Electrical Workers IBEW Local 58 (National Electrical Contractors)

252 306 NLRB No. 49 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Charging Party’s name appears as amended at the hearing. 2 Unless otherwise indicated, all dates are between October 1, 1989, and March 15, 1990. Local Union No. 58, International Brotherhood of Electrical Workers, AFL–CIO (Southeastern Michigan Chapter, National Electrical Contrac- tors Association, Inc.) and John Hopkins. Case 7–CB–8174 January 31, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On August 7, 1991, Administrative Law Judge David L. Evans issued the attached decision. The Gen- eral Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions and to adopt the recommended Order dis- missing the complaint. The General Counsel excepts to the judge’s failure to address the complaint allegation that the Respond- ent’s conduct in denying Charging Party Hopkins nec- essary application forms prevented him from invoking his appeal rights provided in the Supplemental Unem- ployment Benefit (SUB) Plan and that the denial thus violated Section 8(b)(1)(A). We agree with the General Counsel that he is entitled to a resolution of this issue. On the merits, however, we find that the allegation should be dismissed. The SUB Plan summary states that the Plan is ad- ministered by a joint board of trustees and that each employee has the right to appeal any denial of his claim, in whole or in part, by writing to the board of trustees. The Plan summary also, however, states: One word of caution—no one has the authority to speak for the trustees in explaining the eligibility rules or benefits of the Fund, except the full Board of Trustees or the Fund’s Administrator to whom such authority has been delegated. Hopkins was thus on notice that he was not obli- gated to accept the Respondent’s explanation for not permitting him to apply for unemployment benefits. He further knew that he had direct recourse to the Trustees to the extent he viewed the Respondent’s actions as denying him a claim under the Plan. We conclude therefore that the Respondent’s failure to honor Hop- kins’ request for benefit application forms did not de- prive him of any appeal rights under the SUB Plan. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Mary Beth Onachi, Esq., for the General Counsel. Chris Legghio, Esq. (Miller, Cohen, Martens & Ice, P.C.), of Southfield, Michigan, for the Respondent. DECISION DAVID L. EVANS, Administrative Law Judge. This matter was tried in Detroit, Michigan, on February 1, 1991. The charge was filed by John Hopkins,1 against Local Union No. 58, International Brotherhood of Electrical Workers, AFL– CIO (the Union or the Respondent) on January 24, 1990, and a complaint and notice of hearing (the complaint) was issued by General Counsel on March 15, 1990.2 The complaint, al- leges that by certain acts and conduct the Union has violated, and is violating, Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by coercing and restraining employ- ees who are employed by members of Southeastern Michigan Chapter, National Electrical Contractors Association, Inc. (NECA) in the exercise of rights guaranteed to those employ- ees by Section 7 of the Act. The alleged violative acts by the Union involve its rela- tionship with the Supplemental Unemployment Benefit Plan of the Electrical Industry, Detroit, Michigan (the SUB Plan or the Plan), a trust created by the Union and NECA. The complaint names the SUB Plan as a party in interest to this proceeding; however, the SUB Plan was not served with the charge or the complaint. Counsel for the General Counsel makes no reference to the SUB Plan as a party in interest to this proceeding in her brief; the caption of the brief, con- trary to the usual practice of the office of the General Coun- sel, differs from the caption of the complaint in that, while the caption of the complaint names the SUB Plan as a party in interest, the caption of General Counsel’s brief does not. (Moreover, counsel for the General Counsel does not show service of her brief to the SUB Plan.) Under the cir- cumstances, it must be concluded that the SUB Plan has been amended out as a party in interest to this proceeding, a factor to be considered if my ultimate recommendation is not adopted. Respondent filed an answer to the complaint and, as amended at trial, the answer admits jurisdiction but denies the commission of any unfair labor practices. I have considered the briefs filed by the parties and, on consideration of the arguments made on brief, the record made at trial, and my observations of the demeanor of the witnesses, I issue the following FINDINGS OF FACT I. JURISDICTION NECA has been and is now an organization composed of employers engaged in the electrical construction industry, and which exists for the purpose, inter alia, of representing 253 ELECTRICAL WORKERS IBEW LOCAL 58 (NECA) 3 Transcript references to ‘‘Arisa’’ are corrected to read: ‘‘ERISA.’’ 