employer is to provide its “company driver
policy standards” at the pre-job” so that only qualified appli-
cants will be referred. If a master mechanic is to be employed
in a supervisory capacity “his selection shall be discussed at the
pre-job conference.” Art. II(O). Further, the job assignment of
the employee selected to be the union steward on the job “will
be a subject to be decided at the pre-job conference” to ensure
that the steward’s assignment does not “prevent his normal
function as a steward.” Art IV(A). According to Thorn’s tes-
timony, the employer “can object or reject the steward if we’ve
had an issue with him in the past.” The rate of pay for the em-
ployee employed to maintain the small machinery used on the
job is to be decided upon at the pre-job conference.” Art V(F).
Further, the “work week and work day shall be established at
the pre-job conference” as to all “Station Work.” Id. at E.5 and
Attachment 2(V). The initial maintenance employee hires (the
first four maintenance employees hired) is to be determined at
the pre-job conference, thereafter the general hiring procedures
of the NPA prevail. Attachment 3 to NPA at E.1.

3 I note that there are some further details and nuances to the hiring
procedures that need not concern us here. The text provides a basic
summary of the system.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to the references in the NPA to the pre-job con-
ference, the pre-job form, which was first developed in the
1940s, indicates the information that is germane to the pre-job
conference. A copy of the pre-job form is attached as an ap-
pendix to this decision.
The first page is a cover sheet, which states:
Please complete the attached set of Pre-job Conference
and Key Men Reports in detail. This information must be
available to the administrative offices of the Central Pen-
sion Fund and the IUOE and Pipeline Employers Health &
Welfare Fund so that they can control the receipt and
proper allocation of contributions.
The fully completed reports will also help the Interna-
tional Union of Operating Engineers and the Pipe Line
Contractors Association to provide you with any services
required of their offices.
There are four copies of each form to be distributed as fol-
lows:
(1) White- Mack Bennett, International Union of Operating
Engineers . . . .
(2) Pink- Central Pension Fund . . . .
Green- Retained by local union representative. . . .
Yellow- Retained by employer representative. . . .
The second page contains the substance of the pre-job form.
Much of the information sought by the form is self-explanatory:
the meeting place where the pre-job conference is held; the date
of the pre-job conference, the contractor awarded the work, the
local union with jurisdiction over the project, the job location,
the owner or client awarding the work, and a brief description
of the job.
Much of the form is devoted to a listing of the quantity and
type of the various equipment expected to be needed for the
job. In addition, the number of employees, and whether as
spelled out in the NPA, they will be group 1 (highly skilled
operators who run major pieces of equipment) or group 2 (sem-
iskilled operators running smaller pieces of equipment) or
group 3 (essentially, apprentices), is listed on the form and
determined, in large part, by the equipment needs. The pay and
benefits for the various types of employees needed for the job is
determined by the NPA. The form lists the date the job is start-
ing, and the approximate completion date of the job.
The form lists the pension and health and welfare benefit
funds to which the employer is required to submit payments.
This is determined by Art. XV of the NPA, and, as stated in the
NPA, varies according to which funds the relevant local union
is attached to or coadministering.
There are places on the pre-job form to check whether the
work is covered under any of the addendums to the NPA (e.g.,
the 16-inch addendum or the 12-inch addendum, which are
“special amendments” described in art. XIII of the NPA and
negotiated by the International Union and the PLCA).
There are provisions on the pre-job form for getting employ-
ee payroll data, and an indication that the employer will process
the payroll and provide a list of employees on the payroll each
week. There is a place to mark whether the local union has a
referral or hiring plan that it uses. As stated above, the NPA
mandates that the local’s hiring plan be used for the local em-
ployees in most instances. There is a place for the job hours and
days to be marked (typically six 10-hour days per week). There
is a spot to mark whether the employer plans to hire on a “1 &
1 basis” which means that it will hire one local for each “key
man” hired. There is a spot to mark when the employer’s pay
day is, and who the chief local union steward will be, when he
is to report to work, and to which state unemployment compen-
sation is to be made.
Finally, there is room for “remarks,” which may also be
handwritten on any part of the form, for any additional infor-
mation or procedures. Typically, this would relate to the em-
ployer’s drug testing or safety plan. According to the testimo-
ny, while the individual employer must conform to Art. XIV of
the NPA governing drug and alcohol testing, for the most part,
the NPA leaves an employer free to determine its own drug
testing rules and policies. This discretion also applies to safety
policies (i.e., policies on hard hats, safety glasses, boots), which
are determined by the individual employer, and the employer’s
safety orientation procedures. Notes regarding these items are
often put in the “remarks” section of the pre-job form. Em-
ployers convey their safety and other working rules to employ-
ees during an initial orientation shift at the beginning of the
job.4
In addition, in at least some instances, the employer’s “truck
pay” rate will be written into the pre-job form. Under the NPA
the employer is obligated to provide transportation to the job
site from the warehouse location that it establishes. While this
is an ongoing contractual obligation, some contractors will
offer to pay employees “truck pay” if the employee drives his
or her own truck to the jobsite in lieu of relying on the contrac-
tor for transportation. It is the employer’s option whether it
offers truck pay and how much it pays. Even when it is offered
the employee retains the option of declining truck pay and tak-
ing the employer-provided transportation required by the terms
of the NPA. The union steward will advise employees with
regard to the employer’s truck pay.
Near the bottom of page 2, just above where the local union
and employer representatives sign, the pre-job form states that:
The undersigned hereby agrees that this job is covered by the
terms of the current National Pipeline Agreement for the
United States of America as executed by the International Un-
ion of Operating Engineers and the Pipe Line Contractors As-
sociation.
