Local 466, Int'l Brotherhood of Electrical, Etc.

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 466, International Brotherhood of Electrical Workers, AFL-CIO [Moore Electric Company ] and Charles F. McGraner and The West Virginia-Ohio Valley Chapter, National Electrical Contractors Association , Charleston Divi- sion, Party to the Contract. Case No. 9-CB-181. March 2,1960 DECISION AND ORDER On September 30, 1959, Trial Examiner Owsley Vose issued his Intermediate Report in this case, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(b) (1) (A) and 8(b) (2) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, exceptions to the Intermediate Report were filed by the Re- spondent and the Charging Party.' A supporting brief was filed by Respondent. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner,2 with the following addition and modification. 'The charges in this proceeding were filed by Charles F . McGraner, an individual, alleging, among other things, certain violations of Section 8(b) (1) (A ) and 8(b) (2) relating to McGraner's discharge. However, the complaint issued by the General Counsel made no mention of McGraner's discharge, and this matter was not litigated at the hearing or referred to in the Intermediate Report. In his exceptions , McGraner urges that the Board review the record and make some disposition in his behalf. However, Section 3 ( d) of the Act vests the General 'Counsel with final authority to issue and prosecute complaints , and the Board has no power to make unfair labor practice findings on matters not alleged as such by the General Counsel or litigated at the hearing We therefore find no merit in the Charging Party 's exceptions . Cf. Anderson, Clayton & Co. Foods Division, 120 NLRB 1208, footnote 1. 2In adopting the Trial Examiner 's finding of an unlawful hiring and referral arrange- ment, we do not rely on the incidents relating to the unidentified nonmember job appli- cants referred by Moore to Respondent's business manager, Janney , for clearance The record contains no evidence that any of these applicants actually approached Janney for clearance and were refused , but only that they did not subsequently report for em- ployment with Moore. Member Fanning agrees with the majority 's finding that Respondent violated Section 8(b) (2) by maintaining in its 1957 and 1958 contracts specific closed -shop provisions regarding temporary power and lighting work However , he does not believe that the evidence supports the majority 's additional finding of an unlawful hiring arrangement between Respondent and Moore . Accordingly , he does not join in that finding of the majority, or in that part of the order requiring Respondent to refund to employees of Moore, other than those engaged in temporary work, moneys unlawfully exacted as a result of Respondent's alleged unlawful arrangement with Moore. 126 NLRB No. 110. LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 913 In passing on the validity of Respondent's May 31, 1958, contract, the Trial Examiner noted that Respondent had struck the prefix "IBEW" from the phrase "Journeyman Wiremen" in certain sections of that contract , but at the same time had retained in section 26-c of article III the provision that all temporary light or power used prior to the letting of an electrical contract was to be installed and main- tained by "IBEW" members. While he concluded that this language was inadvertently retained in section 26-c, and treated that section as if the reference to "IBEW" had been deleted, he nevertheless found that the provision was unlawful under the Board 's decision in Anchor Welding cC Manufacturing Company, et al.' We agree with this latter finding of illegality. We do not, however, adopt the Trial Examiner's conclusion that an inadvertent failure to delete an unlawful provision relieves that provision of its otherwise clear illegality . Accordingly, we find article III, section 26-c of the May 31 , 1958, contract to be unlawful as specifically providing for closed-shop conditions in vio- lation of Section 8 (b) (2) of the Act .4 ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Union No. 466, International Brotherhood of Electrical Workers, AFL-CIO, and its officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from : (a) Causing or attempting to cause members of The West Vir- ginia-Ohio Valley Chapter, National Electrical Contractors Associa- tion, Charleston Division, or nonmember signers of Association con- tracts, or any other employer, to discriminate against employees by requiring in collective-bargaining agreements that all temporary elec- trical work be performed by Respondent's members, except as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) Entering into, maintaining, or otherwise giving effect to any agreement, arrangement, or understanding with Moore Electric Com- pany, or with any other employer, whereby members of Respondent are given preference in hiring, or in any other manner causing or attempting to cause discrimination against employees, except as au- thorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (c) In any like or related manner restraining or coercing the employees of The West Virginia-Ohio Valley Chapter, National 123 NLRB 1877 See the Trial Examiner's finding that an identical provision in Respondent's May 17, 1957, contract provided for unlawful closed-shop conditions. 