Fassbach Electric Co.

National Labor Relations Board - Board Decisions

Jun 30, 1977

230 N.L.R.B. 626 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union 379 (Fassbach Electric Co.) and
Johnny Franklin Teal. Case 11-CB-566
June 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 11, 1977, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
with supporting arguments.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, International Brotherhood of Electrical Work-
ers, Local Union 379, Charlotte, North Carolina, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(d):
"(d) In any other manner restraining or coercing
employees in the exercise of rights guaranteed them
under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In par. I(d) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner,"
rather than the broad injunctive language, "in any other manner," which the
Board traditionally provides in cases involving serious 8(bX2) discriminato-
ry conduct. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941). Accordingly, we shall modify the recommended Order to require the
Respondent to cease and desist from in any other manner infringing upon
employees rights. This change is also made in the revised notice.
230 NLRB No. 82
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act and
has ordered us to post this notice and to carry out its
provisions.
WE WILL NOT cause or attempt to cause any
employer to deny employment to, or in any other
manner to discriminate against, Johnny Franklin
Teal or any other employee or applicant in
violation of Section 8(a)(3) of the National Labor
Relations Act.
WE WILL NOT refuse to refer Johnny Franklin
Teal or any other employee or applicant for
employment because they make or file complaints
about our referral system, or because of any other
arbitrary and unfair consideration.
WE WILL NOT threaten employees with reprisal
or loss of job referrals because they make or file
complaints under our collective-bargaining con-
tracts.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act, including the
right to make or file complaints or grievances
under a collective-bargaining contract.
WE WILL refer Johnnny Franklin Teal for
employment to positions for which he is qualified,
on an equal and nondiscriminatory basis with
other employees and applicants.
WE WILL make whole Johnny Franklin Teal for
any loss of earnings he may have suffered by
reason of the discrimination against him with
interest at 6 percent per annum.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL UNION 379
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard at Gastonia, North Carolina, on December 14 and
15, 1976. The charge was filed on January 16, 1976, by
Johnny Franklin Teal, an individual. The complaint, which
issued on March 22, 1976, and was amended on September
2, 1976, and at the hearing, alleges that International
626
IBEW, LOCAL UNION 379
Brotherhood of Electrical Workers, Local Union 379
(herein called the Union or Respondent), violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended. The gravamen of the complaint is that the Union
violated Section 8(b)(I)(A) by threatening to discriminate
against Teal in job referrals, and that since on or about
July 17, 1975, the Union has violated Section 8(bXl)(A)
and (2) by refusing to refer Teal for employment with
Fassbach Electric Co., Inc., Dixie Mechanical Corpora-
tion, Ross Electric Company, and K. W. Lail Electric
Company (herein called respectively Fassbach, Dixie,
Ross, and Lail) because of arbitrary and unfair considera-
tions. The Union's answer, as amended, denies the
commission of the alleged unfair labor practices. All
parties were afforded full opportunity to participate, to
present relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Only the
General Counsel filed a brief.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses, and having
considered the brief submitted by the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT UNION AND ITS AGENTS
The Union, which maintains its office and hiring hall in
Charlotte, North Carolina, is a labor organization within
the meaning of Section 2(5) of the Act. S. Eugene Ruff is
the Union's business manager and financial secretary, and
in that capacity has, since July 1969, functioned as the
Union's managing agent. Margaret Higgins is Ruffs
secretary, and has served in that capacity for Ruff and his
predecessors for 25 years. Higgins has authority, subject to
Ruffs direction and instructions, to refer or recommend
applicants or employees for employment through the
Union's referral system. Ruff and Higgins are each agents
within the meaning of Section 2(13) of the Act, and have
been and are now agents of the Union acting on its behalf.
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Fassbach, Dixie, Ross, and Lail are, and were at all times
material, engaged in the business of electrical contracting.
As employers in the building and construction industry, all
are employers engaged in commerce or in an industry
affecting commerce within the meaning of the Act.