Finally, the third page of the pre-job conference report is a
form on which the employer lists the “key men” it is using on
the job. The form provides for a listing of each “key man’s”

4 Under the NPA, working rules are prescribed by art. V. However,
art. V(E) provides that the “Employer shall have the right to make and
revise, from time to time, working rules which are not inconsistent with
any of the terms and conditions of this Agreement or with existing
laws.” Thus, the NPA provides the employer with unilateral discre-
tion—within the bounds of the NPA—to mandate its own safety and
other work policies.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 5
name, social security number, local union (if any), registration
number, and classification
A witness from the International Union, national pipeline Di-
rector Mack Bennett, testified that there were over 1600 pre-job
conferences, and presumably forms, filed with the IUOE in
2013. Bennett testified that local unions have no authority to
negotiate terms and conditions of employment under the NPA.
Bennett described the pre-job conference as
an estimate. It’s an internal document to verify wages in ac-
cordance to the [NPA] as posted either on the Internet or in
the book. . . . It’s an estimate of how long they’re going to be
on the job. The type of . . . equipment being used on the job.
And who’s going to do the inspection. And also the key peo-
ple that they’re going to use.
According to Bennett, one reason that he did not freely share
the pre-job conferences with members in years past when he
was business manager for a local union (not Respondent Local
18) was that he believed that the information on the form could
be sold to a nonunion contractor as it sets forth a panoply of
information about the job that would be of interest and use to a
nonunion contractor. (“Well, you’ve got your length and size
of pipe. You’ve got who’s going to do the inspection. You’ve
got the gas company that awarded it. Where the warehouse is
going to be located. How many guys that you’re going to have
on the job. What pieces of equipment you’re going to use on
that job. What benefits you’re going to pay on the job. How
many hours a week you’re going to work on that job. The
hourly wage is on there”). In years past, when Bennett was the
business manager of an IUOE local union in Texas, he would
permit members who requested copies of pre-job reports to
come into the office and review the reports, but he did not per-
mit them to make or keep copies, or take notes on them.
As referenced above, Donald Thorn is the president of an
employer-contractor, and a longtime PLCA board member and
officer. Thorn testified that with the information from the pre-
job form someone knowledgeable with the industry could cal-
culate the contractor’s total estimated labor cost for the particu-
lar project: “you could take those numbers and build from that
into what my total labor cost for the project is estimated to be.”
Thorn testified that the information contained in the pre-job
form is “quite similar” to that used to prepare a bid for new
work. Indeed, Thorn testified that the information on the pre-
job form is “generally taken from that “[bidding] information.”
Thorn explained that “you take that information [from the bid]
and transfer it to a, basically, spreadsheet in preparation for the
pre-job.” Thus, a competitor with access to a pre-job form
would be able to calculate the contractor’s labor and job costs
and thus, “would have a very good idea of how I estimate my
work. And subsequently a very good idea of what they would
need to do to underprice another job somewhere.” As noted
above, a winning bid is used by contractors in the future for
subsequent bids.
Thorn testified that not only nonunion competitors, but also
other PLCA contractors would be in a position to underbid him
on NPA work if they knew how he manned and bid his pro-
jects. As Thorn stated, the PLCA members “are competitors.”
For this reason, Thorn admitted that over the years he has
thought that it would be beneficial for him to see a competitor’s
pre-job forms—but he never has. Thorn testified that it is ex-
pected that the pre-job forms will remain confidential. Alt-
hough the PLCA office is one of the parties which receives a
copy of the completed pre-job forms, and although Thorn is a
longtime member of the PLCA board of directors, he does not
have access to other contractors’ pre-job forms. And the PLCA
does not make the pre-job reports available to its members.
According to Thorn, “those are not revealed to anybody. I’d
say it’s an attorney-client privilege is the way the office treats
them” and in past years this has always been the view of the
PLCA when the matter has been discussed.
Charging Parties’ requests for pre-job conference forms
Charging Party Wiltse is a member of Local 18 and has been
a heavy equipment operator for at least 30 years. He also owns
and operates his own nonunion contracting business.5
In mid-May 2013, Wiltse was dispatched to an NPA project,
working for Precision as of May 20, 2013. He was dispatched
to operate a bulldozer, however there were more bulldozer
operators than necessary, and no excavator operators. Wiltse
volunteered to operate the excavator. In the middle of the se-
cond week, on approximately May 28, Wiltse was terminated
“for being unsafe.” However, the day before his termination,
Wiltse recalled that he had objected to a foreman operating an
excavator. Wiltse told the foreman “that wasn’t in the agree-
ment. He can’t be the foreman and an operator.” Wiltse testi-
fied that the foreman said, “no problem” and “[r]elinquished
the seat.” The next morning Wiltse was told he was “unsafe”
and no longer allowed on the project.
Wiltse immediately contacted the job steward, Richard
“Tam” Smallwood. Smallwood went into Precision’s office
trailer, talked with Precision officials and resolved the matter

5 On cross-examination, Wiltse first flatly and repeatedly denied
owning or operating a nonunion construction business. (“That’s not
true. . . . Q. You don’t own a non-Union construction company? . . .
A. No I don’t”). When asked specifically about his company, “M.O.L.
Excavating,” Wiltse claimed that it had been dissolved in 2010 (which
he later amended to 2012), after he could not find enough operators
“because I was denied signatory [status] with the Union” and “I was
found in default.” Wiltse attributed June and August 2013 certification
renewal requests directed to M.O.L from the city of Cincinnati, and
December 2013 references to M.O.L.s “prequalification” for work in
construction journals to “clerical error.” In any event, he freely admit-
ted creating a new contracting company to replace M.O.L., and he
indicated that the city’s notices and the “spirit” of the listings in the
construction journal were intended for the new company, for which, he
admitted, at least as of December 2013, he was soliciting business as a
nonunion employer.
