Electrical Workers Ibew Local 269 (National Electrical)

ELECTRICAL WORKERS IBEW LOCAL 269 (NATIONAL ELECTRICAL) 1285 Local 269, International Brotherhood of Electrical Workers, AFL-CIO and. James Palmieri - and National Electrical Contractors Association, Mercer Division of the Southern New Jersey Chapter,- Inc. Case 22-CB-5199 31 July 1985 DECISION'AND: ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 April 1985 Administrative Law Judge Raymond P. Green-issued the attached. decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in response to the General Counsel's exceptions. - The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's -rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The complaint is dismissed. i The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- - versing the findings , Because we find that do prima facie case has been established, we find it unnecessary to address the General Counsel's procedural exceptions DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge This case was heard by me in Newark, New Jersey, on•Feb-• ruary 13, 1985 ` The charge was filed on October 31, 1984, and- the complaint was issued on December 20, 1984. In substance, it is alleged -that -the Union, since about April 31, 1984, has refused to refer Palmieri to jobs through its hiring hall because he had previously filed unfair labor practice charges against the Union. - Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the'-witnesses, and after considering the briefs filed, I make the follow- ing I..FINDINGS AND CONCLUSIONS A. Jurisdiction i - At all times material herein the Union has been a party to--a collective-bargaining agreement with the National Electrical Contractors Association, Mercer Division of the-Southern New Jersey Chapter Inc. On an annual basis, the employer-members of this Association collec- tively purchased goods and products valued in excess 'of $50,000 from points located directly outside the State of New Jersey. It therefore is concluded that the Associa- tion's employer-members are employers engaged in com- merce within the meaning of Section 2(2), (6), . and (7) of'- the Act and-that it would effectuate the purposes of the Act to assert jurisdiction herein. ' It further is found that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act B. The Alleged Unfair Labor Practice For many years the Union and the Association have maintained collective-bargaining agreements containing provisions for an exclusive hiring hall, although the em- ployers, pursuant to the contract, have the right to reject any person referred by the Union.2 Palmieri who served his apprenticeship in a Miami, Florida local of the IBEW, moved back to New Jersey in 1960 On his return, he initially sought and obtained work in New York through the auspices of Local 3 IBEW. In 1963 Palmieri began to seek employment out of Local 269's hiring hall. He also applied for member- ship in Local 269 but was rejected. It appears that, al- though Palmieri was referred to jobs by Local 269, be- cause he was not in group I status, he received fewer re- ferrals than other persons who were in that group. In 1965 Palmieri and Frank Koerkle (referred to in fn. 2) filed various unfair labor practice charges against Local •269 and the Association. In early 1966 the Newark Regional Office of the Board -issued complaints based on these,charges. Essentially, it was alleged- that the Union continued to operate its hiring hall in a discriminatory manner by giving preference to its members. Also, it was alleged that employers were giving unlawful assistance to the Union- because certain of their supervisors were also officials of the Union. An unfair labor practice hearing was scheduled -to take place on February 1, 1966, and this was attended by a certain amount of newspaper publicity in the Trenton, New 'Jersey papers. Soon after the trial opened a settle- ment was reached.. In essence, both Koerkle and Palmieri agreed to withdraw their cases and the Union agreed to grant them union membership along with group I status in the hiring hall ' Subsequent to the settlement, the Union did refer both Koerkle and Palmieri to' various jobs in the industry. At the hearing, the Union amended its answer to admit pars 2, 3, and 4 of the complaint 2 In 1965, the Board issued a decision finding that the Union, in the operation of its hiring hall, gave unlawful preference to members of Local 269 That case was based on charges filed by Frank Koerkle and Arthur Hazeltine in 1963 Palmieri, the Charging Party herein, was not involved in that case - 275 NLRB No. 174 1286 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Koerkle, for his part, continued to obtain employment (without incident) through the Union's hiring hall until his retirement in 1974 Palmieri, however, began to expe- rience