Sachs Electric Co.

SACHS ELECTRIC COMPANY 669 Sachs Electric Company and Donald W. Jones Springfield Division, Kansas City Chapter, National Electrical Contractors Association, Inc. and Donald W. Jones International Brotherhood of Electrical Workers, Local Union No. 453 and Donald W. Jones. Cases 17-CA-8372, 17-CA-8374, and 17-CB- 1921 March 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On July 17, 1979, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent Interna- tional Brotherhood of Electrical Workers, Local Union No. 453, herein called Respondent Union, filed exceptions to the Administrative Law Judge's Decision, a supporting brief, and a motion to reopen the record. The Charging Party later filed cross-exceptions and a supporting brief. Respon- dent Union then filed a brief in opposition to the Charging Party's cross-exceptions. Additionally, Respondent Sachs Electric Company, herein called Respondent Sachs, and Respondent Springfield Di- vision, Kansas City Chapter, National Electrical Contractors Association, Inc., herein called Re- spondent NECA, filed a brief in opposition to the Charging Party's exceptions. Finally, the General Counsel filed a response in opposition to Respon- dent Union's motion to reopen the record and a motion to strike the attachments filed in support of said motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge, as modified herein, and to adopt his recommended Order, as modified herein. 2 Respondent Union and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent Union's motion to reopen the record is hereby denied, inasmuch as it raises no issues which are relevant to this proceeding. Ad- ditionally, since they relate to matters which have no relevance to this proceeding, the affidavit and other attachments to Respondent's motion are hereby stricken from the record 248 NLRB No. 92 The Administrative Law Judge found that Re- spondent Union, which administers a hiring hall and is party to an exclusive referral agreement with Respondent NECA, violated Section 8(b)(1)(A) and (2) of the Act by discriminatorily refusing to permit Bill Rodman and Larry J. Nolon, members of other IBEW locals, to sign the highest priority referral list, 3 and Section 8(b)(l)(A) by threatening to file internal union charges against Rodman and Nolon, and in fact filing such charges against Rodman, because they had protested and sought to vindicate their right to sign the highest priority re- ferral list. We agree. Contrary to the Administrative Law Judge, Chairman Fanning and Member Jenkins additional- ly find that Respondent Union violated Section 8(b)(1)(A) when, in late 1977, Union Steward Danner and Union Business Manager Hensley re- quested that travelers, members of other IBEW locals who had been referred out of Respondent Union's hiring hall, quit their jobs with Respondent Sachs in favor of unemployed members of Respon- dent Union. 4 The Administrative Law Judge re- Further, we agree with the Administrative Law Judge that the appeals committee's decision in favor of Respondent Union, because it had not "willingly and knowingly" deprived Rodman and Nolan of their contrac- tual right to sign the Book I referral list, did not resolve the question of whether statutory rights were violated since the issue framed by the ap- peals committee was not factually parallel to the statutory issue now before us. Accordingly, in agreement with the Administrative Law Judge and consistent with the principles of Spielberg Manufacturing Company, 112 NLRB 1080 (1955), we will not defer to the appeals committee's deci- sion. Suburban Motor Freight, Inc., 247 NLRB No. 2 (1980). Member Truesdale agrees with the result because he finds the instant case distin- guishable from Atlantic Steel Company, 245 NLRB No. 107 (1979). There, the Board defered to an arbitration award because the arbitrator's find- ings were "complete and comprehensive . .. and factually parallel to the unfair labor practice question." SI. op., p 7. 3 Respondent Union's hiring hall maintains a series of referral lists To be eligible to sign "Book ," the highest priority referral list, an applicant must have at least 4 years of experience in the trade, be a resident of Re- spondent Union's geographic jurisdiction, have passed a journeyman's ex- amination given by any IBEW local, and have been employed for I year during the preceding 4 years under an agreement to which Respondent NECA and Respondent Union are, or were, parties. "Book II," the second highest priority referral list, may be signed by anyone who meets all the requirements of Book I except the residency requirement A number of lesser priority lists are also maintained based upon experience in the trade, residency, journeyman status, and previous work under agreements between Respondent NECA and Respondent Union. The Ad- ministrative Law Judge found that both Rodman and Nolon met the cri- teria for signing Book I, but were prevented from signing it because they were "travelers"; i.e., members of other IBEW locals, not Respondent Union. Member Jenkins would note additionally that, for the reasons stated in his dissenting opinion in Interstate Electric Company, 227 NLRB 1996 (1977), he considers the granting of a referral priority based upon past experience with employers signatory to a union contract unlawful. Nonetheless, inasmuch as this aspect of the referral agreement is not in issue in this proceeding, he joins his colleagues in finding Respondent's discriminatory refusal to accord qualified travelers Book I priority viola- tive of Sec. 8(b)(1)(A) and (2) of the Act. 4 For the reasons given by the Administrative Law Judge, Member Truesdale would adopt his recommendation and dismiss this allegation of the complaint. In addition. Member Truesdale notes that the cases cited by his colleagues in support of their finding that Respondent Union's re- Continued S C S T C m s a i v 6 69ud e f u n h a e 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jected the General Counsel's allegation that these "requests" constituted unlawful "directives" be- cause, according to the Administrative Law Judge, there was no element of restraint or coercion in said requests since there was no evidence that the requests were accompanied by direct threats of re- prisal. Contrary to the Administrative Law Judge and Member Truesdale, Chairman Fanning and Member Jenkins believe that, under the circum- stances of this case, Respondent Union's "requests" were clearly coercive and hence unlawful. The record shows that, in late November 1977, approximately 32 of the electricians employed by Respondent Sachs at its Ft. Leonard Wood jobsite were travelers. On November 29, according to credited testimony, Union Steward Danner told a traveler that he (Danner) had been told by Union Business Manager Hensley that a number of Re- spondent Union's members were out of work and that Danner should look for "volunteers" among the travelers to relinquish their jobs to the local members. Later that afternoon, Hensley and Danner approached two other travelers and again stated that, since Respondent Union's members were "on the bench," Respondent Union wanted travelers to quit. The next day, Rodman spoke to Danner regarding Respondent Union's request. In response to Rodman's expression of reluctance to leave his job, Danner stated: "If I was in someone else's jurisdiction and I was asked to leave I cer- tainly would do so." Within several days after the foregoing incidents, all 32 travelers either had been laid off by Respondent Sachs or had quit. The operation of a union hiring hall imposes considerable responsibilities on the union agents in charge of the hall. Thus, they must neither foster nor countenance discrimination with regard to access to, or referral from, the hall on the basis of International union membership, local union mem- bership, or any other arbitrary, invidious, or irrele- vant considerations. E.g., Pattern Makers' Associ- ation of Detroit and Vicinity, Pattern Makers' League of North America, AFL-CIO (Michigan Pattern Manufacturers Association), 233 NLRB 430 (1977); Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Explo, Inc.), 229 NLRB 347 (1977); Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974); Pacific Maritime Association, 209 NLRB 519 (1974). Similarly, a union violates the Act if it coerces em- ployees previously referred out of its hiring hall quest to travelers to quit were coercive are cases in which similar re- quests were accompanied by threats or by actual violence. Absent such circumstances here, Member Truesdale is not persuaded that the General Counsel has met his burden of establishing that the requests made by this Respondent were coercive and violated the Act. into quitting their jobs based on such impermissible considerations. See International Brotherhood of Electrical Workers, Local 309, AFL-CIO-CLC (R. Dron Electrical