Electrical Workers IBEW Local 3 (Fairfield Electric)

National Labor Relations Board - Board Decisions

Aug 28, 2000

331 N.L.R.B. 1498 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1498
Local Union No. 3 (White Plains), International
Brotherhood of Electrical Workers, AFL–CIO
and Wayne Hayward and Christopher Kulers
and Michael Conner. Cases 34–CB–2179, 34–
CB–2246, and 34–CB–2299
August 28, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 13, 2000, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Respondent filed cross-exceptions and a supporting
brief, as well as an answering 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 briefs and has decided to
affirm the judge's rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local Union No. 3 (White
Plains), International Brotherhood of Electrical Work-
ers, AFL–CIO, White Plains, New York, its officers,
agents, and representatives, shall take the action set forth
in the Order.

Thomas E. Quigley, Esq., for the General Counsel.
Norman Rothfeld, Esq., for the Respondent.
Michael Connor, an Individual.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Hartford, Connecticut, on September
28–30, 1999. Wayne Hayward, an individual, filed the charge
in Case 34–CB–2179 on May 12, 1998, and amended it on
June 3, 1998.1 The charge in Case 34–CB–2246 was filed by
Christopher Kulers, an individual, on November 30. Based on
these charges, a consolidated complaint issued on April 29,
1999, alleging that the Respondent, Local Union No. 3 (White
Plains), International Brotherhood of Electrical Workers,
AFL–CIO, violated Section 8(b)(1)(A) and (2) of the Act in
various respects through the operation of an exclusive hiring
hall. On May 19, 1999, Michael Conner,2 an individual, filed
the charge in Case 34–CB–2299. A complaint was issued
based on this charge on August 10, 1999, alleging that the
Respondent violated Section 8(b)(1)(A) and (2) by failing and
refusing to register Connor for referral and to refer him for
employment through the hiring hall. The two complaints were
ordered consolidated for trial.

1 The General Counsel and the Respondent have 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.
1 All dates are in 1998 unless otherwise indicated.
2 The Charging Party’s name appears as corrected at the hearing.
Respondent filed timely answers to the complaints denying
the commission of any unfair labor practices and asserting,
affirmatively, that the case was moot because the Respondent
no longer operates the hiring hall which was the subject of the
complaint allegations. On the entire record, including my ob-
servation of the demeanor of the witnesses, and after consider-
ing the briefs filed by the General Counsel and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The New York City Chapter, Westchester-Fairfield Section,
N.E.C.A., Inc. (NECA), is an organization composed of em-
ployers in the electrical construction industry which exists for
the purpose, inter alia, of representing its employer-members
in negotiating and administering collective-bargaining agree-
ments with various labor organizations, including the Respon-
dent. The employer-members of NECA annually purchase and
receive for use within the State of New York goods and mate-
rials valued in excess of $50,000 directly from points outside
the State of New York. By failing to specifically answer these
complaint allegations, the Respondent has effectively admitted
them.3 Accordingly, I find that NECA and its members are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I find further, based on the
Respondent’s failure to specifically answer the complaint
allegation, that the Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent represents journeymen and apprentice elec-
tricians throughout the New York City metropolitan area.
Since 1943, a nonexclusive Joint Industry Board has adminis-
tered the employment plan for contractors working in Respon-
dent’s original geographic jurisdiction. In 1993, Local 501 of
the IBEW, which had previously represented the electricians
in Westchester County, New York, and Fairfield County, Con-
necticut, was merged into the Respondent. Local 501 had op-
erated an exclusive hiring hall in White Plains, New York,
under its collective-bargaining agreements with the West-
chester-Fairfield Section of NECA for many years prior to the
merger. The Respondent continued to operate the exclusive
hall after the merger and continued to negotiate a separate
collective-bargaining agreement with NECA covering West-
chester and Fairfield Counties. Effective August 4, 1999, un-
der the terms of a new collective-bargaining agreement be-
tween the Respondent and NECA, the exclusive hiring hall in
White Plains ceased to exist and responsibility for administer-
ing employment of electricians in Westchester and Fairfield
Counties was transferred to the nonexclusive Joint Industry
Board. The allegations of the complaint deal with the Respon-
dent’s operation of the exclusive hall under its previous collec-
tive-bargaining agreement with the Westchester-Fairfield Sec-
tion of NECA, which was effective for the period May 29,
1996, to May 26, 1999.
3 See Sec. 102.20 of the Board’s Rules and Regulations.
331 NLRB 150
ELECTRICAL WORKERS LOCAL 3 (FAIRFIELD ELECTRIC) 1499
Article VII of the 1996–1999 collective-bargaining agree-
ment sets forth the referral procedure agreed to by the Respon-
dent and NECA and provides, in pertinent part, as follows:

Section 7.04. The Union shall select and refer applicants
for employment without discrimination against such ap-
plicants by reason of membership or non-membership in
the Union and such selection shall not be affected in any
way by rules, regulations, bylaws, constitutional provi-
sions or any other aspect or obligation of Union member-
ship policies or requirements. All such selection shall be
in accord with the following procedures.

Section 7.05. The Union shall maintain a register of ap-
plicants for employment established on the basis of the
Groups listed below. Each applicant for employment shall
be registered in the highest priority Group for which
he/she qualifies.

Journeyperson Wireperson
Journeyperson Technician

Group I. All applicants for employment who have four or
more years’ experience in the trade, are residents of the
geographic area constituting the normal construction la-
bor market, have passed a Journeyperson Wireperson’s
examination given by duly constituted Inside Construc-
tion Local Union of the IBEW or have been certified as a
Journeyperson Wireperson by an Inside Joint Apprentice-
ship and Training Committee and who have been em-
ployed 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 who have passed a
Journeyperson Wireperson’s examination given by duly
constituted Inside Construction Local Union of the IBEW
or have been certified as a Journeyperson Wireperson by
an 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 la-
bor market and who have been employed for at least six
months in the last three years in the trade under a collec-
tive-bargaining agreement between the parties to this
agreement.

Group IV. All applicants for employment who have
worked in the trade for more than one year.

