Electrical Workers Ibew Local 11 (Choi Engineering)

ELECTRICAL WORKERS IBEW LOCAL 11 (CHOI ENGINEERING) International Brotherhood of Electrical Workers, Local 11, AFL-CIO (Choi Engineering Corp.) and Barrynell Williams. Case 31-CB-6144 30 October 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 30 July 1985 Administrative Law. Judge Richard D. Taplitz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in op- position to the Respondent'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, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Brotherhood of Electrical Workers, Local 11, AFL-CIO, Los Angeles, California, its officers, agents, and representatives, shall take the action set forth in the Order. I The General Counsel 's request that the Respondent's exceptions be stricken in their entirety or, alternatively , that certain portions of the Re- spondent's brief be stricken, is denied. Julia A. Osborn and Rhonda J. Herry, Esqs., for the Gen- eral Counsel. Davis, Frommer & Jesinger by Allan S. Cohen, Esq., of Los Angeles, California, for the Union. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried in Los Angeles, California, on June 12, 1985 . The charge was filed on March 20, 1985, by Barrynell Williams, an individual. The complaint, which issued on April 23 and was amended on April 25, 1985, and at the trial, alleges that International Brotherhood of Electrical Workers, Local 11, AFL-CIO (the Union) violated Section 8(b)(1XA) and (2) of the National Labor Relations Act. Issue The primary issue is whether the Union violated the Act by refusing to refer Williams for employment from 13 its exclusive hiring hall because the Union believed that Williams was delinquent in dues owed to a sister local. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-ex- amine witnesses, to argue orally, and to file briefs . Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Union. On the entire record ' of the case, and from my obser- vation of the witnesses and their demeanor , I make the following FINDINGS OF FACT I. JURISDICTION Choi Engineering Corp. (Choi), a California corpora- tion with an office and place of business in San Leandro, California, is a general contractor in the construction in- dustry specializing in electrical work. It annually pur- chases and receives goods or services valued in excess of $50,000 directly from suppliers located outside of Cali- fornia. The Los Angeles County Chapter of the National Electrical Contractors Association (NECA) is an organi- zation composed of employers engaged in electrical con- tracting in the construction industry . It represents its em- ployer-members in negotiating and administering collec- tive-bargaining agreements with various labor organiza- tions including the Union. The employer-members of NECA, collectively, annually purchase and receive in California goods or services value in excess of $50,000 directly from suppliers located outside of California. The complaint alleges, the answer admits, and I find that Choi as well as the employer-members of NECA collec- tively are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events 1. The hiring hall NECA and the Union are parties to a collective-bar- gaining agreement entitled "Inside Wiremen's Agree- ment" which covers the wages, hours, and other terms and conditions of employment for certain electrical em- ployees. The agreement is effective by its terms from June 1 , 1983, through May 31 , 1986. About February 22, 1984, Choi executed a "Letter of Assent" with the Union binding it to the terms and conditions of employment of that agreement. Article 4 of the collective-bargaining agreement sets forth an exclusive referral procedure as follows: Section 4.01. In the interest of maintaining an ef- ficient system of production in the Industry, provid- ing for an orderly procedure of referral of appli- cants for employment, perserving the legitimate in- I The unopposed motion of the General Counsel , which was annexed to her beef, to correct the transcript of the record is granted. The motion has been added to the exhibits as G.C. Exh. 14 277 NLRB No. 8 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terest of the employees in their employment status within the area and of eliminating discrimination in employment because of membership or non-mem- bership in the Union, the parties hereto agree to the following system of referral of applicants for em- ployment. Section 4.02. The Union shall be the sole and ex- clusive source of referral of applicants for employ- ment. Section 4.03. The Employer shall have the right to reject any applicant for employment. Section 4.04. The Union shall select and refer ap- plicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, bylaws, constitutional provisions or any other aspect or obligation of Union member- ship policies or requirements. All such selection and referral shall be in accord with the following proce- dure. Section 4.05. (a) The Union shall maintain a reg- ister of applicants