554461-60-vol. 126-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electrical Contractors Association, Charleston Division, or of non- member signers of Association contracts, or any other employer, in the rights guaranteed in Section 7 of the Act, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Refund to all employees who were employed during the period beginning December 12, 1957, and ending on November 5, 1958, on temporary power and lighting work on construction projects by members of The West Virginia-Ohio Valley Chapter, National Electrical Contractors Association, Charleston Division, and by non- member signers of the Association's 1957 and 1958 contracts, all moneys unlawfully exacted from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (b) Refund to all employees employed by Moore Electric Com- pany during the period beginning December 12, 1957, and ending November 5, 1958, all moneys unlawfully exacted from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or. its agents, for examination and copying, all records, reports, out-of-work lists, and other documents necessary to analyze the amounts of moneys due and the rights of employment under the terms of this Order. (d) Post in the Respondent's business offices and meeting halls copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by said Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Ninth Region signed copies of the notice attached hereto marked "Appendix," for posting at the offices of members of The West Virginia-Ohio Valley Chapter, National Electrical Contractors Association, Charleston Division, and nonmember signers of Association contracts, said companies 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." LOCAL 466 , INT'L BROTHERHOOD OF ELECTRICAL , ETC. 915 willing, in places where notices to the companies' employees are customarily posted. (f) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 466, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO; TO ALL EM- PLOYEES OF MEMBERS OF THE WEST VIRGINIA-OHIO VALLEY CHAPTER, NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, CHARLESTON DIVISION, AND EMPLOYEES OF NONMEMBER SIGNERS OF ASSOCIATION CONTRACTS; AND TO ALL APPLICANTS FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act; we hereby notify you that: WE WILL NOT cause or attempt to cause members of The West Virginia-Ohio Valley Chapter, National Electrical Contractors Association, Charleston Division, or nonmember signers of As- sociation contracts, or any other employer, to discriminate against employees by requiring in collective-bargaining agreements that all temporary electrical work be performed by Respondent's mem- bers, except as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT enter into, maintain, or otherwise give effect to any agreement, arrangement, or understanding with Moore Elec- tric Company, or with any other employer, whereby members of Respondent are given preference in hiring, or in any other manner cause or attempt to cause discrimination against employees, ex- cept as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT, in any like or related manner, restrain or coerce the employees of The West Virginia-Ohio Valley Chapter, Na- tional Electrical Contractors Association, Charleston Division, or of nonmember signers of Association contracts, or any other employer, in the rights guaranteed in Section 7 of the Act, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL refund to all employees who were employed during the period beginning December 12, 1957, and ending on Novem- ber 5, 1958, on temporary power and lighting work on construc- tion projects by either the members of The West Virginia-Ohio 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Chapter, National Electrical Contractors Association, Charleston Division, or by nonmember signers of the Associa- tion's 1957 and 1958 contracts, all moneys unlawfully exacted from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." WE WILL refund to all employees employed by Moore Electric Company during the period beginning December 12, 1957, and ending November 5, 1958, all moneys unlawfully exacted from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." LOCAL UNION No. 466, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated- --------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, in which all parties were represented by counsel , was heard by the Trial Examiner in Charleston , West Virginia, on July 14, 1959, upon the com- plaint of the General Counsel and answer of Local Union No. 466 , International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 466 . Counsel for both parties presented oral argument and counsel for the Respondent has filed a brief. The complaint raises two main questions in this case. The first is whether Local 466 has entered into and enforced certain provisions in collective -bargaining con- tracts with The West Virginia-Ohio Valley Chapter, National Electrical Contractors Association, Charleston Division, which allegedly established closed-shop conditions for hiring men for temporary power and lighting work , thereby violating Section 8(b)(1)(A ) and 8 (b)(2) of the Act. The second question is whether Local 466 has entered into, and maintained, with members of the Association , an exclusive referral arrangement under which it was contemplated that only members of, or those approved by, Local 466, would be referred for employment, thereby further violating Section 8 (b) (1) (A) and 8 (b) (2) of the Act. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD The Association is a group of electrical contractors in the Charleston , West Vir- ginia, area, which bargains collectively with Local 466 on a multiemployer unit basis. The membership of the Association fluctuates slightly from year to year. During the period covered by the complaint herein, included among the member- ship were Moore Electric Company, Schoolfield -Harvey Electric Company, South Charleston Electric Company, Electric Supply Company in Dunbar , Bayliss and Ramey, and Damron Electric Company .' Moore Electric Company, during the year ending May 31, 1958, performed services for customers outside West Virginia valued in excess of $194,000, and during the same period purchased almost $200,000 worth of materials and supplies, which were shipped to it from outside West Vir- ginia. On these facts I find that the assertion of jurisdiction is appropriate with I All these employers were not members during the entire period covered by the com- plaint. Damron had only recently become a member, and Moore and the firm of Bayliss and Ramey had dropped out by the time the 1959 contract was executed. LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 917 regard to unfair labor practices affecting the employees of members of the Association.2 II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, and Local 466's answer admits, that it is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The agreements of May 17,1957, and May 31, 1958 On May 17, 1957, the Association and Local 466 entered into a collective- bargaining contract covering the period beginning June 1, 1957 , and ending May 31, 1958, hereinafter called the 1957 contract. Other local electrical contractors, al- though not members of the Association , also signed the contract.3 In addition to a valid union-security clause 4 and various clauses covering wages, hours, and work- ing conditions, the contract contains certain provisions, emphasized in the quotation below, which the General Counsel contends are unlawful per se. These provisions are as follows: ARTICLE Ill SEC. 28. All temporary power and lighting on construction jobs shall be installed and maintained by IBEW Journeymen Wiremen. * * * * * * * SEC. 28-C . When there is any temporary light or power used for any purpose prior to the letting of the electrical contract such temporary power and lighting shall be installed and maintained by members of the IBEW in the employ of an electrical contractor. SEC. 28-D. When the Employer who is awarded the electrical contract start- ing work on the job and during the time said Employer has electrical workers, no temporary work will be required except in the following instances: (1) When the temporary lighting and/or power consists of twenty-five (25) outlets or twenty-five (25 ) lights or more, or twenty-five (25 ) horsepower or more, IBEW Journeymen Wiremen shall be employed at all times when any of the above items are in use. All temporary work shall be installed and maintained, moved and removed by IBEW Journeymen Wiremen . [Emphasis supplied.], Article III of the 1957 agreement also contained the following provision which is not alleged to be per se violative of the Act: SEC. 9. On any job requiring three or more journeymen one shall be desig- nated as Foreman by the Employer. An additional Foreman shall be designated by the Employer for each additional ten journeymen required on any job. When two or more Foremen are required on any job, one shall be designated by the Employer as the General Foreman , and shall receive the General Fore- man's rates. All Foremen must be members of the IBEW in good standing. Foremen shall not be permitted to work with tools after being responsible for six men including himself. [Emphasis supplied.] 9 Cf Harlan B. Browning and Roy J. Ra€eo d/b/a Cottage Bakers , 120 NLRB 841, 842, enfd , 268 F 2d 938 (C A 10) ; Merrtitt-Chapman and Scott Corporation, 118 NLRB 380, 385-386 , enfd. 259 F. 2d 741 (C.A. 7). 3 These included Hunt Electric Company, Ostrin Electric Company, Doran Frame, McCorkle Light and Electric Company, and Damron Electric Company. • The clause reads as follows : ARTICLE II Employer Rights-Union Rights Section S. All employees who are members of the Union on the effective date of this Agreement shall be required to remain members of the Union in good stand- ing as a condition of employment during the term of this Agreement. New em- ployees shall be required to become and remain members of the Union in good standing as a condition of employment on the thirtieth (30th) day following the date of their employment or the effective date of this agreement, whichever Is later. Any such workmen shall receive at least the minimum wages and work under the conditions of this Agreement. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relevant in connection with the allegations of the complaint that Local 466 entered into an illegal exclusive referral arrangement is the following provision of the 1957 agreement: SEC. 20. On jobs employing twenty-five (25) or more electrical workers, one shall be designated as full time Safety Inspector and Shop Steward, and will be paid Journeymen's rate. On jobs employing twenty-four (24) elec- trical workers or less, Shop Steward shall be allowed sufficient time during working hours to perform such duties. At no time shall a Job Steward be discriminated against for the faithful performance of his duties. He shall remain on the job until the completion unless removed by the Business Manager for a cause, however, should the Employer find a Steward's actions objection- able, his case shall be disposed of by the Joint Conference Committee. A new contract for the following year was signed by the parties on May 31, 1958, hereinafter called the 1958 contract. As was the case with the 1957 contract, non- members of the Association also signed the 1958 contract.5 Continued without change in the new contract were Article 11, section 3, the union-security clause; article III, section 9, requiring all foremen to be members of the Union; 6 article III, section 20, relating to stewards; 7 and article III, section 28-C requiring tem- porary power and lighting to be installed and maintained by members of the IBEW.8 The designation "IBEW" preceding "Journeymen Wiremen" was elimi- nated from the revised sections 28 and 28-D of article III (sections 26 and 26-D in the new contract). The pertinent portions of the revised provisions read as follows in the new contract: SEC. 26. All temporary power and lighting on construction jobs shall be installed and maintained by Journeymen Wiremen. SEC. 26-D. All temporary work shall be installed and maintained, moved and removed by