problems almost immediately. The record shows that from 1966 to 1968 Palmieri was fired from a significant percentage of the jobs to which the Union referred him. The reasons for the terminations were various, but ranged _ from incompetency, laziness, insubordination, and dishonesty Finally, Electric Co.' Inc. sent a letter to Donald Kennedy, business manager of Local, 269, asking for a meeting of the appeals com- mittee to discuss Palmieri. In this regard, the appeals committee is a• group established by the collective-bar- gaining agreement to consider complaints arising out of the hiring hall. It consists of an employer appointee, a union appointee, and a public member. It is empowered to make a "final and binding decision on any such com- plaint which shall be complied with" by the Local Union." Pursuant to notice to all parties (including Palmieri) a meeting of the appeals committee was held on June 5, 1968. When the meeting convened Palmieri was told that testimony was going to be taken regarding various com- plaints' about Palmieri's work for the purpose of deter- mining if he should continue to be allowed to use the hiring hall. Palmieri left the meeting and a transcript was made of the testimony given against him. A copy of the transcript was sent to Palmieri on June 27, 1968. Palmieri was told: that he would have 10 days to prepare any comments and that another meeting .would be scheduled at which time he could present-any statement or wit- nesses he desired. ' - Although given an opportunity to reply to the charges against him, Palmieri did not attend a meeting of the ap- peals committee on July 11, 1968, and that body issued a decision as follows: The appeals committee, having heard and consid- ered the oral testimony and the documentary evi- dence presented in the case of James Palmieri, and having concluded that any new referrals of James Palmieri to contractors using the hiring hall of Local 269, would constitute an unfair imposition -upon those contractors; in that we have concluded that James Palmieri is unfit as a journeyman and ,is consistently insubordinate and unreliable. It is there- fore recommended to Local Union 269 and its offi- cers that James Palmieri should be removed from the list of available applicants for employment and should not again be referred as a .journeyman-elec- trician to.any contractor seeking journeyman. On receiving notice of the appeals committee decision, Palmieri filed unfair labor practice charges against the Union, the Association, and numerous employers. On May 6, 1969, the Regional Director Region 22 dismissed all of Palmieri's charges. As to the charge against Local 269, the dismissed letter stated: As to your assertion that you were discriminatorily expelled from membership from, Local' 269, IBEW, on May 7, 1968 (Case No. 22-CB-1358), the. rele vant evidence reveals that your expulsion, subse-- quently reduced to a ,10-year suspension - without loss of your right to participate in Local 269 wel- fare programs, was based on your' having assaulted its business agent on February 27, 1968. Nor is the evidence sufficient to establish that you have been discriminatorily barred from using the Local 269 hiring hall as alleged in Cases Nos. 22-CB-1383 and 22-CA-3556. On the contrary, it appears that the action of the Appeals Committee in so barring you was taken after it had" considered'extensive testinio- ny relating to your work record, part of which is discussed in the above cases. In the absence of any probative evidence that its action was discriminator- ily motivated and as it had afforded you,' subsequent to the initial hearing on June 5, 1968, a full opportu-, nity to rebut the testimony taken on that date, it is concluded that there is no basis upon which a com- plaint should issue. In this connection, it is noted that Local 269, IBEW, has' legitimate collective bar- -gaining interests to protect and that its participation in the conduct of the Appeals Committee hearing, including the presence of one of its members on the Committee itself, is consistent with its legitimate functions in the area of collective bargaining. Cf. Figueroa v. National Maritime Union, 58 LRRM 2619 (C.A. 2, 1965).3 According to Palmieri, from 1970 to 1983 he operated an electrical contracting business doing electrical con- tracting for residential customers as well as businesses. He states that he operated his business under the name of Union Electrical Contractor's Inc. In this regard, Kenne- dy, the Union's business manager, testified that during that period of time he received some complaints from Palmieri's customers who assumed incorrectly that be- cause of the Company's name it operated under contract with Local 269. In fact, during the period of time that Palmieri operat- ed his business, he was cited eight times by the city of Trenton for electric code violations. The final straw came in 1983 when one of Palmieri's customers filed a complaint against him which led to a hearing before the New Jersey Board of Examiners of Electrical Contrac- tors.. Palmieri testified that he decided, despite notice of the hearing, not. to attend because he felt the complaints were minor and would be dismissed. Unfortunately for him, the complaints were anything but minor, resulting in a fine of $2000 and the suspension of his contracting license for 1 year. Among other things the Board stated on March 16, 1983: " NJ.S.A . 