4 The Charging Party is not a member of Respondent. The com- plaint equates members and employees. This is an obvious oversight; General Counsel would not contend that any order he sought herein would protect only employees who are members of Respondent. 5 Complaint pars. 10 and 11 are quoted as amended at the hearing. 6 All of these requirements are contained in the trust fund instru- ments that were received in evidence. General Counsel does not con- test the existence, or the validity, of any of these requirements. its employer-members in negotiating and administering col- lective-bargaining agreements with various labor organiza- tions, including Respondent. During 1989, NECA, in the course and conduct of its members’ business operations, had gross revenues in excess of $1 million and purchased and caused to be transported and delivered to various construc- tion jobsites within Michigan goods and materials valued in excess of $50,000 directly from suppliers located at points outside Michigan. Therefore, NECA is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts and Allegations 1. Allegations of the complaint As alleged and admitted, Respondent and NECA estab- lished the SUB Plan by joint action in 1972. As stated in the Plan’s summary plan description, a simplified description of the SUB Plan that is required by the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (ERISA),3 the purpose of the SUB Plan is: to provide some measure of income security during pe- riods of lay-off, illness, injury or jury duty to employ- ees in the electrical contracting industry who work under the jurisdiction of Local Union #58, International Brotherhood of Electrical Workers. This case involves the distributions of benefits for periods of unemployment occasioned only by periods of layoff, not in- jury, illness, or jury duty. The complaint alleges: 10. Since on or about October 17, 1989, by virtue of the provisions of the Supplemental Unemployment Benefit Plan, the Charging Party, and other members4 have become, and are currently, eligible to receive ben- efits prescribed in the [SUB] Plan. 11. Since on or about October 17, 1989, and con- tinuing to date, Respondent, through its agent, Thomas Butler, has prevented the Charging Party and other members from receiving benefits by either establishing arbitrary and artificial eligibility dates not provided for in the provisions of the Supplemental Unemployment Benefit Plan, and/or refusing to provide the Charging Party and/or other members with application forms that are required to be filed with the Supplemental Unem- ployment Benefit Plan.5 12. By denying the Charging Party and other mem- bers the necessary application forms, Respondent, through its agent Thomas Butler, has also prevented the Charging Party and other members [from invoking] their appeal rights as provided in the SUB Plan for claims that have been denied in whole or in part. 13. Respondent engaged in the conduct described above in paragraphs [11 and 12] for discriminatory, in- vidious, irrelevant and arbitrary reasons. 2. Operation of the SUB Plan and contentions The application forms referred to in the complaint are used by employees to apply for SUB Plan benefits when they are unemployed because of layoff. The Union maintains the forms and distributes them on behalf of the SUB Plan. The Union then transfers the applications to the trustees for fur- ther processing. The SUB Plan does not distribute benefits to all qualifying employee electricians during all parts of the year; it distributes benefits only during periods of general un- employment. What constitutes a period of general unemployment, with one exception, has historically been determined by the Union. William Dellapa, administrator of the SUB Plan since 1976 (and assistant administrator before then), testified that he receives telephone calls from agents of Respondent when there is a period of time in which the fund should be paying benefits because there is an insufficient amount of work available in the area. Dellapa testified that the trustees are not bound to accept the Union’s determination of when there are no jobs available in the area, and they may make their own inquiry, but he could point only to one occasion when the fund did not accept the Union’s determination that there were no jobs available in the area. (That was an occasion where there was a strike; naturally, the employer-appointed trustees of the SUB Plan took the position that jobs were available, and they would not affix their necessary signatures on checks for unemployment benefits.) Even during periods of general unemployment, the fund does not distribute unemployment benefits to any applicant who applies for them. An employee-applicant must meet cer- tain qualifications, including: the