Operating Engineers Local 3 (Perini Corp.)

National Labor Relations Board - Board Decisions

Jan 10, 1992

305 N.L.R.B. 1111 (N.L.R.B. 1992)

1111
305 NLRB No. 175
OPERATING ENGINEERS LOCAL 3 (PERINI CORP.)
1 All dates are in 1990 unless otherwise indicated.
2 It appears this version of the Respondent’s regulations went into
effect on or about September 6, 1983, pursuant to a letter sent to
all district representatives, business representatives, and dispatchers.
The parties stipulated the preferred list provisions were amended in
1983 to provide that industrial accidents also must prevent an indi-
vidual’s ‘‘employment in any classification except one which is pre-
ferred,’’ and to require a doctor’s certificate.
Operating Engineers Local Union No. 3, Inter-
national Union of Operating Engineers, AFL–
CIO (Perini Corporation) and John Johnson.
Case 20–CB–8373
January 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 30, 1991, Administrative Law Judge Joan
Wieder issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Operating Engineers Local
Union No. 3, International Union of Operating Engi-
neers, AFL–CIO, its officers, agents, and representa-
tives, shall take the action set forth in the Order.
Lucile L. Rosen, Esq., for the General Counsel.
Lawrence B. Miller, Esq., of San Francisco, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried on March 14, 1991,1 at San Francisco, California. The
charge was filed by John Johnson, an individual, on May 31,
1990 against Operating Engineers Local Union No. 3, Inter-
national Union of Operating Engineers, AFL–CIO (Respond-
ent or Union). On July 30, 1990, the Regional Director for
Region 20 of the National Labor Relations Board issued a
consolidated complaint and notice of hearing against Re-
spondent alleging Respondent violated Section 8(b)(1)(A) of
the National Labor Relations Act.
Specifically, it is alleged Respondent refused to reregister
John E. Johnson on its preferred out-of-work list in May
1990 without affording him and similarly situated registrants
due process for it failed to give notice of its intent to modify
the manner in which the rule was applied.
Respondent’s timely filed answer to the complaint admits
certain allegations, denies others, and denies any wrong-
doing.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based on the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent’s answer to the complaint admits, and I find,
Perini Corporation (Employer) meets one of the Board’s ju-
risdictional standards and the Union is a statutory labor orga-
nization.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Findings of Fact
The principal facts in this case are undisputed. Respondent
operates an exclusive hiring hall. Soon after the enactment
of the Taft Hartley Act in 1987, Respondent formed job
placement regulations based on seniority. In the early 1960s
Respondent drafted hiring regulations which provided for a
preferred list in its job placement regulations to provide for
registrants who had been injured on the job and needed jobs
that required less physical skill or were otherwise easier to
perform. The Respondent’s job placement regulations were
incorporated in applicable collective-bargaining agreements,
which are in effect from 1989 through 19932 which provide
for preferred registration as follows:
04.10.03 An Employee making a Preferred registration
shall:
(a) be ineligible to register and shall not register for
work in any classification which is not Preferred and
(b) be fifty-five (55) or more years of age and have
had at least ten (10) years of employment or availability
for employment in any one or more classifications set
out in Section 01.00.00 of this Agreement on the type
or kind of craft work covered by this Agreement in
Northern California.
(c) Be a Class A Employee who does not meet such
requirements above, but who furnishes a doctor’s cer-
tificate stating such Employee is unable to perform his
normal work for a period of six (6) months or more
preventing his employment in any classification except
one which is Preferred or a Class A Employee who ac-
quired a physical handicap as a result of an industrial
accident while employed as an Operating Engineer,
which prevents his employment in any classification ex-
cept one which is Preferred, shall be permitted to so
register. [Emphasis added.]
Respondent’s dispatch manual, which bears an issue date
of June 1, 1985, as here pertinent, required the registrant es-
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 John Johnson was initiated into Respondent in September 1972.
4 John Johnson’s birth date is November 6, 1945.
5 The letter, written by Jeremy J. Berge, M.D., a specialist in inter-
nal medicine, stated:
Mr. John Johnson has been under my care from April 17,
1985 until the present for medical problems which required hos-
pitalization and extensive rehabilitation.
Mr. Johnson is making good progress in his recovery. How-
ever, it is important that he remain in a low stress situation at
present. It is recommended that he return light-duty work for a
period to avoid the demands and stresses of operating heavy
equipment. He will require light-duty work for a period of at
least six months. Mr. Johnson will be capable of returning to
full work capacity in the future and I will notify you at such
time of his complete medical release. [Emphasis added.]
