Int'l Brotherhood, Electrical Workers, Local 340

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the injunctive provision: the transaction with Staats flowed in part from the absence of its signature on a contract made by the Trucking Association, of which it is a member. There is no testimony concerning whether other employers belong- ing to the Association and omitted to sign the contract, although Respondent's coun- sel, during oral argument claimed that Staats was unique on that score. It would seem that the healthy purpose of "prevention or prophylaxis" 40 would be served by forbidding future entry into a. hot-cargo agreement with Staats Express or any other employer. The violations in the respective cases are alleged in separate complaints, which have not been consolidated. It would seem appropriate to have the notices likewise not commingled, since the, employers involved in Case No. 2-CC-551 do not neces- sarily have a legitimate interest in the violation in Case No. 2-CE-1, in which Staats alone is involved. - Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of the Act. 2. Van Transport Lines, Inc., the Grand Union Company, Gary Warehouse Cor- poration, R. T. A. Distributors, Caterpillar Tractor Corporation, Oneida Markets, Inc., International Harvester Company, Montgomery-Ward Co., B. F. Goodrich & Co., and Ro-La-Lume Corporation are persons engaged in commerce or in an in- dustry affecting commerce within the meaning of the Act. 3. The rank-and-file employees and the supervisors , in the persons of the shipping and receiving foremen of the above persons, are "individuals employed by" such persons within the meaning of the Act. 4. By inducing and encouraging individuals employed by the above-named per- sons to refuse, in the course of their employment, to perform services in connection with the handling of freight of Van Transport Lines, Inc., with an object of forcing or requiring such persons to cease doing business with Van Transport Lines, Inc , Respondent engaged and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. 5. By entering into a contract with Staats Express, whereby Staats Express agreed to cease or refrain from handling the freight of or doing business with any struck or picketed employer, or any employer declared "unfair" by Respondent Union, Respondent Union engaged in and is engaging in an unfair labor practice within the meaning of Section 8(e) of the Act. 6. Said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] "Hutcheson , Judging as Administration , Administration as Judging , 21 Texas Law Review 1, 6. International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO [Walsh - Construction Company] and Jack L. Wood. Case No. 20-CB-760. April 26, 1961 DECISION AND ORDER On October 25, 1960, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Respondent filed exceptions to the Intermediate Report, together with a supporting brief. 131 NLRB No. 40. INT'L BROTHERHOOD , ELECTRICAL WORKERS, LOCAL 340 261 The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Inter- mediate Report, the exceptions and brief , and the entire record, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following additions and modifications : 1. We agree with the Trial Examiner 's conclusion that Local 340, the Respondent, refused to refer Jack L. Wood, the Charging Party, for employment at Walsh Construction Company for reasons related to his lack of membership in Local 340 . Local 340 is an "inside and outside wireman's" local whose members are primarily skilled in the installation and maintenance of wiring used in construction . It has a contract with Sacramento Valley Chapter , National Electrical Con- tractors Association, to which Walsh was a party. Local 340 was the exclusive hiring agent under the agreement .' Although Walsh uses men in its tunnel construction jobs who are skilled in wiring installa- tions, it also requires electricians , at its Oroville Yard, who are ex- perienced in the repair of mine locomotives , battery switch gears, large d.c. batteries, and transformers . Wood was a member of Local 800, IBEW, whose members were electricians primarily skilled in the maintenance of locomotives and other heavy equipment. Since Wood did not -have the requisite wireman's experience; he had been rated by Local 340 in one of the : low seniority groups provided for by the contract. The contract, however, also contained a "special skills" provision, whereby Local 340' agreed to refer men outside of the regular seniority system to an employer who requested an elec- trician with skills other than those normally possessed by Local 340 members. In affirming the Trial Examiner's conclusion that the refusal of Local 340 to refer Wood was based on reasons relating to union membership, we rely on the grounds `cited 'by the Trial Examiner as well as on certain additional background evidence which was not re- ferred to in the Intermediate Report.2 Thus, in December 1958, Wood was out of work and contacted Respondent's hiring hall in Sacra- mento. Campbell, Respondent's business manager, asked Wood what local he was from.' When Wood told him it was •Local 800, Campbell replied, "That is bad" and stated that Wood should not work in a con- struction local such as Local 340. In November 1959, Wood was working on a tunnel job for another contractor within Respondent 's jurisdictional area. 