Electrical Workers IBEW Local 11 (Los Angeles NECA)

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 424 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 11, AFL-CIO (Los Angeles County Chap-
ter of the National Electrical Contractors Asso-
ciation) and Vincent J. Sokol and William G.
Mott and Steven R. Loveall. Cases 31-CB-
5035, 31-CB-5038, and 31-CB-5047
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 October 1983 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The General Counsel and the Charging Parties
filed exceptions and supporting briefs, and the Re-
spondent filed a brief in opposition to their excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,1 findings, 2
and conclusions only to the extent consistent with
this Decision and Order.
The judge found that the Respondent did not
violate the Act by denying the Charging Parties'
requests to sign its out-of-work list for group I re-
ferral. For the reasons set forth below, we find
merit to the General Counsel's and the Charging
Parties' exceptions to this finding.
The relevant facts here are as follows: the Re-
spondent and the Los Angeles County Chapter of
the National Electrical Contractors Association
(NECA) have entered into a succession of collec-
tive-bargaining agreements covering electrical
workers. Pursuant to these contracts, the Respond-
ent has maintained and administered an exclusive
hiring hall to refer applicants for employment to
the various employer-members of NECA. The col-
lective-bargaining agreement in effect at all rele-
vant times herein expired 31 May 1983 and, imme-
diately thereafter, the Respondent and NECA exe-
cuted another contract with the same referral pro-
visions.
' Based on our disposition of this case, we find it unnecessary to pass
on whether the judge properly granted the Respondent's motion to
revoke the subpoena for certain hiring hall records which the General
Counsel was seeking.
2 The General Counsel and the Charging Parties here excepted to
some of the judge's credibility findings. The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
270 NLRB No. 79
The agreement has certain classifications consist-
ing of several groups of applicants for referral.
Thus, persons assigned to group I receive prefer-
ence to available work over all other applicants.
Persons in Group II are preferred over those in
group III and so forth. The criteria for assignment
to the various groups is set forth in section 4.05(b)
of the contract as follows:3
Journeyman Wireman
Group I. All applicants for employment
who have four or more years' experience in
the trade, are residents of the geographical
area constituting the normal construction labor
market, have passed a journeyman wireman's
examination given by a duly constituted Inside
Construction Local Union of the IBEW or
have been certified as a journeyman wireman
by any Inside Joint Apprenticeship and Train-
ing Committee and who have been employed
for a period of at least one year in the last four
years under a collective bargaining agreement
between the parties to this agreement.
Group II. All applicants for employment
who have four or more years' experience in
the trade and have passed a journeyman wire-
man's examination given by a duly constituted
Inside Construction Local Union of the IBEW
or have been certified as a journeyman wire-
man by any Inside Joint Apprenticeship and
Training Committee.
Group III. All applicants for employment
who have two or more years' experience in
the trade, are residents of the geographical
area constituting the normal construction labor
market and who have been employed for at
least six months in the last three years in the
trade under a collective bargaining agreement
between the parties to this agreement.
Group IV. All applicants for employment
who have worked at the trade for more than
one year.
Additionally, section 4.09 defines "[r]esident" to
mean:
. . a person who has maintained his perma-
nent home in the [Los Angeles County] geo-
graphical area for a period of not less than one
year or who, having a permanent home in this
area, has temporarily left with the intention of
returning to this area as his permanent home.
The Charging Parties are "travelers" who are
members of IBEW locals other than the Respond-
s The complaint does not allege, and the General Counsel does not
contend, that the referral system described in the contract is unlawful.
424
ELECTRICAL WORKERS IBEW LOCAL 11 (LOS ANGELES NECA)
ent. Steven Loveall moved to Los Angeles County
in December 1979; Vincent Sokol in August or
September 1980; and William Mott in May 1981.
