Dynalectric Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, AFL-CIO, Local 1701 (Dynalectric Company) and Larry Nesler and Floyd Robbins. Cases 5- CB-3796 and 25-CB-3809 September 30, 1980 DECISION AND ORDER By CHAIRMAN FANNING ANI) MEMEI RS JNKINS ANI) PNIF. I0 On June 17, 1980, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. 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 and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. l'he General Counsel has excepted to certain credibility findings made by the Adminlistrative L.aw Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (15(0), tnfTd 188 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing his findings. Chairman Fanning continues to adhere to the views set forth in his dissenting opinion in Miranda Fuel Co., 140 NLRH 181 (1962), and thus finds that it was unnecessary for the Administrative Law Judge to rely on that decision DECISION STAIEMIN OF ITH CASE ROBERI W. LEINER, Administrative Law Judge: The hearing in this consolidated proceeding was held in Owensboro, Kentucky, on seven occasions on and be- tween January 24 and March 12, 1980. The charge in Case 25-CB-3706, filed by Larry Nesler on June 22, 1979, was amended on July 5, 1979. The charge in Case 25-CB-3809, filed by Floyd Robbins on July 2, 1979, was amended on July 5, 1979. A consolidated complaint was issued on August 10, 1979, alleging that Internation- al Brotherhood of Electrical Workers, AFL-CIO, Local 1701, herein called Respondent, violated Section 252 NLRB No. 119 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, as amended, herein called the Act, by various acts growing out of its contractual relationship in multiem- ployer bargaining with a group of employers, particular- ly including Dynalectric Company. The complaint also alleges violation of Section 8(b)(1)(A) of the Act in Re- spondent's failure to lawfully represent the two Charging Parties in their grievances following their being dis- charged for cause by Dynalectric Company. Respond- ent's timely answer admitted certain allegations of the consolidated complaint but denied the commission of any unfair labor practices. At the hearing, all parties were given full opportunity to participate, to call, examine, and cross-examine wit- nesses, and to argue on the record. At the close of the hearing, all parties waived oral argument and, thereafter, the General Counsel and Respondent filed briefs. At the hearing, on Respondent's motion and with the General Counsel's consent, at the conclusion of the Gen- eral Counsel's case-in-chief, two allegations of the con- solidated complaint were dismissed for lack of proof. These allegations consisted of paragraph 5(a) which al- leged, inter alia, that Respondent unlawfully demanded that Dynalectric discharge certain employees not dis- patched pursuant to allegedly unlawful hiring proce- dures: and paragraph 5(d), which alleged that Respond- ent unlawfully refused to give to employees of Dynalec- tric who were not members of Respondent a journeyman test which was a condition precedent to their preferential referral to employment under the collective-bargaining agreement. At the hearing, in response to Respondent's further motions to dismiss for lack of proof other allegations of the consolidated complaint, I reserved decision regarding paragraph 5(e), in which it was alleged that Respondent administered to employees, who were not members of the Union, but who were applicants for employment at Dynalectric, a journeyman's test which was "unfair and discriminatory in nature and grading"; and paragraph 5(g), alleging that Respondent engaged in enumerated unlawful acts whereby nonmembers of Respondent were disqualified and prevented from establishing eligibility for dispatch under the terms of the collective-bargaining agreement and the conditions governing the operation of Respondent's hiring hall, thereby preventing them from being employed by Dynalectric other than as temporary employees. The instant decision disposes of those mo- tions on which decision was reserved. Upon the entire record in this proceeding, including the briefs, and based upon my observation of the demea- nor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDIICTION Dynalectric Company, a Kentucky corporation, main- tains its principal office and place of business in Owens- boro, Kentucky, where it is engaged in the business of electrical contracting. In the 12-month period preceding issuance of complaint, a representative period, Dynalec- tric, in the course and conduct of its business operations, 820 ELECTRICAL WORK purchased, transferred, and delivered to its Owensboro facility goods and materials valued in excess of $50,000 of which goods valued in excess of $50,000 were trans- ported to said facility directly from States other than the State of Kentucky. In the same period, Dynalectric pro- vided services of a gross value in excess of $500,000. The complaint alleges, Respondent admits, and I find that Dynalectric is and has been, at all material times, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and that the Board would assert jurisdiction herein. II. THE ABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that the above-captioned Respondent is, and has been at all material times, a labor organization within the mean- ing of Section 2(5) of the Act. 111. HE AI.EGEI) UNFAIR LABOR PRACTICES A. The Issues The principal issues, raised by the pleadings and liti- gated in the hearing, remaining after the above-noted dis- missals at the hearing of two allegations of the complaint and alleged to violate Section 8(b)(1)(A) and (2) were: 1. Whether Respondent, operator of an exclusive hiring hall pursuant to a collective-bargaining agreement at all times since December 22, 1978 (the 10(b) period), refused to register and refer nonmembers of Respondent, including, Charging Parties Nesler and Robbins, and other persons, for employment with Dynalectric because of their nonmember status. 2. Whether, on or about March 24, 1979, Respondent administered to nonmember applicants for employment a test for journeyman status which was unfair and discrim- inatory in nature and grading, thereby adversely and un- lawfully affecting their opportunity for referral under the collective-bargaining agreement. 3. Whether, on or about February 10, 1979, and there- after, Respondent required nonmember applicants to complete a complex and lengthy questionnaire as part of their application for referral, which questionnaire had not been previously required and whether such proce- dure was part of a plan to discriminate against such non- member applicants. 4. Whether Respondent, on or about February 8, 1979, following Dynalectric's "termination" of its temporary employees, filed a grievance against Dynalectric regard- ing the "termination" notwithstanding said employees did not desire such grievance to be filed and objected thereto. 5. Whether Respondent, in or about May and June 1979 contrary to the expressed desire of Nesler and Rob- bins, who had filed grievances regarding their respective May 3, 1979, discharges by Dynalectric, unlawfully re- fused to consent to Dynalectric's offer of reinstatement of said employees. 6 Whether Respondent's conduct with regard to the processing of Nesler and Robbins' grievances concerning their May 3, 1979, discharges, resulted from Respond- ent's bad faith because of Nesler and Robbins being non- CERS, LOCAL 1701 821 members of Respondent and not dispatched through its hiring hall. 7. Whether Respondent, in any event, failed to fairly and in good faith represent Nesler, Robbins, and other employees because of their lack of membership in Re- spondent's union or because of other invidious reasons, all in violation of Section 8(b)(l)(A) and/or 8(b)(2) of the Act. B. Background At all material times, Respondent, Local 1701, IBEW (herein sometimes called the Union) has had collective- bargaining relations as the statutory representative of "inside construction employees" of Dynalectric Compa- ny in Owensboro, Kentucky, herein sometimes called the Company, through a multiemployer unit represented in collective bargaining by Owensboro Division, Southern Indiana Chapter, NECA, Inc. NECA, Inc., is the Na- tional Electrical Contractor Association and there is no dispute that Dynalectric a member of NECA has assent- ed to the several collective-bargaining agreements nego- tiated between NECA and the Union. In particular, the present collective-bargaining agreement between NECA and the Union was executed and effective since in or about June 1978 and runs through May 31, 1981. The pertinent provisions of this collective-bargaining agreement are: (1) A grievance procedure (sec. 1.05-1.09). This griev- ance procedure, inter alia, provides, and evidence at the hearing disclosed, that "All grievances or questions in dispute" under the agreement are adjusted by meetings of the Union business agent and a representative of NECA on an informal basis and thereafter, pursuant to sec. 1.06-1.07, in the event that informal discussions do not resolve the issue, by reference to an established labor management committee ordinarily consisting of three representatives of the Union and three of the several em- ployers. The contract requires that, on the application of either party, the labor management committee must meet within 48 hours after notification of a dispute. By section 1.07, decisions of the labor management committee (which consists of a quorum of two members from each side) must be by majority vote. By section 1.08 and 1.09, the final step of the grievance procedure, in the event that the labor management committee fails to agree or to adjust any dispute or matter, the issue must be referred, on application of any party, to the Council on Industrial Relations for the Electrical Contracting Industry, herein CIR, for final and binding adjudication. This CIR meets in Washington, D.C. (2) Section 2.05 contains a maintenance of membership requirement for existing employees for continued em- ployment and a 31-day requirement of union membership for new employees. (3) In section 3.28, the agreement provides that a ter- minated employee shall be given a termination notice stating the reason and date of