The agreement defines the terms “normal construction labor
market,” “resident,” and “examination” at sections 7.08, 7.09,
and 7.10, respectively. Section 7.11 provides that the Respon-
dent “shall maintain an ‘Out of Work List’ which shall list the
applicants within each Group in chronological order of the
dates they register their availability for employment” and sec-
tion 7.12 requires applicants who have registered on the “Out
of Work List” to renew their application every 30 days. Failure
to do so will result in removal of the applicant’s name from the
list. Under section 7.15, an applicant who is hired but works
35 hours or less, “through no fault of his/her own,” would be
restored to his/her appropriate place on the list.
Section 7.14 of the agreement provides that the Respondent
“shall refer applicants to the Employer by first referring appli-
cants from Group I, in the order of their place on the ‘Out of
Work List’ and then referring applicants in the same manner
successively from the ‘Out of Work List’ in Group II, then
Group III, and then Group IV. Any applicant who is rejected
by the Employer shall be returned to his/her appropriate place
within his/her group and shall be referred to other employment
in accordance with the position of his/her Group and his/her
place within the Group.” Section 7.15 sets forth three limited
exceptions to the above-described order of referral. The collec-
tive-bargaining agreement also establishes a three-member
appeals committee, comprised of a representative of the Re-
spondent, NECA, and a public member appointed by the other
two, to hear and resolve any complaints from employees or
applicants regarding the operation of these referral procedures.
There is no dispute that the appeals committee has not func-
tioned in recent years. W. Dennard Gore, Respondent’s busi-
ness agent who was the designated referral officer for the
White Plains hall, testified that the committee has been dor-
mant because no complaints have been filed.
In addition to these contractual procedures, the Respondent
has adopted a set of “Referral Rules,” one of which is alleged
to violate the Act in several respects. The testimonial and
documentary evidence establishes that the most recent set of
rules was approved by the Respondent’s members at a meeting
in August 1994. These rules replaced an earlier set of “Local
501 Referral Procedure Operating Rules.” The record estab-
lishes that the Respondent sent written notices to its members
of the proposed changes on July 22, 1994, approximately 2
weeks before the vote. There is no evidence that NECA ever
agreed to the Local 501 rules or the 1994 changes adopted by
the Respondent’s members.
Among other things, the Referral Rules set forth the process
by which applicants register for work, obtain referral numbers,
and are placed on the out-of-work list. The rules also describe
the procedure for reregistering every month and the procedure
for receiving and accepting referrals. These rules also establish
procedures for applicants working outside the Respondent’s
jurisdiction for another Local of the IBEW and for applicants
who are sick or disabled. The only one of these rules chal-
lenged by the General Counsel is rule 6, which provides as
follows:

Applicants will maintain their position on the “Available
for Work” list until they have achieved 20 weeks of em-
ployment, only if they are in compliance with the
I.B.E.W. Constitution, the Local Union #3 (White Plains)
Working Agreement, the Local Union #3 Bylaws and the
Local Union #3 (White Plains) Referral Rules. In addi-
tion, any termination for cause, voluntary quit, or request
for termination, will serve to disqualify an applicant from
maintaining an assigned referral number. [Emphasis
added].

Rule 6 was added to the rules as part of the 1994 modifica-
tions. There is no dispute that the contractual referral proce-
dures and the Respondent’s Referral Rules are posted on a
bulletin board in the hiring hall next to the “Out of Work List.”
The General Counsel alleges that the requirement in rule 6
that applicants comply with the I.B.E.W. Constitution and the
Respondent’s working agreement, bylaws, and referral rules
violates Section 8(b)(1)(A) of the Act. The Respondent does
not seriously challenge the General Counsel’s contentions with
respect to this part of the rule, arguing instead that the issue is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1500
moot because the Respondent rescinded the rule in May 1999
on being advised by the General Counsel that a complaint
would issue.
The law is well settled that a union which operates an exclu-
sive hiring hall must not discriminate with respect to registra-
tion and referrals on the basis of membership or nonmember-
ship in the Union. See Sachs Electric Co., 248 NLRB 669, 670
(1980). While a union may adopt rules governing the admini-
stration of the hiring hall, such rules must not discriminate
against applicants based on their membership status.
Boilermakers Local 374 (Combustion Engineering), 284
NLRB 1382, 1383 (1987), enfd. 852 F.2d 1353 (D.C. Cir.
1988). Moreover, the Board has held that rules restricting
members’ rights to resign and/or imposing postresignation
membership obligations violate Section 8(b)(1)(A) because
they restrain and coerce employees in the exercise of their
right to refrain from joining or remaining a member of the
union. Operating Engineers Local 399 (Tribune Properties),
304 NLRB 439 (1991). The rule here is discriminatory on its
face because it requires all users of the hall, member and
nonmember alike, to adhere to the Respondent’s internal rules
as a condition to maintaining their place on the list. The
Respondent’s maintenance of this provision thus violated
Section 8(b)(1)(A) of the Act. The requirement that applicants
comply with the Respondent’s collective-bargaining
agreement with NECA and its referral rules, however, does not
impose membership obligations on nonmembers. A require-
ment that applicants abide by the contract under which they
work and the rules governing the operation of the hiring hall
where they obtain work is a reasonable exercise of the
Respondent’s representative function in administering the
contractual hiring procedures. To the extent that the General
Counsel alleges that this aspect of the rule is unlawful, I
disagree. The Respondent offered evidence that it deleted the offend-
ing provision from rule 6 after being apprised that the rule
violated the Act. Although Gore and the Respondent’s presi-
dent testified that notice of this change was posted in the hir-
ing hall, the Charging Parties did not recall seeing any such
change. In order to escape liability, a respondent’s disavowal
of unlawful conduct must be timely, unambiguous, specific in
nature to the coercive conduct, and free from other proscribed
illegal conduct. Furthermore, there must be adequate publica-
tion and assurances given to employees that the respondent
will not violate the Act. Passavant Memorial Area Hospital,
237 NLRB 138, 138–139 (1978). Accord: Sam’s Club, 322
NLRB 8, 9 (1996). Although the Respondent may have in-
tended to revoke the rule, and may even have posted a revised
version of the referral rules omitting the offending language,
no formal notification to the users of the hall explaining the
change and assuring them that it’s future operation of the hall
would be in compliance with the Act was given. Accordingly,
the Respondent’s effort to remedy this particular unfair labor
practice fell short of the requirements of the Act. Moreover,
because of the confusing testimony of the Respondent’s presi-
dent regarding the manner in which the rule was changed and
posted, I find that the Respondent has not even established that
it in fact effectuated a change in the rules.
The complaint alleges that the Respondent also violated the
Act by posting the out-of-work list without listing the names
of applicants. Christopher Kulers, one of the Charging Parties
and a longtime member of the Respondent and its predecessor
Local 501, testified that, in May 1998, when he went to the
hiring hall to reregister following a layoff, he observed that the
posted out-of-work list did not contain any names, only refer-
ral numbers. Kulers had been working for almost a year and
had not seen the list for some time. He questioned Business
Agent Paul Ryan about this. Ryan told Kulers that the Re-
spondent had removed the names because contractors were
coming down and picking men off the list. Kulers did not pur-
sue the issue further at that time. In November 1998, after
being laid off from another job, Kulers went to the hall and
again observed that the list contained only referral numbers.
This time Gore, the Respondent’s referral officer, was there
and Kulers spoke to Gore about it. According to Kulers, Gore
had the list with names behind the referral window. When
Kulers asked if he could see it, Gore told him he could look at
the list on the wall. Kulers conceded on cross-examination that
this occurred during the time of day when Gore was busy dis-
patching people and that Gore told him he could make a writ-
ten request to look at the book after 10 a.m. Kulers also testi-
fied, on cross-examination, that he “might have” taken the
book from Gore and looked at it. According to Kulers, he
needed to see the names so he could monitor the operation of
the hall, to ensure that referrals were being fairly made. The
Respondent’s counsel elicited testimony from Kulers on cross-
examination that Kulers would often look at the list with a pad
in his hand and copy down who was on the list.
Gore admitted that, for a period of time beginning sometime
in 1998 and continuing until issuance of the instant complaint,
the out-of-work list posted in the hall did not contain names of
applicants, only their numbers. Gore also admitted that Kulers
asked to look at the book containing the names and that he told
Kulers that he did not want him to look at the book because he
was in the middle of making referrals. According to Gore, he
told Kulers that he could look at the list on the board, i.e., the
list without names. Gore recalled further that Kulers made his
request while he was signing the book himself and that he took
the book and looked at it after he finished signing. Gore ex-
plained that the Respondent started posting the list without
names because contractors and their representatives were com-
ing into the hall to see who was at the top of the list before
making a request for employees. If they didn’t like the indi-
vidual at the top, they would delay their request until someone
they wanted to hire reached the top of the list. This testimony
is consistent with the reason Ryan gave to Kulers in May.
The General Counsel relies on those Board decisions hold-
ing that a union violates Section 8(b)(1)(A) of the Act when it
“arbitrarily denies a member’s request for job referral informa-
tion, when that request is reasonably directed towards ascer-
taining whether the member has been fairly treated with re-
spect to obtaining job referrals.” Boilermakers Local 197
(Northeastern State Boilermaker Employers), 318 NLRB 205
(1995). Accord: Operating Engineers Local 3 (Kiewit Pacific
Co.), 324 NLRB 14 fn. 1 (1997). In the instant case, the Gen-
eral Counsel has failed to prove that the Respondent “arbitrar-
ily” denied Kulers request for information or that it otherwise
withheld from employees any information regarding the opera-
tion of the hiring hall. As noted above, Kulers admitted that
he asked to look at the book during the time of day when Gore
was busy dispatching employees. Kulers acknowledged that he
was told he could see the book at another time. Moreover,
although the posted out-of-work list only contained the appli-
cants’ referral numbers, it is undisputed that the books in
which applicants registered contained their names and num-
ELECTRICAL WORKERS LOCAL 3 (FAIRFIELD ELECTRIC) 1501
bers and that these books were available for review and
inspection at times other than when they were being used by
the referral officer for dispatch purposes. Thus, Kulers and
other users of the hall had ample opportunity to review this
information if they believed they were being treated unfairly
with respect to obtaining job referrals.

