Dynalectric Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 820 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
AFL-CIO, Local 1701 (Dynalectric Company)
and Larry Nesler and Floyd Robbins. Cases 5-
CB-3796 and 25-CB-3809
September 30, 1980
DECISION AND ORDER
By CHAIRMAN FANNING ANI) MEMEI RS JNKINS
ANI) PNIF. I0
On June 17, 1980, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed 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, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
l'he General Counsel has excepted to certain credibility findings
made by the Adminlistrative L.aw Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (15(0), tnfTd 188 F2d 362 (3d Cir.
1951) We have carefully examined the record and find no basis for re-
versing his findings.
Chairman Fanning continues to adhere to the views set forth in his
dissenting opinion in Miranda Fuel Co., 140 NLRH 181 (1962), and thus
finds that it was unnecessary for the Administrative Law Judge to rely
on that decision
DECISION
STAIEMIN OF ITH CASE
ROBERI W. LEINER, Administrative Law Judge: The
hearing in this consolidated proceeding was held in
Owensboro, Kentucky, on seven occasions on and be-
tween January 24 and March 12, 1980. The charge in
Case 25-CB-3706, filed by Larry Nesler on June 22,
1979, was amended on July 5, 1979. The charge in Case
25-CB-3809, filed by Floyd Robbins on July 2, 1979,
was amended on July 5, 1979. A consolidated complaint
was issued on August 10, 1979, alleging that Internation-
al Brotherhood of Electrical Workers, AFL-CIO, Local
1701, herein called Respondent, violated Section
252 NLRB No. 119
8(b)(1)(A) and 8(b)(2) of the National Labor Relations
Act, as amended, herein called the Act, by various acts
growing out of its contractual relationship in multiem-
ployer bargaining with a group of employers, particular-
ly including Dynalectric Company. The complaint also
alleges violation of Section 8(b)(1)(A) of the Act in Re-
spondent's failure to lawfully represent the two Charging
Parties in their grievances following their being dis-
charged for cause by Dynalectric Company. Respond-
ent's timely answer admitted certain allegations of the
consolidated complaint but denied the commission of any
unfair labor practices.
At the hearing, all parties were given full opportunity
to participate, to call, examine, and cross-examine wit-
nesses, and to argue on the record. At the close of the
hearing, all parties waived oral argument and, thereafter,
the General Counsel and Respondent filed briefs.
At the hearing, on Respondent's motion and with the
General Counsel's consent, at the conclusion of the Gen-
eral Counsel's case-in-chief, two allegations of the con-
solidated complaint were dismissed for lack of proof.
These allegations consisted of paragraph 5(a) which al-
leged, inter alia, that Respondent unlawfully demanded
that Dynalectric discharge certain employees not dis-
patched pursuant to allegedly unlawful hiring proce-
dures: and paragraph 5(d), which alleged that Respond-
ent unlawfully refused to give to employees of Dynalec-
tric who were not members of Respondent a journeyman
test which was a condition precedent to their preferential
referral to employment under the collective-bargaining
agreement.
At the hearing, in response to Respondent's further
motions to dismiss for lack of proof other allegations of
the consolidated complaint, I reserved decision regarding
paragraph 5(e), in which it was alleged that Respondent
administered to employees, who were not members of
the Union, but who were applicants for employment at
Dynalectric, a journeyman's test which was "unfair and
discriminatory in nature and grading"; and paragraph
5(g), alleging that Respondent engaged in enumerated
unlawful acts whereby nonmembers of Respondent were
disqualified and prevented from establishing eligibility
for dispatch under the terms of the collective-bargaining
agreement and the conditions governing the operation of
Respondent's hiring hall, thereby preventing them from
being employed by Dynalectric other than as temporary
employees. The instant decision disposes of those mo-
tions on which decision was reserved.
Upon the entire record in this proceeding, including
the briefs, and based upon my observation of the demea-
nor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDIICTION
Dynalectric Company, a Kentucky corporation, main-
tains its principal office and place of business in Owens-
boro, Kentucky, where it is engaged in the business of
electrical contracting. In the 12-month period preceding
issuance of complaint, a representative period, Dynalec-
tric, in the course and conduct of its business operations,
820
ELECTRICAL WORK
purchased, transferred, and delivered to its Owensboro
facility goods and materials valued in excess of $50,000
of which goods valued in excess of $50,000 were trans-
ported to said facility directly from States other than the
State of Kentucky. In the same period, Dynalectric pro-
vided services of a gross value in excess of $500,000. The
complaint alleges, Respondent admits, and I find that
Dynalectric is and has been, at all material times, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Board
would assert jurisdiction herein.
II. THE ABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the above-captioned Respondent is, and has been at
all material times, a labor organization within the mean-
ing of Section 2(5) of the Act.
111. HE AI.EGEI) UNFAIR LABOR PRACTICES
A. The Issues
The principal issues, raised by the pleadings and liti-
gated in the hearing, remaining after the above-noted dis-
missals at the hearing of two allegations of the complaint
and alleged to violate Section 8(b)(1)(A) and (2) were:
1. Whether Respondent, operator of an exclusive
hiring hall pursuant to a collective-bargaining agreement
at all times since December 22, 1978 (the 10(b) period),
refused to register and refer nonmembers of Respondent,
including, Charging Parties Nesler and Robbins, and
other persons, for employment with Dynalectric because
of their nonmember status.
2. Whether, on or about March 24, 1979, Respondent
administered to nonmember applicants for employment a
test for journeyman status which was unfair and discrim-
inatory in nature and grading, thereby adversely and un-
lawfully affecting their opportunity for referral under the
collective-bargaining agreement.
3. Whether, on or about February 10, 1979, and there-
after, Respondent required nonmember applicants to
complete a complex and lengthy questionnaire as part of
their application for referral, which questionnaire had
not been previously required and whether such proce-
dure was part of a plan to discriminate against such non-
member applicants.
4. Whether Respondent, on or about February 8, 1979,
following Dynalectric's "termination" of its temporary
employees, filed a grievance against Dynalectric regard-
ing the "termination" notwithstanding said employees
did not desire such grievance to be filed and objected
thereto.
5. Whether Respondent, in or about May and June
1979 contrary to the expressed desire of Nesler and Rob-
bins, who had filed grievances regarding their respective
May 3, 1979, discharges by Dynalectric, unlawfully re-
fused to consent to Dynalectric's offer of reinstatement
of said employees.
6 Whether Respondent's conduct with regard to the
processing of Nesler and Robbins' grievances concerning
their May 3, 1979, discharges, resulted from Respond-
ent's bad faith because of Nesler and Robbins being non-
CERS, LOCAL 1701 821
members of Respondent and not dispatched through its
hiring hall.
7. Whether Respondent, in any event, failed to fairly
and in good faith represent Nesler, Robbins, and other
employees because of their lack of membership in Re-
spondent's union or because of other invidious reasons,
all in violation of Section 8(b)(l)(A) and/or 8(b)(2) of the
Act.
B. Background
At all material times, Respondent, Local 1701, IBEW
(herein sometimes called the Union) has had collective-
bargaining relations as the statutory representative of
"inside construction employees" of Dynalectric Compa-
ny in Owensboro, Kentucky, herein sometimes called the
Company, through a multiemployer unit represented in
collective bargaining by Owensboro Division, Southern
Indiana Chapter, NECA, Inc. NECA, Inc., is the Na-
tional Electrical Contractor Association and there is no
dispute that Dynalectric a member of NECA has assent-
ed to the several collective-bargaining agreements nego-
tiated between NECA and the Union. In particular, the
present collective-bargaining agreement between NECA
and the Union was executed and effective since in or
about June 1978 and runs through May 31, 1981.
The pertinent provisions of this collective-bargaining
agreement are:
(1) A grievance procedure (sec. 1.05-1.09). This griev-
ance procedure, inter alia, provides, and evidence at the
hearing disclosed, that "All grievances or questions in
dispute" under the agreement are adjusted by meetings
of the Union business agent and a representative of
NECA on an informal basis and thereafter, pursuant to
sec. 1.06-1.07, in the event that informal discussions do
not resolve the issue, by reference to an established labor
management committee ordinarily consisting of three
representatives of the Union and three of the several em-
ployers. The contract requires that, on the application of
either party, the labor management committee must meet
within 48 hours after notification of a dispute. By section
1.07, decisions of the labor management committee
(which consists of a quorum of two members from each
side) must be by majority vote. By section 1.08 and 1.09,
the final step of the grievance procedure, in the event
that the labor management committee fails to agree or to
adjust any dispute or matter, the issue must be referred,
on application of any party, to the Council on Industrial
Relations for the Electrical Contracting Industry, herein
CIR, for final and binding adjudication. This CIR meets
in Washington, D.C.