6 This letter provided:
Mr. John Johnson continues to be under my care for medical
problems. He was examined today, April 13, 1988, and I have
recommended that he remain on light duty for an indefinite pe-
riod. He will be re-evaluated in six months. [Emphasis added.]
tablish their ‘‘handicapped’’ status which is to be determined
by the dispatcher from the information provided by the out-
of-work registrant. The manual provides, in part:
Section 04.10.03(c) requires that the ‘‘physical hand-
icap’’ must prevent an individual’s employment ‘‘in
any classification except one which is preferred’’ so
that an individual seeking preferred registration for that
reason should present a letter from a physician or other
sufficient evidence substantiating that he has a physical
handicap which prevents his employment in all classi-
fications except those that are preferred. If a dispatcher
believes that the individual is capable of working in a
classification other than those on the Preferred List, that
matter should be referred to the district representative
for disposition.
If the district representative also believes that the in-
dividual does not meet the requirements of 04.10.03,
the individual should be so advised and told that he has
a right to appeal the determination to the job placement
regulations committee.
A medical certificate of continued disability may be
required in either instance in ‘‘(c)’’, above.
The Charging Party, John Johnson, apprenticed with Re-
spondent in 1967, left the Union that year, and returned
‘‘around 1970.’’3 John Johnson is not yet 55 years old.4
From 1970 to 1985, he operated backhoes, loaders, dozers,
cranes, and rollers. In 1985 John Johnson was hospitalized
because he ‘‘was drinking too much from over-stress at the
job.’’ When he was released from the hospital in 1985, he
obtained a doctor’s letter5 and was registered by Respondent
on the preferred list. Respondent avers their placement of
John Johnson on the preferred list was a mistake. General
Counsel does not claim Respondent acted in a discriminatory
manner in this case. It is undisputed placement on the pre-
ferred list increases the registrants’ chances of being dis-
patched. According to the unrefuted testimony of Ted
Wright, Respondent’s district representative in San Francisco,
it is desirable to be on the preferred list because: ‘‘there’s
probably more—in San Francisco, there is more elevator op-
erating jobs probably than there is anything else. And it pays
a lot of money. And there are job opportunities, because they
are early—they usually go to work before anybody else and
they are the last ones on the job.’’
Based on another letter from Dr. Berge dated May 3,
1987, John Johnson was again registered on the preferred
list. The letter provides:
Mr. John Johnson has continued to be under my care
for medical problems since 1985. Because of the nature
of his problems and treatment needs it is recommended
that he remain on light duty for an indefinite period of
at least twelve months. He will be re-evaluated at the
end of that time. [Emphasis added.]
Johnson was dispatched on June 16, 1987.
On March 25, 1988, John Johnson again registered on the
preferred list and was dispatched the same day. John Johnson
did not have a current doctor’s letter and was informed he
needed one by Ted Wright, pursuant to instructions from the
Respondent’s district representative. Another letter was pro-
vided by Dr. Berge dated April 13, 1988.6 On November 23,
1988, John Johnson again registered, providing a letter from
Dr. Berge dated November 2, 1988. There were two letters
from Dr. Berge dated November 2, 1988. One letter did not
bear a union-received stamp and the other was stamped as
received December 15, 1988. Respondent contends the letter
which does not mention stress was received by the Union on
November 21, 1988, but there was no evidence adduced to
support this claim. The letter with the received stamp is the
only one that mentions stress-related issues. This letter pro-
vided:
Mr. John Johnson continues to be under my care for
medical problems. He was examined today, November
2, 1988, and I have recommended that he remain on
light duty for an indefinite period due to stress related
issues. He will be re-evaluated in six months. [Empha-
sis added.]
On December 12, 1988, John Johnson submitted to Re-
spondent a letter from William I. Perry, Ph.D, a clinical psy-
chologist, indicating John Johnson, since November 16,
1988, was under his care for psychological problems; receiv-
ing weekly ‘‘psychotherapy for stress-related problems’’ as
an outpatient. Dr. Perry also recommended John Johnson re-
main on light duty for at least 6 months.
Respondent claims, without merit, that this is the first time
the Union was notified John Johnson ‘‘had only a ‘stress re-
lated’ impairment and no physical handicap.’’ Dr. Berge’s
November 25, 1985 letter mentioned John Johnson should re-
main in low stress situations and avoid the stress of operating
heavy equipment. Dr. Berge always ended his letters by stat-
ing he was always available to answer any questions. Also,
in his November 2, 1988 letter, Dr. Berge again mentioned
‘‘stress’’ as being related to John Johnson’s medical prob-
lems. Also, the dispatchers that placed John Johnson on the
preferred list since 1985 did not appear and testify. There
was no claim they were unavailable. There is no evidence
Respondent lacked knowledge John Johnson’s disability was
stress related.
Respondent admits on brief when it initially registered
John Johnson on the preferred list:
In retrospect, the District Representative should have
ascertained that the impairment and stresses referred to
1113OPERATING ENGINEERS LOCAL 3 (PERINI CORP.)