for employment established on the basis of the Groups listed below. Each applicant for employment shall be registered in the highest priority Group for which he qualifies. Journeyman Wireman GROUP I. All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman wireman's examination given by a duly constituted Inside Construction Local Union of the IBEW or have been certified as a journeyman wire- man by any Inside Joint Apprenticeship and Train- ing Committee and who have been employed for a period of at least one year in the last four years under a collective bargaining agreement between the parties to this agreement. GROUP II. All applicants for employment who have four or more years' experience in the trade and who have passed a journeyman wireman's ex- amination given by a duly constituted Inside Con- struction Local Union of the IBEW or have been certified as a journeyman wireman by any Inside Joint Apprenticeship and Training Committee. GROUP III. All applicants for employment who have two or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six months in the last three years in the trade under a collective bargain- ing agreement between the parties to this agree- ment. GROUP IV. All applicants for employment who have worked at the trade for more than one year. The Union maintains hiring halls at several different locations. The dispatches are coordinated by the various dispatchers who use headphones to communicate be- tween the different locations. The procedure at the hiring halls is to fill job openings with group I applicants until the pool of group I applicants at the hall is exhaust- ed. At that point the job is called out and group II appli- cants can apply for it. The group II applicant who is highest on the list is entitled to the job. There is a physi- cal posting of available jobs and in addition a computer system is used. 2. Williams' attempt to use the hiring hall Barrynell Williams is a member of Local 130 of the International Brotherhood of Electrical Workers, AFL- CIO. Local 130, which is located in Louisiana, is a sister local of the Union. In 1980 Williams completed the ap- prenticeship course conducted by Local 130 and met all the other requirements needed to qualify for journeyman status. In mid-December 1984 Williams moved from Louisiana to the Los Angeles area and on December 21, 1984, he registered on the Union 's out-of-work list. At that time he gave the Union a traveler 's letter from Local 130, other information relating to his membership status, and a paid-up dues receipt for December 1984. He was placed on the group II out -of-work list. He was on that list at all times material herein. The parties have stipulated and I find that Williams was at all times eligi- ble for placement on the group II hiring list. Williams reported to the dispatch office almost every day throughout January, February, and the first part of March 1985. His physical appearance was necessary be- cause an applicant had to be present at the hall to bid on a job. On March 12, 1985, Williams was present at the hall for the dispatch. About 10:40 a.m. the Choi job was an- nounced. As with all jobs to be dispatched it was listed on a posted computer printout sheet and displayed on a lighted board which listed the jobs numerically. As a job is taken the lights on the panel board go out, which means that it is no longer available. When the Choi job was announced, no one from group I put in for it and it became available for group II applicants. Williams was the only group II applicant who applied for that job. He went to the dispatch window where the dispatcher, Louanne Ryerson, contacted the other hiring halls over her headset and verified that his number was the lowest one of the group II Applicants seeking the job. She then made an announcement that the Choi job was filled by Williams and she further an- nounced that the dispatch was closed for the day. The dispatcher then told Williams that Business Representa- tive Douglas Cooley would have to complete the dis- patch form and that Williams would have to fill out cer- tain forms because it was his first dispatch from the hall. Ryerson asked Williams his dues receipt. Williams re- plied that he had his receipt from the Louisiana local for February and that he had mailed in his payment for March dues about February 26 but he had not yet re- ceived his March receipt. At that point Union Business Representative Douglas Cooley came to the dispatch window.2 It was his decision to make whether a person 2 Cooley was the business agent responsible for dealing with matters concerning referral and dispatch on March 12 ELECTRICAL WORKERS IBEW LOCAL II (CHOI ENGINEERING) went out on a job if there was a problem concerning a dispatch.3 Cooley also asked for the dues receipt and Williams repeated the same he had told Ryerson. He gave Williams a receipt from Local 130 showing that he had paid his dues through February 1985.4 Williams said that if Cooley would call the Louisiana local, it would tell