I find further that the Respondent had a legitimate reason
for omitting names from the posted out-of-work list. In this
regard, I credit Gore’s testimony that the Union started posting
the list with only the applicants’ referral numbers because of
the practice of some contractors of “cherrypicking” off the list.
I note that Gore’s testimony is consistent with the reason
Kulers was given by Business Agent Ryan at a time before any
unfair labor practice charges were filed. A union that operates
an exclusive hiring hall has a legitimate interest in ensuring
that work opportunities are available to all registrants and that
employers do not circumvent the hiring hall procedure in order
to favor some employees over others. The General Counsel
has thus failed to establish that the Union’s practice of posting
the out-of-work list without the names of applicants was “arbi-
trary, discriminatory or in bad faith.” See Plumbers Local 342
(Contra Costa Electric), 329 NLRB 688 (1999). Accordingly,
I shall recommend dismissal of this allegation of the com-
plaint.
Under rule 6 of the Respondent’s Referral Rules, discussed
above, “any termination for cause, voluntary quit, or request
for termination, will serve to disqualify an applicant from
maintaining an assigned referral number.” The evidence re-
veals that the Union enforces this rule by requiring employees
who receive “bad lay-offs,” i.e., terminations other than those
which are part of a reduction in force, to appear before a “re-
ferral review committee” made up of journeymen wiremen.
Gore, the Respondent’s referral officer, is not a member of this
committee but serves essentially as its secretary by issuing the
letters to employees requiring them to attend the meetings and
occasionally taking notes at the meetings. The General Coun-
sel alleges that the Respondent’s maintenance and enforcement
of this rule and the operation of the referral review committee,
in particular its application to Charging Parties Kulers and
Wayne Hayward, violated Section 8(b)(1)(A) and (2) of the
Act.
Hayward, a member of the Respondent for 10 years and a
journeyman since August 1997, testified that he was termi-
nated by Stan Electric on November 29, 1997, a Saturday.
Hayward had worked on this job for 10 days and had been
having problems with the foreman, John Magnotta, from the
first day. At the time of his termination, the foreman simply
told him to pack up his tools and go back to the hall. He was
not given a reason for his termination until he received the
notice of termination in the mail. The reason given on this
form was: “Refuse to cooperate with foreman. Out of work
Area.” Hayward testified that he went to the hiring hall on
Monday, December 1, 1997, and told Gore what had hap-
pened. Hayward told Gore that he wanted to take some action.
Gore asked if Hayward wanted to file charges against the
foreman and Hayward said yes. Gore then asked if Hayward
wanted to go before the referral committee and Hayward again
said yes. Hayward had not heard of the referral committee
before. Hayward attended a meeting of the referral committee
on December 9, 1997. Gore was present with the five jour-
neymen members of the Respondent who comprised the com-
mittee. According to Hayward, no one appeared to be in
charge. He was asked to give his side. Hayward told the com-
mittee that he had asked for safety goggles on the job and had
not been given them and that there was no steward on the job
even though there were 50 electricians working there. He told
the committee that he wanted to file charges against Magnotta,
the foreman, and Rick Patrick, the superintendent on the job,
who were also members of the Respondent, for violating the
constitution and the collective-bargaining agreement.4 Hay-
ward had brought witnesses with him, but was told by the
committee that they didn’t need to hear his witnesses. Hay-
ward asked where were his accusers and why wasn’t Rick
Patrick, the superintendent there? He was told that the com-
mittee already heard their side and now wanted to hear Hay-
ward’s side. According to Hayward, the meeting ended with
the committee telling him he was wrong, but that he would be
returned to the out-of-work list with the same number he had
before. Although Hayward did not receive any referrals be-
tween the date he was terminated and the date he appeared
before the committee, the General Counsel offered no evi-
dence that others with higher numbers were referred during
that time. Hayward was referred to work on December 15,
1997.
On May 11, Hayward was again terminated by an employer,
Fairfield Electric. This termination resulted from an incident
before the start of the workday in the parking garage at the job
site. Hayward admittedly had a verbal confrontation with a
woman who turned out to be an employee of the contractor’s
customer after she tailgated him in the garage. His notice of
termination stated the reason as “abusive language directed to
customer.” Hayward testified that he went to the hiring hall
within a day of his termination and spoke to Gore. Hayward
told Gore he didn’t feel the incident warranted a bad layoff.
Gore agreed with the contractor and told Hayward he would
send the matter to the referral committee. Hayward signed the
book and was given a new referral number on May 12.5 A few
days later, he received a written notice to appear before the
referral review committee on June 3.
Hayward attended the June 3 meeting with Gore and the
same members of the committee. He was again asked to give
his side of the story. He described the incident for the commit-
tee. Hayward told the committee that, although he could un-
derstand the contractor wanting to terminate him, he did not
believe a misconduct termination was warranted because the
incident occurred offsite and off company time. According to
Hayward, Gore sided with the contractor and said that it was
getting to the point he was going to have to tell his boss that
Hayward would no longer be able to be hired.6 Nevertheless,
Gore told Hayward to call the referral phone line the next day
to find out when he would be going back to work. Hayward
4 Hayward did file charges against Magnotta and Patrick on Decem-
ber 10, 1997, the day after this meeting. Although the Respondent
determined that these charges were not warranted on December 22,
1997, Hayward did not receive notice of this action until January 22,
1999, after Hayward made two inquiries regarding the status of his
charges.
5 It is unclear from the record whether Hayward was given a new
number because of his termination or because he had “achieved 20
weeks of employment” by the date of his termination.
6 The record reveals that even before his termination by Stan Elec-
tric, another employer, Ducci Electric, had rejected the Respondent’s
referral of Hayward in October 1997 based on the results of a pre-
employment urine test.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1502
then asked what happened to the charges he had filed against
the foreman and superintendent at Stan Electric, since he had
not heard anything yet. Hayward did not testify to any re-
sponse to this inquiry. Hayward also asked what authority the
committee had to keep him out of work for 3 weeks. Gore
responded “by authority of the Business Manager. It’s in the
referral procedures.” Hayward asked when the members were
notified of this rule and Gore told him “3–4 years ago.” Hay-
ward said he never received this notice, pointing out that he
had been an apprentice at the time. Gore said he should have
gotten notice anyway. When Hayward asked for a copy, Gore
told him it was posted on the board.7 After this meeting,
Hayward was referred again on June 10. Again, the General
Counsel offered no evidence that Hayward missed any work
opportunities during the period between his termination and
his appearance before the committee.
On July 11 Hayward was terminated again under dubious
circumstances, this time by Johnson Electric at a job at the
Clairol plant in Stamford, Connecticut. When Hayward re-
turned to the hiring hall with his termination notice, he was
directed to appear before the referral review committee on July
15. Hayward signed the book with the same number he had
before his referral to Johnson Electric. The termination notice
from this job listed a number of alleged acts of misconduct
which Hayward disputed at the hearing and before the commit-
tee. Hayward contended that the employer, an out-of-town
contractor, trumped up charges against him in order to get rid
of local electricians and keep its regular crew working. One
other employee who had been referred out of the Respondent’s
hall was terminated the same day, for absenteeism. At the
referral review committee meeting on July 15, Hayward was
asked to give his side regarding his termination. According to
Hayward, the committee also had letters from two foremen on
the job supporting Hayward. The meeting ended with Hayward
being told to call the referral line. Hayward did and was re-
ferred out the next day. Again, there is no evidence that others
were referred ahead of Hayward during the period between his
termination and his appearance before the committee.
The job Hayward was referred to on July 16 was with East-
ern Electric. Hayward was laid off about a month later for
“non-production,” which Hayward believed was a bad layoff.
Instead of being called before the committee, Hayward met
with Gore after protesting his layoff to the job superintendent
and owner of the company. The day after he was terminated,
Hayward participated in a conference call with Gore and rep-
resentatives of Eastern Electric during which his termination
was discussed. At the end of the call, Gore told Hayward,
“[D]on’t worry, come down to the hall and we’ll have another
job for you.” Hayward was almost immediately referred to
another job which he held until the job was complete. From
there, Hayward was referred to a second shift job with a con-
tractor called Jansco in Stamford, Connecticut. Kulers was
also working on this job.
The circumstances surrounding Hayward’s termination from
the Jansco job were murky at best. Hayward testified that he
spoke to the owner of the company, Dominic Sanseverino,
shortly after he was transferred to first shift. Hayward asked if
he could be laid off if there was a layoff coming up and his
work was done. According to Hayward, Sanseverino replied

