Electrical Workers Local 401

ELECTRICAL WORKERS L.OCAL 401 321 International Brotherhood of Electrical Workers Local 401 (Stone and Webster Engineering Cor- poration) and Lee Hill. Case 32-CB-492 August 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On April 18, 1980, Administrative Law Judge Earldean V. S. Robbins issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Couunsel filed an answering brief in sup- port of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision' in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions 3 of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Brotherhood of Electrical Workers Local 401, Reno, Nevada, its officers, agents, and representa- tives, shall take the action set forth in the said rec- ommended Order, except that the attached notice i In the fifth paragraph of sec. II. A, of her Declsion, the Admitnisira- tise Law Judge inadverleltly refers to cmploee Curtis Walker a Curti "Williams; in the seventh paragraph of sec III. B, of her Decision, and in n II, the Administrative Law Judge inadvertently refers to Charging Party Lee Ifill as "Lee 2 Respondent has excepted to certain credihility findings made bh the Adnmi,,istrative L,w Judge It is the Board's established policy not to overrule an admilistrative law judge's resolutions with respect Io credi- billty unless the clear preponderance of all of the relevant evidence con- vinces us hat the resolutions are incorrect Sandard Dry Wall Products. Inc, 91 NLRB 544 (1950). enfd. 188 F2d 3t2 (d Cir 1951). We have carefully examined the record and find ii basis for reersing her find- itgs :' The Administrative Law Judge concluded that deferral of this matter to arbitration procedure, under the collectile-bargaining agreement is i- appropriate, iasmuch as the interests of the aggrieed employees are i, conflic with the inlterests of the UInion In agreeing with the Adminitra- tive La" Judge i this regard. Member Penello does not. howeser, suh- scribe to her reliance on Geinral .4Antrican Irranportatton CorporaliiJ, 228 NLRB 88 (477) Member Peinello cottlltitues to adhere It, his dscitrig position il ll :h. but finds that his poitlon therei i consistetnt itll the Adminitirali.e ass Judge', conicilstio thal deferral arbitraitio is not appropriate ll light of tle e idenlt conflict it illerest iI Ithis Cac Chairman ailltiig tlild itlt deftr to arbitrtion iii all cclt il thls case, fr the reaiS, s.et oat ill his disseNCting opiion i (uIu-. r /Iilihd 14rl 4 (;ul/ nd Wiitr .Srui,'I (o. lI 12 N R 817 (1 17 1 251 NLRB No. 39 is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDE)R OF: THE NATIONAL LABOR R. EATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT refuse to follow our hiring hall procedure by failing to properly display to applicants for employment registered on the "out-of-work book," for their selection for dis- patch, requests by employers for the referral of workmen. We will not refuse to dispatch the above-de- scribed applicants for employment to jobs to which they are entitled. WE WILL NOT refuse to notify employees of the resolution of disputes which permit them to return to their previous employment, or fail to dispatch them in accordance with the reso- lution of said dispute. WE WILL NOT coercively interrogate em- ployees as to their interviews with agents of the National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Na- tional Labor Relations Act. WE WILL make Lee Hill whole for any loss of earnings he may have suffered by reason of our refusal to dispatch him to Wing Electric on December 26, 1978, and to Stone and Web- ster Engineering Corporation on February 9, 1979, with interest. INTERNATIONAl BROTHERHOOD OF ElECTRICAl WORKERS LOCAI 401 322 DECISIONS OF NATI()NAL LABOR RELATIONS BO()ARD DECISION STA IMILNI' 0 I H CASI. EAR I) DAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me in Reno, Nevada, on Oc- tober 23, 24, and 25, 1979. The charge was filed by Lee Hill, an Individual, and served on International Brother- hood of Electrical Workers Local 401, herein called Re- spondent or the Union, on April 18, 1979. The complaint which issued on June 29, 1979, alleges that Respondent violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act. The principal issue herein is whether Respondent has failed to properly notify Lee Hill and other employees of availa- ble jobs in accordance with its exclusive hiring hall pro- cedures and to dispatch Lee Hill to jobs to which he was entitled. Upon the entire record, including my observation of the demeanor of the witnesses, and upon a consideration of the post-hearing brief filed by the General Counsel,l I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Stone and Webster Engineering Corporation, herein called Stone and Webster, is now, and at all times mate- rial herein has been, a Massachusetts corporation doing business at various locations throughout the United States, including Valmy, Nevada, where it is engaged in the construction of a power plant. During the 12 months preceding the issuance of the complaint herein, Stone and Webster, in the course and conduct of its business operations, purchased and received supplies and materi- als valued in excess of $50,000 directly from suppliers lo- cated outside the State of Nevada. The complaint alleges, Respondent admits, and I find that Stone and Webster is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. I. THE Al.lEGED