45:1-21(b) makes it unlawful for a licens- ee to engage in the use of dishonesty , fraud, decep- tion, misrepresentation, false promise or false pre- tense. N.J.S.A. 45:1-21(e) prohibits the use or em- ployment of occupational misconduct . Violations of these sections render a licensee liable for discipli- ' Palmieri's appeal of the dismissal to the General Counsel was denied on November 5, 1969 It is also noted that an unfair labor practice case filed by Palmieri against Local 456 IBEW was dismissed by the Board in 183 NLRB 1277 (1970) ELECTRICAL WORKERS IBEW LOCAL 269 (NATIONAL ELECTRICAL) 1287 Lc , nary sanctions . Respondent Palmieri admitted that he removed the electric meter from the ouside of the Gramas residence in order to ensure payment by Mr. Gramas of, the amount owed • to him . Clearly respondent's unauthorized self-help in removing the property of the consumer in order to pressure the consumer for the payment of a claimed debt. was both improper and an illegal conversion of the con- sumer's property The Board finds that such con- duct constitutes the' "use of, deception and dishonesty within the meaning of N.J.S.A. 45.1-21(b). Respondent also ignored the instruction of Mr. Gramas that the work was not to be started until Thursday and broke into the house on Tuesday to start the work . On Friday after a dispute about pay- ment for the job arose, respondent attempted to pre- vent the township inspector from coming to the Gramas residence to perform the inspection. He did this knowing that Mr . Gramas needed the inspec- tion completed so that the house could be sold: Fur- thermore , the electrical system , newly installed by respondent, was removed sometime between Sep- tember 26, 1980 and October 3, 1980, and all of the branch circuit wires were cut This happened when Mr: Gramas was away on vacation, and entry was made by breaking in the same cellar window through which respondent admitted gaining access to the house the previous week On returning home, Mr. Gramas found that the parts of his old electric service, which had been cleaned up and removed by respondent, had been returned and put in the middle of the cellar floor. The Board , therefore, finds that it was indeed respondent who broke into the Gramas home, took the new service and dam- aged the wires since only respondent was in a posi- tion to have returned the old service.- This conduct as well as respondent 's first unlaw- ful entry, and his attempt to- prevent Mr. Gramas from obtaining the needed inspection clearly consti- tuted occupational misconduct within the meaning of N.J.S.A. 45.1-21(e) The Board, therefore, finds that respondent's license should be suspended for one year and that a penalty of $ 1,500.00 should be imposed.4 Having his contracting license suspended , Palmieri went back to Local 269 and registered to use the hiring hall despite having been permanently barred back in 1968. On June 27, 1983, Business Manager Kennedy wrote to Palmieri advising him. that the 1968 appeals committee decision was still in effect and therefore, the Union could not refer him to employment On August 15, 1983, Mr. Palmieri wrote to Kennedy asking if there 4 On December 15, 1983, the Superior Court of New Jersey. Appellate Division sustained the action ,of the State'board of examiners of Electrical Contractors on the grounds that `;Our review of the record convinces us that ' there ,was substantial' credible evidence supportive of-these determi- nations " I shall; as moved by'the General Counsel, receive into evidence as G C Exhs 27 and 28, respectively, the decision of the court and Pal- mien's brief to the court Palmieri's subsequent appeal to the New Jersey Supreme Court was not decided at the time of this opinion Also, because Palmieri has re- fused to pay the fine, his suspension has not been lifted was some way or procedure by which he could have the 1968 decision reversed. On August 22, 1983, Kennedy re- plied and suggested that the matter might be brought to the attention of the labor management committee, a joint employer-union committee established pursuant to article I of the contract, to deal with grievances. Kennedy went on to state: If you choose to take your problem before the Labor Management