7 The superintendent of Perini Construction Corporation offered
John Johnson a job and gave him a dispatch letter. John Johnson
took the letter to the Respondent’s hiring hall and it was then he
was advised he needed a current doctor’s certificate.
were mental rather than physical and refused to put
Johnson on the Preferred List. Further Johnson indi-
cated on an attached affidavit that his problem was
mental, but this apparently went unnoticed or the sig-
nificance did not register with the then District Rep-
resentative, Hank Munroe, who had never before or
since dealt with a request for Preferred List registration
based on mental impairment.
Hank Munroe did not appear and testify, there is no basis
to find Munroe did not notice or attach any significance to
John Johnson’s affidavit. It appears John Johnson’s request
was the only one Respondent received based on stress rather
than a physical impairment. According to Tom Stapleton,
Respondent’s business manager, and a long-term employee
who knew the history of the establishment of the preferred
list, the terms stress or mental impairment were not dis-
cussed.
After receiving the letters from Perry and Berge in Decem-
ber 1988, Respondent’s dispatcher and district representative
determined John Johnson could not register on the preferred
list because he did not have a physical handicap. Initially, the
dispatcher is charged with interpreting the Union’s job place-
ment regulations, then the district representative, and the
final arbiter is the job placement regulations committee as set
forth in the job placement regulations.
Sharon Meadows, who was a court-ordered compliance
monitor pursuant to a consent decree which involved minori-
ties receiving the appropriate amount of work, interceded on
behalf of John Johnson, who is a black man. Respondent
agreed to permit John Johnson to register on the preferred
list even though he did not have a physical handicap. In the
winter of 1988 or the spring of 1989, John Johnson again
sought to register on the preferred list and Respondent again
refused because he was not physically handicapped. John
Johnson again sought the assistance of Sharon Meadows who
met with Munroe, the San Francisco district representative,
and the then-business agent, Ted Wright. After this meeting,
John Johnson was again permitted to register on the preferred
list.
Ted Wright admitted Respondent took the ‘‘position at
that time and said that if he wasn’t a physical disability that
he—you know, he shouldn’t be allowed to be signed up on
the Preferred List.’’ However, since Meadows represented
‘‘minorities weren’t getting enough hours, and that we
should go ahead and let John get dispatched out, and how
come we were holding him back from being dispatched on
the Preferred List,’’ Respondent dispatched him from the
preferred list. Respondent does not claim it informed John
Johnson or any other registrant of its interpretation of the
preferred list regulations as barring individuals who had
stress related disabilities or other medical problems they did
not characterize as a physical disability.
On May 1, 1989, John Johnson again registered on the
preferred list. There was no doctor’s letter but May 1 was
within 6 months of December 12, 1988. There was no testi-
mony concerning why Respondent permitted John Johnson to
register on the preferred list on May 1. John Johnson again
registered on July 25, 1989, without a new letter. July 25
was about 6 weeks past the 6-month period, thus, the De-
cember 12, 1988 letter may not have been the basis for per-
mitting his registration on the preferred list this date. There
was no testimony from any union representative with direct
knowledge concerning why John Johnson was permitted to
register on the preferred list on July 25.
The exhibits indicate John Johnson reregistered on the pre-
ferred list within 85 days after July 25, pursuant to section
04.10.19 of the Job Placement Regulations. Although the
exact date of this registration was not a matter of record,
there is no dispute John Johnson was timely; he presented a
letter from Dr. Perry dated September 30, 1989, which pro-
vided:
This is to certify that Mr. John Johnson has been re-
ceiving psychological services from me for treatment of
a stress-related mental disorder.
I have been seeing Mr. Johnson since November 16,
1988, for conditions arising during and subsequent to
his most recent employment.
I is my opinion that Mr. Johnson still suffers from
a stress-related depression with anxiety and would ben-
efit from further treatment.
Please do not hesitate to contact me if I can be of
further help.
Apparently on the basis of this letter, Respondent dis-
patched John Johnson from the preferred list on January 4,
1990, and he reregistered on January 8, 1990, without losing
his position on the out-of-work list due to the short length
of the job. On March 29, 1990, John Johnson was again dis-
patched from the preferred list to the same employer as Janu-
ary 4, 1990.
On April 19, 1990, Johnson tried to register,7 submitting
the September 30, 1989 letter from Dr. Perry. John Johnson
was informed by the dispatcher, Jaime, the letter was out-of-
date. John Johnson went to Dr. Perry and got another letter,
which was dated April 20, 1990. This letter was presented
to Respondent on April 24, 1990, and provides:
This letter is regarding Mr. John Johnson . . . who
was under my care for stress related disorders from 11–
16–88 through 09–13–19. He was seen by myself
weekly for psychotherapy sessions.