'During a dispute 'The General Counsel concedes that the hiring arrangement set out in the agreement conforms to the standards of Mountain Pacific Chapter of the Associated General Contractors, 119 NLRB 883 2 Some of these incidents , upon which we rely as background evidence, occurred prior to the 6-month period preceding the filing and service of the charge herein . It is, how- ever, considered insofar as it sheds light on Respondent's later conduct, within the Sec- tion 10( b) period, in refusing to refer Wood. Murfreesboro Pure Milk Co , 127 NLRB 1101 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between Wood and one of Respondent's business representatives, Galvin, the latter told Wood "why don't you go back to where you came from?" Galvin also said that it was his job to protect the members of Local 340. During this job, as noted in the Intermediate Report, Wood's traveling card from Local 800 was rejected by Re- spondent without explanation. In January 1960, Wood, on his own initiative, took the examination set by Local 340 in order to qualify himself for a higher grouping under the seniority classification system set forth in Respondent's hir- ing agreement. He was never notified of the results of this test as he was not deemed eligible to take the examination, according to Camp- bell. Work under a railroad local's jurisdiction was not considered to be relevant experience for classification under Local 340's contract. At the hearing, in explaining Respondent's referral practices, Ham- ilton, one of Respondent's business agents, testified that "ours is strictly what we call an inside local, inside and linemen local, and if we refer someone that isn't a member of our branch of the labor market, they are out of classification." At another point in the hear- ing, Business Manager Campbell conceded that "although we have an agreement with this company (Walsh), it is the type of a company that we seldom have agreements with. It is a general contractor, and our contracts under the construction type of work is almost ex- clusively with electrical contractors." Campbell pointed out that Respondent did not have many members who had the special lead burning and mine locomotive skills requested by Walsh. Although Respondent claims it did not dispatch Wood because it did not believe Walsh actually needed men with special skills, we find that a preponderance of the evidence, as outlined in the Intermediate Report and supplemented above, supports the General Counsel's posi- tion that Wood was in fact refused referral by Respondent because of his membership in a "railroad" rather than a "wireman's" local, and not for the reasons advanced by Respondent. Accordingly, we find a violation of Section 8(b) (1) (A) and (b) (2), as alleged in the complaint. 2. Like the Trial Examiner, we cannot, in the circumstances of this case, honor the decision of the appeals committee, established under the parties' agreement, which found no merit in Wood's complaint that Local 340 had improperly refused to refer him to the Walsh job. At the appeals hearing held April 5, 1960, to which Wood was not invited, members of the appeals committee were primarily concerned with whether Wood had shown proof of his qualifications for the Walsh job. It is not clear from the minutes of the meeting 3 whether the committee was considering Wood's qualifications under the group 8 Minutes of the meeting, in the form of a partial transcript, are in evidence as an exhibit. INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 340 263 classification system, or his "special skills" qualifications. If the former, as appears probable from other evidence in the record, that issue is not involved in this case. If the latter, Respondent concedes that Wood possessed the "special skills" requested by Walsh, and it is clear that Wood's special skills were known to Respondent no later than February 12, 1960, the first date of discrimination found by the Trial Examiner.' As it is evident that Wood's claim for referral as a "special skills" man was not fully considered by the appeals committee, and as Wood's present contention that he was denied referral because of his membership in a "railroad" local was not raised there, we cannot give weight to its determination.5 ORDER Upon the entire record in this 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, International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO, its officers and agents, shall : 1. Cease and desist from : (a) Causing or attempting to cause Walsh Construction Company to discriminate against Jack L. Wood, or any other employee or appli- cant for employment, in violation of Section 8(a) (3) of the Act, as amended. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, ex- cept to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized by Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify Walsh Construction Company, in writing, and furnish a copy to Jack L. Wood, that Respondent has no objection to Wood's employment at the Company's Oroville, California yard and shop. (b) Make whole Jack L. Wood for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 'Although the evidence clearly establishes such knowledge by Respondent , the minutes disclose that Hamilton told the committee he did not know of Wood's qualifications We therefore do not adopt the Trial Examiner 's statement indicating that the minutes "establish that Hamilton knew of Wood's special qualifications " G See Monsanto Chemical Company, 130 NLRB 1115 Although we accord no binding effect to the decision of the appeals committee, we find the evidence insufficient to estab- lish that the committee was a "rubber stamp" for the business agent's conduct, and do not adopt this statement of the Trial Examiner. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at Respondent's offices and meeting halls copies of the notice attached hereto marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter in conspicu- ous places, including all places where notices to its members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Promptly mail to said Regional Director signed copies of the Appendix for posting, the Company willing, at the Company's Oro- ville yard and shop. (e) Notify the Regional Director for the Twentieth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision and Order. 6In the event that this Order Is enforced by a decree of a United Statev 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." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL UNION 340, AFL-CIO, AND TO ALL EM- PLOYEES AND PROSPECTIVE EMPLOYEES OF WALSII CONSTRUCTION COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Walsh Construction Company to discriminate against Jack L. Wood, or any other em- ployee or applicant for employment, in violation of Section 8 (a) (3) of the Act, as amended. WE WILL NOT, in any like or related manner, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights maybe affected by an agreement requiring membership in a labor organization as a, condition of employment as authorized by Section 8(a) (3') of the Act, as amended. WE WILL notify Walsh Construction Company, in writing, and will furnish a copy to Jack L. Wood, that we have no objection to INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 340 265 Wood's employment at the Company Oroville, California yard and shop. WE WILL make `whole Jack L. Wood for any loss of pay he may have suffered as a'result of our discrimination against him. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 340, AFL-CIO, Labor Organization. Dated---------------- B\ - ---------------------------------------- (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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding with all . parties represented was tried before the duly designated -Trial Examiner at San Francisco , California, on June 21 and July 6, 1960 , on com- plaint of the General Counsel and answer of the above-named Respondent. The issues litigated were whether or not-the Respondent violated Section 8 (b)(1) (A) and (b )(2) of the Act by certain conduct , which is more particularly described hereinafter. Upon the entire record and my observation of the witnesses I hereby make the following: I FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF WALSH CONSTRUCTION COMPANY Upon a stipulation of counsel it is found that Walsh Construction Company, herein called the Company or Walsh; is an Iowa corporation with its main office at Davenport, Iowa. The Company is engaged in all types of heavy construction such as the building of bridges, large buildings, industrial plants, powerhouses, and tunnels. - During the calendar year ending December 31, 1959, the Company, in the course of its business operations, performed services valued in excess of $50,000 in States other than the State of Iowa. It is, conceded that the Company is engaged in op- erations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and I find that the assertion of jurisdiction herein is warranted. H. THE LABOR ORGANIZATION INVOLVED 'It is admitted and I find that International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues. The complaint alleges that on or about January 20, 1960, and continuously there- after, the Union by its designated representatives in the course of the operation of its hiring hall, refused to clear or dispatch Jack L. Wood to the Company for em- ployment because of Wood's lack of membership in the Union and that by this conduct the Union attempted to cause and did cause the Company to discriminate against Wood in violation of Section 8(a)(3) of the Act; thereby engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and (b)(2) of the Act. The Union denies the commission of the alleged unfair labor practices and con- tends that its refusal to dispatch Wood, was based on its belief that Shulz, super- intendent of the Company, was attempting to bypass the referral procedure in order to employ Wood, and that the repeated requests of Shulz, for men with "special skills" was a subterfuge for this purpose. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Undisputed facts forming the background of the controversy It is undisputed that the Union operates in a group of counties in northern Cali- fornia, with hiring halls at Sacramento, Redding, Marysville, and Chico in that State. As the representative of its members the Union has a contract with the Sacramento Valley Chapter, National Electrical Contractors Assn., Inc., herein called NECA, and other individual electrical contractors in this group of northern California coun- ties. The Company is a party to this contract. It is undisputed that the Union is an "inside and outside wireman" local and as such is principally concerned with the supplying of men for the installation, repair, and maintenance of wiring in connection with industrial, commercial, and residential construction. The contract between the Union and NECA, by which the Company is bound, sets up a rather complicated system of dispatch at the Union's hiring halls. Article IX of the contract entitled, "Referral Procedure," states that the Union shall be the sole and exclusive source of referrals of applicants for employment; that the em- ployer shall have the right to reject any applicant for employment; and that the Union shall select and refer applicants for employment without discrimination, by reason of membership or nonmembership in the Union. The article then states that all such selections and referrals shall be in accordance with certain groupings of men, based on various qualifications. These may be summarized as follows: Group 1. Applicants, who have proof of (1) 48 months' experience on types of work covered by the agreement ; (2) have passed an examination , and (3 ) are resi- dents of a certain area; and (4) have been employed for at least 12 months under the collective-bargaining agreement within the preceding 48 months. Group 2. Same requirements as (1) and (2) above, and have worked under a collective-bargaining agreement in the geographical area surrounding the "normal construction labor market" as defined in the agreement. Group 3 . Same requirements as (1) and (2) above; place of residence and loca- tion of prior work experience are not considered. Group 4. Experience requirement reduced to 24 months; examination is elim- inated, but residency same as in group 1, and prior work in the area of 12 months. Group 5. Applicants who can show only 12 months' experience on the type of work covered by the agreement. Article IX then continues, and the section relative to men with special skills is especially significant: SECTION 4c. Applicants' names will be placed on the referral list in the