Co., Inc.), 212 NLRB 409 (1974); see also The Lummus Company v. N.L.R.B., 339 F.2d 728, 734 (D.C. Cir. 1964). Here, the coercive nature of Danner's and Hens- ley's requests that travelers quit is manifest. We have found previously that IBEW locals commonly "request" travelers to quit so that unemployed local members can take their places. R. Dron Elec- trical Co., supra at 414. These "requests" occa- sionally have been enforced by threats of violence and even actual violence. Id. Additionally, travel- ers asked to quit under circumstances such as those present in the instant case undoubtedly are aware that the "requests" come from union officials who, by virtue of their responsibilities in adminis- tering the hiring hall, control, and will continue to control, the travelers' livelihoods within the hiring hall's jurisdiction. Thus, it should not come as a surprise if these "requests" are construed by travel- er employees as more than mere solicitations for "volunteers." In this connection, it is noteworthy in the instant case that, of the 32 travelers em- ployed at the Sachs Ft. Leonard Wood project in late November 1977, none remained in early De- cember. In short, it strains credulity, and indeed it contradicts record testimony, to suggest, as does the Administrative Law Judge, that all the travel- ers who quit their jobs on the Sachs project did so voluntarily as a "courtesy" to their Local 453 brethren. Accordingly, contrary to the Administra- tive Law Judge, we find that, in late November and early December 1977, Respondent Union co- erced travelers into quitting their jobs, and that this conduct violated Section 8(b)(1)(A) of the Act. 5 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 6 of the Administrative Law Judge: "6. By its efforts to cause travelers to quit their jobs in order to provide jobs for Local 453 mem- bers, Respondent Union has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(b)(l)(A) of the Act." AMENDED REMEDY In view of the foregoing finding that Respondent Union violated Section 8(b)(1)(A) by requesting travelers to quit the Sachs Ft. Leonard Wood pro- b Contrary to the Charging Party, neither Respondent NECA nor Re- spondent Sachs, which is a member of Respondent NECA, is liable for Respondent Union's actions in this regard, inasmuch as the complaint, as amended at the hearing, did not specify either Respondent Employer as a respondent with respect to this incident, and, in addition, their liability was not fully litigated. ----- --- SACHS ELECTRIC COMPANY 671 ject, we shall, in addition to adopting those reme- dies provided in the Administrative Law Judge's recommended Order, order Respondent to cease and desist from making such requests and to take the following affirmative action designed to effec- tuate the policies of the Act. Respondent Union shall be ordered to make whole Bill Rodman, Larry Nolon, and any other traveler who quit his employment at the Sachs Ft. Leonard Wood pro- ject because of Respondent Union's unlawful re- quests" for any loss of earnings they may have suf- fered because of their compliance with those un- lawful requests. Backpay shall be computed on a quarterly basis, plus interest, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent Union, International Brotherhood of Electrical Workers, Local Union No. 453, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(a) and re- letter the subsequent paragraphs accordingly: "(a) Requesting persons referred out of Respon- dent Union's hiring hall to quit their jobs because they are not members of Respondent Union." 2. Substitute the following for paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Make whole Bill Rodman, Larry J. Nolon, and any other similarly affected employee for any loss of earnings they may have suffered because of Respondent's unlawful request that they quit their jobs at the Sachs Ft. Leonard Wood jobsite, in the manner set forth in the section of the Board's Deci- sion and Order entitled 'Amended Remedy.' a It is uncertain from the Administrative Law Judge's Decision, and the record, how many and which of the 32 travelers employed on the Sachs project were laid off by Sachs or quit because of Respondent Union's unlawful requests. We deem this determination an appropriate matter for the compliance stage of this proceeding. 7 Contrary to our dissenting colleague, we are not persuaded that, as part of the remedy for the Union's discriminatory refusal to permit Rodman to register on the referral list in question, he should be reimn- bursed for his "out-of-pocket expenses in taking to arbitration his claim that he was entitled to such listing" Such an order is unwarranted here in view of the availability of the Board's processes for a determination regarding the Union's unfair labor practices and the adequacy of our backpay and registration remedy which satisifies the Board's duty under the Act to restore Rodman to the status quo ante The cases cited in the dissent are inapposite because they, unlike the instant proceeding, in- volved special situations which required additional relief to effectuate the purposes of the Act "(d) Make whole Bill Rodman and Larry J. Nolon for any loss of earnings they may have suf- fered by reason of the discrimination against them in the manner set forth in the section of this Deci- sion entitled 'The Remedy.'" 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, concurring in part and dissent- ing in part: I agree with Chairman Fanning and Member Truesdale as to the disposition on the merits of the unfair labor practices found by the Administrative Law Judge. I also agree with Chairman Fanning that Respondent Union violated Section 8(b)(1)(A) by "requesting" travelers to quit their jobs. Unlike my colleagues however, I would find that a proper part of the remedy for Respondent Union's dis- criminatory refusal to permit Bill Rodman to sign the Book I referral list is reimbursement for his out-of-pocket expenses in taking to arbitration his claim that he was entitled to such listing. As the Administrative Law Judge found, Re- spondent Union's business manager twice refused Rodman's personal attempts to sign Book I, the top priority referral list, where Rodman belonged, stat- ing that he was refusing because Rodman was a traveling IBEW member from another local, not a member of Respondent Union, and that: "No goddam traveller is going to sign Book I." This fla- grant discrimination, committed without any color- able basis except the business manager's discredited afterthought that he had doubts as to Rodman's qualification to be on that list, constituted an imme- diate threat to Rodman's employment security and predictably caused him to pursue the appropriate legal means to secure a prompt remedy. When Rodman attempted to appeal to an IBEW Interna- tional vice president, the latter responded that his appeal should be through the contract appeals pro- cedure. Rodman retained an attorney to take the matter from there, and paid for a transcript of the arbitration hearing as part of the litigation expense. The Board has interpreted its function of making employees whole for losses suffered because of unfair labor practices as including, in appropriate cases, reimbursement of legal expenses incurred as a direct result of such unlawful conduct. Baptist Memorial Hospital, 229 NLRB 45, 46 (1977), enfd. in relevant part 583 F.2d 906 (6th Cir. 1978). Such a remedy may be appropriate even when the legal expenses were incurred, not as a direct result of the unfair labor practices, but in connection with an employee's reasonable response to the effects of that conduct. See Liberty Mutual Insurance Co., 235 NLRB 1387, 1388 (1978), enforcement denied on other grounds 592 F.2d 595 (Ist Cir. 1979), where SACHS ELECTRIC COMPANY 671 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board ordered reimbursement of attorney's fees an unlawfully discharged employee incurred in de- fense of an injunction action brought by the em- ployer because after the discharge the employee violated a covenant not to compete with the em- ployer. Here, as in the above cases, only by reim- bursing the employee for these necessary expenses will we succeed in making him whole "and in ful- filling our obligation to remove, insofar as is possi- ble, the effects of Respondent's unfair labor prac- tices." Baptist Memorial Hospital, supra at 46. More- over, as we recognized there, unless we are willing to shape a full and appropriate remedy, tailored to the circumstances of the case, we are being un- mindful of our obligation to demonstrate to the victimized employee and his fellow employees that we are prepared to protect the exercise of their Section 7 rights. Id. at 46, fn. 12; Liberty Mutual Insurance Co., supra at 1388. This is not like the cases where we consider the "extraordinary" remedy of awarding the expenses of prosecuting a case