Committee,, please let me know and I will then schedule a meeting of that-Commit- tee. At that time you will have an opportunity to present all information you feel necessary Pursuant to Palmieri's request, Kennedy set up a hear- ing before the labor management committee for Septem- ber 8, 1983, at 10:30 a.m. In connection therewith, Pal- mieri chose Walter Marciante, a member of the Union's executive board, to represent him at the hearing. According to Palmieri, just prior to the meeting on Septemer 8, 1983, he met privately with Marciante who told him, inter alia, that Kennedy was out to get Pal- mieri, "and he's going to get you any way he can." Mar- ciante, however, credibly denied this assertion. Indeed such an assertion, to my mind, is totally incredible given the totality of the record herein which shows that Ken- nedy assisted Palmieri in every reasonable way to get a hearing on Palmieri's desire to reverse the 1968 decision of the appeals' committee. In any event a hearing was held on September 8 at which Palmieri's principal argument was that there should be some sort of statute of limitations on the 1968 decision. However, one of the management members had discovered the decision of the New Jersey Board of Ex- aminers and confronted Palmieri with it. Palmieri assert- ed that the conclusions in that decision were untrue and he was then asked why he did not attend that hearing. When Palmieri was excused from the meeting, the com- mittee unanimously voted to keep him from using the hiring hall. In its decision, which was transmitted to Pal- mieri on September 16, 1983, . the labor management committee concluded. - The Labor Management Committee after careful consideration of all the testimony and documentary evidence presented at the hearing of September 8, 1983 initially determined that Donald J Kennedy, Business Manager, I.B E.W Local Union 269 had no authority whatsoever to modify or otherwise alter the Committee's- decision of July 11, 1968, bar- ring James Palmieri from-use of the I.B.E.W Local Union 269 hiring hall Accordingly, Mr Kennedy acted in a proper and-rightful manner in so inform- ing Mr. Palmieri. This. leads us to a consideration of the second question presented by this grievance, namely wheth- er the decision of July 11, 1968 should be modified. After careful and deliberate consideration of the tes- timony and documentary evidence presented, it is the conclusion of this Committee that Mr Palmieri has presented no evidence whatsoever which would justify. a modification of the decision of July 11, 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1968 barring him from use of the - hiring hall. In, fact, the only new evidence which bears upon the question of Mr. Palmieri's fitness for the trade is to- tally contrary to his assertion that he has changed and the basis of his debarment no longer exists. In this regard the Committee takes due note of the proceedings before the State of New Jersey, De- partment of Law and Public Safety, Division of Consumer Affairs, Board of Electrical Contractors; wherein by order of March 16, 1983 Mr Palmieri's license to practice electrical contracting in the State of New Jersey was suspended for one year and he was fined $2,000.00 for deception and dishonesty within the meaning of N J.S.A. 45:1-21(b), occupa- tional misconduct within the means of N J.S.A. 45:1-21(e), failure to obtain an inspection of electri- cal work within the meaning of N.J.A.C. 13.31-1.8 and N.J S.A. 45:1-21(h), failure to obtain a permit for electrical installation within the meaning of N.J.A.C. 5:23=2.4(a)(1), failure to provide a written contract within the meaning of N J A C. 13:45 A- 16 2(a)(12) and dishonesty and deception within the meaning of N.J.S.A. 45:1-21(b). A copy of the aforesaid proceeding is annexed hereto and made part hereof Accordingly, for the reason of aforesaid, the Committee finds no basis upon which to modify the decision of July 11, 1968 and therefore orders that said decision shall continue to remain in effect. In September and October 1983 Palmieri filed a series of charges against the Union and the Association These charges were dismissed on November 30, 1983. In part the Regional Director's dismissal letter stated. The investigation also failed to establish that Local 269, International Brotherhood of Electrical Workers, herein Union, refused to refer you for em- ployment since April 31, 1983, because you filed unfair labor practice charges against it and NECA members, or for any other arbitrary reason, as you allege In that regard it is noted that you had last filed unfair labor practice charges against the Union or NECA in about 1968. No evidence has been pre- sented that any reprisals having been taken against you by the Union other than those currently being alleged since then. Furthermore,- while