Journeymen Wiremen. B. The addendum of November 5, 1958, and the agreement of May 31, 1959 By an addendum thereto, the parties in effect eliminated the closed-shop provisions of the agreement of May 31, 1958, substituting in place thereof provisions estab- lishing an exclusive referral procedure by virtue of which the members of the Association agreed to obtain all their employees through Local 466. Nonmembers of the Association also signed the addendum. The addendum contained the provi- sions assuring the nondiscriminatory operation of the referral procedure which the Board deemed essential in the.Mountain Pacific case .9 This addendum was incor- porated verbatim in an agreement entered into on May 31, 1959, in which these parties, in referring to "Journeymen Wiremen," eliminated the designation "IBEW," and omitted the provision requiring all foremen to be members of Local 466. The validity of the addendum and of the 1959 contract is not attacked in these pro- ceedings. C. The hiring practices of the parties during the pelriod the 1957 and 1958 agree- ments were in effect Moore Electric Company was a member of the Association during the period the 1957 and 1958 contracts were in effect. These contracts as noted above, contained closed-shop provisions, obligating association members to hire IBEW members only 8 These included Bayliss and Ramey and Schoolfield Appliance & Service Co, who had dropped out of the Association, Hunt Electric Company, Ostrin Electric Company, Doran Frame, and McCorkle Electric Company. 0 Article III, section 7 in the new contract 7 Article III, section 18 in the new contract. 8 Article III, section 26-C in the new contract. e In Mountain Pacific Chapter of the Associated General Contractors etc, 119 NLRB 883, the Board, after full consideration of the problem, held that exclusive hiring agree- ments inherently tend to encourage union membership in violation of the Act. However, the Board concluded that this illegal aspect of such agreements could be neutralized and such agreements rendered lawful if they explicity set forth the following safeguards : (1) The selection of applicants for referral to jobs shall be based on objective criteria and shall specifically reject any aspect of union membership as a basis for selection ; (2) the employer retains the right to reject any applicant referred; and (3) copies of the referral procedure be posted by the parties in appropriate places in their offices. LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 919 for temporary power and lighting work on construction jobs. Harry B. Moore, the president of the Company, was president of the Association in 1958. The Moore Electric Company obtained all its employees through the office of the business manager of Local 466. As required by the agreements, Moore's foremen were all members of Local 466. Moore's foremen were all empowered to hire and fire and did substantial hiring. Local 466, in response to requests from Moore, furnished none but members of Local 466, if they were available. At no time covered by the record herein did Local 466 refer, nor did Moore employ, nonmembers of the IBEW. On occasion, when no members of Local 466 were available, Moore utilized members of other locals of IBEW from outside the area. The General Counsel failed to adduce any evidence concerning the participation of Local 466 in any arrangement for an exclusive referral system with the Association or any of its members other than Moore, aside from the closed-shop provisions of the 1957 and 1958 contracts. Nor does the record contain any showing whether the foremen of these other contractors do any hiring. Harry B. Janney, the business manager of Local 466 during most of the period covered by the 1957 and 1958 agreements, testified that he at no time requested any employer to abide by the contractual provision requiring foremen to be members of the IBEW. Harry B. Moore, the president of Moore, on the other hand, testified that the contract provision in question "certainly was" enforced. I credit Moore's testimony in this regard and find that this provision was enforced at least as to Moore Electric Company. Business Manager Janney further testified that prior to the execution of the November 5, 1958, addendum he operated a nonexclusive referral system for the convenience of Association members, and that it was run on a nondiscriminatory basis. According to Janney's testimony, no nonmembers ever sought to be listed with him for employment. Donald Lane, general foreman for Moore and a member of Local 466, testified in effect that one or two nonmembers of Local 466 called him for jobs, that he referred them to Janney, and that subsequently Janney asked him about one of the men. This nonunion man was not referred to the job by Janney, although Lane had a request in for men at that time which remained unfilled. I credit the testimony of Lane, above related, and insofar as Moore is concerned, reject Janney's testimony to the effect that he operated on a nondiscrim- inatory basis in referring men for jobs. Janney's testimony in this regard is belied by his action in response to requests from Moore, in referring only IBEW members for jobs. D. Local 466's bylaws Consideration of the Respondent's bylaws is helpful in evaluating Local 466's conduct in this case. Under the bylaws, membership in Local 466 is open to apprentices who have "worked six months under the supervision or jurisdiction" of Local 466 (article XIV, section 2). "Instruction of apprentices" is "under the full supervision of the Apprenticeship Training Committee" of the Union (article XIV, section 4). Apprentices are usually required to "serve four years before becoming eligible to take the journeyman's examination" (article XIV, section 3). Local 466's bylaws contain various provisions which render its members subject to its discipline. Employees