International Brotherhood of Electrical Workers

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 59 International Brotherhood of Electrical Workers, AFL- CIO, Local 82 (National Electrical Contractors Associa- tion, Dayton , Ohio Chapter) and Brack Collier, An Individual . Case 9-CB-1586 April 21, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 6, 1969, Trial examiner Samuel M. Singer issued his Decision in the above-entitled proceed- ing, finding that Respondent Union had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, the Respondent Union filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent Union, International Brotherhood of Electri- cal Workers , AFL-CIO , Local 82 , Dayton , Ohio, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner ' s Recommended Order, as herein modified. 1. Substitute the following for paragraph 2(b) of the Trial Examiner 's Recommended Order: "Notify the aforementioned Association , in writing, with a copy to Brack Collier , that the Respondent has no objection to Collier's employment , in accordance with the valid provisions of the collective -bargaining agreement between the Respondent and National Electri- cal Contractors Association , Dayton , Ohio,' Chapter, and will not discriminate in his selection for employment or the employment of any other iob applicant who is not a member of the Respondent or any other union." 2. Substitute the following for the first and second indented paragraphs of the Notice: WE WILL NOT fail or refuse to refer any nonunion member to a job on the same basis as a union member, as provided in the valid provisions of our collective-bargaining agreement with National Electrical Contractors Association, Dayton, Ohio, Chapter. WE WILL NOT cause or attempt to cause any employer to deny employment to any applicant for employment because he is not a member of our Union or any other union, in accordance with the valid provisions of our collective-bargaining agreement. TRIAL EXAMINER'S DECISION SAMUEL M. SINGER , Trial Examiner : This is a com- panion case to International Brotherhood of Electrical Workers, AFL-CIO, Local 648 (Foothill Electric Corpo- ration), Case 9-CB-1585 (herein called Local 648), which was heard on the same dates (May 26 and August 5, 1969) as the instant case , and which is the subject of my Decision of this date . The charge was filed and complaint herein issued on January 13 and March 27, 1969. As in Local 648, the basic issue presented is whether the Union (here Local 82) violated Section 8(b)(2) and (1)(A) of the Act by discriminatorily refusing to refer the Charging Party (Brack Collier) for employ- ment to employers with whom Local 82 had collective- bargaining agreements because the Charging Party was not a union member .' As noted in ' Local 648, at the hearing I granted Local 82's motion to sever this case, which was originally combined with Local 648 in a single complaint . As also in Local 648, the hearing, closed on May 26, 1969 , was reopened for a supplemental hearing , held on August 5, 1969, for the purpose of receiving a document (a collective agreement) proffered by General Counsel and to afford Respondent an opportu- nity to present countervailing evidence and contentions. All parties appeared and were afforded full opportunity to be heard and to examine and cross -examine witnesses. Briefs were received from General Counsel and Respond- ent. Upon the entire record in this case2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION ; LABOR ORGANIZATION INVOLVED At all material times, Respondent Local 82 has been party to a collective agreement with Dayton Division ' These findings and conclusions are based , in part, upon the Trial Examiner ' s credibility findings, as to which the Respondent Union excepts It is the Board 's established policy, however, not to overrule a Trial Examiner 's resolutions with respect to credibility unless, as is not the case here , the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) ' Because of frequent references to Local 648 in the briefs and Decision herein , a copy of the Local 648 decision is appended to this Decision Portions of the hearing transcript in Local 648 were specifically incorporated in this record R Transcript corrected by my order on notice dated October 22, 1969 182 NLRB No. 5 60 DECISIONS OF NATIONAL LABOR RELA TIONS BOARD of the Western Ohio Chapter , National Electrical Con tractors Association (NECA), consisting of employers receiving or supplying goods or services valued in excess of $50 ,000 in interstate commerce I find that the Associa- tion is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that assertion of jurisdiction here is proper Respondent is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts I The exclusive referral procedure under the collective agreement Like the collective agreement in Local 648, the govern- ing agreement between Respondent and the Association provides that Local 648 "shall be the sole and exclusive source of referrals of applicants for employment "3 Under the agreement , the Union is required to "select and