order in which they register their availability for work. Persons in Group 1 shall be referred first, in that order, and the same procedure shall be followed successively for Groups 2, 3, 4 and 5, subject to the following qualification: When the Employer states bona fide requirements for special skills and abili- ties in his requests for applicants, the Business Manager shall refer the first applicant on the referral list possessing such skills and abilities. The Business Manager, when referring applicants with special skills shall take into consideration the applicant's own estimate of his ability to perform the work requiring such special skills, the applicant's record of experience on such work and the Business Manager's knowledge, if any, of the estimate which contractors have made of the applicant's skills and abilities to perform such work. SECTION 4d . Decisions of the Business Manager in referring applicants are appealable to the Appeals Committee as herein provided. Such appeals shall be made within forty-eight hours and a decision of the Appeals Committee shall be rendered within one week after receipt of the appeal by the Committee. Forms will be provided at the dispatch office for appeals.' In connection with the contract between the Union and NECA, it is worthy of note that the General Counsel in this proceeding concedes that it meets the re- quirements of the Mountain Pacific decision. Certain other facts are not disputed. It is admitted that Stanley Hamilton, a busi- ness agent of the Union, is the sole representative in charge of the Chico hiring hall and in his capacity as business agent acts as dispatcher of men from that hiring hall. It is also undisputed that William J. Campbell is the business manager of the Union and as the top executive of the organization is the officer in charge of the four hiring halls of the Union to which he gives overall, if not immediate, supervision. 'This contract is General Counsel's Exhibit No 2 In evidence INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 340 267 Likewise, some of the facts concerning the Walsh Construction Company and its operations are not in dispute. Among these is the fact that Walsh Construction Company, engages in all type of heavy construction work , but in the area with which we are here concerned , the principal occupation of the Company is the drilling and construction of tunnels in the mountainous region of California for use by hydro- electric power companies , railroads or governmental agencies. The Company main- tains at Oroville, California, a large yard for the storage and repair of its tunneling equipment, much of which is composed of mine locomotives and other heavy equip- ment using heavy-duty d.c. batteries , similar to those in railroad locomotives. The Oroville yard is maintained by the Company as a place of repair of this equipment during and between jobs . It is not disputed that Rudolph C. Shulz is the electrical superintendent of the Company in charge of all electrical work on the west coast and particularly of the Oroville yard at which Shulz maintains his office. It is similarly undisputed that Jack L. Wood, the individual who is the Charging Party herein is an electrician, and a member of Local 800, IBEW . Prior to June 1953, Wood lived at Laramie , Wyoming, and worked for a period of 4 years as a mine electrician for the Union Pacific Coal Company . During that period he was a member of Local 775, IBEW, which is a local that has jurisdiction over railroad electricians . He moved to California in 1953 and began his work there with the Western Pacific Railroad Company at Oroville , again as an electrician . In that job he joined Local No. 800 , IBEW, located in Sacramento . This local is also a "rail- road" local having jurisdiction over railroad electrical employees. In May of 1957, Wood became employed by the Walsh Construction Company at its Oroville yard. His employment on this occasion appears to have been a matter of chance, as he went to the Oroville yards for another purpose and noticed that a large amount of the equipment consisted of mine locomotives with which he was very familiar. He happened to run into Shulz and in the course of the conversation that ensued Shulz said that he could use a man of Wood's skills and experience and suggested that Wood go to Sacramento and get a clearance from the Union so that Wood could go to work for Shulz. Wood went to the Union hiring hall in Sacramento, then op- erated under a previous contract , received his clearance and went to work for the Walsh Construction Company under the supervision of Shulz. This employment lasted approximately 19 months , until Wood was laid off in December 1958. Upon being laid off he went to the Union's hiring hall at Chico and registered in one of the Union's dispatch books. At that time there was one book for members and a second book for travelers . The business agent told him that he should sign in the travelers book and he understood that members would be dispatched before travelers. Later that month the Union dispatched Wood to a job with the firm of Wismer & Becker where he worked as a tunnel electrical foreman for approximately 1 year. During this time he paid his usual dues of $7.40 per month to Local 800, IBEW, and paid a "dobie" of $5.50 per month to the Union. During this time Wood attempted to join the Union . He calculated that he had completed his 2 years ' experience so he presented an application for membership and his travelers card to the executive board of the Union in the summer of 1959. However, about 3 months later he was notified that his card would not be accepted at that time . Wood continued in the Becker & Wismer job until December 1959, when he quit for reasons hereafter related. C. The controversy; the job; the requests of the Company and the men dispatched Rudolph C. Shulz testified credibly that the only electrical work performed by electricians at the Oroville yard is the repair of mine locomotives , battery switch gears, large d .c. -batteries, and