Bechtel Power Corp.

National Labor Relations Board - Board Decisions

Apr 16, 1976

223 N.L.R.B. 925 (N.L.R.B. 1976)

BECHTEL POWER CORP. 925
Bechtel Power Corporation and Paul H. Robertson
International Brotherhood of Electrical Workers, Lo-
cal 322 , AFL-CIO and Paul H . Robertson. Cases
27-CA-4359 and 27-CB-897
April 16, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On October 16, 1975, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding . Thereafter, Respondents Bechtel
Power Corporation and International Brotherhood
of Electrical Workers , Local 322, AFL-CIO, filed ex-
ceptions and supporting briefs . The Charging Party
filed limited cross -exceptions and an answering brief.
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 , findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
1. We agree with the Administrative Law Judge's
disposition of the 8 (a)(3) and ( 1) and 8(b)(1)(A) and
(2) issues presented by the Case.' We disagree 2 only
with his conclusion that the record fails to support a
finding that Steve Hudspeth was unlawfully denied
1 Member Fanning joins in finding violations of Sec. 8(a)(3) and (1) and
8(b)(I)(A) and (2) herein because he is satisfied that Respondent Union
failed to refer to Bechtel nonmembers of the Union despite their availability
and registration with the Union 's hiring hall , and denied the named discrim-
inatees the use of the hiring hall for referral purposes because of their non-
membership in the Union. Consequently, when Respondent Union invoked
the "temporary employee" clause as to gate hires by Bechtel to include the
discriminatees , and Bechtel acquiesced therein, they violated Sec . 8(b)(I)(A)
and (2) and 8(a)(3) and ( I), respectively . It is readily apparent that the
unfair labor practices committed here resulted from Respondent Union's
failure to allow the referral provisions of the contract to operate , not from
their operation . Accordingly, Member Fanning deems it unnecessary to
reach the question whether those provisions are unlawful, and he does not
join in so much of the Decision and Order that finds them to be unlawful.
2 Member Walther , contrary to his colleagues , would adopt the Adminis-
trative Law Judge's dismissal of the complaint as to Hudspeth . Hudspeth
did not testify. and thus there is no direct evidence that he was ever em-
ployed or laid off by the Employer. While my colleagues are willing to rely
upon the hearsay testimony of other employees as to the reason Hudspeth
was laid off, if he was. I am not . Furthermore, as the Administrative Law
Judge found, there is no evidence that Hudspeth ever sought referral from
the Union. And I cannot accept a finding that such application by him
would have been futile without evidence , which only Hudspeth could sup-
ply. that Hudspeth did not simply abandon the whole enterprise.
employment because of the hiring hall arrangement
between Respondents. Although Hudspeth did not
testify, he was a named discriminatee. The testimony
of discriminatees Loeffler and Zinke reveals that
Hudspeth was, indeed, a gate hire working with them
on Paul Certain's crew, that Hudspeth was laid off
by Respondent because he held the same status as
the other discriminatees, and that discriminatees
Coates and Zinke, along with Hudspeth, spoke to
Bechtel 's labor representative, Farquhar, about their
layoff. Although there is no direct evidence that
Hudspeth sought referral from Respondent Local
322, the reasonable inference to be drawn from the
facts of this case is that if Hudspeth had such an act
would have been futile. See, e .g., the Administrative
Law Judge's findings with respect to discriminatee
Olschewski. On these bases, we conclude, contrary to
the Administrative Law Judge, that sufficient evi-
dence exists on the record to support our finding that
Hudspeth was unlawfully denied employment. Ac-
cordingly, we amend paragraph 5 of the Administra-
tive Law Judge's Conclusions of Law and paragraphs
A, 2(a) and B, 2(a) of his recommended Order to
include the name of Steve Hudspeth among the
names of the discriminatees listed therein.
2. Paragraphs A, 1(f) and B, 1(d) of the Adminis-
trative Law Judge's recommended Order are amend-
ed to delete the phrase "In any like or related man-
ner" and to substitute, therefor, the phrase "In any
other manner." See Springfield Dodge, 218 NLRB
1429, footnote 2 (1975).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts the recommended Order of the
Administrative Law Judge, as modified below, and
hereby orders that Respondent International Broth-
erhood of Electrical Workers, Local 322, AFL-CIO,
Casper, Wyoming, its officers, agents, and represen-
tatives, and Respondent Bechtel Power Corporation,
San Francisco, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order, as so modified:
1. In paragraphs A, 2(a) and B, 2(a), insert the
name "Steve Hudspeth" between the names "Virgil
Brown" and "Richard Loeffler."
2. In paragraphs A, 1(f) and B, 1(d) delete the
phrase "In any like or related manner" and substi-
tute therefor the phrase "In any other manner."
3. Substitute the attached notices for those recom-
mended by the Administrative Law Judge.
223 NLRB No. 131
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain , enforce, or otherwise
give effect to an exclusive hiring hall contractual
arrangement with Bechtel Power Corporation
which gives preference in referrals and employ-
ment opportunities to applicants for employ-
ment who have previously worked for employers
who had collective-bargaining agreements with
US.
WE WILL NOT maintain, enforce, or otherwise
give effect to an exclusive hiring hall contractual
arrangement with Bechtel Power Corporation
which is operated in such a manner as to ex-
clude nonunion members from the hiring hall or
which requires nonunion members to be hired
only as temporary employees.
WE WILL NOT cause or attempt to cause
Bechtel Power Corporation to discharge or dis-
criminate with regard to the retention of em-
ployment of any employee because that
employee is not a member of a union.
WE WILL NOT refuse to allow any employee
access to our exclusive hiring hall because that
employee is not a member of a union.
WE WILL NOT operate our hiring hall in such a
manner as to cause or attempt to cause any em-
ployer subject to the Board's jurisdiction to deny
employment to any employee or applicant for
employment because of lack of union member-
ship.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE WILL notify Bechtel Power Corporation in
writing that we have no objection to the immedi-
ate and full reinstatement of Carl Coates, Virgil
Brown, Steve Hudspeth, Richard Loeffler, Paul
Robertson, Gene Olschewski, and Val Zinke to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and furnish those employees with a
copy of such notification.
WE WILL, jointly and severally with Bechtel
Power Corporation, make the above-named em-
ployees whole by paying them backpay with in-
terest at 6 percent.
WE WILL register Harold Hudson at our exclu-
sive hiring hall and make him whole by paying
him backpay that may be due with interest at 6
percent.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS , LOCAL 322, AFL-CIO
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain, enforce, or otherwise
give effect to an exclusive hiring hall contractual
arrangement with International Brotherhood of
Electrical Workers, Local 322, AFL-CIO, which
gives preference in referrals and employment
opportunities to applicants for employment who
have previously worked for employers who had
collective-bargaining agreements with that
Union.
WE WILL NOT maintain, enforce, or otherwise
give effect to an exclusive hiring hall contractual
arrangement with said Union which is operated
in such a manner as to exclude nonunion mem-
bers from the hiring hall or which requires non-
union members to be hired only as temporary
employees.
WE WILL NOT discharge or discriminate with
regard to the retention of employment of any
employee because that employee is not a mem-
ber of a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL offer Carl Coates, Virgil Brown,
Steve Hudspeth, Richard Loeffler, Paul Rob-
ertson, Gene Olschewski, and Val Zinke imme-
diate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges.
WE WILL, jointly and severally with Interna-
tional Brotherhood of Electrical Workers, Local
322, AFL-CIO, make the above-named employ-
ees whole by paying them backpay with interest
at 6 percent.
BECHTEL POWER CORPORATION
BECHTEL POWER CORP. 927
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Rock Springs, Wyoming, on June 24 and
25, 1975. The charge in Case 27-CA-4359 was filed by
Paul H. Robertson, an individual, on December 17, 1974.
A complaint in that case as issued on February 28 and
amended' on June 6, 1975, alleges that Bechtel Power Cor-
poration, herein called Bechtel or the Company, violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. The charge in Case 27-CB-897 was filed
by Robertson on December 17, 1974. The complaint in
that case as issued on February 28 and amended on June 6,
1975, alleges that International Brotherhood of Electrical
Workers, Local No. 322, AFL-CIO, herein called Local
322 or the Union, violated Section 8(b)(l)(A) and 8(b)(2) of
the Act. By order dated March 4, 1975, the Regional Direc-
tor for Region 27 of the National Labor Relations Board
consolidated the two cases for hearing.
argue orally, and to file briefs. Briefs which have been care-
fully considered were filed on behalf of the General Coun-
sel, Bechtel, Local 322, and the Charging Party.
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF BECHTEL
Bechtel is a Nevada corporation which maintains its
principal office and place of business in San Francisco,
California. It is engaged in the construction of the Jim
Bridger Power Plant at Point of Rocks, Wyoming. At its
Jim Bridger project it annually purchases and receives ma-
terials valued in excess of $50,000 directly from places out-
side of Wyoming. Bechtel is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
ISSUES
The primary issues are whether Bechtel violated Section
8(a)(1) and (3) and Local 322 violated Section 8(b)(1)(A)
and (2) of the Act:
1. By maintaining and enforcing a collective -bargaining
agreement which provided for an exclusive hiring hall un-
der which applicants for referral who had prior employ-
ment with employers who had a contract with Local 322
were given certain preferences.
2. By maintaining and enforcing that contract in such a
manner as to cause the layoff of certain employees 2 who
had been hired as temporary employees because they were
not referred from the hiring hall, under circumstances
where they could not obtain that referral for the reason
that they were not members of a local of the International
Brotherhood of Electrical Workers , AFL-CIO.
3. By the Union 's causing Bechtel not to hire and by
Bechtel's refusal to hire Harold Hudson because of his lack
of membership in a local of the International Brotherhood
of Electrical Workers , AFL-CIO.
All parties were given full opportunity to introduce rele-
vant evidence , to examine and cross-examine witnesses, to
1 The amendment to the complaint appears to allege that the Wyoming
Chapter , National Electrical Contractors Association (Casper Division),
herein called NECA, and employers who signed letters of assent to be
bound by a collective-bargaining agreement in effect between Local 322
and NECA have engaged in certain unlawful conduct. However , counsel for
the General Counsel stated on the record that the amendment was intended
to establish the fact of a contract between NECA and Local 322, and that
the General Counsel did not allege NECA or any of its members as respon-
dents. The General Counsel also stated that it was not seeking a remedy
against any of the members of that Association who were not named in the
complaint and that the only party to the contract named in the complaint
was Bechtel.
2 The employees named as discriminatees in the complaint are Paul H.
Robertson , Virgil Brown, Carl Coates , Steve Hudspeth, Richard Loeffler,
Gene Olschewski and Val Zinke . The complaints also allege that other per-
sons whose names are known to the Respondents have been discriminated
against.
Local 322 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Bechtel is building a major power plant , known as the
Jim Bridger Power Plant, at Point of Rocks, Wyoming. In
the course of this construction Bechtel requires the services
of large numbers of electricians . Bechtel is a party to an
International agreement with the International Brother-
hood of Electrical Workers, AFL-CIO, herein called the
IBEW , under which Bechtel agrees to be bound by local
agreements when it performs work within the jurisdiction
of any local of the IBEW . Those local agreements are con-
tracts that the locals of the IBEW have with various em-
ployers . Local 322 is a local of the IBEW having jurisdic-
tion in the area in which the Jim Bridger Power Plant is
being built . Local 322 was a party to a collective-bargain-
ing agreement , which was effective by its terms through
August 31 , 1975, with the Wyoming Chapter , National
Electrical Contractors Association (Casper Division). That
agreement covered members of the Association who signed
a letter of assent to be bound by the agreement and also
covered any other individual employers who employed
workmen under the terms of the agreement and who signed
a letter of assent authorizing the Association as their bar-
gaining agent for all matters contained in the contract.
Both Bechtel and Local 322 accepted that contract as
binding on them pursuant to Bechtel 's International agree-
ment with the IBEW. Bechtel and Local 322 maintained
and enforced that contract with regard to the operation of
the Jim Bridger power project.
Article V of that contract provided for an exclusive hir-
ing hall . The hiring hall provision established four groups
for referrals . The first priority in referral went to the first
group, next to the second , and so on. The qualifications for
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the groups as set forth in the contract were:
Section 5.06 Group I
All applicants for employment who have four (4) or
more years experience in the trade , are residents of the
geographical area constituting the normal construc-
tion labor market, have passed a Journeyman 's exami-
nation given by a duly constituted Local Union of the
IBEW, and who have been employed for a period of
at least one ( 1) year in the last four (4) years under a
collective bargaining agreement between the parties of
this Addendum.
Section 5.07 Group II
All applicants for employment who have four (4) or
more years experience in the trade , and who have
passed a Journeyman 's examination given by a duly
constituted Local Union of IBEW.
Section 5.08 Group III
All applicants for employment who have two (2) or
more years experience in the trade, are residents of the
geographical area constituting the normal construc-
tion labor market and who have been employed for at
least six (6) months in the last three (3) years in the
trade under a collective bargaining agreement be-
tween the parties to this Addendum.
Section 5.09 Group IV
All applicants for employment who have worked at
the trade for more than one (1) year.
The referral procedure allowed an employer to hire tem-
porary employees "at the gate" when the hall could not
send applicants within 48 hours of the employer 's request.
The contract provided:
Section 5.10
If the registration list is exhausted and the Union is
unable to refer applicants for employment to the Em-
ployer within 48 hours from the time of receiving the
Employer's request, Saturdays , Sundays and Holidays
excepted, the Employer shall be free to secure appli-
cants without using the referral procedure , but such
applicants , if hired, shall have the status of temporary
employees . The Employer shall notify the Business
Manager promptly of the names and Social Security
numbers of such temporary employees, and shall re-
place such temporary employees as soon as registered
applicants for employment are available under the re-
ferr at procedure.
B. Bechtel 's Need for Electricians and the Union Referrals
1. The need for electricians before December 10, 1974
There are many major construction projects in the Rock
Springs, Wyoming, area . Local 322 has a membership of
about 360 but during 1974 alone , it referred more than
3,200 electicians to various employers . During 1974, 1,398
referrals were made to Bechtel's Jim Bridger project.
With the competition for electricians for various proj-
ects , there has been a substantial turnover in Bechtel 's elec-
trician employee complement . Bechtel has complained to
the Union that the Union did not refer enough electricians
and the Union has responded that it was not responsible if
Bechtel could not hold its employees.
Since 1973, Bechtel has had difficulty in maintaining a
full work force of electricians. In early 1973, Bechtel began
the arduous process of obtaining permission to hire Cana-
dian nationals. In order to do so, Bechtel had to verify that
there was a local as well as national shortage of electri-
cians, show intensive recruiting efforts among U.S. nation-
als, and receive written permission from Local 322, the
State Employment Office, the U.S. Department of Labor,
and the AFL-CIO. In addition, it had to have a written
order for manpower placed with the local employment of-
fice. Bechtel secured a letter from Local 322 agreeing that
Canadians could be hired, and also obtained all the other
necessary clearances . In late spring or early summer of
1973, Bechtel began recruiting Canadians and a number of
them were hired.
Bechtel's procedure in obtaining electricians from the re-
ferral hall was to notify the Union in advance of its pro-
jected employee requirements and then to place specific
orders with the Union for immediate needs. By July 1974,
Bechtel came to the conclusion that the Union was not
supplying enough electricians through the hall to meet its
requirements. About that time, Bechtel's labor relations
representative, Kenneth E. Farquhar, spoke to Local 322
Business Manager Westling and Assistant Business Man-
ager Appleby and complained that Bechtel's orders that
had been in for some time had not been filled. The union
representatives answered that Local 322 had sent more
men than were needed to fill the jobs and it was not the
Union's fault if Bechtel could not prevent the high rate of
turnover. On July 24, 1974, Bechtel notified Local 322 in
writing that it intended to seek electricians outside the hir-
ing hall. That notification read:
Pursuant to our telephone conversation this date our
current manpower request placed with your locas [sic]
is for 91 journeymen electricians. Unless substantial
progress is achieved in filling our manpower require-
ments, Bechtel Power Corporation will find it neces-
sary to seek applicants for employment from other
sources pursuant to Article 5, Section 5.10 of the cur-
rent collective bargaining agreement . This action will
be taken July 26, 1974.
At that time, Bechtel employed approximately 200 elec-
tricians and had unfilled orders placed for about 90 more.
After notifying the Union of its intention to hire outside
the hall, Bechtel placed advertisements in a number of
newspapers in the Rocky Mountain area. Replies to the
ads were given to Bechtel's electrical superintendent, Clay
Lampman, who evaluated the qualifications of the appli-
cants . Bechtel sent form letters to those applicants who
were qualified. The letters instructed the applicants to re-
port to a State Fire Marshall's office in Cheyenne to pick
up a State permit and then to report directly to the jobsite.3
Farquhar sometimes talked to applicants who called
3W yoming requires certain electricians to hold either a temporary State
permit or a State license . Bechtel has taken the position that this State
requirement does not apply to the construction of a power plant for a public
BECHTEL POWER CORP. 929
concerning the jobs. He told them that the project was
going to last 1-1/2 or 2 years. If the applicants specifically
asked how long they were going to work, Farquhar told
them that he couldn't guarantee them a job for any length
of time .4 Some of the applicants asked Farquhar whether
they had to go to the union hall. Farquhar answered in the
negative and said they could report directly to the jobsite.
Beginning about the first of August 1974, a number of the
applicants who had answered the advertisements were
hired at the jobsite. The parties referred to these hires as
"gate hires."
2. The hiring hall records
A number of the Company's hiring hall records are in
evidence. The records for group I referrals indicate refer-
rals from May 13, 1974, through February 28, 1975. There
are approximately 300 names on the group I referral list for
that period. All of those listed are members of a local of the
IBEW. With a relatively small number of exceptions, all of
these group I applicants were referred for employment
within a matter of days after their names appeared on the
referral list. These records show that the last group I appli-
cant hired from the referral hall at Bechtel's Jim Bridger
project was on November 20, 1974.5
The hiring hall records in evidence showing group II
referrals set forth from June 13, 1974, through February 24,
1975. These records list approximately 2,200 names. All of
those listed are members of a local of the IBEW. With a
relatively small number of exceptions, all of these group II
applicants were referred for employment within a few days
after their names appeared on the list. These records show
that the last group II applicant hired from the referral hall
at Bechtel's Jim Bridger project was on December 3, 1974.
The Union's group III referral list shows referrals from
July 10, 1974, through February 26, 1975. The forms used
by the Union in making up the group III and IV lists are
significantly different than those used to make up the
group I and II lists . Both the group I and II lists have a
column for union affiliation. There is no such column for
the group III or the group IV list. The group III list con-
tains approximately 135 names and the group IV list ap-
proximately 40. The union affiliation of some 2,500 appli-
cants (those listed in groups I and II) are meticulously
specified in the hiring hall records. In this context, the fact
that the approximately 175 applicants (those listed in
groups III and IV) were not shown on those records to
utility. The State initially disagreed with Bechtel 's contention , but the mat-
ter has not been finally decided. Bechtel has used the State permit system as
a means of checking on electricians ' qualifications but has never discharged
or laid off an employee because of a lack of a permit or license . Bechtel has
hired some electricians who did not have a permit or license.
Some of the applicants testified that they understood Farquhar to tell
them that their jobs would last for a protracted length of time. The above
finding is based upon the credited testimony of Farquhar . It is likely that
some of the applicants asked in general terms about the length of employ-
ment and assumed that Farquhar 's remark concerning the length of the
project indicated the length of their expected employment.
The records list "Bechtel (J.B.)" which appears to refer to the Jim Bridg-
er project . There are other listings for American Bechtel and Bechtel FMC
which appear to refer to different projects with which this case is not con-
cerned.
have any union affiliation warrants the inference that the
Union considered them to be nonunion. The records indi-
cate that referrals were made from the group III list be-
tween July 10 and September 4, 1974, but that since Sep-
tember 4 there have been only two referrals from that list.
One was on October 1, 1974, and the other was on Febru-
ary 26, 1975, for an applicant who was listed as " marine."
After September 4, 1974, approximately 90 applicants
signed the group III list. At all times since that date there
have been applicants on the list who have not been re-
ferred. Of all the names appearing on the group III referral
list, 14 were referred to Bechtel's Jim Bridger project. Elev-
en of these were referred on July 29, 1974. The other three
had special qualifications as welders. Two of those welders
were referred on August 26 and one on September 3, 1974.
It thus appears that after about August 1, 1974, when Be-
chtel began hiring at its gate, Local 322 did not refer any
applicants from its group III list (except for three specially
qualified welders) to Bechtel's Jim Bridger project, even
though Bechtel had outstanding orders for electricians. Be-
chtel was hiring at its gate because of a lack of referrals
from the hall, and the group III list contained the names of
many applicants who could have been referred.
The group IV referral list shows referrals from May 31,
1974, through February 20, 1975. That list contains the
names of approximately 40 applicants. Of those 40 only 7
were referred for employment. None were referred to
Bechtel's Jim Bridger project.
3. The decline in the need for electricians and the layoffs
By late November 1974, Bechtel had in its employ at the
Jim Bridger project approximately 400 electricians. These
electricians had been hired both by referral from the hall
and at the gate. About that time Bechtel was informed by
the public utility for whom it was doing the construction
work that a cash flow problem existed, and that there had
been an extension of the schedule for completion of the
work with a reduction in the budget. Bechtel's labor rela-
tions representative, Farquhar, spoke to Westling and Ap-
pleby of Local 322 about the need to reduce the force of
electricians. Both Westling and Appleby told Farquhar
that the gate hires who were employed under section 5.10
of the contract were temporary employees and had to be
laid off first.
The Canadian electricians were required to have visas in
order to work in the United States. Those visas were about
to expire within the 60 days after Bechtel decided to lay off
electricians. The Canadian electricians were selected as the
first to be laid off and Bechtel began laying them off on
December 6, 1974.
On December 10, 1974, Local 322 referred five or seven
electricians to Bechtel at the Jim Bridger project. When the
applicants reported at the brass shack (the building at
which hires were made and identification was given), Far-
quhar told them that Bechtel was reducing manpower and
they would not be hired. Shortly thereafter, Appleby called
Farquhar and asked why the men had been refused em-
ployment. Farquhar told him that Bechtel was reducing
manpower and could not hire any other electricians. Ap-
pleby then said that as long as there were temporary em-
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on the jobsite Bechtel had to accept qualified ap-
plicants from the referral hall. Farquhar replied that Ap-
pleby was correct, but that the temporary employees would
be laid off by the end of the day. On that day Bechtel did
lay off all but two of the gate hires. In addition, two electri-
cians who had been referred from the hall were laid off
that day. On December 11, 1974, five other electricians
who had been sent from the hall were laid off . On Decem-
ber 12, one more electrician who had been sent from the
hall was laid off, in addition to the two remaining gate
hires.6 The layoffs continued from December 1974 through
June 1975 , and at the time of the trial Bechtel employed
approximately 130 electricians. Except for five apprentice
electricians who were hired in January, Bechtel did not do
any hiring of electricians after December 6, 1974.
Farquhar credibly testified that he put the gate hires on
the layoff list before the employees who had been referred
to the hall because of the contractual requirements in sec-
tion 5.10 of the contract. The layoffs among the employees
who had been referred from the hall were based solely on
an ability criteria.
C. The Alleged Discriminatees
1. Carl A. Coates
2. Virgil H. Brown
In early August 1974, Virgil H. Brown, a nonunion elec-
trician with 4-1/2 years' experience, answered one of
Bechtel's newspaper advertisements in the Denver Post. He
received a response saying that he was qualified and ac-
cepted. A few days later he called Bechtel on the telephone
and Farquhar confirmed the job offer. Brown asked if it
was a union job and Farquhar answered that it was. Brown
then asked if he needed to go to the union hall to sign in.
Farquhar replied in the negative. He told Brown to report
to the jjobsite and that he (Farquhar) would notify the
Union.
Brown reported to the jobsite and was put to work on
August 29, 1974.
On December 10, 1974, Brown was laid off. On Decem-
ber 13, 1974, Coates told Brown of his conversation with
Appleby in which he had given Appleby the false informa-
tion concerning his union affiliation. Brown went to the
hiring hall on December 13 in the company of Steve Hud-
speth S and spoke to Appleby. Brown and Hudspeth asked
if there was any work available. Appleby replied that the
job situation was bad, that people were laid off, and others
were going to be laid off, and that if they had any other
place to go they should go there.
Carl A. Coates, a nonunion electrician with 16 years'
experience , applied for work as an electrician after reading
Bechtel's advertisement in a Cedar Rapids, Iowa , newspa-
per. He wrote to Bechtel stating his experience . Bechtel
replied that he had the qualifications for the position that
was open and told him to report to the jobsite. After receiv-
ing Bechtel 's letter, Coates called Bechtel and spoke to
Farquhar, who gave him information concerning the job
and reaffirmed the job offer. Coates came to the Rock
Springs area on August 26, 1974. Before reporting to the
jobsite, he obtained Local 322's telephone number from
the phone book and called the Union 's office . Coates asked
to speak to the union business agent and the person who
answered the phone at the union office identified himself
as the business agent . Coates asked what the procedure
was for being sent out of the hall . Coates also gave his
name and qualifications and said that he was not a union
member . The man at the union hall who had identified
himself as the business agent told Coates that there was
nothing he could do for him.
The next morning Coates went to Bechtel 's Jim Bridger
project where he was put to work.
On December 10, 1974, Coates' supervisor, Paul Certain,
told him that the gate hires on the crew were to be laid off
at 4 o'clock that day. Coates was laid off the same day.
On December 13, 1974, Coates called Local 322 and
spoke to Assistant Business Manager Appleby. Coates
used an assumed name and told Appleby that he was a
member of Local 288, IBEW, on his way back to Califor-
nia and that he needed a few days' work. Appleby told
Coates to come to the union hall to sign the book . Appleby
also said that he thought he could send Coates out.
6 Farquhar credibly testified that the last two gate hires were laid off on
December 13 rather than December 10 because of an oversight on his part.
3. Richard Loeffler and Paul H. Robertson
Richard Loeffler, a nonunion electrician, and Paul H.
Robertson, a nonunion electrician with more than 20 years'
experience, read one of Bechtel's ads in a Salt Lake City
newspaper. In early October 1974, they drove to Rock
Springs, Wyoming, where they reported to the State Unem-
ployment Office. At that office they were told to go to the
union hall to speak to Appleby. They drove together to the
union office where Robertson asked Appleby if there were
jobs available in the area. Appleby responded by asking
them what their union affiliation was. Robertson replied
that they were both nonunion. Appleby replied that he had
not white ticketed any people out of the hall for months.
(Appleby credibly testified that the term "white ticket" is
used to refer to any electrician who is not a member of a
local of the IBEW and that the term "yellow ticket" is used
to refer to any electrician who is a member of such a local.)
In the course of this conversation, Robertson said that he
had seen ads in the Salt Lake City papers advertising for
electricians with Bechtel and another firm named Lum-
mus. Appleby responded That those firms were not hiring
other than union electricians. Robertson told Appleby that
he intended to drive out and contact those firms to find out
what the story was, because he felt someone was lying.
Robertson then asked Appleby for a referral to contact
those firms. Appleby responded that Robertson would be
7 Brown testified that Farquhar told him that he (Farquhar ) would put
him in the Union. Farquhar averred that he never told any applicant that he
would help them get into the Union and that he simply told the applicants
that he would notify the Union pursuant to the contract. None of the other
witnesses for the General Counsel who testified to conversations with Far-
quhar averred that Farquhar said anything about putting them in the
Union. I believe that Brown misinterpreted Farquhar's remark and I credit
Farquhar.
8 Hudspeth is named in the complaint as a discriminatee.
BECHTEL POWER CORP.
wasting his time and gas to drive out to those firms. No
referral was given.
Robertson and Loeffler then reported back to the State
Unemployment Office, where they were told that Bechtel
and Lummus were hiring at the gate. They were given the
names of people to see at those companies.
After leaving the State Unemployment Office, Rob-
ertson and Loeffler went to Bechtel's Jim Bridger project
where they spoke to Supervisor Oscar Johnson. Robertson
told Johnson that he had been refused referral at the hall,
and he asked Johnson if Bechtel was able to hire. There
was mention of the 48-hour clause in the agreement. John-
son replied that he could hire and that he had done so the
previous morning . Johnson offered jobs to both of the men
and said that they could go to work that day. Loeffler ac-
cepted the job and went to work the following Monday.
Robertson expressed some hesitation because he wanted to
give notice to the employer he was working for at the time.
That evening, Robertson spoke on the telephone to an-
other Bechtel supervisor, Clay Lampman. Robertson ex-
pressed his interest in the job and Lampman said that Be-
chtel could hire at the gate.
The following morning, October 14, 1974, Robertson
went to the Bechtel Jim Bridger project together with an-
other alleged discriminatee, Gene Olschewski. Robertson
introduced Olschewski to Lampman and Johnson and said
that Olschewski might be interested in work. Olschewski
was offered a job. Robertson said that he would be back
when he had lived out his 2 weeks' notice. Lampman or
Johnson spoke of the influx of electricians from other
states and said that there could be no assurance of a job at
a later date.
On October 21, 1974, Robertson, in the company of 01-
schewski and Craig Wells, went to the brass shack on the
project. The clerk there asked Robertson for his referral.
Lampman, who was present, said that he was their referral
and told the clerk to hire them. All three were then hired.
The same day Larry Thompson, a superintendent for
Bechtel , told Robertson not to mention the fact that he was
nonunion . When Thompson introduced Robertson to Gen-
eral Foreman Evans, Thompson said that the only thing
wrong with Robertson was that he was a gate hire.
Both Loeffler and Robertson were laid off on December
10, 1974.
4. Gene Olschewski
Olschewski, a nonunion electrician with more than 8
years' experience, went to Bechtel's Jim Bridger project
with Paul Robertson on October 14, 1974, and was offered
a job at that time. Unlike Robertson, Olschewski did not
go to the union hall before seeking work at Bechtel. 01-
schewski credibly testified that he did not go to the union
hall because Robertson had told him that he (Robertson)
and Loeffler went to the hall and it didn't do any good.
Olschewski was hired by Bechtel on October 21 and went
to work on October 23, 1974. Oschewski was laid off on
December 10, 1974.
9 These findings are based on a composite of the credited testimony of
Loeffler and Robertson.
5. Val Zinke
931
Val Zinke, a nonunion electrician with 5 or 6 years' ex-
perience, began seeking work in the Rock Springs area in
April or May 1974. At that time, he placed a telephone call
from Denver to the Rock Springs office of the Union. An
unidentified man answered the call at the union office.
Zinke asked if there was work available in the Rock
Springs area. The man replied by asking Zinke if Zinke was
from the local in Denver. Zinke said that he was nonunion
and that he had heard that there was work in the area. The
man replied that he did not know where Zinke had heard
that and there was nothing there that he could help him
with.
Zinke tried again in the last part of August. He called the
union hall, identified himself, and asked if there was any
work available in the area. The man who answered the
phone in the union office asked if Zinke was out of the
local in Denver and once again Zinke said that he was not.
The man then said that there was no work available. Zinke
said that he had seen an ad in the Denver Post.
After the second inquiry of the Union, Zinke responded
by letter to Bechtel's ad. Bechtel replied with a letter saying
that work was available, that he seemed qualified, and that
he was to report to the jobsite. After receiving the letter,
Zinke called Bechtel on the telephone and asked if the job
was still available. He was told that he had the job.
On September 4, 1974, Zinke reported to the brass shack
on the project and was told by a woman named Judy to go
to Rock Springs to be referred out of the union hall. He
went to the union hall and spoke to Appleby. Zinke told
Appleby that he had a job with Bechtel and that a woman
at Bechtel had sent him to be referred out. Appleby asked
to see his paid up book and Zinke answered that he didn't
have one. Appleby then said that there was nothing he
could do for Zinke.
Zinke went back to the Bechtel project and told the
woman what had happened. Zinke was then put to work.
On December 10, 1974, Zinke was laid off.
6. Steve Hudspeth
Steve Hudspeth is named in the complaints as a discri-
minatee. However, he did not take the witness stand and
there is little evidence concerning him in the record. Virgil
H. Brown credibly testified that Hudspeth was with him on
December 13, 1974, when he (Brown) asked Appleby
whether there was work available and Appleby replied that
there was none. No other evidence was offered with regard
to Hudspeth.
7. Harold M. Hudson
The complaints state that all of the alleged discrimina-
tees other than Hudson were unlawfully discharged on De-
cember 10, 1974. As to Hudson, the complaints allege that
he was unlawfully refused hire on January 27, 1975.
Hudson went to the State Unemployment Office on Jan-
uary 27, 1975. At that office he saw a job order from Bech-
tel that stated that all journeymen inside wiremen had to
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have current IBEW status.10 The first person Hudson
spoke to in the office was a woman named Sally Skiles,
who told him that the only work she was aware of was for
electricians in an underground mine . Hudson spoke to an-
other woman in the office who referred him to two employ-
ers, one of whom was Bechtel.
Hudson then went to the Bechtel Jim Bridger project
where a guard brought him to see a woman in the brass
shack. The guard told the woman to call Farquhar. The
woman made the telephone call to Farquhar, who asked
her if Hudson had been referred from the Union.l t The
woman then asked Hudson if he was an IBEW member
and Hudson said that he was not. The woman spoke to
Farquhar on the phone again and then told Hudson that
there were no jobs available . She asked him if he had been
sent by the State Unemployment Office and he said that he
had been. She said that all the Company's referrals were
from the hall, that there had been a layoff the previous
month, and that she did not know what the job possibilities
were at that point.
After leaving the Jim Bridger project, Hudson went to
the union hall and spoke to Appleby. He told Appleby that
he had come looking for work. Appleby replied that he had
not sent a white ticket out for 6 months and that it would
be several months more before he saw any chance of send-
ing anyone out. Hudson stated that he had been a member
of Local 591 in California and asked if it would help if he
reinstated that membership. Appleby said that it would be
up to Local 591 but that he didn't think it would do any
good in the Rock Springs area.12
10 Resp. Company Exh . I is a job order form from Bechtel which was on
file with the unemployment office which stated in part: "$11.00 a day sub-
sistence . At Jim Bridger site . Must have current papers (journeyman [unin-
tellilgiblel IBEW."
1 Farquhar credibly testified that he made that inquiry of the woman
because Bechtel did not have anybody on order from the hiring hall and if
the Union was sending in people, he was going to contact the Union and tell
them not to do it again . As is set forth in detail above , Bechtel had made
substantial cutbacks in its electrician complement and it was not doing any
hiring of electricians at that time.
12 The findings with regard to the conversation between Hudson and Ap-
pleby are based upon the credited testimony of Hudson . Appleby, in his
testimony , acknowledged that the conversation took place, but he did not
testify concerning anything being said about a white ticket. Hudson's ver-
sion of the conversation is consistent with the testimony of other witnesses
who credibly averred that Appleby spoke of not referring white ticket men.
I credit Hudson.
Appleby was in charge of Local 322's suboffice and hiring hall in Rock
Springs during the period in question . He testified that he had no specific
recollection of any conversations with the alleged discriminatees other than
with Hudson . In general , he averred that he did not tell anyone coming into
the hall with a letter from Bechtel that there was nothing that he could do
for them. He testified that his general procedure was to explain to any
applicant what work is available , how many people were on the books, and
how long the applicant would have to wait . He also testified that his general
procedure when he received a phone inquiry about work was to determine
what category the applicant would be in and then advise the applicant how
long it would take for the referral and whether there was any need for the
person to come in. The findings above with regard to Appleby's statements
to the alleged discriminatees are, with the exception of Hudspeth . based on
the credible testimony of those alleged discriminatees . That testimony was
in large measure mutually corroborative . The Union's own hiring hall rec-
ords show a pattern which lends credence to the testimony of the alleged
discriminatees . Where that testimony is inconsistent with that of Appleby, I
do not credit Appleby.
D. Further Findings, Analysis, and Conclusions
1. The priority in referrals to applicants who had prior
employment with employers having a
collective-bargaining agreement with Local 322
The agreement that was maintained and enforced be-
tween Bechtel and Local 322 provided for an exclusive hir-
ing hall and gave first priority in referrals to "group I"
applicants . Under that contract , in order to qualify for
group I status , an applicant had to "have been employed
for a period of at least one (1) year in the last four (4) years
under a collective bargaining agreement between the par-
ties of this Addendum." To obtain "group III" status and
therefore third priority in referral , an applicant had to
"have been employed for at least six (6) months in the last
three (3) years in the trade under a collective bargaining
agreement between the parties to this Addendum." The
contract by its terms was between Local 322 and the Cas-
per Division of the Wyoming Chapter, NECA, Inc., "on
behalf of its members who employ workmen under the
terms and conditions contained herein , and who have
signed a Letter of Assent to be bound by this Agreement
.." The contract by its terms also provided that it
"shall also apply to other individual employers who em-
ploy workmen under the terms of this Agreement and by
virtue of signing a similar Letter of Assent, authorize the
Casper Division of the Wyoming Chapter NECA as their
collective bargaining agent for all matters contained herein
or affecting this agreement ...."
Thus, the term "parties to this addendum" as used in the
groups I and III referral criteria includes not only members
of the Casper Division of the Wyoming Chapter, NECA,
Inc., who have signed a letter of assent, but also any other
individual employers who sign similar letters of assent. The
term "parties to the addendum" as used in the hiring hall
clauses included not only the members of the bargaining
unit covered by the contract, but also any other employer
who used the hall and rode along with the bargaining unit
by signing the proper letter of assent. As Bechtel and Local
322 have interpreted and applied that contract , there is also
a third category of employers who are bound by the con-
tract and are therefore "parties to this addendum ." Within
that category are employers who have signed an Interna-
tional agreement with the IBEW and are covered by the
Local 322 contract when that employer is doing work with-
in the jurisdiction of Local 322 . Bechtel is such an employ-
er and , though Bechtel is not part of the multiemployer
bargaining unit covered by the Local 322 contract, it is
bound by that contract . Under these circumstances, the
preference given to applicants who have prior employment
with "parties to this addendum" is not based on seniority
with an employer within the multiemployer bargaining
unit . Rather, it is a preference based on prior employment
with an employer , whether within or without the bargain-
ing unit in question who had a collective -bargaining con-
tract with Local 322.
In International Photographers of the Motion Picture In-
dustries, Local 659 of the IATSE (MPO-TV of California,
Inc.), 197 NLRB 1187, 1188-89, enfd . 477 F.2d 450
BECHTEL POWER CORP. 933
(C.A.D.C., 1973), cert. denied 414 U.S. 1157 (1974),13 the
Board held that an employment referral list was invalid
where it prevented "an applicant from obtaining initial em-
ployment unless he has had prior employment at which he
was represented by the Union." 14 In finding a violation,
the Board held:
In determining whether an employee is eligible to be
placed on the roster, his work experience with employ-
ers other than those who signed one of the aforemen-
tioned agreements is not considered. Thus, qualifying
experience is generally limited to experience with em-
ployers having a collective-bargaining agreement with
Respondent and/or IATSE.
There can be no doubt that the actions of Respon-
dent in applying the roster restrained and coerced
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act. In part, Section 7 gives employees
the right to bargain collectively through representa-
tives of their own choosing, or to refrain therefrom,
subject of course to majority rule. Respondent's ac-
tions penalize employees for having exercised their
statutory right to refrain from bargaining collectively
through Respondent in the past, while rewarding those
employees who have chosen to work in units repre-
sented by Respondent. [Footnotes omitted.]
In Nassau-Suffolk Chapter of the National Electrical Con-
tractors' Association, Inc., 215 NLRB No. 125 (1974), the
Board applied the logic of the MPO-TV case to an exclu-
sive hiring hall situation where preference in referral was
granted to applicants who had prior employment "under a
collective-bargaining agreement between the parties of this
Referral Procedure." In substance, it was held that "the
parties of this Referral Procedure" included both employ-
ers within the bargaining unit and employers outside of the
bargaining unit who had collective-bargaining agreements
with that union. The Board adopted the Administrative
Law Judge's conclusion that the priority in employment
was granted to applicants not based on length of service
with an employer, but rather on the basis of prior employ-
ment at which the applicant was represented by the
union." The Board concluded that, by maintaining and
enforcing the contract, the union violated Section
8(a)(1)(A) and (2) of the Act and the company violated
8(a)(1) and (3) of the Act.
The instant case is controlled by the decisions in MPO-
TV and Nassau-Suffolk. Bechtel and Local 322 have main-
tained and enforced a collective-bargaining agreement
containing an exclusive hiring hall arrangement under
13 See also Directors Guild of America, Inc. (Association of Motion Picture
& Television Productions , Inc.), 198 NLRB 707, enfd. 494 F.2d 692 (C.A. 9.
1974).
14 The Board distinguished that situation from one in which the parties to
an agreement lawfully make seniority depend on the date of hire in a bar-
gaining unit and therefore give inferior seniority ranking to employees
transferred from another unit.
15 Section 8(f) of the Act states that it shall not be an unfair labor practice
for an employer engaged in the construction industry to make an agreement
which "provides for priority in opportunities for employment based upon
length of service with such employer .. .. In Nassau-Suffolk it was held
that the priority in referral was not based on length of service (seniority)
with the employer, but rather on prior employment at which the applicant
was represented by the Union.
which preference in referral was given to applicants who
had prior employment at which they were represented by
Local 322. That representation was not merely something
that coincided with seniority based on employment with an
employer who was a member of a multiemployer bargain-
ing unit. Preference in referral was based on prior employ-
ment with an employer having a contract with Local 322
whether or not that employer was part of the multiemploy-
er bargaining unit. As in the MPO case, the collective-
bargaining agreement "penalize[d] employees for having
exercised their statutory right to refrain from bargaining
collectively through (the Union) in the past, while reward-
ing those employees who have chosen to work in units rep-
resented by (the Union)." I find that by maintaining and
enforcing those provisions of the collective-bargaining
agreement, Bechtel violated Section 8(a)(1) and (3) of the
Act and Local 322 violated Section 8(b)(1)(A) and (2) of
the Act.
2. The operation of the hiring hall and the layoffs of
Coates, Brown, Loeffler, Robertson, Olschewski, and
Zinke
An exclusive hiring hall gives a great deal of authority
over the hiring process to a union, but such authority is not
in itself violative of the Act.16 However, under such a hir-
ing hall system, except under circumstances not present
here, a union cannot lawfully refuse to refer an applicant
because of union considerations.'?
Where an employer has contracted to use and does use a
union's exclusive hiring hall, the employer will be held to
have violated the Act when the union unlawfully refuses to
refer an applicant because of union considerations.'s
A violation also occurs where an exclusive hiring hall is
operated in such a manner that union members who are
referred from the hall can "bump" (or obtain job retention
rights over) temporary nonunion employees who are hired
at the gate.
Article V of the contract provides for the hiring hall.
Section 5.10 appears within article V and is an integral part
16 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v.
N.L.R.B., 365 U.S. 667 (1961).
17 Seafarers International Union of North America, Atlantic, Gulf, Lakes &
Inland Waters District, AFL-CIO (Ismthian Lines, Inc.), 202 NLRB 657
(1973), enfd. 496 F.2d 1363 (C.A. 5, 1974 ); International Brotherhood of
Electrical Workers, AFL-CIO, Local 82 (National Electrical Contractors
Assn.), 182 NLRB 59 (1970), and International Brotherhood of Electrical
Workers, AFL-CIO, Local 648 (Foothill Electrical Corp.), 182 NLRB 66
(1970), enfd. 440 F.2d 1184 (C.A. 6, 1971). A union may enforce a lawful
union-security clause in the operation of its hiring hall and also may condi-
tion referral on payment of a reasonable nondiscriminatory hiring hall fee.
Boston Cement Masons and Asphalt Layers Union No. 534 (Duron Maguire
Eastern Corp.), 216 NLRB 568 (1974). However, there is no issue concerning
union-security clauses or hiring hall fees in this case.
18 Castleman and Bates, Inc., 200 NLRB 477, enfd. 502 F.2d 1161 (C.A. I,
1974). As the Second Circuit Court of Appeals held in Morrison-Knudsen
Company, Inc., 275 F.2d 914 (1960), cert. denied 366 U.S. 909 (1961):
But regardless of the extent of their knowledge we agree with the Board
that an employer may not avoid liability for violations of the Act by the
hiring hall when he has turned over to it the task of supplying the men
to be employed. The Local acted as agent for the petitioners in select-
ing the men to be hired. Its discriminatory acts, which unlawfully en-
courage membership in Local 545, are properly chargeable to the
agent's principal as discriminatory acts by it.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hiring system. That section provides that, where the
union is unable to refer applicants within 48 hours of an
employer's request, the employer may secure applicants
without using the referral procedure . It also provides that
such applicants may be hired only as temporary employ-
ees, that the employer shall notify the union of the names
of such hires, and that temporary employees are to be re-
placed whenever applicants are available from the hiring
hall.
In the instant case the record establishes that at least by
August 1, 1974, when Bechtel began hiring at the gate,
Bechtel needed electricians and had outstanding orders at
the hiring hall for their referral; that the Union had on its
referral lists nonunion electricians ; that the Union did not
refer the nonunion electricians ; that the Union would not
refer nonunion applicants who made inquiries at the hiring
hall; that nonunion applicants who could not secure refer-
ral from the hall were hired by Bechtel as temporary em-
ployees pursuant to the terms of the contract; that the
Union insisted that those temporary employees be laid off
before any employees who had been referred from the hall;
and that a number of Bechtel 's employees were laid off on
about December 10, 1974 , pursuant to the contract, be-
cause they had the status of temporary employees.
On July 24, 1974, Bechtel notified the Union in writing
that it had unfilled orders with the hiring hall for 91 electri-
cians and that it intended to hire at the gate pursuant to its
right to do so under the contract.19 Under the contract,
Bechtel had the right to hire at the gate only when the
Union did not supply enough electricians through the re-
ferral hall. The Union did not supply enough electricians
through the hall and Bechtel did hire at the gate beginning
about August 1, 1974. Though there were a number of non-
union electricians on the groups III and IV referral lists,
none, with the exception of three electricians from the
group III list who had special qualifications as welders,
were referred to Bechtel after August 1 when Bechtel start-
ed hiring at the gate. The Union continued to refer union
electricians from the groups I and II lists and the remain-
der of Bechtel's needs were obtained from gate hires, who
had the status of temporary employees . The effect of this
system was to have union electricians referred from the
hall as regular employees and nonunion electricians hired
at the gate as temporary ones , who were subject to dismiss-
al when the hall could supply enough union electricians to
meet Bechtel's needs . The temporary employees were also
subject to dismissal before any electrician who had been
referred from the hall could be laid off.
Coates, Brown, Loeffler, Robertson, Olschewski, and
Zinke were all effectively barred from referral from the hall
because of their nonunion status. They all obtained tempo-
rary employment from Bechtel as gate hires and they were
subsequently all laid off because of their status as tempo-
rary employees so that employees who had been referred
from the hall could retain their jobs when a reduction in
force was called for.
19 The Union's contention that it was Bechtel 's fault that Bechtel could
not keep the electricians that had already been referred from the hall does
not detract from the conclusion that Bechtel had openings for and desired
to hire a large number of electricians.
The conclusion that these employees had no access to
referral from the hall is warranted both by an examination
of the hiring hall records and the testimony of those em-
ployees.
Coates spoke on the telephone to a person at the union
hall who identified himself as a business agent. Coates said
that he was not a union member and that man informed
Coates that there was nothing he could do for Coates with
regard to referral. Yet at that time Bechtel needed a man of
Coates' qualifications and Coates was put to work as a gate
hire the following day. Coates was laid off on December
10, 1974. On December 13, Coates called the Union' s assis-
tant business manager, Appleby. Coates used an assumed
name and said that he was a member of a California local.
Appleby told Coates to come to the hall and sign the book
and that he thought he could send Coates out. °
Brown did not have any direct contact with the Union.
However, when Bechtel's labor relations representative,
Farquhar, offered a gate hire to Brown, Brown asked if he
needed to go to the union hall to sign in. Farquhar replied
that he need not go and that he (Farquhar) would notify
the Union. As an agent of Bechtel, Farquhar was in a posi-
tion to know the workings of the agreement between Be-
chtel and the Union concerning hiring. When he told
Brown that Brown need not go to the Union, Farquhar was
accurately reflecting the fact that it would not do Brown
any good to go to the Union because Brown would not be
referred out. In light of the Union's hiring hall records and
the testimony of Coates and the other employees described
below, it is quite apparent that Brown would have been
engaging in a futile act if he had contacted the Union.
When, after Brown's layoff, he did go to the Union seeking
referral, Appleby told him the job situation was bad and
that he should go some place else. That conversation took
place shortly after Appleby told Coates, who had repre-
sented himself as a union member, that Coates should sign
the book and that he (Appleby) thought that he could send
Coates out.
Loeffler and Robertson did go to the hiring hall where
they spoke to Appleby. After ascertaining that they were
nonunion, Appleby said that he had not white ticketed any
people out of the hall for months. White tickets refer to
nonunion electricians. Appleby also told them that they
would be wasting their time and gas to try to find jobs
themselves . Both Loeffler and Robertson were hired at the
gate by Bechtel.
Olschewski did not have any direct contact with the
Union. Olschewski did not go to the union hall because
Robertson and Loeffler recounted their experience to him
20 The Union contends that it had no obligation to refer Coates and other
applicants who had already been promised gate hires by Bechtel. That con-
tention is without substance . Gate hires were temporary employees who
were subject to bumping by applicants who were referred from the hall. The
only route to regular employee status was through the referral hall. The
Union cannot insist that union referrals from the hall displace nonunion
temporary employees and at the same time deny the right of the nonunion
temporary employees to achieve regular status by referral. In addition, the
Union's assistant business manager, Appleby, acknowledged in his testimo-
ny that a number of people who had letters from Bechtel offering them
employment came to the union hall, were put on the referral books, and as
their names came up were referred out. Appleby also acknowledged that
where possible he granted employee preference with regard to where the
employee wanted to be sent.
BECHTEL POWER CORP. 935
and said that it didn't do any good. Under those circum-
stances, Olschewski reasonably concluded that it would be
futile for him to seek referral from the hall. Olschewski was
also hired at the gate by Bechtel.
Zinke made a number of efforts to secure referral from
the hall. In April or May 1974, he spoke on the telephone
to someone at the union office who asked if Zinke was
union. When Zinke replied that he was not, he was told
that there was nothing that could be done to help him.
Zinke tried again the last part of August. Again, he was
asked if he were union and when he responded in the nega-
tive, he was told that there was no work available. On Sep-
tember 4, 1974, Zinke reported to the hiring hall and said
that he had a job with Bechtel. Appleby asked to see his
paid up book and when Zinke replied that he didn't have
one, Appleby said that there was nothing he (Appleby)
could do for him. Thereafter, Zinke was hired by Bechtel
as a gate hire.
On December 10, 1974, Bechtel refused to hire a number
of electricians who were referred from the hall. When this
matter was reported to Appleby, Appleby called Farquhar
and told him that as long as there were temporary employ-
ees on the jobsite, Bechtel had to accept qualified appli-
cants from the referral hall. That day the gate hires named
above were laid off. Farquhar admitted that he put the gate
hires on the layoff list before the employees who had been
referred from the hall because of the contractual require-
ments in Bechtel's contract with the Union.
In sum, I find that Coates, Brown, Loeffler, Robertson,
Olschewski, and Zinke were effectively precluded from us-
ing the exclusive hiring hall because of their nonunion sta-
tus; that because of that nonunion status and their inability
to use the hiring hall, they were hired by Bechtel as tempo-
rary rather than regular employees; that the hiring hall
provisions of the contract required the temporary employ-
ees to be laid off before the regular employees; and that
pursuant to that contract, they were laid off on December
10, 1974. Bechtel and the Union so interpreted and en-
forced the hiring hall provisions of their contract that those
employees were given temporary employee status because
of their nonunion membership and that temporary status
led to their layoffs. By such action, the Union violated
Section 8(b)(1)(A) and (2) and Bechtel violated Section
8(a)(1) and (3) of the Act.
3. Steve Hudspeth
The complaints name Hudspeth as one of the discrimi-
natees who was laid off on December 10, 1974. Hudspeth
did not testify and there is no evidence in the record with
regard to him other than the testimony of Brown that Hud-
speth was with him on December 13, 1974, when Appleby
told them that there was no work available. The evidence
in the record does not support a finding that Hudspeth was
laid off in violation of the Act. It does not even establish
that he was employed or laid off by Bechtel. The complaint
alleges that on or about December 10, 1974, seven named
employees and "other employees whose names are known
to Respondent" were terminated in violation of the Act.
While the complaint is broad enough to allow the General
Counsel to develop evidence with regard to particular peo-
ple other than the named discriminatees, I do not believe
that Respondents have been put on notice that they have
to defend against a class action running to the benefit of all
gate hires who were laid off by Bechtel.21 Thus, even if
Hudspeth could show at a backpay hearing that he was a
member of that class (laid off gate hires), I do not believe
that Hudspeth would be entitled to relief under this com-
plaint. I shall therefore recommend the dismissal of that
portion of the complaint which alleges that Hudspeth was
terminated in violation of the Act.
4. Harold Hudson
On January 27, 1975, Hudson saw a job order from Be-
chtel stating that all journeymen inside wiremen had to
have current IBEW status. When he inquired for work at
Bechtel, he was told that all the Company's referrals were
from the hall and there were no jobs available.22 Hudson
then went to the hiring hall where he was told by Appleby
that Appleby had not sent out a white ticket for 6 months
and that it would be several months more before there was
a chance of sending anyone out. When Hudson asked
whether it would help to reinstate his membership in a
sister local, Appleby replied that he didn't think it would
do any good.
As found above, Bechtel continued to lay off employees
from December 1974 through June 1975. Except for five
apprentice eletricians who were hired in January 1975, Be-
chtel did not do any hiring of electricians after December
6, 1974. Hudson attempted to secure a job with Bechtel
while Bechtel was engaging in a major reduction in force.
On December 10, 1974, Bechtel refused to hire electricians
that had been referred from the hall. As Bechtel was doing
no hiring of employees in Hudson's classification at the
time that Hudson was seeking employment, it cannot be
found that Bechtel refused to hire Hudson because he had
not been referred from the Union or that the failure of the
Union to refer Hudson resulted in Bechtel's refusal to hire
him. However, as is manifest from Appleby's statement to
Hudson that Appleby had not sent a white ticket out for 6
months, Hudson was effectively denied access to the hiring
hall procedure. Appleby did not ask Hudson to sign the
referral list or inform him of his right to participate in the
hiring hall procedure for whatever work became available
in the future. Consistent with his conduct toward the other
discriminatees named above, Appleby barred the use of the
hiring hall procedure by nonunion applicants such as Hud-
son.
In Utility and Industrial Construction Company and Local
1076, International Laborers Union of North America, AFL-
CIO, 214 NLRB 782 (1974), the Board held:
The Administrative Law Judge reasoned that, be-
cause the Respondent Company never again request-
21 Cf. Georgia, Florida, Alabama Transportation Company, 219 NLRB 656
(1975).
22 Though the woman Hudson spoke to at Bechtel asked him if he was an
IBEW member, I do not believe that that evidence indicates that Hudson
was denied employment at that time because of his nonunion status. Before
that date, Bechtel had made substantial cutbacks in its work force and it
was doing no hiring of any kind.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed any employees from the Respondent Union 's refer-
ral system , the violation was merely a theoretical one
and dismissed the allegations of the complaint in re-
gard thereto . This conclusion must be rejected. We
have consistently held that to establish a violation, it is
unnecessary to show that jobs were available at the
time of the request for referral . [Footnote omitted.]
The stated reason for the Union 's refusal to register
and refer was nonmembership . Hence , we find that by
refusing . . . to register and refer [the applicant], the
Respondent Union violated Section 8(b)(1)(A) and
8(b)(2) of the Act.
In that case, the Board ordered the Union to register the
discriminatee immediately and make him whole for any
loss of earnings by reason of lost opportunity for referral
"during the period March 1, 1974, to the present." The
Board went on to hold : "the record reveals that there were
no possible referrals from March 1, 1974, until the time of
hearing . Whether there was a loss because of any opportu-
nities after that must be ascertained at the compliance
stage of the proceedings."
In the instant case , I find that Hudson was denied access
to the referral procedure because of his nonunion status.