violating Local 466's bylaws or any approved agree- ments or working rules of the Local can be brought to trial by the executive board. It is empowered to "administer such discipline as it deems proper" (article XV, section 1).10 The bylaws contain other controls to insure that members remain in good standing with the Union. The business manager of the Union may at his discretion "remove any member from any shop or job" (article VI, section 2). With respect to the allocation of jobs among unemployed members, the business manager has full responsibility to "devise such means as he considers practical and fair in distributing available jobs to such members if they are qualified to do the work" (article XV, section 5). The business manager appoints the stewards. They work under his direction and may be.removed by him at any time (article IX, section 1). Among the duties of stewards are "to see that all journeymen and other workmen at their respective shops or jobs have paid-up dues receipts and cards or valid working cards of the Local Union" (article IX, section 2). 10 Donald Lane, a member of Local 446, was subjected to such disciplinary proceedings for having solicited employment directly from an employer without going through the office of the business manager. He was also charged with "working against the IBEW." These proceedings against Lane were dropped prior to the hearing without any discipline being ordered. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Conclusions concerning the 1957 and 1958 contracts 1. Preliminary statement Section 8 (a) (3) of the Act, among other things , prohibits employers from encour- aging union membership by discrimination in regard to hire or tenure of employ- ment. However, the proviso to Section 8(a)(3) permits , as an exception to this broad prohibition, employers and unions , under certain conditions, to make agree- ments requiring membership in a union as a condition of employment "on or after the 30th day following the beginning of such employment or the effective date of such agreement, whichever is the later." Section 8 (b) (2) forbids unions from causing or attempting to cause employers to discriminate in violation of Section 8(a)(3). Section 8(b)(1)(A) bans union restraint or coercion of employees in the exercise of their rights under the Act. Under these provisions a union violates Section 8 (b)(2) and 8 (b)(1)(A) by entering into or enforcing an agreement which makes membership a condition of hiring or in some other respect gives a union a greater degree of union security than is permitted in the proviso . Eichleay Corp. v. N.L.R.B., 206 F. 2d 799, 803-804 (C.A. 3), and cases therein cited. Even in the absence of a formal agreement to this effect, it is a violation of Section 8(b)(2) and 8 (b)(I)(A) of the Act for a union , pursuant to an informal arrangement or understanding with an employer , to operate an exclusive referral system under which preference is given to union members in referring employees for jobs. N.L.R.B. v. National Maritime Union of America , et al. (The Texas Com- pany), 175 F. 2d 686, 688-689 (C.A. 2), cert. denied, 338 U.S. 954, N.L.R.B. v. United Brotherhood of Carpenters and Joiners of America, AFL, Local No. 517, (Gil Wyner Construction Co.), 230 F. 2d 256, 258-259 (C.A. 1). Under the Board's decision in the Mountain Pacific case and subsequent decisions applying the principles of Mountain Pacific to cases involving informal understand- ings or arrangements for exclusive referral systems or hiring halls, the entering into and enforcement of such an understanding or arrangement by a union will be deemed a violation of Sections 8(b)(2) and 8(b)(1)(A) unless the understanding or arrangement is reduced to writing and includes the Mountain Pacific safeguards. Supra, footnote 9. Sheet Metal Workers International Association , Local No. 99 (Dohrmann Hotel Supply Company), 120 NLRB 1366; Local Union No. 450, In- ternational Union of Operating Engineers , et al. (Tellepsen Construction Company), 122 NLRB 564; Galveston Maritime Association, Inc., et al., 122 NLRB 692; Local 176, United Brotherhood of Carpenters, etc. (Dimeo Construction Com- pany ), 122 NLRB 980; International Union of Operating Engineers, Little Rock Local 382-382A, AFL-CIO (Armco Drainage & Metal Products, Inc.), 123 NLRB 1833. Under the law discussed in the preceding paragraphs, the questions before me are largely factual in nature . If Local 466 has in fact entered into and enforced con- tractual provisions requiring that only IBEW members be hired for certain work, its violation of the Act is clear . Similarly, if Local 466 has entered into and given effect to an informal arrangement or understanding whereby the members of the Association agree to obtain all their employees through Local 466, and that only members of Local 466, or those approved by the Union, will be referred for jobs, then Local 466 's violation of Section 8(b)(1)(A ) and 8 (b)(2) follows. 2. The contract provisions The 1957 contract between Local 466 and the Association contained, in addition to a valid union-security provision, clauses requiring that all temporary power and lighting on construction jobs "shall be installed and maintained, moved and re- moved by IBEW Journeymen Wiremen." Thus, insofar as temporary power and lighting work on construction jobs was concerned, the latter clauses in effect im- posed closed-shop conditions, i.e., required that all such work be done by members of the IBEW regardless of whether they had been employed by a member of the Association for 30 days or not. Local 466 contends that these clauses should be read together with the union- security provision and that the former should not be construed as taking precedence over the latter. However, so to interpret these clauses requiring that all temporary work be given to IBEW Journeymen Wiremen is, in effect, to