transformers, all of which are used in tunnel-drilling operations . At the yard the Company has about $ 150,000 worth of this special equipment, which the men keep in repair . To do this job he needed men possessed of particular skills and abilities as some of the larger batteries were 10 feet long, and about 5 feet wide with a weight of about 5 tons, and were valued at $9,000 each Also, from time to time the mine locomotives were stripped down to the iron and rebuilt. This was work that could not be done except by electricians with special skills and experience in that field. Shulz testified that early in January 1960 , there was only one man employed at the yard, his son, Robert Shulz, but because the Company had received a new tunnel contract he decided to increase the work force . On or about January 5 , 1960, Shulz phoned Stanley Hamilton , business agent and dispatcher for the Union at its hiring hall at Chico, California. On this occasion Shulz told Hamilton that Ward, Shulz son-in-law, had returned from a job that he had been on with the Company in Nevada, and that he would like to have Hamilton clear Ward to work in the Oroville yard. Hamilton said that Ward would have to come to the union hall and get on the 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD book, that he couldn't clear him without signing the book Also at this time Shulz told Hamilton he was in need of a man who could repair batteries , repair d.c loco- motives and charging sets, and do some setting and welding and some lead burning. Hamilton said that he would try to find someone for Shulz who had those special skills. It should be noted that Ward actually registered in the union hall on January 22, 1960 Shulz further testified ,that on or about February 5, 1960 , the Union sent to Shulz a man by the name of Olds, as an electrician possessing the special skills which Shulz needed. Shulz interviewed Olds and by the latter's own admission he wasn't qualified to fill the job, so Shulz sent Olds back to the union hall. It should be noted that counsel stipulated that Olds, a union member was registered for the first time on February 5, 1960, and dispatched to Shulz on the same day . Also, on or about this date of February 5, 1960, Shulz had a phone conversation with Hamilton in which Shulz pointed out that Hamilton had a man at the hall, Wood, who had previously worked at the Oroville yard , and who possessed the special skills that Shulz needed. On February 12, 1960, Ward was referred by the Union to Shulz and on that date began his employment in the Oroville electrical shop. Approximately 2 weeks after this date, or about February 26, Shulz again called the union hall and said that he needed - another man possessing the same special skills. It-was stipulated by Counsel that W. Wheeler registered in the group I book on March 11„ 1960. On March 18 , Wheeler arrived at Shulz' office at the •Oroville yard with a , referral slip from the Union . Accompanying Wheeler on this occasion were both Hamilton and Wood . Hamilton brought Wheeler in and introduced him to Shulz . and Wheeler gave Shulz his dispatch card to go to work. Shulz knew Wheeler as having been em- ployed by the Company in the yard some year or two previously , and recollected that he had the necessary skills .to perform the job so he was employed immediately At this time Wood asked Shulz in the presence of Hamilton , if Shulz did not need an- other electrician. Shulz replied that at that time he did not. About 2 weeks later, Shulz again called Hamilton for another man and mentioned that he needed the-same type of man with the same special skills as that was the only type of work that he had to do. Hamilton said that he would try to find someone with those special skills. Shulz did not remember whether Wood's name was men- tioned in this phone conversation. It was stipulated by Counsel,that Charles Wing registered in group I on March 18, 1960, and was dispatched to the Walsh job on April 22, 1960. On that date, accord- ing to Shulz, Wing was referred to Shulz by, the Union . Shulz interviewed Wing and came to the conclusion that he did not possess the skills which Shulz sought. How- ever, in order to give him a chance to qualify Shulz put him to work checking some batteries. After Wing had worked, about 4 hours it became apparent to Shulz that he didn't know what he was doing , so he! made out a discharge slip for Wing and sent him to the office for his pay. On the day after Wing was rejected , Shulz called Hamilton again and told him he still needed an electrician with special skills to fill the job and Hamilton again said he would find someone. About a week later Hamilton and Campbell , the business manager of the Union , came to the shop. They said they wanted to discuss with Shulz his request for these men with special skills. They had a short discussion and then Campbell said he would find Shulz someone with the' special skills A few days later, on May 3, 1960, a Mr. McAdams appeared on the job with a referral slip as a man possessing the special skills. Shulz asked him a few simple questions about what takes place in a battery when it is charged and discharged and McAdams could not answer. Shulz also gave him a simple wiring diagram of a locomotive and asked him to tell him the sequence of operation . The man could not answer this question either, so Shulz felt that he wasn 't qualified to do the work and sent him back to the union hall. That same afternoon Hamilton called Shulz again and asked him if he was still in need of a man to do the work with these special skills. Shulz replied in the affirmative However, Shulz had not received any men -from the union hall since that date Counsel stipulated that McAdams registered in group 1 on May 2, 1960 , and was referred to the job and rejected by Shulz on May 3, 1960. It is undisputed that after May 3, 1960, the Union referred no more men to Shulz. D. The registration of Wood, the dispatch of other men - Jack L. Wood , the Charging Party, testified credibly that