employee-applicant must have accumulated a certain number of credits that are earned by working for NECA employers; he must have been out of work for at least 1 full week; his current unemployment situ- ation must have resulted from his being laid off while work- ing in the Union’s geographic jurisdiction; he must not have refused more than one job opportunity during the period of unemployment for which he seeks benefits; and he must not have left the area after he applies.6 General Counsel contends that Charging Party Hopkins was a qualified laid-off electrician who was twice unlawfully denied forms on which he could have applied for benefits from the SUB Plan; and General Counsel further contends that, on a third occasion when Hopkins asked for such a form, he was given one, and he was allowed to complete it and return it to the Union, but the Union unlawfully refused to process it. General Counsel alleges that these actions, and Respondent’s practice of establishing when any benefits will be paid by the SUB Plan, deprived the Charging Party, and other employees, of SUB Plan benefits to which they were entitled. 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 General Counsel does not contest the existence or validity of this historical interpretation; Hopkins testified that he was aware of this interpretation. 8 There are other referral books, but they are not relevant here. 9 Throughout the transcript, ‘‘supp pay’’ is corrected to read: ‘‘SUB pay.’’ 10 Although one Thomas Butler is the only agent of Respondent named in the complaint, Nino Como is the only person proved to have acted as Respondent’s agent in this case. 11 Tr. 80, LL. 18–19, is corrected to read: ‘‘Judge Evans: What does that mean? ‘Usually’ every day or . . . .’’ Respondent admits that Hopkins sought SUB benefits three times. It further admits that, on the first two occasions, its agent refused to give Hopkins the necessary application forms, and it further admits refusing to process his completed application on the third occasion. Respondent defends its ac- tions on the ground that, regardless of how it was determined during what period of time that SUB Plan was to be distrib- uted to qualified employees, Hopkins was never a qualified employee when he applied, or sought to apply. Therefore, Respondent argues, it would have been futile to accept, or process, Hopkins’ applications. 3. Effect of Respondent’s referral procedures As noted, an employee must not have refused more than one job offer during a period of employment to become or remain qualified to receive SUB Plan benefits. Declining an offer of employment from Respondent’s exclusive hiring hall constitutes a refusal of employment under the Plan, as the parties have interpreted the Plan’s rules of individual eligi- bility.7 An issue in this case is whether Hopkins refused two jobs that were offered to him at the hiring hall; therefore, a certain knowledge of the operation of Respondent’s hiring hall is necessary. In the operation of its hiring hall, the Union (by the dis- patcher or someone acting in his stead) maintains registration books. Book 1 is the registration book in which applicants for employment register if they have sufficient local experi- ence. Book 2 is Respondent’s registration book that is re- served for ‘‘travelers,’’ or those employee-applicants who do not have such experience.8 Hopkins is a member of the IBEW, but not a member of Respondent; Hopkins is a member of Local 446, Monroe, Louisiana, and has for several years worked as a traveler in various areas of the United States, including Respondent’s geographic jurisdiction. (There is no contention that Re- spondent has taken any action against Hopkins because of his membership in another local union, or his race, or anything else about him.) Each day that jobs are available, the Union conducts roll- calls, by classifications or ‘‘books,’’ of all applicants. At 8 a.m., the dispatcher calls the roll of the job applicants who are registered in book 1. Registered local applicants who are present take the jobs that are offered at that time. At 1 p.m., if the book 1 rollcall has not filled all of the requests for em- ployees that the Union has received, the dispatcher calls the roll of job applicants who are registered in book 2. Reg- istered travelers who are present take the jobs that are of- fered at that time. An employee must be present at rollcall to receive a refer- ral. Each evening, the dispatcher creates a telephonic recorded message that: (1) lists the jobs that the dispatcher then knows will be available the next day, and (2) the volume-page-line placement of the 20th name on the out-of-work lists in book 1 and book 2. (Names are not mentioned; each employee who is seeking work through the referral procedures keeps track of his last registration’s volume, page, and line.) By calling in for the recorded message, a