read them out of the contract altogether Since the parties saw fit to include these additional clauses in the contract, and they must have had some purpose in doing so, I can only conclude that the parties contemplated that these clauses would have the meaning and effect they appear on their face to have, namely, to require that all the work of LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 921 the kind specified in these provisions would be performed by IBEW members, regardless of whether they had been employed for 30 days or not.il In the contract entered into on May 31, 1958, the provisions in the previous con- tract requiring all temporary power and lighting work to be done by "IBEW Journeymen Wiremen" were changed in that the designation "IBEW" was eliminated in two of the three places in which it had appeared in the previous contract. Local 466 contends that the parties intended to strike the designation "IBEW" in each of the places where it appeared in section 26 of article III, and that the parties inad- vertently omitted to strike it from section 26-C. Since I can see no purpose in leaving in the "IBEW" in section 26-C while at the same time striking it from section 26, which covers the same work in general terms, I accept Local 466's contention in this regard, and in my consideration of these provisions am treating them as though no specific reference to "IBEW" were contained in any of them. However, I do not conclude, because of the elimination of the designation "IBEW" from section 26, that the parties thereby intended that nonmembers could be em- ployed for this work. "Journeymen Wiremen" is an IBEW classification. Under the bylaws of Local 466, its members, after spending 4 years as apprentices, were entitled to take an examination given by Local 466, which, if they passed, entitled them to the "Journeyman Wireman" status. Thus, only members of Local 466 and other locals of the IBEW can be rated as "Journeymen Wiremen." 12 Rather, under all the circumstances, including the facts, discussed below, that the 1958 contract continued to require foremen to be union members and that the referral practices of Local 466 remained unchanged up until the signing of the November 5, 1958, addendum, I conclude that the parties, by providing in the 1958 agreement that temporary lighting and power work on construction jobs would be done by journeymen wiremen, con- templated that IBEW members only would be given such jobs.13 These provisions in the 1957 and 1958 agreements, in effect requiring that only IBEW journeymen wiremen be hired for temporary work, imposed closed-shop conditions and were per se unlawful because they did not afford the 30-day waiting period required by the proviso in section 8(a)(3) of the Act. Accordingly, Local 466's inclusion of these provisions in the contracts, and also its enforcement thereof, violated section 8 (b) (2) and 8(b) (1) (A) of the Act. 3. Local 466's referral practices during the 1957 and 1958 contract period The 1957 and 1958 contracts between Local 466 and the Association do not, on their face, purport to establish an exclusive referral system I find the evidence in- adequate to establish the existence of an associationwide understanding or arrange- ment with Local 466 for the operation by it of an exclusive referral system under which it was contemplated that only members of Local 466 or those approved by it would be referred for jobs. Aside from the closed-shop provisions of the 1957 and 1958 contracts and the practices of Local 466 in referring men to Moore Electric Company, there is no other evidence of such an associationwide arrangement. The record does not show what Local 466's practices were in referring men to members of the Association other than Moore. While the 1957 and 1958 contracts both require that "all foremen must be members of the IBEW in good standing," the record does not show whether the foremen of the other members of the Association "I cannot accept Local 466's further contention that these clauses were placed in the contract for the purpose of showing that temporary work on construction jobs was to be done by members of Local 466 rather than members of some other building and construc- tion trades union. By the contract, the members of the Association agreed that they would require all their employees to be union members after 30 days' employment This provision insured that all work of the members of the Association would be done by mem- bers of Local 466 to the maximum extent permitted by law. These clauses could not have been included for the purpose of requiring other contractors on construction projects to use IBEW members for electrical work because these other contractors were not parties to the agreement 11 In the 1957 and subsequent contracts a joint apprenticeship and training committee was established in which Local 466 relinquished its exclusive control over apprentice training to a committee consisting of three members representing the Association and three representing Local 466. There is nothing in the contracts, however, giving non- members the right to train as apprentices. The 1958 and subsequent contracts contain a provision specifically requiring all apprentices to "be registered with the Union before being put to work " "Cf. Local 363, a/Jlhated with the International Brotherhood of Boiler makers, etc. (Anchor Welding & Manufacturing Company, et al.), 123 NLRB 1877 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do any hiring. The contracts in this case, unlike those in some others,14 do not contain any provisions requiring foremen to do the hiring. Accordingly, I recom- mend dismissal of the allegations of the complaint to the effect that Local 466 entered into and enforced with the Association as a whole an arrangement for an illegal exclusive referral system. However, as to Moore Electric Company, I