in late 1959 his daughter became ill so he wanted to find work in the Oroville area , where he owns his own INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 340 269 home so he quit the job he had with the firm of Wismer & Becker and went to the Union's hiring hall at Chico and registered for work on December 23, 1959. It was stipulated by counsel that on this date Wood was registered in group 3. On this oc- casion Wood talked to Hamilton who was in the union office at his desk. Wood asked to sign the out-of-work book and Hamilton handed him a book. Wood said, "I have to be in group 1." Hamilton said that he properly belonged in group 3. Hamilton then explained that Wood would have to pass an examination to be in group 1. Hamilton then asked Wood what Union he belonged to and Wood replied that he belonged to Local 800, I.B.E.W. Wood at that point told Hamilton that he had just come from the Union Valley job (the Wismer & Becker job) and had broken in Leighton, the man dispatched by the Union to replace him. Hamilton said that Leighton didn't need breaking in, that he was a tunnel man. On this occasion Wood sat around the hiring hall for approximately one-half hour, and at one point men- tioned to Hamilton that he had worked for the Walsh Construction Company at the Oroville yard. Wood testified that he had forgotten any reply made by Hamilton to this information. The Chico hiring hall is open 1 hour each day in the morning on Mondays and Wednesdays and, 1 hour in the morning and• 1 hour in the afternoon on Fridays. Between December 23, 1959, when he first registered and February 5, 1960, Wood returned to the hiring hall at Chico on an average of twice a week, each time asking Hamilton if there were .any job vacancies. After a couple of weeks somebody told Wood that he was supposed to notify Hamilton in writing that he was available for work. Wood asked Hamilton if that was required, Hamilton said he knew that Wood had been in the hall, and that Wood could send in a post card notification if he wanted to, but Hamilton did not offer any -book to Wood for his signature. At that time Wood was unfamiliar with the terms of the contract and did not know that there was a place in the book which he was'required to sign to obtain dispatch. Also during this period the Union posted a notice of wireman's examination by which the men moved from one group to a higher group. Wood told Hamilton that he would take the examination if it would -put him in group 1. Wood did not remember what Hamilton replied. At this time Wood telephoned to Krivanek, chairman of the NECA, and asked him if he knew when the examination would be held. He was told that the examination would take place on January 16. Accord- ing to Wood he talked to Hamilton both before and after that date on which he took the examination and on one occasion asked Hamilton when the results of the exam- ination would be posted. Hamilton said the -results of the examination would be announced at the next union meeting. Also during this period Wood had a further conversation with Hamilton in which he told Hamilton that he had worked for the Walsh Construction Company and had done-the type of work that Walsh had at the yard. Also around this time Wood talked with Hamilton about what group he should be in and in consequence of that conversation he obtained a statement from Local 800 showing that he had passed an experience rating test but when Wood presented this test to Hamilton the latter would not accept it. On February 5, 1960, Wood was in the dispatch hall to see about work when Hamilton gave him the group 4 book to sign. - Wood asked why he was being given the group 4 book Hamilton replied that Wood was not entitled to be in group 3. Wood signed the group 4 book. Also at an early date in February, Wood heard that Walsh Construction Company had asked for men with certain special skills which were needed in the repair of locomotives and batteries at the Oroville yard. When Wood heard of this, thereafter he noted on his dispatch slip that he had the skills of lead burner, welder, and d.c. battery repairman, etc. Wood testified that on February 12, 1960, he went to the union hall with Ward and saw the dispatch slip given to Ward. It stated that Ward had special skills of lead burning and d.c. battery repair. Wood asked Ward, why he was cleared before Wood and Ward said that Hamilton had said that Wood had not "verified" by sign- ing the out-of-work book. After that Wood "verified" by writing the date and his initials in the book. Thereafter between February 12 and March 18, it was openly discussed at the union hall that Shulz of the Walsh Construction Company was calling for a man with special skills of lead burning, welder, d.c. battery repairman, etc. On March 18, 1960, Wood went to the union hall and said to Hamilton, "I think there is a job open at Walsh's for a man with special skills. How about me?" Hamilton replied, "I don't know anything about it." A few moments later, Wood met another electrician by the name of Wheeler in front of the union hall. He told Wheeler about the job and what Hamilton had 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said. Wheeler then said that he would go into the hall and ask Hamilton about the job. A few minutes later Wheeler came out of the union hall accompanied by Hamilton. Wheeler waved a clearance slip at Wood. Hamilton and Wheeler got into a car and proceeded toward O'roville, so Wood followed in his car and found that Hamilton and Wheeler went to Walsh's yard. Wood went to the place in the yard where Wheeler, Hamilton, and Shulz were talking and Wood said to Shulz, "Didn't you want two men?" Shulz said, "No." Then Wheeler gave his dispatch card to Shulz and Shulz asked him about his qualifications and put Wheeler to work. After that occurrence on every occasion that he went to the union hall Wood would ask Hamilton about the Walsh job. Also after February 5, 1960, Wood signed the out-of-work book every 7 days. On most occasions when Wood asked Hamilton about