Thus, his initial denial that he owned a nonunion construction com-
pany was shown to be flatly false, even assuming, with a prayer and a
leap, the truth of his claim that the continued advertising of M.O.L. in
subscription-based trade journals was all a mistake. This testimonial
incident fit his demeanor. As a witness, Wiltse radiated defiance, de-
voted to jousting with counsel, rather than with truth telling. Fortunate-
ly, his credibility plays a minor role, or perhaps, no role in the outcome
of this case—he did ask for the pre-job report, he did not get it, the rest
is mostly a question of the Respondent’s obligation under the Act.
However, in areas where his credibility is at issue, he presented as an
untrustworthy reporter of the facts.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the spot. He came out of the trailer and told Wiltse, “I got
good news for you. You were dispatched to run a bulldozer,
not an excavator. I’ve gotten them to send you out on a bull-
dozer tomorrow.”
Wiltse began on the bulldozer that afternoon, and worked the
next day. However, at the end of that day, Smallwood ap-
proached him and “told me that I wasn’t capable of cutting
grade [a]nd that I was being terminated, again.”
Wiltse told Smallwood he wanted to file a grievance.
Smallwood concurred. He told Wiltse to come to the Local 18
office in Franklin, Ohio. Before going to Franklin, Wiltse
called his friend, fellow union member Gary Lanoux. Lanoux
told Wiltse that “before I file a grievance be sure to get a copy
of the contract, Pipeline Agreement, and anything that might
affect it.” Although Lanoux testified that he did not know what
is contained in the pre-job reports, he testified that he told
Wiltse that “he needs to understand the contracts and the pre-
jobs . . . if you’re going to file a grievance.”
When Wiltse got to the Franklin office he told Local 18
agent Conductor Ken Waughtal that he wanted “a copy [of] the
pipeline contract and anything that pertains to it; pre-jobs, so
on.” Waughtal told Wiltse he would get him a copy of the labor
agreement, and he asked Wiltse to write up a statement of what
had happened. Wiltse did so and thinking that was sufficient to
file a grievance left. It turned out that Wiltse needed to fill out
a grievance form, not just a statement. The union arranged
another meeting for him to do that. Wiltse missed the first
meeting set up for the morning of June 3, and the union official
called him back, stating, according to Wiltse, “We want to set a
meeting at your convenience. Come on up here. I got your
agreement, [and] grievance form.” Wiltse went to the union
hall later that day and met with union auditor Gary March and
obtained a copy of the collective-bargaining agreement and the
grievance form.
Wiltse surreptitiously recorded this meeting. Wiltse was up-
set that his grievance had not already been filed, and said he
had thought that writing out the statement would accomplish
that. During the meeting Wiltse asked for a “a copy of the
minutes to the pre-job or anything that might [pertain] as far as
amendments and so on and so forth about my situation.” Marsh
gave Wiltse the NPA and the grievance form. In the meeting,
Wiltse rebuffed efforts to have the union assist him in writing
the grievance with him, stating, “No, I don’t believe that is in
my best interest. I think I need time to look over the agreement
and see exactly where I felt that I have been aggrieved.”
Wiltse went home. On June 12, he returned to the union of-
fice for another meeting at the Franklin office with Smallwood,
Waughtal, and Local 18 Business Representative Stan Bru-
baker. Wiltse also recorded this meeting, this time openly.
According to a tape and transcript of the meeting entered into
evidence, the officials and Wiltse discussed his grievance.
As is evident from the tape and transcript, Wiltse struck a
sarcastic combative tone throughout the meeting. Wiltse told
the union officials that “I have many complaints where I feel
that my rights as a member of this Union were violated . . .
[s]tarting with Tam [Smallwood] not holding my hand and
walking in there to grieve my grievance—blah, blah, blah to the
Employer.” Smallwood and Wiltse argued that Smallwood had
gotten Wiltse his job back and “stood up for you when they
wanted to run you off” after Wiltse had volunteered to run the
backhoe instead of the excavator. Wiltse claimed he had been
“steered” away from filing a grievance by Tamwood, which
Tamwood denied. Tamwood and Wiltse argued over whether
Wiltse had asked to file a grievance after his initial removal
from the backhoe.
Wiltse said that he wanted “access to the pre-job,” arguing,
“[w]hat if it has a bearing on my rights as an operator?”
Waughtal replied, “Well, you [undecipherable] questions about
the pre-job such as truck pay, the rates, all the classifications
will be as per contract.” They argued further about why Wiltse
had yet to file a grievance, with Wiltse saying “by omission
you deceived me” because he did not know there was a griev-
ance form to fill out. Waughtal denied deceiving Wiltse and
told Wiltse that he had told Wiltse, “We’ll fill out a grievance
and Stan’s going to get you a contract. Stan called you. That
was on Friday, the 31st. Stan called you Monday.”
After more arguing, Wiltse asked, “Are you going to give me
the pre-job or not?” Brubaker told Wiltse, “No. No. We don’t
give out pre-jobs to the members.”
After more arguing, Wiltse stated, “We can have all the con-
ferences you want just to document that you are not going to let
me look at the pre-job. I don’t know what’s so important about
it if it’s so inconsequential.” Brubaker began to reply, “Well
the pre-job is union documentation and we use it for”—at
which point Wiltse interrupted and stated, “Well, will my eyes
set it alight?” Brubaker asked Wiltse, “What kind of questions
do you have on it.” Wiltse replied, “Well, how am I to know
that until I have a chance to examine the document?” Brubaker
replied, “Well, apparently you know what’s on it because—” at
which point Wiltse interrupted and stated “No. I don’t. All I
know is what was provided to me in the National Pipeline
Agreement.”
The conversation continued (and degenerated) from there.
Wiltse accused Smallwood of not standing up for him, of not
bringing him into the Precision trailer, and they accused each
other of lying about why a grievance was not filed the first day
upon Wiltse’s termination. The meeting ended soon thereafter.