UNFAIR LABOR PRACTICES A. Facts Essentially the complaint alleges that the Union has failed to properly refer employees to jobs with Stone and Webster and with Wing Electric at a construction site lo- cated approximately 200 miles from the Union's hiring hall. The site is the construction of a power plant known as the North Valmy station, herein referred to as the Valmy Project. Stone and Webster, the general contrac- tor for the Valmy Project, is party to a power plant I Rcsponden!t" brief w;a., unliicly filed and it, ntiol thaIt he hl. icl he accepted. Ilotwilhltallding ils ullti]ilIC,'. i , herehby denied project agreement which incorporates the applicable local agreement to the extent that it is not in conflict therewith. The local agreement involved herein is the collective- bargaining agreement between the Union and the Northern Nevada Chapter of the National Electrical Contractors Association, Inc., effective from June 1, 1977, until May 31, 1980, herein referred to as the Master Agreement. Wing Electric, a contractor perform- ing preliminary work for the barracks, messhall, ware- houses, etc., is signatory to a letter of assent to be bound by the Master Agreement and is also bound by the proj- ect agreement. The Master Agreement provides that the Union shall be the sole and exclusive source of referrals of applicants for employment. The Union's hiring hall is located in Reno, Nevada. According to the general procedures of the hiring hall, an applicant for employment who is cur- rently unemployed may be registered on the "out-of- work book" upon presentation to the dispatcher or other available office personnel. The applicant is then regis- tered by the dispatcher or other available office person- nel on the out-of-work book in the highest priority group for which the applicant is qualified. To maintain one's place on the out-of-work book one must sign the book between 8 a.m. and 12 noon each Friday. When an employer requests the dispatch of workmen to a job someone in the union office fills out an "order for men" form reflecting the date of the request, the number of workmen requested, the location of the job, and the reporting date. Dispatching is conducted be- tween the hours of 2 and 5 p.m. Monday through Friday. All calls for workmen are filled in order by call- ing the first applicant in the highest priority group on the out-of-work book to fill the calls, and so on down the lists until all jobs have been filled. Each applicant so called is permitted his choice of the remaining available jobs. Any applicant may refuse two jobs without losing position on the out-of-work book. A third refusal results in placement at the bottom of the book in the applicants' group. An applicant whose name is called for referral in proper order and is not present or does not answer the call will be considered as refusing the referral. An appli- cant referred to a job which, through no fault of the ap- plicant, lasts no longer than 10 days-not exceeding 80 hours work-retains his previous position on the book. According to John Byrne, the Union's business man- ager, generally telephone dispatches are not made. How- ever, if job orders remain after the out-of-work list is ex- hausted a person who has expressed interest in a particu- lar job may be informed by telephone that the job is available. Also, if there is an order from an employer for a specialized skill such as a welder and there is no one on the out-of-work list with such skill, the Union may contact by telephone a person who does not currently have a job utilizing this skill to inform him of the job order. Further, according to Byrne, the Union does not initiate telephone calls to persons to inform them that particular job orders are expected. However, if a person contacts Respondent to inquire as to when orders for workmen for particular jobs are expected, they will be ELECITRICAL WORKERS I()CAl. 401 32 told if such an order has already been received or given an estimate as to when an order might he received. Approximately 13 employees w\ere working for Wing on the Valmy Project on Friday, December 22, 1978.2 For several weeks there had been some discontent among the employees concerning lack of materials and supplies and what they considered to be unwarranted discharges. On December 22, two employees whose homes were out of State expressed a desire to leave at noon so they could commence their travels home. In- stead they were discharged. Later that morning, the other employees discussed their anger at the discharges and decided to quit en masse, which they did except for the shop steward and one employee who was absent. Those who quit included Lee Hill, Terry McIntosh, Curtis Williams, David Stewart, and Vernon Howell. At 6:05 p.m., the Union received, by telegram from Wing Electric, an order for workmen with the instruc- tions not to dispatch any of the employees who had just quit. On Tuesday, December 26, Byrne went out to the Valmy Project to discuss with Wing these special instructions. Wing's position was that the employees who had quit were not eligible for rehire. The Union's posi- tion was that the collective-bargaining agreement does not permit an employer to refuse to hire a former em- ployee unless the employee's previous termination slip from the employer indicated "not eligible for rehire," herein called NERs. As a result of this discussion, Wing agreed to accept the dispatch of