Please note that termination of treatment was forced
due to Mr. Johnson’s having exhausted his insurance
benefits and his lack of personal funds to pay for con-
tinued services himself. While significant progress was
made over the course of treatment, the problems pre-
cipitating his treatment were not sufficiently resolved
and to the best of my knowledge remain obstacles to
Mr. Johnson’s overall adaptive functioning. Based on
my work with Mr. Johnson as well as having kept in
sporadic touch since treatment terminated, it is my
opinion that he could benefit from additional psycho-
therapy.
It is also my opinion, due to his unresolved psycho-
logical problems and length of time since participating
in the work force, that he be placed in a light duty situ-
ation initially if and when he does return to work. This
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Wright, as district representative, is required by Respondent’s
Dispatch Manual to resolve any issues concerning a registrant’s eli-
gibility to be placed on the preferred list. Wright, as a matter of rou-
tine, checked all registrants under the age of 55 who sought to be
placed on the preferred list because the desirability of the placement
led many unqualified individuals to attempt to be placed on the list.
9 Although John Johnson claimed he did not get along with
Wright, there is no evidence or claim Wright ever discriminated
against John Johnson or gave him cause to suspect any such dis-
crimination. Wright did not share John Johnson’s opinion that they
‘‘did not get along very well.’’ I find the evidence does not support
a claim Wright or any representative of Respondent held any animus
against John Johnson for any reason.
10 During his testimony, John Johnson claimed he stayed at the
meeting 5 to 10 minutes, but his affidavit, dated June 11, 1990, indi-
cated he remained at the meeting only a minute or two. According
to Ted Wright:
We were going to try to resolve some of the issues that were
out there. John sat down—you started out with a statement, I
believe, that ‘‘I understand that you are a good operator.’’
John stood up at that time and said, ‘‘That’s not the issue
here.’’ And he walked out.
Q. Then what happened?
A. Sharon Meadows went after him to try to bring him back.
And she couldn’t bring him back.
And Sharon came back in, and we discussed the problems
with John going on the preferred list.
I credit Wright’s testimony based on his demeanor, which appeared
more forthright and open. Another factor leading to this finding is
Wright demonstrated a facility to recall facts greatly superior to the
ability displayed by John Johnson for recollection. Further, Wright’s
version is more closely aligned to John Johnson’s affidavit, which
was given at a time closer to the events. Johnson did not attempt
to reconcile the difference between his affidavit and testimony.
would offer the best hope for long-term success as an
employee. [Emphasis added.]
When John Johnson presented this letter to the dispatcher,
Jaime, he was not placed on the preferred list, but he was
told by Jaime he would have to show the letter to Ted
Wright.8 John Johnson did not want to wait and talk to
Wright.9 The letter was left with Jaime with the under-
standing it would be shown to Wright. John Johnson then
called Sharon Meadows.
Jaime referred the matter to Wright who referred the mat-
ter in turn to Miller, Respondent’s house counsel. Wright’s
concerns were:
the fact that he hadn’t seen John for some time. That
it didn’t have anything in there about a physical dis-
ability, or that he could be off for six months.
He would be off for more than six months, and per-
form work in his normal duties.
Miller and Wright referred the issue to the business manager,
Tom Stapleton, for a final decision.
Stapleton did not consider the doctor’s letter of April 20,
1990, sufficient to permit John Johnson to register on the
preferred list because: ‘‘For one thing, there is no physical
disability or handicap. There’s nothingthat says he is not ca-
pable of working in the classifications that he normally
works in. And third, even though it met those requirements,
I don’t know what a light duty situation is.’’ Stapleton also
had a conversation with Wright and Miller concerning the
May 18, 1990 letter, which he found would not have quali-
fied John Johnson for the preferred list, even if he had a
medical problem, a physical handicap. According to Wright:
‘‘The conversation was that according to this letter, that it
didn’t look like there was anything wrong with John John-
son, that he was free to go to work on anything but the Pre-
ferred List.’’ Respondent also noted the last two doctors’ let-
ters indicated John Johnson had not seen a doctor for more
than six months, consequently, he may not have been prop-
erly evaluated. There is no evidence John Johnson was in-
formed of any of the reasons given by Stapleton in his testi-
mony, other than the doctor’s letter was inadequate.
Wright informed Jaime, the dispatcher, that John Johnson
did not meet the criteria for the preferred list but he was free
to sign up on the regular list and to so inform John Johnson.
Jaime telephoned John Johnson and left a message on his an-
swering machine that the doctor’s letter was not sufficient to
permit his registering on the preferred list but he could reg-
ister on the regular list. Jaime also told John Johnson that
he could register on any list other than the preferred list.
There is no evidence John Johnson was ever informed of the
specific deficiencies in his submission. John Johnson did not
register on any other list. Respondent did not inform John
Johnson prior to the call from Jaime, that he would no longer
be permitted to register on the preferred list; there was no
notice circulated or posted informing members stress related
or mental illnesses would not qualify for registration on the
preferred list.