At the hearing, Wiltse testified that he has never seen a com-
pleted pre-job form and has no first-hand knowledge of what is
in it. He agreed—calling it a “no-brainer”—that as the owner
of a construction company it would be of use to him in prepar-
ing successful bids to learn his competitor’s budget and labor
costs for a project. While the jobs he seeks are smaller than
that of the prime contractors which work on NPA projects, he
agreed that he would be eager to take on subcontracting demo-
lition work on a pipeline project if it was available.
Charging Party Lanoux, also a member of Local 18, testified
that he asked the steward, whenever he is assigned to a new
job, to let him see the pre-job for the project. This included on
or about June 11, 2013, when he was working for Rockford on
a pipeline project and asked the steward, Burt Milhone, for the
pre-job. Milhone told Lanoux that “he can’t give that infor-
mation. Mr. Sink [the Respondent’s business agent] doesn’t
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 7
allow that information to be published.”6 Later, in October
2013, Lanoux sent a certified letter to Local 18’s president
requesting the pre-job agreement with Rockford for the pipeline
project on which he had been working until about a week be-
fore. On or about November 13, 2013, Lanoux started working
for CBC contractors on a pipeline project. He requested the
pre-job agreement from the steward. While Lanoux could not
remember the exact answer, he did not receive the pre-job.
Lanoux has never seen a pre-job. He testified that he sur-
mised it could contain agreements to change wages based on
his reading of the “Special Amendments” article (XIII) of the
NPA, which provides that “[i]n order to be more competitive in
certain areas of the country,” the International Union and the
PLCA could “mutually agree to put into effect special wages
and conditions for specific areas or projects.”
There was no evidence presented that would suggest that
“special amendment” agreements between the IUOE and the
PLCA are negotiated as part of the pre-job conferences con-
ducted by the employer-contractor and the local union. To the
contrary the NPA provides that special amendments are negoti-
ated between the IUOE and the PLCA.
Analysis
The General Counsel contends that Local 18’s refusal to
provide Wiltse and Lanoux with the requested pre-job confer-
ence reports is a breach of the Respondent’s duty of fair repre-
sentation in violation of Section 8(b)(1)(A) of the Act.
The duty of fair representation is a judicially-created cause
of action implied from a union’s statutory grant of exclusive
bargaining rights under the Railway Labor Act (RLA). Steele
v. Louisville Nashville Railway Co., 323 U.S. 192 (1944). The
concept reflects that “when Congress empowered unions under
the RLA to bargain exclusively for all employees in a particular
bargaining unit, and thereby subordinated individual interests to
the unit as a whole, it imposed on unions a correlative duty,
inseparable from the power of representation, to exercise that
authority fairly.” California Saw & Knife, 320 NLRB 224, 28
(1995), enfd. 133 F.3d 1012 (7th Cir. 1998). In Ford Motor
Co. v. Huffman, 345 U.S. 330 (1963), the Supreme Court con-
firmed that these principles extended to unions recognized un-
der the Act. See also, United Steelworkers v. Rawson, 495 U.S.
362, 373 (1990) (“The Union’s duty of fair representation aris-
es from the National Labor Relations Act itself”).
In Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied
326 F.2d 172 (2d Cir. 1963), a Board majority adopted and
applied the duty of fair representation as it had been developed
by federal courts. The Board held for the first time that breach-
es of a union’s duty of fair representation constitute unfair labor
practices under 8(b)(1)(A) or 8(b)(2):

6 The Respondent argues this is hearsay. It is not. Milhone is an
admitted agent of the Respondent. (GC Exh. 1(p) at par. 4.) His state-
ment, as testified to by Lanoux—i.e., that “Mr. Sink doesn’t allow that
information to be published”—was offered appropriately against the
Respondent for the truth of the matter asserted. See, Fed.R.Evid.
801(d)(2). And this would be the case even if Milhone was reporting
Mr. Sink’s assertion to him, as Sink, too, is an admitted agent of the
Respondent. (GC Exh. 1(p) at par. 4.)
we are of the opinion that Section 7 [of the Act] gives em-
ployees the right to be free from unfair or irrelevant invidious
treatment by their exclusive bargaining agent in matters af-
fecting their employment. This right of employees is a statu-
tory limitation on statutory bargaining representatives, and we
conclude that Section 8(b) (1) (A) of the Act accordingly pro-
hibits labor organizations, when acting in a statutory repre-
sentative capacity, from taking action against any employee
upon considerations or classifications which are irrelevant, in-
vidious, or unfair.
The Second Circuit Court of Appeals refused to enforce the
Board’s decision in Miranda Fuels and rejected the effort “to
read into Section 7 and Section 8 the duty of fair representation
implicit in Section 9.” 326 F.2d at 176. However, since Mi-
randa Fuel, the Board has developed a wide-ranging unfair
labor practice jurisprudence applying the duty of fair represen-
tation in the 8(b) context. For its part, five years after the
Board’s decision in Miranda Fuel, the Supreme Court an-
swered a question left open in Ford Motor v. Huffman, holding
that, assuming that a breach of the duty of fair representation
may be an unfair labor practice claim cognizable before the
Board, courts also continued to have independent jurisdiction
over fair representation claims. Vaca v. Sipes, 386 U.S. 171,
176–188 (1967). Thus, “Garmon's pre-emption rule does not
extend to suits alleging a breach of the duty of fair representa-
tion.” Breininger v. Sheet Metal Workers Int’l Ass’n, Local
Union No. 6, 493 U.S. 67 (referring to inapplicability of general
rule announced in San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959), that courts do not possess juris-
diction over claims based on activity that is "arguably" subject
to the Act).
Perhaps because of this, and because the origins of the duty
of fair representation are judicial, the Supreme Court has of-
fered substantial guidance on the standards to be applied in
duty of fair representation cases—more guidance than in many
other areas where Board jurisdiction is exclusive.
Settled Supreme Court precedent establishes that “[a] breach
of the duty of fair representation occurs only when a union’s
conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386
U.S. 171, 190 (1967). This standard “applies to all union activ-
ity.” Air Line Pilots v. O’Neill, 499 U.S. 65, 67 (1991); Steam-
fitters Local Union No. 342, 329 NLRB 688 (1999), enf’t. de-
nied, 233 F.3d 611 (D.C. Cir. 2000).