registered employee- applicant can form an idea about whether it would be worth his while to appear for rollcall the next day. Of course, some of the earlier registered employees may not appear, or some of them may decline jobs. Then the dis- patcher will go to the names of those who are successively registered and offer to those applicants the jobs that are available. If this occurs, a registered employee who does not appear because he did not think the rollcall would get to him (or for any other reason) runs the risk of being passed over. If that happens, the nonappearing, passed over, employee is charged with a refusal under the rules of the SUB Plan (just as if he had been present and refused an offered job). As noted, if an applicant for SUB Plan benefits has re- fused two job offers, he is rendered ineligible to receive SUB Plan benefits. 4. Hopkins’ applications Hopkins worked for 2 years in the area of Respondent’s geographic jurisdiction, 1988 and 1989, taking job referrals from the Respondent’s hiring hall. On October 17, he was laid off by an area employer and went that day to sign the referral book. On the same day, Hopkins also asked Re- spondent’s dispatcher, Nino Como, for the form with which out-of-work applicants apply for SUB Plan benefits, or ‘‘SUB pay.’’9 Como refused to give Hopkins a form, stating that SUB pay was not being paid at that time.10 On direct examination Hopkins testified that he attended the 1 p.m. rollcall that Respondent conducts for travelers for ‘‘a couple of weeks’’ after October 17. He further testified that on October 18, or the day after he registered for referrals with Respondent, he registered for referrals with IBEW Local 252 in Ann Arbor. Ann Arbor is not in Respondent’s geographic jurisdiction. After being blatantly led by General Counsel to state that he attended the Respondent’s 1 p.m. rollcall every day be- tween October 18 and November 6, Hopkins admitted, in an examination by me, that he attended the 1 p.m. rollcall only ‘‘usually’’ every day.11 Hopkins then testified that he did not attend the rollcalls if the prior evening’s recorded telephone message indicated that there were ’’no jobs available. ‘‘On cross-examination, Hopkins again acknowledged that it was possible that he may have missed referrals because ‘‘there were days’’ that he did not go to the union hall between Oc- tober 17 and November 6. Respondent produced business records which plainly dem- onstrate that, on October 23 and 24, Hopkins was passed over, and jobs that he could have taken, had he appeared and responded to the rollcall, went to applicants who were reg- istered below him on the out-of-work lists. I find incredible Hopkins’ testimony that, between October 17 and November 6, he failed to go to the hall only if the previous evening’s telephone message had indicated that there was no work the next day. Hopkins appeared to be 255 ELECTRICAL WORKERS IBEW LOCAL 58 (NECA) 12 Local 252 conducts its rollcall(s) at 8 a.m. each day. 13 Both times that Hopkins took an Ann Arbor job, he notified Re- spondent’s hall so that he was not registered with Respondent while he was working in Ann Arbor. 14 The form had been destroyed, but Como’s remark shows that Hopkins had (truthfully) listed an Ann Arbor job as his last employ- ment. 15 By first alleging, in par. 10 of the complaint, that Hopkins and others are entitled to SUB Plan benefits, General Counsel necessarily acknowledges that the Charging Party was required to meet the fund’s requirements that are not challenged by the complaint. coming up with an afterthought, after General Counsel’s leading had obviously failed. Moreover, on October 24, the Union exhausted books 1 and 2, and it is unlikely to the point of disbelief that the recorded message for October 23 had indicated that there was no work available on October 24. (Even if Hopkins was telling the truth on the matter, the Respondent could have received more requests for employees after the telephone message was created on October 23, but before the 1 p.m. rollcall on October 24. The result would have been the same.) Hopkins took a job in Ann Arbor on November 6. That job lasted until December 1 when Hopkins was laid off. Hopkins testified that he immediately registered at both Re- spondent’s hall and at Local 252’s hall. Hopkins further testi- fied that he attended both Respondent’s and Local 252’s roll- calls12 each day thereafter until he got a job, again through Local 252, again in Ann Arbor, on December 20. Hopkins’ second Ann Arbor job lasted until December 31 when Hop- kins was again laid off. On January 2, Hopkins again signed the travelers’ referral books in both Ann Arbor and Detroit.13 On January 2, when he registered for referral in Respond- ent’s book for travelers, Hopkins again asked dispatcher Como for a form with which he could apply for benefits under the SUB Plan. Como told Hopkins that he could not have a form because benefits under the SUB Plan were not being paid at the time. On January 24, after having received no referrals from Re- spondent, Hopkins again asked Como for a form to apply for benefits under the SUB Plan. SUB Plan benefits were then being paid, and Como gave Hopkins a form. After reviewing it, Hopkins, literally, threw it in a wastebasket, telling Hop- kins that he was doing so because Hopkins did not have ‘‘a Detroit layoff.’’ Hopkins continued attending the travelers’ rollcalls until January 31 when, having received no referrals, he left the area. (There is no contention that any of Hopkins’ failures to receive referrals were caused by unfair labor practices on the part of Respondent.) B. Conclusions The complaint alleges that Respondent violated Section 8(b)(1)(A) by preventing Hopkins and other employees from receiving benefits by determining, arbitrarily, the SUB Plan eligibility dates. The complaint also alleges that Respondent violated Section 8(b)(1)(A) by preventing Hopkins and other employees from receiving SUB Plan benefits by refusing to provide Hopkins ‘‘and/or other [employees]’’ with SUB Plan application forms. In both cases, the complaint is alleging, as the predicate for the findings of violations by the Respond- ent, the prevention of Hopkins or other employees from re- ceiving SUB Plan benefits. Couched in the negative: The complaint does not allege that Respondent has violated Section 8(b)(1)(A) because it determines, as it does, the periods during which the SUB Plan pays benefits. Also, the complaint does not allege that Respondent has violated Section 8(b)(1)(A) by engaging in the practice of not providing, at all times, forms for applying for SUB Plan benefits. That is, the complaint does not allege as per se violations either Respondent’s practice of effec- tively determining when the SUB Plan will distribute bene- fits or Respondent’s practice of not distributing SUB Plan application forms whenever they are requested by employees. The complaint challenges these practices only where they have ‘‘prevented the Charging Party and other employees from receiving benefits.’’ Respondent has shown that, even if SUB Plan benefits had been paid at all times to all qualifying employees, and even if Hopkins had been given forms each time that he requested them, and even if such forms had been duly processed, Hop- kins would not have received any SUB Plan benefits. That is, Respondent has ‘‘ prevented ‘‘ Hopkins from receiving nothing. Assuming that Hopkins had been allowed to file an appli- cation on October 17, and further assuming that the SUB Plan had been paying benefits at that time, he would not have received SUB Plan benefits pursuant to that application. The Plan does not allow payment for the initial week of un- employment; therefore, Hopkins would not have been eligi- ble for SUB Plan benefits before October 25. However, on October 24 Hopkins disqualified himself from receiving any benefits for his unemployment caused by his October 17 lay- off by not appearing at Respondent’s rollcall and allowing himself to be passed over for a second job referral. There- fore, even if he had been given a SUB Plan application form, and it had been duly delivered to SUB Plan office, he would not have been entitled to the benefits for which he applied. After October 24, Hopkins was never again in the position of having been unemployed by reason of an area layoff; he was unemployed because of two Ann Arbor layoffs, but Ann Arbor is not ‘‘under the jurisdiction of Local Union #58, International Brotherhood of Electrical Workers,’’ as stated in the summary plan description quoted supra. If Hopkins had been given an application form on January 2, and he had filled it out, he would have necessarily listed an Ann Arbor employer as the employer who had laid him off, which is what he necessarily14 did on January 24. To have required the Union to accept and process the application that Hopkins would have filed on January 2 would be to have required the Union to have done an absolutely futile act, even if benefits were then being paid to qualified15 ap- plicants. To have required the Union to have processed the January 24 application, again, would have been to require an abso- lutely futile act; benefits were then being paid, but not to un- qualified applicants such as Hopkins. Therefore, General Counsel has failed to prove the predi- cate for the alleged violations; neither Hopkins nor any other employees have been shown to have been prevented from re- ceiving SUB Plan benefits because of Respondent’s prac- tices. 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. Accordingly, I find and conclude that Respondent has not committed any violation of Section 8(b)(1)(A) of the Act, as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended16 ORDER The complaint is dismissed.