termination and whether the employee is eligible for rehire on the job or in the shop from which he was terminated. Further, it requires that it is the responsibility of the employee's immediate supervisor to complete the termination notice. Copies of DECISIONS OF NATIONAL LABOR RELATIONS BOARD such termination notice must be supplied to the Union and the employee upon termination. The grievance pro- cedure provides that any terminated employee who be- lieves himself discriminated against may file a written grievance with the union business agent within 48 hours after the workday on which he was terminated (sec. 3.28(d)). Finally, the agreement discloses, and the parties stipu- lated, that article VI establishes an exclusive hiring hall for the referral of employees or applicants for employ- ment to employers. The agreement further provides (sec. 6.02) that the Union is the sole and exclusive source of referral of applicants for employment; that the Union maintains an "out of work list" which denotes applicants within certain employee applicant groups in chronologi- cal order of the dates that they registered for employ- ment (sec. 6.04); that referral will be on a nondiscrimina- tory basis with regard to union membership (6.05); and that the register of applicants shall be divided into four "groups" the highest group being journeymen who, inter alia, have passed an examination given by a local union of the IBEW and employed for a period of at least I year in the last 4 years under a collective-bargaining agreement between the parties the second group being applicants with 4 or more years of experience in the trade who have passed a similar journeyman's examina- tion given by a local union of the IBEW group three being applicants having 2 or more years in the trade, who reside in the geographical area of the contract and have been employed for at least 6 months in the last 3 years in the trade under a collective bargaining between the parties and group four, all applicants for employment who have worked at the trade for more than I year. I All applicants must reregister every 30 days in order to hold their position within the group. By virtue of section 6.07, employees must advise the Union of the number of applicants needed; applicants are referred out on the basis of their position in the groups. It also provides that an applicant rejected by an employ- er is returned to his group. By virtue of section 6.08, if the registration list is ex- hausted and the Union is unable to refer applicants within 48 hours of the employer's request, the employer is free to obtain applicants without using the hiring hall. In such case, however, employees hired outside the hiring hall referral procedure have the status of "tempo- rary employees." Upon hiring a "temporary employee," the employer must notify the Union promptly of the hiring of such "temporary employee" and give the names and social security numbers of such employee. Further- more, section 6.08 provides that the employer must re- place (but need not terminate) any such "temporary em- ployee" as soon as a registered applicant for employment is referred to him under the referral procedure. The par- ties agree that a referred employee, once employed, re- gardless of both the group from which he was referred and his union affiliation, if any, may not be replaced by another referred employee, regardless of such other em- ployee's group placement. The lawfulness of these "groups" in granting referral priority is not in issue herein See Saih Electric (iCompany, 248 NLRH 669, fn 3 (1980). Under section 6.09, the parties created an "Appeals Committee" composed of a member appointed by the Union, a member appointed by the employer, and a public member appointed by these two members. The function of the appeals committee is to decide any com- plaint of an employee or applicant for employment aris- ing out of the administration by the Union of the referral system or the groups which are created under the agree- ment. 2 It might be noted that the existing collective-bargain- ing agreement (J. Exh. 1) was executed on behalf of the Employer by William N. Cooper, chapter manager for NECA and Woodson Sosh, vice president of Dynalec- tric. The agreement was executed on behalf of the Union by William Harold Baggett, business agent of the Union. C. The Hiring of Temporary Employees by Dynalectric During the summer of 1978, Dynalectric, the largest electrical contractor in the Owensboro area, was en- gaged in the construction of a large power plant about 35 miles from Owensboro, Kentucky, sometimes known as the Sebree job, with as many as 60 of its electricians employed at the site at one time. According to Dynalec- tric's vice president, Woodson Sosh (a witness called by the General Counsel), in the summer of 1978, Dynalec- tric needed even a larger number of electricians and had a call into the union hiring hall to supply it with more employees. The Union had insufficient employees availa- ble for referral and the Company was forced to advertise in local newspapers for electricians. Employees of Dynalectric hired in the summer of 1978 credibly testified that although they were hired by the Company pursuant to its advertisements in the newspa- pers they first sought registration at the union office and hiring hall. Upon their requests at that time to sign the registration book for future referral by the Union, Union Business Agent Harold aggett would not let them sign the book, telling them that he had registrants for any jobs he could refer them to. However, he told these non- union applicants that he heard that Dynalectric was hiring and that they should go there.3 Baggett, refusing one such applicant (Thorpe), asked if he was a union member. Thorpe said he was not. In any event, in the summer of 1978, these nonunion applicants were lawfully hired "off the street" by Dyna- lectric Vice President Woodson Sosh and by Supervisor Herb Sorg. At the time of their first employment with Dynalectric, Sosh told them that they were "temporary employees" and could therefore be replaced by "union members" who might be thereafter referred out of the hiring hall. The complaint alleges no unlawfulness i an, term of the collective- hargalling agreement :' At this time. Dylnalectric had a call in for employees at the union hall It should b e noted. liho eser, that there is no allegation in the com- plaint of unlawful discriminatory action by the Union in he summer of 1978 nor, i particular are the acts of Baggett in refusing, in the sulmer of 1978, to register nonmembers in the hiring hall alleged as unfair labor practices. The 6-month (Xb) period dates back only to acts in or after December 1978 822 ELECTRICAL WORKERS, LOCAL 1701 In the summer and fall of 1978, Sosh employed more than 40 of these "temporary employees" who were not "referred" and found the majority of them to be superior to employees who had been previously referred out of the hiring hall. Apart from the problem of employee ab- senteeism which Sosh found common to all employees, he found both costly and annoying the practice of re- ferred employees of working a few days and then quit- ting. These referred employees thus caused Dynalectric production problems endemic to an unstable work force. By contrast, according to Sosh, the "nonunion," tempo- rary employees were more desirable since they did not leave the job after a few days but gave Dynalectric rela- tively steady performance. Sosh therefore found the tem- porary employees, at least in this regard, to be superior to applicants for employment referred out of the hiring hall and characterized the referred employees' practice of quitting employment after 2 or 3 days as "disruptive." Sometime immediately before February 1, 1979, with the temporary employees having satisfactorily worked for Dynalectric in the period June 1978 through January 1979, Sosh discussed his preference for temporary em- ployees and his dissatisfaction with the performance of referred employees with NECA Manager William N. Cooper. In addition to being generally unhappy with the performance of the referred eaployees, Sosh testified that his conversation with Cooper was precipitated because a few days before February 1, 1979, an applicant for em- ployment, referred out of the hiring hall, reported for work to replace a temporary employee. The Dynalectric supervisor at the jobsite had had prior experience with this applicant and was dissatisfied with his performance. Notwithstanding that the collective-bargaining agree- ment (sec. 6.03) gives the employer the right to reject any applicant for employment, for reasons not disclosed on the record, Respondent was required to pay the appli- cant a full day's pay notwithstanding that it rejected him as an employee. 