They have continuously resided within the Re-
spondent's territorial jurisidiction since their arriv-
als. Because the Charging Parties had passed the
journeyman wireman's examination and had
worked for at least 4 years in the trade, they were
eligible for group II referral upon registering for
work at the Respondent's hiring hall. By Novem-
ber 1982 each of them had accumulated more than
2000 hours working for employers who are signa-
tories to the Respondent's contract. 4
It is undisputed that beginning in early 19825
there was a severe downturn in the construction in-
dustry, which continued for at least the next year.
This situation resulted in widespread unemploy-
ment among the Respondent's members. Its busi-
ness manager Earl Higgins admitted that members
of the Local frequently complained about travelers
working while they were unemployed. During a
union meeting, Stephen Harrington, the Respond-
ent's president, informed the membership that he
was investigating the possibility of filing intraunion
charges against 376 travelers who were taking jobs
from them.
Because of economic conditions, the Charging
Parties were laid off their jobs during the fall of
1982. When, in anticipation of his imminent unem-
ployment, Mott sought advancement to group I
status, Dean Frazier, one of the Respondent's busi-
ness agents under Higgins, replied that Mott never
would attain such status because he was a travel-
er. 6 Loveall also asked Frazier about the eligibility
requirements for signing the group I referral book.
Frazier replied that Loveall "probably wouldn't be
able to get on Book I," but suggested that he con-
tact the Respondent's executive board about this
matter. Loveall subsequently discussed the subject
with Higgins. After Higgins said that applicants
must have worked for 4000 hours under the Re-
spondent's contract in order to qualify for group I,
Loveall pointed out that the contract specifically
required only 1 year's work (2000 hours) to attain
that status. Higgins responded that the provision
Loveall was referring to applied only to applicants
who previously had qualified for group I. Either
Frazier or Ted Hill, another union official, eventu-
ally confided to Loveall that he would never sign
book I because he was a traveler.
Since the Respondent refused to allow them to
register for group I referral, the Charging Parties
4 The Respondent considers 2000 hours to be the equivalent of I year's
work.
All dates hereinafter are 1982 unless otherwise noted.
6 Frazier did not testify in this case
separately appealed to the three-member appeals
committee established by the contract to decide
any complaints arising from the Respondent's oper-
ation of the hiring hall. This committee is com-
posed of Higgins, the NECA chapter manager, and
a public member whom the parties jointly select.
On 4 March 1983 the appeals committee denied the
Charging Parties' claims for group I status on
grounds that they failed to "meet either the resi-
dency standards or the number of hours worked, as
required."
The Board has held that a union which operates
an exclusive hiring hall must represent all individ-
uals who seek to utilize the hall in a fair and impar-
tial manner. 7 The labor organization conducting
such an operation has a duty to conform with and
apply lawful contractual standards in administering
the referral system, and any departure from the es-
tablished procedures resulting in a denial of em-
ployment constitutes discrimination which inher-
ently encourages union membership. This discrimi-
nation constitutes a violation of Section 8(b)(l)(A)
and (2) of the Act.8
In finding no violation here, the judge concluded
that the definition of "resident" in section 4.09 of
the contract introduces a substantial element of am-
biguity into the hiring hall procedures and requires
that meaning be given to the words "permanent
home." The judge found, based, inter alia, on the
credited testimony of Higgins and Willard Bretz,
NECA's chapter manager, that the parties have in-
terpreted "permanent home" to require both 3
years' residency in Los Angeles County and 4000
hours employment under the local contract. Al-
though noting that the Respondent never has pub-
lished these requirements, the judge concluded that
they have been in existence for many years. He
emphasized that, while the 3-year residency re-
quirement is somewhat flexible, it is mandatory that
group I applicants have accumulated 4000 hours
working for signatory employers. Accordingly,
since none of the Charging Parties has fulfilled the
latter requirement, the judge dismissed the
8(b)(1)(A) and (2) allegations of the complaint.
Contrary to the judge, we conclude that the
term "resident" is sufficiently well defined in the
contract as to outweigh any probative value the ex-
trinsic evidence may have. As stated, section 4.09
defines resident as "a person who has maintained
his permanent home in the [Los Angeles County]
geographical area for a period of not less than one
year." It is well settled that the Board has author-
7 Plumbers Local 725 (Powers Regulator), 225 NLRB 138, 143 (1976).
8 Id. at 143; Operating Engineers Local 513 (S. J. Groves & Sons), 199
NLRB 921, 922 (1972).