the employees who had quit the previous Friday. According to Byrne and Walter Ducker, assistant busi- ness manager and dispatcher, Byrne then telephoned Ducker, told him that the employees who had quit the previous Friday could return to work for Wing, and in- structed him to dispatch as many of these employees as possible to Wing. According to Byrne, he wanted to dis- patch the men who had quit because he wanted it to be clear for the future that these men were in fact eligible for rehire by Wing Electric. Vernon Howell, who lives in Reno, registered on the out-of-work list on the afternoon of December 22. On December 26, he received a dispatch to Stone and Web- ster to report for work on December 27. Later that day, Ducker telephoned Howell. According to Howell, Ducker asked if he would disregard the dispatch to Stone and Webster and take one for Wing. Howell said he preferred the Stone and Webster dispatch because he knew the Wing Electric job would not last that long. Ducker said Byrne had gotten the labor problem solved at Wing Electric and, "for the good of the Union," he wanted those who had quit on December 22 to return to Wing. Again, Howell said he did not want to return to Wing Electric. According to Howell, Ducker's tone of voice then changed, and he seemed somewhat perturbed and ready to abruptly terminate the conversation. At this point, Howell said, if it were going to solve the Union's problem, he would take the Wing Electric dispatch. On the following day, December 27, Howell returned to work for Wing Electric and his Stone and Webster dis- Unlsc,,s ihcrv ,c idcld. ll dal hcrcin i )cccrhmbr .ll h iII 1978 patch was given to Curtis Walker who had quit Wing Electric on December 22 and registered on the out-of- work list on December 20. Ducker denies telling Howell that the Union wanted him to return to Wing but admits that he may have encouraged Howell to do so. Terry Mcintosh lives in Battle Mountain which is about 23 miles from Valmy. On December 27, Ducker telephoned McIntosh in Battle Mountain, informed him that the situation at Wing Electric had been straightened out and that he was attempting to contact everyone who had been working there because he wanted them to return to Wing Electric. McIntosh said he did not want to return to Wing, he was unsure whether he wanted to accept the dispatch, but he would come to the hiring hall the next day and tell Ducker definitely whether he would accept the dispatch. At the time, Mcintosh was not registered on the out-of-work list. The following day when Mcintosh went into the hiring hall to register on the out-of-work list Ducker told him that on the previ- ous day he had sent, by another electrician, a dispatch for McIntosh to Wing Electric. According to Mcintosh, "under the circumstances I agreed to return to Wing." McIntosh further testified that one of the clerical em- ployees asked Ducker how McIntosh should sign the book since he had already been dispatched. Ducker told her to have Mcintosh sign in and stamp it on the clock so there would be a record. David Stewart testified that Ducker telephoned him at his home in Elko, on December 27. Ducker said Byrne had resolved the problem at Wing Electric and he would like for everyone who had quit to return to the job. Stewart said he would return after January 1. Ducker said he did not think that was possible and that he would have to return the next day. Whereupon, Stewart said he would not return. At the time of this telephone conversa- tion, Steward was not on the out-of-work book. Ducker admits he did not attempt to telephone Hill. He also testified that he had a conversation with Hill on December 28, but he does not recall what was said. Ac- cording to Ducker, somehow he got the impression that Hill did not want to return to work for Wing Electric. He is not sure whether, on December 28, he offered Hill a dispatch to Wing Electric. Hill admits that he pre- ferred a dispatch to Stone and Webster. How'ever, he testified that he would have returned to Wing Electric if he had received a dispatch. Ducker testified that Byrne telephoned him from Valmy and told him Wing needed seven men for re- placements. Byrne instructed him to contact the men who had quit and dispatch them back to Wing Electric if they wanted to return. Ducker further testified that, "out of common courtesy," he attempted to contact those who lived in Elko, Winnemucca, and Battle Mountain, locations closer to Valmy, rather than have them drive into Reno. Ducker also testified that the situation might not have been handled that way had there not been a labor dispute. Byrne first testified that he told Ducker that the prob- lem at Wing Electric had been resolved and that every- one who had been employed at Wing Electric on De- cember 22 except those with NERs would be accepted 324 DECISIONS ()F NATIONAL LABOR RELATIONS 1()ARD back to work at Wing Electric. He instructed Ducker to contact as many of these employees as possible and dis- patch them to Wing if they wanted to return. He further instructed Ducker that the employees who had already signed the out-of-work book were to be treated as anyone else on the out-of-work book but those who had not signed were to be treated as recalls.3 Byrne testified that Wing Electric had requested seven workmen but that he gave Ducker no other instructions as to any other method of selecting which one to dis- patch to Wing Electric. As