find that Local 466 had such an understanding or arrangement. The record affirmatively shows that Moore's fore- men did substantial hiring and obtained all their men through the office of the business manager of Local 466. In response to requests from Moore, Local 466 referred only its own members if they were available. Occasionally it sent members of other locals of the IBEW. Nonmembers of the -IBEW were never referred. Although there is no provision in Local 466's bylaws which in so many words require its members, when employed as foremen, to give preference to members of Local 466, the effect of various provisions of the bylaws in combination was to bring about the giving of preference to members of Local 466. As noted above, the executive board of Local 466 had the power to punish members for infractions of its rules and to determine the "proper" discipline to be meted out. There being no limitation in the bylaws on this power, 1 find that the executive board had the power to suspend or terminate the membership of any member, if it found the circumstances warranted it. Under the union-security provisions of the 1957 and 1958 contracts, such suspension or termination meant the loss of employment. This power in Local 466's executive board to suspend or terminate, from which, so far as the record shows, there is no appeal, impaired the independence of its foremen members in selecting employees for hiring. Also, the power vested in the business manager to remove members from their jobs and, in times of unemployment, to determine which of the unemployed members were to get the available jobs, gives the business manager an effective means of controlling the actions of the foremen.15 It should be borne in mind that the foreman on one job may be a rank-and-file worker on the next, hence it is to the interest of the foreman to keep in the good graces of the business manager. The business manager appoints and removes the stewards who are obliged under the bylaws to see that all workmen on the job have paid-up dues receipts or are otherwise in good standing with Local 466. Since under article III, section 20 of the contracts stewards are the last to be laid off on any job, their status as steward is a definite asset to them. In order to retain this favored status they would be likely to follow the wishes of the business manager who is solely responsible for their remaining in this preferred position. Thus through the stewards, the business manager can keep track of all the foremen's actions with regard to hiring. The net result of these internal union arrangements, I find, is to place pressure upon the foremen to hire members of Local 466 and to render them subservient to the will of Local 466 and its business manager, who is actively interested in furthering, and controlling through his office, the employment of members of Local 466.16 Under all the circumstances-the fact that the 1957 and 1958 contracts imposed closed-shop conditions for hiring men for temporary work; that Moore obtained all its employees through Local 466 and understood that the Union insisted that only its members be hired if available; that no others were referred for employment during the period of the 1957 and 1958 contracts; that the contracts required fore- men to be union members and that they did substantial hiring insofar as Moore was concerned; 17 and that Local 466's bylaws as a whole effectively required its foremen members to give preference in hiring to IBEW members-I find that Local 466, pursuant to an understanding with Moore Electric Company, operated an exclusive referral system under which, in response to requests for men, it referred members of the IBEW only. I conclude that Local 466's entry into and enforcement of this exclusive hiring arrangement, with its closed-shop conditions, constituted a violation of Section 8(b) (2) and 8(b) (1) (A) of the Act. 14 Cf. American Newspaper Publishers Association, 86 NLRB 951, 957-959, enfd 193 F 2d 7182, 796, 805 (C.A. 7), cert. denied, 344 U.S. 812; Honolulu Star Bulletin, 123 NLRB 395. 15 Cf. Houston Maritime Association Inc., et al, 121 NLRB 389. 14 Members of Local 466 were prohibited from soliciting employment directly from employers and were required to apply only through the office of business manager. As indicated above, one member who bypassed the business manager was subjected to disci- plinary proceedings in the Union 17 See Booth and Flinn Company, etc, 120 NLRB 545, 549-551; Houston Maritime Association, Inc., et. at., supra; International Union of Operating Engineers, Local 150, etc (Fluor Company, Ltd.), 122 NLRB 1374; United States Steel Corp., etc., 122 NLRB 1324. LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 923 Furthermore, even aside from the preference granted IBEW members in the opera- tion of this exclusive hiring arrangement, Local 466's entering into and enforcing the arrangement was violative of the Act because it did not include the safeguards in which the Board in the Mountain Pacific and subsequent cases had held were es- sential to render an exclusive hiring or referral arrangement lawful.18 IV. THE REMEDY Having found that Local 466 has engaged in unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Local 466 entered into and enforced the 1957 and 1958 agree- ments with the Association which granted illegal closed-shop conditions ,with respect to the hiring of men for temporary power and lighting work on construction projects. The General Counsel had requested the application of the Brown-Olds 19 dues- reimbursement remedy to dissipate the effect of these illegal closed-shop conditions of employment. Local 466, while not disputing the illegality of such provisions, at least insofar as the 1957 contract is concerned, urges that it attempted in good faith to bring its contracts into compliance with the Act, and cites as proof of this