(2) Section 2.05 contains a maintenance of membership
requirement for existing employees for continued em-
ployment and a 31-day requirement of union membership
for new employees.
(3) In section 3.28, the agreement provides that a ter-
minated employee shall be given a termination notice
stating the reason and date of termination and whether
the employee is eligible for rehire on the job or in the
shop from which he was terminated. Further, it requires
that it is the responsibility of the employee's immediate
supervisor to complete the termination notice. Copies of
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such termination notice must be supplied to the Union
and the employee upon termination. The grievance pro-
cedure provides that any terminated employee who be-
lieves himself discriminated against may file a written
grievance with the union business agent within 48 hours
after the workday on which he was terminated (sec.
3.28(d)).
Finally, the agreement discloses, and the parties stipu-
lated, that article VI establishes an exclusive hiring hall
for the referral of employees or applicants for employ-
ment to employers. The agreement further provides (sec.
6.02) that the Union is the sole and exclusive source of
referral of applicants for employment; that the Union
maintains an "out of work list" which denotes applicants
within certain employee applicant groups in chronologi-
cal order of the dates that they registered for employ-
ment (sec. 6.04); that referral will be on a nondiscrimina-
tory basis with regard to union membership (6.05); and
that the register of applicants shall be divided into four
"groups" the highest group being journeymen who, inter
alia, have passed an examination given by a local union
of the IBEW and employed for a period of at least I
year in the last 4 years under a collective-bargaining
agreement between the parties the second group being
applicants with 4 or more years of experience in the
trade who have passed a similar journeyman's examina-
tion given by a local union of the IBEW group three
being applicants having 2 or more years in the trade,
who reside in the geographical area of the contract and
have been employed for at least 6 months in the last 3
years in the trade under a collective bargaining between
the parties and group four, all applicants for employment
who have worked at the trade for more than I year. I All
applicants must reregister every 30 days in order to hold
their position within the group.
By virtue of section 6.07, employees must advise the
Union of the number of applicants needed; applicants are
referred out on the basis of their position in the groups.
It also provides that an applicant rejected by an employ-
er is returned to his group.
By virtue of section 6.08, if the registration list is ex-
hausted and the Union is unable to refer applicants
within 48 hours of the employer's request, the employer
is free to obtain applicants without using the hiring hall.
In such case, however, employees hired outside the
hiring hall referral procedure have the status of "tempo-
rary employees." Upon hiring a "temporary employee,"
the employer must notify the Union promptly of the
hiring of such "temporary employee" and give the names
and social security numbers of such employee. Further-
more, section 6.08 provides that the employer must re-
place (but need not terminate) any such "temporary em-
ployee" as soon as a registered applicant for employment
is referred to him under the referral procedure. The par-
ties agree that a referred employee, once employed, re-
gardless of both the group from which he was referred
and his union affiliation, if any, may not be replaced by
another referred employee, regardless of such other em-
ployee's group placement.
The lawfulness of these "groups" in granting referral priority is not
in issue herein See Saih Electric (iCompany, 248 NLRH 669, fn 3 (1980).
Under section 6.09, the parties created an "Appeals
Committee" composed of a member appointed by the
Union, a member appointed by the employer, and a
public member appointed by these two members. The
function of the appeals committee is to decide any com-
plaint of an employee or applicant for employment aris-
ing out of the administration by the Union of the referral
system or the groups which are created under the agree-
ment. 2
It might be noted that the existing collective-bargain-
ing agreement (J. Exh. 1) was executed on behalf of the
Employer by William N. Cooper, chapter manager for
NECA and Woodson Sosh, vice president of Dynalec-
tric. The agreement was executed on behalf of the Union
by William Harold Baggett, business agent of the Union.
C. The Hiring of Temporary Employees by
Dynalectric
During the summer of 1978, Dynalectric, the largest
electrical contractor in the Owensboro area, was en-
gaged in the construction of a large power plant about
35 miles from Owensboro, Kentucky, sometimes known
as the Sebree job, with as many as 60 of its electricians
employed at the site at one time. According to Dynalec-
tric's vice president, Woodson Sosh (a witness called by
the General Counsel), in the summer of 1978, Dynalec-
tric needed even a larger number of electricians and had
a call into the union hiring hall to supply it with more
employees. The Union had insufficient employees availa-
ble for referral and the Company was forced to advertise
in local newspapers for electricians.
Employees of Dynalectric hired in the summer of 1978
credibly testified that although they were hired by the
Company pursuant to its advertisements in the newspa-
pers they first sought registration at the union office and
hiring hall. Upon their requests at that time to sign the
registration book for future referral by the Union, Union
Business Agent Harold aggett would not let them sign
the book, telling them that he had registrants for any
jobs he could refer them to. However, he told these non-
union applicants that he heard that Dynalectric was
hiring and that they should go there.3 Baggett, refusing
one such applicant (Thorpe), asked if he was a union
member. Thorpe said he was not.
In any event, in the summer of 1978, these nonunion
applicants were lawfully hired "off the street" by Dyna-
lectric Vice President Woodson Sosh and by Supervisor
Herb Sorg. At the time of their first employment with
Dynalectric, Sosh told them that they were "temporary
employees" and could therefore be replaced by "union
members" who might be thereafter referred out of the
hiring hall.
The complaint alleges no unlawfulness i an, term of the collective-
hargalling agreement
:' At this time. Dylnalectric had a call in for employees at the union
hall It should b e noted. liho eser, that there is no allegation in the com-
plaint of unlawful discriminatory action by the Union in he summer of
1978 nor, i particular are the acts of Baggett in refusing, in the sulmer
of 1978, to register nonmembers in the hiring hall alleged as unfair labor
practices. The 6-month (Xb) period dates back only to acts in or after
December 1978
822
ELECTRICAL WORKERS, LOCAL 1701
In the summer and fall of 1978, Sosh employed more
than 40 of these "temporary employees" who were not
"referred" and found the majority of them to be superior
to employees who had been previously referred out of
the hiring hall. Apart from the problem of employee ab-
senteeism which Sosh found common to all employees,
he found both costly and annoying the practice of re-
ferred employees of working a few days and then quit-
ting. These referred employees thus caused Dynalectric
production problems endemic to an unstable work force.
By contrast, according to Sosh, the "nonunion," tempo-
rary employees were more desirable since they did not
leave the job after a few days but gave Dynalectric rela-
tively steady performance. Sosh therefore found the tem-
porary employees, at least in this regard, to be superior
to applicants for employment referred out of the hiring
hall and characterized the referred employees' practice
of quitting employment after 2 or 3 days as "disruptive."
Sometime immediately before February 1, 1979, with
the temporary employees having satisfactorily worked
for Dynalectric in the period June 1978 through January
1979, Sosh discussed his preference for temporary em-
ployees and his dissatisfaction with the performance of
referred employees with NECA Manager William N.
Cooper. In addition to being generally unhappy with the
performance of the referred eaployees, Sosh testified that
his conversation with Cooper was precipitated because a
few days before February 1, 1979, an applicant for em-
ployment, referred out of the hiring hall, reported for
work to replace a temporary employee. The Dynalectric
supervisor at the jobsite had had prior experience with
this applicant and was dissatisfied with his performance.
Notwithstanding that the collective-bargaining agree-
ment (sec. 6.03) gives the employer the right to reject
any applicant for employment, for reasons not disclosed
on the record, Respondent was required to pay the appli-
cant a full day's pay notwithstanding that it rejected him
as an employee. 4
In view of Sosh's being forced to pay a day's pay,
Dynalectric's problem of perhaps facing further unsatis-
factory referred applicants and the necessity of, in prac-
tice, terminating the otherwise satisfactory "temporary
employees," he accepted the advice of NECA Manager
Cooper to create a device to extricate Dynalectric from
these problems. He accepted Cooper's suggestion where-
by Dynalectric would "terminate" the temporary em-
ployees,5 thereby giving them the employment status
necessary to permit them to register, pursuant to the
terms of the collective-bargaining agreement, on the out-
of-work list in the hiring hall; and, since the union had
no registrants then on the list for referral, cause the erst-
while essentially nonunion "temporary employees" to be
referred from the hiring hall. Under the collective-bar-
gaining agreement, they would not then be replaceable
4 The parties agree that although the nonreferred temporar employee
must he "replaced" hb the referred applicant, the employer is ot obligat-
ed to actually discharge the temporary employee hut, under the collec-
tivr-bargaining agreement management rights clause, has the ption of
employing the temporary ecnplocce in another work itation
5 There is no dispute thai. at all material times and particularly n and
after Februar 7 there as n lack if work for the temporar emplos-
by future applicants, including union members, referred
out of the hiring hall.
Thus on or about February 1, 1979, Cooper composed
a letter addressed "To our 'Temporary Employees' " in
which he outlined the device by which these "temporary
employees" could become permanent employees of Dyn-
alectric (G.C. Exh. 14):
February 1, 1979
To our "Temporary Employees"
The Dynalectric-Griffin Company is indeed ap-
preciative for the fact you responded to our help
wanted ads, and other calls for electricians, to man
our work in I.B.E.W. Local Union 1701's geograph-
ical jurisdiction.
For the most part we have found the work per-
formance of our "temporary employees" to be ac-
ceptable.
The designation "temporary employee" is from
the referral portion of our labor agreement with
Local Union 1701. This agreement provides that
when Local Union 1701's Referral Administrator
(the Business Representative) cannot refer regis-
tered applicants to an employer, the employer may
hire from other sources. However, such hirees have
a temporary status and the employer is required
under contract terms to replace temporary employ-
ees with registered applicants when they become
available.
You are subject to replacement because you did
not register for employment referral through the re-
ferral system.
Your satisfactory service with us, plus your pre-
vious experience at the trade establishes your eligi-
bility for registration for referral. You must be un-
employed to be eligible to register for job referral.
This is why we terminate you.
We are terminating your services for the purpose
of establishing a basis whereon you are unem-
ployed. You can then go [sic] the Unions offices
and register in either group, three or four, for sub-
sequent employment referral. (Whether you are in
group three, or, four will depend on whether or not
you have worked under the terms of the labor
agreement for six (6) months in the last three years.)
The Company will have placed an order to the
Referral Administrator for applicants to be referred
to Dynalectric-Griffin Company's offices.
In view of the employment situation we fully an-
ticipate that you will be referred back to us.
When you have registered with the Administra-
tor for employment referral, are referred, and subse-
quently hired, you will have the same job security
as referrals from groups one or two. Tenure will
then depend upon, among other factors, your skill,
attitude. attendance and length of job duration.
Your current status subjects the Company to the
probability of costly job interruptions and inconve-
niences because when a registered applicant is re-
ferred we must employ the referred person (if quali-
fied) or failing to do so terminate temporary em-
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. The large number of temporary employees
we are employing subjects us to a cost factor we
must avoid, if at all possible.
Should you have any questions, please telephone
either me or our N.E.C.A. Association office.
Sincerely,
DYNALECTRIC-GRIFFIN COMPANY
s/s W. W. Sosh
W. W. Sosh
Vice President
P.S. Should you be rehired by us, or employed by
some other employer to whom you may be re-
ferred, your attention and your obligation is direct-
ed to Section 2.05 of the labor agreement.
SECTION 2.05. All employees who are members of
Local Union 1701 I.B.E.W. on effective date of this
Agreement shall be required to remain members of
Local Union 1701, I.B.E.W. as a condition of em-
ployment during the term of this Agreement. New
employees shall be required to become and remain
members of the Union as a condition of employ-
ment from and after the thirty-first (31st) day fol-
lowing the date of their employment or the effec-
tive date of this Agreement, whichever is later.
It must be noted that since the temporary employees
had worked less than I year for Dynalectric, and since
group IV, under the contract requires "work in the trade
for more than one (1) year," it does not appear how
Cooper or Sosh could accurately state that all such tem-
porary employees were qualified to register at least in
group IV. See paragraph 5 in the General Counsel's Ex-
hibit 14, above.
The Events of February 7, 1979
Baggett credibly testified that in January 1979 Sosh
had requested 10 or more employees and that the union
had applicants ready for referral and in fact had partially
filled that request when Sosh abruptly canceled the bal-
ance of the request. On February 7, 1979, according to
Baggett, he had men registered and available to go to
work but could not recall the number. 6 On that day, he
received a telephone call from Sosh requesting 15 em-
ployees and Sosh thereafter asked Baggett to visit him at
Dynalectric which Baggett did. At or about 1 p.m., Sosh
handed Baggett a copy of the above Cooper-inspired
letter (G.C. Exh. 14). When Baggett read the letter and
its proposed action, he requested Sosh not to take this
action because it would "mess up" their relationship.
When Baggett suggested that Sosh reconsider, Sosh told
him that the action was probably already underway.
Baggett admitted that Sosh "had him in a box" and Sosh
6 Records of hiring hall registration (G.C. Exhs. 4, 7, 8, and 9) for the
four groups appear to show, in group I, two registrants of February 6,
both referred out to jobs on February 8 (G.C Exh. 7); in group 11, none
(G C. Exh. 8); and in group IV, none (G.C Exh. 9). The submitted
record for group 111 (G.C Exh. 4) does not show the registrations before
February 10 and this is not useful in calculating the number of applicants
registered on or before February 7 who were ripe for referral on Febru-
ary 7. It seems clear, on this record, that the hiring hall had few regis-
trants available for referral on February 7, 1979, when Baggett and Sosh
were speaking
asked him how it felt. When Baggett told him that he
thought that Sosh would regret it, Sosh said that his
action stood. At that time, Sosh said that he needed an
additional 25 employees to replace the total of 33 tempo-
rary employees who he was going to terminate. Baggett
told Sosh he would need a little while to think over
what action he would take.
Meanwhile out at the Sebree job, on February 7, 1979,
Respondent's supervisors (Dynalectric's supervisors, in-
cluding foremen, are all members of Respondent) were
distributing copies of the Cooper-inspired letter (G.C.
Exh. 14, above) to the temporary employees. Thus, on
February 7, some 33 temporary employees were served
by their supervisors and foremen with the above termi-
nation letter which informed them that the only reason
they were being terminated was to make them eligible
for referral and instructed them to go to the hiring hall
for registration and referral in order to become "re-
ferred" employees and thus not vulnerable to replace-
ment by future applicants referred out of the hiring hall.
Nesler and other employees testified that they not only
received the termination letter (G.C. Exh. 14) but also a
termination slip signed by the foreman and the shop ste-
ward (in accordance with the terms of the collective-bar-
gaining agreement above).
There is a dispute, however, as to whether the termi-
nation slips, all of which bear the date February 9, 1979,
were actually handed to the employees out at the jobsite
on February 7 with the letter, or whether they, in fact,
received them in Dynalectric's office on February 9.
Some employees, including Nesler and Payne testified,
with particularlity, that they received the February 9 ter-
mination slips on February 7 along with the February 1
termination letter. Respondent's shop steward on the job,
Richard B. Thompson, testified credibly that he signed
all the slips on February 9 and not on February 7 (G.C.
Exhs. 27, 29, and 31, for example); and that the tempo-
rary employees had already been terminated by the time
he signed the slips. The General Counsel's witnesses, on
the contrary (Nesler, Payne), testified that, on February
7, they received the termination slips, dated February 9,
along with the termination letter dated February 1. The
reason for this, they said, is that they received a full
day's pay for February 7 (though termination occurred
in the early afternoon) and the termination slip would be
used at the union hiring hall, which was closed on Feb-
ruary 8 (Thursday), only on the date appearing when
presented, February 9. In view, however, of Sosh's testi-
mony that he caused the termination slips to be typed
and distributed after Baggett's February 8 grievance was
filed, infra, it seems clear that the termination slips were
not distributed to employees until February 9. In view of
the disposition I make of this case, it is unnecessary to
resolve the issue of when the termination slips were actu-
ally given to employees and when they used them al-
though it has a minor adverse effect on the credibility of
the General Counsel's witnesses who claimed they had
the slips on February 7. Sufficient to say that each termi-
nation slip, dated February 9, bears on its face not only
the date of termination and the name of the employee,
but, under the section "reason for termination," the state-
824
ELECTRICAL WORKERS, LOCAL. 1701
ment "as per letter." It is undisputed that this latter
quoted phrase refers to the reasons for termination con-
tained in the Cooper-inspired letter (G.C. Exh. 14) dated
February 1, 1979, above
Late in the afternoon of Wednesday, February 7,
Charles Payne and other erstwhile temporary employees
went to the union hiring hall and found no one there
except the office clerical. They left. As above noted, the
hiring hall is closed on each Thursday, and the next day,
February 8, was Thursday and the hall was closed.
The Events of February 8, 1979
On February 8, 1979, Baggett personnally served on
Sosh a union grievance filed on behalf of the temporary
employees who had been "terminated" by Dynalectric.
The grievance alleged violation of section 2.15 of the
collective-bargaining agreement, that the employees
were not discharged for proper cause; and of section
6.06, a violation of the hiring hall and the referral system
in that Dynalectric was attempting to "... circumvent
the referral procedure" (G.C. Exh. 3).
The Events of February 9, 1979
The events of Friday, February 9, 1979, are derived
principally from the credited and uncontradicted testimo-
ny of the General Counsel's witnesses Woodson Sosh
and Charles Payne. 7 Payne's vivid recollection of events
was especially spontaneous, specific, candid, and de-
tailed.
Upon prior arrangement, at or about 7 a.m. on Friday,
February 9, Payne, accompanied by terminated tempo-
rary employee Kenneth Byrne, arrived at a local Owens-
boro restaurant, where he found waiting 15 or 20 other
temporary employees. Within three quarters of an hour,
NECA Manager Cooper arrived and employee Wilborn
introduced Cooper to the group as ". . . this is the man
that is behind all this." They pushed tables together and
held a meeting. First introducing himself as the NECA
representative, Cooper told the temporary employees
that they should go as a group to the hiring hall and that
they should request to sign the registration book. In re-
sponse to employees who questioned why he believed he
could get them the right to sign in the registration book,
Cooper, reading from the collective-bargaining agree-
ment, assured the employees inter alia, that they had the
right to referral and to become union members (he read
from sec. 2.05, the union-security clause, regarding the
fact that "new employees shall be required to become
and remain members of the Union as a condition of em-
ployment on or after the 31st day following the date of
their first employment). Payne said that, in addition,
Cooper said that they would not have to take the jour-
neyman's test because they were on the job for 30 days. 8
I In his br., p. 16, the General Counsel sought, for the first time, o
disavow or impeach Payne's testimony, the testimony of his own w itness
: Entry into group III requires 2 years of experience in the trade and 6
months employment in the last 3 years under the Local's collective-bar-
gaining agreement Thus, the parties agree that temporary employees
who worked 6 months at the Sebree job and who otherwise had 2 or
more years lof experience of the trade ere qualified filr group IIl
Group IV requires only that the applicants have worked at the trade for
more than I year There is no contract requirement for entrance into
At the end of the 25-minute meeting, Cooper told the
employees that they were all to go to the hiring hall and
that he would join them there later, but first he had to
visit the Dynalectric office. He told them that they
should try and sign the registration book in the union
hiring hall.
When this group of former temporary employees ar-
rived at the hiring hall, the union business agent, Baggett
was not there. They waited for Cooper. Baggett arrived
at or about 9 a.m. and Cooper arrived at or about 9:45
a.m. After Cooper and Baggett entered Baggett's private
office for about 10 minutes of conversation, Cooper
emerged and told the employees they should each re-
quest to sign the registration book (the "out of work"
book) and each of them should request the right to take
the journeyman's test. They all requested of Baggett the
right to sign the out-of-work book but Baggett refused:
told them that none of them had been properly terminat-
ed; that their termination slips, "as per letter." were inad-
equate; that they were still employees of Dynalectric;
that he had filed a grievance against Dynalectric; and
that they should sign their names to a pad of paper
authorizing him to file individual grievances on their
behalf. The employees protested, telling Baggett that
they did not want him to file any grievance against Dyn-
alectric requesting their reinstatement with backpay;
rather, they said they wanted to sign the out-of-work
book. Some of the employees had already signed the pad
of paper authorizing grievances, thinking that it was
merely an indication of their presence at the hiring hall
that morning.
Baggett testified that when these employees and
Cooper first arrived at his office at or about 9 o'clock
and requested to sign the out-of-work book, he refused
to permit them to register because they had only the
Cooper-inspired termination letter and did not have the
termination slip itself (signed by the foreman who termi-
nated them and the job shop steward). Shop steward
Thompson testified that () he thought he signed the ter-
mination slips of these temporary employees around
lunchtime and he was definite, as above noted, that (2)
he signed the slips on February 9. This would be consist-
ent with the fact that the termination slips were signed at
least late in the morning of February 9, prior to which,
according to Baggett, he had told Cooper and the other
temporaries, that they, at that time, did not have the req-
uisite termination slips required by the collective-bargain-
ing agreement. It would also be consistent with Sosh's
testimony. As above noted, however, it is unnecessary to
resolve this issue in view of the disposition I make of the
case.
In any case, Baggett told the employees not only that
they were improperly terminated, and that he had al-
ready filed a grievance, but that they were being "used"
by Dynalectric and that they should contact the National
Labor Relations Board to file a charge against Dynalec-
tric.
group Ilttl or group IV that the employee take the journeyman's test or be
on the ijoh for 30 days It is possible this latter element demonstrated con-
fusion with the union-security clause Whether this was Payne's or Coo-
per's conifusion is difficult to estimate since Cooper did not testify
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Cooper's direction, all the temporaries then left the
hiring hall and went to the Dynalectric office. Cooper
told them that he was going to have a letter typed (me-
morializing Baggett's refusal) and would bring the letter
back to the hiring hall to be presented to Baggett. When
the employees returned to the Dynalectric office, Cooper
shortly thereafter presented each of them with the letter
which he drafted for their respective signatures. Each
employee was to execute this letter addressed to Baggett
with his signature, date, and time, and note the proper
group in which he was allegedly suppose to qualify. The
letter (Resp. Exh. 16) is as follows:
Mr. Harold Baggett
Referral Administrator
1015 East 15th Street
Owensboro, Kentucky 42301
Dear Mr. Baggett:
On this date, February 9, 1979, at approximately
8:30 A.M., I attempted to register for employment
referral in the office of Local Union 1701 I.B.E.W.,
1015 East 15th Street, Owensboro, Kentucky. I
spoke personally with Business Representative,
Harold Baggett. He refused to allow me to register
in Group ( ). This is the group I am entitled to reg-
ister in.
I hereby request a meeting of the Appeals Com-
mittee to act on my complaint that I have been im-
properly denied the right to register by the Referral
Administrator, Harold Baggett.
The rebuffed employees then, with Cooper, returned
to the union hiring hall at or about 11:15 a.m. and pre-
sented their executed letters to Baggett. Cooper told
them to get applications for union membership from Bag-
gett while they were still in the hiring hall.
Payne credibly testified that in conversations with the
temporary employees in the hiring hall, Cooper told
them to lie about their trade experience, thus insuring
their inclusion in a higher referral group. Payne recalls,
in particular, that temporary employee Charles Askins
told Cooper that he had little experience but Cooper told
him and other employees to lie about past trade experi-
ence because it would be difficult for the Union to check
it.
Payne further recalls that at 4:30 p.m. of the same day,
the temporary employees and Cooper thereafter returned
to Dynalectric and met in Woodson Sosh's office. At
that time, again, Cooper advised the employees to lie
about their prior experience in order to ensure their en-
trance into group II1 or IV and Woodson Sosh laughed
about the matter noting that the Union could do nothing
about it and could not check out their work experience.
Cooper failed to testify. Sosh testified and failed to deny
this testimony.
Earlier than this February 9 conversation in Sosh's
office, Cooper, Sorg, and Sosh, according to Payne's un-
contradicted testimony, decided that the temporary em-
ployees needed a lawyer, and, in particular, needed a
lawyer to enjoin the Union's refusal to register and refer
them. Sosh first telephoned his personal lawyer who re-
ferred him to Owensboro attorney, Robert L. Gwin.9
While awaiting Gwin's appearance in the office, Payne
asked Sosh and Cooper who would pay the anticipated
heavy attorney fee and Sosh told him not to worry about
it; that, if necessary, Sosh would pay the fee out of his
own pocket. Cooper then added that if $400 or $500
"fell" out of his pocket, there was nothing to prevent the
temporary employees from picking it up. Payne testified
that no one ever asked him or, to his knowledge, any
other employee, to pay Gwin's fee.
By 4:30 p.m., on February 9, Attorney Gwin arrived
and employees Nesler, Payne, and Byrne executed a re-
tainer for Gwin, the retainer being dated February 12,
1979. The retainer was then taken from Sosh's office into
a nearby conference room where the majority of the
temporary employees remained. They signed the retainer
in the conference room. 10
Later that evening, at or about 7:30 p.m., temporary
employee Kenneth Byrne telephoned Payne and told him
that Cooper wanted to speak to him. Thereafter, Cooper
telephoned Payne and told him that he had an idea
which he should have thought of before and that is that
the employees, rather than being terminated by Dynalec-
tric, should "quit." Payne agreed and said that he had
mentioned the same idea to Byrne earlier that day.
Cooper then directed Payne to meet Sosh early the next
day, February 10, and to get a "quit slip" from Sosh.
Payne agreed.
By 8:30 a.m. the next day, Saturday, February 10,
Payne and Byrne were in Sosh's office. Payne told him
of the "quit" conversation with Cooper the previous eve-
ning ad Sosh agreed that that was the proper proce-
dure. At that point, Sosh signed and gave Payne a quit
slip. Sosh cautioned Payne and Byrne that Baggett
would probably not accept the "quit" slip because it had
not been signed by the foreman directing the separation
of employment, a condition required by the collective-
bargaining agreement. At or about 9:30 a.m., Payne and
Byrne went to the hiring hall. There is no dispute that at
the time that they entered the hiring hall, there were no
temporary employees there. In any case, they entered
Baggett's private office and showed Baggett the "volun-
tary quit" slips. To their surprise, he told them he would
permit them to sign the register after they executed a
union form. Baggett handed each of them a document
which had been in the Union's possession prior to this
time but had never been used, an "Application for Refer-
ral" (Resp. Exh. 18). The document was to be executed
before they would actually be referred and they left the
office in order to execute the document.
On Saturday, February 10, when Payne and Byrne re-
turned to Baggett's office with the completed "Applica-
tion for Referral" forms, Baggett told them again that
" The General Counsel disingenuously fails to refer (GC. br., p 5) to
the source of Gswin's relationship to Nesler, Robbins, and the other tem-
poraries. His reference to merely ". their attorney Charlee Gwinn
[icl]" is not helpful.
'U On Tuesday, February 13, 1979. Gwin filed an application in a Ken-
tucky state court for an injunction, inter alia, directing Haggett and the
Union to register the temporary employees. There is no disagreement
that this state court proceeding was then moved to the United States Dis-
trict Court and there dismissed fgr want of jurisdiction
826
ELECTRICAL WORKERS, LOCAL 1701
they were doing a wrong thing; that they were being
"used"; but he nevertheless permitted them to sign the
registration book and gave them referral slips back to the
Dynalectric job at Sebree. Baggett testified that there
were no other temporary employees in the hiring hall at
that time but only oldtime union members who ordinari-
ly came there to drink coffee on Saturday mornings. The
testimony of the other General Counsel's witnesses indi-
cate that, in fact, there were many other temporary em-
ployees then present at the hiring hall who had "volun-
tary quit" slips and who requested the right to register
and be referred out. Indeed, their testimony is that they
saw Payne and Byrne, both excited, leave Baggett's
office saying that they had referral slips. They testified
that Baggett refused to permit them to register at that
time. Baggett denies that there were any other tempo-
rary employees there. Payne at first testified that he saw
no temporary employees in the waiting room of the
hiring hall when he left with his referral slip, but thereaf-
ter admitted being so excited that he was not sure who
was there. In view of the disposition I make of this case,
however, it is unnecessary to decide whether Baggett re-
fused other temporary employees with "quit slips" the
right to register and be referred at the same time giving
that right to Payne and Byrne.
The Events of Monday, February 12, 1979
In the morning of Monday, February 12, about 25
temporary employees returned to the hiring hall and
there presented their voluntary quit slips to Baggett. All
were allowed to sign the registration book and all were
given the applications for referral forms at the time that
they signed the registration book. Some of the temporary
employees executed the applications for referral and re-
turned to the hiring hall in the late afternoon. Others did
not return with the executed forms until the next day,
Tuesday, February 13. In any event, the employees were
told that their applications for referral were accepted
and that Baggett would be in touch with them.
The Grievance Meeting of Wednesday, February
14, 1979
Pursuant to Baggett's February 8 grievance filed with
Sosh, a grievance meeting was held at the Dynalectric
premises commencing in the mid-morning of Febrary
14, 1979. As a result of an all day grievance session, the
parties agreed: (a) that the Union would waive further
processing of the applications for referral; (b) Baggett
would refer the temporary employees to work out of the
hiring hall; (c) that the Union would waive any claim for
backpay on behalf of the "terminated" temporary em-
ployees; and (d) the Union would attempt to get mem-
I Respondent's records (G.C Exh. 4) show that registrants who re-
turned their executed referral applications on February 12 and 13 (other
than Payne, Byrne, and Thorpe who were referred out on February 10)
were referred back to Dynalectric effective February 14 and 15. The re-
cords, apparently demonstrating actual referrals as early as February 12
for jobs on February 14 and 15. are not necessarily consistent with the
fact, infra, that it was pursuant to a Fehruary 14 grievance meeting settle-
ment that aggett referred the temporary employees out on the next day.
February 15
bership for the temporary employees in a nearby local of
the IBEW in Bolling Green, Kentucky, Local 828.12
As a result of the grievance meeting settlement, Bag-
gett opened the hiring hall on Thursday, February 15,
1979, a day on which the hiring hall is normally closed,
and referred out all the temporary employees who had
signed the referral book on February 12 and 13.
Discussion and Conclusions: Operation of the
Hiring Hall
Agreements establishing exclusive hiring halls which
do not contain unlawful provisions on their face are not
unlawful within the meaning of Section 8(b)(l)(A) and
(2) of the Act. Indeed, this is the express holding of
Local 357, International Brotherhood of Teamsters, Chauf-
feurs. Warehousemen and Helpers of America [Los Angeles-
Seattle Motor Express] v. N.L.R.B., 365 U.S. 667
(1961). t
The instant agreement, with its nondiscriminatory pro-
cedure giving preference to applicants referred out of the
hiring hall, is not the subject of the complaint. The
burden of proof is on the General Counsel to prove un-
lawful operation of such a hiring hall and Respondent
may defend on the ground that it was merely policing
and enforcing the terms of the otherwise lawful agree-
ment. See Boston Cement Masons and Asphalt Layers
Union No. 534, a/w Operative Plasterers and Cement
Masons International Association. AFL-CIO (Duron Ma-
guire Eastern Corp.), 235 NLRB 826 (1978).
The gravamen of the pleadings (par. 5(b), (c), and (g))
and the General Counsel's proof is that Respondent
failed and refused to register or refer the temporary em-
ployees because they were not members of the Union.
Baggett testified without contradiction that he refused to
register or refer them because they were not properly
terminated by the employer in that they did not have the
correct termination slips at the time he refused to regis-
ter them and that, in any case, his motivation at all times
was to support and maintain the otherwise lawful hiring
hall procedures as against Dynalectric's attempt to cir-
cumvent them. The testimony of the General Counsel's
witness, alleged discriminatee, Charles Payne, a tempo-
rary employee, and of Woodson Sosh, vice president of
Dynalectric, generally support Respondent's position. t 4
12 The Union was ultimately unsuccessful in gaining membership for
the temporary employees in the Bolling Green IBEW Local.
"' I have already observed that the Board rule, Member Jenkins dis-
senting, permits preference in referral based on past experience with em-
ployers signatory to a contract between the parties. Sachs Electric Compa-
ny, 248 NLRB 669 (1980); Interstate Electric Company. 227 NLRB 1996
(1977). Again, the lawfulness of this contractual priority is not here in
issue
l I credit Nesier's testimony that in late June 1978, before Dynalectric
hired him, he sought registration and referral from Baggett at the union
hall. I further credit Nesler and the other General Counsel's witnesses
over any Baggett denial that Baggett refused to let Nesler and other simi-
lar applicants (Thorpe, Hawkins) register in July 1978 and suggested that
they seek direct (i e, nonhiring hall referred) employment from Dynalec-
tric and that when Baggett refused registration he told them that registra-
tion would be futile because there were registrants ahead of them on the
out-of-work list. If there were so many registrants on the books that Bag-
get refused Nesler and other noinunion applicants the right to register, it
is difficult to beliesve such registrants were not referred out, in the
Continued
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodson Sosh testified, and I find, that his motivation
to terminate the employment of the temporary employ-
ees grew out of his dissatisfaction with the comparatively
poor performance of employees referred out of the
hiring hall and his desire to create permanent employees
out of the temporary employees which he hired outside
the hiring hall in or about the summer of 1978. Further,
his motive in doing so was to maintain a corps of steadi-
er employees that he was satisfied with as against the an-
ticipated referral out of the hiring hall of employees who
were "disruptive" in that they tended to quit after 2 or 3
days employment. Nothing the Union did up to that time
disclosed an intent to bump the temporaries, according
to Sosh. With plenty of work on hand for these tempo-
rary employees, Cooper and Sosh manufactured a device
and scheme to circumvent the terms of the collective-
bargaining agreement to which they had agreed but
which they found unsatisfactory. The scheme was to
"terminate" (or thereafter to permit the "voluntary quit"
of) employees in order to place them on the hiring hall
register, get them referred back out to Dynalectric (at a
time when there were no employees on the Union's
hiring hall out-of-work register) and thereby "cement in"
the temporary employees as permanent employees under
the collective-bargaining agreement under whose terms
these erstwhile temporary employees, once referred,
would thereafter not be subject to replacement by subse-
quently referred applicants out of the hiring hall. Baggett
rightfully believed that this scheme and device was one
designed to circumvent the hiring hall and to give prece-
dence in employment and freedom from replacement to
these temporary employees contrary to the terms of the
collective-bargaining agreement.
I conclude that the presence or absence of any particu-
lar contractual nicety, such as properly executed quit or
termination slips, insisted on by Baggett on February 9
as a reason to preclude registration, is a matter of little
consequence. The only necessary conclusion, a conclu-
sion which I draw from the uncontradicted evidence of
the General Counsel's own witnesses, Woodson Sosh and
Charles Payne, is that Dynalectric, through Sosh and
Cooper, created a device to circumvent and undermine
the otherwise lawful hiring hall procedures and the col-
summer of 1978, to employers forced to advertise in newspapers because
of the lack of electricians. In short, I conclude that Baggett refused to
permit registration in order to insure that such applicants, not referred,
would remain temporary employees of Dynalectric, thus subject to re-
placement by applicants referred out of the hiring hall, under the terms
sec. 6.08 of the collective agreement. Nesler and the other temporaries
being nonmembers, I would find Baggett's June 1978 actions clearly suffi-
cient to support an inference of subsequent discriminatory motivation. I
cannot, however, transfer such inference on a per se basis to Baggett's ac-
tions and reactions to Cooper's and Sosh's scheme in Fcbruary 1979
Thus, while I am fully aware that Baggett, to say the least, might not go
out of his way to aid nonmember electricians, he did have an independent
right to support and enforce the terms of the collective-bargaining agree-
ment quite apart from any earlier unlawfully motivated acts. In the ah-
sence of evidence demonstrating that his reactions in February were a
mere continuation of his June actions. I do not believe that evidence sup-
ports drawing such an inference. On this record, with NECA's and Dn-
alectric's patent object of circumventing or destroying the hiring hall I
am unwilling to infer that Baggett was even partially motivated by h-
month old unlawful considerations in his February 1979 responses to
Cooper and Sosh That he may have been "happy" in protecting the
lawful hiring hall is not a legal detriment.
lective-bargaining agreement which manifests those pro-
cedures. Observance of contractual niceties, in this case,
does not effect Respondent's statutory right. To permit
the effectuation of such a device in a Board proceeding
and to find that any particular act or failure to act by
Respondent constituted a violation of 8(b)(l)(A) and (2)
of the Act in its refusal to permit registration and referral
pursuant to Dynalectric's scheme to undermine the
hiring hall and the collective-bargaining agreement
would be to exalt from over substance and to abuse the
Board's processes. Indeed, absent preponderant, extrinsic
evidence of Baggett's unlawful motivations in February
1979, whatever injury resulted to the temporary employ-
ees might well be laid at Dynalectric's door under Sec-
tion 8(a)() and (3) of the Act, for terminating them be-
cause of their "temporary," i.e., nonunion, status and
Dynalectric's desire to have them become union mem-
bers and change their employment status contrary to the
terms of the collective-bargaining agreement. That, how-
ever, is a matter on which I need not pass. I conclude
only that the evidence shows that Respondent was fully
justified in refusing to register and refer out these tempo-
rary employees when to do so would be to necessarily
fail to observe the terms of the collective-bargaining
agreement and to give referral preference to the tempo-
rary employees (where there was no lack of work for
them at the time of termination) over those who might
thereafter be legitimately on the referral list and out of
work, all because of a device and scheme created by
Dynalectric and its NECA agent in order to thwart the
ordinary, proper, and otherwise lawful exclusive hiring
hall. In the presence of evidence that, outside the 10(b)
period, Respondent was unlawfully motivated in refusing
the register and refer nonunion applicants, but in the ab-
sence of evidence, as here, demonstrating Baggett's or
Respondent's unlawful motive to register or refer them
in February 1979; and, indeed, in the presence of uncon-
tradicted evidence showing a scheme by Dynalectric to
circumvent the contract, and Respondent's reasonable
steps to prevent fulfillment of that scheme, I conclude
that Respondent acted lawfully, and was merely policing
and enforcing the collective agreement, Boston Cement
Masons, supra, and that it did not violate Section
8(b)(l)(A) and (2) as alleged in section 5(b), (c), and (g)
of the consolidated complaint in refusing to register and
refer out nonunion temporary employees in February
1979.
In reaching the above conclusions, I am especially
mindful of International Association of Bridge, Structural,
etc., Iron Workers, Local 75, AFL-CIO (Bob C. Keith, an
Individual Proprietor d/b/a Tyler Reinforcing), 232 NLRB
1194 (1977), enforcement denied 583 F.2d 1094, 1099
(9th Cir. 1978); see General Teamsters Local 959 State of
Alaska, etc. (Northland Maintenance), 248 NLRB 693
(1980). There, the Board found an 8(b)(1)(A) and (2) vio-
lation on the union's motivation in refusing to refer an
employee (Franko), not in reliance on the lawful hiring
hall contract, but on union animus based on invidious
considerations. The Board found this consideration dis-
positive also noting a disparate application of the con-
tract. The court of appeals denied enforcement, rejecting
828
ELECTRICAL WORKERS, LOCAL 1701
the Board's delving into the employer's motivation since
the union was otherwise acting pursuant to the manda-
tory, not discretionary, terms of the contract in refusing
referral.
I am, of course, bound by the Board's view, Iowa Beef
Packers, Inc., 144 NLRB 615, 616 (1963). In the instant
case, as above, noted, however, I have concluded that
the evidence of Baggett's apparently illegal motive in
June 1978,15' of refusing to permit registration of non-
union applicants, did not carry over into his February
1979 refusal. By February, the Cooper-Sosh design to
undermine and obviate recourse to the normal workings
of the hiring hall gave Baggelt a lawful, supervening
reason to reject the registration of the nonunion, tempor-
aries, a reason on which he, in fact, acted. Each case
sails on its own bottom and I conclude that Baggett was
not unlawfully motivated in February 1979, whatever his
earlier actions in June 1978. Cf. Klate Holt Company, 161
NLRB 1606 (1966).
Allegations Relating to the Journeyman's Test
At the hearing as above noted, paragraph 5(d) of the
complaint, with the General Counsel's consent, was dis-
missed on Respondent's motion. That paragraph alleged
that Respondent refused to give nonmember employees
the journeyman's test, which test is a condition prece-
dent to referral preference under the collective-bargain-
ing agreement. There being no evidence in the record to
support such an allegation, I granted Respondent's
motion to dismiss.
There exists, however, a further allegation in the con-
solidated complaint, paragraph 5(e), that on or about
March 24, 1979, Respondent administered to nonmember
applicants a test, the journeyman's test, which was
"unfair and discriminatory in nature and grading." At
the conclusion of the General Counsel's case, Respond-
ent moved to dismiss this allegation as well but, the Gen-
eral Counsel having refused to consent to its dismissal, I
was obliged to reserve decision thereon. 6
At the hearing, the General Counsel admitted that
there was no evidence in the record with regard to
unfair grading. The evidence of record indicates only
that members and nonmembers took the test; that non-
members and members failed the examination on March
24; and that members from time to time passed the exam-
ination prior to March 24. The General Counsel's wit-
ness, Charles Payne, an electrician with considerable ex-
perience, took the test on March 24 with other members
and nonmembers and failed the test. He testified, without
contradiction, that the test was "fair" notwithstanding
his failure to pass the examination. On such uncontradict-
ed testimony and on the failure of the General Counsel
to adduce other evidence showing that the March 24,
1979, examination was in some way unfair, I recommend
that this paragraph, 5(e), be dismissed. In view of
Payne's testimony, the General Counsel's attempt to in-
troduce in evidence other examinations which would
'" Under Local Lodge 1424 v NL.RR. 362 U.S 411. 416 (1960), Bag-
gett's June conduct outside the l(Xh) period may he used to ascertain his
motive for action within the I()(b period
' Local Union No. 195, United .4 ssociuit)nl of Journeymen. etc (Stone &
Webster Engineering Corporation), 237 NL.RB 931 (1978)
show, perhaps, that the March 24 examination was more
difficult than the previous examinations became entirely
irrelevant. The irrelevancy stems from the fact that
Payne testified that the March 24 examination was
"fair." If that examination was "fair," then the nature of
the proper examinations would be irrelevant. Had Payne
testified to the contrary., then the prior examinations
might well be relevant to show, by comparison, some in-
vidious difficulty in the March 24 examination. But in
view of Payne's testimony of the fairness of the March
24 examination, I recommend that the allegation be dis-
missed in its entirety. 7
The Application for Referral Form and the Union's
February 8 Grievance
Paragraph 5(') of the consolidated complaint alleges
that on or about February 10, 1979, and thereafter, Re-
spondent required the nonmember applicants for referral
to complete the complex and and lengthy application for
referral questionnaire as part of their application for
membership, which questionnaire had not been previous-
ly required. Baggett's uncontradicted testimony demon-
strates that, although the questionnaire form existed prior
to February 10, he inaugurated its use among the "tem-
poraries" because he had heard rumors that the tempo-
rary employees were being encouraged to falsify their
prior work experience records in order to justify their in-
clusion in group III or even group IV on the register.
Thus Baggett testified that he inaugurated the use of the
form in order to check out the veracity of the regis-
trants. Rather than finding any discriminatory motive on
behalf of Respondent, I conclude that Baggett's use of
the questionnaire was fully justified in view of the un-
contradicted testimony that Cooper and Sosh recom-
mended and encouraged the temporary employees to fal-
sify their work records in order to gain access to the re-
ferral procedures and preferred contract groupings. The
General Counsel argues that the form was inaugurated to
impede the applicants from registering. I reject the argu-
ment and the assumption that Baggett heard of the sug-
gestions of falsification only when Crawford and Sosh
made them February 9. I therefore recommend that
paragraph 5(f) be dismissed in its entirety in that there
was no showing of any discriminatory motive in the use
of the form to exclude the temporary employees, but
rather to ensure the lawful operation of the hiring hall
by preventing intentionally false information from being
used by the temporary employees as a basis for gaining
preferred referral status, thereby placing them in an un-
merited advantageous position over other referral regis-
trants.
Thus, on my above findings and conclusions herein, I
recommend that paragraph 5, consisting of its subparts
(a) through (h), be dismissed in entirety.'8
7 Compare Local Lnion 633. United .4ssociaton of Journeymen and Ap-
prenricei of the Plumbing and Pipefitting Industry of U'nited States and
Canada, 4FL- CO (B d 14' Construcion Companv), 249 NLRB 67 (1980)
is The General Counsel misconstrues aggelt's testimony regarding
the use of the form ttis sole reason. clearly expressed. was due to an at-
temnpt i "circumvent the referral procedure There is nothing
"vague" or "unresponsive" in such a reply
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 6(a) alleges that, in violation of Section
8(b)(1)(A) of the Act, Respondent unlawfully sought to
file and process a grievance relating to the temporary
employees who were "discharged" on February 7, 1979,
despite the fact that the said temporary employees did
not desire such grievances to be filed and objected there-
to. In view of my findings that the Union was fully justi-
fied in refusing to register and refer these employees pur-
suant to the scheme and device of Dynalectric and
NECA Manager Cooper, I further conclude that Re-
spondent's attempt to counter this device by filing a
grievance on February 8, 1979, against Dynalectric for
having attempted to terminate these employees and seek-
ing their restoration in employment with backpay was in
no way a violation of Section 8(b)(1)(A) of the Act. I
therefore further recommend that Section 6(a) of the
consolidated complaint be dismissed.
The May 3, 1979, Discharges of the Charging
Parties and Respondent's Conduct With Respect
Thereto
The consolidated complaint alleges and Respondent
admits that on May 3, 1979, the Charging Parties, Larry
Nesler and Floyd Robbins, were terminated by Dynalec-
tric. The evidence shows and the General Counsel does
not deny that they were terminated because, contrary to
an outstanding and longstanding Dynalectric posted
work rule, they had failed to properly care for certain
Dynalectric equipment. Thus, the uncontradicted evi-
dence shows that Floyd Robbins and his workmate,
Larry Nesler, on May 3, 1979, failed to securely store
their one-half inch drill motor and that Foreman James
Hagen discharged both of them for that reason. Floyd
Robbins testified that Hagen said that both Nesler and
Robbins were responsible for the tools, whether or not
they were both present at the time that the tools were
supposed to have been properly locked away.
On May 4, 1979, Robbins and Nesler filed grievances
with Baggett and told Sosh of the event. Baggett told
them that he would be in touch with them in a few days.
Both of them signed the registration book as being out of
work. Baggett then communicated with NECA Manager
Cooper and a grievance meeting for May 8 was agreed
upon. Baggett investigated the grievances by talking
with the foreman (Hagen) and shop steward (Thomp-
son). Sosh also investigated the matter. Both Baggett and
Sosh concluded that the grievances were without merit.
On May 8, the labor management committee, pursuant
to section 1.05 of the collective-bargaining agreement,
was convened and followed its ordinary procedure in re-
solving the Robbins and Nesler discharges and the griev-
ances based thereon. In fact, Robbins and Nesler, neither
being union members, were individually called into the
committee meeting (composed of equal numbers of union
and employer nominees) and they gave their versions of
the discharges to the committee. NECA Manager
Cooper interrogated them individually before the com-
mittee and each was required to leave after giving his
version. Baggett took no position.19 The committee
19 It is not disputed that the record herein shows that, in the past, the
Union has followed the same procedure in grievances where union mem-
members were unable to agree on a solution and the
grievants were told to go home.
By mid-June, Baggett told Robbins that the committee
was still in deadlock on the solution of their grievances
and that he would be in touch with them. At or about
this time, Robbins had a conversation with Cooper in
which Cooper told him that the Company's position was
to put the employees back to work with a -week sus-
pension and that the Union refused this solution. Cooper
gave no reason for the Union's refusal.
There was a dispute in the testimony as to whether, at
the May 8 grievance proceeding, the Company's position
was to put the employees back without backpay or
whether in fact it urged that the parties agree to put the
employees back with the I-week suspension. It is undis-
puted, however, that, in a later grievance meeting be-
tween the Union and Cooper (not convened for the pur-
pose of the Robbins-Nesler discharges), Cooper insisted
that the record of that grievance session show that it was
the Employer's position that the employees be reinstated
with the -week suspension. Baggett testified that this
was the first occasion on which the Employer took that
position, and that the Employer's previous position was
that the employees be reinstated without backpay.
Baggett testified that, with regard to either of the
above Dynalectric positions, the Union refused to permit
such action. The Union refused to consent with regard
to the Company's position that the employees be reinstat-
ed without backpay, because, if no backpay was granted,
then the employees according to the Union had been
"terminated" and if "terminated" they must register at
the hiring hall and go through the hiring hall procedure
for further employment since other registrants would be
present on the out-of-work list. To permit their immedi-
ate reinstatement at that time would clearly interfere
with the regular operation of the hiring hall since out-of-
work registrants, already registered on the hiring hall re-
ferral lists, would be discriminated against if these termi-
nated employees were immediately reinstated ahead of
those on the referral lists. Baggett testified that if the
Employer desired to reinstate them with backpay then
the Union would be willing to waive any requirement of
registration in the hiring hall because the Union would
take the position that there was no real termination and
that the Employer's action was a "mistake" in view of
the Employer's willingness to give full backpay and rein-
statement.
With regard to the "alternate" Company position
(which, according to Baggett, first occurred on June 18
rather than in the May 8 grievance meeting), that the
Company reinstate Robbins and Nesler with a I-week
"suspension," the Union took the position that there was
no provision in the collective-bargaining agreement for
"suspension" but only for "termination." Baggett credi-
bly testified that, as in the above-described case of rein-
statement without backpay, to permit the Employer to
"suspend" an employee and then to recall him without
backpay would similarly be in violation of the ordinary
bers were disciplined (Hodgesi It also actively supported grievances of
nonmembers (Welborn). See the GC. Exhs. 11 and 21 There was thus
no overt disparate treatment.
830
ELECTRICAL WORKERS. LOCAL. 1701
and regular use of the hiring hall procedure. Thus, for
instance, an employer with a favored employee, who had
no economic use for the particular employee for a period
of a few days, could "suspend" the employee without
pay and then "reinstate" him whenever the need arose
thereby preventing employees who were properly regis-
tered in the hiring hall from being referred out in due
course when work arose. Thus, the "suspended" employ-
ee would gain an unwarranted preference over employ-
ees properly registered at the hiring hall.
In any event, the parties to the Nesler-Robbins griev-
ances remained deadlocked and agreed to take the matter
to the final and binding step in the contract grievance
procedure: recourse to the Washington, D.C., based
committee on industrial relations.
At the August 1979 argument at the meeting of the
committee for industrial Relations (CIR), NECA Man-
ager Cooper argued fr Dynalectric and Baggett argued
for the Union. The CIR, composed of equal members of
Union and management, is obliged to give a unanimous
decision. In the case of the Robbins-Nesler grievance,
the CIR unanimously held that the discharges were in
conformity with the terms of the collective-bargaining
agreement and thereby upheld the Union's position.
At the hearing, the General Counsel argued, under
subparagraph 6(e) of the complaint, that the Union, by
refusing to consent to the Employer's offer of reinstate-
ment of Robbins and Nesler, contrary to the express
desire of these employees, violated Section 8(b)(1)(A) of
the Act apparently because the Union, in view of their
nonunion status or otherwise, was not giving them full
and fair good-faith representation (as alleged in par. 6(g)
of the complaint). Some evidence in support of that posi-
tion, according to the General Counsel, exists because,
notwithstanding that each of the employees was, in con-
formity with the ordinary procedure at the labor man-
agement committee hearings, permitted to state the facts
and argue in his own behalf, the Union failed to support
the employees' request for reinstatement without back-
pay.
Baggett testified, without contradiction, that, as with
other union and nonunion employees in discharge griev-
ance sessions, the Union permitted the employees to
write out their own grievances and present them without
the Union intervening actively on their behalf. The
Union's position was that the purpose of its presence at
the grievance meeting was to uphold the terms and con-
ditions of the collective-bargaining agreement. 20 The
General Counsel did not adduce evidence of animus or
disparate treatment of, cf. International Association of
Bridge, etc., Iron Workers (Tyler Reinforcing) supra, or
other evidence contrary to the Union's position that,
above all, its object was to sustain the terms and condi-
tions of the contract, thereby representing all employees
rather than to undermine, and go contrary to, the terms
and conditions of the contract, Boston Cement Masons
Union No. 534, supra. Such would be the effect, howev-
er, if the Union sought reinstatement of Robbins and
Nesler on terms at variance with the merits of the griev-
:' The Union hasing concluded after insestigation that the grievances
were without merit, it could hardly have openly supported hem
ances and both with past practice and with the rights of
all employees under the collective-bargaining agreement.
Thus, in the absence of disparate treatment or other
evidence of pretext, the fact that Respondent (a) refused
to permit the employees to be either reinstated without
backpay or "suspended" for a week and then reinstated,
and (b) did not act as their advocate at the grievance
hearing does not, on this record, indicate either unlawful
motivation, because of the employees' nonunion status,
or of failing to act fairly or in good faith. Rather, there is
nothing in the evidence to suggest that the Union was
acting in bad faith in seeking to represent the interest of
the entire unit of employees by forcing "suspended" em-
ployees back to the hiring hall for registration, rather
than giving them the right to immediate reemployment
or reinstatement on terms and conditions not available to
employees properly registered and referred out of the
hiring hall. It would seem clear, therefore, that to sup-
port the position of the individual grievant herein rather
than to support, as Respondent did, the contractual pro-
cedure of the hiring hall, would be to give an advantage
to the grievant over to the persons ordinarily using the
registration and referral procedure. Absent pretext, there
is nothing inherently unlawful in the Union's position in
supporting the contractual rights of all employees and, at
the same time permitting the individual grievant to give
his version of the facts, thereby giving the labor manage-
ment committee an opportunity to reddress their dis-
charges. That the individual may suffer is not control-
ling, even though the Union's position is contrary to the
grievant. In fact, in seeking to support the contract and
its referral system, thereby supporting all employees, Re-
spondent is acting directly in support of the obligation
imposed on a statutory representative to represent all
employees without hostile discrimination, fairly, impar-
tially and in good faith, Wallace Corporation v. .L.R.B.,
323 U.S. 248 (1944): Vaca v. Sipes, 386 U.S. 171 (1967):
Steele v. Louisville and Nashville Railroad, 323 U.S. 192
(1944). The Union's failure to support the "suspension"
of Robbins and Nesler in no way undermines the obliga-
tion on the Union to act in good faith, free of invidious
classification, Miranda Fuel Co.. Inc., 140 NLRB 181
(1963), and with "honesty of purpose" in representing
the interest of all employees pursuant to the collective-
bargaining agreement rather than to advance the interest
of certain employees over the group. Ford Motor Compa-
ny v. Huffman, 345 U.S. 330, 338 (1953).2 1
21 1 swould distinguish, for instance, Truck Driverrv etc. Local .i. 705,
etc. (Aivociated Transport. Inc.). 209 NLRB 292 (1974). enfd sub nomr
Kesner v NV.L.R.B., 532 F2d 1169 (7th Cir 1976) There, the union was
required to support the grievant, as an advocate pursuant to its duty of
fair representation and not to undermine the grievant's position before the
joint grievance board by stating disbelief in the validity of the claim
There, however, the union undertook to present the grievance while
here, the disparity between the Union's position and the grievant's inter-
ests determined that the Union would not represent him but would
permit him to make his own presentation to the committee Moreover,
there unlike here, the union agent there disparaged the grievant while
here there is no such evidence Further, here, the procedure (suspension)
which ould have supported the grievant as rejected b) the ultimate
arbiter of contract rights. the Commitltee on Industrial Relations Had
Baggett acquiesced in the Employers "susperlsion" offer and the grie-
ant s position,. quaere. ould out-of-uork registrants In the hiring hall
Con tinued
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found, therefore, that the Respondent Union
did not act unlawfully in the position that it took with
regard to the grievances relating to the discharges of
Robbins and Nesler, I conclude that, in the absence of
other evidence relating to Respondent's bad faith or bad
motive, the General Counsel has failed to prove that Re-
spondent, in failing to acquiesce in the Employer's offer
to reinstate the grievants without backpay or to merely
suspend them for a week, violated Section 8(b)(l)(A). In
addition, I conclude, in the presence of the fact that
Nesler and Robbins were encouraged by Baggett to pres-
ent their cases to the committee and did so, and, in the
absence of other evidence, that Respondent's activities
with regard to the grievances filed by Robbins and
Nesler in no way demonstrated that Respondent acted in
bad faith or from improper motive, or that Respondent
in anyway failed to fairly and in good faith represent the
employees who filed said grievances. I therefore recom-
mend that paragraph 6 and its constituent subparts (relat-
ing to Respondent's alleged discriminatory motive in fail-
ing to properly represent and process the grievances of
the employees because they were not dispatched through
the hiring hall or because of Respondent's bad faith or
because of Respondent's improper motivation) be dis-
missed in its entirety as unproven.
Finally, while the General Counsel attempted to show
Respondent's animus against nonmembers by virtue of
testimony relating to the actions of the chairman of its
executive board, Kelly Brey, none of his acts are alleged
as unfair labor practices. There is no showing that Brey's
temperamental outbursts against employees' work per-
formance excluded union members or, in the alternative,
were addressed solely to nonmember, temporary employ-
ees. Rather, Brey's foul outbursts related generally to
employees' alleged incompetence in performing their
work rather than to their union status. In any event,
even were I to credit some of the General Counsel's wit-
nesses testimony that Brey referred to various acts of in-
competence as flowing from the fact that they were
holders of "white tickets" (nonunion referral slips), 2 2 I
would conclude that Brey's statements were random ac-
cusations directed at the temporary employees' attempts
to unlawfully (in his view) gain membership in Respond-
ent by virtue of the employer's devices rather than to ex-
clude them from employment or from use of the hiring
hall. There is no evidence that his animus related at all
to issues of employment. Further, however, there was no
proof that, for purposes of this proceeding, Brey, admit-
tedly chairman of Respondent's executive board in any
way performed functions which controlled the referral
of employees or in any way acted as an agent for Re-
spondent in impeding nonmember access to registration
and referral in the hiring hall. Were there any evidence
that Brey or any other member of Respondent's execu-
reasonably object to bypassing their positions on the out-of-work list by
the device of "suspension" and, in view of the Committee on the Indus-
trial Relations conclusion, assert a breach of Baggett's obligation to rep-
resent them
22 The credited evidence, however, shows that all referral slips were
white.
tive board participated in any way in the referral proce-
dure, then his statements might well be viewed, different-
ly. Cf. United Brotherhood of Carpenters, etc., Local Union
No. 1780, 244 NLRB 277, fn. 6 (1979). Contrary to the
General Counsel, Brey's hostility on the job related on
this record, to incompetence.
CONCLUSIONS Oi LAW
1. Dynalectric Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, Local 1701, the Respondent herein, is a labor
organization within the meaning of the Section 2(5) of
the Act.
3. A preponderance of the credible evidence shows
that, at all material times, neither Respondent's operation
of its hiring hall nor its conduct with regard to its refusal
to register and refer nonmembers of Respondent to em-
ployment by Dynalectric Company, or any other em-
ployer, was based on discriminatory or otherwise unlaw-
ful procedures in its hiring hall or other discriminatory
conduct in violation of Section 8(b)(l)(A) or 8(b)(2) of
the Act.
4. The General Counsel has failed to prove that at any
material time, Respondent has refused to register or refer
nonmembers of its local organization or the International
Brotherhood of Electrical Workers for permanent em-
ployment with Dynalectric Company in violation of Sec-
tion 8(b)(1)(A) and (2) of the Act; nor has Respondent
refused to administer to nonmembers a journeyman's test
which was unfair or discriminatory in nature or grading;
nor has it required that nonmember applicants for refer-
ral complete complex and lenghty questionnaires as part
of their application for union membership, not previously
required, in violation of Section 8(b)(1)(A) and (2) of the
Act.
5. The preponderance of the credible evidence fails to
show that Respondent engaged in discriminatory, unlaw-
ful, or bad-faith representation of Larry Nesler, Floyd
Robbins, or any other employee because of their non-
membership in Respondent, because of their failure to be
referred out of the hiring hall, or because of any other
invidious or unlawful reason, in violation of Section
8(b)(1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER2 3
It is hereby ordered that the consolidated complaint
herein be dismissed in its entirety.
2:' 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 herein 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.
832