Local Union No. 269, IBEW, AFL-CIO

768- DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform the work of unloading, moving, uncrating, disassembling, assembling, raising, placing, installing, and repairing of fume hoods at Central Michigan University, Mount Pleasant, Michigan. 2. Local 408, Sheet Metal Workers' International Association, AFL- CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to sheet metal workers who are represented by the Sheet Metal Workers. 3. Within 10 days from the date of this Decision and Determination of Dispute, the Sheet Metal Workers shall notify the Regional Direc- tor for Region 7, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to sheet metal workers rather than to carpenters. Local Union No. 269, International Brotherhood of Electrical Workers, AFL-CIO and Arthur J. Hazeltine and Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, Party to the Contract Local Union No. 269 , International Brotherhood of Electrical Workers, AFL-CIO and Frank Keorkle and Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, Party to the Contract Mercer County Division , New Jersey Chapter, National Electri- cal Contractors Association and Frank Keorkle and Local Union No. 269, International Brotherhood of Electrical Work- ers, AFL-CIO, Party to the Contract Local Union No. 269, International Brotherhood of Electrical Workers, AFL-CIO and Frank Keorkle and Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, Party to the Contract. Cases Nos. 22-CB-337, 22-CB-461, 22-CA-1459, and 22-CB-571. November 18, 1964 DECISION AND ORDER On January 2, 1964, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Local 269, Inter- national Brotherhood of Electrical Workers, AFL-CIO, herein called Respondent Local 269, had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Mercer County Divi- sion, New Jersey Chapter, National Electrical Contractors Association, herein called Respondent Association, did not engage in any unfair 149 NLRB No. 74. LOCAL UNION NO. 269, IBEW, AFL-CIO 769 labor practices and recommended that the complaint be dismissed in its entirety as to it. Thereafter, the General Counsel and Respondent Local 269 1 filed 'exceptions to the Trial Examiner's Decision and sup- porting briefs. 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 Trial Examiner's Decision and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. As set forth in the Trial Examiner's Decision and reflected in the record, since at least 1959, Respondents have been parties to collective- bargaining agreements containing exclusive hiring hall provisions. Each agreement has certain classifications consisting of several groups of applicants for referral. Preference was accorded applicants on the basis of their group assignment. Thus, persons assigned to group I received preference to available work over all other applicants. Per- sons in group II were preferred over those in group III, and so forth. The criteria for assignment to the various groups were set forth in the collective-bargaining agreements. During the period 1959 to March 30, 1962, these criteria, to the extent relevant herein, were as follows : Group I: All applicants for employment who have 5 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 IBEW, and who have been employed for a period of at least 1 year in the last 4 years under a collective- bargaining agreement between the parties to this addendum. Group II : All applicants for employment who have 4 or more years' experience in the trade and who have passed a journeyman's examination given by a duly constituted local union of the IBEW. Group III : All applicants for employment who have 2 or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least 6 months in the last 3 years in the trade under a collective-bargaining agreement between the parties to this addendum. Group IV : All applicants for employment who have worked at the trade for more than 1 year. 1 Respondent Local 269's request for oral argument is hereby denied, as the record, ex- ceptions , and briefs adequately present the issues and the positions of the parties. 770-076-65-vol. 149-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 30, 1960, while the above provisions were in effect, Hazeltine, an applicant for referral, filed a charge against the Union in Case No. 22-CB-337 alleging that it had violated Section 8(b) (1) (A) and (2) of the Act by discriminatorily refusing to refer appli- cants because they were not members. In substance, the charge grew out of the fact that the journeyman test:requirement for assignment to groups I and II was being discriminatorily administered. On March 30, 1961, that case was settled upon the Union's agreement, among other things, to cease refusing to certify the test results of non- members, to cease giving referral preference to members of the Union, and to pay Hazeltine $300 in backpay, although the Union did not con- cede that it had violated the Act. Nevertheless, sometime before the settlement, Rupert Jahn, Respondent Union's business agent, in an affidavit submitted to a Board agent, admitted that the Union's estab- lished practice was as follows : To be eligible to take these tests in our local a man has to serve an apprenticeship in the local for 5 years. ... Also, if a man can prove to us that he worked in nonunion shops for a period of over 5 years, and then elected to join the Union, he would be eligible to take that test. . . . We would not certify that a man passed our test unless that man joined our local. On August 22, 1961, the parties renegotiated their collective- bargaining contract renewing, without changing, the preexisting hir- ing hall provisions set forth above. On October 27, 1961, another individual, Frank Keorkle, filed 8(b) (1) (A) and (2) charges against Respondent Union in Case No. 2-CB-461. In substance, the new charge alleged that in the administration of the August 1961 con- tract, the Union was discriminatorily preferring members over non- members in referral to available employment. On or about May 8, 1962, the Respondent Union and Keorkle entered into an informal settlement agreement approved by the Regional Director which pro- vided, in part, that the Union would not operate its hiring hall in an unlawful manner by conditioning referral upon membership in Re- spondent Union No. 269. As part of the settlement, the Union, al- though not conceding that it had violated the Act, paid Keorkle about $2,500 in lost wages. In connection with this settlement agreement, the Union stipulated to the fact : From on or about April 27, 1961, to on or about May 1, 1962, applicants who were members of Local 269 were referred for employment by Local 269 before Group I applicants who were not members of Local 269 and who had registered for. employ-. ment prior in time of the particular applicant who was a mem- ber of Local 269. No Group I applicant who was not a member LOCAL UNION NO. 269, IBEW, AFL-CIO 771 of Local 269 was referred to employment while applicants who were members of Local 269 were available for employment, not- withstanding the fact that the Group I applicant who was not a member of Local 269 had registered prior to the time the appli- cant who was a member of Local 269 became available for employment. At the time that Respondent Union was negotiating a settlement of the October 1961 charges, it was engaged in amending the hiring hall provisions ,of the existing collective-bargaining contract. These amendments appear to have gone into effect on or about May 1, 1962, or 7 days before the settlement agreement in 22-CB-461 was executed. The amendments revised the employment priorities as follows : Group I: All applicants for employment who have 5 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 Local Union 269 and who have been employed for a period of at least 5 years under a collective-bargaining agreement between the parties to this agreement. Group II : All applicants for employment who have had 5 or more years' experience in the trade, are residents of the geo- graphical area constituting the normal construction labor mar- ket, have passed a journeyman's examination given by a duly constituted union of the IBEW other than Local Union 269, and who have been employed for a period of at least 5 years under a collective-bargaining agreement between the parties to this agreement. Group III: All applicants for employment who have 5 or more years' experience in the trade, and who have passed a journeyman's examination given by a duly constituted local union of the IBEW. Group IV : All applicants for employment who have 2 or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, and who have been employed for at least 6 months in the last 3 years in the trade under a collective-bargaining agreement between the parties to this agreement. Group V : All applicants for employment who have worked at the trade for more than 1 year. Under the 1959 and 1961 agreements, any local could administer the journeyman test to group I and II applicants and only 1 year's experience was required under a collective-bargaining contract ad- ministered by Respondent Union. In order to qualify for group I 772, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amended agreement recognized, however, only a test that was administered by Respondent and it increased to 5 years the work experience requirement under a contract administered by Respondent. Also, under the amended agreement, the 5-year work experience re- quirement was extended to group II. It is not disputed that since May 1962 the Association and the Union have maintained the, amended agreement in force and effect. On