a practical matter the instruc- tions he gave Ducker accorded a preference to those living in the Elko and Battle Mountain area since when they left Valmy on Friday, December 22, they would have gone home rather than drive into Reno to sign the out-of-work book, and then drive home. On the other hand, those who lived in the Reno area probably would have signed the out-of-work book. Later Byrne testified that those who had already signed the book were given the opportunity to return to Wing outside the normal dispatch procedure and that it was simply noted on the book that they had returned to Wing. Howell and Jim Kelly signed the out-of-work book, on December 22 and Walker signed on December 26. They were all asked if they wished to return to Wing. Then Byrne testified that he instructed Ducker to try to get as many of the crew that worked at Wing Electric on December 22 back to the Wing Electric job whether they were on the books or not. If they had signed the book, they were to be treated as all other em- ployees on the book. If they had not signed the book, they could be treated as employees who were subject to recall. On December 28, Hill drove the 300 miles to the hiring hall from his home in Elko. According to Hill, when he arrived at the hiring hall he told Ducker that Stewart had told him that both McIntosh and Stewart had been called to return to Wing and he inquired why he had not been called. Ducker said it was the Christmas season and he had been busy. Later that day, Hill noticed what he considered an ir- regularity on the out-of-work book involving Curtis Walker. According to Hill he complained to Byrne re- garding Ducker's failute to call him for the Wing job. Byrne said perhaps Ducker had enough men to fill the job before he got to Hill's name. Hill also inquired how it happened that Walker had quit Wing the previous Friday, yet had not lost his position on the book, and, in fact, had moved up a couple of places on the book. Byrne called Ducker in for an explanation, Ducker said he could not explain it, that it was probably a mistake by one of the clerical employees. 4 Hill further testified that at some point Byrne told him that Walker had been per- mitted to retain his place on the book because everyone ' According to Irylle, there is no recall procedurc ptr e. but ill the case of a work stoppage or dispute where the mcin lea e the loh. I le Union someitillles tries Io Ilegotiate a procedure wherebh iihc retllrll to work aild retain te status of employees. 4 Initially Ilyrne testified that he mlines had been transpoled lin til process of typilng the list and that thie list te 5I reviessed was one I liat wSas lyped aflter Walker as dispatched floswe er. vhen it ,sas pillltel u1t toi him Ihat he list , as, typed after thie close of dispatch hours on I I lusda\; he admitted that it could not have been anll error il typing at Wing had quit.5 Byrne denies that Hill complained about not being called. On December 29, after dispatch, Hill and Stewart went to the window and looked at the out-of-work-book. Hill asked Ducker if he had learned how Walker hap- pened to move up on the book and receive the Stone and Webster dispatch. According to Hill, Ducker said Hill had imagined it and Walker had not been moved up on the book. Hill suggested that the page had been changed. 6 Ducker denied this. Byrne came up and began showing Hill dispatch slips and orders, flipping them rather rapidly and without turning the holder around so that the slips were being shown to Hill upside down. Ducker said he was tired of Hill calling him a crook. Hill said to Byrne, "If you continue going out on the limb for your fishing buddies and friends, somebody's in- clined to cut the tree out from under you." Hill further testified that, at some point during the conversation, Ducker said that, if Lee did not like the way things were run, he should leave the jurisdiction. Hill said it was not the union way to run out when you found something wrong, rather you should stay and try to rectify it. Ducker said, "Well, then go ahead and file charges if you think you know enough, but you'll be damn sorry if you do." Byrne testified that, on December 29, he heard Ducker say that he was tired of being called a liar. Byrne then went out and asked what was the problem. Hill said Howell had two dispatches in I day and asked why. Ducker said Howell first accepted a clearance to Stone and Webster but later returned the clearance and accept- ed one to Wing Electric. Hill asked why Kelly had not returned to Wing Electric. Ducker said Kelly had been offered a dispatch to Wing Electric but had accepted an- other dispatch. Hill inquired how Walker received a dis- patch to Stone and Webster. Ducker said Walker had been offered a dispatch to Wing Electric but had pre- ferred the dispatch to Stone and Webster. Hill said Walker knew the Stone and Webster call was coming in and had quit Wing Electric in order to take the call. Ducker said then Hill must know something they did not know, and the record indicated that Walker quit with all the other men on December 22. Steward testified that he could not recall the details of the conversations. Hill was dispatched to Wing Electric on January 5. On January 24 he was discharged by Wing and given an NER. On Friday, February 9, Hill was in the hiring hall available for dispatch and desirous of receiving a dis- patch to Stone and Webster because it