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity to interpret collective-bargaining agreements in
the course of deciding unfair labor practice cases.9
We find that the contractual language of section
4.09 clearly and unambiguously states that the ap-
plicant must have maintained his permanent home
in Los Angeles County for at least I year. In this
situation the contract speaks for itself and thus it is
unnecessary, contrary to the judge's finding, to
give additional meaning to its terms.
In applying the contractual definition of "resi-
dent" to the facts here, we initially note that all the
alleged discriminatees had lived in Los Angeles
County for at least 18 months before the Respond-
ent denied their requests for group I status. The
record further shows that during this period the
Charging Parties registered to vote in Los Angeles
County, obtained California driver's licenses, regis-
tered their motor vehicles there, and enrolled their
children in local schools. Based on this evidence,
we find that these individuals have maintained their
"permanent home[s]" in Los Angeles County for at
least 1 year as the contract requires. It also is evi-
dent, as noted, that before they moved to Los An-
geles County all the alleged discriminatees had
passed the journeyman wireman's examination and
had worked for at least 4 years in the electrical
trade, and that by the time they inquired about
group I status each of them had accumulated 2000
hours of work under the Respondent's collective-
bargaining agreement. Accordingly, we find that
Loveall, Mott, and Sokol clearly satisfied the con-
tractual requirements for group I referral.
The judge, however, adopted the Respondent's
interpretation of section 4.09 as compelling 4000
hours work under the local agreement. Yet, the
contract itself explicitly states that only 1 year of
such work is required. It seems inconceivable that
the Respondent and NECA would have included
that provision if they had intended, as the judge
found, to impose a different standard. Although
Higgins told Loveall that the 1-year requirement
applied only to applicants who were seeking to
retain their group I status, Higgins' explanation for
this discrepancy is unconvincing since the contrac-
tual language clearly does not make such a distinc-
tion. We therefore conclude that the Respondent
has departed from its established procedures and
has unlawfully denied the Charging Parties access
to the group I referral book. ' 0
While the Board has held that evidence of the
union's motivation is not a prerequisite to a finding
of discrimination, this record clearly demonstrates
the Respondent's animus towards travelers who
I NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967)
O1 See Asbestos Workers Local 22 (Rosendahl, Inc.), 212 NLRB 913
(1974).
were working or attempting to find work in its ju-
risdiction during high unemployment. The Re-
spondent simply was doing everything possible to
ensure that its members filled those few jobs which
were available. Thus, the Respondent's president
told the membership in response to their com-
plaints on this subject that the Respondent was in-
vestigating the possibility of filing intraunion
charges against travelers who were continuing to
work in Los Angeles County. Other union officials
informed Loveall and Mott that they never would
be allowed to register in book I because they were
travelers. Against this background of hostility, the
Respondent's imposition of more stringent require-
ments for attaining group I status than set forth in
the contract establishes that it was promoting job
opportunities for its members to the detriment of
other applicants using the hiring hall.
Furthermore, even assuming that these require-
ments were legitimate, the Respondent has, in any
event, violated Section 8(b)(1)(A) and (2) of the
Act because the Respondent has not complied with
its statutory duty to give applicants for employ-
ment adequate notice of its hiring hall procedures.