Sharon Meadows arranged for a meeting with herself, John
Johnson, Lawrence E. Miller, Respondent’s house counsel,
and Ted Wright. Shortly after the meeting commenced,10
John Johnson walked out because, according to John John-
son, ‘‘What I remembered later on was, you [Miller and/or
Respondent] were telling me what I could do. And the letter
was stating what I couldn’t do. So I figured we weren’t get-
ting anywhere with this meeting, so I got up and left.’’
Dissatisfied with the Union’s ruling, John Johnson filed a
grievance. The issue was referred to the job placement regu-
lations committee. According to James W. Eaton, a com-
mittee member and employee of the Associated General
Contractors of California as industrial relations director
charged with enforcing and administering various labor
agreements, the committee decided John Johnson was not eli-
gible to register on the preferred list. The basis of this deci-
sion were:
We listened to the testimony of both the grievant and
the union, and then reviewed what was in paragraph C.
The committee decided that it was not presented evi-
dence that Mr. Johnson could not perform work on
whatever equipment he was eligible for.
Furthermore, he had not suffered an industrial acci-
dent which led to a handicap. Again, the language is
rather specific on that issue.
There was no evidence that he was incapable of per-
forming classifications for which he was qualified over
the next six months.
Again, just a very narrow reading of the language.
The committee considered the precedents where John
Johnson had been referred from the preferred list for the past
5 years, but
1115OPERATING ENGINEERS LOCAL 3 (PERINI CORP.)
11 Respondent refers to the Supreme Court decision in Air Line Pi-
lots Assn. v. Joseph E. O’Neill, 91 C.D.O.S. 1967, a March 19, 1991
decision considering whether a Union’s actions under the Railway
Labor Act arbitrarily breached their duty of fair representation. I find
this case inapplicable herein for the following reasons. Initially, the
Union’s actions involved contract negotiations where the test is ‘‘far
outside a ‘wide range of reasonableness,’’’ id., not administration of
contractual referral obligations by an exclusive hiring hall. There is
no claim in the instant proceeding the Union acted arbitrarily. Also,
as the Court noted ‘‘National Labor Relations Act cases are not nec-
essarily controlling in situations such as this one, which are gov-
erned by the Railway Act.’’ Id.
quite frankly, we were baffled and did not understand
how Mr. Johnson was referred out, if he was indeed re-
ferred out, under the identical conditions earlier. And
we felt that it was simply a mistake and an error. And
a couple of reasons for that.
The first thing is that when you go back to the lan-
guage in here and it talks about a physical handicap, we
all understand that.
We understand what a physical handicap is. We can
measure it, we can see it, we can determine how a man
can perform or a woman can perform.
When you get into the stress area, all of a sudden
you put the management people on quicksand. We have
no basis to determine anything.
And when someone is operating heavy equipment,
whether it is an outside elevator, temporary elevator,
whether it is repairing compressors, whether it is run-
ning a forklift or any of the other things that might be
considered on this Preferred List.
Any errors of judgment by the operator become a
major safety hazard on a project. So it is customary
among 75 contractors to try to make some accommoda-
tion to those men and women who have been injured
in the industry.
Positions of the Parties
In summary, Respondent’s argument is it operated its re-
ferral system appropriately and lawfully because John John-
son did not meet the criteria for registering on the preferred
list for these reasons: (1) the April 20, 1990 letter from Dr.
Perry is clearly insufficient; (2) the Dispatch Manual requires
the registrant have a physical handicap, Johnson’s was men-
tal. The regulations require the registrant be ‘‘unable to per-
form his normal work,’’ and Dr. Perry requests a ‘‘light duty
situation’’ but fails to state John Johnson could not perform
regular duties available if he was not on the preferred list;
(3) Dr. Perry’s last two letters fail to state John Johnson
would be unable to perform work ‘‘for a period of six (6)
months or more’’; (4) Respondent also argues operating an
elevator is more stressful than operating a backhoe or bull-
dozer, so Dr. Perry’s last two letters fail to indicate John
Johnson’s impairment obviated his employment in any classi-
fication except one which is preferred.
I find the claim the operation of an elevator is more stress-
ful than operating other machinery to be without merit.
Stapleton testified he had never operated an elevator but was
told by some elevator operators in 1983, who were interested
in optimizing their overtime which the Union proposed be
cut from double time to time-and-one-half, while the task is
not a physical problem it has a lot of stress. This self-inter-
ested hearsay testimony, I conclude, is insufficient to support
the important claim operating an elevator is more stressful
than operating a backhoe or bulldozer. The parties agreed
many registrants tried to get on the preferred list because the
jobs available to them were highly desirable particularly ele-
vator operator. If physically handicapped individuals could
perform these jobs, they can appropriately be considered
‘‘light duty’’ situations. Johnson was repeatedly dispatched
to elevator operating jobs from the Preferred List; supporting
a conclusion even Respondent considered it a ‘‘light duty’’
position.