Here, the General Counsel makes no claim (and there is no
evidence for it) that the denial of the pre-job reports to Wiltse
and Lanoux was motivated by bad-faith or discrimination. The
General Counsel’s claim is that the Respondent’s actions were
arbitrary.
The Board and the Supreme Court have made clear that “A
union's actions are considered arbitrary only if the union has
acted ‘so far outside 'a wide range of reasonableness' as to be
irrational." Amalgamated Transit Union Local No. 1498 (Jef-
ferson Partners L.P.), 360 NLRB No. 96 (2014) (quoting Air
Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991), and Ford
Motor Co. v Huffman, 345 U.S. at 338). In serving unit em-
ployees, a union must be allowed “a wide range of reasonable-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness” and “any subsequent examination of a union’s perfor-
mance must be ‘highly deferential.’” Branch 529, Letter Car-
riers, 319 NLRB 879, 881 (1995), quoting O’Neill, supra at
78). In considering this prong of the duty, “[s]o long as the
union’s conduct . . . is not wholly irrational or arbitrary . . .
there is no breach of its duty of fair representation.” Firemen &
Oilers Local 320 (Phillip Morris, U.S.A.), 323 NLRB 89, 91
(1997).
In this case, the claim that the Respondent’s refusal to pro-
vide the pre-job reports to Wiltse and Lanoux was arbitrary or
irrational is simply unsustainable as a matter of the English
language, not to mention precedent.
Arbitrary means, essentially, without a reason. Irrational
means a reason that is without logic. Neither applies to the
Respondent’s motivation for not providing the pre-job reports
to these employees. The Respondent has a reason for not dis-
tributing the pre-job reports and it is hardly irrational—even if
the General Counsel or the Charging Parties would have the
union follow a different policy, were they charged with formu-
lating union policy.
The pre-job reports are documents devoted to and containing
information about the operational requirements of the specific
job—a guide for the local union and contractor to anticipate
how many and what type of employees will need to be referred
to the job. They contain a raft of information about anticipated
equipment, labor costs, pipeline materials, and length of the
project, much of which is directly transferred from the contrac-
tor’s project bid document, and which even the union contrac-
tors of the PLCA do not share with one another.
For sure, there is other information: wage rates, benefit com-
pensation, etc., taken from the NPA, and accuracy of which,
should there be a dispute, is governed by what is in the NPA,
not what is in the pre-job report. The record is devoid of evi-
dence suggesting that any of these rates were collectively-
bargained or negotiated at or as part of the pre-job conference.
Indeed, the testimony and the documentary evidence (i.e., the
clear prohibitions in the NPA and in the pre-job report on local
unions and employers having the authority to vary the negotiat-
ed terms and conditions of employment) affirmatively militates
against the possibility. Thus, the General Counsel proves ex-
actly nothing when he points to particular wage or benefit rates
in the pre-job forms he has in his possession and argues that
they do not match the wages or benefits listed in the NPA.
Even if true, this does not suggest much less prove that the
change was made at or in conjunction with the pre-job confer-
ence report. It does not suggest much less prove that the local
union and the employer negotiated the change. The explana-
tion for these disparities, whatever it is—whether a misreading
of the NPA, a result of a “special addendum,” or an error—does
not turn on something negotiated by the local union and the
employer at the pre-job conference. As to contractually-
covered wages and benefits, the evidence is that the pre-job
report is a memorialization—not an independently enforceable
agreement.
And, finally, there is a small class of information that may be
listed on the pre-job forms— such as safety and drug policy—
that, pursuant to the NPA, is within the discretion of the indi-
vidual employer to establish on a particular job. There is no
evidence that these are “bargained” at the pre-job conference,
nor any reason to believe that the pre-job reports represent
binding agreements on what work policies the employer will
utilize. Rather, these work rules and individual employer rules
are conveyed to employees and enforced by the contractor at
orientations for employees beginning on the project. In other
words, there is no evidence that the pre-job reports are the
source of any rights for employees.
The system has evolved—with the contractors sharing this
information and meeting with the local unions before each
job—because it expedites and abets the operations, and informs
the local union of the hiring demands. It places on one sheet of
paper a summary of the job, including terms and conditions of
employment negotiated elsewhere, or in a few cases, permitted
(through prior bargaining) to be within the employer’s discre-
tion.
The union recognizes that this informal but important coop-
eration between labor and management would be threatened if
the union acceded to the General Counsel’s demand to distrib-
ute this information on request to any of the 30,000 members
who asked for it. The IUOE and the local unions have an inter-
est in the maintenance of the pre-job system and the coopera-
tion and exchange of information it fosters. If the unions must
disclose pre-job reports, the PLCA and its contractors fear that
the PLCA contractors will obtain each other’s pre-job reports
and be in a position to underbid each other. This is also legiti-
mate concern for the International Union and local unions too.
Moreover, this concern is exacerbated and multiplied for all
these parties when one considers the prospect of the pre-job
reports being easily obtainable by nonunion contractors through
their contact with union members. With the pre-job report
“bidding” information in hand, nonunion contractors could look
to craft their bids to make themselves more attractive to owners
and awarders of construction bids. Obviously, this concern
informs the local union’s policy of not distributing copies of the
pre-job reports on request to members. Bidding is, after all, a
competitive process. And, indeed, coincidentally (I assume)
one of the charging party’s here operates a small nonunion
construction firm. The local union has an obvious and legiti-
mate interest in taking steps to bolster and protect the competi-
tiveness of the unionized contractors and the PLCA members.