By the Respondent's own admission there were no
written rules stating that applicants needed to work
4000 hours under the local contract to attain group
I status nor was this requirement posted in any of
the hiring halls which the Respondent operates. In
fact, the Respondent, through Dean Frazier, its
business manager at the hiring hall where Loveall
and Mott sought group I referral, never even in-
formed Loveall and Mott verbally that they would
be rejected for this reason. The Respondent's fail-
ure to give timely notice of substantial changes in
its referral procedures was arbitrary and in breach
of its duty to keep applicants informed about mat-
ters critical to their employment status. 1
For all of these reasons, we conclude that the
Respondent has not offered any valid justification
for failing to operate the referral system in the
manner prescribed by its collective-bargaining
agreement with NECA. Accordingly, we find that
by engaging in such conduct the Respondent has
discriminated against Charging Parties Loveall,
Mott, and Sokol in violation of Section 8(b)(l)(A)
and (2) of the Act. 12
l See, e g. Plumbners Local 392 (Kaiver Engineer)J. 252 NLRB 417, 421
( 1980).
t2 Contrary to the judge, we find that the present situation clearly is
distinguishable from Electrical Workers IBEW Lo(al 592 (Uinted Engi-
neers), 223 NLRB 899 (1976). In that case it wsas foluid that the union
operated its hiring hall in a manner sufficient to apprise all registrants of
practices which were not set forth in the contract Here, it is clear that
the Charging Parties could nlot have know.n of the additional require-
ments the Respondent was imposing on applicants to qualify for group I
referral.
426
ELECTRICAL WORKERS IBEW LOCAL II (LOS ANGELES NECA)
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the
Act, we shall order that it cease and desist there-
from and take certain affirmative action designed
to effectuate the purposes of the Act.
Having found that the Respondent unlawfully
failed and refused to refer for employment appli-
cants Steven R. Loveall, William G. Mott, and
Vincent J. Sokol in the manner prescribed by its
collective-bargaining agreement with the Los An-
geles County Chapter of the National Electrical
Contractors Association, we shall order that the
Respondent make them whole for any loss of earn-
ings and other benefits resulting from the Respond-
ent's discrimination in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), together
with interest as provided in Florida Steel Corp., 231
NLRB 651 (1977).'3
CONCLUSIONS OF LAW
i. Los Angeles County Chapter of the National
Electrical Contractors Association is an employer
within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local 11, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent and the Employer have been
parties to a succession of collective-bargaining
agreements whereby the Respondent operates an
exclusive hiring hall for the referral of employees
by the Respondent to employer-members of the
Los Angeles County Chapter of the National Elec-
trical Contractors Association.
4. By failing and refusing to refer for employ-
ment applicants Steven R. Loveall, William G.
Mott, and Vincent J. Sokol in the manner pre-
scribed by its collective-bargaining agreement with
the Los Angeles County Chapter of the National
Electrical Contractors Association, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(l)(A) and
(2) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, International Brotherhood of
:' See gcnerally I'iu Plhih Co., 138 NI.RB 716 (1Q62)
Electrical Workers, Local 11, AFL-CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to refer applicants for
employment in accordance with the hiring hall
practices and procedures set forth in its collective-
bargaining agreement with the Los Angeles
County Chapter of the National Electrical Con-
tractors Association.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Operate its exclusive hiring hall in accord-
ance with the practices and procedures set forth in
its collective-bargaining agreement with the Los
Angeles County Chapter of the National Electrical
Contractors Association.
(b) Refer Steven R. Loveall, William G. Mott,
Vincent J. Sokol, and all other applicants for em-
ployment, to positions for which they are entitled
under this contract.
(c) Make whole Steven R. Loveall, William G.
Mott, and Vincent J. Sokol for any loss of earnings
and other benefits resulting from the Respondent's
discrimination against them, in the manner pre-
scribed in the remedy section of this decision.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all hiring hall records, reports, work lists, and
other documents necessary to analyze and compute
the amounts of backpay due under the terms of this
Order.
(e) Post at all places where notices to employees,
applicants for referral, and members are posted
copies of the attached notice marked "Appen-
dix."'' 4 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
A4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al liabor Relations Board"
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail and refuse to refer applicants
for employment in accordance with the hiring hall
practices and procedures set forth in our collective-
bargaining agreement with the Los Angeles
County Chapter of the National Electrical Con-
tractors Association.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL operate our exclusive hiring hall in ac-
cordance with the practices and procedures set
forth in our collective-bargaining agreement with
the Los Angeles County Chapter of the National
Electrical Contractors Association.
WE WILL refer Steven R. Loveall, William G.
Mott, and Vincent J. Sokol, and all other appli-
cants for employment, to positions for which they
are entitled under this contract.
WE WILL make whole Steven R. Loveall, Wil-
liam G. Mott, and Vincent J. Sokol for any loss of
earnings and other benefits resulting from our dis-
crimination against them, less any net interim earn-
ings, plus interest.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 11,
AFL-CIO
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on
August 9 and 10, 1983. The charges in Cases 31-CB-
5035, 31-CB-5038, and 31-CB-5047 were filed on April
13, 14, and 25, respectively, by Vincent J. Sokol, William
G. Mott, and Steven R. Loveall, respectively (herein
called the Charging Parties).
Thereafter, on May 6, 1983, the Regional Director for
Region 31 of the National Labor Relations Board (the
Board) issued a consolidated complaint and notice of
hearing alleging a violation by International Brotherhood
of Electrical Workers, Local 11, AFL-CIO (Respond-
ent) of Section 8(b)(2) of the National Labor Relations
Act (the Act). The complaint was amended at the hear-
ing.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Charging Parties.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURSIDICTION
The National Electrical Contractors Association,
herein NECA, is an organization comprised of employers
engaged in electrical contracting in the construction in-
dustry, and exists for the purpose, inter alia, of represent-
ing its employer-members in negotiating and administer-
ing collective-bargaining agreements with various labor
organizations, including Respondent. The employer-
members of NECA, collectively, annually purchase and
receive in the State of California goods or services
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California.
It is admitted, and I find, that the employer-members
of NECA, collectively, are employers engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that Respondent is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent unlawfully denied the Charging Parties' re-
quest to sign Respondent's out-of-work list for group I
referral in violation of Section 8(b)(2) of the Act.
B. The Facts
NECA and Respondent have been parties to a succes-
sion of collective-bargaining agreements, entitled "Inside
Wiremen's Agreement," covering wages, hours, and
other terms and conditions of employment of certain
electrical employees. The agreement in effect at times
herein extended from July 22, 1981, through May 31,
428
ELECTRICAL WORKERS IBEW LOCAL 11 (LOS ANGELES NECA)
1983.1 Pursuant to this agreement, Respondent has main-
tained and administered an exclusive hiring system or
procedure and exercises exclusive authority to refer em-
ployees to the various employer-members of NECA.
The contract provisions applicable to this case are as
follows:
ARTICLE IV
REFERRAL PROCEDURE
Sec. 4.01. In the interest of maintaining an effi-
cient system of production In the Industry, provid-
ing for an orderly procedure of referral of appli-
cants for employment, preserving the legitimate in-
terests of the employees in their employment status
within the area and of eliminating discrimination in
employment because of membership or non-mem-
bership in the Union, the parties hereto agree to the
following system of referral of applicants for em-
ployment.
Sec. 4.02. The Union shall be the sole and exclu-
sive source of referral of applicants for employ-
ment.
Sec. 4.03. The Employer shall have the right to
reject any applicant for employment.
Sec. 4.04. The Union shall select and refer appli-
cants for employment without discrimination
against such applicants by reason of membership or
non-membership in the Union and such selection
and referral shall not be affected in any way by
rules, regulations, bylaws, constitutional provisions
of any other aspect or obligation of Union member-
ship policies or requirements. All such selection and
referral shall be in accord with the following proce-
dure.
Sec. 4.05.(a) The Union shall maintain a register
of applicants for employment established on the
basis of the Groups listed below. Each applicant for
employment shall be registered in the highest priori-
ty Group for which he qualifies.
(b) It will not be mandatory for an employee to
accept transfer to a dispatch area other than the one
he was dispatched to.
Journeyman Wireman
Group I. All applicants for employment who
have four or more years' experience in the trade,
are residents of the geographical area constituting
the normal construction labor market, have passed a
journeyman wireman's examination given by a duly
constituted Inside Construction Local Union of the
IBEW or have been certified as a journeyman wire-
man by any Inside Joint Apprenticeship and Train-
ing Committee and who have been employed for a
period of at least one year in the last four years
under a collective bargaining agreement between
the parties to this agreement.