N. LR.B. v. Denver Building and Construction Trades
Council, et al. (Gould & Priesner), 341 U.S. 675, 683-684
(1951); Local 20, Sheet Metal Workers Association, AFL-
CIO (Bergen Drug Company, Inc.), 132 NLRB 73 (1961).
Fassbach and Dixie perform electrical contracting services
in North Carolina, and in the course of their respective
operations, each annually receives at its North Carolina
jobsite locations, electrical supplies and other goods and
materials valued in excess of $50,000 which are shipped
indirectly from States other than North Carolina. Ross and
t Moreover, General Counsel is alleging. in essence, that the Union
engaged in a single course of action directed at Teal. As two of the involved
employers. considered alone, meet the Board's jurisdictional standards, it
would effectuate the policies of the Act to assert jurisdiction over the entire
Lail are based in North Carolina. General Counsel does
not contend that the operations of either, standing alone,
meet the Board's self-imposed standards for the assertion
of its jurisdiction. However, all four employers are
members of Carolinas Chapter of the National Electrical
Contractors Association (herein called NECA), a multiem-
ployer bargaining association which is the collective-
bargaining agency for its contractor members who employ
labor at jobsites in the electrical construction industry. By
virtue of their membership in NECA, the four employers
are, and have been at all times material, parties to a
collective-bargaining contract between NECA and the
Union covering such labor. I find that, for the purposes of
the Board's jurisdictional standards, NECA and its
members constitute a single employer, that their collective
operations meet the Board's indirect inflow standard for
nonretail enterprises, and that it would effectuate the
purposes of the Act for the Board to assert its jurisdiction
in this case. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (Atlas Reid, Inc.), 170 NLRB 584, 585
(1968).'
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union's Referral System and Teal's
Grievance
The current collective-bargaining contract between
NECA and the Union, effective from June 1, 1975, to May
31, 1976, provides for a referral procedure whereby "the
Union shall be the sole and exclusive source of referrals of
applicants for employment." The contract requires the
Union to maintain an "Out of Work List" of job applicants
within each of four priority groups, in chronological order
of the dates on which the applicants register their
availability for employment. In fact, at least at the times
material to this case, the Union maintained a list consisting
of only two categories: journeymen and apprentices. Teal
is a journeyman electrician. His qualifications, as indicated
by an application form filed by him on January 9, 1976,
would have placed him no lower than the second priority
category provided for under the contract during the times
material to this case. Under the contract, an employer may
reject an applicant. However, he cannot request a specific
applicant, although he may "state ... bona fide require-
ments for special skills and abilities," in which case the
Union must refer the first person on the list possessing such
skills and abilities. Otherwise, with the exception of a
requirement that one in each five referrals must be over age
50 (which requirement was not relevant to any of the
referrals at issue in this case), the contract provides that
applicants must be referred in order of their place on the
out-of-work list in their priority group. An applicant who
rejects a job or who is rejected for employment may
reregister and thereby maintain his place on the list. An
applicant who is referred for employment but through no
fault of his own receives less than 41 hours' work (i.e., is
not discharged for cause), may also reregister and resume
case, even if the other two employers were not parties to multiemployer
bargaining. Compare, Madison Building & Construction Trades Council.
William Arnold et al. (H & K Lathing Co., 134 NLRB 517 ( i961).
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his place on the list. Otherwise, upon reregistering, an
applicant who has been referred for work and is once again
out of work (e.g., has been laid off after working 41 hours
or more), must go to the bottom of the list in his priority
group.
The contract further provides for an appeals committee,
consisting of one member appointed by the Union, one by
NECA, and a public member appointed by the other two,
which is empowered to consider and make a binding
decision on any complaint by an employee or applicant for
employment concerning the Union's administration of the
referral system. Prior to Teal's complaint, the appeals
committee procedure had not been involved, at least in the
recent past. On June 30, 1975,2 Teal complained to
Business Manager Ruff that other employees were being
referred to jobs ahead of him. Teal had been on the out-of-
work list continuously since December 13, 1974, when he
was laid off from a job with Industrial Electric Company.