4 In view of Sosh's being forced to pay a day's pay, Dynalectric's problem of perhaps facing further unsatis- factory referred applicants and the necessity of, in prac- tice, terminating the otherwise satisfactory "temporary employees," he accepted the advice of NECA Manager Cooper to create a device to extricate Dynalectric from these problems. He accepted Cooper's suggestion where- by Dynalectric would "terminate" the temporary em- ployees,5 thereby giving them the employment status necessary to permit them to register, pursuant to the terms of the collective-bargaining agreement, on the out- of-work list in the hiring hall; and, since the union had no registrants then on the list for referral, cause the erst- while essentially nonunion "temporary employees" to be referred from the hiring hall. Under the collective-bar- gaining agreement, they would not then be replaceable 4 The parties agree that although the nonreferred temporar employee must he "replaced" hb the referred applicant, the employer is ot obligat- ed to actually discharge the temporary employee hut, under the collec- tivr-bargaining agreement management rights clause, has the ption of employing the temporary ecnplocce in another work itation 5 There is no dispute thai. at all material times and particularly n and after Februar 7 there as n lack if work for the temporar emplos- by future applicants, including union members, referred out of the hiring hall. Thus on or about February 1, 1979, Cooper composed a letter addressed "To our 'Temporary Employees' " in which he outlined the device by which these "temporary employees" could become permanent employees of Dyn- alectric (G.C. Exh. 14): February 1, 1979 To our "Temporary Employees" The Dynalectric-Griffin Company is indeed ap- preciative for the fact you responded to our help wanted ads, and other calls for electricians, to man our work in I.B.E.W. Local Union 1701's geograph- ical jurisdiction. For the most part we have found the work per- formance of our "temporary employees" to be ac- ceptable. The designation "temporary employee" is from the referral portion of our labor agreement with Local Union 1701. This agreement provides that when Local Union 1701's Referral Administrator (the Business Representative) cannot refer regis- tered applicants to an employer, the employer may hire from other sources. However, such hirees have a temporary status and the employer is required under contract terms to replace temporary employ- ees with registered applicants when they become available. You are subject to replacement because you did not register for employment referral through the re- ferral system. Your satisfactory service with us, plus your pre- vious experience at the trade establishes your eligi- bility for registration for referral. You must be un- employed to be eligible to register for job referral. This is why we terminate you. We are terminating your services for the purpose of establishing a basis whereon you are unem- ployed. You can then go [sic] the Unions offices and register in either group, three or four, for sub- sequent employment referral. (Whether you are in group three, or, four will depend on whether or not you have worked under the terms of the labor agreement for six (6) months in the last three years.) The Company will have placed an order to the Referral Administrator for applicants to be referred to Dynalectric-Griffin Company's offices. In view of the employment situation we fully an- ticipate that you will be referred back to us. When you have registered with the Administra- tor for employment referral, are referred, and subse- quently hired, you will have the same job security as referrals from groups one or two. Tenure will then depend upon, among other factors, your skill, attitude. attendance and length of job duration. Your current status subjects the Company to the probability of costly job interruptions and inconve- niences because when a registered applicant is re- ferred we must employ the referred person (if quali- fied) or failing to do so terminate temporary em- 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees. The large number of temporary employees we are employing subjects us to a cost factor we must avoid, if at all possible. Should you have any questions, please telephone either me or our N.E.C.A. Association office. Sincerely, DYNALECTRIC-GRIFFIN COMPANY s/s W. W. Sosh W. W. Sosh Vice President P.S. Should you be rehired by us, or employed by some other employer to whom you may be re- ferred, your attention and your obligation is direct- ed to Section 2.05 of the labor agreement. SECTION 2.05. All employees who are members of Local Union 1701 I.B.E.W. on effective date of this Agreement shall be required to remain members of Local Union 1701, I.B.E.W. as a condition of em- ployment during the term of this Agreement. New employees shall be required to become and remain members of the Union as a condition of employ- ment from and after the thirty-first (31st) day fol- lowing the date of their employment or the effec- tive date of this Agreement, whichever is later. It must be noted that since the temporary employees had worked less than I year for Dynalectric, and since group IV, under the contract requires "work in the trade for more than one (1) year," it does not appear how Cooper or Sosh could accurately state that all such tem- porary employees were qualified to register at least in group IV. See paragraph 5 in the General Counsel's Ex- hibit 14, above. The Events of February 7, 1979 Baggett credibly testified that in January 1979 Sosh had requested 10 or more employees and that the union had applicants ready for referral and in fact had partially filled that request when Sosh abruptly canceled the bal- ance of the request. On February 7, 1979, according to Baggett, he had men registered and available to go to work but could not recall the number. 6 On that day, he received a telephone call from Sosh requesting 15 em- ployees and Sosh thereafter asked Baggett to visit him at Dynalectric which Baggett did. At or about 1 p.m., Sosh handed Baggett a copy of the above Cooper-inspired letter (G.C. Exh. 14). When Baggett read the letter and its proposed action, he requested Sosh not to take this action because it would "mess up" their relationship. When Baggett suggested that Sosh reconsider, Sosh told him that the action was probably already underway. Baggett admitted that Sosh "had him in a box" and Sosh 6 Records of hiring hall registration (G.C. Exhs. 4, 7, 8, and 9) for the four groups appear to show, in group I, two registrants of February 6, both referred out to jobs on February 8 (G.C Exh. 7); in group 11, none (G C. Exh. 8); and in group IV, none (G.C Exh. 9). The submitted record for group 111 (G.C Exh. 4) does not show the registrations before February 10 and this is not useful in calculating the number of applicants registered on or before February 7 who were ripe for referral on Febru- ary 7. It seems clear, on this record, that the hiring hall had few regis- trants available for referral on February 7, 1979, when Baggett and Sosh were speaking asked him how it felt. When Baggett told him that he thought that Sosh would regret it, Sosh said that his action stood. At that time, Sosh said that he needed an additional 25 employees to replace the total of 33 tempo- rary employees who he was going to terminate. Baggett told Sosh he would need a little while to think over what action he would take. Meanwhile out at the Sebree job, on February 7, 1979, Respondent's supervisors (Dynalectric's supervisors, in- cluding foremen, are all members of Respondent) were distributing copies of the Cooper-inspired letter (G.C. Exh. 14, above) to the temporary employees. Thus, on February 7, some 33 temporary employees were served by their supervisors and foremen with the above termi- nation letter which informed them that the only reason they were being terminated was to make them eligible for referral and instructed them to go to the hiring hall for registration and referral in order to become "re- ferred" employees and thus not vulnerable to replace- ment by future applicants referred out of the hiring hall. Nesler and other employees testified that they not only received the termination letter (G.C. Exh. 14) but also a termination slip signed by the foreman and the shop ste- ward (in accordance with the terms of the collective-bar- gaining agreement above). There is a dispute, however, as to whether the termi- nation slips, all of which bear the date February 9, 1979, were actually handed to the employees out at the jobsite on February 7 with the letter, or whether they, in fact, received them in Dynalectric's office on February 9. Some employees, including Nesler and Payne testified, with particularlity, that they received the February 9 ter- mination slips on February 7 along with the February 1 termination letter. Respondent's shop steward on the job, Richard B. Thompson, testified credibly that he signed all the slips on February 9 and not on February 7 (G.C. Exhs. 27, 29, and 31, for example); and that the tempo- rary employees had already been terminated by the time he signed the slips. The General Counsel's witnesses, on the contrary (Nesler, Payne), testified that, on February 7, they received the termination slips, dated February 9, along with the termination letter dated February 1. The reason for this, they said, is that they received a full day's pay for February 7 (though termination occurred in the early afternoon) and the termination slip would be used at the union hiring hall, which was closed on Feb- ruary 8 (Thursday), only on the date appearing when presented, February 9. In view, however, of Sosh's testi- mony that he caused the termination slips to be typed and distributed after Baggett's February 8 grievance was filed, infra, it seems clear that the termination slips were not distributed to employees until February 9. In view of the disposition I make of this case, it is unnecessary to resolve the issue of when the termination slips were actu- ally given to employees and when they used them al- though it has a minor adverse effect on the credibility of the General Counsel's witnesses who claimed they had the slips on February 7. Sufficient to say that each termi- nation slip, dated February 9, bears on its face not only the date of termination and the name of the employee, but, under the section "reason for termination," the state- 824 ELECTRICAL WORKERS, LOCAL. 1701 ment "as per letter." It is undisputed that this latter quoted phrase refers to the reasons for termination con- tained in the Cooper-inspired letter (G.C. Exh. 14) dated February 1, 1979, above Late in the afternoon of Wednesday, February 7, Charles Payne and other erstwhile temporary employees went to the union hiring hall and found no one there except the office clerical. They left. As above noted, the hiring hall is closed on each Thursday, and the next day, February 8, was Thursday and the hall was closed. The Events of February 8, 1979 On February 8, 1979, Baggett personnally served on Sosh a union grievance filed on behalf of the temporary employees who had been "terminated" by Dynalectric. The grievance alleged violation of section 2.15 of the collective-bargaining agreement, that the employees were not discharged for proper cause; and of section 6.06, a violation of the hiring hall and the referral system in that Dynalectric was attempting to "... circumvent the referral procedure" (G.C. Exh. 3). The Events of February 9, 1979 The events of Friday, February 9, 1979, are derived principally from the credited and uncontradicted testimo- ny of the General Counsel's witnesses Woodson Sosh and Charles Payne. 