employment at Walsh Construction Company Hamilton replied that he didn't know anything about Walsh needing a man. Wood was never dispatched to the Walsh job. William J. Campbell, business manager of the Union, testified in its defense. Campbell said that he believed that Hamilton called him and informed him that Shulz was ordering a man and had asked for Ward. He agreed that Ward had the special skills because he knew that Ward had worked for the Walsh Construction Company for quite a number of years. He told Hamilton that if Ward was the only man on the referral list and had the qualifications that he could send Ward to the job. After that Hamilton called him again and said that Shulz wanted an- other man with the same qualifications. He told Hamilton that he could not be- lieve that Shulz needed more than one man with the special skills. Campbell testi- fied that in his opinion he did not believe that Shulz' request for a man with special skills was a bona fide request and that he instructed Hamilton not to dispatch Wood to the Walsh Construction Company job. He said that he was also suspicious of Shulz, because Shulz was employing his son in the yard and that the son did not have the qualifications of an electrician. After he learned that Shulz had rejected several men who were sent to the job he became convinced that Shulz' request for a man with special skills was a subterfuge to evade the referral procedure. In view of Campbell's testimony, the examination of Stanley Hamilton, the busi- ness agent of the Union, who actually did the dispatching herein, is especially illu- minating. He was examined by the General Counsel as an adverse witness under Rule 43-B. When the examination of Hamilton reached the dispatch of specific men, Hamilton found himself in considerable difficulty. He stated that the first man he dispatched to the job was Arnold Olds, a member of the Union, who was dis- patched on February 5, 1960. He admitted that Olds registered on the same date and was assigned to group 1. Hamilton said he referred Olds to the Walsh Con- struction Company because of a prior conversation with Shulz. Upon further ques- tioning, Hamilton said that in this conversation Shulz had said that he wanted a man with special skills for d.c. motor repair, battery repair, and lead burning. Hamilton then stated that he didn't refer a man to the job for the next 15 days until Olds registered, because he didn't have a man with those qualifications. When he was asked why he hadn't dispatched Wood, who had those qualifications, he replied that he didn't know Wood's qualifications at that time. The General Counsel pointed out to him that after January 22, Ward was registered with the Union. To this Hamilton replied that he did not know that Ward had those special skills at that time. At this point he was asked why he hadn't dispatched a man until Feb- ruary 12, and he again replied that he had no man with the necessary qualifications. The witness then testified that he must have learned that Ward had the skills some- time prior to February 12, 1960, when he dispatched Ward to the job. Hamilton then confirmed Shulz's testimony that about 2 weeks after the dispatch of Ward, Shulz called again and asked that another man with special skills be dis- patched to the job. The witness then agreed with the questioner that he did not dispatch a man to the job until March 18, 1960, when he dispatched Wheeler. When asked why he didn't send a man out during that period he replied that he had no man with the required qualifications. When he was reminded that he had Jack Wood, the Charging Party, he replied that Jack Wood at that time was assigned to group 4. This answer I cannot accept, for at this time when Wood was the only special skills man on the entire list, the group in which he was listed, was irrelevant. It was then pointed out to Hamilton that he waited 3 weeks. He answered that it appeared to him that Shulz was using this special skills routine to bypass the referral system.2 The witness concluded his examination by admitting that no one had been sent to Shulz since May 3, 1960, although Wood was still available on the Union 2 See testimony of Hamilton, transcript pages 144 et seq. INT'L BROTHERHOOD, ELECTRICAL WORKERS, LOCAL 340, 271 out-of-work list. The witness also admitted that all five men dispatched to the job with Shulz, were men who were not at the top of the list, but were dispatched as special skills men. E. The appeals of Wood On two occasions Wood availed himself of the appeal procedures set forth in the contract to seek a review of Hamilton's treatment of him. On the first occasion he appealed Hamilton's decision to put him in group 4. The three-man appeals com- mittee found that Wood was properly placed in group 4. On March 18, 1960, Wood again appealed on the dispatch of Wheeler to the Walsh job, instead of himself. The minutes of this meeting of the appeals commit- tee are quite enlightening. They establish that Hamilton knew of Wood's special qualifications, and that Shulz wanted Wood dispatched to the job. However, the decision of the committee stated that at a meeting at Yuba City, "all dispatch books of Chico were thoroughly examined and B. A. Hamilton questioned about the same," and that the committee "feels the Complainant has been referred from group 4 without discrimination." It is worthy of note that Wood was not invited to attend or give evidence as to his side of the controversy. Upon the facts disclosed in this record, I find that the appeals committee in the cases of Wood at least, was a rubberstamp for the conduct of the Union's business agent and afforded Wood no opportunity to be heard, and offered him no genuine review of the facts of his appeal. On that basis, I reject, the Union's argument that the decisions of the appeals committee have any standing before the Board. Concluding Findings It is abundantly clear from the testimony of Shulz, whom 'I deem a reliable witness, that the Walsh Construction Company at its Oroville yard performs