Counsel for General Counsel asserts Respondent unlaw-
fully refused to permit John Johnson’s continued registration
on the preferred list for it failed to give him and other job
applicants proper notice of the Union’s intention to modify
the method of applying the preferred list rules and regula-
tions, thereby denying them due process. Counsel for Gen-
eral Counsel claims the regulations are, at best, ambiguous,
and permitted John Johnson to apply and be placed on the
preferred list for about 5 years, and then, without notice, Re-
spondent changed its interpretation of the rules. Where a hir-
ing hall rule is ambiguous, the Union must provide job appli-
cants with adequate notice of any rule change and Respond-
ent failed to do so in this case.
According to counsel for General Counsel, the failure of
the Union to provide John Johnson with prior notice of the
change in registration rules for the preferred list constitutes
a lack of due process and violates the Act, citing Operating
Engineers Local 406 (Ford Bacon & Davis), 262 NLRB 50
(1982). The rule change was significant and the change was
arbitrary, thereby breaching the Union’s duty to fairly rep-
resent job applicants ‘‘by keeping them informed of matters
critical to their employment status,’’ in violation of Section
8(b)(1)(A) of the Act, citing Plumbers Local 392 (Kaiser En-
gineers), 252 NLRB 417 (1980).
Analysis and Conclusions
In operating an exclusive hiring hall ‘‘since a union has
such comprehensive authority vested in it when it acts as the
exclusive agent of users of a hiring hall and because users
must place such dependence on the union that there nec-
essarily arises a fiduciary duty on the part of the union not
to conduct itself in an arbitrary,11 invidious, or discrimina-
tory manner when representing those who seek to be referred
out for employment by it.’’ Teamsters Local 519 (Rust Engi-
neering), 276 NLRB 898, 908 (1985). As noted by the Board
in Boilermakers Local 374 (Construction Engineering), 284
NLRB 1382, 1383 (1987), ‘‘it has been repeatedly held that
once a union embarks on the operation of an exclusive hiring
hall it must conduct the hiring hall in a fair and impartial
manner. This code of acceptable conduct necessarily extends
to the institution of any referral rules which the Union adopts
in accord with contractual provisions. In other words, the re-
ferral rules themselves, including any referral grievance
mechanism, cannot be discriminatory or arbitrary.’’ Laborers
Local 304 (AGC of California), 265 NLRB 602 (1982).
In considering whether Respondent violated Section
8(b)(1)(A) of the Act, when the Union is acting in a statutory
representative capacity, such as the operator of an exclusive
hiring hall, it is prohibited from taking action against any
employee upon considerations or upon the basis of classifica-
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions that are irrelevant, invidious, or unfair. Miranda Fuel
Co., 140 NLRB 181 (1962); Plumbers Local 598 (Columbia
Mechanical), 250 NLRB 75, 83 (1980). A wide range of rea-
sonableness is allowed the statutory bargaining representative
in serving the employee it represents, subject to good faith
and honesty of purpose in the exercise of its discretion. Ford
Motor Co. v. Huffman, 345 U.S. 330, 337–338 (1953).
As noted in Plumbers Local 598 (Columbia Mechanical),
supra at 83,
Section 8(b)(1)(A) does not proscribe every act of dis-
parate treatment or negligent conduct, but only those
which, because motivated by hostile, invidious, irrele-
vant, or unfair considerations, may be characterized as
‘‘arbitrary, discriminatory or bad faith conduct.’’ Vaca
v. Sipes, 386 U.S. 171 (1967). Section 8(b)(1)(A) pro-
hibits unions from restraining or coercing employees in
the exercise of the rights guaranteed in section 7 of the
Act, subject to the proviso not here pertinent that
unions may prescribe their own rules ‘‘with respect to
the acquisition or retention of membership therein.’’
In this case, the interpretation of the hiring hall procedures
for registering on the preferred list is in issue. Respondent
can adopt reasonable interpretations of its hiring hall regula-
tions. Operating Engineers Local 181 (Raymond Construc-
tion), 269 NLRB 611, 628 (1984); Boilermakers Local 40
(Envirotech Corp.), 266 NLRB 432 (1983).
