Electrical Workers IBEW Local 1579 (CIMCO)

National Labor Relations Board - Board Decisions

May 13, 1993

311 N.L.R.B. 26 (N.L.R.B. 1993)

26
311 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 13, 1993, the judge issued a correction.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 We do not find merit in the Respondent’s exception that the
judge erred in his construction of the collective-bargaining agree-
ment by not considering sec. 4.09 which defines the term ‘‘resident’’
to mean, inter alia, a person who maintains a permanent home in
the relevant geographic area for a period of not less than 1 year. Al-
though the judge did not specifically mention this section of the
agreement, he did find that Copeland’s 1987 and 1992 unfair labor
practice charges as well as the Respondent’s own records showed
that Copeland was indeed a resident of the relevant area. In addition,
the judge noted that the Respondent had not previously made an
issue of Copeland’s residency, and had, in 1987, even informed
Copeland that he was registered in ‘‘book 1,’’ the same book that
he currently seeks to be registered in, without requiring him to prove
that he had met this residency requirement.
4 G.C. Exh. 4, which constitutes the 1987 CB charge referred to
by the judge, was identified at the hearing, but was not formally
moved into evidence. Because none of the parties have excepted to
this inadvertence, we are admitting the exhibit into the record at this
time.
Further we correct the following inadvertent errors made by the
judge: (1) in the ‘‘Statement of the Case’’ section, it should read that
the hearing was held in Augusta, Georgia; (2) in the second para-
graph under sec. E(2), ‘‘December 1981’’ should read ‘‘December
1991’’; (3) in the ‘‘The Remedy’’ section, case citations in fns. 27
and 28 should read Dean General Contractors, 285 NLRB 651
(1987), and Florida Steel Corp., 231 NLRB 651 (1977), respec-
tively. These errors do not affect the outcome of the case.
1 There are lower categories of applicants, but these are not rel-
evant here.
International Brotherhood of Electrical Workers,
Local 1579 (CIMCO) and A. Lake Copeland.
Case 10–CB–5977
May 13, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 23, 1992, Administrative Law Judge
Howard I. Grossman issued the attached decision.1 The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Brotherhood
of Electrical Workers, Local 1579, its officers, agents,
and representatives, shall take the action set forth in
the Order.
Susan Pease Langford, Esq., for the General Counsel.
Charles L. Wilkinson, III, Esq., of Augusta, Georgia, for the
Respondent.
Lourdes Neely Coleman, Esq., of Augusta, Georgia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on June 8, 1992, by A. Lake Copeland, an
individual (Copeland). Complaint issued on August 31, 1992,
and alleges that International Brotherhood of Electrical
Workers, Local 1579 (Respondent or the Union), on about
December 18, 1991, refused to refer Copeland for employ-
ment for arbitrary, capricious, and discriminatory reasons, in
violation of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act.
This case was heard before me in Atlanta, Georgia, on Oc-
tober 13, 1992. Thereafter, the General Counsel and Re-
spondent filed briefs. On the basis of the entire record, in-
cluding my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings, as amended at the hearing, establish that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act, and that it has agreements with CIMCO,
Inc. and other employers requiring those employers to obtain
their employees exclusively by referral from the Union’s hir-
ing hall.
The pleadings further establish that CIMCO, Inc. is a
Delaware corporation with an office and place of business in
Waynesboro, Georgia, where it is engaged in the construc-
tion industry as an electrical contractor. During the calendar
year preceding issuance of the complaint, a representative pe-
riod, CIMCO provided services valued in excess of $50,000
to customers within the State of Georgia who, in turn, during
the same period, sold and shipped goods valued in excess of
$50,000 directly to customers located outside the State of
Georgia. CIMCO, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The Union maintains various referral lists, or books,
wherein individuals apply for employment. First priority is
given to applicants whose names appear in book 1, while
secondary preference is given to those whose names appear
on book 2.1 The General Counsel contends that the Union,
on about December 18, 1991, discriminatorily failed to allow
Copeland to be listed in book 1, and thereby caused him to
be referred for employment at a time later than he would
have been referred had such listing been allowed.