January 4, 1963, Keorkle filed the present charges against Re- spondent Union in Case No. 22-CB-576, and against Respondent. Association in Case No. 22-CA-1459. On July 16, 1963, the Regional Director upon investigation withdrew approval of, vacated, and set aside the informal settlement agreements, and issued a consolidated complaint against Respondent based on all charges. The Trial Examiner found that the 1962 contract modifications perpetuated the illegal preferences in referrals with which union members had been favored in preceding years, and that by continu- ing such illegal preferences the Union failed to comply with the terms of its settlement agreement .2 The Trial Examiner therefore found without merit the Union's contention that the Regional Direc- tor had improperly set aside the settlement agreements. However, the Trial Examiner refused to find that the Union, by continuing the illegal preferences in referral, engaged in an inde- pendent unfair labor practice, since in his opinion it would have been necessary, contrary to established principles,3 to consider events pre- ceding the May 8 settlement and the finding would therefore not stand independently of presettlement conduct. Considering the rec- ord in its entirety, the Trial Examiner found that by denying non- member applicants for employment an opportunity to take its jour- neyman examination, by referring union members in preference over nonmembers in the same priority classification, and by giving effect to contract requirements of past prior employment under contract between the Union and the Association, the Union caused or at- tempted to cause the employer-member of the Association to discrimi- nate against employees or applicants for employment in violation of Section 8((a) (3) and thereby violated Section 8(b) (1) (A) and (2) of the Act. We agree with the Trial Examiner that the Union had failed to comply with the terms of the settlement agreements and that such failure warranted the Regional Director in setting aside the settle- 2 The Trial Examiner viewed the case as one "where the unfair labor practices which constituted the broad substance of the earlier charges never ceased, and in which the present preference in employment guaranteed to members of Local 269 is so enmeshed with the illegal preference accorded to them in the past that the postsettlement events cannot be separated from the conduct of the past " 8 See Larrance Tank Corporation, 94 NLRB 352. LOCAL UNION NO. 269, IBEW, AFL-CIO 773 ment agreements and reinstating the charges in the earlier cases. We therefore further agree with the Trial Examiner that on the record as a whole the Respondent Union by its presettlement conduct as well ,as its postsettlement conduct violated Section 8(b) (1) (A) and (2) of the Act. But we also find, contrary to the Trial Examiner, that by maintaining in effect an agreement which in operative effect gave priority in referral to union members over nonmembers, the Union engaged in an independent unfair labor practice and therefore such ,conduct equally justified the Regional Director in setting aside the settlement agreements and reinstating the earlier unfair labor prac- tice charges.4 Our finding that the Union by such conduct engaged in an unfair labor practice is neither barred by Section 10(b) of the Act, nor does it run counter to the Board's established practices relating to settle- ment agreements. It is evident that in the years preceding the adop- tion of the amendments to the 1962 contract, members of Respondent Union Local 269, for no reason other than their union membership, had been favored in work referrals. Therefore, when the Respondent Union and Association adopted the 1962 amendments prescribing for the first time 5 years' employment under past contracts of Local 269, and successful completion of a journeyman's examination given by Local 269, as requirements for assignment from the new priority group I, the inevitable consequence was to give Local 269 members continued preference in referral. It is clear that only by virtue of their union membership were they given first opportunity to accumu- late the necessary work experience to satisfy the requirements of pri- ority referral from group I. To ignore this clear fact would, as the Trial Examiner observed, run counter to the simplest realities. It is true that a literal reading of the amended contract does not reveal its intrinsic discriminatory nature,5 except to those members of Local 269 and nonmembers who had made use of the Union's hiring hall under the terms of the earlier agreements and had knowledge of Respondent Union's practices. And it is also true that, before its discriminatory design becomes apparent, the contract must be inter- preted against a background of union conduct preceding the settle- ment agreements which occurred more than 6 months before the filing of the earliest charges. However, it is not the past conduct of the Union which, although unlawful, we are finding to be the independ- ent violation of the Act. Rather it is the maintenance of the present 4 Dressmakers Joint Council, International Ladies' Garment Workers Union, AFL-CIO (Susan Evans, Inc.), 146 NLRB 559. 5 Although the General Counsel appeared to concede the validity of the other provisions of the agreement, in the absence of a charge with respect to the agreement itself, we find it unnecessary to pass on the legality of the amended contract. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawful contract, within the statutory period, that is violative of Section 8 (b) (1) (A) and (2) of the Act .6 We are not, unlike Bryan Manufacturing Co.,7 dealing with a situ- ation where contract provisions are wholly innocent and where refer- ence must be made to a prior unlawful act in order to infuse with illegality an otherwise valid provision. Here the Union's intent in amending the contract, as found by the Trial Examiner, was to accord priority in preference to members of the Union and the device to achieve this result was to predicate referral on the basis of a work experience which its members had been unlawfully permitted to ac- cumulate first." We regard this case as one "where occurrences with- in the 6-month limitations period in and of themselves may consti- tute as a substantive matter, unfair labor practices" and "[where] earlier events may be utilized to shed light on the true character of matters occurring within the limitations period." 9 Accordingly, we find that by the foregoing conduct Respondent Union violated Sec- tion 8(b) (1) (A) and (2) of the Act. The Trial Examiner dismissed the complaint as to the Respondent Association on the grounds that the Association had no knowledge of the Union's unfair labor practices in the operation of the hiring hall and was not shown to have done anything illegal after July 4, 1962, the beginning of the 6-month statutory period of limitations. It is not disputed, however, that the Association was party to all agreement which accorded unlawful preference in referrals to union members and that such contract was maintained in effect within the statutory period of limitations. The only question we have before us therefore is whether, under the circumstances, the Association knew or should have known that the contract gave unlawful priority in referral to union members.10 In that connection the Trial Examiner found that the officers of the Association knew before they agreed to the 1962 revised standards that Local 269 had twice been charged with giving priority in refer- ral to its members and that Local 269 had twice promised not to favor its members unlawfully. The circumstances of these settlements clearly put the Association on notice that union membership was a factor in accumulating such work experience. Nevertheless, the Re- spondent Association agreed to the revised standards. Accordingly, in Case No. 22-CA-1459, we find on the record as a whole that by ewe are not finding the execution of the amended contract to be violative of the Act since the execution occurred more than 6 months before the filing of the charges in Cases Nos. 22-CA-1459 and 22-CB-571 I I Lodge Local 1424, International Association of Machinists (Bryan Manufacturing Co.) v. N.L R B., 362 U.S. 411. 8 See International Marine Terminals , Inc., 137 NLRB 588 b Lodge Local 1424, at al (Bryan Manufacturing Co.) v. N L.R.B , supra, at page 416. 10 N.L R B. v. Southern Stevedoring and Contracting Company, 135 NLRB 544, enfd. 332 F. 2d 1017, 1019 (C.A. 5). LOCAL UNION NO. 269, IBEW, AFL-CIO 775 maintaining the 1962 amended contract, the Respondent Association violated Section 8 (a) (3) and (1) of the Act. Having found in agreement with the Trial Examiner that the Re- spondent Union engaged in certain unfair labor practices in violation of the Act, we shall order that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. We have, however, found, in disagreement with the Trial Examiner, that the Respondent Union and Respondent Association engaged in an independent unfair labor practice by maintaining in effect since July 4, 1962, a contract which gives unlawful preference in hiring to members of Respondent Union. We shall therefore also order that the Respondent Union and Respondent Association cease and desist from maintaining, enforcing, or otherwise giving effect to their contractual arrangement and practice, whereby priority in referral is based on past employment under contracts between the Union and the Association. As noted heretofore the Respondent Union, as part of the informal settlement agreements which it entered into with employees Hazel- tine and Keorkle, paid to them the sum of $300 and $2,500, respec- tively, in settlement of their claimed loss of pay suffered as result of the Respondent Union's discrimination against them. On the record as a whole we have no reason to doubt that the Respondent Union discriminated against employees Hazeltine and Keorkle in the matter of job referral. Although the settlement agreements were set aside by the Regional Director, and we have sustained the propriety of such action, we find it unnecessary in order to effectuate the policies of the Act to set aside the settlement agreements insofar as they con- stitute a satisfaction of the backpay claims of Hazeltine and Keorkle. ORDER A. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Local 269, International Brotherhood of Electrical Workers, AFL-CIO, its.officers, agents, successors, assigns, and rep- resentatives, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or otherwise giving effect to its exclu- sive hiring hall contractual arrangement and practice with Mercer County Division, Now Jersey Chapter, National Electrical Contrac- tors Association, or any other employer engaged in commerce, by denying to nonmember applicants for employment opportunity to take journeyman's examination, by referring Local 269 members for work out of the hiring hall in preference over nonmembers in the same priority classification,' or by, maintaining, enforcing, or other- 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise giving effect to requirements of past employment under collective-bargaining contracts between the Union and the Employer Respondent as a basis for priority in referral. (b) Causing or attempting to cause Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any other employer engaged in commerce, to discriminate against em- ployees or applicants for employment in violation of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees of employer-members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 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) Keep permanent records of its hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. (b) Upon request of the Regional Director of the Board or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. (c) Post at its business office and hiring hall in Trenton, New Jersey, copies of the attached notice marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for Region 22, shall, upon being duly signed by the Union's representative, be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members and other persons using Local 269's hiring hall are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph (c) above, and as soon as they are forwarded by the Regional Director for Region 22, copies of the Respondent Asso- ciation's notice herein marked "Appendix B." (e) Mail to the Regional Director for Region 22 signed copies of the attached notice marked "Appendix A" for posting by Respondent National Electrical Contractors Association, at their places of busi- ness in places where notices to employees are customarily posted. u In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." LOCAL UNION NO. - 2 6 9 , IBEW, AFL-CIO 777 Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by the Respondent Local 269's representative, be forthwith returned to the Regional Director for posting. (f) Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Decision, what steps have been taken to comply herewith. B. Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, Trenton, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, enforcing, or otherwise giving effect to any con- tractual arrangement or practice wherein requirements of past employment under collective-bargaining contracts with Local 269, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, and Respondent Association, is a basis for priority in referral. (b) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent such rights may be 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 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) Post at offices or regular places of business and at jobsites in Trenton, New Jersey, copies of the attached notice marked "Appen- dix B." 12 Copies of said notice, to be furnished by the Regional Director for Region 22, shall, after being duly signed by Respondent Association's representative, be posted by Respondent Association immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Association to insure that said notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in paragraph (a) above, and as soon as they are forwarded by the Regional Director for Region 22, copies of Respondent Local 269's notice herein marked "Appendix A." 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Mail to the Regional Director for Region 22 signed copies of the attached notice marked "Appendix B" for posting by Respondent Local 269, International Brotherhood of Electrical Workers, AFL- CIO, at its office, hiring hall, and meeting halls, in places where notices to members and to other persons using Local 269's hiring hall are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of Respondent Association, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER BROWN took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS, AND OTHER PERSONS USING THE HIRING HALL OF LOCAL UNION No. 269, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO 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, as amended, we hereby notify you that : WE WILL NOT maintain, enforce, or otherwise give effect to any exclusive hiring arrangement or practice with Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, where preference in referrals is based on union. membership. WE WILL NOT maintain, enforce, or otherwise give effect to clauses in any collective-bargaining agreement with that Associa- tion or with any other employer engaged in commerce over whom the Board would assert jurisdiction, that grants preferential treatment to employees or applicants for employment based upon prior experience covered by contract between us and such employ- ers as a basis for priority in referral. WE WILL NOT deny to nonmember applicants for employment opportunity to take our journeyman's examination where such examination is a factor for orderly referral to employment out of our hiring hall. WE WILL NOT cause or attempt to cause Mercer County Divi- sion, New Jersey Chapter, National Electrical Contractors Asso- ciation, to discriminate against employees or applicants for employment in the exercise of their rights guaranteed in Section 7 of the Act. LOCAL UNION NO. 269, IBEW, AFL-CIO 779 WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with, members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any other employer over whom the Board would assert jurisdiction, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent per- mitted by an agreement requiring membership in a labor organi- zation 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. WE WILL keep permanent records of our hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. WE WILL, upon request of the Regional Director of the National Labor Relations Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. LocAL UNIoN No. 269, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL-CIO Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. MArket 4-6151, if they have any question con- cerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify our employees that : WE WILL NOT maintain, enforce, or otherwise give effect to any contractual arrangement or practice wherein requirements of past previous employment under contracts between Local 269, Inter- national Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, and our Association, is a basis for pri- ority in referral. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees or applicants for employment in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent permitted 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 modified by the Labor- Management Reporting and Disclosure Act of 1959. MERCER COUNTY DIVISION , NEW JERSEY CHARTER, NATIONAL ELECTRICAL CON- TRACTORS ASSOCIATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. MArket 4-6151, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner Thomas A. Ricci in Newark, New Jersey, on October 14, 15, and 16, 1963, on con- solidated complaint of the General Counsel and answers of Local Union No. 269, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union Respondent or the Union, and Mercer County Division , New Jersey Chapter, National Electrical Contractors Association , herein called the Company Respondent, the Asso- ciation, or the Company. The issue litigated was whether the Respondent Union has violated a Section 8(b)(1)(A) and 8 (b)(2) of the Act, and whether the Re- spondent Company has violated Section 8(a)(3) and 8 (a) (1). The General Counsel filed a brief with the Trial Examiner after the close of the hearing ; counsel for each of the Respondents wrote a letter to the Trial Examiner, reiterating some of their contentions made at the hearing ; all these papers have been placed in the Board's formal files of the case. Upon the entire record and from my observation of the witness I make the fol- lowing: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY RESPONDENT Mercer County Division , New Jersey Chapter, is a subordinate group of the National Electrical Contractors Association ; an employer association whose members are engaged in the building and construction industry performing electrical work; Mercer County Division functions in certain areas of the State of New Jersey. In part, the Association operates as the bargaining