Whether or not the General Counsel agrees, or would enact the
same policy were he operating a labor union, it is not a serious
argument to contend that the policy of not distributing the pre-
job reports upon requests is irrational or arbitrary. By the same
token, federal law protects the right of the members of Local 18
to elect leadership that will change the policies with regard to
the pre-job reports. But neither the duty of fair representation
specifically, nor Section 8(b)(1)(A) generally, provides legal
relief for members who object to a non-discriminatory, good
faith, and rational policy with which they disagree.
Notably, it is not necessary, under the circumstances pre-
sented, to paint too broad a brush in order to insulate the Re-
spondent’s policy from challenge from the fair representation
claims at issue here. While there may be some situations where
an employees’ request for the pre-job report could be consid-
ered central to his grievance or concern, that is not the case
here. For instance, if an employee had a dispute with an em-
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 9
ployer that implicated the safety policies adopted by the indi-
vidual employer, the pre-job report might—arguably—contain
notations helping to establish what policies the employer had
told the local union it was adopting. We need not consider
whether, under those circumstances, Local 18’s policy must
give way, because that is not this case. In other words, even
accepting the proposition that the “rationality” of the local un-
ion’s policy must be evaluated in terms of the importance of the
requesting employee’s interest in the pre-job report, here the
employee’s interest is unidentifiable except as an abstract de-
mand to be entitled to any document that might list or mention
a term or condition of employment.
Wiltse’s grievance and his complaint concerned his termina-
tion for his work performance, and his suspicion that this ter-
mination might have been prompted by his challenge to a su-
pervisor for performing unit work. No party to this case, in-
cluding the General Counsel who has seen the pre-job reports
in question, has explained or can explain what the pre-job re-
port will add to his consideration of the grievance. For his part,
Lanoux does not have any dispute with an employer. He seeks
the pre-job reports purely on principle, believing that if it con-
cerns the job, he should be able to see it.
Thus, if ever the importance of the pre-job reports to em-
ployees could warrant the conclusion that the union’s policy
against disclosure was irrational, that is surely not the case
here. Accordingly, a broad holding that a union never breaches
its duty of fair representation by refusing to provide the pre-job
forms need not be reached. But in this case, clearly, the policy
concerns that animate the union’s rule are rational and
nonarbitrary, unchallenged as they are by any legitimate need
for the reports by Lanoux or Wiltse.
The General Counsel’s arguments for finding a violation ef-
fectively ignore the Supreme Court-mandated standards, which
require deference to a union’s rational, good-faith,
nondiscrimininatory decision-making. At bottom, and at odds
with the controlling standard, the General Counsel presumes a
violation and the right of employees to receive the pre-job
forms, and challenges the union to prove why it cannot honor
this “right.” The government’s approach turns the law on its
head.
Thus, the General Counsel dismisses as irrelevant the Re-
spondent’s concern that liberal disclosure of the pre-job reports
could benefit nonunion contractors to the disadvantage of union
contractors, the union, and the employees. According to the
General Counsel (GC Br. at 13), the “motivation of the reques-
tor is irrelevant when there is a duty to disclose. . . . [E]ven if
the pre-job forms are of some use to members who operate their
own small construction companies, the requestor would not
know this use until they were able to view the document.” The
General Counsel’s position—in which a presumed “right” of
the employees to the union’s information trumps the union’s
rational motivations for refusing to disclose the information—is
unmoored from the Supreme Court’s teachings on the duty of
fair representation.
Similarly, the General Counsel disputes the confidentiality
concerns articulated by the Respondent and the PLCA regard-
ing disclosure of the pre-job forms. The General Counsel anal-
ogizes the issue to that of an employer asserting the confidenti-
ality of documents requested by a union in an 8(a)(5) duty to
bargain information case. In such cases, the employer’s statu-
tory duty to bargain with a union includes the affirmative duty
to provide requested information, subject to proof by the em-
ployer that the documents are confidential (in which case dis-
closure may occur with restrictions). However, this is not an
8(a)(5) case. It is an 8(b)(1)(A) case. Unlike an employer
faced with a union’s request for information, here there is no
statutory duty for a union to collectively bargain with its mem-
bers. Here, there is no general affirmative duty to provide rele-
vant requested documents upon request.7
In short, the Respondent is not required to prove an enforce-
able confidentiality interest in order to win its case. It is
enough that the Respondent’s concerns about disclosure of the
pre-job reports are credible, rational, and nonarbitrary. Wheth-
er or not the PLCA, its members, the International Union, or
the Respondent, has demonstrated a legally enforceable,
nonwaived, no-exceptions confidentiality interest in the pre-job
reports is not the point. This case involves consideration of
whether the credited concerns about having to provide pre-job
reports upon request are rational in view of the overall circum-
stances confronting the union. They are, particularly here,
where the requesting employees have no specific need for the
documents.8
The apogee of error in the General Counsel’s claim is found
in its contention (GC Br. at 7–9) that Local 18’s refusal to pro-
vide Wiltse and Lanoux with the requested pre-job reports is an
unlawful breach of the duty of fair representation because it
denies them “all the information they need to evaluate whether
Respondent is representing them fairly.” (GC Br. at 9). For
this argument, the General Counsel looks to the Board’s deci-
sion in Law Enforcement & Security Officers, Local 40B, 260
NLRB 419 (1982). However, the General Counsel misreads
the holding of that case to claim an expansive but nonexistent
“right” under the Act for employees to receive upon request
any paper that might have a term or condition of employment
on it—even if that document is not the negotiated source of the
term and condition, even when the source of the agreement (the
collective-bargaining agreement) is available to employees, and
even when the union has sound reasons for not wanting to dis-
close the document. The General Counsel’s position is at odds
with the principles of the duty of fair representation and that

7 The General Counsel contends (GC Br. at 11) that the principles of
8(a)(5) information cases are “instructive” and claims that they were
“applied” in an 8(b)(1)(A) context in Mail Handlers Local 307, 339
NLRB 93, 96 (2003). This is 100 percent wrong. In fact, the ALJ in
that case expressly rejected any equivalency, and stated that “[t]he
Union’s obligations must be evaluated solely on the basis of whether its
countervailing interest in refusing to provide documents is genuine and
sufficiently reasonable to be rational.” 339 NLRB at 96. The Board
adopted the judge’s conclusions, adding its own analysis, which did not
mention or make a nod to the principles of 8(a)(5) cases.