was closer to his home, it paid subsistence,7 and it was anticipated that Stone and Webster jobs could last for several years. Ste- ward was dispatched by Ducker to Stone and Webster. Accordinlg II the hiring hall rules if lone is separated from t a lob through lo fauIlt l oiln s osrl w itll ) 10 das or X1) * ork hours lillolwliig the dhipatch, oi ne rll i, iclill orle 'S place n the out-of s rk list Wal kr had wdorked t ing fori r ll 1,/2 lass tlill hd orked there for nlotC thall 1O das i According to ill. urtis Wlkers ailtc ad been oied hack ts.on or hlrce plilces 7 SubsitClci 1;a is hlCsl (l tii l,. distaniCe it jobh is fr(ill Reno. sn (steci tho11 gh filll intI ls sIlhbsisteTlcc c* plist s ell h C re irks ill tI Rrlo are a. lie dontgs inn c reL'.C s LI it iLtt' pa ELECTRICAL WORKERS LOCAL 401 325 Hill was next on the out-of-work book. He asked Ducker how many workmen had been requested by Stone and Webster. Ducker said only one. Hill, who already had two refusals, then accepted a dispatch to Wing Electric for February 12 on the chance that his NER would be disregarded. Wing Electric refused to rehire him. Chet Lawson, chief timekeeper for Stone and Webster, testified that, on February 6, William Roettger, electrical supervisor, submitted to him a requisition for three jour- neyman wiremen to report on February 12. The requisi- tion also contained the instructions that Lawson should speak to Ducker or Byrne only. He telephoned the order for three wiremen in to the Union at or about noon that day. In response to this order, Stewart was dispatched to Stone and Webster on February 9 at 2 p.m. and Bill Hauver and James Berryman were dispatched at 2 p.m. on February 12. Stewart testified that, when he reported to Stone and Webster, Leonard asked him if Lee Hill and Terry McIntosh were the other two men coming out to the job that day.8 Stewart said no, that only one Stone and Webster job had been called for dispatch. Howell confirms this conversation. Ducker testified that he only received a request for one man to report to Stone and Webster on February 12 and that the request came in on February 9 from Fore- man Jim Leonard. The Union's order form reflecting this alleged request is time and date stamped February 9 at 1:35 p.m., is filled out in Ducker's handwriting, and shows that Stewart was dispatched in response to the re- quest. Ducker further testified that he received a request by telephone from Leonard on February 12 for two men to report to Stone and Webster on February 13. The Union's order form reflecting this alleged request is time and date stamped February 12 at 1:53 p.m., is filled out in Ducker's handwriting, and shows that Jim Berryman, a member of Respondent's executive board, and Jim Hauver were dispatched in response to the request. Terry Mcintosh testified that on February 12, after dispatch hours, Berryman told him that, inasmuch as Mcintosh lived in Battle Mountain, he would give Mcin- tosh his referral to Stone and Webster if McIntosh wanted it. McIntosh said he could not take the dispatch under those circumstances. Later that afternoon, in Ducker's presence, Berryman again offered to give McIntosh his referral to Stone and Webster. Again McIntosh said he could not take the referral under those circumstances. At this point, Ducker said, "Don't do it or I'll have Lee Hill jumping down my throat again." On February 20, Hill was still on the out-of-work list. On that day just before dispatching time, according to Hill, he asked Byrne when he expected other requests for workmen from Stone and Webster. Byrne said he had just talked to Leonard and Leonard told him it would be another month before he needed any help. Fol- lowing this conversation, Hill took a 10-day referral to a job in the Reno area which would permit him to retain his position on the out-of-work list. Byrne testified that on February 19 or 20, during a telephone conversation, he asked Leonard to give him McIntosh and Hill had been in he Vallm parking lot hat morning some indication of his manpower needs in the immediate future. Leonard said that at the present he felt he would have sufficient manpower for the next 30-day period unless some additional work developed or he received a request to do additional work for which he did not have sufficient manpower. Byrne further testified that, shortly after this conversation with Leonard, he related to Hill as nearly as possible the substance of his conversation with Leonard. Hill admits that he was trying to get in a position on the out-of-work list so that he could obtain a referral to Stone and Webster. To this end he refused referrals, ac- cepted 10-day referrals, and, if he thought it would help, would quit a job in order to be on the out-of-work book when a Stone and Webster call came in. It is undisputed that this is a common practice among the users of the hiring hall and that they exchange information and rumors as to anticipated requests for men, and secure what information they can, in this regard, from Respond- ent's staff. Both Ducker and Byrne testified that, if they are asked when they expect requests for workmen from specific employers, they share with them whatever infor- mation they have. McIntosh testified that, in February or early March, Byrne told him if he heard anything re- garding available jobs at Stone and Webster, he would contact McIntosh and let him know that there would be a request for workmen