refer" applicants on a nondiscriminatory basis from a register of applicants classified for priority purposes into four groups Among the criteria for determining group priority are length of experience in the electrical construction trade, residence , an examination (given by an IBEW local), and past employment under the collec- tive agreement between the Association and Respondent The contract also provides that the employer may reject a referred applicant (with reason in writing if requested by the Union) and may bypass the referral procedure and hire directly if the Union is unable within 48 hours to fill the request , the employee so hired is deemed "temporary ," subjedt to replacement "as soon as regis- tered applicants are available under the referral procedure " Finally, the Union is required to maintain an "Out of Work List " and to refer applicants "in chronological order [as] they register their availability for employment," with top priority to those falling within Group I and lowest priority to those within Group IV 4 2 The refusal to refer Collier As described in the Local 648 decision and further shown here , Charging Party Collier , a journeyman wire- man, laecame a member of Local 1438 , IBEW (Magna, Utah) in October 1967 He thereafter worked for Foothill Electric Corporation at its Middletown, Ohio, project (within Local 648's territorial jurisdiction) until the end of June 1968, as a union member on referral from Local 648 In early August 1968 Collier obtained employ- ment with Elco Electric Company in the Dayton, Ohio, area (within Local 82's territorial jurisdiction ) on referral 9 Although the expiration date of the agreement is May I 1968 (before the events here involved ) the hgreement provides that it shall continue in effect from year to year thereafter unless changed or tei'minated in the way provided herein Respondent stipulated that this agreement was operative at all times here material As in Local 648 the complaint does not allege that the exclusive referr-il agreement is unlawful from Respondent Collier testified credibly and without contradiction that when he applied for the referral, Local 82 Business Agent Lane "asked me for my paid up receipt " When Collier produced his Local 1438 dues receipts , Lane requested him to fill out the neces nary papers authorizing benefits (health and welfare, pension , and vacation pay) deductions, gave Collier "a referral to Elco Electric," and directed him to present the referral slip to the job superintendent Lane testified that as a holder of a "ticket " or union card, he had Collier sign his name in Respondent ' s referral book Collier worked for Elco for about 8 days Respondent again referred Collier to a job at the end of August 1968 According to Collier' s credited and uncontradicted testimony , around August 23 or 24 he went to Respondent ' s office and asked Assistant Business Agent Travis for work When Travis requested Collier to produce his dues receipt , Collier did so Collier was asked whether he "had been working out of 82 before " Collier said he had Travis then checked the work record of Collier in Local 82's office and wrote out a referral slip to Hughes-Bechtol Corporation, direct- ing Collier to see its superintendent (Lewis) Collier worked for that Company from August 26 to December 6, 1968, when he was laid off on completion of the work project As noted in Local 648, in September 1968 (while Collier was still on the Hughes-Bechtol job), Local 1438 canceled Collier' s membership because, as Local 1438 Financial Secretary Taylor advised him,Taylor "was in error to begin with, by signing members outside [Local 1438 's] jurisdiction " On December 9, 1968, Collier telephoned Respond- ent's office and talked to Business Agent Lane about a new job 5 Indicating that he had learned about Collier's Local 1438 "ticket, being lifted," Lane said that Local 82 did not refer "white ticket [i e , nonunion] men " However, Lane supplied Collier with the names of four employers (Stein Electric, Newco, Castle, and an uniden- tified employer) and said , "Go out and see them about a job," adding that "If they'll put you to work I'll clear you through the hall "fi Collier admitted that he did not see any of the four employers , explaining at the hearing that because of the pendency of his appeal before the International Union (IBEW) "to regain [his Local 1438] ticket" he "didn 't want to go against any bylaws by trying to hustle my own job, to put a mark against me in trying to get my ticket back " On December 15 or 16, 1968, Collier again telephoned Lane for a referral Lane again said that "the hall did not refer white ticket men " Explaining his dire Collier recalled seeing Lane in the union offi9e several days earlier (December 6) but Lane denied he was there on that date claiming that he was out of town in Indianapolis In this instance I credit Lane whose testimony on this point was supported by objective evidence in the form of identification cards issued to him in Indianapolis by the U S Army on the date in question Collier s recollection of the event appeared hazy