27ELECTRICAL WORKERS IBEW LOCAL 1579 (CIMCO)
2 G.C. Exh. 2, pp. 15–16.
3 Ibid.
4 Ibid.
5 Ibid.
6 R. Exh. 3.
7 Copeland was employed by Cleveland during the following peri-
ods: November 4, 1985, through March 14, 1986; April 21, 1986,
through November 11, 1986; and February 23, 1987, through March
17, 1987.
8 According to Copeland, Rooks ‘‘cursed’’ him and told him to get
out of the office.
9 G.C. Exh. 4.
10 G.C. Exh. 1(a).
11 I take judicial notice of p. 22 of the Rand McNally Road Atlas
for 1992.
12 R. Exh. 3.
13 The Union’s records show that Copeland was referred to a job
in May 1987 with an employer listed as ‘‘Dunn.’’ (R. Exh. 3.)
Copeland stated that the name was ‘‘Miller Dunn,’’ and that it was
later acquired by the Bechtel Company.
14 I infer that the Regional Director wrote the letter based on the
reference to it in counsel’s response.
15 Counsel’s letter reads in relevant part:
I have received your letter of May 27, 1987, concerning the
above case, and I would like to clarify the record. There has
been no ‘‘private settlement’’ between the parties as your letter
indicates.
While there was no ‘‘private settlement,’’ my understanding
was that Mr. Copeland was withdrawing his charge after being
told the Union’s policy on signing Referral Book No. 1, and that
he would be placed on it if he meets the requirements.
In order for Mr. Copeland to sign book 1, he must comply
with the following requirements: he must have 4 years experi-
ence in the trade, be a resident of the Local’s geographical area,
have passed a Journeyman Wireman’s examination given by a
duly constituted Inside Construction Local Union of the
I.B.E.W. or have been certified as a Journeyman Wireman by
any Inside Joint Apprenticeship and Training Committee, and
have been employed for a period of at least one year in the last
four years under a collective bargaining agreement between the
Local and parties in the agreement.
Thus, all Mr. Copeland has to do is present some evidence of
his examination or certification as a Journeyman Wireman and
present evidence of his residing in this area. The best evidence
of residency would be copies of his latest (1986) Federal and
State income tax returns which would show his legal residence
(especially since travellers deduct local living expenses). If Mr.
Continued
B. The Referral Criteria in the Collective-Bargaining
Agreement
The Union has an agreement with the Atlanta Chapter,
Augusta Division, National Electrical Contractors Associa-
tion, which establishes the requirements that must be met in
order to sign the Union’s various out-of-work books. The
agreement requires the Union to register each applicant for
employment in ‘‘the highest priority group for which he
qualifies.’’ In order to be registered as a journeyman wire-
man or technician in ‘‘Group I,’’ the applicant must have
had 4 or more years’ working experience in the trade, be a
‘‘resident of the geographical area constituting the normal
construction labor market,’’ must have passed an examina-
tion conducted by the Union or have been certified by it, and
must have worked for at least 1 year in the prior 4 years
under collective-bargaining agreement between the parties to
the agreement.2 The requirements for a listing in group II are
4 or more years experience in the trade, and the passing of
an appropriate examination.3 Thus, the difference between
groups I and II is that the former includes the requirements
of residency and 1 year’s working experience under a collec-
tive-bargaining agreement.
The agreement clarifies the residency requirement by de-
fining the ‘‘normal construction labor market’’ as being lo-
cated in various counties in the States of Georgia and South
Carolina, including the county of Richmond, in Georgia.4
Groups III and IV, with lesser priority, have less stringent re-
quirements.5
C. Copeland’s Union Affiliations and Employment
History—the First Unfair Labor Practice Charge
Copeland was a member of IBEW Local 570, in Tucson,
Arizona. He moved to Georgia in 1970, and bought a house
in Doraville. Next, Copeland moved to Augusta, Georgia, in
1985, married, and bought several properties. He was re-
ferred by the Union to Walsh Construction Company in Au-
gust 1985,6 and left a month later for the purpose of selling
his house in Doraville. On his subsequent return to the Au-
gusta area, he was referred by the Union to the Cleveland
Electric Company in November 1985. Copeland had several
intermittent periods of employment at this company,7 to
which he was referred by the Union.
Copeland was terminated by Cleveland in early 1987. He
went to the Union and asked it to grieve the termination. He
also stated that he was eligible to sign book 1 and requested
permission to do so. Union Business Manager Yarbrough and
Assistant Business Manager James E. Rooks, who handled
most of the referrals, refused to allow him to sign anything
more than book 2.8 Copeland did so, but, on April 30, 1987,
filed an unfair labor practice charge against the Union. His
address in the charge is listed as being in Hephzibah, Geor-
gia.9 The current charge lists his city of residence as Au-
gusta, Georgia.10 Both Hephzibah and Augusta are located in
Richmond County, Georgia.11 The Union’s referral records
show Copeland as originally residing in Atlanta, but later in
Hephzibah.12
Copeland testified without contradiction that the Union
president called him and said that he had a referral for
Copeland. The latter asked the union president whether this
meant that he was on book 1 and received an affirmative an-
swer. Copeland then went to the hall and received a referral
‘‘on the side’’ from the union president rather than going
through the normal procedure of getting it from Assistant
Business Manager Rooks.13 He did not actually sign book 1
but was told that he could do so. Copeland testified that he
was not required to prove residency or that he had passed
a journeyman’s test (although he had supplied this proof at
an earlier time). Nor was he required to prove that he was
not on book 1 in his Arizona local—a requirement added by
Respondent in this proceeding. I credit Copeland’s
uncontradicted testimony.
Copeland thereupon withdrew the unfair labor practice
charge. The Regional Director for Region 10 wrote a letter
to Respondent’s counsel dated May 27, 1987.14 Counsel’s
reply to the Regional Director, dated June 2, 1987, repeats
the foregoing contractual criteria for signing book 1, with ad-
ditional comments on proof, but does not add any new re-
quirements.15
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Copeland submits this evidence, he can sign book 1 . . . . [G.C.
Exh. 3].
16 G.C. Exh. 5.
17 R. Exh. 1.
18 R. Exh. 7. There is some evidence that the sign was partially
covered by holiday decorations. I consider it unnecessary to resolve
this issue.
19 G.C. Exh. 6.
20 G.C. Exh. 7.
21 Ibid.
D. The Alleged Refusal to Refer Copeland
1. Summary of the evidence
Copeland was terminated by Bechtel on December 9,
1991, and thereafter visited the union hall. There is some
ambiguity as to whether he did so once or twice. According
to Copeland, after his discharge, he went to the hall with an
attorney and asked Assistant Business Manager Rooks for
permission ‘‘to sign the book.’’ Rooks replied that Copeland
needed a letter from his Tucson business agent showing that
Copeland had passed the journeyman’s test and was a mem-
ber in good standing.
Thereafter, the Tucson business agent sent a letter to Re-
spondent’s business manager, stating that Copeland was a
member of the Arizona local in good standing, had passed
the necessary wireman’s examination in 1964, and otherwise
recommended him. This letter is dated December 18, 1991.16
According to Copeland, he and his attorney’s assistant
went to the hall after his receipt of a copy of the Tucson let-
ter, and asked to ‘‘sign the Book.’’ Rooks refused and
‘‘showed us out again,’’ in Copeland’s language. Copeland
told Rooks that he wanted to draw unemployment insurance
benefits. Rooks later called him at home and said that he had
‘‘signed the Book’’ for Copeland. Copeland testified that he
had never heard of such a procedure.
Copeland sent a letter to Business Manager Yarbrough
stating that he had been terminated by Bechtel on December
9, 1991, and asked the Union to grieve the termination. This
letter is dated December 19, 1991.17
Rooks’ testimony appears to indicate that Copeland made
only one visit. Rooks agreed that Copeland and his attorney
came to the hall. He professed surprise at Copeland’s request
to sign the book because, Rooks contended, there had not
been any layoffs at Bechtel. He asked Copeland for a termi-
nation slip, but did not get one. Rooks contended that he had
to know whether Copeland was unemployed before allowing
him to sign the out-of-work book. Rooks told Copeland that
the latter needed a termination slip, and a letter from
Copeland’s Tucson business agent. Rooks referred Copeland
to a sign in the hall stating that an applicant had to be ‘‘un-
employed to sign the out of work lists,’’ and needed a ‘‘let-
ter from business manager to business manager to sign the
out of work Book.’’18 Business Manager Yarbrough agreed
that this was the first time the Union had asked Copeland for
such a letter.
Rooks also signed a photocopy of Copeland’s dues receipt
and his own business card for Copeland’s use in applying for
unemployment insurance benefits.
The assistant business manager asserted that he found out
from the steward, after some delay, that Copeland in fact had
been discharged. Accordingly, Rooks entered Copeland’s
name in book 2 on December 20, 1991, in order, he stated,
to save Copeland a trip to the union hall. He called Copeland
at home and informed him of this fact. Rooks contended that
he told Copeland he had placed the latter’s name in book 2.
Copeland denied that the assistant business manager was spe-
cific on this issue.
Copeland contended that Rooks knew on December 18
that Copeland had been discharged. As indicated, Copeland’s
letter to the Union, stating this, was dated December 19,
1991, 1 day before Rooks allegedly signed the out-of-work
book for Copeland.
On February 7, 1992, Copeland’s attorney sent a letter to
Business Manager Yarbrough. She describes a visit which
she and Copeland made to the hall on December 18, 1991.
The letter avers that Rooks asked for a letter from
Copeland’s business agent and referred to a posted sign in
the union hall. The letter concludes:
Please confirm whether or not Copeland’s name ap-
pears on your out-of-work book, and, if it does appear,
identify the list on which it appears and the date that
it was entered. In addition, we would appreciate infor-
mation regarding the status of the grievance.19
Yarbrough did not reply to this letter.
On March 5, 1992, Copeland’s attorney restated the matter
to Yarbrough in another letter:
On December 18 I accompanied Mr. Copeland to
your office where we spoke with Mr. Edgar Rooks.
Copeland advised Rooks that he had been terminated
and needed to sign the out-of-work book. Rooks signed
a photocopy of Copeland’s dues receipt and Rooks’
business card for Copeland to present to the Unemploy-
ment Office. Further, Rooks directed us to your posted
notice and advised that upon receipt of a letter from the
business manager agent of Copeland’s local, Copeland
would be able to sign the out-of-work book.20
The attorney’s letter included a copy of the Tucson busi-
ness agent’s letter and a current dues receipt. It concludes
with a request for acknowledgement that Copeland’s name
did appear in the book, and asked for identification of the
list on which his name appeared.21
Yarbrough did not reply to this letter.
As described hereinafter, the Union did refer Copeland for
employment in September 1992. Business Manager
Yarbrough testified that applicant Johnny Drake signed book
1 on December 19, 1991, the day after Copeland asked to
sign the book. Drake was referred for employment on July
21, 1992, prior to Copeland’s referral in September.
2. Factual analysis
The evidence warrants an inference that Copeland paid
two visits to the union hall in December 1991. The first visit
must have taken place on or before December 18, 1991, be-
cause the Tucson business agent’s letter of that date is obvi-
ously a response to Rooks’ demand for such a letter. The let-
ter may have been sent by facsimile transmission.
All the evidence, including Rooks’ testimony, shows that
all he asked Copeland to produce was a letter from his Tuc-
son business manager and a termination slip. Although the
29ELECTRICAL WORKERS IBEW LOCAL 1579 (CIMCO)
22 G.C. Exh. 8. 23 G.C. Exh. 8.
Union had previously referred Copeland to various jobs, this
was the first time it asked for a business manager’s letter.
On learning from the steward that Copeland had been dis-
charged, Rooks dropped the requirement for a termination
slip. The requested letter, of course, was produced almost
immediately.
I credit Copeland’s testimony that he returned to the union
hall after the Tucson letter had been delivered, and again
asked to sign the out-of-work book. Rooks refused. It is clear
that Rooks later called Copeland and said that he, Rooks, had
placed Copeland’s name in ‘‘the book.’’ I credit Copeland’s
testimony that Rooks did not mention the specific number of
the book because Copeland was a more truthful witness and
had better recall of the events. Respondent’s later refusal to
inform Copeland’s attorney of the number of the book in
which Copeland’s name had allegedly been placed is obvi-
ous.
E. Issuance of the Complaint, and the Referral of
Copeland for Employment
1. Summary of the evidence
As indicated, Copeland filed the instant charge on June 8,
1992. he testified that his attorney informed him that the
Union demanded that he prove that he had not signed an out-
of-work book in Tucson. On August 11, 1992, the Tucson
business manager sent a message to Respondent stating that
Copeland was not ‘‘on the out-of-work book’’ at Tucson.22
As also indicated, complaint in this matter issued on Au-
gust 31, 1992. On the following day, September 1, 1992,
Business Manager Yarbrough wrote out a referral for
Copeland. He contended that he called Copeland, who told
him to call Copeland’s attorney. Copeland testified that he
received a call from Yarbrough to report at 9 p.m. to the
union hall for a referral. Copeland called his attorney who
advised that he would be ‘‘a fool to go down there at 9:00
at night after 2 guys done been whomped down there.’’ I
credit Copeland’s testimony only to the extent that he was
requested to show up for a referral at 9 p.m. but did not do
so.
Copeland and his attorney appeared at the hall at about
noon the following day, or shortly thereafter. After criticism
from Assistant Business Manager Rooks for not appearing at
7:30 a.m.—a requirement not stated by Yarbrough according
to Copeland—he was given a referral slip and reported for
work the following day. He was not allowed to sign or see
any of the out-of-work books.
Business Manager Yarbrough asserted that Copeland had
been eligible to sign book 2 in December 1991, but did not
qualify for book 1 until August 11, 1992, on receipt of the
Tucson business agent’s letter of that date. In explanation,
Yarbrough repeated the four contractual requirements for
placement in book 1—4 years’ experience in the trade, resi-
dence in the prescribed geographical area, successful comple-
tion of an examination, or certification, and 1 year’s work in
the last 4 years under an agreement to which the Union was
a party.
Yarbrough agreed that there are no other requirements in
the contract for placement in book 1. However, he contended
that, according to ‘‘standard practice throughout the IBEW,’’
a further requirement for placement in book 1 is that the ap-
plicant supply proof that he is not in book 1 at any other
local. Yarbrough had no documentary proof of this require-
ment.
Yarbrough and Rooks asserted that a member could only
be in book 1 in the geographical area where he resided in
order to obtain the priority of referral granted by book 1.
IBEW members ‘‘travel,’’ and sign book 2 in the areas
which they visit. Yarbrough and Rooks have done this. Ac-
cording to the business manager, there is no limitation on the
number of times a member can sign book 2. Yarbrough testi-
fied: ‘‘I can go across the country and sign book 2 in every
local in the United States. I cannot sign book 1 nowhere ex-
cept here.’’
Copeland, who had worked in many areas of the country,
testified that ‘‘travelers’’ applying for work in another local
are allowed to sign book 2. However, after they have been
in the area for a year, most locals invite them to sign book
1 and join the local.
2. Factual conclusions
I do not credit Yarbrough’s testimony as to the existence
of an additional requirement for placement in book 1. The
contract meticulously spells out the requirements for place-
ment in four groups. After Copeland had filed a similar
charge in 1987, the union president informed him that he
was in book 1, without any such additional proof. After
Copeland withdrew the earlier charge, the letter of Respond-
ent’s counsel to the Regional Director in 1987 specified the
eligibility requirements for placement in book 1, but did not
list the additional requirement now asserted by the Union.
When Copeland showed up at the union hall in December
1981 and asked to sign the out-of-work book, Assistant Busi-
ness Manager Rooks, for the first time, told him that he
needed a letter from business manager to business manager,
but did not specify that this letter had to deny that Copeland
was on book 1 in Tucson. The letter actually requested by
Rooks was supplied promptly.
The Union’s demand for proof that Copeland was not on
an out-of-work book in Tucson was not made until after
Copeland filed the current charge. And, even then, the de-
mand varied from Respondent’s position in this proceeding
that it needed proof that Copeland was not on ‘‘book 1.’’
The fact that Respondent asked the Tucson local whether
Copeland was on any out-of-work book, not merely book 1,
is evident from the text of the Tucson local’s reply23 as well
as Copeland’s uncontradicted testimony. What possible sig-
nificance could there have been to Copeland’s name on book
2 in Arizona? According to Business Manager Yarbrough, an
IBEW member could be on book 2 in every local in the
country.
I reject Yarbrough’s testimony that there was any ‘‘prac-
tice’’ establishing a requirement for a book 1 listing other
than the requirements listed in the contract, and I credit
Copeland’s testimony, which is consistent with the agree-
ment.
Although Copeland qualified for book 1 in August 1992,
according to Yarbrough, he was not allowed to see or sign
the book. This was a repetition of the events in 1987, when
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 There is no difference in the contract as to the experience re-
quired for group I or II.
25 The suggestion of Respondent’s counsel in 1987 that Copeland
supply tax returns to establish residence is not the only method of
proving compliance with this requirement. Copeland’s 1987 and
1992 unfair labor practice charges and Respondent’s own records
show that he was a resident of the specified geographical area. Re-
spondent never made an issue of this requirement. 26 280 NLRB at 88.
Copeland was referred out only after filing an unfair labor
practice charge but did not actually sign the book.
On December 18, 1991, Copeland obviously met the re-
quirement of 4 years’ experience in the trade.24 He obviously
had passed the necessary examination and was a resident of
the geographical area specified in the contract.25 Finally, Re-
spondent’s records show that he had worked for at least 1
year during the prior 4 years for employers with whom the
Union had contracts—employers to whom the Union had re-
ferred Copeland. Although the requirement of a ‘‘business
manager to business manager’’ letter is not stated in the con-
tract, Copeland nonetheless provided it in December 1991,
on demand. Accordingly, I conclude that he met the quali-
fications for placement in book 1 on December 18, 1991.
F. Legal Analysis and Conclusions
The Board has stated the applicable law in cases of this
nature, with judicial approval, as follows:
The Board has held that any departure from established
exclusive hiring hall procedures which results in denial
of employment to an applicant falls within the class of
discrimination which inherently encourages union mem-
bership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A)
and (2), unless the union demonstrates that its inter-
ference with employment was pursuant to a valid
union-security clause or was necessary to the effective
performance of its representative function. [Operating
Engineers Local 406, 262 NLRB 50, 51 (1982), enfd.
701 F.2d 504 (5th Cir. 1983).]
More recently, the Board reaffirmed this standard in an-
other case which involved contractual criteria for preference
in referrals which are similar to those in the instant case.
Again, the Board was upheld by a circuit court of appeals.