him that his dues were paid through March. Cooley agreed to made the call. Cooley then called Williams' home local. He was told by someone at that local that they had not received any money from Williams for March . He then went back to Williams and said that the home local was not in receipt of the money. Williams said that he would call the local himself and that there had to be some mistake because he had mailed his dues late in February. Within the next 5 minutes Williams called his home' local and spoke to Buck Hammond, an assistant business representative. He explained the situation to Hammond who switched his call to Janice, the secretary who han- dles dues payment. Williams asked her about the dues and she said that the dues were not paid for March. He told her that there had to be some mistake because he had mailed it in. She asked him to hold while she looked through some letters on her desk, and then said she had found it and that his dues were current. Williams then spoke to Local 130's assistant business agent Eddy Cretin and asked him to call the Union back immediately to tell them that his dues were current , because he was trying to get to work. Cretin agreed to do so. Shortly thereafter Union Business Manager Floyd Henke received verification from Williams' home local that a mistake had been made and that Williams' dues for March had in fact been paid . Henke relayed that infor- mation to Cooley. About an, hour after Williams had initially applied for the job, he again approached the window and -spoke to Cooley. Cooley told him that Cretin had called back to let them know his dues were current . Williams asked whether he would get the job and Cooley replied that Williams would not be sent out that day because the computer had already been shut down . According to Cooley the person doing the clerical work had already started making the selections and updating the names on the list for the next day. Cooley said that he had spoken with the business manager and they had decided not to send him out. Ryerson then came to the dispatch window with a slip in her hand and asked whether Wi- liams was going to be dispatched that day or not. Cooley said that he was not. Cooley also said that if Williams re- turned the next day there would be no problem with his going to work. Williams returned to the hall on March 13 and saw that the Choi job was once again posted . The job was given to a group I applicant and he did not have an op- portunity to bid on it. Cooley testified that the hiring hall rules require that an applicant for referral must have a paid-up receipt in a I find that Cooley was an agent of the Union. 4 Dues for Local 130 are payable in advance on the first of each month for that month. Though they are due on the 1st they are not considered delinquent until the 15th of the month. 15 his possession at the time of dispatch. He also averred that local members pay dues of $21.80 a month whether the member works or not but that a traveler does not pay any hiring hall fee until he actually goes to work. In his testimony Cooley admitted, and I find, that Wil- liams was the next up for referral for the Choi job and that the reason he was not given the job was because Cooley believed he was not current in his dues to the sister local. There is little dispute about the key facts. The Union operates an exclusive hiring hall . Williams was eligible for group II status pursuant to the rules of that hiring hall and on December 12, 1984 , he was on the out-of- .work list in that category . When the Choi job was called for dispatch on that day, no one from group I and no one from group II other than Williams applied for the job. Williams was the next up for referral for that job and the reason he was not given the job was because Cooley, who was in charge of the hiring hall, believed that Williams was not current in his dues to the sister local. An hour later when Cooley was informed that his belief was mistaken and that Williams in fact was current in his dues to the sister local, Cooley refused to correct the mistake. Williams was not referred to the Choi job. B. Analysis and Conclusion The Board has previously considered situations that were for all practical purposes identical to those in the instant case. In Operating Engineers Local 370 (AGC of America), 224 NLRB 641, 645 (1976), a union refused to refer an applicant for employment because the applicant was delinquent in his dues payments to a sister local. The administrative law judge found a violation in a decision which read (224 NLRB at 645): An exclusive hiring hall gives a great deal of au- thority over the hiring process to a Union, but such authority is not in itself violative of the Act.lo However, under such a hiring hall system , a union cannot lawfully refuse to refer an applicant because of security clause.' 