7 Payne's vivid recollection of events was especially spontaneous, specific, candid, and de- tailed. Upon prior arrangement, at or about 7 a.m. on Friday, February 9, Payne, accompanied by terminated tempo- rary employee Kenneth Byrne, arrived at a local Owens- boro restaurant, where he found waiting 15 or 20 other temporary employees. Within three quarters of an hour, NECA Manager Cooper arrived and employee Wilborn introduced Cooper to the group as ". . . this is the man that is behind all this." They pushed tables together and held a meeting. First introducing himself as the NECA representative, Cooper told the temporary employees that they should go as a group to the hiring hall and that they should request to sign the registration book. In re- sponse to employees who questioned why he believed he could get them the right to sign in the registration book, Cooper, reading from the collective-bargaining agree- ment, assured the employees inter alia, that they had the right to referral and to become union members (he read from sec. 2.05, the union-security clause, regarding the fact that "new employees shall be required to become and remain members of the Union as a condition of em- ployment on or after the 31st day following the date of their first employment). Payne said that, in addition, Cooper said that they would not have to take the jour- neyman's test because they were on the job for 30 days. 8 I In his br., p. 16, the General Counsel sought, for the first time, o disavow or impeach Payne's testimony, the testimony of his own w itness : Entry into group III requires 2 years of experience in the trade and 6 months employment in the last 3 years under the Local's collective-bar- gaining agreement Thus, the parties agree that temporary employees who worked 6 months at the Sebree job and who otherwise had 2 or more years lof experience of the trade ere qualified filr group IIl Group IV requires only that the applicants have worked at the trade for more than I year There is no contract requirement for entrance into At the end of the 25-minute meeting, Cooper told the employees that they were all to go to the hiring hall and that he would join them there later, but first he had to visit the Dynalectric office. He told them that they should try and sign the registration book in the union hiring hall. When this group of former temporary employees ar- rived at the hiring hall, the union business agent, Baggett was not there. They waited for Cooper. Baggett arrived at or about 9 a.m. and Cooper arrived at or about 9:45 a.m. After Cooper and Baggett entered Baggett's private office for about 10 minutes of conversation, Cooper emerged and told the employees they should each re- quest to sign the registration book (the "out of work" book) and each of them should request the right to take the journeyman's test. They all requested of Baggett the right to sign the out-of-work book but Baggett refused: told them that none of them had been properly terminat- ed; that their termination slips, "as per letter." were inad- equate; that they were still employees of Dynalectric; that he had filed a grievance against Dynalectric; and that they should sign their names to a pad of paper authorizing him to file individual grievances on their behalf. The employees protested, telling Baggett that they did not want him to file any grievance against Dyn- alectric requesting their reinstatement with backpay; rather, they said they wanted to sign the out-of-work book. Some of the employees had already signed the pad of paper authorizing grievances, thinking that it was merely an indication of their presence at the hiring hall that morning. Baggett testified that when these employees and Cooper first arrived at his office at or about 9 o'clock and requested to sign the out-of-work book, he refused to permit them to register because they had only the Cooper-inspired termination letter and did not have the termination slip itself (signed by the foreman who termi- nated them and the job shop steward). Shop steward Thompson testified that () he thought he signed the ter- mination slips of these temporary employees around lunchtime and he was definite, as above noted, that (2) he signed the slips on February 9. This would be consist- ent with the fact that the termination slips were signed at least late in the morning of February 9, prior to which, according to Baggett, he had told Cooper and the other temporaries, that they, at that time, did not have the req- uisite termination slips required by the collective-bargain- ing agreement. It would also be consistent with Sosh's testimony. As above noted, however, it is unnecessary to resolve this issue in view of the disposition I make of the case. In any case, Baggett told the employees not only that they were improperly terminated, and that he had al- ready filed a grievance, but that they were being "used" by Dynalectric and that they should contact the National Labor Relations Board to file a charge against Dynalec- tric. group Ilttl or group IV that the employee take the journeyman's test or be on the ijoh for 30 days It is possible this latter element demonstrated con- fusion with the union-security clause Whether this was Payne's or Coo- per's conifusion is difficult to estimate since Cooper did not testify 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At Cooper's direction, all the temporaries then left the hiring hall and went to the Dynalectric office. Cooper told them that he was going to have a letter typed (me- morializing Baggett's refusal) and would bring the letter back to the hiring hall to be presented to Baggett. When the employees returned to the Dynalectric office, Cooper shortly thereafter presented each of them with the letter which he drafted for their respective signatures. Each employee was to execute this letter addressed to Baggett with his signature, date, and time, and note the proper group in which he was allegedly suppose to qualify. The letter (Resp. Exh. 16) is as follows: Mr. Harold Baggett Referral Administrator 1015 East 15th Street Owensboro, Kentucky 42301 Dear Mr. Baggett: On this date, February 9, 1979, at approximately 8:30 A.M., I attempted to register for employment referral in the office of Local Union 1701 I.B.E.W., 1015 East 15th Street, Owensboro, Kentucky. I spoke personally with Business Representative, Harold Baggett. He refused to allow me to register in Group ( ). This is the group I am entitled to reg- ister in. I hereby request a meeting of the Appeals Com- mittee to act on my complaint that I have been im- properly denied the right to register by the Referral Administrator, Harold Baggett. The rebuffed employees then, with Cooper, returned to the union hiring hall at or about 11:15 a.m. and pre- sented their executed letters to Baggett. Cooper told them to get applications for union membership from Bag- gett while they were still in the hiring hall. Payne credibly testified that in conversations with the temporary employees in the hiring hall, Cooper told them to lie about their trade experience, thus insuring their inclusion in a higher referral group. Payne recalls, in particular, that temporary employee Charles Askins told Cooper that he had little experience but Cooper told him and other employees to lie about past trade experi- ence because it would be difficult for the Union to check it. Payne further recalls that at 4:30 p.m. of the same day, the temporary employees and Cooper thereafter returned to Dynalectric and met in Woodson Sosh's office. At that time, again, Cooper advised the employees to lie about their prior experience in order to ensure their en- trance into group II1 or IV and Woodson Sosh laughed about the matter noting that the Union could do nothing about it and could not check out their work experience. Cooper failed to testify. Sosh testified and failed to deny this testimony. Earlier than this February 9 conversation in Sosh's office, Cooper, Sorg, and Sosh, according to Payne's un- contradicted testimony, decided that the temporary em- ployees needed a lawyer, and, in particular, needed a lawyer to enjoin the Union's refusal to register and refer them. Sosh first telephoned his personal lawyer who re- ferred him to Owensboro attorney, Robert L. Gwin.9 While awaiting Gwin's appearance in the office, Payne asked Sosh and Cooper who would pay the anticipated heavy attorney fee and Sosh told him not to worry about it; that, if necessary, Sosh would pay the fee out of his own pocket. Cooper then added that if $400 or $500 "fell" out of his pocket, there was nothing to prevent the temporary employees from picking it up. Payne testified that no one ever asked him or, to his knowledge, any other employee, to pay Gwin's fee. By 4:30 p.m., on February 9, Attorney Gwin arrived and employees Nesler, Payne, and Byrne executed a re- tainer for Gwin, the retainer being dated February 12, 1979. The retainer was then taken from Sosh's office into a nearby conference room where the majority of the temporary employees remained. They signed the retainer in the conference room. 10 Later that evening, at or about 7:30 p.m., temporary employee Kenneth Byrne telephoned Payne and told him that Cooper wanted to speak to him. Thereafter, Cooper telephoned Payne and told him that he had an idea which he should have thought of before and that is that the employees, rather than being terminated by Dynalec- tric, should "quit." Payne agreed and said that he had mentioned the same idea to Byrne earlier that day. Cooper then directed Payne to meet Sosh early the next day, February 10, and to get a "quit slip" from Sosh. Payne agreed. By 8:30 a.m. the next day, Saturday, February 10, Payne and Byrne were in Sosh's office. Payne told him of the "quit" conversation with Cooper the previous eve- ning ad Sosh agreed that that was the proper proce- dure. At that point, Sosh signed and gave Payne a quit slip. Sosh cautioned Payne and Byrne that Baggett would probably not accept the "quit" slip because it had not been signed by the foreman directing the separation of employment, a condition required by the collective- bargaining agreement. At or about 9:30 a.m., Payne and Byrne went to the hiring hall. There is no dispute that at the time that they entered the hiring hall, there were no temporary employees there. In any case, they entered Baggett's private office and showed Baggett the "volun- tary quit" slips. To their surprise, he told them he would permit them to sign the register after they executed a union form. Baggett handed each of them a document which had been in the Union's possession prior to this time but had never been used, an "Application for Refer- ral" (Resp. Exh. 18). The document was to be executed before they would actually be referred and they left the office in order to execute the document. On Saturday, February 10, when Payne and Byrne re- turned to Baggett's office with the completed "Applica- tion for Referral" forms, Baggett told them again that " The General Counsel disingenuously fails to refer (GC. br., p 5) to the source of Gswin's relationship to Nesler, Robbins, and the other tem- poraries. His reference to merely ". their attorney Charlee Gwinn [icl]" is not helpful. 'U On Tuesday, February 13, 1979. Gwin filed an application in a Ken- tucky state court for an injunction, inter alia, directing Haggett and the Union to register the temporary employees. There is no disagreement that this state court proceeding was then moved to the United States Dis- trict Court and there dismissed fgr want of jurisdiction 826 ELECTRICAL WORKERS, LOCAL 1701 they were doing a wrong thing; that they were being "used"; but he nevertheless permitted them to sign the registration book and gave them referral slips back to the Dynalectric job at Sebree. Baggett testified that there were no other temporary employees in the hiring hall at that time but only oldtime union members who ordinari- ly came there to drink coffee on Saturday mornings. The testimony of the other General Counsel's witnesses indi- cate that, in fact, there were many other temporary em- ployees then present at the hiring hall who had "volun- tary quit" slips and who requested the right to register and be referred out. Indeed, their testimony is that they saw Payne and Byrne, both excited, leave Baggett's office saying that they had referral slips. They testified that Baggett refused to permit them to register at that time. Baggett denies that there were any other tempo- rary employees there. Payne at first testified that he saw no temporary employees in the waiting room of the hiring hall when he left with his referral slip, but thereaf- ter admitted being so excited that he was not sure who was there. In view of the disposition I make of this case, however, it is unnecessary to decide whether Baggett re- fused other temporary employees with "quit slips" the right to register and be referred at the same time giving that right to Payne and Byrne. The Events of Monday, February 12, 1979 In the morning of Monday, February 12, about 25 temporary employees returned to the hiring hall and there presented their voluntary quit slips to Baggett. All were allowed to sign the registration book and all were given the applications for referral forms at the time that they signed the registration book. Some of the temporary employees executed the applications for referral and re- turned to the hiring hall in the late afternoon. Others did not return with the executed forms until the next day, Tuesday, February 13. In any event, the employees were told that their applications for referral were accepted and that Baggett would be in touch with them. The Grievance Meeting of Wednesday, February 14, 1979 Pursuant to Baggett's February 8 grievance filed with Sosh, a grievance meeting was held at the Dynalectric premises commencing in the mid-morning of Febrary 14, 1979. As a result of an all day grievance session, the parties agreed: (a) that the Union would waive further processing of the applications for referral; (b) Baggett would refer the temporary employees to work out of the hiring hall; (c) that the Union would waive any claim for backpay on behalf of the "terminated" temporary em- ployees; and (d) the Union would attempt to get mem- I Respondent's records (G.C Exh. 4) show that registrants who re- turned their executed referral applications on February 12 and 13 (other than Payne, Byrne, and Thorpe who were referred out on February 10) were referred back to Dynalectric effective February 14 and 15. The re- cords, apparently demonstrating actual referrals as early as February 12 for jobs on February 14 and 15. are not necessarily consistent with the fact, infra, that it was pursuant to a Fehruary 14 grievance meeting settle- ment that aggett referred the temporary employees out on the next day. February 15 bership for the temporary employees in a nearby local of the IBEW in Bolling Green, Kentucky, Local 828.12 As a result of the grievance meeting settlement, Bag- gett opened the hiring hall on Thursday, February 15, 1979, a day on which the hiring hall is normally closed, and referred out all the temporary employees who had signed the referral book on February 12 and 13. Discussion and Conclusions: Operation of the Hiring Hall Agreements establishing exclusive hiring halls which do not contain unlawful provisions on their face are not unlawful within the meaning of Section 8(b)(l)(A) and (2) of the Act. Indeed, this is the express holding of Local 357, International Brotherhood of Teamsters, Chauf- feurs. Warehousemen and Helpers of America [Los Angeles- Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961). t The instant agreement, with its nondiscriminatory pro- cedure giving preference to applicants referred out of the hiring hall, is not the subject of the complaint. The burden of proof is on the General Counsel to prove un- lawful operation of such a hiring hall and Respondent may defend on the ground that it was merely policing and enforcing the terms of the otherwise lawful agree- ment. See Boston Cement Masons and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Masons International Association. AFL-CIO (Duron Ma- guire Eastern Corp.), 235 NLRB 826 (1978). The gravamen of the pleadings (par. 5(b), (c), and (g)) and the General Counsel's proof is that Respondent failed and refused to register or refer the temporary em- ployees because they were not members of the Union. Baggett testified without contradiction that he refused to register or refer them because they were not properly terminated by the employer in that they did not have the correct termination slips at the time he refused to regis- ter them and that, in any case, his motivation at all times was to support and maintain the otherwise lawful hiring hall procedures as against Dynalectric's attempt to cir- cumvent them. The testimony of the General Counsel's witness, alleged discriminatee, Charles Payne, a tempo- rary employee, and of Woodson Sosh, vice president of Dynalectric, generally support Respondent's position. t 4 12 The Union was ultimately unsuccessful in gaining membership for the temporary employees in the Bolling Green IBEW Local. "' I have already observed that the Board rule, Member Jenkins dis- senting, permits preference in referral based on past experience with em- ployers signatory to a contract between the parties. Sachs Electric Compa- ny, 248 NLRB 669 (1980); Interstate Electric Company. 227 NLRB 1996 (1977). Again, the lawfulness of this contractual priority is not here in issue l I credit Nesier's testimony that in late June 1978, before Dynalectric hired him, he sought registration and referral from Baggett at the union hall. I further credit Nesler and the other General Counsel's witnesses over any Baggett denial that Baggett refused to let Nesler and other simi- lar applicants (Thorpe, Hawkins) register in July 1978 and suggested that they seek direct (i e, nonhiring hall referred) employment from Dynalec- tric and that when Baggett refused registration he told them that registra- tion would be futile because there were registrants ahead of them on the out-of-work list. If there were so many registrants on the books that Bag- get refused Nesler and other noinunion applicants the right to register, it is difficult to beliesve such registrants were not referred out, in the Continued 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodson Sosh testified, and I find, that his motivation to terminate the employment of the temporary employ- ees grew out of his dissatisfaction with the comparatively poor performance of employees referred out of the hiring hall and his desire to create permanent employees out of the temporary employees which he hired outside the hiring hall in or about the summer of 1978. Further, his motive in doing so was to maintain a corps of steadi- er employees that he was satisfied with as against the an- ticipated referral out of the hiring hall of employees who were "disruptive" in that they tended to quit after 2 or 3 days employment. Nothing the Union did up to that time disclosed an intent to bump the temporaries, according to Sosh. With plenty of work on hand for these tempo- rary employees, Cooper and Sosh manufactured a device and scheme to circumvent the terms of the collective- bargaining agreement to which they had agreed but which they found unsatisfactory. The scheme was to "terminate" (or thereafter to permit the "voluntary quit" of) employees in order to place them on the hiring hall register, get them referred back out to Dynalectric (at a time when there were no employees on the Union's hiring hall out-of-work register) and thereby "cement in" the temporary employees as permanent employees under the collective-bargaining agreement under whose terms these erstwhile temporary employees, once referred, would thereafter not be subject to replacement by subse- quently referred applicants out of the hiring hall. Baggett rightfully believed that this scheme and device was one designed to circumvent the hiring hall and to give prece- dence in employment and freedom from replacement to these temporary employees contrary to the terms of the collective-bargaining agreement. I conclude that the presence or absence of any particu- lar contractual nicety, such as properly executed quit or termination slips, insisted on by Baggett on February 9 as a reason to preclude registration, is a matter of little consequence. The only necessary conclusion, a conclu- sion which I draw from the