I find the Union’s regulations governing placement on the
Preferred List do not clearly require the job applicant dem-
onstrate he or she has a physical handicap. All the rule re-
quires of registrants under the age of 55 is to furnish a doc-
tor’s certificate stating they are unable to perform their nor-
mal work for a period of 6 months or more preventing their
employment in any classification except one which is pre-
ferred or a class A employee who acquired a physical handi-
cap as a result of an industrial accident while employed as
an operating engineer, which prevents his employment in any
classification except one which is preferred. The rule appears
to be written in the alternative, the employee is either over
55, or provides the doctor’s certificate indicating their inca-
pacitation for at least 6 months, or they were injured during
and in the course of their employment as an operating engi-
neer. John Johnson would qualify and was found to have
qualified for about 5 years under the second criterion. How-
ever, it would not be construed as, per se, unlawful for Re-
spondent to require an employee under this second criterion
to be physically handicapped to qualify for registration on
the preferred list.
The question therefore is whether Respondent violated its
duty to employees by changing the manner it registered John
Johnson, and perhaps other employees on the preferred list
by requiring he be physically handicapped. It is not averred
this interpretation is unlawful or unwarranted because of his-
torical, discriminatory or other considerations, just that notice
of the change should have been given prior to Respondent’s
refusal to place John Johnson on the preferred list for referral
to Perini Corporation.
As the Board noted in Cell-Crete Corp., 288 NLRB 262,
264 (1988):
even if we were to accept the judge’s finding that Local
304 in fact changed its policy and practice of acqui-
escing in Cell-Crete’s excessive by-name requests, we
would find that such arbitrary departure from estab-
lished exclusive hiring hall procedures was violative of
the Act. A union which operates an exclusive hiring
hall must represent all individuals seeking to utilize that
hall in a fair and impartial manner. [E.g., Boilermakers
Local 169 (Riley Stoker Corp.), 209 NLRB 140, 149–
150 (1974).] In this regard, the Board has held that not-
withstanding the absence of specific discriminatory in-
tent, ‘‘any departure from established exclusive hiring
hall procedures which results in a denial of employment
to an applicant . . . inherently encourages union mem-
bership, breached the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A)
and (b)(2),’’ absent demonstration of a legitimate jus-
tification. [Operating Engineers Local 406 (Ford Con-
struction Corp.), 262 NLRB 50, 51 (1982), enfd. 701
F.2d 505 (5th Cir. 1983), and see Plumbers Local 392
(Kaiser Engineers), 252 NLRB 417 (1980)]. In addi-
tion, the failure to give timely notice of a significant
change in referral procedures is a breach of a union’s
duty to represent job applicants fairly. [Operating Engi-
neers Local 406 (Ford Construction Corp.), supra, 262
NLRB at 51 (1982) enfd. 701 F.2d 505 (5th Cir. 1983).
As was the case of the employer in Cell-Crete Corp.,
supra, 288 NLRB at 264, the Union failed to adduce any evi-
dence that it ever notified John Johnson or other job appli-
cants that it was altering its practice of allowing John John-
son and perhaps others to register on the preferred list for
stress-related disabilities or other nonphysical handicaps.
‘‘The failure to give notice of such a change about a devel-
opment critical to potential employment constituted a breach
of the . . . [Union’s] duty to represent an ¢employee fairly.’’
Id. Respondent failed to adduce any evidence stress-related
illness was harder to police than other illnesses. Doctors’ cer-
tificates are still required as a condition precedent to registra-
tion on the preferred list and no specific policing or other
problem was raised concerning this class of impairment.
While contending stress-related illness was not contemplated
when the regulations permitting registration on the preferred
list were developed and implemented, there was no evidence
there was a decision to specifically exclude this class of ill-
ness.
Some stress-related illness may be deemed by Respondent
as warranting registration on the preferred list. As Tom
Stapleton testified:
Q. How about a heart attack, have a heart condition?
A. If it effected their physical being, it probably was
a consideration for the Preferred List, heart attack. The
doctor says they physically wasn’t able to function,
heart attack would work.
There was no medical or other expert testimony distin-
guishing stress-related and other illnesses or other consider-
ations warranting a finding the Union did not breach its fidu-
ciary duty of fair representation when it changed its rules
after 5 years of permitting John Johnson to register on the
preferred list because of a stress-related illness, without first
notifying John Johnson and other employees.
Respondent’s claim the doctor’s note failed to declare
John Johnson would be incapacitated for at least the next 6
1117OPERATING ENGINEERS LOCAL 3 (PERINI CORP.)
12 The complaint does not allege Respondent’s action also violated
Sec. 8(b)(2) of the Act and under the circumstances here present, I
find it unnecessary to determine if Respondent also violated this sec-
tion of the Act.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Continued
months and thus justified their refusal to permit him to reg-
ister on the preferred list is also without merit. The Respond-
ent has changed its application of the registration rules for
the preferred list to clearly exclude stress-related illnesses. If
the failure of the doctor’s letter to mention the length of the
incapacity was the only problem claimed by Respondent,
then John Johnson could have sought a revised letter from
his doctor, but the barring of stress-related illness from quali-
fying for the preferred list precluded John Johnson from at-
tempting to rectifying this deficiency, and I cannot find on
the basis of this record that the doctor would not have modi-
fied his certificate to indicate John Johnson was ill and in
need of light-duty assignments. The term light duty is not
shown to be alien in disability parlance, and it was readily
understood by Respondent for the preceding 5 years it dis-
patched John Johnson from the preferred list.