agent, vis-a-vis a number of labor organizations, on behalf of its constituent employer-members. Peifer Electric Co., Inc., is a member of Mercer County Division , and is a cor- poration organized under the laws of the State of New Jersey. At all times material hereto Peifer has maintained its principal office and place of business in Trenton, New Jersey , where it is engaged as a contractor in the building and construction industry performing electrical work at various jobsites located in the State of New Jersey. During the fiscal year ending May 31 , 1960, a representative period, Peifer caused to be purchased, transferred, and delivered to its Trenton place of business LOCAL UNION NO. 269, IBEW , AFL-CIO 781 and to its various other jobsites located in the State of New Jersey, electrical equip- ment and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said Trenton place of business and to its various other jobsites in the State of New Jersey, directly from other enterprises, including General Electric Supply Co. located within the State of New Jersey, which other enterprises had received the said goods and materials in interstate commerce directly from States of the United States other than the State of New Jersey. In the course and conduct of their business operations during the fiscal year ending May 31, 1960, also representative periods, other employer-members of Respondent Association caused to be purchased, transferred, and delivered to their respective jobsites located in the State of New Jersey, electrical equipment and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said jobsites in the State of New Jersey in interstate commerce directly from States of the United States other than New Jersey. The Respondent Association is an employer within the meaning of Section 2(2) of the Act. Peifer is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Association is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find that it will effectuate the policies of the Act to exercise jurisdiction in this proceeding. If. THE LABOR ORGANIZATION INVOLVED Local Union No. 269, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The status of this proceeding The complaint in this case was issued on July 16, 1963, in consequence of two separate immediate charges filed on January 4, 1963, one against the Union (Case No. 22-CB-571) and the other against the Company (Case No. 22-CA-1459). There had been two earlier charges against the Union, Case No. 22-CB-337, filed December 30, 1960, and Case No. 22-CB-461, filed October 27, 1961; there were no past charges filed against the Employer Respondent. The complaint spans a period starting 6 months before the earliest charge and reaching to today. The essential allegations of the total consolidated complaint are that the Union and the Association have been operating an illegal hiring hall, whereby exclusive referral of electricians has been and is contrived to give first preference to members of Respondent IBEW Local 269. Concerning the first two charges against it, filed in 1960 and 1961, the Union entered into settlement agreements with the Board's Regional Director, in each of which it promised thereafter not to illegally favor its members, and in each of which it agreed to pay and did pay certain sums of money to two individual electricians who had never been members of Local 269. The Union is charged with having attempted to cause, and in fact causing the employer-members of the Association to favor the union members in their employ- ment-direct violations of Section 8(b)(2) of the Act, and indirect violations of Section 8(b) (1) (A). The Company Respondent is charged with a continuing illegal discrimination in favor of such Local 269 members by virtue of its agreement with the Union to hire electricians through the exclusive hiring hall procedure set out in their collective-bargaining agreements, in violation of Section 8(a)(3) and 8(a)(1) of the statute. Pertinent facts of record The activities of the Respondents to be appraised in this case occurred entirely against the background of an exclusive hiring hall arrangement, since 1959 at least, based on successive written agreements. The pleadings allege, the evidence shows, and both Respondents admit that their written contracts for the past 4 years have bound the employer-members of the Association Respondent to employ only elec- tricians referred by the Union, with details of the arrangement set out in writing. The Union also has arrangements-whether written or oral-with other employers who come into its geographic jurisdiction, sometimes on a single job basis, whereby its hiring hall is used by such other employers as the exclusive referral source for their electricians. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first written agreement between Local 269 and the Association shown on the record-and detailing the hiring hall methods-was executed on October 1, 1959, and by its terms extended to September 30, 1961 . This contract was renewed, with no change in the hiring hall provisions , on August 22, 1961 , to continue to September 30, 1963. At the end of April 1962 , the Respondents agreed upon certain changes in the objective criteria for determining relative priority status among electricians in the operation of the exclusive referral system, and amended their written agree- ment in these respects. The 1959 and the 1961 agreements contained the following substantive provisions for determining the relative priority, and referral prerogatives , for electricians seeking employment within the territorial jurisdiction of Local 269: Group I: All applicants for employment who have five or more years' ex- perience 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 IBEW and who have been em- ployed for a period of at least 1 year in the last 4 years under a collective bargaining agreement between the parties to this addendum. Group II: All applicants for employment who have four or more years' ex- perience in the trade and who have passed a journeyman 's examination given by a duly constituted local union of the IBEW. Group III: All applicants for employment who have two or more years' ex- perience in the trade , are residents of the geographical area constituting the normal construction labor market and who have been employed for at least 6 months in the last 3 years in the trade under a collective bargaining agreement between the parties to this addendum. Group IV: All applicants for employment who have worked at the trade for more than 1 year. In their 1962 amendment to the hiring hall provisions of their contract , the parties replaced the old language describing four groups of priority referrals with the fol- lowing five classes of employees: Group I: All applicants for employment who have 5 or more years ' experi- ence in the trade, are residents of the geographical area constituting the normal construction labor market , have passed a journeyman's examination given by Local Union 269 and who have been employed for a period of at least 5 years under a collective bargaining agreement between the parties to this agreement. Group II: All applicants for employment who have had 5 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 union of the IBEW other than Local Union 269 , and who have been employed for a period of at least 5 years under a collective bargaining agreement between the parties to this agreement. Group III : All applicants for employment who have 5 or more years ' experi- ence in the trade and who have passed a journeyman 's examination given by a duly constituted local union of the IBEW. Group IV: All applicants for employment who have 2 or more years' ex- perience in the trade , are residents of the geographical area constituting the normal. construction labor market, and who have been employed for at least 6 months in the last 3 years in the trade under a collective-bargaining agreement between the parties to this agreement. Group V: All applicants for employment who have worked at the trade for more than 1 year. As to the manner in which the Union in fact administered these hiring hall provi- sions, the General Counsel separated the full period covered by the complaint into three sections. The first starts with 1959 and ends on March 30, 1961, when the first charge against the Union was settled ; the second covers the period October 1, 1961,_ to about May 1, 1962, when the 1962 amendment took effect and 8 days preceding settlement of the second charge against the Union ; the third period starts with execution of the 1962 amendment to the agreement and reaches up to date. Under the 1959 contract an important requirement for placement in group 1 or group II was successful completion of a journeyman's examination given by an IBEW local. Aside from this essential , the only other significant distinction between these first two classes was that electricians who had worked 1 year under contracts between Local 269 and the Employer Association were to be referred out of the hiring hall first. LOCAL UNION NO. 269, IBEW, AFL-CIO 783 In the course of the Regional Director's investigation of the first charge against the Union (Case No. 22-CB-337), Rupert Jahn, business agent and financial secre- tary of Local 269, signed an affidavit for a Board agent on January 11, 1961. His sworn statement contains the following: To be eligible to take these tests in our local a man has to serve an apprentice- ship in the Local for 5 years.... Also, if a man can prove to us that he worked in non union shops for a period of over 5 years, and then elected to join the union, he would be eligible to take the