from Stone and Webster. Lawson testified that in, accordance with a requisition form from Electrical Superviser Bill Roettger, at or about 8:30 a.m. on February 21, he telephoned the Union and requested that three journeyman wiremen be dis- patched to Stone and Webster. The Stone and Webster requisition requested a reporting date of on or about February 21. Al Padilla, Doug Brashear, Dale Childers, and Richard Brown were dispatched on February 22 to report on February 23. On February 23, when four in- stead of the requested three wiremen reported for work, Lawson so informed Roettger. Roettger said he could use four wiremen and changed the requisition from three to four. Ducker testified that the order for men was made by telephone by Leonard and that Leonard said, "I want three or four men." The Union's order form which re- flects this request is time and date stamped February 22 at 1:26 p.m. However, Ducker testified that he recalls re- ceiving the call between 8 a.m. and 12 noon. According to the testimony of Ducker and Byrne, it is not unusual for an order form to be time and date stamped several hours after receiving the request. Ducker further testified that, since Leonard said "three or four" men, he sent four. Al Padilla was the fourth. McIntosh testified that, on February 22, he was below Padilla on the out-of-work list. He asked Ducker how many men had been requested by Stone and Webster. Ducker said three. According to McIntosh Ducker did not reach either him or Padilla on the out-of-work list that day. However, at the end of the dispatch period, Ducker called Padilla to the window and they engaged in some conversation. McIntosh did not overhear the conversation and Padilla did not testify. 326 DECISIONS OF NATIONAL LAB()OR RELATIONS BOARD Mcintosh gave a prehearing affidavit in this matter to an agent of the National Labor Relations Board on May 16. McIntosh testified that Byrne telephoned him around 5 p.m. on May 17. Ducker also participated in the tele- phone conversation. According to McIntosh, Byrne asked if he had talked to the Board agent. McIntosh said yes. Ducker asked if he had talked to the Board agent regarding Ducker's telephone call to him around Christ- mas. Mcintosh said he had. Ducker asked him to relate what was said during that telephone conversation. Mcin- tosh said Ducker telephoned him and asked if he would return io work for Wing. McIntosh said he was not sure but would come to Reno the next morning and give Ducker his decision. Ducker asked if he had talked to McIntosh's wife and she had told him McIntosh would return to work for Wing. McIntosh said no. Byrne said the telephone call was probably where the Union was in trouble. Byrne asked McIntosh to come into the office to sign some papers for his unemployment appeal. Byrne denies that he had a telephone conversation with McIntosh on May 17. He admits that McIntosh did come into his office on May 17 in connection with the unemployment appeals matter. At that time, according to Byrne, he did ask McIntosh if the Board agent contacted him on the previous day. McIntosh said yes. Byrne denies asking McIntosh what he told the Board agent or stating anything to the effect that the Union was in trou- ble. Wendy Jones, Respondent's office manager, testified that during the late afternoon of May 16 or 17 she tele- phoned McIntosh and asked him to come into the office immediately to see Byrne regarding his unemployment appeal. B. Conclusions The complaint alleges that Respondent unlawfully failed to inform Hill of, or dispatch him to, an available job with Wing Electric on December 26 and 28, failed to post a job referral to Stone and Webster or to dispatch Hill to said job on February 9, and, on February 21, de- layed the posting of a job referral for Stone and Web- ster, in order to give preference to some employees using the hiring hall over other employees. Respondent con- tends that this matter should be deferred to the arbitra- tion procedures under the collective-bargaining agree- ment. I find that such deferral is inappropriate inasmuch as the interests of the aggrieved employees are in conflict with that of the Union. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 (The Associated General Contractors of Califbrnia, Inc.), 228 NLRB 1420 (1977); General American Trans- portation Corporation, 228 NLRB 808 (1977). Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause or attempt to cause an em- ployer to discriminate against an employee in regard to hire or tenure of employment or any term or condition of employment or to encourage or discourage member- ship in any labor organization. It is well established that, when a union prevents an employee from being hired, it has demonstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that the Board will infer that the effect of its action is to en- courage union membership on the part of all employees who have perceived such exercise of power. Hlowever, this inference may be overcome if the interference is pur- suant to a valid union-security clause or where the facts show that the union's conduct was necessary for its ef- fective performance in its representative status. Accord- ingly, the Board has consistently found a violation of Section 8(b)(1)(A) and (2) of the Act where a union has discriminatorily refused to refer an employee for employ- ment pursuant to a contractual exclusive referral system. International