Local 367, Int'l Brotherhood Electrical Workers

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner further recommends that , unless within 20 days from the receipt of this Intermediate Report , Respondent has notified the Regional Director that it will comply with the foregoing recommendations , the Board issue an Order requiring Respondent to take the aforesaid action. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the Labor Management Relations Act, 1947, as amended , we hereby notify our employees that: WE WILL NOT discriminate in regard to the hire or tenure of our employees. because they have filed charges or given testimony under the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization , to form , join, or assist International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection , or to refrain from any and all such activity, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL offer Isal Langevin immediate and full employment to the position she would have had except for our discrimination against her, or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and will make her whole for any loss of pay she has suffered as a result of the discrimination against her. All our employees are free to become , remain, or refrain from becoming members of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization , except to the extent that this right may be affected by a lawful agree- ment, requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)-(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. MINNESOTA MANUFACTURING COMPANY, INC., Employer. 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. Local 367, International Brotherhood of Electrical Workers,. AFL-CIO and Stuart E. Pipher and Stanley R. Melvin and Easton Branch, Penn-Del-Jersey Chapter, National Electrical Contractors Association . Cases Nos.. -CB-632-1 and 4-CB-- 632-2. November 14, 1961 DECISION AND ORDER On June 5, 1961, Trial Examiner C. W. Whittemore issued his In- termediate Report in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto.. 134 NLRB No. 21. LOCAL 367, INT'L BROTHERHOOD ELECTRICAL WORKERS 133 Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a brief in sup- port of the Intermediate Report. The Board I 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 Inter- mediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] '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 [Chairman McCulloch and Members Rodgers and Leedom]. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and served in each of the above-entitled cases; an order consolidating the cases, a complaint, and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board; and an answer having been filed by the Respondent Union, a hearing involv- ing allegations of unfair labor practices in violation of Section 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended , was held in Allentown, Pennsyl- vania, on April 24 and 25, 1961 , before the duly designated Trial Examiner. At the hearing General Counsel and the Respondent Union appeared by counsel, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from both counsel. Disposition of the Respondent's motion to dismiss the complaint , upon which rul- ing was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE "PARTY TO THE CONTRACT" Easton Branch, Penn-Del-Jersey Chapter, National Electrical Contractors Associ- ation, is a trade association comprised of member-employers, with its principal office in Allentown, Pennsylvania. The Association exists for the purpose, among others, of negotiating and admin- istering collective-bargaining agreements made for and on behalf of its member- employers with labor organizations representing employees of such employers. At all material times each of the Association member-employers has maintained a place of business in Pennsylvania, and is engaged as an electrical contractor in the building and construction industry. During the year preceding issuance of the complaint the Association member- employers were furnished and received electrical supplies and equipment valued at more than $50,000, directly and indirectly from States other than the Common- wealth of Pennsylvania. During the same period such employers performed electrical contracting and other services valued at more than $50,000 in States other than the Commonwealth of Pennsylvania. The Association and its member-employers are engaged in commerce within the meaning of the Act. II. THE RESPONDENT UNION Local 367, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization representing employees of the Association member-employers. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and issues For a number of years the Association and the Respondent Union have been parties to a collective-bargaining agreement. The contract in effect in 1960, when the issues of this case arose, contains a "hiring hall" provision whereby the parties agreed that the "Union shall be the sole and exclusive source of referrals of applicants for employment" and that the "Employer shall have the right to reject any applicant for employment." The same contract provided as follows: ART. 6.4. The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for em- ployment shall be registered in the highest priority group for which he qualifies. Group I-All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the I.B.E.W. and who have been employed for a period of at least four years under a collective bargaining agreement between the parties to the agreement. Group 11-All applicants for employment who have four or more years' experience in the trade and who have passed a journeyman's examination given by a duly constituted Local Union of the I.B.E.W. Group 111-All applicants for employment who have two or more years' experience in the 'trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six months in the last three years in the trade under a collective bargaining agreement between the parties to this agreement. Group IV-All applicants for employment who have worked at the trade for more than one year. In a section of the contract entitled "Definitions" appears the following: Examinations-an "examination" shall include experience rating tests if such examination shall have been given prior to the date of this agreement (April 30, 1959), but from and after the date of this agreement shall include only written and/or practical examinations given by this Local Union, or any other duly constituted Local Union of the I.B.E.W. Reasonable intervals of time for ex- aminations are specified as every six (6) months. An applicant shall be eligible for examination if he has four years' experience at the trade. , Both of the Charging Parties, Stuart F. Pipher and Stanley R. Melvin, have been for many years (and still were at the time of the hearing) members of the Respond- ent Union. The remaining nub of the complaint, after modifying amendments at the hearing,, is to the effect that at all times since March 7, 1960, a date 6 months before the filing of the charges, the Respondent Union violated the above-cited sections of the amended Act by refusing to .refer Pipher and Melvin to available job's because they had "engaged in opposition to certain policies and the administration of Respondent and its officers." B. The relevant facts Because motive, lawful or not, is here relevant only if discrimination in referral actually occurred, whether appraised in terms of Section 8(b)(2) or Section 8(b) (1) (A), the factual question will first be considered.' Credible evidence establishes that on March 21, 1960-for the first time after March 7 (the date of the 6 months' bar)-Melvin and Pipher appeared at the Local's hiring hall to seek referral to any available work. Although both electricians had been working out of the Local's hiring hall for several years as journeymen, on this occasion of reporting each was informed by Business Manager George Wilson that because union records failed to reveal that either had passed the "examination" required under and defined by the contract ^ 1In essence . Section 8 ( b) (2) makes it an unfair labor practice for a Union to cause an employer himself to violate Section 8(a) (3) by discriminating as to hire In order to en- courage or discourage union membership , and Section 8(b) (1) (A ) makes it an unfair labor practice for a labor organization to restrain or coerce employees in their exercise of rights guaranteed by Section 7 of the Act LOCAL 367, INT'L BROTHERHOOD ELECTRICAL WORKERS 135 quoted above, he was being listed under "Group III"-thus placing them far down on the lists of referral. On the same occasion both Pipher and Melvin were offered an opportunity to examine union records and to take such examinations as would qualify them for group I. Both refused. They remained in group III, and it appears that neither has since then been referred to jobs by this Local. At the hearing counsel for the Re- spondent conceded that had the two been carried in group I, they would have been referred to jobs after March 21. C. Conclusions Counsel's concession, noted immediately above, is sufficient ground for the con- clusion that under other circumstances both Pipher and Melvin probably would have been referred by the Respondent to work in this area on or after March 21. This conclusion, however, in the opinion of the Trial Examiner, does not require the inference that the two applicants were discriminated against in any manner or respect. The contractual provisions concerning referrals and examinations had been agreed to by the Respondent and the Association long before March 1960. At the hearing General Counsel made no specific claim, and the complaint does not so allege, that these- provisions are, per se, unlawful? While it is true that actual "implementation" of these provisions was not begun until early in 1960, they were not by this delay negated or rendered illegal. It is un- disputed that in January 1960, the Local's executive board ordered the business manager to put into effect such implementation and that at the following member- ship meeting members generally were informed of the Board's action. Melvin, indeed, as a witness admitted having been present at membership meetings when the requirement for examinations was announced and discussed. There is not the slightest evidence that the examination rule was not applied im- partially to all members. On the contrary, it is undisputed that some 47 members took such examinations during the material period, and that some 7 or 8 who failed were thereupon placed in group III, as were the 2 individuals here involved. All 47 who took the tests had been theretofore recognized and referred as "journeymen"-as had both Melvin and Pipher. Two taking the tests had 40 years standing as journey- men. Even the foreman, son of the Local's president, Coleman, was required to, and did, take the examination. Nor is there any persuasive evidence that the rule itself evolved from any unlawful purpose, or was designed specifically to discriminate against either Melvin or Pipher. Nor is there convincing evidence that business manager erred, intentionally or otherwise, on March 21 in informing both applicants that union records failed to show that either had previously passed the required examinations. Both were given an opportunity then-and later by an international representative-to examine the books, but both declined. In refusing to abide by the rules of their own local, it would appear that neither Melvin nor Pipher could expect to avoid being placed in group III. Their refusal in effect invited the action which followed. The Trial Examiner therefore concludes and finds that any lack of referrals they may have suffered after March 21, 1960, was caused by their own refusal to abide by a nondiscriminatory rule, generally and without discrimination applied. The Respondent has not, so far as this record shows, unlawfully discriminated against, or caused employers unlawfully to discriminate, against Melvin and Pipher, within the meaning of Section 8 (b) (1) (A) and (2) of the Act Whether or not an unlawful motive existed is immaterial, and will not be dis- cussed here. Our jails would bulge and hangmen would be overworked if motive alone warranted conviction. It will therefore be recommended that the complaint be dismissed in its entirety. [Recommendations omitted from publication.] 2 The Trial Examiner believes it would be improper for him to pass upon General Counsel's claim, made for the first time in his brief, that the contract between the parties violated the Act because of the Union's "exclusive fpntrol over the seniority priority referral system," and his argument in support of the belated claim When, early in the hearing and during discussion of the specific issues raised by the complaint, the Trial Examiner pointed out to General Counsel • "You spell out nothing illegal about the con- tract," General'Counsel replied : "That is correct But it is an exclusive hiring hall that has been discriminatorily used to deprive people of their job rights " [Emphasis supplied.]