Ruff told Teal, in essence, that he saw the problem in a
different light. Ruff informed Teal that five contractors to
whom Teal had previously been referred had informed the
Union that they did not want Teal back again, because of
Teal's alleged excessive absenteeism or tendency to quit a
job. Teal expressed disbelief and suggested that an appeals
committee be convened. Ruff attempted to dissuade Teal
from making such a request. Ruff testified that he told Teal
that Teal would have to make his request through Union
President Fred Wilson. However, when Teal spoke to
Wilson on July 31, Wilson told him that Ruff was
responsible for setting up the committee. Teal, who lives in
Cheraw, South Carolina, then telephoned Union Interna-
tional Vice President E. W. Burnette in Chattanooga,
Tennessee, who told Teal to send a letter to Ruff. Teal then
sent a letter to Ruff requesting him to set up an appeals
committee. Eventually it was Ruff, and not Wilson, who
invoked the appeals committee procedure. Ruff did not
submit Teal's request to the committee and request a
committee hearing on Teal's complaint, until August 27, 1
week after Teal telephoned Ruff to ask whether the
committee had been set up. In that telephone conversation
Ruff again sought to dissuade Teal from proceeding with
his complaint, although the manner in which he did so is
largely in dispute and will be discussed, infra. According to
Ruff, there was some delay in setting up the appeals
proceeding because of the difficulty of obtaining a public
member. Ruff testified that it had been assumed that
Henry Mummaw, the public member of the board of
trustees which administered the contractual fringe benefit
funds, would serve on the appeals committee, but that
Mummaw indicated that he was too busy to do so.
However, Ruff's letter of August 27, invoking the appeals
committee procedure was addressed to three ostensible
members of the committee, including Mummaw. Thus,
Ruff was unaware as of this late date that Mummaw was
unavailable. In light of the foregoing evidence, including
Ruffs misrepresentation to Teal as to Ruffs responsibility
for setting up the appeals committee, and Ruffs 'evident
procrastination in the matter, I find that the Union
deliberately sought to give Teal a runaround in order to
discourage him from invoking the appeals committee or,
failing that, to avoid a hearing on Teal's complaint.
The appeals committee met on September 23, when it
heard Teal's complaint, and on October 16 it issued a
written decision in the matter. The committee ruled against
Teal, but criticized certain aspects of the manner in which
the Union conducted its referral system. As a result of the
decision, which came about as a result of Teal's complaint,
the Union subsequently made substantial changes in its
referral system.
As indicated, Teal had telephoned Ruff on August 20 to
inquire about the status of the appeals committee.
According to Teal, Ruff told him that the committee had
not been set up and that Teal would have to see Wilson
about it. Teal further testified that Ruff told him: (1) he
would see that Teal never worked again in Charlotte; (2) he
(Ruff) would do everything possible to hurt him, adding
that, if he could, he would take Teal's union card and
ticket; and (3) he would laugh Teal out of the appeals
committee meeting. (In the interest of brevity, the alleged
statements are sometimes herein referred to by the
indicated numbers.) According to Teal, he asked for copies
of referral slips and other union records, but was told by
Ruff that he would get them at the hearing. Ruff, in his
testimony denied (1) and (2) above, and gave a somewhat
different version of (3). According to Ruff, he told Teal
that if he (Ruff) had Teal's work record he wouldn't want
to go before the appeals committee, and that if the
committee had seen that record on one sheet of paper, they
probably would have summoned Teal before an appeals
committee. Ruff testified that he told Teal that he had
turned the matter over to Union President Wilson, but that
they were having difficulty setting up an appeals committee
meeting because Public Member Mummaw had resigned.
Ruff further testified that he did not remember Teal
requesting any records, but that, if Teal had made such a
request, he would have been permitted to come to the
union hall to examine the referral records in accordance
with a standing union policy.
General Counsel presented the testimony of Teal's
mother, Ella Teal, as corroborative of Teal's testimony.