test.... If a non union man comes to us to take the test, we investigate his character and if he is approved, and has proved to us that he worked over 5 years in the trade, he would be given the test. If he passes, he is then eligible for membership. It is not necessary to join the union first to take the test.... If a man who is not a union member is given the test according to the above-requirements, and passes the test, he would have to join our Local after he passed it. We would not certify that a man passed our test unless that man joined our Local. That is the standard procedure of the other locals. As a witness at the hearing Jahn denied all of the foregoing earlier admissions; he repeatedly insisted that during the period preceding January 1961, membership in Local 269 was at no time a condition prerequisite for admission to a journeyman's examination or for certification after successful completion of the test. His only explanation of the earlier inconsistent statements was that he had been confused and excited at the time. Jahn is a very alert and long experienced union official In view of his direct and clear admission against interest, and the Union's stipulation, men- tioned below, that during the latter part of 1961 and for several months into 1962 it continued to administer the referral system discriminatorily in favor of its members, I do not believe Jahn's denials at the hearing. I find, as alleged in the complaint, that throughout the period ending January 1961, the Respondent required that appli- cants for employment with employer-members of the Respondent Association be members of Local 269 as a condition precedent to being permitted to take the journey- man's examination provided for in the hiring hall contract and as a condition precedent to certification (and therefore first priority status) of its successful completion As stated above, the second period of time covered by the complaint extends from October 1961 to about May 1, 1962. As to the Union's practice in its administration of the referral system during that period, the Respondent Union and the General Counsel agreed upon a stipulation of facts which contains the following statements: From on or about April 27, 1961, to on or about May 1, 1962, applicants who were members of Local 269 were referred for employment by Local 269 before Group I applicants who were not members of Local 269 and who had registered for employment prior in time of the particular applicant who was a member of Local 269. No Group I applicant who was not a member of Local 269 was referred to employment while applicants who were members of Local 269 were available for employment, notwithstanding the fact that the Group I appli- cant who was not a member of Local 269 had registered prior to the time the applicant who was a member of Local 269 became available for employment. The stipulation of facts also reveals that during this period referral lists showing the order of application for employment of individual applicants falling in group I were maintained at the hiring hall, that no such list was kept for group I applicants who were members of Local 269, and that no records were kept showing the order of referral of members of Local 269, except assessment cards showing the name of the employer-contractor and the period of employment. The stipulation reflects that during September of 1961, Local 269 members who were in the same group I category as Frank Keorkle, a nonmember electrician, were referred to jobs out of the hiring hall although Keorkle had registered before them and was waiting for work. The third and last period with which the complaint is concerned starts with May 2, 1962, when the new standards set out in the 1962 amendment were put in effect, and continues to the present. There is no contention that in carrying out the referral system as so revised in the contract the union thereafter in any way departed from its provisions. The General Counsel stated on the record: "I concede what they are doing from May 1, 1962, the practice conforms with the contract." With respect to the activities of the Association or Employer Respondent, the evidence is limited to its execution of the contract amendment with Local 269 in April of 1962, the fact that copies of the two earlier charges filed against the Union were also served upon the Respondent Association, and that the Association also received copies of the two settlement agreements. This is the total proof for any 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion that the Employers knew of the Union's practical departure from the pro- visions of the 1959 and 1961 contract and of its discriminatory administration of the hiring hall. Contentions of the Parties The General Counsel's theory underlying the complaint against both Respondents can best be set forth in the light of two well-established principles of law, one arising directly from the statutory language, and the other flowing from Board decisions over the years. First: Section 10(b) of the Act operates as a statute of limitations and precludes the Board from finding illegal any conduct which occurred more than 6 months before the filing and the service upon a respondent of the charge in a complaint proceeding.' Second: In any complaint proceeding, whenever a case is settled with approval of the Board or its agents, and a subsequent charge filed, the Board will not set aside the settlement and rely upon events antedating the settle- ment as a basis for unfair labor practice findings, unless the offense charged in the first case, or a like one, is repeated? In this instance, the General Counsel's reasoning starts with a concession that if all that appeared in this record were the execution, in 1962, of the contract amend- ment-now still in effect-setting up the five-group objective criteria for priority in employment referral out of the exclusive hiring hall, the complaint would fail in its entirety. He makes no contention that this hiring hall contract is illegal per se, and the Board has already held a comparable hiring hall contract lawful in another case.3 The General Counsel also admitted that regardless of what may have occurred before May 1962, the Respondent Union thereafter adhered to the criteria then established, and did not fail to classify and refer applicants for employment with the Respondent Employers in strict accordance with the terms of that agreement. The current hiring hall arrangement must nevertheless be deemed illegal in this case, according to the General Counsel, because of the events which immediately preceded its execution. For 2 years before the end of April 1962 the Union discrimi- nated in favor of its members in making job assignments in derogation of and contrary to the contract terms. Such a discriminatory practice, by a labor organization charged with implementation of an exclusive hiring hall, however legal the written agreement may be on its face, is a violation of Section 8(b) (2) of the Act in that it gives preference in employment based on union membership.4 An inevitable conse- quence of this illegal conduct by the Union was that its members built up an accumu- lated seniority in their local employment history, when measured against the lesser amount of work left available and performed by nonmembers. A critical change made in the 1962 amendment among the objective criteria requisite for placement in group I, the top priority for referral, was to increase from 1 to 5 years previous employment "under a collective bargaining agreement between the parties to this agreement." But, the union members having been illegally favored with local em- ployment in the past, this new criterion necessarily again separated them from the nonmembers, so that the net effect of the change was to continue their preference in referral. Not only does the General Counsel point to this inexorable fact, but he also contends that the change was made for the very purpose of bringing about this continuing favored treatment of Local 269 members. In support of this assertion, he relies upon another significant change that was made in 1962. In previous years, other factors being equal, group I status was enjoyed equally by electricians who had passed journeymen examinations either in Local 269 or in any IBEW construction local throughout the country. The revised standards again drew a novel distinction, and now, all other factors-including 5 years' local work experience-being equal, the electrician who has qualified as journeyman by examination in any other IBEW local takes a second place, and falls into priority group II, while the man who was examined by Respondent Local 269 emerges in group I. The timing of the discussions leading to this innovation-also necessarily an 1In pertinent part section 10(b) reads : ". . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .. :' See Lodge Local 1424, International Association of Machinists (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411. 9 Larranee Tank Corporation, 94 NLRB 352. s Local 867, International Brotherhood of Electrical Workers , AFL-CIO ( Easton Branch, Penn-Del-Jersey Chapter, National Electrical Contractors Association), 134 NLRB 132. 