fact its execution of the November 5, 1958, addendum which established a nondiscriminatory exclusive referral system containing the Mountain Pacific safeguards, and also its execution of the 1959 agreement, from which it allegedly eliminated all objection- able clauses. Local 466 contends that in these circumstances it would not effectuate the policies of the Act to order dues reimbursement. However, by enforcing closed-shop conditions of employment under its agreement with the Association, Local 466 has inevitably coerced employees to pay the dues, fees, and assessments necessary to achieve and retain membership.20 Also by enter- ing into and enforcing with Moore Electric Company an understanding or arrange- ment for an execlusive referral system by virtue of which it was contemplated that only members of Local 466 would be referred for jobs, if available, Local 466 has further coerced the employees of Moore to pay the dues, fees, and assessments neces- sary to obtain and maintain good standing in local 466.21 In these circumstances the equities, as between Local 46, the wrongdoer, and the employees who may have in- voluntarily paid dues and other fees and assessments in order to get or keep their jobs, would seem to favor the victims of the wrongdoing. Accordingly, I reject Local 466's contention in this regard 22 I shall recommend that Local 466 reimburse the employees of the members of the Association and of the signers of the 1957 and 1958 agreements who were employed on temporary power and lighting work on construction projects for any dues, fees, assessments, or other moneys paid by them to Local 466 in satisfaction of the obliga- tions of union membership during the periods their employers were covered by these agreements. The liability of Local 466 so to reimburse shall cover the period commencing on December 12, 1957 (6 months prior to the service of the charge), and ending on November 5, 1958, the date on which the parties and signers of the 1958 agreement executed the addendum, which I find was intended to replace the illegal closed-shop provisions of the 1958 agreement 23 16 In N.L.R B. v. Mountain Pacific Chapter, etc., 270 F 2d 425, the Court of Appeals for the Ninth Circuit, rejecting the Board's view that a contract conferring exclusive hiring rights on a union without the so-called Mountain Pacific "safeguards" was per ae illegal, set aside the Boards' order and remanded the case to the Board for further con- sideration. However, In the absence of any official statement by the Board that it is acquiescing in the Ninth Circuit's decision, I am bound by the Board's decision in the Mountain Pacific case. Scherrer and Daviason Logging Company, 119 NLRB 1587, 1589. 1e United Association of Journeymen & Apprentices of the Plumbing it Pipefitting Indus- try etc. (J. S. Brown-E. F. Olds Plumbing it Heating Corporation), 115 NLRB 594, 597- 602 iro Argo Steel Construction Company, 122 NLRB 1077. 21 See Local 363 affiliated with the International Brotherhood of Boilermakers (Anchor Welding & Manufacturing Company, at al ), 123 NLRB 1877. 22 The Board rejected a similar contention under similar circumstances in Argo Steel Construction Company, 122 NLRB 1077. xi With respect to the appropriateness of the dues-reimbursement remedy generally, see Local Union No 450, International Union of Operating Engineers, AFL-CIO, etc. (Tellepsen Construction Company), 122 NLRB 564; Local 138, International Union of Operating Engineers, AFL-CIO, etc. (Nassau and Suffolk Contractors Association, etc.), '924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' I shall further recommend, in view of Local 466's understanding or arrangement with Moore Electric Company for the operation of'an illegal exclusive referral sys- tem, that Local 466 reimburse the employees of Moore Electric Company for any dues, fees, assessments, or other moneys paid by them to Local 466 in satisfaction of the obligations of union membership during the period beginning December 12, 1957 (6 months prior to the service of the charge), and ending on November 5, 1958. In view of the fact that Local 466 in effect eliminated the objectionable provisions of the 1957 and 1958 contracts in the November 5, 1958, addendum, and that the General Counsel does not contend that Local 466s contracts or referral practices after November 5, 1958, were in any way unlawful, I conclude that a broad cease- and-desist provision is not warranted. Accordingly, I will recommend that Local 466 cease and desist from in any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act 24 CONCLUSIONS OF LAW 1. Local Union No. 466, International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, as found above, Local Union No. 466, International Brotherhood of Electrical Workers, AFL-CIO, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. By causing and attempting to cause the members of the Association and non- member signers of the Association contracts to discriminate against their employees in violation of Section 8(a)(3), Local Union No. 466, International Brotherhood of Electrical Workers, AFL-CIO, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b) (2) of the Act. 4. The unfair labor practices found herein affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 123 NLRB 1393; Gay Engineering Corporation, 124 NLRB 451; N.L.R.B. v. General Drivers, Chauffeurs and Helpers, Local Union No. 888, etc. ( Unit Parts Company), 264 F. 2d 21, 23 ('C.A. 10), and cases therein cited. a* Gay Engineering Corporation, 124 NLR.B 451. Dixie Electrotype Co., Inc. and International Stereotypers' and Electrotypers' Union Local No. 78, Petitioner. Cane No.10-RC- 4546. March 2, 1960 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Aaron Z. Dixon, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged. in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 126 NLRB No. 108.