Mrs. Teal testified that, at one point in the conversation,
Teal had motioned her to listen in on another phone in
their home, and that she heard Ruff make statements (1),
(2), and (3). However, at one point in her testimony she
admitted hearing only (3). Teal testified that his mother
picked up the telephone after Ruff made statement (3). I
am not persuaded that Mrs. Teal heard statements (I) and
(2). However, I am not satisfied with the credibility of Ruff
concerning the conversation, because, as previously indi-
cated, Ruff did not know on August 20 that Henry
Mummaw would not be available to serve on the appeals
committee. In essence, the question of the alleged threats
boils down to Teal's testimony versus that of Ruffs. I
credit the testimony of Teal, not so much because of the
inherent probabilities of their respective versions, but
rather, primarily, because, as will be discussed in the next
section of this decision, the Union's course of conduct
2 All dates herein are in 1975 unless otherwise indicated.
628
indicated that Ruff was doing just what he threatened to
do.
B. The Alleged Refusals To Refer Teal
Johnny Teal reregistered on the out-of-work list on
December 13, 1974, upon being laid off by Industrial
Electric Company. On January 30, 1975, the Union offered
to refer Teal and his father (also a journeyman electrician),
through a sister local in Raleigh, North Carolina, to a job
in Plymouth, North Carolina, about 200 miles from their
home. They declined the offer because in their view the
living costs in Plymouth were too high for the wages they
would receive, and Teal resumed his place on the out-of-
work list. Teal testified that he was not again offered a
referral until October 16. Ruff testified that in early 1975
Teal was offered, but declined, other jobs. Ruffs testimony
in this regard will be discussed, infra. However, it is
undisputed that Teal retained his place on the out-of-work
list, and did not obtain work through the Union's referral
system during the period from December 13, 1974, to
December 8, 1975, and was not offered any referrals during
the period from June 30, when he first complained to Ruff,
until October 16, 1975. On the latter date, the day the
appeals committee issued its decision, Ruff referred Teal
for employment with Bagby Elevator & Electric Company.
Bagby was one of the employers who had informed the
Union that they would not hire Teal. Nevertheless, Teal
was sufficiently desperate for work to give Bagby a try. He
went to the jobsite, was refused employment by Bagby's
job superintendent, and promptly, that same day, went to
the union hall and reregistered for work. Margaret Higgins
informed Teal that he would resume his place on the list.
Teal was next offered a referral on December 8, which he
accepted. He worked for Watson Electric Company from
December 8 to 18, when he was laid off because of a
reduction in force. Teal reregistered on the out-of-work list,
but has not been referred for work since December 1975.
The crucial period, for the purposes of this case, is from
July 16 (the beginning of the 10(b) period) until December
8, when Teal was referred to Watson. General Counsel
contends that, on five occasions during this period, the
Union discriminatorily failed and refused to refer Teal for
employment. On July 21, the Union referred Fred R.
Tweed for work with Fassbach at its jobsite in Hickory,
North Carolina, where he worked a total of more than 41
hours. Tweed had been referred to work for Watson
Electric on June 16, worked more than 41 hours, but never
reregistered on the out-of-work list. On July 22, the Union
referred Lacy A. Fowler for work with Dixie at itsjobsite in
Spartanburg, South Carolina, where he worked a total of
more than 41 hours, from July 22 to August 7, when he was
laid off because of a reduction in force. Fowler had been
previously referred to Industrial Electric, where he worked
a total of more than 41 hours, from January 29 until he was
laid off on April 6. Thereafter Fowler worked for Bagby
Elevator from May 20 to June 23, and on June 23 he
3 I consider as irrelevant Ruffs assertion that employees who worked in
excess of 41 hours, but for a relatively short duration, e.g.. I or 2 weeks. were
sometimes permitted to retain their places on the out-of-work list because
otherwise they would not have taken such jobs. Assuming, arguendo, the
validity of such a practice, if it in fact existed, the Union does not contend
IBEW, LOCAL UNION 379
registered on the out-of-work list. During the period of
October 17 to 19, the Union referred Price G. Summerville
for work with Ross, where he worked from October 19 to
November 21. Summerville had registered on the out-of-
work list on September 23. On October 22 the Union
referred Raymond W. Poteat to Ross, where he worked a
total of more than 41 hours from October 23 to November
21. Poteat was not registered on the out-of-work list, and he
had worked for Bagby from August 18 to October 3. On
October 28 the Union referred Melvin T. Stogner to Lail, in
Charlotte, where he worked 4 days. Stogner had worked for
Howard Brothers from August 21 to September 12, when
he was laid off, and he registered for the out-of-work list on
September 9. (General Counsel does not contend that Teal
was discriminatorily denied a referral to Howard Brothers,
which firm had indicated dissatisfaction with Teal.)
The Union's witnesses, Ruff and Higgins, conceded that
Tweed, Fowler, Summerville, Poteat, and Stogner were not
entitled to priority in referral over Teal by reason of
priority group, placement on the out-of-work list, age, skill,
or any other criteria recognized by the collective-bargain-
ing contract.3 Ruff testified that he referred Tweed, and
Higgins testified that she referred the other four employees.
According to Ruff, he was out of town when the four were
referred. Ruff testified that he never instructed Higgins that
Teal should not be referred to Fassbach, Dixie, Ross, or
Lail, or to any specific job, or to any job of short duration,
and that age and skills were not factors in the referrals.
None of the employers had manifested an unwillingness to
hire Teal. In view of these admissions, the hopelessly
inconsistent testimony of Higgins is enlightening. Higgins
variously testified that she did not call Teal because he did
not want short-term work, that she could not remember if
she tried to call Teal, that she intentionally did not call
him, that she did call Teal in proper order on the out-of-
work list, and finally broke down and testified that she did
not know why she did not contact Teal. According to
Higgins, Teal told her that he did want short-term work
because he was busy building houses, but conceded that
she learned from his sister when Teal finished such work.
The work was for Teal's family and Teal finished the last
house in June 1975. Higgins further testified that Ross
specifically requested Summerville (but not Poteat), be-
cause Summerville allegedly possessed qualifications to
perform work in a certain classification. Higgins professed
to be unable to remember the classification and testified
that Ross never identified the qualifications. Her testimony
was contradicted by that of Ruff, who admitted that skill
had nothing to do with any of the referrals, and was further
contradicted by an open letter from John R. Ross of Ross,
which was offered by the Union in evidence and accepted
by me, with the concurrence of the parties, in lieu of Ross'
testimony. Ross stated that on October 17 or 18 he
requested "one Journeyman electrician" for electrical
installation work which was estimated to last 4 to 5 weeks,
and that Mrs. Higgins referred "a Mr. Price Summerville."
In light of Higgins' demonstrated lack of credibility, Ruff's
that the alleged practice had any relevance to the referrals here involved.
Thus, Ruff conceded that Fowler should have gone to the bottom of the list
on June 23. All of the five referred employees either registered on the list
below Teal, or did not register at all.
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admission that skill was not a factor in any of the referrals,
and the lack of any corroborative testimony by Lail, I also
do not credit Higgins' uncorroborated testimony that she
did not call Teal about the Lail job because Lail had
requested an employee with a "city card." I also }do not
credit her testimony that she did not call him because the
job was a short one. Even Ruff admitted that in late 1975
Teal was willing to take any job.
In view of Higgins' demonstrated inability to provide a
credible explanation why Fowler, Summerville, Poteat, and
Stogner were referred ahead of Teal, Ruff's asserted excuse
for referring Tweed instead of Teal to the Fassbach job
must be viewed as suspect. Ruff testified that he did not
refer Teal because Teal and his father had previously
declined an offer to work at the Fassbach job (which began
in late 1974), because Hickory was too long a drive. Ruff
further testified that in early 1975 he also offered them
work at the Dixie job in Spartanburg, but that Teal and his
father declined the offer for a similar reason. However,
neither Ruff nor Higgins testified that Higgins was
instructed not to call Teal about the jobs for such reason.