the Union's refusal to refer • you is based, in part, upon a 1968 decision of its Appeals Committee that you should not again be referred as a journeyman electrician because you were unfit and consistently insubordi- nate and unreliable, its actions do not appear to be arbitrary. In that regard it is noted that the unfair labor practice charge filed by you in 1968 (Case 22- CB-1383) questioning the legality of the Appeals Committee decision was dismissed by the Regional Director and your appeals from that dismissal was denied by the General Counsel's Office of Appeals, as there was insufficient evidence to support your charge. Additionally, Article V, Section 5.2 of the collective bargaining agreement between the parties provides that the decisions of the Appeals Commit- tee are final and binding, and must be complied - with by the Union Thus, it appears that the Union's Business Manager had no 'authority to disregard that decision and refer you for employment when you recently applied for referrals through the Union's hiring hall Moreover, the Labor Manage- ment Committee, which had authority-to modify or reverse the 1968 decision, conducted a hearing at your request on September 8, 1983, to determine whether you could be referred through the hiring hall. At that meeting you were represented by a member of the Union's executive board whom you had requested, and you were afforded a full oppor- tunity to present evidence on your behalf. No pro- bative evidence of your current capability as a jour- neyman electrician appears to have been presented. Rather, evidence was presented that your license to practice electrical contracting in the State of New Jersey was suspended on March 16, 1983, for one year by the State of New Jersey, Department of Law and Public Safety, Division of Consumer Af- fairs, Board of Electrical Contractors, and you were fined $2,000.00 for deception and dishonesty, occu- pational misconduct, failure to obtain an inspection of electrical work, failure to obtain a permit for electrical installation, and failure to provide a writ- ten contract within the meaning of applicable New Jersey statutes. After receiving the dismissal letter described above, Palmieri continued to put his name on the Union's referral roster.and the Union did, not send him out to jobs. Also, his attempt to appeal the labor management committee's decision to the next step of the grievance procedure was denied. On December 19, 1983, Palmieri filed new charges against the Union in Case 22-CB-4999, again alleging, inter alia, that the Union was- discri-minatorily refusing to refer him to employment That charge was dismissed by the Regional Direc- tor on March 14, 1984 and Palmieri's appeal to the Board's General Counsel was denied on May 14. On August 17 Palmieri filed yet another charge against the Union in Case 22-CB-5161 again alleg- ing inter alia, the Union's refusal to refer him to work This charge was dismissed by the Regional Director on September 4 and Palmieri's appeal was denied on September 25. Undaunted, Palmieri filed the instant charge against the Union on October 31 and for some reason, unfathomable to me, the Re- gional Director decided to issue the present com- plaint. IT. DISCUSSION The facts, as described above speak for themselves. On the merits, there simply is no credible evidence to estab- lish that the.Union has refused to refer Palmieri for em- ployment either because he had previously filed unfair labor practice charges against the Union or for any other arbitrary or invidious reasons. Indeed, I am in complete agreement with the Regional Director's dismissal letter of November 30, 1983 (quoted above), and I do not per- ELECTRICAL WORKERS IBEW LOCAL 269 (NATIONAL ELECTRICAL) 1289 ceive that any credible evidence has been presented in this case which would lead me to believe that the Re- gional Director's reasons for dismissing Palmieri's charge at that time were incorrect.5 Accordingly, without pass- ing on the 10(b) issue raised by the Respondent, it is con- cluded that the General Counsel has failed to make out a prima facie case. ers, collectively, are engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 3. The Union has not violated the Act in any respect as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds CONCLUSIONS OF LAW 1 The Respondent, Local 269 International Brother- hood of Electrical Workers, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act: 2. The National Electrical Contractors Association,- Mercer Division of the Southern New Jersey Chapter Inc. is an employer association whose member-employ- 5 Pahmien's appeal of this dismissal was denied by the General Coun- sel on January 20, 1984 ORDER It is recommended that the complaint be dismissed in its entirety. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses