Wismer & Becker

WISMI{R AND BECKER Wismer and Becker, Contracting Engineers and Jess Aaron Jameson International Brotherhood of Electrical Workers Local Union 497 and Jess Aaron Jameson, John Neal, and Decevigne Kilpatrick. Cases 9- CA-7271, 19-CB-2290, 19-CB-2266, and 19- CB-2267 August 27, 1980 SUPPLEMENTAL DECISION AND ORDER By MEMBE RS JENKINS, PENI.IO, ANI) TRUESDAIE On March 16, 1977, the National Labor Rela- tions Board issued its Decision and Order in this proceeding.' In that Decision, the Board found Re- spondent Union violated Section 8(b)(2) and ()(A) of the Act by refusing, under an exclusive hiring hall agreement, to refer three named applicants for employment to Respondent Employer because of a dispute over working conditions at a construction site. During this dispute, Respondent Union's policy was to refuse to refer any individuals to Re- spondent Employer for employment. The Board found that Respondent Union's subsequent demand to Respondent Employer to replace with union re- ferrals 24 employees Respondent Employer had hired directly during the period when Respondent Union refused to refer also violated Section 8(b)(2) and (1)(A) of the Act. The Board also found that Respondent Employer's acquiescence in this dis- charge demand violated Section 8(a)(3) and (1) of the Act. Thereafter, the Board filed an application for en- forcement of its Order and Respondent Employer filed a petition for review with the United States Court of Appeals for the Ninth Circuit. On Sep- tember 12, 1979, the court, sua sponte, remanded the case to the Board for "a determination of whether or not the Union's wholesale refusal to dispatch employees" during the dispute was an abuse of the hiring hall process which also violated the rights of employees under the Act.2 On November 8, 1979, the Board accepted the court's remand and thereafter notified the parties that they could file statements of position on the issue raised by the remand. Subsequently, Respond- ent Union, Respondent Employer, and the General Counsel filed statements of position. 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. ' 228 NLRH 779 603 F 2d 1181 251 NLRB No. 86 The Board has reviewed the entire case in light of the court's decision and the statements of posi- tion on remand and has decided to affirm its origi- nal Decision in this case. The record establishes that Respondent Employ- er is an electrical contractor and a member of the National Electrical Contractor's Association. On January 11, 1974, before hiring employees for a job at the Grand Coulee Dam, it executed a "Visiting Employer Compliance Agreement" with Respond- ent Union by which it agreed to be bound by the collective-bargaining agreement between Respond- ent Union and the National Electrical Contractor's Association. In addition to establishing certain working conditions, the agreement provided for ex- clusive referrals of employees by Respondent Union and contained a no-strike clause applicable to contractual disputes. In March 1974, a dispute arose over the adequacy under the agreement of Respondent Employer's change shack on the Grand Coulee jobsite Respondent Union advised several employees to refuse orders to report to the change shack. When five employees were dis- charged for refusing to report to the change shack, Respondent Union filed a grievance under the con- tract and refused to continue to refer individuals for employment, including three individuals who specifically requested referrals. This refusal to refer was intended to protest the discharge of the five employees and lasted from approximately March 6 to June 23, 1974. During this time, Respondent Employer independently hired employees for the Grand Coulee jobsite under a contractual provision granting it power to do so when there were no ap- plicants available under the union referral system. However, the contract also stated that certain em- ployees hired by Respondent Employer in such cir- cumstances would be considered temporary em- ployees and were to be replaced as soon as possible by qualified applicants referred by Respondent Union. After an arbitration award issued on May 24, 1974, which ordered Respondent Employer to reinstate the five discharged employees, Respond- ent Union relied on this contract provision and de- manded that the employees hired directly by Re- spondent Employer be replaced by union referrals. When Respondent Employer refused to replace the direct hires, Respondent Union grieved the matter. On July 1. 1974, Respondent Employer was or- dered by the Joint Conference Committee, com- posed of management and labor representatives, to discharge the direct hires on the ground they were temporary employees under the contract. Respond- ent Employer complied with this order. In the subsequent proceeding before the Board, the Administrative Law Judge found that the dis- 687 .68 )8DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge of the direct hires violated Section 8(b)(2) and ()(A) and Section 8(a)(3) and (1) of the Act. However, he found that Respondent Union's refus- al to refer the three individuals who had specifical- ly requested referral, as well as its general refusal to refer individuals, did not violate the Act. 3 On review, the Board affirmed the finding that the dis- charge of the direct hires violated the Act, but, contrary to the Administrative Law Judge, the Board also found that the refusal to refer the three who had requested referral violated the Act. How- ever, the Board did not consider the issue of Re- spondent Union's general refusal to refer individ- uals to Respondent Employer because both the General Counsel and the Charging Parties failed to file specific exceptions to the Administrative Law Judge's conclusion that these actions did not vio- late the Act. 4 None of the parties filed a motion for reconsideration of the Board's refusal to consid- er this issue. The failure to file adequate exceptions to the Ad- ministrative Law Judge's finding that the Union's general refusal to refer individuals to Respondent Employer did not violate the Act precluded the General Counsel from raising this issue both before the Board and before the court on petition for en- forcement. Thus, Section 102.46(h) of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, states that "No matter not included in exceptions or cross exceptions may thereafter be urged before the Board, or in any fur- ther proceeding." 5 However, the General Counsel, pursuant to the court's remand, now urges that the Board find Respondent Union's general refusal to refer individuals to Respondent Employer violated the Act on the ground that Respondent Union had a duty under the Act to refer applicants without regard to consideration of its dispute with Re- spondent Employer. In light of the unusual proce- dural posture of this case, it is necessary to detail at some length the litigation of this issue in order to determine whether the General Counsel has ade- quately presented this issue to the Board for deter- mination. The bulk of the charges filed in this case did not specifically allege that the general refusal to refer violated the Act. Rather, this refusal was alleged primarily as part of an argument that the direct hires were entitled to retain their jobs under the contract and that their discharge was thus unlaw- :' See 228 NI.RB at 8IX). 4 See Sec. 102 46(h) of the Rules and Regulations of the Nalional Lalr Relations Board, Series 8, as amended. and fl. 7 infra. r See, generally, .4fto Paining Corporation, 238 NLRB 366 (1978) See also S 10(e) of the Acl; Cavrade Employer Asociation Inc., ct al v. :.L.RB., 444 F.2d 490 (91h Cir 1968): .N.L.R.B. v. Iniernationul Ln,,g vhoremenv and Warehouwennmen Union. Local 12, 378 F.2d 125, 130) 131 (9th Cir 1967). fn. 67. inia., and cases cited therein. ful. The initial charge, filed July 3, 1974, alleged Respondent Union's attempt to have the direct hires discharged was unlawful because the direct hires "were properly hired by the Employer when [the Union] failed or refused to provide employees within a contractually limited period after a request had been made for electricians to the Union by the Employer." The second charge, dated July 5, 1974, alleged that Respondent Union violated the Act by actually bringing about the threatened discharges, again relying in part on Respondent Union's failure to refer to show the direct hires were entitled to retain their employment. The third charge, filed July 22, 1974, made no mention of the refusal to refer. Another charge filed on that date alleged, "On or about March 14, 1974, the Union refused to permit Jess Aaron Jameson and others to sign its out-of-work book because of their lack of member- ship . . . and because . . . they refused to partici- pate in a work stoppage conducted by the Union . . .in violation of a pending collective bargaining agreement." (Emphasis supplied.) A final charge, filed August 15, 1974, stated, "In or about July 1974, the Employer discharged Jess Aaron Jame- son and approximately 25 other employees because they refused to engage in an unlawful work stop- page conducted by [the Union when it] refused to dispatch workers from its hiring hall in violation of a pending collective