8 Given my conclusions, I do not reach the question of whether the
PLCA has proven that it or its members has an enforceable confidenti-
ality interest in the pre-job reports. It is enough that its witness testified
credibly of the concerns associated with distribution of the pre-job
reports. The Respondent, reasonably, shares these concerns, for many
of the same reasons.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inconsistency is patent in a case like this one where the Re-
spondent’s rationale for not providing the pre-job conferences
is countered only with a generalized desire but no tangible rea-
son that the charging parties have need for the pre-job reports.
In Local 40B, the Board considered an 8(b)(1)(A) claim in-
volving a union that refused to provide an employee with cop-
ies of the collective-bargaining agreement and the health and
welfare fund that covered him. The employee wanted to see
the labor agreement to determine if he was eligible for certain
overtime pay, and wanted to see the health and welfare plan to
determine if he could be reimbursed for certain medical ex-
penses he had incurred. Instead of furnishing the documents, as
it first promised to do, the union required the employee to send
his medical bills to the union for the union’s consideration un-
der the plan. Without ever showing the documents to the em-
ployee, the union obtained reimbursement for the employee for
some but not all of his medical bills, and the employee received
no overtime. Under these circumstances, the Board found a
violation, reasoning that while:
[e]mployees must rely on their union to represent them fairly
in all matters covered by the collective-bargaining agreement,
which controls the terms and conditions of the employment[,]
. . . when a union denies the employees it represents the op-
portunity to examine its agreement with their employer, it se-
verely limits the employees’ ability to determine whether they
have been afforded the fair representation that is their due. In
the instant case, Respondent’s failure to make available to
Charging Party [ ] copies of its collective-bargaining agree-
ment and its health and welfare plan impeded his ability to
understand his rights under those documents and hampered
his ability to determine the quality of his representation under
them.
260 NLRB at 420 (footnote omitted).
The Board’s decision in Local 40B fits squarely within the
Supreme Court-mandated standards for duty of fair representa-
tion cases. The union in Local 40B offered no reason at all for
refusing to provide the employee with the labor agreement or
health and welfare plan that governed his terms and conditions
of employment. The union offered no explanation for its con-
duct. Its conduct was arbitrary and without rationale.
But nothing in Local 40B justifies the General Counsel’s
reading of it to state an indefeasible “right” for an employee to
receive any kind of document he or she wants from the union as
long as it might list a term and condition of employment.
As discussed above, much of what is on the pre-job report
does not relate to matters that are typically bargained about
with regard to each individual job, such as the location, the
owner, the number of pieces of equipment and the number of
operators needed. Of course, the wage rates, benefit payments,
etc., are listed on the pre-job report and are terms and condi-
tions of employment—but those figures are not negotiated as
part of the pre-job conference, they are taken from the collec-
tively-bargained agreement—the NPA, which the employees
have—and then recorded on the pre-job report. Even under the
General Counsel’s wrong and expansive reading of Local 40B,
employees are not entitled to every memorialization of terms
and benefits negotiated elsewhere.
I do agree that one can imagine a case where what is written
on the pre-job report might, for example, impact an employee’s
dispute with the employer over whether the employer’s safety
policy required steel toe boots. Perhaps the pre-job report
could be evidence confirming or contradicting the parties’ un-
derstanding of terms of the employer’s safety policy. And in
that case, the issue would be whether the union’s unwillingness
to share that pre-job report—or at least, that portion of the pre-
job report—could be deemed arbitrary in light of the centrality
of it to the employee’s grievance. But that is not this case.
Here the Respondent’s rational rationale for not disclosing the
pre-job reports “on demand” is unopposed by any serious need
articulated by Wiltse or Lanoux.
Other cases relied upon by the General Counsel are similarly
inapposite. Thus, in Branch 529, Letter Carriers, 319 NLRB
879 (1995), a local union was found to have breached the duty
of fair representation by refusing to provide an employee with
requested copies of the grievance forms in the grievance she
filed. In that case, the Board noted specifically the “self-
evident” and “particular” interest the grievant had in obtaining
“grievance documents” that “specifically pertained” to the
grievance she filed. Here, by contrast, the pre-job report had no
relationship with—nothing all to do with—Wiltse’s grievance.
And as for Lanoux, he had no grievance or any explicable rea-
son for wanting the pre-job report, other than his avowed
conclusory legal view that he was entitled to it.
On the other side of the “rationality” balance, the local union
in Branch 529 raised “no substantial countervailing interest” in
refusing to provide the requested documents. Instead, the re-
spondent relied upon the fact that the forms were its “property,”
which the Board noted was an irrelevancy as the employee
sought copies not originals. The respondent’s other rationale
was that it looked to the international union for advice on the
matter, and the international union representative told the re-
spondent, and testified at the hearing, that its “policy” was that
the forms not be provided because “it’s the property of the un-
ion” and “[w]e just don’t give it.”
The problem for the respondent in Branch 529 is apparent
and not at issue here: the respondent in Branch 529 offered no
reasoned explanation for not providing the employee the forms.
It rested on irrationalities (the forms are our property) and def-
erence to a conclusory explanation that it was following a “pol-
icy” that had no apparent or articulated rationale. In short, the
union’s explanation in Branch 529 was “we just don’t give it.”
Arbitrary means no reason. The respondent (and the interna-
tional union) claimed there was an international union policy of
refusing to provide members with grievance forms but never
offer a rationale for that policy. Nonarbitrary policies have
reasons. A bare reason for its position was what Branch 529
lacked.