work on the repair and maintenance of mine locomotives , heavy-duty batteries and other elec- trical tunneling equipment. The nature of this electrical work is distinctly different from that performed by "inside and outside wiremen," who install and repair elec- trical wiring in industrial, commercial, and residential structures. Apparently the International Union recognizes this difference in functions and skills, for it has "rail- road" locals, and "wiremen's" locals, and experience in one field is not accepted as qualifying experience in the other. Furthermore, the contract between the parties recognizes a need for some flexibility in obtaining, men with special skills, and for that reason the mechanics by which employers can obtain men with special skills is spelled out in the contract. Upon all the evidence on this point, I find that the company needed men with the special skills enumerated and that its continuing request for such men was bona fide in all respects. It is equally clear, from his long history of employment, and from the fact that he had been employed in the Oroville yard for over a year on a previous occasion, that Wood possessed the special skills requested by Shulz. It is also clear, especially from the testimony of Hamilton that except for Ward, Wheeler, and Wood, all former employees of Walsh, that the Union did not have on its out-of-work lists in any group, men with the required skills. Hamilton ad- mitted this, in explaining the long delays which occurred between the dispatch of the various men. Why then was Wood refused the dispatch to which he was entitled? On this point I cannot accept the testimony of either Campbell or Hamilton. They claimed that they felt aggrieved at, and were suspicious of Shulz, because of three factors: (1) Shulz had his son employed at the yard, and they suspected he was doing electrical work, but the record is barren of any action that either Hamilton or Campbell took against Shulz in this regard; (2) they suspected that Shulz' request for men with special skills was a subterfuge to avoid the referral procedure. Yet, after Hamilton and Campbell discussed the situation with Shulz, Campbell agreed to try to find a man with the special skills for Shulz, and Hamilton dispatched McAdams to the job thereafter; and (3) Hamilton and Campbell felt that Shulz was using pressure to get Wood . This statement is inconsistent with the conduct of the Union, in the dispatch of Ward, Shulz' son-in-law, who was requested by name by Shulz, and dispatched to the job by Hamilton. In the light of all the evidence, I must reject the testimony of Campbell and Hamilton on this point , as being en- tirely unpersuasive. I deem it a rather flimsy screen behind which the Union hopes to hide its patent discrimination against Wood. Upon a review of the evidence, I find that prior to the dispatch of Ward, on Febru- ary 12, 1960, Hamilton was fully aware that ( 1) Shulz wanted a man with special 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD skills, and ( 2) Wood, who had been registered since December 23, 1959 , possessed those special skills. At this point, Wood was entitled to be dispatched to the job, and when he was not so dispatched , the discrimination against him became effective. The purpose of this discrimination is fairly obvious . Hamilton desired to prefer members of his own local , or other sister "wiremen's" locals, over Wood whom he considered a newcomer , from a railroad local. Hamilton very readily dispatched Olds, Ward, Wheeler, Wing, and McAdams, over a 5-month period. These were wiremen from Hamilton's own local, or a sister wiremen's local , but he would not dispatch Wood, the newcomer from a railroad local. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. i V. THE REMEDY Having found that the Union has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (b) (2) of the amended Act, the Trial Ex- aminer will recommend that it cease and desist therefrom and take certain affirma- tive action in order to effectuate the policies of the amended Act. Having found that in violating Section 8 (b)(1)(A) and (b) (2) of the Act, the Union has deprived Jack L. Wood of employment by Walsh Construction Company, it will be recommended that: (1) the Union notify Walsh Construction Company, in writing, and furnish a copy of said notification to Wood , that it has withdrawn its objections to the employment of Wood at the Company 's shop at Oroville, California, and request the Company to offer Wood employment at that plant ; and (2) the Union make Wood whole for any loss of pay he may have suffered by reason of the Union preventing his employment by the Company from February 12, 1960, to the date of the Union's notification to the Company, as set forth above, according to the following formula: Wood's loss of pay shall be computed on the basis of each separate calendar quarter, or portion thereof, from February 12, 1960, to the date on which the Union serves its notice upon the Company of its withdrawal of ob- jection to Wood's employment ; the quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October Loss of pay shall be determined by deducting from a sum equal to that which Wood would normally have earned for each such quarter or portion thereof, his net earnings,3 if any, in any other employment during the period . Earnings of one particular quarter shall have no effect upon the Union's liability for any other quarter. Upon the above findings of fact, and upon the entire record in the case , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1 Walsh Construction Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the amended Act. 4. By causing Walsh Construction Company, an employer , to discriminate against an employee in violation of Section 8(a)(3) of the amended Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the amended Act. [Recommendations omitted from publication.] 8 See Cro8sett Lumber Company, 8 NLRB 440; Republic Steel Corporation v N L R B , 311 U.S . 7, F. W. Woolworth Company, 90 NLRB 289.