Group II. All applicants for employment who
have four or more years' experience in the trade
A successor agreement is currently in effect with no change in con-
tract language as set forth infra.
and have passed a journeyman wireman's examina-
tion given by a duly constituted Inside Construction
Local Union of the IBEW or have been certified as
a journeyman wireman by any Inside Joint Appren-
ticeship and Training Committee.
Group III. All applicants for employment who
have two or more years' experience in the trade, are
residents of the geographical area constituting the
normal construction labor market and who have
been employed for at least six months in the last
three years in the trade under a collective bargain-
ing agreement between the parties to this agree-
ment.
Sec. 4.09. "Resident" means a person who has
maintained his permanent home in the above defined
geographical area for a period of not less than one
year or who, having a permanent home in this area,
has temporarily left with the intention of returning
to this area as his permanent home.
The Charging Parties are not members of Respondent,
but are members of other locals of the IBEW. For a
period of time each of the Charging Parties has worked
within Respondent's geographical jurisdiction as a "trav-
eler," having the qualifications to sign and be referred
for employment from the group II register, supra, which
has no residency provision.
In February 1983, the Charging Parties were denied
permission by Respondent to sign the group I register or
out-of-work list, which is the highest priority list. About
March 4, 1983, their respective appeals of this determina-
tion were likewise denied, in writing, by Respondent's
Appeals Committee. The three-member Appeals Com-
mittee is established by the contract, and is empowered
to hear complaints arising out of the contract referral
procedure. It is comprised of one member appointed by
Respondent, one member appointed by NECA, and a
public member appointed by both Respondent and
NECA. The contract specifies that the Appeals Commit-
tee "is not authorized to add to, subtract from, or modify
any of the provisions of this agreement and its decisions
shall be in accord with this agreement." The Appeals
Committee consists of Earl Higgins, Respondent's busi-
ness manager, Willard Bretz, NECA chapter manager,
and public member Julius Draznin.
Earl Higgins, called as a witness by the General Coun-
sel, has been business manager for Respondent since
1973. Higgins testified that none of the Charging Parties
meet the qualifications for admission to group I. He ex-
plained that for eligibility to group I applicants must
have been residents of Los Angeles County, Respond-
ent's geographical jurisdiction, for 3 years, with certain
exceptions noted below; must have accrued 4000 hours
of working time under the terms of the contract with a
signatory employer; 2 and must have passed a journey-
2 A year is the equivalent of 2080 hours, and it would take at least 2
years of steady work to accumulate 4000 hours The employees' hours
are maintained by the office of the Southern California IBEW-NECA
Trust Funds, rather than by Respondent
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man wireman's examination. Although there are no writ-
ten rules in existence detailing these requirements, nor
are they posted at any of Respondent's hiring halls, Hig-
gins testified that they have been in existence since 1964,
and have been consistently applied. However, he further
stated that possibly on four or five occasions various
business representatives who are initially responsible for
making such determinations have mistakenly permitted
individuals to sign the group I list without having first
accrued the mandatory 4000 hours, but that when the
mistakes were discovered the individuals were relegated
to the proper group. In case of doubt regarding an indi-
vidual's admission to group I, the business agents are to
refer the matter to Higgins.
Regarding the contract language that a group I appli-
cant for employment must "have been employed for a
period of at least one year in the last four years under a
collective bargaining agreement between the parties to
this agreement," Higgins testified that that particular lan-
guage constituted a requirement for maintenance of
group I status after first qualifying for and belonging to
group I, but was not the requirement for initial admission
to group I.