Electrical Workers IBEW Local 211 (Atlantic Division
NECA), 280 NLRB 85 (1986), enfd. 821 F.2d 206 (3d Cir.
1987). In that case, the union made several out-of-sequence
referrals of job applicants who had signed out-of-work books
after the charging parties had done so. Based on this and
other evidence—the union’s inaction in the face of member-
ship applications by the charging parties—the Board found
violations of Section 8(b)(1)(A) and (2) of the Act.
On appeal, the union’s principal contention was that the
General Counsel had not proved animus toward the charging
parties. The Court of Appeals for the Third Circuit rejected
this argument. Citing authority, it noted that ‘‘a union’s dis-
regard of the contractual rules for operation of a hiring hall
has been considered to be strong evidence of unlawful dis-
crimination in violation of Section 8(b)(2).’’ 821 F.2d at 211.
The court also cited the Supreme Court’s decision in Radio
Officers’ Union v. NLRB, 347 U.S. 17 (1954) to the effect
that a man is held to have intended the foreseeable con-
sequences of his conduct (id.). Based on this principle and
other evidence in the case, the court enforced the Board’s
Order.
A similar conclusion is warranted in this case. Respondent
violated its own criteria for referrals by refusing to allow
Copeland to sign book 1 on December 18, 1991. It referred
another applicant who signed book 1 after Copeland at-
tempted to do so. Although the record does not show that
Copeland specifically mentioned ‘‘book 1’’ on December 18,
he had previously asserted a right to sign it in connection
with his 1987 charge against the Union and had then been
assured by the union president that he was on that book. Al-
though the Union had previously referred Copeland to jobs,
for the first time, in December 1991, it demanded a ‘‘busi-
ness manager to business manager’’ letter, without specifying
what the letter was supposed to contain. The letter was
promptly supplied. Thereafter, Assistant Business Manager
Rooks evaded the book 1 issue by allegedly signing book 2
himself for Copeland.
Any professed doubt by the Union as to the book
Copeland was demanding to sign could have been resolved
by a timely response from Respondent to the repeated re-
quests from Copeland’s attorney, in February and March
1992, for information as to the ‘‘list,’’ or book, in which
Copeland’s name assertedly appeared. Any such response
would have been prior to July 21, 1992, when—according to
Yarbrough—the Union referred Johnny Drake for a job from
book 1. However, Respondent did not answer counsel’s re-
quests for information. From December 1991 through Sep-
tember 1992, Copeland was not allowed to see or sign an
out-of-work book. In 1992, as in 1987, the Union referred
him to a job only after the initiation of Board proceedings.
I conclude that Respondent was deliberately evasive toward
Copeland as to his referral rights.
I also conclude that Respondent has not operated its hiring
hall in accordance with the contractual provisions governing
its procedures. I further find that, by refusing to allow
Copeland to sign book 1 on December 18, 1991, to assure
his priority rights to referral which inured to signatories of
that book, and by failing and refusing to operate its hiring
hall in accordance with the contractual provisions which es-
tablished it, Respondent violated Section 8(b)(1)(A) and (2)
of the Act.
CONCLUSIONS OF LAW
1. CIMCO, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
1579 is a labor organization within the meaning of Section
2(5) of the Act.
3. By failing and refusing to refer applicants for employ-
ment in accordance with the hiring hall practices and proce-
dures set forth in its collective-bargaining agreement with the
Atlanta Chapter, Augusta Division, National Electrical Con-
tractors Association, Respondent thereby violated Section
8(b)(1)(A) and (2) of the Act.26
4. By failing and refusing, since December 18, 1991, to
allow A. Lake Copeland to sign book 1 maintained by it in
connection with its referral system, thereby denying him the
priority rights to referral set forth in the collective-bargaining
31ELECTRICAL WORKERS IBEW LOCAL 1579 (CIMCO)
27 This determination will be made in a compliance proceeding.
Dean General Contractors, 285 NLRB 473 (1987).