Union of Operating Engineers, Local 18, AFL-CIO (Ohio Contractors Assn.), 204 NLRB 681 (1973); Local Union 675. International Brotherhood of Electrical Workers, AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976): International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 (The Associated General Contractors of California, Inc.), 228 NLRB 1420 (1977); Painters Local Union Vo. 1555 affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO, 241 NLRB 741 (1979); Plumbers and Steamfitters Local No. 40, United Associ- ation of Journeymen and Apprentices of Plumbers and Pipe- fitting Industrv of the United States and Canada, AFL- CIO (Mechanical Contractors Associations of Washington), 242 NLRB 1157 (1979). Here Respondent took steps to obtain the rehire of em- ployees who quit the employ of Wing Electric with the alleged intent of according preferences to those who lived in the Elko-Battle Mountain area, an area relatively close to the worksite and 200 to 300 miles from the Union's hiring hall.9 Although Ducker telephoned others in the group of employees who quit Wing Electric, to offer them an opportunity to return to work for Wing Electric, Ducker did not telephone Hill to offer him an opportunity to return to Wing Electric. Furthermore, when Hill came into the hiring hall on December 28, Respondent still failed to offer him an op- portunity to return to Wing Electric even though, at that time, only six wiremen had been dispatched in response to Wing Electric's request for seven wiremen. Since Re- spondent failed to accord Hill the same opportunity to return to work at Wing Electric and since Respondent has failed to establish that such conduct was necessary for its effective performance as a statutory representa- tive, I find that, by failing to dispatch Hill to Wing Elec- tric on December 26, 27, 28, or 29, Respondent has vio- lated Section 8(b)(1)(A) and (2) of the Act. As to the alleged refusal to dispatch Hill to Stone and Webster on February 9, I credit Lawson that, on Febru- ary 6, he requested three journeyman wiremen. In this regard, I note that Lawson's testimony is corroborated by the Stone and Webster requisition form, Lawson's record of toll calls placed from his telephone which shows that Lawson placed a call to the Union at noon on February 6, and the Stone and Webster telephone bill which shows that telephone calls were placed to the Union's telephone number at 11:57 and 11:45 a.m. on February 6. " lihc procedure discd b Responden for handling he 'ing Elec- Iric silua;lion. hile nol in accordance ilth Ihe con , .:lual referral pro- cedure, v;,is illdr (he circumslralnce a 'alid app ac 11o a prohlem , thich did nort fil precisely into lhe normal referral si uafio, El.ECTRICAL WORKERS I.OCAI. 401 327 I do not credit Ducker that he received a request for one wireman from Leonard on February 9 and a request for two wiremen from Leonard on February 12. In sup- port thereof, Respondent refers to the Union's order-for- men forms date and time stamped February 9 at 1:35 p.m. and February 12 at 1:53. However, the Stone and Webster telephone bill shows that the only telephone call made to the Union on February 12 was made at 2:58 p.m. 1 Furthermore, Lawson, a disinterested witness who impressed me as being an honest and reliable wit- ness, creditably testified that Leonard had no authority to order workmen, and Stewart and Howell creditably testified that on February 12 when Stewart reported to work Leonard inquired as to the identity of the other two men who had been requested. The record establishes that, on February 6, Stone and Webster placed an order for three journeyman wiremen to report on February 12. Only one was dispatched on February 9. The record establishes no legitimate reason for the failure to dispatch three wiremen as requested by Lawson. Hill was known to be desirous of a referral to Stone and Webster and he would have been next in line to take a Stone and Webster dispatch if three wiremen had been dispatched. I find that the other two Stone and Webster dispatches were deliberately held back to de- prive Hill of a referral to Stone and Webster, and in con- summation of Ducker's December threat that Hill would be sorry if he persisted in complaining regarding the op- eration of the hiring hall. Accordingly, I find that by failing to display all requests for workmen and the conse- quent refusal to accord Lee an opportunity to select a re- ferral to a job with Stone and Webster at the Valmy Project on February 9, Respondent has violated Section 8(b)(1)(A) and (2) of the Act."I I further find that on February 21 at or around 8:30 a.m. Lawson telephoned Respondent and placed an order for three men to report on or about February 21. Nevertheless, the order was not made available during the February 21 dispatch period. Rather, it was made available for the first time on February 22 and even then the order form failed to indicate the number of men re- quested. Further, after the dispatch period was over, Ducker apparently indicated to Padilla that there was a possibility that Stone and Webster would accept a fourth dispatch. In any event, Padilla was given a dispatch after the close of the dispatch period and subsequently Stone and Webster did, in fact, accept the fourth dispatch. These actions were clearly contrary to the contractual referral procedure and Respondent offers no valid reason for its deviation