ee.
7 The Respondent’s minutes of this meeting are consistent with
Hayward’s testimony.
that he had Hayward’s money but he needed the work done
before he could let Hayward go. He told Hayward that the
only way he could let Hayward go otherwise was as a volun-
tary quit. Hayward testified that he and Sanseverino agreed
that he would stay and finish the work he was doing and that
he would then receive a reduction in force (RIF) layoff. He
recalled that he worked about another 10 days and received the
RIF layoff notice on November 5. On cross-examination,
while denying that he asked for his paycheck and a pink slip,
Hayward admitted that Sanseverino told him he would not lay
him off because he needed him. Kulers also testified about the
circumstances leading up to Hayward’s layoff. According to
Kulers, Sanseverino approached him in an agitated state, tell-
ing Kulers that Hayward had asked to be laid off. Sanseverino
told Kulers that he did not want to lay off Hayward because he
would not be able to get more men to finish the job and he did
not want to give Hayward a bad layoff. Kulers offered to talk
to Hayward. According to Kulers, he was able to convince
Hayward to stay and finish the work he was doing and San-
severino thanked him for his efforts. Curiously, Hayward did
not corroborate Kulers, nor even mention his involvement in
the events leading up to his layoff.
Hayward testified further that, after he was laid off by
Jansco, he went to the hall with his layoff slip to register for
work. Gore reacted to the layoff slip with surprise, telling
Hayward that he had just sent two men to work for Jansco.
Gore questioned whether Hayward’s layoff was really a RIF
and told Hayward that he would have to call Sanseverino
about it. Hayward signed the list that day, November 6. On
November 13, he received a letter from Gore directing him to
appear yet again before the committee. Hayward called Gore
and asked him what this was all about. Gore told Hayward that
he spoke to Sanseverino and was not satisfied with the expla-
nation he got and that he wanted the matter to go before the
committee. The meeting was scheduled for November 18.
Hayward told Gore that he could not attend the meeting. He
did not give Gore a reason. It is undisputed that Hayward was
unavailable for work from November 13 until December 12.
During this time, he reregistered as required by the contract
and referral rules by submitting an absentee card on December
2. In addition, he wrote a letter to the Union on November 29
questioning Gore’s authority to call him before the committee.
The Respondent’s attorney responded by letter on December
28, explaining the reason that Hayward was requested to ap-
pear before the committee, i.e., the Respondent’s belief that he
had requested the layoff. The attorney concluded the letter by
advising Hayward that the Respondent would not process his
application for referral unless and until he met with the
committ
Hayward returned to the hiring hall on January 4, 1999, and
spoke to Gore. Gore told Hayward that he had to appear be-
fore the next referral committee meeting on January 13, 1999,
before he could be referred. On January 7 or 9, 1999, Hayward
received a call from Gore offering him a referral if he would
agree to go to the meeting with the committee on January 13.
Hayward agreed and was referred out to a job with Healy Elec-
tric. He attended the committee’s meeting on January 13,
1999, and asked the committee why he was there. Hayward
was asked what happened on the job. He told them nothing
happened, he got a reduction-in-force layoff. Hayward was
then shown a letter from Sanseverino in which Sanseverino
stated that Hayward showed up for work at 12:30 on October
ELECTRICAL WORKERS LOCAL 3 (FAIRFIELD ELECTRIC) 1503
31, i.e., 4-1/2 hours late, expecting to get his paycheck and a
pink slip because another employee had been laid off the same
day.8 Sanseverino, in his letter to the Union, explained that he
did not want to lay off Hayward that day because he was in the
middle of a particular assignment that needed to be completed.
Sanseverino reported telling Hayward that if he wanted to be
let go, it would have to be a voluntary quit and that Hayward
told Sanseverino that he wanted to be let go as soon as he
completed his assignment. Sanseverino further advised the
Respondent in his letter that he placed a call for two more men
rather than use the employees he had on the job because of
their poor attitude after he refused to give Hayward a reduc-
tion-in-force layoff on October 31. In response to this letter,
Hayward told the committee that he had volunteered for the
layoff because he knew the job was winding down, he was
living at home, and he felt that other employees with mort-
gages could use the work or, as Hayward described his motive,
it was the “brotherly” thing to do. Hayward was already work-
ing at the time of the meeting. He testified that he has not been
called before the committee since that meeting. There is no
evidence in the record that Hayward has received any further
“bad lay-offs” since his termination from Jansco. As noted
above, the General Counsel conceded that Hayward was un-
available from November 13 through December 12. The Gen-
eral Counsel offered no evidence that Hayward was passed
over for any referrals between November 5, when he was laid
off and November 13, when he became unavailable, or be-
tween December 12 and January 7, 1999, when he was offered
the referral to Healy Electric.
Charging Party Kulers was also summoned to appear before
the referral review committee, by letter dated January 14,
1999. He admitted being aware of the committee’s existence
from other members who had been called before it. On January
14, 1999, Kulers had received a referral to a job with GFI
Electric in Greenwich, Connecticut. According to Kulers, it
was snowing that morning and the roads were bad. It took him
1 hour to get from the hiring hall in White Plains to the job.
When he got there, another employee who had been referred
the same day was already there. Kulers sought out the fore-
man, David Hoyt, and told him that the roads were bad, he was
having car trouble, and he could not start that day. Kulers told
Hoyt he could start the next day. Kulers admitted that Hoyt
told him he needed Kulers that day. Kulers repeated that he
could not start that day, but would start the next. According to
Kulers, Hoyt responded by saying, “[D]o what you got to do.”
Kulers drove home and was told when he got there that GFI
had called and left a message telling him not to report for work
the next day, that he was discharged. On cross-examination,
Kulers admitted that he was not alone when he reported to the
GFI job. His friend, James Stemerman, was in the car with
him. Although Kulers denied that this had anything to do with
his refusal to start work that day, he had no explanation for
what he would have done with his friend had he remained and
worked all day. His answers to counsel’s questions on cross-
examination were frequently evasive and argumentative. As a
result, I was not generally impressed with Kulers’ credibility.
Hoyt, the foreman, testified as a witness for the Respondent.
Hoyt belongs to a different local of the IBEW and is not a
member of the Respondent. According to Hoyt, GFI had re-