and as to some details inconsistent with his prehear ing statement ' All four employers were covered by Respondent s collective agree ment with the Association INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 61 financial situation, Collier asked "was there any way I could get the money ... out of the vacation fund." Lane said that no money could be withdrawn until April 1969,' suggesting that Collier make a loan against his deposits. Adopting this suggestion, on December 17, 1968, Collier obtained a $200 loan against his account.' B. Conclusions 1. The applicable legal principles are set forth in Local 648, supra, fn. 1 Where, as, here, the, collective- bargaining agreement grants a union exclusive employ- ment referral rights, it is incumbent upon the union to accord equal treatment to union and nonunion job applicants As in Local 648, the basic issue is whether Respondent's December 1968 refusals to refer Collier for employment to an employer with whom Respondent had an exclusive referral agreement was bottomed on Collier's loss of membership in Local 1438, a sister local. , 2. The record shows that while he was a member of Local 1438, Collier had no problem in obtaining clearances from Respondent. Thus, when he visited Respondent's office in early August 1968, Local 82 Busi- ness Agent Lane referred him to Elco Electric Company. On Lane's request, Collier produced his Local 1438 dues receipts and was given a referral slip to Elco; also in accordance with practice, Collier signed Respond- ent's job referral book. Collier repeated this procedure at- the end of August 1968' in obtaining work at Hughes- Bechtol. After inspecting Collier's Local 1438 dues receipts, Assistant Business Agent Travis wrote out a referral slip, directing Collier to see Hughes-Bechtol's superintendent. When laid off from the Hughes-Bechtol job on December 6, 1968, however, Collier had ceased to be a Local 1438 member, the union having canceled his membership because he had not been working within its territorial jurisdiction. 'When Collier again sought work referral on December 9, 1968, Business Agent 1 Lane, an administrator of the fund , testified that deposits were withdrawable only every 6 months-in April and October 6 The above findings 'concerning the December 9 and 15 or 16 conversa- tions are based on Collier ' s credited testimony While Lane indicated that he could not recall talking to Collier, on December P or 10, he added , "I'm not saying that I didn't have" the conversation However, Lane denied that he "would have said" at any time to Collier or anyone else , "we do not refer white ticket men through this office" since he "would have no purpose" in making that remark ",because with or without a ticket if a man comes for a job, when he comes for a job he ends up with a job." However; as noted 'infra (sec B, 3), Respondent does make a significant distinction between "referring" union men and nonunion men. Thus , while a union cardholder is always dispatched by referral slip to a specific contractor , a nonunion applicant is normally provided with only a list of names from whom to solicit employment Lane admitted that "We don 't send a nonmember until he comes in with a letter from the contractor saying that they have hired him this man They give his name , social security number, and they have hired him For most of them it occurs that way " As to the December 15 or 16 conversation, I do not credit Lane's testimony that he was unaware that Collier's job with Hughes-Bechtol had ended on December 6, nor that he first learned of this after the unfair labor practice charge herein was filed (January 13, 1969) Lane admitted that he "probably" talked to Collier about withdrawals from the vacation fund, but denied any independent recollection thereof Lane told him that Local 82 did noi, refer "white ticket [nonunion] men." ' Instead, Lane merely gave Collier names of four contractors from whom he might solicit a job. Collier again requested referral on December .15 or 16, but without avail, Lane repeating his earlier explanation that "the hall did not refer white ticket men." As in Local 648, this is "direct evidence of a purpose to violate the statute." N.L.R.B. v. Interna- tional Union of Operating Engineers, Hoisting and Porta- ble Local 101 [Sub Grade Engineering Co.] 216 F.2d 161, 164 (C. A. 8). 