'J. J. Hagerty, Inc., 139 NLRB 633. See also Local 557, International Brotherhood of Teamsters, eto. (Los Angeles -Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667. LOCAL UNION NO. 269, IBEW, AFL-CIO 785 element favorable to Local 269 members-coming as they did during the pendency of the second charge and at the very time when settlement negotiations were taking- place, is advanced as further proof for the General Counsel's ultimate assertion that the 1962 amendment was resorted to as a guise to circumvent the intended objective of the last settlement. There is even an admission by Business Agent Jahn, at the hearing, that one reason for setting up the revised standards of priority was to put a stop to continuing unfair labor practice charges by "foreign" electricians which were plaguing the Respondent Local. In his closing argument the General Counsel summarized the foregoing facts as follows: "The acknowledged and admitted effect of the [1962] agreement is that now only Local 269 people are in Group I. Which is exactly the same effect as the old practice had been prior to May 1. In other words they always sent out their old [sic: own] men first under the old agreement, although it was not in accordance with the terms of the contract. - So all they did was revise the contract to conform to their prior illegal practice." The General Counsel requests that this conduct be viewed as a continuation of the illegal preference of the past, as violation of the settlement agreement promises that Local 269 would not thereafter give preference in referral to its members, and as a sufficient bases for the Regional Director to set aside the prior settlements and rest the complaint on all events dating back to 6 months before the filing of the first charge. As to the Association Respondent, the General Counsel contends that because- through receipt of copies of the earlier charges against the Union and of the two settlement agreements-the Employers had knowledge of Local 269's earlier illegal preference of its members, a finding is warranted that the Association Employers are also unlawfully discriminating today in favor of Local 269 members, even though the terms of the 1962 amendment are not being violated: The Association contends that in no event can the rule relating to settlement agree- ments, and subsequent breaking of promises there made, apply to it as a respondent in this case. It defends simply on the ground that it never did anything wrong, and that even if it did, all of its improper conduct, if such it was, occurred more-than 6 months before the only charge filed against it or its members. Despite its stipulated admission of discriminatory administration of the hiring hall' during at least a part of the period in question, Local 269 denies the commission of- any unfair labor practice. Affirmatively, it contends that unless it can be found, strictly on the basis of events subsequent to the last settlement agreement, or after July 4, 1962, the 10(b) period preceding the last charge filed against it, that the Union acted at all illegally, the settlements may not be set aside and the complaint must- be-dismissed entirely. Analysis and Conclusion In arguing that the Section 10(b) interpretation enunciated in Bryan Manufactur- ing Co., supra, disposes entirely, of the issue raised by this complaint, the Union points to some of the literal language of the Board's decision in cases like Larrance Tank Corporation, supra, and Guard Services, Inc., 134 NLRB 1753. In those cases the Board restated its settled rule that it will not "consider as evidence of unfair labor practices conduct of a respondent antedating a settlement agreement, unless the respondent has failed to comply with the settlement agreement or has engaged in, independent unfair labor practices since the settlement." - Th Union correctly contends that it cannot be found, on this record, that 'it has "engaged in independent unfair labor practices since the settlement." The first settlement was made on March 30, 1961, and .thereafter-during the period October 1961 to April- 1962-the Union did unlawfully refer its members in preference to nonmember applicants at the hiring hall. This clearly constituted unfair labor practices engaged in independently subsequent to the settlement.5 ' The second settle- ment was made on May 8, 1962. To find that the Union's conduct thereafter was illegal, it is necessary to consider the events preceding May 8, and the finding would therefore not stand independently of presettlement conduct. Such a narrow approach, however, ignores other equally significant language in the Board's rule as set out in Larrance Tank, supra. The' Board will also look to conduct antedating the settlement when "the Respondent has failed to comply with the settle- ment agreement." The basic misconduct charged to the Union in the two earlier proceedings was' that it had illegally caused the Association Employers to discriminate in favor of members of Local 269. In pertinent part the first settlement required the Union to e J. J Hagerty, Inc, 139 NLRB 633. 770-070-65-v of 149-51 786: DECISIONS OF NATIONAL LABOR RELATIONS BOARD discontinue the practice'of so• administering the hiring hall as to condition employ- ment "in an unlawful- manner" upon clearance or approval,by Local 269. In the, second settlement the-Union promised "not to operate our, hiring hall by unlawfully basing referral upon membership in Local Union No. 269." However the under- standing was phrased, clearly the substance of the undertaking was that the Union would put a stop to the use of the exclusive referral system as a device for bringing about preferential hiring of its members. The second charge was filed on October 27, 1961. During the very period of its investigation, and, necessarily, during the very period of whatever discussions were taking place between the Board's Regional Office and the Union looking to the settlement of May 8, 1962, the'Union took steps to revise the "objective" criteria relating to the hiring hall. On December 11, 1961, Local 269 proposed to the Association that the hall be abolished entirely; the employers agreed, but the IBEW International refused to consent. On April 25, 1962, the,Union urged the revisions later made; the employers went along without question. The new- agreement was signed,towards the very end of April 1962, and went into effect on May 2. All this before the settlement of May 8. The Union's executive officer, Jahn, as well as its counsel, who drafted the contract modifications, are highly experienced men in this field; they are therefore precluded from now claiming ignorance of the automatic preference to Local 269 members which became frozen by combination of the new group I requirements and the favored treatment of such-members during the several immediately preceding years. Five years' employment under past contracts-all implemented in this hiring hall- was for-the first time made an essential requirement for group I qualification. This was the very work with which the union members had been illegally favored. During April 1962 it was retroactively made the guaranteed basis for their continued future preference. To ignore this clear fact would run counter to the simplest realities. The Union attempted to prove, at the hearing, that the referral criteria were changed at that time in order to satisfy complaints by electrical contractors that unqualified electricians were being sent out of the hiring hall. Business. Agent Jahn testified in general terms that he had long been receiving complaints from employers, both mem- bers of the Respondent Association and others, to the effect that referred electricians were incompetent. He offered several letters as support: one is from Peifer Electric Co., of the Mercer County Division, dated December 14, 1962, 3 days, after the Union asked for a meeting and met with the Association to propose contract changes; another, from William E. Snell, Inc., is dated February 2, 1962, 2 months after the Union had decided changes were necessary;,two letters are dated August 15, 1961, and February 22, 1961; a fifth is from Walter,G. Gastow, Inc., written December 5, 1962, 8 months after the revised criteria had been in effect. The Union also called Richard O'Brien, an electrical, contractor and the chairman of the Mercer County Division of the Respondent Association. Among other things, O'Brien said he had long complained of the quality of the men, that out of 20 men referred to 1 job 15 were "dogs"; that calling the hiring hall was "a joke," that these problems had always existed and would probably always continue, and that the situa- tion had become "outstanding" about a year before December 1961. Complaints received after steps were taken to make a change,-of course, could not' have been factors in the decision. The early letters are of little significance, for the parties later negotiated a new agreement-on August 22, '1961-and no thought was given to changing the deferral system then. In these circumstances, of greater mean- ing is Jahn's admission that when he first met with the Association representatives, at his request, on December 11, 1961, he himself stated,as a reason for wanting to alter things, the desire of his local to put an end to continuing unfair labor practice charges of illegal discrimination being filed by nonmember electricians seeking jobs through the exclusive hiring hall. The most objective witness on this subject, and therefore the most reliable, was Francis Flynn, the assistant manager of 'the New Jersey Chapter of the National Elec- trical Contractors Association. He acted as secretary for the' employer group at the December 11 conference. He made notes of the meeting and used them as basis for his testimony. According to him, Jahn said'he called the meeting to make changes in the referral system, and explained his reason as follows: - He stated that there is a group of electricians from various other locals in the country that have been working in the jurisdiction of Local 269 for a long period of time and they have made several attempts to obtain a charter from another local union with headquarters in Bucks County, Pennsylvania; but to date, they have been unsuccessful.... He said that-they have filed charges of discrimina- tion against Local Union 269 with the NLRB on various occasions and have tried in other ways to discredit Local 269. LOCAL UNION NO. 269, IBEW , AFL-CIO 787 Flynn's notes reflected nothing about complaints from employers concerning the quality of electricians . It was at this point that Jahn proposed abolishing the hiring hall altogether, a solution which, it was later revealed, the IBEW International, whose approval was a condition precedent , had no intention of permitting. Considering the evidence in its entirely, the assertion that the revised standards were established to improve the quality of electricians referred from the hiring hall is not supported by the proof. With infinitesimal , and therefore insignificant exception, the same men, all members of Local 269, have enjoyed first priority referral since the change. There is a stipulation that between May 1, 1962, and today all applicants who have been designated as qualifying for group I are members of Local 269, and no applicant who is not such a member has qualified for that top priority . There are 13 members who, because they have not passed the journeyman 's examination given by this particular IBEW local , would be classified in group N under the current con- tract. However, with rare exception, each of these, for one reason or another, does not, and has not for a long time had occasion to come near the hiring hall; some are in business for themselves as contractors , some are closely related by blood to em- ployers and therefore always deal directly with them , and others enjoy long-time con- tinued employment with the same electrical contractor or installation. Clearly the 1962 amendment to the contract was made because of the charge pend- ing in Case No. 22-CB-461 , and in order to achieve a color of respectability under which the same preference in employment for Local 269 members could be continued, The conclusion is fully supported by the timing of the amendment-(in the middle of the contract term and in the teeth of the settlement negotiations ), by the absence of substantial proof of any other reason , and by the affirmative evidence out of the mouth of Business Agent Jahn himself. A fair appraisal of the total events also warrants al finding, as urged by the General Counsel , that the Respondent Union never intended to, and in fact did not at any time , discontinue its longstanding practice of using the exclusive referral system for the ulterior purpose of causing electrical contractors, including the members of the Respondent Association , to discriminate in favor of members of Local 269 in their hire of electricians . It follows that when , on May 8, 1962, 8 days after executing the amendment to the contract , the Union agreed, in the last settlement stipulation with the Regional Director, no longer to operate its hiring hall in an unlawful manner, it acted tongue-in-cheek, confident in the knowledge that it had already established a revised device for evading the substance of the promise it was about to make. This is therefore not a case where a respondent settles a charge against it, truly complies with the settlement agreement, and then at a later date does or does not, depending upon evidence of future conduct, commit a separate unfair labor practice. It is instead a case where the unfair labor practices which constituted the broad sub- stance of the earlier charges never ceased, and in which the present preference in employment guaranteed to members of Local 269 is so enmeshed with the illegal preference accorded them in the past that the postsettlement events cannot be sepa- rated from the conduct of the past . It is a case to which the language of the Supreme Court decision in the The Wallace Corporation v. N.L.R.B., 323 U.S. 248, is particu- larly apt: ... The Board has established as a working rule the principle that it ordinarily will respect the terms of a settlement agreement approved by it. It has consist- ently gone behind such agreements , however, when subsequent events have dem- onstrated that efforts at adjustment have failed to accomplish their purpose... . Accordingly, there is no merit in the Union's contention that the Regional Director improperly set aside the two settlements, and that the complaint could not legally be based upon the earlier, as well as the January 1963, charges. Considering the record in its entirely I find that by denying to nonmember appli- cants for employment an opportunity to take its journeyman 's examination, by refer- ring Local 269 members out of the hiring hall in preference over nonmembers in the same priority classification , and by giving effect to contract requirements of past prior employment under contract between the Union and the Association the Respondent Local 269 has caused or attempted to cause and is causing and attempting to cause employer-members of the Mercer County Division to discriminate against employees or applicants for employment in violation of Section 8(a)(3) of the Act, and has, accordingly, violated Section 8 (b) (1) (A ) and 8 (b) (2) of the Act. The two earlier charges against Local 269 were each filed by electricians who were not members of that Local but who went to the hiring hall seeking work . Hazeltine, who filed the first charge, was paid $300 as part of the settlement in his case . Keorkle, another electrician, fi led the second charge, and in its settlement he received about 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $2,500. At the hearing both of these men testified in some detail about their experi- ences in registering for work at the hiring hall before their respective cases were settled. Keorkle's story as to events during that period suggested he may have been denied some work, but there is conflicting testimony by Local 269 witnesses as to those instances. (Of course, the Union's stipulation concedes that members of Local 269 were referred to jobs ahead of Keorkle out of turn.) He also said that on one occa- sion, on April 13, 1962, Union Business Agent Jahn told him he would never again work as an electrician . This statement was supposedly uttered during a lengthy con- versation devoted almost entirely to efforts by Jahn to convince Keorkle to return to a job to which he had been referred that very day and where the general foreman had resented Keorkle's appearance. Jahn denied the statement, and, in the circumstances of the total conversation, plus Keorkle's patently antagonistic demeanor as a witness, I do not deem his testimony sufficiently credible to support a finding that the threat was made. In any event, all this testimony concerning events preceding the settlements was of little or no significance in the case, for the evidence is otherwise clear that the Respond- ent Union was then running the hiring hall in an out-and-out illegally discriminatory manner. The only pertinent testimony by either of these men was that since May 2, 1962, when the amended standards for referral were established, neither was errone- ously classified according to those new provisions. Keorkle said he registered a number of times and was referred to several regular jobs. Seemingly in conflict with Keorkle's admission that he properly was placed in group III under the 1962 amendment, and certainly at odds with the General Counsel's concession on the record that the Union did nothing at variance with the revised con- tract provisions, the General Counsel elicited from Keorkle's testimony concerning a job to which he was refe{red out of the hiring hall on September 20, 1963. Keorkle arrived at the jobsite as a member of the Respondent Association with two other elec- tricians; Johnson, president of Local 269, was general foreman there. When he saw three men, Johnson said he did not need so many; he asked a nearby foreman if he could use another man, and the foreman said he could not, Keorkle demanded 2 hours' call-in pay and left. Later the same day, Marciante, the assistant business agent who was in direct charge of the hiring hall mechanics, telephoned Keorkle and told him to return to the job and work; Keorkle refused. The next morning both Local 269 and that particular company sent telegrams telling Keorkle to come to work, and he did so at 12:30 that day. Johnson testified that the delay in placing Keorkle was caused by a temporary shortage of materials, and this testimony is not contro- verted. I do not understand the General Counsel to request a separate unfair labor practice finding of a violation of Section 8(b)(2) against either of the Respondents now based upon this incident. In any event, I do not deem the foregoing testimony sufficient to warrant such a finding. As to the Employer Respondent in this proceeding, the complaint must be dismissed. The officers of the Mercer County Division, New Jersey Chapter of the National Electrical Contractors Association, knew, before they agreed to the 1962 revised standards, that Local 269 had twice been accused of running the hiring hall improperly, and that it had twice promised not to favor its members unlawfully in the future. Each of the settlement agreements which constituted such notice to the Association expressly stated, however, that there was no admission of guilt by the Union; and, of course, there was no finding of illegal conduct. It is not true, therefore, as the General Counsel asserts, that through these- documents the Association knew that Local 269 had in fact committed unfair labor practices in the operation of the hiring hall. The decision to dismiss the complaint against the Association rests upon a more solid basis. What is explained above with respect to the impact of Section 10(b) of the Act in this situation constitutes a full defense available to the Employer Respond- ent. It was not shown to have done anything illegal after July 4, 1962, the beginning of the 6-month statutory period of limitations. Unlike the position in which Local 269 now finds itself, there were no earlier charges against the Association, and there were no settlements made by it, which now might or might not be set aside. On this ground alone, therefore, under the legal principle of the Bryan Manufacturing Co. case, supra, there can be no finding of illegal conduct by the Association in this proceeding. 