before the Board. There, at least, a charging party usually has the viable option of utilizing the services of the professionals in the Board's regional office to investigate and litigate the alleged unfair labor practice. The instant case falls, rather, within the line of cases where, in var- ious situations, an individual employee justifiably has felt compelled to take immediate steps, on his own, to protect himself against or minimize the impact of a serious violation of his rights by a union or an employer. See, e.g., Liberty Mutual In- surance Co., supra; Baptist Memorial Hospital, supra (award of legal fees for defense of criminal pros- ecution as part of enforcement of an unlawful no- solicitation rule); George A. Angle, 242 NLRB No. 112 (1979) (award of legal fees for defense of suit for malicious prosecution filed in retaliation for em- ployee's filing a charge with the Board); Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, Local No. 106 (Owens-Illinois, Inc.), 240 NLRB No. 29 (1979) (award of legal fees for representation in arbitration proceeding after union unlawfully refused to process a grievance fairly). When the Board ultimately vindicates these rights, and finds that they were violated in an arro- gant demonstration of raw power, simple justice and commonsense demand that the consequences of such acts be fully remedied to the extent that this is feasible. Otherwise, the apparent impunity with which such acts were committed will be seen as having been justified, and the power demonstrated by the misconduct will be remembered with more deference than the Board's response to it. Nothing could more seriously discredit both the processes of the Board and the purposes of the Act. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the oppor- tunity to present evidence and cross-examine wit- nesses, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. We intend to abide by the fol- lowing: WE WILL NOT request that travelers, mem- bers of other IBEW locals, quit their jobs in order to make room for our local members who are unemployed. WE WILL NOT threaten to file or file in- traunion charges against employees because they have exercised rights guaranteed by Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL NOT cause or attempt to cause any employer to deny employment to, or in any other manner discriminate against, Bill Rodman or Larry J. Nolon, or any other em- ployee applicant, in violation of Section 8(a)(3) of the Act. WE WILL NOT refuse to permit qualified ap- plicants to register in our Referral Book I be- cause of their lack of membership in our Local, or because of any other unfair or arbi- trary consideration. WE WILL NOT in any like or related manner restrain or coerce any employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL NOT make whole Bill Rodman, Larry J. Nolon, and any other similarly affect- ed employee, with interest, for any loss of earnings they may have suffered by reason of our unlawful request that travelers quit their jobs at the Sachs Electric Company Ft. Leon- ard Wood project in order to make room for unemployed local members. WE WILL NOT permit Bill Rodman and Larry J. Nolon to continue to register in our Referral Book I and dispatch said employees without regard to their union membership or other unfair or arbitrary reason. WE WILL permit any other qualified em- ployee applicants, upon request, to sign Refer- ral Book I and dispatch them without regard to their union membership or other unfair arbi- trary consideration. SACHS ELECTRIC COMPANY 673 WE WILL make whole Bill Rodman and Larry J. Nolon for any loss of earnings they may have suffered by reason of our discrimina- tory failure to permit them to sign Book I, with interest. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAl. UNION No. 453 DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: This case was heard before me on November 20 and 21, 1978,1 in Springfield, Missouri. The charge against Sachs Electric Company, herein called Respondent Sachs, was filed by Donald W. Jones, an individual, in Case 17-CA- 8372 on June 22. Jones filed the charge in Case 17-CA- 8374 against Springfield Division, Kansas City Chapter, National Electrical Contractors Association, Inc., herein called Respondent NECA, on June 23. Jones filed the charge in Case 17-CB-1921 against International Broth- erhood of Electrical Workers Local Union No. 453, herein called Respondent Union, on May 5. The com- plaints, as amended, allege that Respondent Union has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, and that Respondents NECA and Sachs (herein collectively called the Employers) have violated Section 8(a)(3) and (1) thereof. General Counsel and all Respondents have filed briefs which have been carefully considered. Upon the entire record, my observation of the witnesses, and upon the in- herent probabilities and improbabilities of their testimo- ny, and having taken into account all of the arguments made at the hearing and in briefs submitted, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent NECA is a multiemployer association comprised of electrical contractors in the building and construction industry including Respondent Sachs. It maintains its principal office and place of business in Springfield, Missouri, where it is and has been at all times material herein continuously engaged in providing labor relations and related services to its employer-mem- bers operating in the western Missouri-eastern Kansas area. During the year immediately preceding the com- plaint's issuance, Respondent NECA's members in the course and conduct of their business operations, pur- chased, transferred, and delivered to their Missouri facili- ties goods and materials valued in excess of $50,000, which goods and materials were transported to said fa- cilities (either directly or indirectly) from outside Mis- souri. The complaint alleges, Respondent NECA admits, and I find that Respondent NECA and its employer- ' All dates herein are between November 28, 1977. and July 3. 1978 unless otherwise specified members are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Sachs is a business entity licensed to do business in Missouri with offices in St. Louis and is en- gaged in the installation of electrical wiring and appli- ances at various jobsites throughout Missouri. Annually, Respondent Sachs purchases goods and services valued in excess of $50,000 directly from sources located outside Missouri. The complaint alleges, Respondent Sachs admits, and I find that Respondent Sachs is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent Union admits. and I find that the Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICLES A. Facts Respondent NECA and Respondent Sachs (through its membership in Respondent NECA) have been parties to contracts with the Union for a number of years, the most recent of which was effective September 1, 1977, through August 31, 1978. Article XI of that contract, which is reproduced in its entirety as Appendix B of this Decision, provides for an exclusive hiring hall arrange- ment including a classification of job applicants for pur- pose of specifying the priorities pursuant to which they will be referred to and laid off from jobs.2 In summary, employees placed in Group I receive first preference in assignments and are the last to be laid off. To be a Group I (or "Book I" as the term was used at the hear- ing) employee, an applicant must have at least 4 years experience "in the trade," be a current resident of the Local's geographical jurisdiction, have passed a journey- man examination given by any IBEW local, and have been employed I year during the preceding four under an agreement to which Respondent NECA and Respon- dent Union are parties.3 Group II under the agreement provides second preference to those who meet all the re- quirements of Group I except the current residency re- quirement. Group III designation gives third preference to those who have only 2 years' experience "in the trade" but who are current residents of the area and who have worked 6 months in the preceding 3 years under an agreement between the parties. Group IV is for employ- ees who have worked "at the trade" for more than I year, but less than 3. Bill Rodman became a journeyman member of Local 11 of the IBEW (Los Angeles, California) in 1970 and has been a journeyman wireman since that year. At the time of the hearing Rodman had been a resident of Re- 2 Essentially the same referral procedure was before the Board in In- terstale Electric, 227 NLRB 1996 (1977), and its validity under tie Act is not in question here. 3 There is a redundancy in the experience and examination require- ments: no applicant can take the examination unless he has 4 years experi ence "at the trade." SACHS ELECTRIC COMPANY 673 674 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD spondent Union's