3. In support of Respondent's contention that Collier was not discriminatorily denied referral, Business Agent Lane described the operation of Local 82's hiring hall. According to Lane, Respondent refers all applicants- union and nonunion-'to a specific, named employer only if satisfied that they are qualified for the jobs. Possession of a union card (from Respondent or an affiliated local) is deemed conclusive proof of qualifica- tion, but'other evidence (such as a check stub evidencing prior employment by a recognized contractor) is also "acceptable." Qualified. applicants register in Respond- ent's job referral book and are 'immediately sent out to a job with a referral slip to be presented to the employer.9 Lane further testified that nonunion appli- cants who cannot demonstrate qualification are given a list of contractors who are hiring and told to apply directly to the employer. If found qualified and hired by the employer, the nonunion 'applicant reports back to the union hall and signs appropriate forms (in order to obtain benefits, such as health and welfare, pension and vacation), whereupon he is counted as "referred" and listed as such in Respondent's records. It is clear that Respondent's so-called referral of Collier on December, 9-i.e., supplying Collier with the names of four contractors from whom to-solicit employ- ment-contravened Respondent's own referral practice. Business Agent Lane knew that Collier was a.qualified journeyman wireman. Not only was Collier in possession of a union card until September 1968 and therefore presumptively qualified under Lane's own standards (he was also listed as a Local 1438 member on Respondent's records), but Lane himself had referred him to Elco Electric as a qualified employee during the preceding August. Assistant Business Agent Travis again referred Collier (later in August) as a qualified worker-this time to Hughes-Bechtol, where he worked for over 3 months until December 6, 1968.10 Respondent ' s Decem- ber 9, 1968, failure to, refer 'Collier in the same manner as other qualified applicants itself buttresses the infer- ° Thus, as previously noted, when Collier held' a Local 1438 card in August 1968 , he presented his dues receipts , signed Respondent's referral book , and was immediately. dispatched to a contractor 10 I do not give weight to the self -serving notations made by Lane on Collier's work record (maintained by Respondent) quoting Elco and Hughes-Bechtol representatives that Collier "doesn't know the trade" and is "too slow " Lane admitted that he obtained this information from the employers and noted it on Collier ' s work record after the unfair labor practice charges were filed Furthermore , it is clear that Respondent did not , act upon this information in refusing to refer Collier to a specific employer, since it never said so, its refusal being expressly predicated on'Collier's no longer being a union member , , 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence that its actions was discriminatorily motivated by the fact that Collier no longer was a union member. Contrary to Respondent's contention, the fact that Lane furnished Collier with a list of contractors did not justify its refusal to dispatch Collier to a specific employer in the same manner as union members. Collier was entitled to the same treatment from the hiring hall as other qualified applicants. There is a significant difference between dispatching a job applicant directly to a designated employer and merely providing him with a list of names from whom to solicit employment. While it may be, as Respondent contends, that construc- tion work in the Dayton area was at the time plentiful" and that employees could readily obtain employment directly from contractors, this did not justify preferential treatment, i.e.; specific referral-in effect assignment to a sure job-accorded to union cardholders. 12 Finally, it is immaterial that the record here establishes that some nonunion employees (including several former Local 1438 members like Collier) were among those serving employers covered by Respondent's collective agreement at the time of the refusal to refer Collier to a specific employer.' To begin 'with, the fact that nonunion employees were working may signify nothing more than that nonunion men had been able to obtain jobs in a period of full employment or that they were still working on jobs which for one reason or another they already held. The crux of the, violation here is that Respondent gave preferential referral treatment to union members over Collier because he was no longer a union member. In any event, a discriminatory motive otherwise established is not dispelled by a showing that a union or employer did not also discriminate against others. See N.L.R.B. v. Local 369, International Hod Carriers' etc. [A.C. Frommeyer Co.], 240 F.2d 539, 543 (C.A. 3); N.L.R.B. v. Nabors, 196 F.2d 272, 275-276 (C.A. 5). 4. Like Local 648, Respondent requests (br. pp. 2-6) that I reconsider the propriety of my July 7, 1969, order granting General Counsel's motion to reopen the record to receive evidence (the collective-bargaining agreement containing the exclusive referral system) and directing a supplemental hearing to enable Respondent to present its evidence and contentions. For the reasons stated in Local 648, I reject Respondent's contention that General Counsel's motion "should have been denied" and that the supplemental hearing held on August 5, 1969, was improper. I conclude that Respondent's December 9 and Decem- ber. 15 or 16 refusals to refer. Collier for employment to contractors with whom Respondent had an exclusive referral agreement were violative of Section 8(b)(2) and (1)(A) of the Act. CONCLUSIONS OF LAW 1 1. By discriminatorily refusing to refer Brack Collier for employment on December 9 and 15 or 1,6, 1969, to an employer with whom Respondent had an exclusive referral agreement because Collier was not a union member, Respondent has caused employer discrimina- tion against an employee in violation of Section 8(a) (3) of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and 1(A) of the Act. 2. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 3 Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action to effectuate the policies of the Act. I shall further recommend that Respondent notify potential job applicants, as well as the Association and Brack Collier, in writing, that it will not discriminate against Collier or any other job applicant in selecting or referring them for employment through its hiring hall procedures, because of nonunion membership. 'I shall also recommend that Respondent make Brack Col- lier whole for any loss of earnings suffered by reason of the discrimination against him. The amount of backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Since the unlawful conduct of Respondent indicates a purpose to limit the lawful rights of employees, and the danger of its continued and further commission is reasonably foreseeable, I shall also recommend that Respondent cease and desist from causing or attempting to cause any employer to deny employment in violation of Section 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER " Lane testified that the Union's "Out of Work List" (used only in periods of less than full employment or "if we actually have a reason to have people out of work") had not been in use for at least 5 years 12 Respondent claims (br p 7) that Collier's "admitted neglect to contact contractors [named by Lane] belie[s] an individual who is particularly anxious to get to work " Assuming, arguendo, that Collier was under an obligation to make such "contact"-in the face of an exclusive referral system such as here in operation-his failure to diligently seek employment may be a question to be determined in the compliance proceeding Cf Shawnee Industries, Inc , 140 NLRB 1451, 1453, modified on other grounds 333 F 2d 222 (C A 10) International Brotherhood of Electrical Workers, AFL-CIO, Local 82, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Denying employment or referral to employment to any employee or potential employee because he is not a member of any union. (b) Causing or attempting to cause the Dayton Divi- sion of the Western Ohio Chapter, National Electrical INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Contractors Association (NECA), or any of its members, to deny employment, in violation of Section 8(a) (3) of the Act (c) In any like or related manner restraining or coerc ing employees in the exercise of any right guaranteed in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make whole Brack Collier for any loss of pay he may have suffered because of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy " (b) Notify the aforementioned Association, in writing, with a copy to Brack Collier, that Respondent has no objection to Collier's employment and will not dis criminate in his selection for employment or the employ- ment of any other job applicant who is not a member of Respondent or any other union (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records pertaining to employment through its hiring halls and all records relevant and necessary to compli- ance with above paragraph (a) (d) Post at its business office, hiring halls, and meeting places, copies of the attached notice marked "Appen- dix "13 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's official representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial (e) Mail signed copies of the attached notice to the aforementioned Association, for posting, it being willing, at its business office or offices located within the geo- graphical area of Respondent's jurisdiction or operations (f) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith 14 13 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted pursuant to a Judgment of the United States 63 Court of Appeals enforcing an order of the National Labor Relations Board 14 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith APPENDIX NOTICE TO ALL JOB APPLICANTS USING OUR HIRING HALL, WHETHER OR NOT MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LoCAL 82 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to refer any nonunion member to a job on the same basis as a union member WE WILL NOT cause or attempt to cause any employer to deny employment to any applicant for employment because he is not a member of our Union or any other union WE WILL reimburse Brack Collier for any loss of earnings suffered by him because of our failure and refusal to refer him for work WE WILL notify Dayton Division of the Western Ohio Chapter, National Electrical Contractors Asso- ciation (NECA), in writing, that we have no objecr tion to the employment of Brack Collier, and we will send a copy of that notice to Brack Collier INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , AFL-CIO, LOCAL 82 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686