Similar doctors’ letters, or certificates, had previously been
deemed sufficient by Respondent to permit John Johnson to
register on the preferred list. To suddenly, and without no-
tice, require more is also a change in established dispatch
procedures. As previously found, Respondent’s claim of mis-
take is without merit. Further, assuming arguendo, the 5-year
history of permitting John Johnson to register on the pre-
ferred list was a mistake or in contravention of regulations,
such a claim does not relieve Respondent from its obligation
to give notice before altering the established, more liberal
registration practice. See Cell-Crete Corp., supra.
I conclude Respondent failed to demonstrate the modifica-
tion of its dispatch procedures was necessary to the effective
performance of its dispatch duties. Cell-Crete Corp., supra at
264; Electrical Workers IBEW Local 11 (Los Angeles
NECA), 270 NLRB 424, 425 (1984).
I conclude Respondent Local 3 violated Section
8(b)(1)(A)12 of the Act by altering the established hiring hall
dispatching practice of permitting John Johnson and perhaps
others to register on the preferred list because of stress-re-
lated rather than physical handicap and thereby denying John
Johnson the opportunity to be employed by Perini Construc-
tion.
CONCLUSIONS OF LAW
1. Perini Corporation is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Operating Engineers Local Union No. 3, International
Union of Operating Engineers, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Respondent and the Employer have been parties to
collective-bargaining agreements whereby the Respondent
operates an exclusive hiring hall for the referral of employees
by Respondent to Perini and other employers.
4. Respondent violated Section 8(b)(1)(A) of the Act by
changing its established hiring and dispatch procedures for
registration on the preferred list without prior notice, result-
ing in denial of a dispatch of John Johnson to the employer.
5. This unfair labor practice affects commerce within the
meaning of Section 2(6) of the Act.
THE REMEDY
Having found Respondent has engaged in and is engaging
in an unfair labor practice within the meaning of Section
8(b)(1)(A) of the Act, I recommend that it cease and desist
therefrom, and take certain affirmative action designed to
remedy the unfair labor practice and to effectuate the policies
of the Act.
Having found Respondent unlawfully modified its practice
of allowing John Johnson to register on the preferred list be-
cause of his stress-related disability, altering its hiring and
dispatch procedures without giving John Johnson and any
other similarly situated employees notice of such change and
resulting in the denial of a dispatch to John Johnson, I rec-
ommend Respondent be ordered to make John Johnson and
any other similarly injured employees, whole for any loss of
earnings and other benefits resulting from Respondent’s un-
lawful actions. The amount of backpay shall be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), and accrued to the date of payment, minus tax
withholdings required by law.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Operating Engineers Local Union No. 3,
International Union of Operating Engineers, AFL–CIO, their
officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to refer applicants for employment
in accordance with the hiring hall practices and procedures
it established pursuant to its collective-bargaining agreement
with Perini Corporation by changing its established hiring
and dispatch procedures for registration on the preferred list
without prior notice, resulting in the unlawful denial of a dis-
patch to John Johnson.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Refer applicants for employment with the established
hiring hall practices and procedures and, if any change in in-
terpretation is effected, notify the applicants prior to such
change, and make John Johnson and any similarly adversely
affected applicants whole for any loss of earnings and other
benefits resulting from Respondent’s unlawful actions, in the
manner prescribed in the remedy section of this decision.
(b) Post at their business offices and other places where
notices to their members are customarily posted copies of the
attached notice, marked ‘‘Appendix.’’14 Copies of the at-
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tached notice, on forms provided by the Regional Director
for Region 20, shall be posted by the Respondent, after being
signed by its authorized representative, shall be posted for 60
consecutive days in conspicuous places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, or covered by any material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent have
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to refer applicants for em-
ployment in accordance with the hiring hall practices and
procedures we established pursuant to our collective-bar-
gaining agreement with Perini Corporation by changing our
established hiring and dispatch procedures for registration on
the preferred list without prior notice, which resulted in the
unlawful denial of a dispatch to John Johnson, and perhaps
other employees similarly situated.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL operate our exclusive hiring hall in accordance
with the practices and procedures set forth in our collective-
bargaining agreement with Perini Corporation and notify you
prior to any changes in interpretation of this collective-bar-
gaining agreement.
WE WILL make John Johnson and any other employees
similarly wronged by our unlawful action, whole for any loss
of earning and other benefits resulting from our unlawful ac-
tion, less any net interim earnings, plus interest.
OPERATING ENGINEERS LOCAL UNION NO. 3,
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL–CIO