1 A union may lawfully refuse to refer an applicant in a situation where that union could, pursuant to a lawful union-security clause, require immediate discharge of that employee for failure to pay dues under a contract governing his employment, 12 but the applicant cannot be required to pay back dues for a period when dues were not validly required as a condition of employment.) 3 Referral cannot lawfully be refused because an ap- plicant is not a member of or current in his dues with a sister local of the same International as the referring union. l4 10 Local 357, International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. NLRB, 365 U S. 667 (1961). 11 Seafarers International Union of North America. Atlantic. Gulf, Lakes & Inland Waters District. AFL-CIO (Isthmian Lines Inc.), 202 NLRB 657, enfd 496 F 2d 1363 (C.A 5, 1974). In addi- tion, referral may be conditioned on the payment of a reasonable nondiscriminatory hiring hall fee Boston Cement Masons and As- phalt Layers Union No. 534 (Duran Maguire Eastern Corp.), 216 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 568 (1975). However, there is no such issue in this case as Bailey paid all the "dobie" fees required of him. 12 Mayfair Coat & Suit Co., 140 NLRB 1333 (1963). is Cf. Fishermen & Allied Workers' Union, Local 33, Internation- al Longshoremen 's and Warehousemen 's Union (S G. Guiseppe Fish- ing, Inc.), 180 NLRB 851 (1970), enfd. 448 F.2d 255 (C.A. 9, 1971). 14 Cf. International Brotherhood of Electrical Workers. AFL- CIO, Local 648 (Foothill Electrical Corporation), 182 NLRB 66 (1970), enfd. 440 F.2d 1184 (C.A. 6, 1971), International Brother- hood of Electrical Worker, AFL-CIO, Local 82 (National Electrical Contractors Association, Dayton, Ohio Chapter), 182 NLRB 59 (1970), enfd. 440 F.2d 1184 (C.A. 6, 1971). The Board adopted the administrative law judge's deci- sion in an unpublished order. The administrative law judge's decision was however reported in the supplemen- tal decision and order of the Board cited above. A similar conclusion was reached by the Board in Bricklayers Local 8 (California Mason Assn.), 235 NLRB 1001 (1978), where a union was found to have violated the Act by refusing to refer an applicant from its hiring hall because the applicant had not paid a fine imposed by a sister local. In that case a majority of the Board's panel also found that the Union had violated the Act by failing to represent the applicant fairly. See also Teamsters Local 519 (Rust Engineering), 275 NLRB 433 (1985); Operating Engineers Local 825 (Building Contractors of New Jersey), 272 NLRB 186 (1984); Laborers Local 135 (Bechtel), 271 NLRB 777 (1984). As was held in Electrical Workers IBEW Local 11 (LA. Chapter of NECA), 270 NLRB 424, 425 (1984), which involved the same union as in the instant case: The Board has held that a union which operates an exclusive hiring hall must represent all individ- uals who seek to utilize the hall in a fair and impar- tial manner.' The labor organization conducting such an operation has a duty to conform with and apply lawful contractual standards in administering the referral system, and any departure from the es- tablished procedures resulting in a denial of employ- ment constitutes discrimination which inherently en- courages union membership. This discrimination constitutes a violation of Section 8(b)(1)(A) and (2) of the Act.8 7 Plumbers Local 725 (Powers Regulator), 225 NLRB 138, 143 (1976). ° Id. at 143; Operating Engineers Local 513 (S J. Groves & Sons Co.), 199 NLRB 921, 922 (1972). In the instant case the Union refused to refer Williams to the Choi job because it wrongly believed that Wil- liams was delinquent in his dues to a sister local. As indi- cated above such a refusal to refer is unlawful even where the applicant in fact has not paid dues to a sister local. Here the Union's conduct was particularly harsh. Williams was current in his dues to the sister local. The sister local was the one which made the mistake and the Union refused to correct the inequity even though it knew that the mistake had been made. Williams was in no sense a "free rider." He was abiding by all of the le- gitimate hiring hall rules. The Union has neither an equi- table nor a legal defense. 5 I find that the Union violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Williams to the Choi job on March 12, 1985, because the Union believed that Williams was delinquent in dues owed to a sister local.6 Iron Workers Local 433, 272 NLRB 530 (1984). CONCLUSION OF LAW By refusing to refer Williams to the Choi job on March 12, 1985, because the Union believed that Wil- liams was delinquent in dues owed to a sister local, the Union violated Section 8(b)(1XA) and (2) of the Act. REMEDY Having found that the Union engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It is also recommended that the Union make Williams whole for any loss of earnings suffered on and- after March 12, 1985, by reason of the Union's unlawful refus- al to refer him to work. The amount of backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), together with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977).' It is recommended