The Union thereby violated Section 8 (b)(1)(A) and (2) of
the Act . While the record reveals that Bechtel did no hiring
of employees in Hudson 's classification , from the date of
Hudson 's attempt to use the hiring hall until the date of
hearing , and that therefore there was no loss of earnings by
Hudson up to the date of hearing that are attributable to
the refusal of the Union to allow him to use the hiring hall,
I shall recommend that the Union be ordered to make
Hudson whole in the manner set forth in Utility and Indus-
trial Construction Company, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Bechtel and the Union , as set forth in
section III , above , occurring in connection with the busi-
ness operations of Bechtel set forth in section I, above,
have a close , intimate, and substantial relationship to
trade , traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Bechtel has engaged in unfair labor
practices within the meaning of Section 8 (a)(1) and (3) of
the Act , and that the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2)
of the Act , I shall recommend that they be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Coates , Brown , Loeffler , Robertson,
Olschewski , and Zinke were unlawfully terminated on De-
cember 10, 1974 , because of the unlawful operation of the
hiring hall arrangement between Bechtel and the Union, I
shall recommend that the Union be ordered to notify
Bechtel , in writing , with a copy to each of those employ-
ees, that it has no objection to their immediate and full re-
instatement to their former jobs or, if those jobs no longer
exist , to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges . I shall
also recommend that Bechtel be ordered to offer each of
those employees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist , to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges . I shall further recommend that
the Union and Bechtel be ordered jointly and severally to
make those employees whole for any loss of earnings they
may have suffered as the result of the discrimination
against them by payment to each of them of the amount
each normally would have earned from December 10,
1974, which was the date of their discharges , to the dates
set forth hereafter , less net earnings , to which shall be add-
ed interest at the rate of 6 percent per annum , in accor-
dance with the formula set forth in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). In the case of the Union, its
backpay liability shall terminate 5 days after it notifies Be-
chtel and those employees that it has no objection to their
reinstatement , as provided above . In the case of Bechtel, its
backpay liability shall terminate on the date that those em-
ployees are offered reinstatement.
Having found that the Union unlawfully refused access
to its hiring hall to Hudson, I shall recommend that it be
ordered to register Hudson immediately and to make him
whole for any loss of earnings he may have suffered by
reason of lost opportunity for referral to Bechtel during the
period January 27, 1975 , to the present 23
I shall further recommend that Bechtel be ordered to
preserve and, upon request , make available to the Board or
its agents , for examination and copying, all payroll records,
social security payment records , timecards , personnel rec-
ords and reports , and all other records necessary to analyze
the amount of backpay due. In addition , I shall recom-
mend that the Union be ordered to preserve all hiring hall
records and, upon request, make them available to the
Board or its agents for the purpose of analyzing the
amount of backpay due.
As the unlawful conduct of the Union indicates a pur-
pose to limit the lawful rights of applicants for employ-
ment , and the danger of its continued further commission
is reasonably foreseen , I shall also recommend that the
Union be ordered to cease and desist from operating its
exclusive hiring hall in such a manner as to cause or at-
tempt to cause any employer subject to the Board 's juris-
diction to deny employment to any employee or applicant
for employment because of lack of union membership.
CONCLUSIONS OF LAW
1. Bechtel is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
23 The record reveals that Bechtel did no hiring of employees in Hudson's
category from January 27, 1974, until the time of hearing . Whether there
was a loss because of any opportunities after that must be ascertained at the
compliance stage of the proceeding. See Utility and Industrial Construction
Company, supra.
BECHTEL POWER CORP. 937
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining, enforcing, and otherwise giving ef-
fect to an exclusive hiring hall contractual arrangement
which gives preference in referrals and employment oppor-
tunities to applicants for employment who have previously
worked for employers who had collective-bargaining agree-
ments with the Union, the Union violated Section
8(b)(1)(A) and (2) of the Act and Bechtel violated Section
8(a)(1) and (3) of the Act.
4. By maintaining, enforcing, and otherwise giving ef
fect to an exclusive hiring hall contractual arrangement
which was operated in such a manner as to exclude non-
union members from the hiring hall and require nonunion
members to be hired only as temporary employees, the
Union violated Section 8(b)(1)(A) and (2) of the Act and
Bechtel violated Section 8(a)(1) and (3) of the Act.
5. By maintaining, enforcing, and otherwise giving ef-
fect to an exclusive hiring hall contractual arrangement in
such a manner as to require the discharge of Coates,
Brown, Loeffler, Robertson, Oschewski, and Zinke because
as nonunion employees they were hired as temporary em-
ployees, and by the discharge of those employees, the
Company violated Section 8(a)(1) and (3) of the Act and
the Union violated Section 8(b)(1)(A) and (2) of the Act.
6. By refusing to allow Hudson access to its exclusive
hiring hall because Hudson was not a member of a union,
the Union violated Section 8(b)(1)(A) and (2) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER24
A. Respondent, International Brotherhood of Electrical
Workers, Local No. 322, AFL-CIO, Casper, Wyoming, its
officers, agents, and representatives shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
an exclusive hiring hall contractual arrangement with
Bechtel Power Corporation which gives preference in refer-
rals and employment opportunities to applicants for em-
ployment who have previously worked for employers who
had collective-bargaining agreements with said Union.
(b) Maintaining, enforcing, or otherwise giving effect to
an exclusive hiring hall contractual arrangement with Be-
chtel Power Corporation which is operated in such a man-
ner as to exclude nonunion members from the hiring hall
or which requires nonunion members to be hired only as
temporary employees.
(c) Causing or attempting to cause Bechtel Power Cor-
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order here shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
poration to discharge or discriminate with regard to the
retention of employment of any employee because that em-
ployee is not a member of a union.
(d) Refusing to allow any employee access to its exclu-
sive hiring hall because that employee is not a member of a
union.
(e) 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.
(f) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Notify Bechtel Power Corporation, in writing, that it
has no objection to the immediate and full reinstatement of
Carl Coates, Virgil Brown, Richard Loeffler, Paul Rob-
ertson, Gene Olschewski, and Val Zinke to their former
jobs, or if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges, and furnish those employees with a
copy of such notification.
(b) Jointly and severally with Bechtel Power Corpora-
tion make the above-named employees whole for any loss
of earnings they may have suffered as a result of the dis-
crimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Register Harold Hudson at its exclusive hiring hall
and make him whole for any loss of earnings he may have
suffered by reason of lost opportunity for referral to
Bechtel Power Corporation in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all hiring
hall records necessary to analyze the amount of backpay
due.
(e) Post at its business offices, hiring hall, and meeting
places, copies of the attached notice marked "Appendix
A." 25 Copies of said notice on forms provided by the Re-
gional Director for Region 27, after being duly signed by
its authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Deliver to the Regional Director for Region 27
signed copies of said notice in sufficient numbers to be
posted by Bechtel Power Corporation in all places where
notices to employees are customarily posted.
(g) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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"
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent, Bechtel Power Corporation, San Fran-
cisco, California, its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
an exclusive hiring hall contractual arrangement with In-
ternational Brotherhood of Electrical Workers, Local No.
322, AFL-CIO, which gives preference in referrals and em-
ployment opportunities to applicants for employment who
have previously worked for employers who had collective-
bargaining agreements with that Union.
(b) Maintaining, enforcing, or otherwise giving effect to
an exclusive hiring hall contractual arrangement with said
Union which is operated in such a manner as to exclude
nonunion members from the hiring hall or which requires
nonunion members to be hired only as temporary employ-
ees.
(c) Discharging or discriminating with regard to the re-
tention of employment of any employee because that em-
ployee is not a member of a union.
(d) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Carl Coates, Virgil Brown, Richard Loeffler,
Paul Robertson, Gene Olschewski, and Val Zinke immedi-
ate and full reinstatement to their former jobs or , if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges.
(b) Jointly and severally with International Brotherhood
of Electrical Workers, Local No. 322, AFL-CIO, make the
above-named employees whole for any loss of earnings
they may have suffered as a result of the discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due.
(d) Post at its Jim Bridger Power Plant project copies of
the attached notice marked "Appendix B." 26 Copies of
said notice , on forms provided by the Regional Director
for Region 27, after being duly signed by its authorized
representative, shall be posted by it immediately upon re-
ceipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to insure that said notices
are not altered , defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 27
signed copies of said notice in sufficient number to be post-
ed by International Brotherhood of Electrical Workers,
Local No. 322, AFL-CIO, in places where notices to mem-
bers are customarily posted.
(f) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order , what steps
have been taken to comply herewith.
C. IT IS FURTHER ORDERED that those allegations in the
complaints as to which no violations have been found are
hereby dismissed.
26 See In . 25, supra.