This case is very different. Here the Respondent has articu-
lated a rational reason why it does not provide pre-job reports
upon request. I find the reason credible, in other words, I be-
lieve it is the reason. Thorn’s credible testimony on this score
buttresses my view about the rationality and credibility of the
Respondent’s position. Given this, that the government thinks
it is not a sound policy, or that a better policy would be to pro-
vide the forms upon request, is of no moment under the Su-
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 11
preme-Court required standard in duty of fair representation
cases. A rational reason is enough, particularly in light of the
general, indeed, abstract interest of the charging parties in re-
ceiving the pre-job reports.
Perhaps even more strained is the General Counsel’s effort to
tease support for its position from the Board’s decision in
Teamsters Local 282, 267 NLRB 1130 (1983). In Local 282,
the Respondent was found to have breached the duty of fair
representation by failing to inform laid-off employees about an
arbitration award that required them to contact the employer
once a year in order to maintain their seniority. The union,
including its president, had previously assured laid off employ-
ees that they remained on the seniority list indefinitely and did
not need to contact the employer to retain seniority. Under the
circumstances, the Board equated the duty to inform employees
about the change in their rights with the duty to avoid purposely
misinforming employees about matters affecting their employ-
ment, and found the union’s actions breached its duty of fair
representation. The Board rejected the union’s argument that it
was simply following its “normal practice” of not contacting
laid-off employees about arbitration issues. Given the history
of contrary instructions from the union to the laid off employ-
ees, and given that the precise subject of the arbitration was the
employment rights of the laid off employees, the Board found
the union’s rote adherence to “normal practice” lacked a ration-
al basis.
How does that case in any way bear on matters here? After
all, the decision not to provide the pre-job reports to Lanoux
and Wiltse did not affect their employment rights one whit, and
involved no contradiction with previous advice on terms and
conditions of employment.
The General Counsel argues that the Respondent’s explana-
tion to Lanoux and Wiltse, offered at the time of their requests,
that the local does not provide members with the pre-job re-
ports, is like the union’s explanation in Local 282 that it is fol-
lowing “normal practice.” However, quite apart from and in
addition to the utter lack of impact of the pre-job reports on
Lanoux and Wiltse’s employment, the Respondent in the in-
stant case did not limit its explanation to an unexplained adher-
ence to a normal practice. Rather, at the hearing, the Respond-
ent, aided by the PLCA, explained the rationale for its practice
in depth.
In this regard, I note that there is no basis in law or logic for
the General Counsel’s implicit argument that the evaluation of
the Respondent’s reasons for not providing the pre-job report
must be limited to the reasons that the Respondent’s representa-
tives gave to Lanoux and Wiltse. Essentially, these representa-
tives told Wiltse and Lanoux that pre-job reports were not giv-
en out to members and in Wiltse’s case, explained why the pre-
job report had no relevance to his grievance. That the repre-
sentative failed to provide, or perhaps, did not know the full
explanation of why the Respondent and the International Union
regularly refused such requests does not undermine the legiti-
macy of the Respondent’s full policy rationale offered at trial.
In any organization, policies and practices often have legitimate
origins and explanations with which the front-line personnel
may be unfamiliar. They execute the policies, without explain-
ing and perhaps without knowing their full import. The rele-
vant
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issue is whether the rationale for not providing the reports that
was offered at trial is credible. I believe it was credibly of-
fered.9
“A union is its members' representative, not their puppet, and
its duty of fair representation is not a servitude to their individ-
ual whims.” Amburgey v. Consolidation Coal Co., 923 F.2d
27, 30 (4th Cir. 1991). As far as the duty of fair representation
is concerned, the Board does not sit to intervene in or pass
judgment on the wisdom or effectiveness of good-faith and
nondiscriminatory union policies that individual members do
not like. Here, Respondent’s conduct must be arbitrary for a
violation to be found. It is not.10
CONCLUSIONS OF LAW
The Respondent did not violate the Act as alleged in the
complaint. On these findings of fact and conclusions of law
and on the entire record, I issue the following recommended11
ORDER
The complaint is dismissed.

9 Other cases cited by the General Counsel in support of his argu-
ment do not advance the case. Essentially, the Board is willing to find
an 8(b)(1)(A) fair representation violation when a union fails—without
justification—to disclose information that is directly pertinent to legal
or financial claims of the employees. Thus, in UAW Local 909, 325
NLRB 859 (1998), the Board found a violation when the union refused
to provide employees with a requested accounting of why employees
received disparate and in some cases no payments pursuant to a griev-
ance settlement with the employer. (Asked for an explanation, the
union representative “proclaimed that he did not have to discuss the
settlement” and told employees “it is none of your business.”)
In Teamsters Local 232, 280 NLRB 733, 735 (1986), the Board
found a violation where, without “sufficient reason” the union refused
to provide two employees with information that would allow them to
determine their position on the union’s exclusive hiring hall job referral
lists in order to protect their referral rights. In each of these cases, the
union acted (1) without justification to deny the complaining employ-
ees information that (2) directly affected employee rights in an ongoing
dispute. Neither is the case here.
The General Counsel also cites NALC, Branch #47, 330 NLRB 667
(2000), enfd. 254 F.3d 316 (D.C. Cir. 2000), but that case involved an
8(b)(1)(A) violation where the motive for the refusal to provide infor-
mation was retaliatory. No such ill-motive is at issue in the instant
case.
10 The Respondent filed a motion to dismiss at the hearing arguing,
essentially, that because it is not party to the NPA—rather, the IUOE
is--it does not owe a duty of fair representation to the charging parties
and is not properly a respondent in these cases. This argument is re-
peated in its posthearing brief. (R. Br. at 16–20.) Given the outcome I
reach in these cases I deny as moot the Respondent’s motion to dismiss,
and do not reach the issue as raised in the brief.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
APPENDIX
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 13
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18 (PRECISION PIPELINE) 15