8 On cross-examination, Hayward confirmed that he arrived for work
4-1/2 hours late on October 31.
quested employees from the Respondent’s hiring hall to pre-
pare for an inspection scheduled for the following Monday.
The Respondent referred Kulers and one other employee.
Hoyt testified that when Kulers arrived on the job, he told
Hoyt that he had things to do that day and could not start until
the next day. According to Hoyt, Kulers said nothing about the
weather or car trouble. Newspaper reports from that date cor-
roborate Hoyt’s testimony that it was raining, not snowing, in
Greenwich at the time Kulers reported to the jobsite. Hoyt
reported the incident to his boss and obtained the needed man-
power to finish the work from his own local rather than the
Respondent. I credit Hoyt’s testimony over that of Kulers be-
cause I found Hoyt’s description of events more plausible.
After receiving the message from GFI that he had been dis-
charged, Kulers called the hiring hall and spoke to Gore. Gore
told him he had already heard about it. Gore told Kulers that
he would have to go before the committee. Kulers told Gore he
was available for work and asked if Gore was going to refer
him. Gore repeated that Kulers had to meet with the commit-
tee. Kulers told Gore that he would not meet with the commit-
tee. Kulers next received the January 14, 1999 letter, directing
him to appear before the committee on January 20, 1999. As
instructed in the letter, Kulers called the Respondent’s office
and told the secretary the day before the meeting that he would
not be attending.
Kulers testified further that, sometime before January 20,
1999, after he called the referral line and heard numbers higher
than his being referred to work, he went to the hall and spoke
to Gore. He told Gore that there must have been an oversight
because his number wasn’t called. Gore became agitated and
told Kulers that if he had anything to say to him, to put it in
writing. Kulers told Gore that he was available for work and
asked Gore if he was going to refer him out. Gore again told
Kulers to put anything he had to say in writing. The next com-
munication he received from the Respondent was a letter dated
January 28, 1999, from the Respondent’s attorney. The letter
advised Kulers that because he had refused to work for GFI on
January 14, 1999, that employer had called another local union
to get an employee and had complained to the Respondent.
The attorney reiterated Gore’s request that Kulers appear
before the committee and stated that it was the Respondent’s
position that, unless and until he met with the committee, he
would not be referred.
According to Kulers, Business Agent Mickey Whelan called
him in February 1999, after Kulers had been out of work about
4 weeks, and urged him to meet with the committee. Kulers
told Whelan that he did not recognize the authority of the
committee. Whelan suggested he go before the committee and
challenge its authority later. He told Kulers that he was con-
cerned about money Kulers was losing by not working. Kulers
told Whelan that if he was so concerned, to put him back on
the list. Kulers testified that Whelan called him again about 2
weeks later and asked if he wanted to go to work. Kulers said
he did. Whelan told him to come to the hall and pick up a re-
ferral slip. When Kulers inquired about his referral number, he
was told that it had been changed by the committee. The next
day, March 2, 1999, Kulers went to the hall and was referred
out to a job with Modern Electric in Thornwood, New York.
Kulers was not called before the committee again and worked
continuously until the hiring hall ceased operations in August
1999. The General Counsel showed, through referral slips, that
other applicants with numbers higher than the number Kulers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1504
had at the time of his refusal to work at GFI were referred to
employment during February 1999.
The General Counsel also offered evidence that one other
member of the Respondent, Anton Pavlicheck, was given a
new, higher, referral number after a meeting with the referral
review committee in May 1998. Gore conceded that this was
done as “punishment” after a difficult meeting. According to
Gore, Pavlicheck had been called before the committee after
refusing two referrals. The meeting was “difficult” because
Pavlicheck was angry. General Counsel also offered evidence
that at least one employee who quit a job, Joseph Conroy, was
not called before the committee. His termination slip indicates
that he quit on February 19, 1999, because he was leaving
town. The record reveals that he was referred to another job a
week later. Gore testified that no employee has been directed
to appear before the committee for quitting a job to leave
town.
The Respondent’s president, McSpedon, and Gore testified
that the Respondent adopted rule 6 in response to problems it
encountered organizing nonsignatory contractors in the
jurisdiction of the Respondent’s White Plains chapter.
Contractors frequently told representatives of the Respondent
that they did not want to use its hiring hall because they were
not satisfied with the performance and attitude of applicants
referred from the hall. The facts regarding Hayward’s multiple
terminations within his first year as a journeyman and Kulers’
refusal to work when referred to the job in Greenwich tend to
corroborate the testimony of the Respondent’s witnesses in this
regard. Significantly, Kulers’ testimony that employees were
free to quit a job at will or ask for a layoff, even when work
was available, displays an attitude not conducive to productive
employment. The rule under which the referral review
committee was established was intended to address the
contractors’ concerns by providing a forum for the Respondent
to look into why employees were getting bad layoffs.
According to Gore, an employee receiving such a layoff, or
voluntarily quitting a job, would be asked to meet with a panel
of his peers before being referred again as a form of counseling.
The record establishes that Hayward and Gore were not the
only applicants to be called before the committee. Gore
testified, however, that Kulers was the first to refuse to meet
with the committee. The Respondent did not dispute the testimony of Hayward
regarding what transpired at his four meetings with the referral
review committee. In addition, Gore admitted that employees
who are directed to appear before the committee are not eligi-
ble for referrals until they meet with the committee. Gore fur-
ther admitted that Kulers’ name was taken off the out-of-work
list after he failed to attend the committee’s January 20, 1999
meeting. The evidence in the record shows that Kulers name
was returned to the list with a new number on February 11,
1999. Gore testified that this was done after the committee met
again and decided to restore Kulers to the list.
The complaint contains several allegations related to the op-
eration of the referral review committee. In paragraph 8, the
General Counsel alleges generally that the Respondent has
operated the hiring hall since December 1997 arbitrarily and
without reference to published objective criteria and standards.
The General Counsel argued specifically at the hearing that
this allegation was based on the claim that the Respondent had
no established procedures governing the referral review com-
mittee and that Gore was arbitrary in his decisions with respect
to when an employee would be referred to the committee.
Paragraph 10 specifically alleges that the Respondent’s main-
tenance and enforcement of the referral review committee
effectively denied work to unit employees arbitrarily and
without reference to published objective criteria and standards
in violation of Section 8(b)(1)(A) and (2). Finally, in para-
graphs 12 through 15, the General Counsel alleges that Hay-
ward and Kulers were unlawfully denied work during speci-
fied periods of time as a result of their being required to appear
before the referral review committee. As noted above, the
Respondent contends that the issue is moot because it no
longer operates an exclusive hiring hall. The Respondent ar-
gues further that the disputed rule 6 and the referral review
committee were a lawful exercise of the Respondent’s discre-
tion in carrying out its representative duties as administrator of
the contractual hiring hall.
Judge Clifford Anderson succinctly summarized the law
with respect to a union’s operation of an exclusive hiring hall
in the following language from his decision in Electrical
Workers Local 6 (San Francisco Electrical Contractors),9
which was adopted by the Board:

The union operating a hiring hall owes referral appli-
cants a duty of fair representation and is obligated to oper-
ate the hiring hall in a manner free from any arbitrary or
invidious considerations . . . . A union’s obligations ap-
plies (sic) to all rules and procedures governing hiring hall
operations. Such rules may not be arbitrarily or
discriminatorily applied against individuals who are not
members of the particular local union operating the hiring
hall. The Board does not require that hiring hall rules and
procedures be written . . . . Nor need referral rules, absent
a contractual requirement, be posted or incorporated in a
contract . . . . Rather the Board requires . . . . that the con-
tractual provisions and referral rules be followed and that
objective criteria be utilized . . . . A union which operates
a hiring hall without such objective criteria violates the
Act.
Hiring hall rules may be changed by a union . . . .
Timely notice of such changes must be made of changes in
hiring hall rules and practices to all hiring hall users . . . .
Further a union is obligated to supply information about
the hiring hall procedures and particular individuals’
places on the register upon request.

318 NLRB supra at 124 (citations omitted).
The Board recently reaffirmed the principal that the duty of
fair representation applies to a union’s operation of an exclu-
sive hiring hall and that this duty is breached only by conduct
toward a unit employee that is “arbitrary, discriminatory or in
bad faith.” Plumbers Local 342 (Contra Costa Electric), 329
NLRB 688 (1999). The Board rejected the notion that a union
is held to a higher standard with respect to its hiring hall ac-
tivities than that governing its other activities. In Contra Costa
Electric, the Board specifically held that a negligent failure to
refer an applicant did not violate Section 8(b)(1)(A) and (2) of
the Act, over ruling contrary precedent. Although the Board’s
holding was a narrow one, the language of the decision and the
Board’s citation to the Supreme Court’s decisions in two
cases10 provide guidance to resolving the issue in the instant

9 318 NLRB 109, 124 (1995).
10 Steelworkers v. Rawson, 495 U.S. 362 (1990), and Air Line Pilots
Assn. v. O’Neill, 499 U.S. 65 (1991).
ELECTRICAL WORKERS LOCAL 3 (FAIRFIELD ELECTRIC) 1505
case. In particular, the Board questioned the validity of its
prior holding in Operating Engineers Local 406 (Ford, Bacon
& Davis Construction Corp.),11 relied on by the General
Counsel here. In that case, the Board held that any departure
from established procedures which results in the denial of
employment to an applicant falls within the class of discrimi-
nation which inherently encourages union membership and
breaches the duty of fair representation owed to all users of the
hiring hall. To rebut this presumption, a union was required to
demonstrate that its interference with employment opportuni-
ties was pursuant to a valid union-security clause or was nec-
essary to the effective performance of its representative func-
tions. In Contra Costa Electric, the Board suggested that a
breach of the duty of fair representation would be found where
there is a deliberate, volitional departure from established pro-
cedures or evidence of gross negligence indicating a disregard
for established procedures. The Board appears to have adopted
the Supreme Court’s definition of “arbitrary,” as set forth in
O’Neill, i.e., behavior that is so far outside a wide range of
reasonableness as to be irrational.
In the present case, the evidence shows that the Respondent
did have established procedures for the operation of its hiring
hall in White Plains. These procedures were contained in the
collective-bargaining agreement and its referral rules adopted
by the Respondent’s members. I do not agree with the General
Counsel that the rules were a departure from the established
contractual procedures. On the contrary, they were a supple-
ment to these procedures which spelled out in detail how the
contractual hiring hall would be operated. With the exception
of that portion of rule 6 found unlawful above, nothing in the
rules conflicted with the language of the contract requiring the
Respondent to refer applicants on a nondiscriminatory basis in
accordance with classifications spelled out in the contract. In
particular, the rule disqualifying an applicant from maintaining
his place on the list in the event of a termination for cause,
voluntary quit, or request for termination, advanced the legiti-
mate interests of the Respondent and the signatory employers
in preventing applicants from circumventing the hiring hall by
picking and choosing their employment and ensuring contin-
ued use of the hiring hall by contractors. The Board has in the
past upheld a union’s nondiscriminatory hiring hall rules
which serve such purposes. See Boilermakers Local 40 (Envi-
rotech Corp.), 266 NLRB 432 (1983). Cf. Boilermakers Local
667 (Union Boiler Co.), 242 NLRB 1153, 1155 (1979) (While
conceding the union’s legitimate interest in having a rule pe-
nalizing applicants who quit jobs to which they are referred,
the Board found a violation on the basis that the rule was not
publicized to applicants). In the present case, the disputed rule
was not only posted in the hiring hall for all applicants to see,
but had been voted on by members of the Respondent who
used the hall, after due notice regarding the proposed rule
changes. Under these circumstances, I do not agree with the
General Counsel that the maintenance and enforcement of this
aspect of Rule 6 was unlawful.
I also do not agree with the General Counsel that the Re-
spondent’s enforcement of this rule through the operation of
the referral review committee breached the Union’s duty of
fair representation or unlawfully discriminated against appli-
cants for employment. The General Counsel has offered no
evidence that the Respondent used the committee as a device

ayward and Kulers.
11 262 NLRB 50 (1982).
to deny employment to nonmembers or union dissidents. On
the contrary, the evidence in the record establishes that the
committee was invoked in response to information received by
the Respondent indicating an employee had been fired for
cause or voluntarily quit employment. Hayward and Kulers
were not singled out because of their status as members or
nonmembers, nor in retaliation for their exercise of any statu-
torily protected right. They were directed to meet with the
committee because their employment was terminated for one
of the reasons specified in rule 6. As noted above, the Respon-
dent has a legitimate interest in ensuring that contractors con-
tinue to use the hall or that employees do not unfairly circum-
vent the hiring hall by quitting one job to take another. As is
evident from the facts in this case, employees like Kulers and
Hayward who are willing to abandon employment before their
job is done adversely affects other users of the hall because
employers will be reluctant to rely on the Respondent as a
source of labor if it cannot count on employees referred from
the hall to stay until the work is done. To the extent there is
any credibility dispute on this issue, I credit the testimony of
Gore and McSpedon and find that the Union’s use of the refer-
ral review committee to enforce rule 6 was necessary to the
effective performance of its representative functions.
The General Counsel argues that Gore was arbitrary with
regard to his selection of employees to meet with the referral
review committee to the extent that applicants and employees
were left with little guidance in determining when they would
be subject to rule 6. I disagree. Rule 6 is clear and unambigu-
ous on its face. It provides that “any termination for cause,
voluntary quit, or request for termination” would subject an
employee to losing his place on the out-of-work list. Because
the members themselves approved of this rule and the rule was
posted in the hiring hall for all users to see, it can hardly be
said that applicants were not on notice regarding the type of
conduct which would cause them to be directed to appear be-
fore the committee. The evidence offered by the General
Counsel showing isolated cases where an employee quit or
was terminated for cause and was not required to appear be-
fore the committee is insufficient to establish that the Union’s
conduct was “so far outside a wide range of reasonableness as
to be irrational.” Air Line Pilots Assn. v. O’Neill, supra 499
U.S. at 78. The General Counsel has not shown that Gore’s
decision to call Hayward and Kulers before the referral review
committee was motivated by “hostile, invidious, irrelevant, or
unfair considerations” or was anything other than the good
faith exercise of his discretion as the referral officer. See
Plumbers Local 40 (Mechanical Contractors Assoc. of
Washington), 242 NLRB 1157, 1163 (1979). On the contrary,
the testimony of Hayward himself, the reports and
correspondence Gore received from the respective employers
and the testimony of Hoyt regarding Kulers’ refusal to work
on January 14, 1999, provided ample justification for
application of rule 6 to H
As noted above, the General Counsel failed to prove that
Hayward in fact lost work as a result of the four times he was
required to appear before the committee to answer questions
regarding his terminations. Although the record does show that
Kulers was bypassed for referrals during the approximately 6-
week period that he refused to appear before the committee, I
find that this was the result of the Respondent’s good-faith
application of a reasonable hiring hall rule of which all users
of the hall had at least constructive notice. Moreover, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1506
Kulers’ case, the evidence establishes that he had actual notice
of the rule. Thus, Kulers acknowledged receiving notice of the
August 1994 meeting at which rule 6 was adopted by the Re-
spondent’s members. Accordingly, I find that the Respondent
did not violate Section 8(b)(1(A) or 8(b)(2) by either the main-
tenance and enforcement of rule 6 or its application to Hay-
ward and Kulers in 1998 and 1999. I shall thus recommend
dismissal of these complaint allegations.
Finally, the complaint alleges that the Respondent violated
Section 8(b)(1)(A) and (2) by failing and refusing to register
Conner on the out-of-work list and to refer him for employ-
ment because he was not a member of the Respondent. The
facts regarding this allegation are not in dispute. Conner testi-
fied that he went to the Respondent’s hiring hall on or about
March 26, 1999, seeking to register for book 2. under the col-
lective-bargaining agreement, conner qualified for book 2
because he had 4 or more years experience in the trade and had
been certified as a journeyman wireman by a recognized Joint
Apprenticeship and Training Committee. Conner was not a
member of any union at the time he sought to register although
he had been a member of Local 363 of the IBEW until August
1998. According to Conner, when he went to the referral win-
dow and asked to sign book 2, Gore asked him what local he
was from and if he had a dues receipt. Conner told Gore that
he was not a member of the Union at the time but that he had
his credentials. He then showed Gore his credentials establish-
ing his status as a certified journeyman. Gore told Conner that
there was no work for book 2 but that there was M-rated work
available.12 Gore handed Conner a piece of paper to leave his
name and phone number if he was interested in such work.
Conner filled out the paper. He then asked Gore if he could see
book 2. Gore again told Conner that there was no work for
book 2 and that he didn’t see any coming up in the near future.
He told Conner that, even if there was work for book 2, he
would have to give it to Local 3 members from New York
City. Conner again asked to see Book 2 to see if any Local 3
members had signed it. Gore refused to let him see book 2.
Conner gave the form with his name and phone number to
Gore and Gore told him he would call if there was any M-rated
work. Conner then left the hall.
Conner testified that he returned to the Respondent’s hiring
hall about 2 weeks later, on or about April 9, 1999, and again
asked to sign book 2. This time, Gore was not there and Con-
ner spoke to Business Agent Ryan. Ryan told Conner that he
would have to return when Gore was there and discuss it with
him. Conner asked Ryan if he could see book 2 and Ryan re-
fused. According to Conner, Ryan was getting “antsy,” so
Conner left to avoid any troubles. Although Conner acknowl-
edged being called by the Respondent’s attorney and offered
M-rated work after he filed his unfair labor practice charge, he
has not been offered any book 2 work, nor has he been permit-
ted to sign book 2. Gore testified that he first opened Book 2 to
make referrals in mid-May 1999.
Although Gore disputed some of Conner’s testimony regard-
ing their meeting on March 26, 1999, he did not dispute the

12 These are jobs, such as residential work, or teledata, work that pay
a significantly lower rate. The Union maintains a separate list of em-
ployees available for such work. Under the Respondent’s hiring hall
rules, an employee who accepts M-rated work maintains his place on
the regular out-of-work list and can quit the M-rated job when a regular
job becomes available.
testimony that he refused to let Conner sign or see book 2. Ac-
cording to Gore, he told Conner that he had to research his “re-
ciprocation papers” because Conner was not a member of any
local. Gore testified that he also told Conner that there was no
work available for book 2. The issue with respect to “reciproca-
tion” is the process by which the Respondent sends fringe bene-
fit contributions to the home local of travelers working within
the Respondent’s jurisdiction. Gore testified that he had never
been faced with a request by someone who did not belong to any
local union to sign a book and he did not know where to send
the fringes if Conner were to be referred from the Respondent’s
hall. Gore testified further that, in doing his subsequent “re-
search,” he obtained information from Conner’s former local
union indicating that Conner was involved in “litigation” with
that union. Gore also testified that when he first opened book 2,
in mid-May 1999, he called Conner’s former local to try to lo-
cate Conner and was told by the Business Agent there that Con-
ner was working at West Point. It appears that Gore made no
further effort to contact Conner.
The law is well settled that a union that operates an exclu-
sive hiring hall violates the Act when it refuses to allow a
nonmember to sign the highest priority referral list for which
they are eligible. Electrical Workers Local 6 (San Francisco
Electrical Contractors), supra; Sachs Electric Co., supra. Even
assuming, as Gore testified, that there was no work available at
the time for book 2, it was nevertheless unlawful to deny Con-
ner the opportunity to place his name on the list so that he
would be eligible for such work when it became available.
Gore’s contention that he had to “investigate” Conner’s
reciprocals does not excuse the refusal to let him sign the book
on March 26, 1999. Because there was no work then available,
Gore would have plenty of time to resolve this issue before
any fringe benefit contributions were made on Conner’s be-
half. I also find irrelevant the proffered evidence indicating
that Conner was in the midst of a legal dispute with his former
local at the time he sought to register for work with the Re-
spondent. Nothing in the contract, the Respondent’s referral
rules, or the Act would permit a denial of access to the hiring
hall on such a basis. Accordingly, I find that the Respondent
violated the Act as alleged when it failed and refused to regis-
ter Conner on the out-of-work list on March 26, 1999.
CONCLUSIONS OF LAW
1. The New York City Chapter, Westchester-Fairfield Sec-
tion, N.E.C.A. and its individual members are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By requiring employees who use its exclusive hiring hall
to comply with the Constitution of the International Brother-
hood of Electrical Workers and the Respondent’s by-laws, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and Sec-
tion 2(6) and (7) of the Act.
4. By failing and refusing to register Michael Conner on the
out-of-work list on March 26, 1999, and by thereafter refusing
to refer him for employment because he was not a member of
the Respondent, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.
ELECTRICAL WORKERS LOCAL 3 (FAIRFIELD ELECTRIC) 1507
5. The Respondent has not committed any other unfair labor
practices alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In order to remedy the fail-
ure to register Conner on the out-of-work list, I shall recom-
mend that the Respondent be ordered to make him whole for
any wages and benefits lost as a result of its failure to place his
name on the book 2 list effective March 26, 1999. The make-
whole remedy shall extend until the date that the Respondent
ceased operating its exclusive hiring hall in White Plains pur-
suant to its current collective-bargaining agreement with
NECA. Because the Respondent has already rescinded the
unlawful rule requiring hiring hall applicants to comply with
internal union rules and because the Respondent no longer
operates an exclusive hiring hall, I shall not recommend any
prospective relief for this violation. However, I shall recom-
mend a notice posting to ensure all members and employees
are aware of their statutory rights and that they have been vin-
dicated through the board’s processes. Because the hiring hall
is no longer operating, I shall recommend that a copy of the
notice be mailed to all registered users of the hall, at their last
known address, who were on any of the Respondent’s out-of-
work lists during the period from December 1, 1997, a date
approximately 6 months before the first unfair labor practice
charge was filed, until the hiring hall ceased operations.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Local Union No. 3 (White Plains), Interna-
tional Brotherhood of Electrical Workers, AFL–CIO, White
Plains, New York, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Maintaining and enforcing a rule requiring applicants
who use any exclusive hiring hall operated by the Respondent
to comply with the IBEW constitution and the Respondent’s
by-laws in order to maintain their place on the out-of-work
list.
(b) Failing and refusing to register any applicant on the
highest priority out-of-work list for which they are eligible and
refusing to refer an applicant because they are not a member of
the Respondent.
(c). 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 necessary to effec-
tuate the policies of the Act.
(a) Make Michael Conner whole, with interest, for all wages
and benefits he lost as a result of the Respondent’s failure and
refusal to register him in book 2 for the period from March 26,
1999, until the Respondent ceased operating its White Plains
hiring hall.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(b) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
hiring hall records, referral slips, and all other records neces-
sary to analyze the amount of backpay due under the terms of
this Order.
(c) Within 14 days after service by the Region, post at its un-
ion office and hiring hall in White Plains, New York copies of
the attached notice marked “Appendix.”14 Copies of the notice,
on forms provided by the Regional Director for Region 34,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees and
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix”15 to all users of the
hiring hall previously operated by the Respondent under its
collective-bargaining agreement with the New York City Chap-
ter, Westchester-Fairfield Section, N.E.C.A. who were regis-
tered on the out-of-work list at any time from December 1,
1997 until the Respondent ceased operation of the hiring hall.
The notice shall be mailed to the last known address of each of
the employees after being signed by the Respondent’s author-
ized representative.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible offi-
cial on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.
APPENDIX
NOTICE TO EMPLOYEES
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.
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 maintain and enforce any rules requiring
applicants who use any exclusive hiring hall operated by us to
comply with the IBEW constitution and our by-laws in order
to maintain their place on the out-of-work list.
14 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
15 See fn. 14, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1508
WE WILL NOT fail and refuse to register any applicant on
the highest priority out-of-work list for which they are eligible
and refuse to refer them for employment because they are not
a member of the our union.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL make Michael Conner whole, with interest, for all
wages and benefits he lost as a result of the our failure and
refusal to register him in book 2 for the period from March 26,
1999 until we ceased operating the White Plains hiring hall.
ELECTRICAL WORKERS LOCAL NO. 3
(FAIRFIELD ELECTRIC, INC.)