28 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).
29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
30 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
agreement described above, Respondent thereby violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom, and take certain reme-
dial actions designed to effectuate the purposes of the Act.
I shall recommend that Respondent be required to refer ap-
plicants for employment in accordance with the provisions of
its collective-bargaining agreement described above. I shall
further recommend that Respondent be required to place A.
Lake Copeland’s name in its book 1 referral list, with date
of December 18, 1991, interlining the book if necessary to
place Copeland’s name at that point. I shall further rec-
ommend that Respondent be ordered to refer Copeland for
future employment, provided that he is not already em-
ployed, in a nondiscriminatory manner and in accordance
with its contractual criteria for such referrals.
Finally, I shall recommend that Respondent be required to
make Copeland whole for any loss of earnings and benefits
he may have suffered because of Respondent’s failure to
refer him for employment as if he had been on book 1 since
December 18, 1991.27 Backpay shall be computed on a quar-
terly basis in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).28
I shall also recommend that Respondent be required to
post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I make the following recommended29
ORDER
The Respondent, International Brotherhood of Electrical
Workers, Local 1579, its officers, 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 At-
lanta Chapter, Augusta Division, National Electrical Contrac-
tors Association.
(b) Failing and refusing to allow A. Lake Copeland to sign
book 1 of its referral system, maintained in accordance with
the collective-bargaining agreement described above, and
from failing and refusing to refer Copeland for employment
in accordance with the priority system thereby established, as
long as he meets the requirements for placement in book 1.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights granted them in Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Operate its exclusive hiring hall in accordance with the
practices and procedures set forth in its collective-bargaining
agreement with the Atlanta Chapter, Augusta Division, Na-
tional Electrical Contractors Association.
(b) Effective December 18, 1991, place A. Lake
Copeland’s name in book 1 of its hiring hall established pur-
suant to the provisions of the collective-bargaining agreement
described above, and refer him for employment in accord-
ance with those principles, as long as he meets the require-
ment for placement in book 1 as set forth in the collective-
bargaining agreement.
(c) Make A. Lake Copeland whole for any loss of earnings
he may have suffered because of Respondent’s discrimina-
tion against him, in the manner set forth in the remedy sec-
tion of this decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all job registration
and referral records and any other documents or records
showing job referrals and work assignments, and the basis
for making such referrals and assignments, job applicants,
and registrants which are necessary to compute and analyze
the amount of backpay due to Copeland, and to determine
his right to referral to jobs under the terms of this Order.
(e) Post at all places where notices to employees, appli-
cants for referral, and members are posted copies of the at-
tached notice marked ‘‘Appendix.’’30 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
be maintained for 60 consecutive days in conspicuous places
including all places where notices to members are customar-
ily posted. Reasonable steps shall be taken by 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
of this Order what steps Respondent has taken to comply.
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 vio-
lated 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.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to refer applicants for
employment in accordance with the hiring hall practices
and procedures set forth in our collective-bargaining
agreement with the Atlanta Chapter, Augusta Division,
National Electrical Contractors Association.
WE WILL NOT fail or refuse to allow A. Lake
Copeland to sign book 1 of our referral system, or fail
or refuse to refer him for employment in accordance
with the priority system established by book 1, as long
as he meets the requirements for placement in book 1.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
WE WILL operate our exclusive hiring hall in accord-
ance with the procedures set out in our collective-bar-
gaining agreement with the Atlanta Chapter, Augusta
Division, National Electrical Contractors Association.
WE WILL place A. Lake Copeland’s name in book 1
effective December 18, 1991, and WE WILL refer him
out for employment in accordance with our collective-
bargaining agreement described above, as long as he
meets the requirements for placement in book 1.
WE WILL make A. Lake Copeland whole, with inter-
est, for any losses he may have suffered because of our
discrimination against him.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL 1579