geographical jurisdiction for 6-1/2 years. It is not in dispute that he had worked for signato- ry contractors for in excess of 1 year during the 4 years preceding December 1, including Respondent Sachs from late September 1977 through that date. Larry Nolon became a member of Local 728, of the IBEW (FT. Lauderdale, Florida) in 1969 and has been a jour- neyman wireman since that year. At the time of the hearing he had been a resident of Respondent Union's geographical jurisdiction for about 9-1/2 years. It is not in dispute that he also worked for signatory contractors in excess of I year during the 4 years preceding Decem- ber 1, including Respondent Sachs from some time in September to December 1. It is also not in dispute that, to become journeyman wireman, Rodman and Nolon passed examinations of the type required by the contractual referral rules; Respon- dent Union's actual or presumed knowledge of such achievement is an issue in this case. On November 29, Sachs employed electricians in Groups 1, II, and III on its jobsite at Ft. Leonard Wood, near Springfield, Missouri. Among the electricians were a group of journeymen who were members of different IBEW local unions throughout the United States; these employees, including Rodman and Nolon, were referred to as "travelers." On November 29, jobsite union steward (and admitted agent of the Union) J. C. Danner told traveler Sam Miller that he had been informed by Business Manager Jim Hensley that members of the Union were out of work and that Danner was to start looking for volun- teers to quit their employment in order to create job openings for members of the Local. Miller stated that he did not want to quit because Christmas was coming and Danner advised Miller to "hide out somewhere" while he began looking elsewhere on the site for "volunteers." That afternoon Hensley and Danner approached travel- ers Casper Heinrich and Dennis Jolley. Hensley stated that there were members of Respondent Union "on the bench" and he wanted the travelers to quit. Hensley fur- ther told Heinrich and Jolley that he wanted the travel- ers to get together and decide when and how to leave in an order that would not look like a work stoppage. On the following day, Rodman, who had signed Book 1I, asked Danner if any Book III (or "out of classification") employees were going to quit or be laid off. Danner re- sponded that they were going to remain on the job. Rodman then said that he would not leave if the out-of- classification employees were going to remain on the job. Danner responded: "If I was in someone else's jurisdic- tion and I was asked to leave I certainly would do so." Danner spoke later that morning with more travelers in Nolon's work area. Nolon asked Danner what was going to happen to the out-of-classification employees. Danner stated that they were going to stay and Nolon said, "So am I." However, later than afternoon, several out-of- classification employees were, in fact, laid off.4 4 This paragraph is from the undenied testimony of Rodman, Nolon, Miller, and Heinrich which I credit. Danner did not testify; Hensley did not deny the remarks attributed to him and did not deny that he asked or told Danner to solicit travelers to quit. Rodman testified that on December I he called the Union's hiring hall and spoke to Hensley. According to Rodman, he told Hensley that he did not wish to leave the job and Hensley replied, "If you do not leave the job, I will pull your work permit." Hensley denied having ever threatened to pull any traveler's work permit. According to the current IBEW constitution (art. XXV, sec. 6), a copy of which was received in evidence, a journeyman may not work in the area of another Local without deposit of a traveling card or receipt of a "working card." Presumably the "work permit" is the same as the "working card." If Rodman had been work- ing in the area on such a permit, its being pulled would have had a devastating effect on his employment possi- bilities in the area of which he had been a resident for over 6 years. This being so, Rodman surely would have mentioned the alleged threat in the processing of various intraunion charges and appeals, discussed infra, which he did not. Moreover, at this point in his testimony Rodman gave a stilted, seemingly memorized rather than recalled, recitation which I cannot credit. Finally, I found Hens- ley's denial of the threat credible. On December 1, Nolon went to the union hall and re- quested to sign, and did sign, Book II. On December 2, Rodman also went to the hall. Rodman testified that on that date he requested to sign Book I and Hensley re- plied, "No goddamn traveler is going to sign Book I." Rodman further testified that he did not sign Book II, which had been his practice since coming to the area as traveler, and that he left without signing any book. Hensley credibly denied that Rodman requested to sign Book I on December 2. Moreover, Respondent produced for the record a copy of Book II's ledger for that date which clearly showed Rodman's signature which Rodman acknowledged on cross-examination. Finally, it is to be noted that at a hearing pursuant to the appeals procedure provided by article XI of the contract, dis- cussed infra, the following exchange occurred: Q. (By Rodman's attorney): In December of '77 when you had this discussion with Mr. Hensley, did you make an attempt to sign Book I at that time? A. (By Rodman): No, sir, he intimidated me to the point where I was afraid to sign it. Q. Just respond to the question. You did not make an attempt to sign Book I until sometime after January of 1978, is that correct? A. That's correct, yes, sir. Because of these conflicts and the credibility of Hensley on the point, I find that Rodman did not request to be allowed to sign Book I on December 2, and Hensley did not, on December 2, make the remark attributed to him as quoted by Rodman. 5 (I further find that Hensley did not on this occasion, as Rodman additionally testified, say that he pulled all the travelers off the Sachs' job just to see who would cause trouble.) On February 28 Rodman and Nolon appeared at the hall. After some argument between Rodman and Hensley F I do find, as discussed infra, that the quoted "g-- traveler" remark was made by Hensley to Rodman and Nolon on February 28 as both em- ployees testified. SACHS ELECTRIC COMPANY 675 over a referral which Rodman did not get (and a Local member did), Rodman asked to sign Book I. Hensley asked Nolon what he wanted to do. Nolon asked if sign- ing Book I would put him ahead of the 16 employees then ahead of him on Book II. Hensley conceded that it would. Nolon said that, in that case, he too wished to sign Book I. Hensley then replied, "No goddamn traveler is going to sign Book 1.6 Hensley testified that he told Nolon and Rodman that they were not qualified for Book I, but he did not tell them what qualification they failed to meet. It is undisputed that Rodman and Nolon met all qualifications for Book I and they knew it. If Hensley had questioned their qualifications he would have been immediately challenged, and I find that he did not; the only thing he told them was that travelers such as they could not sign Book I. Hensley did offer to allow Rodman and Nolon to sign Book II as they, and other travelers, had always done. Rodman and Nolon refused to sign Book II unless they could place beside their names the words "signed under protest." Hensley refused stating that, as any other registrant, they could place on the Union's books their name, address, number of their home local, and the date. Rodman and Nolon left with- out signing either Book I or Book II. Later on February 28 Rodman and Nolon visited Jack Moore, IBEW International vice president. They tried to present their plight to Moore, but he stated that their complaints would have to be in writing before he could consider them. On March 2 they sent letters to Moore listing their complaints. Moore responded by letter dated March 6 that they should pursue the matter through the appeals procedure provided by the contract. By letters dated April 21 and 25, Rodman and Nolon did file such appeals. On March 22, after an unsuccessful attempt to have private counsel appeal to Hensley to allow them to sign Book I, Rodman and Nolon again presented themselves at the union hall and again requested to sign that Book. Rodman and Nolon testified that on that date Hensley told them that Book I was reserved for Local members only, that he knew of Rodman's letter to Moore, and that if Rodman continued to cause trouble he, Hensley, would press intraunion charges against him. 7 Hensley denied making this statement, but I find that he did so as I was favorably impressed by the testimony on this point by Rodman and Nolon, especially Nolon. 