Nassau-Suffolk Chapter of NECA

NASSAU-SUFFOLK CHAPTER OF NECA Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc. and Alcap Electrical Corporation and Harold M. Weiner Local Union No. 25, International Brotherhood of Electrical Workers and Harold M. Weiner. Cases 29-CA-3424 and 29-CB- 1534 August 31, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND WALTHER On December 30, 1974, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' finding that Respondent Union had violated Section 8(b)(1)(A) and (2) and Respondent Employers 2 had violated Section 8(a)(3) and (I) of the Act by maintaining, enforcing, and otherwise giving effect to an exclusive hiring hall contractual agreement which gives preference in referrals and employment opportunities to applicants for employment who have worked at least I of the 4 years previous to the date of application for employers which had collective-bargaining agree- ments with Respondent Union; 3 and by denying eligibility for referral for 1 year to registrants who work for an employer whose wage rates and fringe benefits are less than those provided in the collective- bargaining agreement between NECA and Respon- dent Union. The Board also found that Respondent Union violated Section 8(b)(2) and 8(b)(1)(A) of the Act by failing to permit Ernesto Flores to take its journeyman examination because he had filed charges against the Union with a state agency; and violated Section 8(b)(2) and 8(b)(1)(A) of the Act by failing and refusing to refer Ernesto Flores and George Colletti to job vacancies because they were not Respondent Union's members. The Board ordered Respondents to cease and desist from their unlawful conduct and to take certain affirmative action designed to effectuate the policies of the Act.4 On February 21, 1975, Respondent Union filed a petition to review and set aside the Board's Order in the United States Court of Appeals for the District of Columbia Circuit. On March 31, 1975, the General Counsel filed a cross-application for enforcement of the Board's Order.5 215 NLRB 894. 2 Hereinafter referred to individually as NECA and Alcap. respectively. :' Hereinafter also referred to as the "I in 4" years' experience requirement. 4 By order dated March 14. 1975. the Board's Decision and Order was amended so as to order Respondent Union to offer Ernesto Flores an opportunity to take thejourneyman examination. I On Fehruary 24. 1975, the General Counsel had filed for an application 231 NLRB No. 170 Thereafter, on January 31, 1977, the Board issued its Decisions and Orders in Interstate Electric Company, 227 NLRB 1996, and Local Union No. 68, International Brotherhood of Electrical Workers (How- ard Electric Company), 227 NLRB 1904, wherein it found, inter alia, that collective-bargaining contract provisions analogous or identical to the "1 in 4" years' experience requirement herein are not viola- tive of the Act. On February 28, 1977, the General Counsel filed a motion with the court for leave to amend the application for enforcement, stating that the Board no longer sought enforcement of its Order insofar as it requires all Respondents to cease maintaining, enforcing and giving effect to the "I in 4" years' experience requirement provision of their collective- bargaining contract. On April 8, 1977, the court granted the General Counsel's motion. Thereafter, on April 21, 1977, the court, sua sponte, vacated the Board's Order in part and remanded the issue pertaining to the "1 in 4" years' experience requirement for further consideration in light of Interstate Electric Company, supra, and Howard Electric Company, supra. The court also stated that the Board's finding that Flores was discriminatorily denied an opportunity to take the journeyman examination has been rendered moot since Flores has been permitted to take the examination in the interim. Finally, the court remanded the remainder of the Board's Order for further consideration (Docket 75-1161). On June 16, 1977, the Board advised the parties that it had decided to accept the remand and that it would take appropriate action consistent therewith. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. As previously indicated, infra, subsequent to our initial decision herein, we reconsidered the issue respecting the lawfulness under the Act of contract provisions which grant employment referral priority to employees who satisfy a "1 in 4" years' experience requirement or requirements analogous thereto. In Interstate Electric Company, we held that a contract provision, between qualified employers and labor organizations operating in the building and construc- tion industry, which grants priority in referrals based upon an applicant's length of service with a signatory for enforcement of the Board's Decision and Order in the United States Court of Appeals for-the Second Circuit. On February 28, 1975, the General Counsel made a motion for leave to withdraw the aforesaid application for enforcement as Respondent Union had filed a petition for review of the Board's Decision and Order in the United States Court of Appeals for the District of Columbia Circuit. The court granted the motion on March II. 1975. 1021 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer is expressly made lawful by Section 8(f)(4) of the Act. In both Interstate and Howard we expressly overruled our prior decision herein to the extent that it held that such contract seniority provisions are inherently violative of Section 8(b)(l)(A) and (2) and Section 8(a)(3) and (1) of the Act. The rationale on which our decision in Interstate is based is equally applicable here. Accordingly, for the reasons fully set forth in that case, we find that Respondents did not violate Section 8(b)(1)(A) and (2) and Section 8(a)(3) and (1) of the Act by maintaining, enforcing, and otherwise giving effect to the exclusive hiring hall contractual agreement which gives preference in referrals and employment oppor- tunities to applicants for employment who have worked at least I of the 4 years previous to the date of application with employers who had collective- bargaining agreements with Respondent Union. Having found that Respondents did not violate the Act by maintaining and enforcing the hiring hall provisions described above, we shall dismiss these allegations of the complaint. The court of appeals concluded that our finding that Respondent Union violated the Act by failing to permit Ernesto Flores to take its journeyman examination had been mooted by the fact that he was permitted to take the examination in the interim. Accordingly, as we accept the court's findings and conclusions as the law of this case, we shall also dismiss the 8(b)(1)(A) and (2) allegation of the complaint relating thereto. In all other respects, we affirm