bargaining agreement ." (Empha- sis supplied.) Thus, the general refusal to refer ap- peared in the bulk of the charges as an element of the illegality of the discharges of the direct hires. While the second July 22 charge alleged that this refusal violated the Act, it did so not independently but in apparent reliance on the Union's alleged breach of the no-strike clause of the parties' collec- tive-bargaining agreement. The complaint based on these charges differs somewhat from them in its treatment of the general refusal to refer. While certain complaint allegations seem to follow the theory presented in three of the five charges that the refusal to refer was a breach of contract which entitled the direct hires to retain their employment,6 the complaint also specifically alleges in paragraph 7 that from about March 7 until June 18, 1974, the Respondent Union refused, though requested, to dispatch employees for em- ployment to Respondent Employer. And, at para- graph 9(d) of the complaint, it is alleged that on certain unknown dates during the period beginning in March and ending in June 1974 Respondent Union refused to register certain unknown individ- ' Par 8 of the cmplaitl alleges that, oni March 22. 1974 Respondent F.mploer began hiring employees directl) pursuant t the parties cn- tract and seemingly as a result f Respondent Urnion's refusal to refer em- ployees. alleged i par 7 W'ISMER AND 13ECKER hSq uals on its dispatch list for employment because of its dispute with Respondent Employer. These alle- gations make no mention of the refusal to refer vio- lating the parties' contract. However, at the hear- ing, the General Counsel did not argue that the general refusal to refer itself violated the Act, but characterized it as an unprotected strike in viola- tion of the parties' contractual obligations. While counsel for Respondent Union admitted there was a refusal to refer individuals, he argued that the mere fact that this refusal might have violated con- tractual obligations did not make it an unfair labor practice. Objections were made to the relevance of evidence on the general refusal to refer. At no time did the General Counsel argue that the significance of evidence on the refusal to refer went beyond proof of a breach of contract. No evidence was in- troduced to establish the identity of the unknown individuals the complaint alleged were prevented from registering for employment or even that such refusals to register occurred. Nor did the General Counsel present any other evidence which could have given Respondent Union notice of a theory under which the refusal to refer was alleged inde- pendently as a violation. Nor can the General Counsel's briefs to the Ad- ministrative Law Judge and the Board be said to argue that the admitted refusal to refer, without more, violated the Act. Thus, the brief to the Ad- ministrative Law Judge reiterated the argument that the direct hires were entitled to retain their employment because Respondent Union had "elect- ed to pursue the risky and contractually unprotect- ed tactic of refusing to refer employees to the job during the dispute." Although the brief also states that the refusal "to register and refer qualified job applicants to the Company because of the pending dispute . .. [violated] Section 8(b)(2) of the Act," the only individuals who were shown at the hear- ing to have been either qualified or applicants for employment with Respondent Employer were the three who specifically requested referral. When the Administrative Law Judge nevertheless considered the issue and found that the general refusal to refer did not violate the Act, the General Counsel failed to file with the Board a specific exception to his finding and made no mention of the general refusal to refer in the brief filed in support of the other ex- ceptions, other than to argue that it was an unpro- tected strike. Indeed, in his brief to the Board the General Counsel apparently disavowed any allega- tion that Respondent Union's general refusal to refer violated the Act when the General Counsel referred to paragraphs 9(a), (b), and (c) of the com- plaint, which involved the three individuals known to have requested referrals, as "the 8(b)(2) 'refusal to refer' portion of the complaint." 