In this regard, Charging Party Loveall testified that, in
a discussion with Higgins, Higgins explained that he did
not believe Loveall met the 4000-hour requirement. Lo-
veall apparently argued that the contract did not require
4000 hours, but rather only 1 year, the equivalent of
2000 hours. Higgins replied, according to Loveall, that
the particular contract language did not pertain to Lo-
veall, but was "for local hands only." Higgins specifical-
ly denied that he made this statement to Loveall, but, as
aforementioned, he did in effect tell him that the lan-
guage did not pertain to him as it only applied to indi-
viduals who had previously acquired group I status. I
credit Higgins, who appeared to be a very knowledge-
able and forthright witness.
Willard Bretz is chapter manager for NECA, and he
serves on the Appeals Committee, along with Higgins
and the public member Julius Draznin. Bretz testified
that to his knowledge there had never been an Appeals
Committee meeting until about March 1982, as no indi-
vidual had ever appealed the determination of the busi-
ness managers regarding referrals, and that his research
in preparing for the various appeals failed to uncover
any rules or records of previous appeal. Bretz testified
that "permanent home" within the meaning of section
4.09 of the agreement was interpreted to be the equiva-
lent of 3 years' continuous residency, but that this re-
quirement would be shortened somewhat if the individ-
ual provided convincing evidence that Respondent's geo-
graphic area was indeed his permanent residence. Par-
ticularly, the purchase of a home constituted substantial
evidence of this.
Bretz testified that he had no knowledge of Respond-
ent's internal policy regarding the requirements for
group I, as he had no involvement with the referral
process until the appeals stage. However, he testified that
the 3-year residency rule was adopted by the Appeals
Committee some 18 months to 2 years prior to the in-
stant hearing, and was established by the Committee
when the first appeal was made. Further, Bretz testified
that the 4000 hour requirement was a concomitant of the
residency requirement as "4000-hours would again show
the permanence of their employment here." Higgins tes-
tified similarly regarding the correlation between the
4000 hour requirement and the residency requirement.
In preparation for the anticipated influx of appeals, ap-
parently due to the fact that an inordinate number of un-
employed travelers were in the area, a residency ques-
tionnaire was prepared by the Appeals Committee. The
questionnaire requests detailed information regarding the
individual's residency in the area, including such matters
as where he pays taxes, whether he registered to vote,
where his children attend schools, where his vehicles are
registered, where he maintains bank accounts or invest-
ments, and whether he owns a home. The questionnaire
also asks, "Have you lived in Los Angeles County for a
period of (3) years?"
In an effort to attempt to establish that Respondent did
not have a 3-year/4000-hour residency requirement, the
General Counsel subpoenaed Respondent's records from
January 1982 to the present which would show the
number of hours worked and the place of residence in
the 3 years prior to their signing group I of all individ-
uals who advanced from group III to group I. I granted
Respondent's motion to revoke the subpoena for the rea-
sons stated on the record as follows:
I have heard your various arguments, both on
and off the record, on the subpeona issue, namely
Items 14 and 15 of the subpoena issued by the Gen-
eral Counsel.
The subpoena and the motion to revoke should
be made a part of the record and they will at the
appropriate time.3
Respondent's petition to revoke is granted for the
following reasons: neither the General Counsel nor
the Charging Party have produced any reliable evi-
dence that the standards nor admission to Book 14
are other than as stated by Mr. Higgins and Mr.
Bretz, the NECA chapter manager. Rather the con-
tentions of the General Counsel and the Charging
Party regarding admission to Book 1 are based on
speculation and unreliable hearsay.
Two, it appears from the representation of Re-
spondent's counsel that the records are not readily
available in a meaningful form, but would have to
be compiled from a variety of documents requiring
a substantial amount of time.
Three, it appears that after listening to arguments
of the parties, extensive arguments, that even if cer-
tain records on their face did support the contention
of the General Counsel and the Charging Party,
those particular individuals corresponding to the
records would need to be called as witnesses in any
event to vertify the accuracy of the records, and
perhaps to be called upon to testify to extenuating
circumstances regarding their admission to Book 1,
thus potentially leading to extensive and protracted
s Both the subpoena duces tecum and Respondent's motion to revoke
are hereby made a part of the record.