therefrom. Accordingly, I find that Re- in Although the ecidence does idlcale that Respondentl' staff was rather lax as to ils use of the ime and date stamp. it also inldicate, that any error a Io time flo,s rorm failure to immcdiatclk time and da;le stamp an order or registration slip, etc Thus, an order might ve stamped sometime after it as receied Hitoc er. there wAould appear to he no legitimate or iadvertent reasoln , hy an order form ould he stamped for a itre prior to the time the order w;as receled There %.as no ci- dence to indica;le that the tinmclock x al, out of order on that parliicular date I' In the circumstance% I would find such conduct ti he IOiatliCL i' the Act cen i thie hsetce of all etsidence f specific hot ililt toalrd I eec I further find tha;l. if Hill had hbeen accorded Ihe opporilunit.l he nould have elected a dipalch ti Stne and ,ehtcr ad thus Ilitt Re- spondent effectivtel refused dispatch itill to Solc and Whester spondent violated Section 8(b)(1)(A) and (2) of the Act by its failure on February 21 to display, to employees on the out-of-work book, the order for three wiremen for Stone and Webster and by reserving for Padilla the pos- sible fourth dispatch to Stone and Webster. The complaint also alleges that Respondent violated Section 8(b)(l)(A) by Ducker's and Byrne's interrogation of McIntosh as to his interview with a Board agent. I credit McIntosh as to this conversation. I found Byrne to be an unreliable, evasive witness whose testimony was inconsistent in a number of regards. Inasmuch as a union who operates an exclusive hiring hall has the potential to control the employment status of employees and Re- spondent has certainly shown, both generally and specifi- cally as to Mcintosh, its willingness to unlawfully manip- ulate the hiring hall procedure in order to bestow and withhold employment opportunities, I find that such in- terrogation without an expressed legitimate purpose and without assurance against reprisals is coercive and thus violative of Section 8(b)(1)(A). CONCI USIONS Oi LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Stone and Webster Engineering Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent has violated Section 8(b)(1)(A) and (2) of the Act by failing to notify Lee Hill that he could return to his employment with Wing Electric and to dis- patch him to said job on December 26, 27, 28, or 29. 1979; by failing to properly display during the dispatch period on February 9, 21, and 22, 1979, all requests for workmen from Stone and Webster; and by failing to dis- patch Lee Hill to a job with Stone and Webster on Feb- ruary 9, 1979. 4. Respondent has violated Section 8(b)(I)(A) of the Act by coercively interrogating an employee as to his in- terview with a Board agent. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that Respondent cease and desist therefrom and take certain affirmative action to effectuate the purposes of the Act. Having found that Respondent has unlawfully failed to dispatch Lee Hill on December 26 to a job with Wing Electric and on February 9 to a job with Stone and Webster, it is recommended that Respcndent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. All loss of earn- ings is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977) '1 "i Se. getterlls, IAi Pli . himg & Ilulirmi (. 138 NI R 71ih ('962 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 3 The Respondent, International Brotherhood of Electri- cal Workers Local 401, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Refusing to follow its exclusive hiring hall proce- dure by failing to properly display to applicants for em- ployment registered on the out-of-work book for their selection for dispatch requests by employers for the re- ferral of workmen and refusing to dispatch said appli- cants to jobs to which they are entitled. (b) Refusing to notify employees of the resolution of a dispute which permits said employees to return to their previous employment and failing to dispatch employees in accordance with the resolution of said dispute. (c) Coercively interrogating employees as to their in- terviews with Board agents. (d) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 1 In the event no exceptions are filed as provided h Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopied by the Board and become its findings, conclusions, and Order. and all ohjections thereto shall he deemed waived for all purposes. (a) Make Lee Hill whole for any loss of earnings he may have suffered by reason of Respondent's discrimina- tion against him in the manner and to the extent set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its business and hiring hall copies of the at- tached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's au- thorized representatives, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail or deliver to the Regional Director for Region 32 signed copies of said notice for posting by Wing Electric and Stone and Webster Engineering Cor- poration, provided those employers are willing, at their place of business at the Valmy Project. (e) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply here- with. 14 i the ceent that this Order is enforced by a Judgment iof a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relatiions Board" shall read Postled I'ursu- ant To a Judgmcnt f the United States Courl f Appeals Lnifirciing an ()rder (if the Ntionial labor Raltions Board