8 In making this finding, I credit Nolon and Rodman over the denial of Hensley. I realize that Rodman erroneously placed the identical remark in his December 2 meeting with Hensley and that there are other prob- lems with Rodman's overall credibility. However, Nolon impressed me as a throroughly ingenuous witness, and Rodman appeared credible on his recitation of the remarks if not, in all respects, its timing. Moreover, the effect of the remark, if not its exact wording, is uncorroborated by Hens- ley's assertion on cross-examination that no traveler had ever even asked to sign Book . I Rodman also testified that Hensley stated that he intended "to get your ticket pulled if you continued to fool with us." Apparently a "ticket" is a "work permit" discussed above as well as a dues receipt as Rodman testified, but the General Counsel does not allege this portion of Hensley's remarks to be a threat. It is to be noted that Nolon did not mention any such statement although he was, according to Rodman, pre- sent. These factors fortify my previous crediting of Hensley's testimony that he never threatened to "pull" anyone's work permit On April 13 Hensley filed intraunion charges against Rodman. The first charge alleged that Rodman had made false statements in a letter addressed to Moore. The second was that Rodman had released information to a person not entitled to it. The false statement, ac- cording to Hensley, was that Rodman represented to Moore that he (Rodman) was passed over the referral al- though he was currently registered when, in fact, Rodman was not currently registered. The information alleged to have been wrongfully released was a copy of the IBEW constitution, the Local's bylaws, and a copy of the current contract between Respondent's Union and NECA which Rodman gave to the private attorney through whom Rodman had sought permission to sign Book I. Hensley concludes his charges: "Thereby (sic), I am filing charges against Mr. Rodman for creating dis- sention, slandering and giving information to persons not entitled to such." On May 5, after hearing at which Rodman was summoned to be present, the executive board of the Local found Rodman guilty as charged and, as punishment, ordered him to return to Los Angeles within 90 days to retake the oath of membership. Rodman appealed his "conviction" to Moore who, by letter of June 28, reversed the executive board. The only reason Moore gave for his action was that ". . . The Trial Board of Local Union 453, IBEW did not process the charges against you in the proper manner... ." Hensley testified that he filed the slandering charges against Rodman because he, in fact, was not current on the registration books. There was no evidence of prece- dent or necessity8 for this charge, and I therefore dis- credit this testimony and find that the only reason for the "slandering" charge was Rodman's attempt to secure registration in Group I. Hensley did not offer an explana- tion of why he filed a charge against Rodman for release of the IBEW constitution, the Local's bylaws and the contract, and I find that this portion of the charge was also caused by Rodman's attempt to sign Book I. On April 24, Rodman and Nolon again appeared at the hall and asked to sign Book I. It is undisputed that Hens- ley refused on the stated grounds that he knew of their appeals which had been submitted to the committee and since the matter was then "in the hands" of that commit- tee he would not do anything. Rodman and Nolon also testified that on this date Hensley threatened to file in- traunion charges against Nolon if he continued to make a "pest" of himself. Hensley testified that Nolon had said that he would, if allowed to sign Book I, contract all Local members and get their consent before accepting any referrals over them. Hensley testified that he told Nolon, "If you take the names from Book No. I, call those people and ask them about jobs, you will be inter- fering with Business Manager's duties and I will file charges against you." The General Counsel did not seek to rebut this specific testimony of Hensley which places the threat in an entirely different light. I find that Hens- ley's account of the matter is more credible than that of Nolon and Rodman, and find that the threat, as alleged, was not made. (However, it is to be noted that even 8 Hensley could have simply pointed out the inaccuracy to Moore by letter or telephone call SACHS~~~ E C I CO P N 675 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hensley's account demonstrates that it was understood that Nolon's lack of Local union membership was the real impediment to his being placed in Group I.) The requests to sign Book I and refusals by Hensley were thereafter repeated orally and in writing in a series of visits to the hall and letters to Hensley which it would be needless to detail here. It will suffice to say that Hensley rejected several representations and tenders of proof of qualifications that Rodman and Nolon made stating that the matter was in the hands of the appeals committee and they should present their evidence to that body. The appeals committee, which met on June 12, was composed of one representative of the NECA, one of the Union (who would have been Hensley had he not been directly involved) and a "public member," who was a re- tired state judge. Rodman and Nolon were represented by private counsel and Hensley represented himself in the proceeding of which a transcript was made, a copy of which was received in evidence herein. The appeals committee decision, which issued on July 3, stated that the only issue before it was whether Hensley had "will- ingly and knowingly" violated the contract by refusing to place the names of Rodman and Nolon on the Group I referral list. As stated by the decision, "Hensley admits he refused to let them sign the Group I list, but states that neither of the complainants, at any time prior to filing of their appeals, ever presented him with any writ- ten proof that they had passed a journeyman's examina- tion, and that such failure on their part was the basis for his refusal." The committee found this to be an adequate defense to the charge, as it framed the issue, and held that there was no willful violation of the contract, but that Nolon and Rodman could "now" sign Book I be- cause it was undisputed that they met Group I's qualifi- cations and "they have finally produced written evidence that they have passed the journeyman's electricians ex- amination (sic)." Thereafter, on July 3, Rodman and Nolon presented themselves at the hall, requested to sign Book I, were permitted to do so, and since that date have been dis- patched according to that classification. At the hearing on the complaint herein, Hensley was asked by his counsel: Q. You made reference to your statement-well, in reference to your statement that you told him you did not think they were qualified to sign Book No. 1, what did you have in mind? What did you base such a statement or observation on? A. The Fact that they have-I never saw any proof at that time, had never saw any proof they had passed a journeyman-wireman exam. Also, there are questions of residency, how long they had been there, where they lived, as spelled out in the working agreement. It is to be noted that Hensley was asked what he had in mind, not what he told Rodman and Nolon, and, as I have found, the only thing he told them in this regard was that they were travelers. It is undisputed that Hens- ley never told them that he thought that they were, or could have been, unqualified because of residency. It is undisputed that they were residents;9 It is undisputed that to secure the dues receipts they presented each time' they signed Book II they had to have passed a test prescribed by article XI of the contract. t More- over, had Hensley had a good-faith doubt that Rodman and Nolon had passed the examination, he necessarily would have expressed that doubt which, even according to his account, he did not do until the appeals hearing. Accordingly, I find that the testimony by Hensley that he possessed a good-faith doubt that Rodman and Nolon possessed all the qualifications of Group I is not credi- ble.'2 B. Analysis and Concluding Findings 1. Deferral to arbitration Respondent Union, in effect, moves that the Board defer to the appeals committee decision as an arbitration award under the principles of Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Spielberg holds that deferral to arbitration awards is appropriate where the proceeding is fair and regular, all parties have agreed to be bound, and the result is not "clearly repugnant to the purposes and policies of the Act." I find that the appeals committee decision does not meet the third test. The committee held that the only issues before it were Hens- ley's alleged contract violations, and only those made "willingly and knowingly" at that. The statutory propri- ety of Hensley's conduct was left unscrutinized. More- over, the committee's holding did not remedy past viola- tions; nor did it purport to prevent similar violations in the future. This being the case, I find that deferral to the commit- tee's decision is inappropriate, and Respondent Union's motion is accordingly denied. 