4 Book I and group I are customarily used interchangeably.
430
ELECTRICAL WORKERS IBEW LOCAL II (LOS ANGELES NECA)
collateral litigation involving whether or not the ad-
mission requirements involved herein were system-
atically applied to the individuals, and the underly-
ing reasons for any incorrect application or devi-
ation from the requirements.
I specifically refer to the matter of Mr. Ronald
Benson whose testimony has resulted in contrary
contentions regarding the proper application of the
residency requirement, Mr. Benson not being a
party to this proceeding.
Lastly, no precedent or cases have been cited to
me supporting the positions of the General Counsel
or the Charging Party regarding the subpoenaed
documents. For those particular reasons, I am
granting the petition to revoke. There are various
avenues that the parties may take.
Now that we've had extensive argument on this,
I don't think that there's any further argument
needed, and you can take any avenue of appeals
that you wish to do so. I shall adhere to this par-
ticular ruling throughout the remainder of the pro-
ceeding, and I will not hear any more argument or
evidence with regard to hearsay evidence regarding
the incorrect application of the admission require-
ments to Book 1.
Further, following my ruling on the subpoena, the
Charging Parties' counsel read a list of five names and
stated it was the Charging Parties' belief that each of the
named individuals obtained group I status at a time when
they had accrued substantially less than 4000 hours.
None of these individuals were called as witnesses to
substantiate this contention.
C. Analysis and Conclusions
The General Counsel and Charging Parties maintain
that the referral procedure for group I established by the
contract is clear and unambiguous, and therefore Re-
spondent has violated the Act by failure to apply such
provisions to the Charging Parties. Electrical Workers
IBEW Local 592 (United Engineers), 223 NLRB 899
(1976).
Contrary to such contentions, while it first appears
from a reading of article IV, section 4.05, of the contract
that the requirements for group I are rather simple and
explicit, reference to the definition of "resident," at arti-
cle 4.09 of the contract, introduces a substantial element
of ambiguity, and requires that meaning be given to the
words "permanent home." According to the testimony of
Higgins and Bretz, a residency period, which has been
interpreted to mean a period during which the individual
has resided within Respondent's geographical jurisdiction
for a period of 3 years, establishes the area as the appli-
cant's permanent home. Concomitantly, it is assumed
that within such a period of time the individual should
be able to accrue 4000 hours working for signatory con-
tractors. Thus, group I status has been interpreted to re-
quire both a residency period of 3 years and 4000 hours
of work for signatory employers, the latter requirement
operating as a positive indication that the individual did
indeed intend to make the area his permanent home. Ac-
cording to Higgins, whom I credit, the 3-year require-
ment is somewhat flexible, while the 4000 hour require-
ment is a hard and fast rule.
Certainly, more explicit contract language would read-
ily apprise individuals of the foregoing requirements for
group I status, and would have obviated the necessity for
the instant hearing. However, I credit the testimony of
Higgins and find, particularly in the absence of any per-
suasive contrary evidence, 5 that these requirements, al-
though unpublished, have been in existence and have
been routinely applied for an extended period of time
and have established the past practice by which individ-
uals have attained their group I status. Further, the fact
that Higgins and perhaps other officials of Respondent
have indicated their antipathy to travelers when union
members are out of work is insufficient to establish that
the group I requirements are not as Higgins testified.
On the basis of the foregoing, I shall dismiss the case
in its entirety. Electrical Workers IBEW Local 592
(United Engineers), supra.
CONCLUSIONS OF LAW
1. The employer-members of the National Electrical
Contractors Association are employers engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged.
[Recommended Order for dismissal omitted from pub-
lication.]
5 The General Counsel and counsel for the Charging Parties maintain
that the testimony of Higgins and Bretz is inconsistent and contradictory.
It appears that any variation in their testimony is a result of incomplete
or ambiguous record evidence, coupled with the fact that Bretz does not
deal wsith the referral procedure on a day-to-day basis as does Higgins. I
credit the testimony of both Bretz and Higgins.
431