our previous findings. ORDER Pursuant to Section 10(c) of the National Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Local Union No. 25, Internation- al Brotherhood of Electrical Workers, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing or refusing to refer for employment Ernesto Flores, George Colletti, or any other applicant because of their nonmembership in Re- spondent Union. (b) Maintaining, enforcing, or otherwise giving effect to the provisions of its collective-bargaining agreement with Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc., or 6 In accordance with our decision in Florida Sleel Corporation, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 7 In the event that this Order is enforced by a Judgment of a United to any modification, extension, or renewal thereof, which deny eligibility for referral to registrants who work for employers whose wage rates and fringe benefits are less than those provided in the aforesaid agreement, or those which follow it. (c) Causing or attempting to cause Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc., its employer-members, or any other employer, to discriminate against employees or applicants for employment in violation of Section 8(a)(3) of the Act. (d) In any like or related manner restraining or coercing employees 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 organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Ernesto Flores and George Colletti whole for any loss of earnings they have suffered by reason of the discrimination against them in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231 NLRB 651 (1977).6 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all referral and other records necessary to analyze and determine the amounts of backpay due under the terms of this Order. (c) Keep permanent records of its hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. (d) Post at its business and employment referral offices and meeting halls copies of the attached notice marked "Appendix A." 7 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent Union, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 29, signed copies of Appendix A for posting by Respon- dent Employers in places where notices to employees are customarily posted. States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1022 NASSAU-SUFFOLK CHAPTER OF NECA (0 Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein against the Respondent Union be dismissed insofar as it alleges violations of the Act other than those found above. B. Respondents Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc., and Alcap Electrical Corporation, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, enforcing, or otherwise giving effect to the provisions of their collective-bargaining agreement with Local Union No. 25, International Brotherhood of Electrical Workers, or to any modification, extension, or renewal thereof, which deny eligibility for employment to registrants who have worked for employers whose wage rates and fringe benefits are less than those provided in the aforesaid agreement. (b) In any like or related manner interfering with, restraining, or coercing employees 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 organiza- tion as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at their offices, and at the offices and jobsites of the employer-members of NECA, copies of the attached notice "Appendix B." " Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent Employers' representatives, shall be posted immedi- ately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employers 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 B, 2(a) above, and as soon as they are received from the Regional Director for Region 29, copies of Respondent Union's notice marked "Appendix A." (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent Employers have taken to comply herewith. I See fn. 7. MEMBER JENKINS, dissenting in part: For the reasons stated in my dissenting opinion in Interstate Electric Company, 227 NLRB 1996 (1977), I would find that Respondent Employers violated Section 8(a)(3) and (1) of the Act, and Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, by maintaining and enforcing a hiring hall clause giving priority in job referrals to applicants who have worked for employers signatory to a bargaining contract with Respondent Union. APPENDIX A NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government NOTICE TO ALL MEMBERS AND OTHER PERSONS USING THE HIRING HALL OF LOCAL UNION NO. 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board. WE WILL NOT fail or refuse to refer for employment Ernesto Flores, George Colletti, or any other applicant because of his nonmember- ship with us. WE WILL NOT maintain, enforce, or otherwise give effect to any exclusive hiring arrangement or practice with Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc., or to any modification, extension, or renewal thereof, which denies eligibility for referral because of employment by an employer whose wage rates and fringe benefits are less than that provided in our contract with the said association. WE WILL NOT cause or attempt to cause Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc., or any other employer, to discriminate against employees, or applicants for employment, to encourage mem- bership in our, or any other, labor organization. WE WILL NOT in any like or related manner restrain or coerce applicants for employment in the exercise of rights guaranteed by Section 7 of the Act. Since it was found that we violated the Act by failing and refusing to refer Ernesto Flores and George Colletti to jobs, WE WILL reimburse them 1023 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the losses they suffered as a result of our discrimination, with interest. 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. LOCAL UNION No. 25, INTERNATIONAL BROTHERHOOD OF EILECTRICAL WORKERS APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and had ordered us to post this notice and we intend to carry out the Order of the Board. WE WILL NOT maintain, enforce, or otherwise give effect to any exclusive hiring agreement or practice with Local Union No. 25, International Brotherhood of Electrical Workers, or to any modification, extension or renewal thereof, which denies eligibility for referral for employment because the applicant worked for any employer whose wage rates and fringe benefits are less than that provided in our contract with the said Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees, or applicants for employment, in the exercise of their rights guaranteed in Section 7 of the Act. NASSAU-SUFFOLK CHAPTER OF THE NATIONAL ELECTRICAL CONTRACTORS' ASSOCIATION, INC. ALCAP ELECTRICAL CORPORATION 1024