2. Coercive quits On November 28 and 29, 1977, Hensley and Danner told travelers on the Sachs' Ft. Leonard Wood job that Respondent Union wanted them to quit in favor of Local members who were then unemployed. The General Counsel contends that this action was a "directive" which would unlawfully tend to encourage membership 9 Respondent attempted to make an issue of Rodman's signing of Local I's Book I in Los Angeles on July 28, 1977. Rodman plainly stated on the page that he was a resident of "Boliver, Missouri." Just why Local 11 permitted Rodman to sign its Book I with such a notation is not an issue in this case. Moreover, Rodman received no referrals as a result of that single registration. 10 It was the testimony of Rodman and Nolon that each time they reg- istered they were required to present a current dues receipt from their home Local of the IBEW. That this was required is not in dispute; the legality of the requirement was not placed in issue in this case. I Hensley conjectured that some unscrupulous persons in other local unions of the IBEW may barter membership to individuals who have not passed the examination. There was no support for this conjecture and Hensley acknowledged that he had no reason to ever believe that Rodman or Nolon had used wrongful means to secure their journeyman cards. 12 Moreover, the assertion here, but not at the appeals committee hear- ing, that he questioned Rodman's and Nolon's residency, as well as having passed examinations, represents a substantial shift in the professed justifications of Hensley's action which, in my opinion, further serves to discredit his testimony on this point. SACHS ELECTRIC COMPANY 677 in Respondent Union. I disagree. There is no credited testimony that Hensley or Danner did anymore than re- quest the travelers to quit. The General Counsel does not suggest, and I do not find, any element of restraint or co- ercion in such requests, and therefore, the requests cannot be said to have violated Section 8(b)(1)(A) of the Act as alleged in the complaint. 3. Intraunion charges Hensley filed charges against Rodman because he con- ferred with an attorney and appealed to Moore in an effort to secure rights guaranteed by article XI of the contract; namely, the right to be referred under the con- tract without regard to union membership. While a union may impose discipline on its members in an effort to pro- tect a legitimate union interest, it may not do so if its action "invades or frustrates an overriding policy of the labor laws...." Scofield v. N.L.R.B., 394 U.S. 423 at 429 (1969). One cannot gainsay that adherence to labor agreements is a policy of the labor laws'3 and that the charges would tend to frustrate this policy. The Board has held that employees are protected from union disci- pline where the subject conduct is performance of con- tractual responsibilities, 4 correspondingly the protection necessarily extends to the assertion of contractual rights. The documents released to the lawyer were not confi- dential and their disclosure did not interfere with the le- gitimate operation of the hiring hall or any other func- tion of the Union. That Rodman may have overstated his case to Moore by stating that he had been currently reg- istered is a factor in which the Union may not take refuge; Hensley could have easily countered any misin- terpretation by Rodman by presentation of the referral books to Moore. There was no legitimate need of the Union which was satisfied by the processing of the charges. The subsequent action of Moore in reversing the Union's decision does not moot the issue as Respon- dent Union contends. There is nothing in Moore's letter to suggest that the charges should not have been brought and there is nothing to suggest that, absent compliance with the Order recommended herein, that the Union will not similarly discipline other individuals who seek vindi- cation of contractual rights.15 Moreover, the acts of summons and subjection to internal union trial are acts of discipline themselves and, under the circumstances herein, violations of the Act which require affirmative remedy. Freight Drivers and Helpers Local Union No. 557Z affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Liber- ty Transfer Company, Inc.), 218 NLRB 1117 (1975). Therefore, I find and conclude that the summons for trial, trial, and discipline of Rodman by Respondent Union violated Section 8(b)(1)(A) of the Act, and I fur- ther find that the threat of the same action by Hensley to Rodman further violated the same section of the Act. 13 Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Ala- bama, 353 U.S. 448 (1957). '4 Local 12419. International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc.), 176 NLRB 626, 628 (1969). '5 Cf. Local 100, Transport Workers Union of America (Liberty Coaches, Inc.), 230 NLRB 536 (1977). 4. Group I registrations Respondent Local 453 contends that Rodman and Nolon were not placed in Group 1, or allowed to sign Book I, because they did not present Hensley with evi- dence of their qualifications until after they filed their petition with the appeals committee. 6 Respondent Union does not contend that Rodman and Nolon were not qualified to register in Group 1. Respondent does not contend that they were asked for evidence of their quali- fication and refused to present it. Rather, Respondent contends its refusal to permit them to sign Book I was legally permissible because Rodman and Nolon failed to make physical demonstration of their qualifications, even though they were not asked for such demonstration. I reject this contention. I have found herein the only state- ment Hensley made to Rodman regarding their qualifica- tions, or lack of them, was that "no g--- traveler is going to sign Book I." Additional support for the conclusion that the failure to present evidence of their having passed the examina- tion was not the real reason for Hensley's refusal to reg- ister Rodman and Nolon in Book I is found in Hensley's statement on direct that he had "questions" about the employees' meeting the residency requirement when, theretofore, he had never questioned their qualifications or, at most, questioned their passing of journeyman's ex- aminations at the appeals committee hearing. As stated by the Board in Painters Local Union No. 1555, affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO (Alaska Constructors, Inc.), 241 NLRB No. 112 (1979), such "belated and changing explana- tions" for refusal to refer constitute evidence that the ex- planations are pretextual and that the refusals are dis- criminatory. The only qualification Rodman and Nolon failed to meet was membership in Respondent Union. This qualifi- cation is an impermissible one under the statute since "travelers" are, by definition, nonmembers of the Union and the refusal to permit registration in the preferred grouping would necessarily encourage membership therein. Accordingly, I find and conclude that by refus- ing to allow Rodman and Nolon to register in Book I from February 28 to July 3, 1978, because they were not members of Respondent Union, Respondent Union vio- lated Section 8(b)(1)(A) and (2) of the Act. 5. Employer liability Citing the case of Morrison-Knudsen Co., Inc., et al., d/ b/a Robinson Bay Lock Constructors v. N.L.R.B., 275 F.2d 914 (2d Cir. 1960), enfd. as modified 123 NLRB 12 (1959), cert. denied 366 U.S. 909 (1961), the General Counsel contends that NECA should be held liable for the violations committed by Respondent Union since NECA, by entering into a valid exclusive hiring hall agreement, vested the Union with power to hire in its '6 Even if this contention had the slighest basis in law or fact before Rodman and Nolon presented letters attesting to their passage of the journeyman examination, it had none afterward, even though the matter was "in the hands of the committee." That is, there was no impediment to Hensley's permitting them to register in Book I before the committee ruled. SACHS ELECTRIC COMPANY 677 678 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD behalf. The General Counsel further contends that Re- spondent Sachs is also jointly and severally liable for the Union's conduct solely because it is a member of NECA. The General Counsel does not contend that NECA sponsored or condoned, or even knew of, Hensley's re- fusal to permit Rodman and Nolon to sign Book I before they filed their appeal. The General Counsel does not contend that Respondent Sachs knew of or participated in Hensley's conduct or that Sachs is anymore culpable than any other of the 57 members of NECA. The only reason advanced for singling out Sachs was that the Charging Party had not filed any charges against any of the other members of NECA. Morrision-Knudsen did not establish the proposition that in all cases of exclusive hiring halls, an employer as- sociation and any one of its members against whom a charging party may choose1 7 to file charges become in- surers for all of a union's violative conduct. The Board therein did hold that the employer who was a party to an exclusive arrangement was liable for the consequences of the Union's unlawful conduct, even absent knowledge of specific violative acts, but in so doing the Board spe- cifically noted that the arrangements involved therein lacked "adequate safeguards against discrimination." While the Board cannot require safeguards,"' their pres- ence necessarily undermines the General Counsel's con- tention that Morrison-Knudsen requires a holding that vi- carious liability should be imposed against an employer association even though it has negotiated such safe- guards, regardless of participation in, or knowledge of, the violative conduct alleged. 19 In this case adequate safeguards against discrimination were present in the form of the appeals committee. The contract provided a body to hear and remedy complaints such as those of Rodman and Nolon, and they were heard within a reasonable time.20 While, ultimately, the appeals committee did not issue a decision which in all respects comport with the requirements of Spielberg Manufacturing Company, as I have previously discussed, this does not, except by circular reasoning, require a holding that the safeguard embodied in the contract was inadequate. Simply stated, the committee could have issued an adequate decision, it just failed to do so in this, its first, case. The contract required participation by an i; Charges can be, and are, filed for a myriad of reasons, including real or imagined grievances over unrelated matters. If the charges against Sachs related to some matter other than the fortuitous circumstances that it was the last employer to which Respondent Union referred Rodman and Nolon before the events of this case, it is not borne out by the record herein. Is Local 357, International Brotherhood of Teamsters, Chauffeurs. Ware- housemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961) t1 A fortiori, Morrison-Knudsen does not require imposition of derivative vicarious liability upon any member of such association whom an charg- ing party (in the exercise of whim, caprice, prejudice, malice or igno- rance) may designate by the simple expedient of filling out an NLRB charge form. 20 Certainly, the delay from February 28 (the first refusal by Hensley) until April 25 (the filing of the appeals) is in no way attributable to the employers or the committee. While the period of April 25, to June 12, hearing date, may seem to have been somewhat longer than desirable, it must be remembered that this was the first such appeal which had been presented and the first time the appeals committee had been convened impartial public member. 21 The grievants were repre- sented vigorously by a private attorney. In this particular case there is no basis for concluding that the employer member had reason to thwart the efforts of the grievants, unless one indulges in a presumption of employer hostil- ity toward the employees or predilection toward encour- aging union membership. That is, two of the three arbi- ters involved were not hostile to the interests of the em- ployees and, given the factors of a speedy hearing and full representation and participation by the grievants, the safeguard against discrimination was adequate in this case, and the provision for that safeguard insulates Re- spondent Employers from imposition of liability without fault. 22 CONCLUSIONS OF LAW 1. Respondent NECA and its employer-members, in- cluding Respondent Sachs Electric Company are em- ployers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to file intraunion charges against Bill Rodman and filing such charges against Bill Rodman be- cause he exercised rights guaranteed by Section 7 of the Act, the Union has been and is violating Section 8(b)(1)(A) of the Act. 4. By discriminatorily refusing to permit Bill Rodman and Larry J. Nolon to register in its Referral Book I, the Union has caused and attempted to cause employers to discriminate against Rodman and Nolon in violation of Section 8(a)(3) of the Act, and the Union thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(l)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent Union has not otherwise violated the Act as alleged herein. 7. Respondent NECA and Respondent Sachs have not violated the Act as alleged herein. THE REMEDY Respondent Union argues that since Rodman and Nolon refused (on February 28, and thereafter) to sign Book II without the notation "signed under protest" 21 Compare Lummus Company, 142 NLRB 517 (1963), where the ma- jority rejected a contention that individual employees should be required to submit to an arbitral procedure which precluded "access to an impar- tial tribunal" and because they had no knowledge of the existence of the procedure in the first place. Here, Rodman and Nolon testified that they were familiar with the contract and had a pamphlet which (for all its other misinformation) described the appeals procedure; also Moore's letter of March 6 specifically referred the employees to the appeals com- mittee. 22 recognize that the Board would not have required Rodman and Nolon to submit their grievances to the appeals committee in the first in- stance. Local Union 675. International Brotherhood of Electrical Workers, AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976). However, the issues of initial deferral and vicarious liability are not the same. Here, the issue is whether the employers have completely turned the hiring hall over to the Union so as to subject themselves to absolute liability for all the wrongful acts of the Union. I find that by contractually providing for the appeals procedure, they have not done so. SACHS ELECTRIC COMPANY 679 beside their respective names, the referrals they would have received pursuant to such registration should be counted against them as willful loss of earnings. I dis- agree. The Employees' insistence was occasioned only by Respondent Union's unlawful conduct. They were not, by seeking to insert three words, attempting to make the Union's books a medium in some type of campaign. To say that the simplistic notations would have had a disruptive influence on the lawful operation of the refer- ral procedures is speculation in its purest form. Accord- ingly, I deny Respondent's request in this regard. Having found that the Union violated Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be required to cease and desist from such violations and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Union be ordered to make whole Bill Rodman and Larry Nolon for any loss of earnings they may have suffered by reason of the discrimination against them, computed on a quarterly basis, plus interest, as prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). To facilitate the computation and assure Rodman and Nolon of equal re- ferral treatment, the Union shall maintain and make available for the Board or its agents, upon request, out- of-work lists, referral cards, and any other documents and records showing job referrals and the basis for such referrals of employees, members, and applicants. I fur- ther recommend that the Union be ordered to post ap- propriate notices, and to notify Rodman and Nolon in writing that registration for the use of the Union's refer- ral system will be available to them on an equal and non- discriminatory basis with other employees and appli- cants. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 23 The Respondent, International Brotherhood of Electri- cal Workers, Local 453, its officers, agents, and represen- tatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause any employer to deny employment to, or in any other manner discrimi- nate against, Bill Rodman or Larry J. Nolon or any other employee or applicant in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. (b) Refusing to permit Bill Rodman or Larry J. Nolon or any other qualified employee-applicant to register in its Referral Book I because of their lack of membership in Respondent Union, or because of any other arbitrary or unfair consideration. 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (c) Filing, or threatening to file, intraunion charges against employees because they make or file complaints under its collective-bargaining contracts. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Permit Bill Rodman and Larry Nolon to continue to register in its referral Book I and dispatch said em- ployees without regard to their union membership or other unfair or arbitrary consideration. (b) Permit any other qualified employee-applicant, upon request, to sign referral Book I and dispatch them without regard to their union membership or other unfair or arbitrary consideration. (c) Make whole Bill Rodman and Larry J. Nolon for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (d) Notify Bill Rodman and Larry J. Nolon in writing that registration for and use of the Union's referral system will be available to them on an equal and nondis- criminatory basis with other employees and applicants. (e) Maintain and, upon request, make available to the Board or its agents, for examination and copying, out-of- work lists, referral cards and any other documents and records showing job referrals and the basis for such re- ferrals of employees, members and applicants, which are necessary to compute and analyze the amount of back- pay due Rodman and Nolon, and assure them equal re- ferral treatment. (f) Post at it business offices, hiring halls, and meeting places, copies of the attached notice marked "Appendix A." 24 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 24 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX B Article XI Referral Procedure In the intersts of maintaining an efficient system of production in the industry, providing for an orderly pro- cedure of referral of aplicants for employment, preserv- SACHS ELECTRIC COMPANY 679 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the legitimate interests of the employees in their em- ployment status within the area and of eliminating dis- crimination in employment because of membership or non-membership in the Union, the parties hereto agree to the following system of referral of applicants for employ- ment. 1. The Union shall be the sole and exclusive source of referrals of applicants for employment. 2. The Employer shall have the right to reject any ap- plicant for employment. 3. The Union shall select and refer applicants for em- ployment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affect- ed in any way by rules, regulations, bylaws, constitution- al provisions or any other aspect or obligation of union membership policies or requirements. All such selection and referral shall be in accordance with the following procedure. 4. The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be regis- tered in the highest priority group for which he qualifies. GROUP I-All applicants for employment who have four (4) or more years experience in the trade, are resi- dents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the IBEW and who have been employed for a period of at least one (1) year in the last four (4) years under a col- lective-bargaining agreement between the parties to this Agreement. GROUP II-All applicants for employment who have four (4) or more years experience in the trade and who have passed a journeyman's examination given by a duly constituted Local Union of the IBEW. GROUP III-All applicants for employment who have two (2) or more years experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six (6) months in the last three (3) years in the trade under a collective-bargaining agree- ment between the parties to this Agreement. GROUP IV-All applicants for employment who have worked at the trade for more than one (1) year. If the registration list is exhausted and the Union is unable to refer applicants for employment to the Em- ployer within forty-eight (48) hours from the time of re- ceiving the Employer's request, Saturdays, Sundays and Holidays excepted, the Employer shall be free to secure applicants without using the referral procedures, but such applicants, if hired, shall have the status of "tempo- rary employees." The Employer shall notify the Business Manager promptly of the names and Social Security Numbers of such temporary employees and shall replace such temporary employees as soon as registered appli- cants for employment are available under the referral procedure. DEFINITIONS "Normal construction labor market" is defined to mean the following geographical area: This area shall include the following named coun- ties in the State of Missouri: Christian, Dallas, Douglas, Greene, Hickory, Howell, Laclede, Oregon, Ozark, Polk, Pulaski, Shannon, Stone, Taney, Texas, Webster and Wright. The above geographical area is agreed upon by the the parties to include the areas defined by the Secretary of Labor to be appropriate prevailing wage areas under the Davis-Bacon Act to which this Agreement applies, plus the commuting distance adjacent thereto, which includes the area from which the normal labor supply is secured. "Resident"-means a person who has maintained his permanent home in the above defined geographical area for a period of not less than one (1) year or who, having had a permanent home in this area, has temporarily left with the intention of returning to this area as his perma- nent home. "Examinations"-An "examination" shall include expe- rience rating tests if such examination shall have been given prior to the date of this Agreement, but from and after the date of this Agreement shall include only writ- ten and/or practical examinations given by this Local Union, or any other duly constituted Local Union of the IBEW. Reasonable intervals of time for examinations are specified as thirty (30) days. An applicant shall be eligi- ble for examination if he has four years experience at the trade. 5. The Union shall maintain an "out-of-work list" which shall list the applicants within each group in chronological order of the dates they register their avail- ability for employment. 6. Employers shall advise the Business Manager of the Local Union of the number of applicants needed. The Business Manager shall refer applicants to the Employer by first referring applicants in GROUP I in the order of their places on the "out-of-work list" and then referring applicants in the same manner sucessively from the "out- of-work list" in GROUP II, then GROUP III, and then GROUP IV. Any applicant who is rejected by the Em- ployer shall be returned to his appropriate place within his GROUP and shall be referred to other employment in accordance with the position of his GROUP and his place within the GROUP. The only exceptions which shall be allowed in this order of referral are as follows: (a) When the Employer states bona fide require- ments for special skills and abilities in his request for applicants, the Business Manager shall refer the first applicant on the register possessing such skills and abilities. (b) If the age ratio clause in the Agreement calls for the employment of an additional employee or employees on the basis of age, the Business Man- ager shall refer the first applicant on the register satisfying the applicable age requirement provided, however, that all names in higher priority groups, if any, shall first be exhausted before such over-age reference can be made. 7. An Appeals Committee is hereby established com- posed of one member appointed by the Union, one SACHS ELECTRIC COMPANY 681 member appointed by the Employer or by the Associ- ation, as the case may be, and a Public Member appoint- ed by both these members. It shall be the function of the Appeals Committee to consider any complaint of any employee or applicant for employment arising out of the administration by the Local Union of Sections 3 to 7 of ARTICLE X (sic) of the Agreement. The Appeals Committee shall have the power to make a final and binding decision on any such complaint which shall be complied with by the the Local Union. The Appeals Committee is authorized to issue procedural rules for the conduct of its business, but it is not authorized to add to, subtract from, or modify any of the provisions of this Agreement and its decisions shall be in accord with the Agreement. 8. A copy of the referral procedure set forth in this Agreement shall be posted on the Bulletin Board in the offices of the Local Union and in the offices of the Em- ployers who are parties to this Agreement. 9. Apprentices shall be hired and transferred in accor- dance with the apprenticeship provisions of the Agree- ment between the parties. 10. When making reductions in the number of employ- ees due to lack of work, Employers shall use the follow- ing procedure: (a) Temporary employees, if any are employed, shall be laid off first. Then employees in GROUP IV shall be laid off next, if any are employed in this GROUP. Next to be laid off are employees in GROUP III, if any are employed in this GROUP, then those in GROUP II, and then those in GROUP 1. (b) Paragraph (a) will not apply as long as the special skill requirement as provided for in Section 6 (a) is re- quired. (c) Supervisory employees covered by the terms of this Agreement will be excluded from layoff as long as they remain in a supervisory capacity. When they are re- duced to the status of Journeyman, they will be slotted in the appropriate Group in Paragraph (a) above.