1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON CON4MERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with, the operations of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several LOCAL UNION NO. 269 , IBEW, AFL-CIO 789 States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor prac- tices I shall recommend that it be ordered to cease and desist from such conduct in the future and to take certain affirmative action designed to dissipate the effect thereof. It has been found that the Union has been and is a party to an exclusive hiring hall contract arrangement and practice with Mercer County Division, and that, in the operation of this hiring hall, Local 269 members received preference in referrals over nonunion members. The direct methods used by the Union to achieve this illegal preference were to refuse to permit nonmembers to take its journeyman's examination, to refer Local 269 members before referring nonmembers in the same priority classifi- cation, and to give effect to the contract criterion of past work experience in the con- tracts between these parties. These direct actions must be discontinued. The complaint also alleges, and the evidence shows by admission of the Union's agents, that in the operation of the exclusive hiring hall Local 269 has not and does not maintain written referral lists of its activities in the hiring hall, and also that it has not and does not require its members in high priority classification to register at the hall in person, while requiring nonmembers in the same classification to appear in person at designated and limited times to sign it in person. In ordinary circumstances, the mechanics and recordkeeping aspects of the operation of a hiring hall are not matters of substance with which a Board remedial order is properly concerned. In this instance, however, in view of the scope of the illegal practices shown to have been committed and, consequently, the obvious unreliability of any mental bookkeeping by the assistant business agent in charge of the hiring hall, compliance with the order will require as a minimum that written records be maintained of all pertinent aspects of the operation of the referral system, and that the Union make all such records available for inspection, on request, by the Regional Director of the Board or its agents. It will therefore also be recommended that the Union be ordered to maintain such records and have them available for inspection at all times.° Compliance with the remedial order herein will also mean that the Union will not execute any contract or carry out any practice which makes prior employment under earlier contracts between the Union and the Association a criterion for preferential referral out of the hiring hall. This proscription shall remain in effect for such time as that criterion would have the effect of perpetuating the illegal preferences accorded members of Local 269 in the past. The nature and extent of the unfair labor practices committed show clearly an attitude of opposition to the purposes of the Act in general; it will therefore be recom- mended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, and its employer-members, are employers within the meaning of Section 2(2) of the Act, and are engaged in commerce within the meaning of the Act. 2. Local Union No. 269, International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause the employer-members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, to dis- criminate in regard to the hire, tenure, or terms of employment of its employees, thereby encouraging membership in a labor organization, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By such conduct as described above Respondent Union has interfered with, restrained , and coerced the employees of the employer-members of the Respondent Association in their exercise of their rights guaranteed them by the Act, in violation of Section 8 (b) (1) (A) of the 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 Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Local Union No. 269, International 8 Local 138, International Union of Operating Engineers, et al. (J. J. Hagerty, Inc.) v. N.L.R.B., 321 F. 2d 130 (C.A. 2). 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Electrical Workers, AFL-CIO, Trenton, New Jersey, its officers, business agents, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to its exclusive hiring hall contractual arrangement and practice with Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any other employer, by deny- ing to nonmember applicants for employment opportunity to take its journeyman's examination, by referring Local ,269 members for work out of the hiring hall in preference over nonmembers in the same priority classification, or by giving effect to contract requirements of past previous employment under contracts between the Union and the Employer Respondent. (b) Causing or attempting to cause Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any'other employer engaged in com- merce, to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of employer members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Keep permanent records of its hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. (b) Upon request of the Regional' Director of the Board or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. (c) Post at its business office and hiring hall in Trenton, New Jersey, copies of the attached notice marked "Appendix."'7 Copies of said notice, to be furnished by the Regional Director for Region 22, shall,'upon being duly signed by the Union's repre- sentative, be posted by the Union immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members and other persons using Local 269's hiring hall are customarily posted. Reasonable steps shall be taken by the Union to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith.8 I further recommend that unless, within 20 days from the date of the receipt. of this Decision, Respondent Union has notified the Regional Director that it will coin ,ply with the foregoing recommendations, the Board issue an order requiring Responnt to take the aforesaid action. . It is hereby ordered that the complaint issued against Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, be, and it hereby, is, dismissed. 7 If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words ".the Recommended Order of a Trial Examiner" In the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 8If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS, AND OTHER PERSONS USING THE HIRING HALL OF LOCAL UNION No. 269, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT maintain, enforce, or otherwise give effect to any exclusive hiring arrangement or practice with Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, where preference in referrals is based on union membership. BURLINGTON ROADBUILDERS, INC. 791 WE WILL NOT maintain' and enforce clauses in any collective-bargaining agree- ment with that Association, or with any other employer over whom the Board would assert jurisdiction, that grants preferential treatment to employees or applicants for employment based upon prior experience covered by contract between us and such employers. WE WILL NOT deny to nonmember applicants for employment opportunity to take our journeyman's examination where such examination is a factor for orderly referral to employment out of our hiring hall. WE WILL NOT in any other manner restrain or coerce employees of, or appli- cants for employment with, members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any other employer over whom the Board would assert jurisdiction; in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent permitted 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 modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL keep permanent records of our hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. WE WILL, upon request of the Regional Director of the National Labor Rela- tions Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. LOCAL UNION No. 269, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------- --- --------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Burlington Roadbuilders, Inc. and Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America; Local 649, International Union of Operating Engineers, AFL- CIO; and Local 992, International Hod Carriers, Building & Common Laborers Union of America, AFL-CIO and District 50, United Mine Workers of America, Party to the ' Contract. Cases Nos. 13-CA-5964, 13-CA-6012, and 13-CA-6075. Novem- ber 18, 1964 DECISION AND ORDER On August 19, 1965, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereafter, Respondent filed exceptions to the Decision and a supporting brief and the General Counsel filed a reply brief. 149 NLRB No. 75.