7 In sum, it is clear that the General Counsel has failed thus far in this proceeding to litigate the issue of whether Respondent Union's general refus- al to refer individuals to Respondent Employer for employment independently violated the Act. Thus. Respondent Union was without adequate notice from the hearing and the briefs to the Administra- tive Law Judge and the Board that its general re- fusal to refer was at issue in this case as an inde- pendent violation of the Act and was deprived of the opportunity to present relevant evidence in its defense. Assuming the General Counsel had intend- ed to request that the Board consider this issue on review of the Administrative Law Judge's Deci- sion, the General Counsel failed to comply with the Board's Rules and Regulations by not filing a specific exception concerning it. On this record, it would be difficult to infer that the General Counsel ever intended to maintain this issue as a part of the theory of this case as it w as originally presented to the Board. In light of these factors, especially the failure to file adequate exceptions to the Administrative Law Judge's finding that Respondent Union's general refusal to refer did not violate the Act. we con- clude that it would be an improper exercise of our power to remand this case for a second hearing. To 7 The nly excepin of the (icneral Counsell \khich might he deemed ir any tax til appl tIo the Admnislratlie L.a Judge' finding on I he general refusal t refer r as an e cepli n Ito the dTissal rf a ll a llgations of the complaint nlt i tiund Iti be ,olations of the Act Specificall ex- ceptlion 15 vxas It that part of the Administratlle lau Judge's Decision "in hih the Admlnistratie a Judge ordered hal the Complatli he dismissed Irsofar as it alleges i)litlioln riot pecificall. fi und " This e- ceplion lacked the pecifcitl required bx the iBard's Rules and Regula- tlion and as not adequate ntice of a request to consider Ih Issue See Sec 1(2 46(h) of the Rules and Regulations of the National l.abr Rela- tions Board. Series . a amended 'L R.B. Seven-Up Brlilg Comrnpa n o Miami, Intc. 44 U S 44. 350 (19531. Vl. .R (;utirirlnu Hri Lumber C.. 253 F 2d 37, 374 (9h Cir q1958 Cf N.I..R.B v C(hildrcnl: Buprist IHomle f Slirhrnl £Ca/rl/ rnia. 576 F 2d 256. 261- 22 197) See also Carhnua Mtining (Corporautiln, 19 NLRB 293 (1972; .llcrin ri ld r- atton o)f nions L.ieal 102. a i .aiional .4trnri(an ederat i r! t ,i , Inc (Quince, Inc. . 2()5 NLRB 1174 11973 Ditch irtch o/ Cntr Il /lloi. Inc.. 248 NLRB 452 (1980) " As noted abole. there uas n no r-tiln for reconsideratiin filed h an) party t the HBoard's failure to address this issue That this issue as neer presenited to tile Hoard appear, i t hase been touched uporl hb the court in its remad At fn 7 of the remand. the court nted It mah be, for example, that the appripriate characterlitliotl of the probhlem here should ha e been abuser f the hiring hall process rather than the strike /lbi r dispute issue addressed helos We note n passing, i light of certain further co mments at fn 7 of the court's remaid order, thail ere xe noll or at some later time to find Ihat Respondent Unlllon' genera;l refusal t, refer cnmplo ee, uxa all illde- pendent iolatin of the Act. his xuld still not alter Respondent Em- plo er's hackpa hithiil, i r al illegal refusal ito refer, Respindenl t uon xx i Id be held sle 1\ ltabl Is c\r. Responldentl Fimpl o)er x ,Nuld he srcondaril liable flr it, ultilalte acquiesceice i Respodnle Unin's denallid to discharge the direct hires See. e g Bulin t (Stpuii. IKI N RH h47 (197t) 1) i a liahill Illlunaffected h the separate issuc of ia alleged illegal rfusal to refer 111 d ua111al fo;r ernplo nllelt WISNWR AND DECKER 6 gq DICISIO)NS ()OF NA IONAI. I.AB)R REIA I I)NS BOARI) do so would violate Board procedures and Section 10(e) of the Act and would substantially delay the resolution of a case which involves 24 proven dis- criminatees, who have gone uncompensated for almost 6 years, in order to allow the litigation of a theory which the General Counsel has never prop- erly advocated to us. Accordingly, we affirm our original Decision in this case that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by refusing to refer three named applicants for employment to Respondent Employer and by de- manding that Respondent Employer replace certain employees it had hired directly with union referrals and that Respondent Employer violated Section 8(a)(3) and (1) of the Act by acquiescing in this demand. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Em- ployer Wismer and Becker, Contracting Engineers, Grand Coulee, Washington, its officers, agents, successors, and assigns, and Respondent Union In- ternational Brotherhood of Electrical Workers Local Union 497, Wenatchee, Washington, its offi- cers, agents, and representatives, shall take the ac- tions set forth in the Board's Decision and Order of March 16, 1977, reported at 228 NLRB 779. 6'))