that the Union be or- dered to make Williams whole for any rights he would have accrued from any employment relationship improp- erly foreclosed him through the Union's unlawful con- duct and that the Union credit Williams with the hours he would have worked but for the discrimination, in de- termining his eligibility for class I status in the hiring hall referral system. As the unlawful conduct of the Union indicates a pur- pose to limit the lawful rights of applicants for employ- ment, I recommend that the Union be ordered to cease and desist from operating its exclusive hiring hall in such a manner as to cause or attempt to cause any employer subject to the Board's jurisdiction to deny employment to any employee or applicant for employment because of lack of union membership or payment of union dues, except to the extent permitted by Section 8(a)(3) of the Act.8 ° In its brief the Union argues that it did not violate the law because it did not deviate from its traditional policy of requiring travelers to show a paid up receipt from a sister local. Rather than a viable defense, the Union has shown that its traditional policy is unlawful. The Union also argues that the dues receipt is needed so that an applicant can be proper- ly identified. Here Williams had a dues receipt for February and there was no problem with identification . In addition, Cooley admitted that he did not refer Williams because he believed Williams was not current in his dues to the sister local. There was no evidence that Williams failed to properly identify himself. ° Williams did not make use of the hiring hall appeals mechanism. However, contractual grievance procedure is not mandatory because the interest of the employee is clearly in conflict with that of the Union." Iron Workers Local 433 (RPM Erectors), 266 NLRB 154 fn. 1 (1983). Board deferral is not appropriate . Teamsters Local 519 (Rust Engineering), supra. 7 See generally Isis Plumbing Co., 138 NLRB 716 (1962). ° In Electrical Workers IBEW Local 11 (L.A. Chapter of NECA), 270 NLRB 424, 425 (1984), the Board found that the same union had operat- Continued ELECTRICAL WORKERS IBEW LOCAL 11 (CHOI ENGINEERING) 17 It is recommended that the Union be ordered to pre- serve and, on request, make available to the Board or its agents for examination and copying, all records pertain- ing to employment through its hiring hall and all records relevant and necessary for compliance with this recom- mended Order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local 11, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to refer Barrynell Williams to employ- ment through its exclusive hiring hall because Williams owes, or because that Union believes Williams owes, dues to Local 130, International Brotherhood of Electri- cal Workers, AFL-CIO. (b) Operating its exclusive hiring hall in such a manner as to cause or attempt to cause any employer subject to the jurisdiction of the National Labor Relations Board to deny employment to any employee or applicant for em- ployment because of the lack of union membership or payment of union dues, except to the extent permitted by Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Barrynell Williams whole for any loss of pay and other benefits he may have suffered as a result of its unlawful refusal to refer him to work, in the manner set forth in the remedy section of this decision. (b) Preserve and, on request , make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. ed its hiring hall in an unlawful manner . However, even without that pre- vious Board finding, it is apparent from record of this case that the viola- tion stems from a union policy with regard to dues receipts and not to an individual problem relating to Williams or Choi. 9 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. (c) Post at its business offices, hiring halls , and meeting places copies of the attached notice marked "Appen- dix."10 Copies of the notice , on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all job applicants using our hiring hall, whether or not members of International Brotherhood of Electrical Workers, Local 11, AFL-CIO: WE WILL NOT refuse to refer Barrynell Williams to employment through our exclusive hiring hall because Williams owes, or because we believe Williams owes, dues to Local 130, International Brotherhood of Electri- cal Workers, AFL-CIO. WE WILL NOT operate our exclusive hiring hall in such manner as to cause or attempt to cause any employer subject to the jurisdiction of the National Labor Rela- tions Board to deny employment to any employee or ap- plicant for employment because of lack of union mem- bership or payment of union dues, except to the extent permitted by Section 8(aX3) of the Act. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Barrynell Williams whole for any loss of pay and other benefits he may have suffered as a result of our unlawful refusal to refer him to work. INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL 11, AFL-CIO