uncontradicted evidence of the General Counsel's own witnesses, Woodson Sosh and Charles Payne, is that Dynalectric, through Sosh and Cooper, created a device to circumvent and undermine the otherwise lawful hiring hall procedures and the col- summer of 1978, to employers forced to advertise in newspapers because of the lack of electricians. In short, I conclude that Baggett refused to permit registration in order to insure that such applicants, not referred, would remain temporary employees of Dynalectric, thus subject to re- placement by applicants referred out of the hiring hall, under the terms sec. 6.08 of the collective agreement. Nesler and the other temporaries being nonmembers, I would find Baggett's June 1978 actions clearly suffi- cient to support an inference of subsequent discriminatory motivation. I cannot, however, transfer such inference on a per se basis to Baggett's ac- tions and reactions to Cooper's and Sosh's scheme in Fcbruary 1979 Thus, while I am fully aware that Baggett, to say the least, might not go out of his way to aid nonmember electricians, he did have an independent right to support and enforce the terms of the collective-bargaining agree- ment quite apart from any earlier unlawfully motivated acts. In the ah- sence of evidence demonstrating that his reactions in February were a mere continuation of his June actions. I do not believe that evidence sup- ports drawing such an inference. On this record, with NECA's and Dn- alectric's patent object of circumventing or destroying the hiring hall I am unwilling to infer that Baggett was even partially motivated by h- month old unlawful considerations in his February 1979 responses to Cooper and Sosh That he may have been "happy" in protecting the lawful hiring hall is not a legal detriment. lective-bargaining agreement which manifests those pro- cedures. Observance of contractual niceties, in this case, does not effect Respondent's statutory right. To permit the effectuation of such a device in a Board proceeding and to find that any particular act or failure to act by Respondent constituted a violation of 8(b)(l)(A) and (2) of the Act in its refusal to permit registration and referral pursuant to Dynalectric's scheme to undermine the hiring hall and the collective-bargaining agreement would be to exalt from over substance and to abuse the Board's processes. Indeed, absent preponderant, extrinsic evidence of Baggett's unlawful motivations in February 1979, whatever injury resulted to the temporary employ- ees might well be laid at Dynalectric's door under Sec- tion 8(a)() and (3) of the Act, for terminating them be- cause of their "temporary," i.e., nonunion, status and Dynalectric's desire to have them become union mem- bers and change their employment status contrary to the terms of the collective-bargaining agreement. That, how- ever, is a matter on which I need not pass. I conclude only that the evidence shows that Respondent was fully justified in refusing to register and refer out these tempo- rary employees when to do so would be to necessarily fail to observe the terms of the collective-bargaining agreement and to give referral preference to the tempo- rary employees (where there was no lack of work for them at the time of termination) over those who might thereafter be legitimately on the referral list and out of work, all because of a device and scheme created by Dynalectric and its NECA agent in order to thwart the ordinary, proper, and otherwise lawful exclusive hiring hall. In the presence of evidence that, outside the 10(b) period, Respondent was unlawfully motivated in refusing the register and refer nonunion applicants, but in the ab- sence of evidence, as here, demonstrating Baggett's or Respondent's unlawful motive to register or refer them in February 1979; and, indeed, in the presence of uncon- tradicted evidence showing a scheme by Dynalectric to circumvent the contract, and Respondent's reasonable steps to prevent fulfillment of that scheme, I conclude that Respondent acted lawfully, and was merely policing and enforcing the collective agreement, Boston Cement Masons, supra, and that it did not violate Section 8(b)(l)(A) and (2) as alleged in section 5(b), (c), and (g) of the consolidated complaint in refusing to register and refer out nonunion temporary employees in February 1979. In reaching the above conclusions, I am especially mindful of International Association of Bridge, Structural, etc., Iron Workers, Local 75, AFL-CIO (Bob C. Keith, an Individual Proprietor d/b/a Tyler Reinforcing), 232 NLRB 1194 (1977), enforcement denied 583 F.2d 1094, 1099 (9th Cir. 1978); see General Teamsters Local 959 State of Alaska, etc. (Northland Maintenance), 248 NLRB 693 (1980). There, the Board found an 8(b)(1)(A) and (2) vio- lation on the union's motivation in refusing to refer an employee (Franko), not in reliance on the lawful hiring hall contract, but on union animus based on invidious considerations. The Board found this consideration dis- positive also noting a disparate application of the con- tract. The court of appeals denied enforcement, rejecting 828 ELECTRICAL WORKERS, LOCAL 1701 the Board's delving into the employer's motivation since the union was otherwise acting pursuant to the manda- tory, not discretionary, terms of the contract in refusing referral. I am, of course, bound by the Board's view, Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963). In the instant case, as above, noted, however, I have concluded that the evidence of Baggett's apparently illegal motive in June 1978,15' of refusing to permit registration of non- union applicants, did not carry over into his February 1979 refusal. By February, the Cooper-Sosh design to undermine and obviate recourse to the normal workings of the hiring hall gave Baggelt a lawful, supervening reason to reject the registration of the nonunion, tempor- aries, a reason on which he, in fact, acted. Each case sails on its own bottom and I conclude that Baggett was not unlawfully motivated in February 1979, whatever his earlier actions in June 1978. Cf. Klate Holt Company, 161 NLRB 1606 (1966). Allegations Relating to the Journeyman's Test At the hearing as above noted, paragraph 5(d) of the complaint, with the General Counsel's consent, was dis- missed on Respondent's motion. That paragraph alleged that Respondent refused to give nonmember employees the journeyman's test, which test is a condition prece- dent to referral preference under the collective-bargain- ing agreement. There being no evidence in the record to support such an allegation, I granted Respondent's motion to dismiss. There exists, however, a further allegation in the con- solidated complaint, paragraph 5(e), that on or about March 24, 1979, Respondent administered to nonmember applicants a test, the journeyman's test, which was "unfair and discriminatory in nature and grading." At the conclusion of the General Counsel's case, Respond- ent moved to dismiss this allegation as well but, the Gen- eral Counsel having refused to consent to its dismissal, I was obliged to reserve decision thereon. 6 At the hearing, the General Counsel admitted that there was no evidence in the record with regard to unfair grading. The evidence of record indicates only that members and nonmembers took the test; that non- members and members failed the examination on March 24; and that members from time to time passed the exam- ination prior to March 24. The General Counsel's wit- ness, Charles Payne, an electrician with considerable ex- perience, took the test on March 24 with other members and nonmembers and failed the test. He testified, without contradiction, that the test was "fair" notwithstanding his failure to pass the examination. On such uncontradict- ed testimony and on the failure of the General Counsel to adduce other evidence showing that the March 24, 1979, examination was in some way unfair, I recommend that this paragraph, 5(e), be dismissed. In view of Payne's testimony, the General Counsel's attempt to in- troduce in evidence other examinations which would '" Under Local Lodge 1424 v NL.RR. 362 U.S 411. 416 (1960), Bag- gett's June conduct outside the l(Xh) period may he used to ascertain his motive for action within the I()(b period ' Local Union No. 195, United .4 ssociuit)nl of Journeymen. etc (Stone & Webster Engineering Corporation), 237 NL.RB 931 (1978) show, perhaps, that the March 24 examination was more difficult than the previous examinations became entirely irrelevant. The irrelevancy stems from the fact that Payne testified that the March 24 examination was "fair." If that examination was "fair," then the nature of the proper examinations would be irrelevant. Had Payne testified to the contrary., then the prior examinations might well be relevant to show, by comparison, some in- vidious difficulty in the March 24 examination. But in view of Payne's testimony of the fairness of the March 24 examination, I recommend that the allegation be dis- missed in its entirety. 7 The Application for Referral Form and the Union's February 8 Grievance Paragraph 5(') of the consolidated complaint alleges that on or about February 10, 1979, and thereafter, Re- spondent required the nonmember applicants for referral to complete the complex and and lengthy application for referral questionnaire as part of their application for membership, which questionnaire had not been previous- ly required. Baggett's uncontradicted testimony demon- strates that, although the questionnaire form existed prior to February 10, he inaugurated its use among the "tem- poraries" because he had heard rumors that the tempo- rary employees were being encouraged to falsify their prior work experience records in order to justify their in- clusion in group III or even group IV on the register. Thus Baggett testified that he inaugurated the use of the form in order to check out the veracity of the regis- trants. Rather than finding any discriminatory motive on behalf of Respondent, I conclude that Baggett's use of the questionnaire was fully justified in view of the un- contradicted testimony that Cooper and Sosh recom- mended and encouraged the temporary employees to fal- sify their work records in order to gain access to the re- ferral procedures and preferred contract groupings. The General Counsel argues that the form was inaugurated to impede the applicants from registering. I reject the argu- ment and the assumption that Baggett heard of the sug- gestions of falsification only when Crawford and Sosh made them February 9. I therefore recommend that paragraph 5(f) be dismissed in its entirety in that there was no showing of any discriminatory motive in the use of the form to exclude the temporary employees, but rather to ensure the lawful operation of the hiring hall by preventing intentionally false information from being used by the temporary employees as a basis for gaining preferred referral status, thereby placing them in an un- merited advantageous position over other referral regis- trants. Thus, on my above findings and conclusions herein, I recommend that paragraph 5, consisting of its subparts (a) through (h), be dismissed in entirety.'8 7 Compare Local Lnion 633. United .4ssociaton of Journeymen and Ap- prenricei of the Plumbing and Pipefitting Industry of U'nited States and Canada, 4FL- CO (B d 14' Construcion Companv), 249 NLRB 67 (1980) is The General Counsel misconstrues aggelt's testimony regarding the use of the form ttis sole reason. clearly expressed. was due to an at- temnpt i "circumvent the referral procedure There is nothing "vague" or "unresponsive" in such a reply 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 6(a) alleges that, in violation of Section 8(b)(1)(A) of the Act, Respondent unlawfully sought to file and process a grievance relating to the temporary employees who were "discharged" on February 7, 1979, despite the fact that the said temporary employees did not desire such grievances to be filed and objected there- to. In view of my findings that the Union was fully justi- fied in refusing to register and refer these employees pur- suant to the scheme and device of Dynalectric and NECA Manager Cooper, I further conclude that Re- spondent's attempt to counter this device by filing a grievance on February 8, 1979, against Dynalectric for having attempted to terminate these employees and seek- ing their restoration in employment with backpay was in no way a violation of Section 8(b)(1)(A) of the Act. I therefore further recommend that Section 6(a) of the consolidated complaint be dismissed. The May 3, 1979, Discharges of the Charging Parties and Respondent's Conduct With Respect Thereto The consolidated complaint alleges and Respondent admits that on May 3, 1979, the Charging Parties, Larry Nesler and Floyd Robbins, were terminated by Dynalec- tric. The evidence shows and the General Counsel does not deny that they were terminated because, contrary to an outstanding and longstanding Dynalectric posted work rule, they had failed to properly care for certain Dynalectric equipment. Thus, the uncontradicted evi- dence shows that Floyd Robbins and his workmate, Larry Nesler, on May 3, 1979, failed to securely store their one-half inch drill motor and that Foreman James Hagen discharged both of them for that reason. Floyd Robbins testified that Hagen said that both Nesler and Robbins were responsible for the tools, whether or not they were both present at the time that the tools were supposed to have been properly locked away. On May 4, 1979, Robbins and Nesler filed grievances with Baggett and told Sosh of the event. Baggett told them that he would be in touch with them in a few days. Both of them signed the registration book as being out of work. Baggett then communicated with NECA Manager Cooper and a grievance meeting for May 8 was agreed upon. Baggett investigated the grievances by talking with the foreman (Hagen) and shop steward (Thomp- son). Sosh also investigated the matter. Both Baggett and Sosh concluded that the grievances were without merit. On May 8, the labor management committee, pursuant to section 1.05 of the collective-bargaining agreement, was convened and followed its ordinary procedure in re- solving the Robbins and Nesler discharges and the griev- ances based thereon. In fact, Robbins and Nesler, neither being union members, were individually called into the committee meeting (composed of equal numbers of union and employer nominees) and they gave their versions of the discharges to the committee. NECA Manager Cooper interrogated them individually before the com- mittee and each was required to leave after giving his version. Baggett took no position.19 The committee 19 It is not disputed that the record herein shows that, in the past, the Union has followed the same procedure in grievances where union mem- members were unable to agree on a solution and the grievants were told to go home. By mid-June, Baggett told Robbins that the committee was still in deadlock on the solution of their grievances and that he would be in touch with them. At or about this time, Robbins had a conversation with Cooper in which Cooper told him that the Company's position was to put the employees back to work with a -week sus- pension and that the Union refused this solution. Cooper gave no reason for the Union's refusal. There was a dispute in the testimony as to whether, at the May 8 grievance proceeding, the Company's position was to put the employees back without backpay or whether in fact it urged that the parties agree to put the employees back with the I-week suspension. It is undis- puted, however, that, in a later grievance meeting be- tween the Union and Cooper (not convened for the pur- pose of the Robbins-Nesler discharges), Cooper insisted that the record of that grievance session show that it was the Employer's position that the employees be reinstated with the -week suspension. Baggett testified that this was the first occasion on which the Employer took that position, and that the Employer's previous position was that the employees be reinstated without backpay. Baggett testified that, with regard to either of the above Dynalectric positions, the Union refused to permit such action. The Union refused to consent with regard to the Company's position that the employees be reinstat- ed without backpay, because, if no backpay was granted, then the employees according to the Union had been "terminated" and if "terminated" they must register at the hiring hall and go through the hiring hall procedure for further employment since other registrants would be present on the out-of-work list. To permit their immedi- ate reinstatement at that time would clearly interfere with the regular operation of the hiring hall since out-of- work registrants, already registered on the hiring hall re- ferral lists, would be discriminated against if these termi- nated employees were immediately reinstated ahead of those on the referral lists. Baggett testified that if the Employer desired to reinstate them with backpay then the Union would be willing to waive any requirement of registration in the hiring hall because the Union would take the position that there was no real termination and that the Employer's action was a "mistake" in view of the Employer's willingness to give full backpay and rein- statement. With regard to the "alternate" Company position (which, according to Baggett, first occurred on June 18 rather than in the May 8 grievance meeting), that the Company reinstate Robbins and Nesler with a I-week "suspension," the Union took the position that there was no provision in the collective-bargaining agreement for "suspension" but only for "termination." Baggett credi- bly testified that, as in the above-described case of rein- statement without backpay, to permit the Employer to "suspend" an employee and then to recall him without backpay would similarly be in violation of the ordinary bers were disciplined (Hodgesi It also actively supported grievances of nonmembers (Welborn). See the GC. Exhs. 11 and 21 There was thus no overt disparate treatment. 830 ELECTRICAL WORKERS. LOCAL. 1701 and regular use of the hiring hall procedure. Thus, for instance, an employer with a favored employee, who had no economic use for the particular employee for a period of a few days, could "suspend" the employee without pay and then "reinstate" him whenever the need arose thereby preventing employees who were properly regis- tered in the hiring hall from being referred out in due course when work arose. Thus, the "suspended" employ- ee would gain an unwarranted preference over employ- ees properly registered at the hiring hall. In any event, the parties to the Nesler-Robbins griev- ances remained deadlocked and agreed to take the matter to the final and binding step in the contract grievance procedure: recourse to the Washington, D.C., based committee on industrial relations. At the August 1979 argument at the meeting of the committee for industrial Relations (CIR), NECA Man- ager Cooper argued fr Dynalectric and Baggett argued for the Union. The CIR, composed of equal members of Union and management, is obliged to give a unanimous decision. In the case of the Robbins-Nesler grievance, the CIR unanimously held that the discharges were in conformity with the terms of the collective-bargaining agreement and thereby upheld the Union's position. At the hearing, the General Counsel argued, under subparagraph 6(e) of the complaint, that the Union, by refusing to consent to the Employer's offer of reinstate- ment of Robbins and Nesler, contrary to the express desire of these employees, violated Section 8(b)(1)(A) of the Act apparently because the Union, in view of their nonunion status or otherwise, was not giving them full and fair good-faith representation (as alleged in par. 6(g) of the complaint). Some evidence in support of that posi- tion, according to the General Counsel, exists because, notwithstanding that each of the employees was, in con- formity with the ordinary procedure at the labor man- agement committee hearings, permitted to state the facts and argue in his own behalf, the Union failed to support the employees' request for reinstatement without back- pay. Baggett testified, without contradiction, that, as with other union and nonunion employees in discharge griev- ance sessions, the Union permitted the employees to write out their own grievances and present them without the Union intervening actively on their behalf. The Union's position was that the purpose of its presence at the grievance meeting was to uphold the terms and con- ditions of the collective-bargaining agreement. 20 The General Counsel did not adduce evidence of animus or disparate treatment of, cf. International Association of Bridge, etc., Iron Workers (Tyler Reinforcing) supra, or other evidence contrary to the Union's position that, above all, its object was to sustain the terms and condi- tions of the contract, thereby representing all employees rather than to undermine, and go contrary to, the terms and conditions of the contract, Boston Cement Masons Union No. 534, supra. Such would be the effect, howev- er, if the Union sought reinstatement of Robbins and Nesler on terms at variance with the merits of the griev- :' The Union hasing concluded after insestigation that the grievances were without merit, it could hardly have openly supported hem ances and both with past practice and with the rights of all employees under the collective-bargaining agreement. Thus, in the absence of disparate treatment or other evidence of pretext, the fact that Respondent (a) refused to permit the employees to be either reinstated without backpay or "suspended" for a week and then reinstated, and (b) did not act as their advocate at the grievance hearing does not, on this record, indicate either unlawful motivation, because of the employees' nonunion status, or of failing to act fairly or in good faith. Rather, there is nothing in the evidence to suggest that the Union was acting in bad faith in seeking to represent the interest of the entire unit of employees by forcing "suspended" em- ployees back to the hiring hall for registration, rather than giving them the right to immediate reemployment or reinstatement on terms and conditions not available to employees properly registered and referred out of the hiring hall. It would seem clear, therefore, that to sup- port the position of the individual grievant herein rather than to support, as Respondent did, the contractual pro- cedure of the hiring hall, would be to give an advantage to the grievant over to the persons ordinarily using the registration and referral procedure. Absent pretext, there is nothing inherently unlawful in the Union's position in supporting the contractual rights of all employees and, at the same time permitting the individual grievant to give his version of the facts, thereby giving the labor manage- ment committee an opportunity to reddress their dis- charges. That the individual may suffer is not control- ling, even though the Union's position is contrary to the grievant. In fact, in seeking to support the contract and its referral system, thereby supporting all employees, Re- spondent is acting directly in support of the obligation imposed on a statutory representative to represent all employees without hostile discrimination, fairly, impar- tially and in good faith, Wallace Corporation v. .L.R.B., 323 U.S. 248 (1944): Vaca v. Sipes, 386 U.S. 171 (1967): Steele v. Louisville and Nashville Railroad, 323 U.S. 192 (1944). The Union's failure to support the "suspension" of Robbins and Nesler in no way undermines the obliga- tion on the Union to act in good faith, free of invidious classification, Miranda Fuel Co.. Inc., 140 NLRB 181 (1963), and with "honesty of purpose" in representing the interest of all employees pursuant to the collective- bargaining agreement rather than to advance the interest of certain employees over the group. Ford Motor Compa- ny v. Huffman, 345 U.S. 330, 338 (1953).2 1 21 1 swould distinguish, for instance, Truck Driverrv etc. Local .i. 705, etc. (Aivociated Transport. Inc.). 209 NLRB 292 (1974). enfd sub nomr Kesner v NV.L.R.B., 532 F2d 1169 (7th Cir 1976) There, the union was required to support the grievant, as an advocate pursuant to its duty of fair representation and not to undermine the grievant's position before the joint grievance board by stating disbelief in the validity of the claim There, however, the union undertook to present the grievance while here, the disparity between the Union's position and the grievant's inter- ests determined that the Union would not represent him but would permit him to make his own presentation to the committee Moreover, there unlike here, the union agent there disparaged the grievant while here there is no such evidence Further, here, the procedure (suspension) which ould have supported the grievant as rejected b) the ultimate arbiter of contract rights. the Commitltee on Industrial Relations Had Baggett acquiesced in the Employers "susperlsion" offer and the grie- ant s position,. quaere. ould out-of-uork registrants In the hiring hall Con tinued 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found, therefore, that the Respondent Union did not act unlawfully in the position that it took with regard to the grievances relating to the discharges of Robbins and Nesler, I conclude that, in the absence of other evidence relating to Respondent's bad faith or bad motive, the General Counsel has failed to prove that Re- spondent, in failing to acquiesce in the Employer's offer to reinstate the grievants without backpay or to merely suspend them for a week, violated Section 8(b)(l)(A). In addition, I conclude, in the presence of the fact that Nesler and Robbins were encouraged by Baggett to pres- ent their cases to the committee and did so, and, in the absence of other evidence, that Respondent's activities with regard to the grievances filed by Robbins and Nesler in no way demonstrated that Respondent acted in bad faith or from improper motive, or that Respondent in anyway failed to fairly and in good faith represent the employees who filed said grievances. I therefore recom- mend that paragraph 6 and its constituent subparts (relat- ing to Respondent's alleged discriminatory motive in fail- ing to properly represent and process the grievances of the employees because they were not dispatched through the hiring hall or because of Respondent's bad faith or because of Respondent's improper motivation) be dis- missed in its entirety as unproven. Finally, while the General Counsel attempted to show Respondent's animus against nonmembers by virtue of testimony relating to the actions of the chairman of its executive board, Kelly Brey, none of his acts are alleged as unfair labor practices. There is no showing that Brey's temperamental outbursts against employees' work per- formance excluded union members or, in the alternative, were addressed solely to nonmember, temporary employ- ees. Rather, Brey's foul outbursts related generally to employees' alleged incompetence in performing their work rather than to their union status. In any event, even were I to credit some of the General Counsel's wit- nesses testimony that Brey referred to various acts of in- competence as flowing from the fact that they were holders of "white tickets" (nonunion referral slips), 22 I would conclude that Brey's statements were random ac- cusations directed at the temporary employees' attempts to unlawfully (in his view) gain membership in Respond- ent by virtue of the employer's devices rather than to ex- clude them from employment or from use of the hiring hall. There is no evidence that his animus related at all to issues of employment. Further, however, there was no proof that, for purposes of this proceeding, Brey, admit- tedly chairman of Respondent's executive board in any way performed functions which controlled the referral of employees or in any way acted as an agent for Re- spondent in impeding nonmember access to registration and referral in the hiring hall. Were there any evidence that Brey or any other member of Respondent's execu- reasonably object to bypassing their positions on the out-of-work list by the device of "suspension" and, in view of the Committee on the Indus- trial Relations conclusion, assert a breach of Baggett's obligation to rep- resent them 22 The credited evidence, however, shows that all referral slips were white. tive board participated in any way in the referral proce- dure, then his statements might well be viewed, different- ly. Cf. United Brotherhood of Carpenters, etc., Local Union No. 1780, 244 NLRB 277, fn. 6 (1979). Contrary to the General Counsel, Brey's hostility on the job related on this record, to incompetence. CONCLUSIONS Oi LAW 1. Dynalectric Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO, Local 1701, the Respondent herein, is a labor organization within the meaning of the Section 2(5) of the Act. 3. A preponderance of the credible evidence shows that, at all material times, neither Respondent's operation of its hiring hall nor its conduct with regard to its refusal to register and refer nonmembers of Respondent to em- ployment by Dynalectric Company, or any other em- ployer, was based on discriminatory or otherwise unlaw- ful procedures in its hiring hall or other discriminatory conduct in violation of Section 8(b)(l)(A) or 8(b)(2) of the Act. 4. The General Counsel has failed to prove that at any material time, Respondent has refused to register or refer nonmembers of its local organization or the International Brotherhood of Electrical Workers for permanent em- ployment with Dynalectric Company in violation of Sec- tion 8(b)(1)(A) and (2) of the Act; nor has Respondent refused to administer to nonmembers a journeyman's test which was unfair or discriminatory in nature or grading; nor has it required that nonmember applicants for refer- ral complete complex and lenghty questionnaires as part of their application for union membership, not previously required, in violation of Section 8(b)(1)(A) and (2) of the Act. 5. The preponderance of the credible evidence fails to show that Respondent engaged in discriminatory, unlaw- ful, or bad-faith representation of Larry Nesler, Floyd Robbins, or any other employee because of their non- membership in Respondent, because of their failure to be referred out of the hiring hall, or because of any other invidious or unlawful reason, in violation of Section 8(b)(1)(A) of the Act. Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 3 It is hereby ordered that the consolidated complaint herein be dismissed in its entirety. 2:' 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. 832