Indeed, Ruff testified that Higgins "knows that the
procedure is to go through the list taking persons as we
come to them, contact them, see if they want to go to work;
and send them out." Teal and his father denied that they
were ever offered or that they refused work at the Hickory
or Spartanburg jobs. I credit their testimony. In view of the
fact that Teal had only recently complained to Ruff that he
was being passed over for referrals, it is unlikely that Ruff,
if he were guided by legitimate motives, would have
neglected to call Teal because of something that Teal had
said many months before. It is even more unlikely that
Higgins would have taken it upon herself to pass up Teal
without instructions from Ruff. The inference is warranted,
and I so find, that Ruff did not call Teal, and instructed
Higgins not to call Teal, because of his complaint about the
grievance procedure. I find that the Union deliberately
failed and refused to refer Teal for employment by
Fassbach, Dixie, Ross, and Lail, in reprisal for his
complaint that he was being discriminated against in
referrals, and his request for the unprecedented action
(which the Union feared), of an appeals committee hearing.
The Union thereby violated Section 8(b)(1)(A) and (2) of
the Act. Local 513, International Union of Operating
Engineers, Hoisting and Portable Local No. 513, AFL-CIO
(S. J. Groves and Sons Co.), 199 NLRB 921 (1972).
Additionally, in October 1975, the Union was motivated by
a desire to punish Teal because the appeals committee
decision had forced the Union to change its referral
procedures. I further find that Ruff referred Teal to the
Bagby job, knowing that he would not be hired, as a thin
cover for the Union's discriminatory actions, and as a
further act of spite against Teal. But for the discrimination
against him, Teal would have been referred for employ-
ment with Fassbach instead of Fred Tweed, or failing that,
4 I do not attach any significance to the presence of other names on the
document identified by Margaret Higgins as having been used on the out-
of-work list during the period from September 5 to 26. The Union did not
usually strike or otherwise indicate the names of employees who were called
or referred: the list was periodically redrafted, and the circumstances
indicate that there was considerable referral and employment activity which
was not reflected by any entries on the list. Higgins testified that she works
he would have been referred for employment with Dixie
instead of Lacy Fowler. Teal would also have been referred
to the Ross job in place of Summerville (unless the
Fassbach employment continued past September 23, when
Summerville registered on the out-of-work list), or failing
that Teal would have been referred in place of Poteat who
never registered on the list.4 I further find that the Union,
by Ruff, violated Section 8(bXIXA) by threatening Teal, in
reprisal for his complaint and request for an appeals
committee, that Ruff would see that he never worked again
in Charlotte and would do everything possible to hurt him.
CONCLUSIONS OF LAW
1. NECA and its employer members, including Fass-
bach, Dixie, Ross, and Lail are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to refer Johnny Franklin
Teal for employment by Fassbach, Dixie, Ross, and Lail,
the Union has caused and attempted to cause employers to
discriminate against Teal in violation of Section 8(a)(3) of
the Act, and the Union thereby has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(bX2) of the Act.
4. By reason of said conduct and by threatening Teal
with reprisal and loss of job referrals because he exercised
rights guaranteed by Section 7 of the Act, the Union has
been and is violating Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union violated Section 8(bX)(1)(A)
and (2) of the Act, I shall recommend that it be required to
cease and desist from such violations and take certain
affirmative action designed to effectuate the policies of the
Act. I shall recommend that the Union be ordered to make
whole Johnny Franklin Teal for any loss of earnings he
may have suffered by reason of the discrimination against
him, computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721 (1962). To facilitate
the computation and assure Teal equal referral treatment,
the Union shall maintain and make available for the Board
or its agents, upon request, out-of-work lists, referral cards,
and any other documents and records showing job referrals
with some 700 to 1,000 applicants, yet the list identified by her as being the
September out-of-work list contains the names of only about 90journeymen
and 8 applicants. Neither Ruff nor Higgins claimed that any employee was
entitled to priority over Teal in connection with the referrals in question.
Therefore, as the evidence does not indicate otherwise, I have found that,
absent the discrimination against him, Teal would have been referred as
discussed above.
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IBEW, LOCAL UNION 379
and the basis for such referrals of employees, members,
and applicants.5 I further recommend that the Union be
ordered to post appropriate notices, and to notify Teal in
writing that use of the Union's referral system will be
available to him on an equal and nondiscriminatory basis
with other employees and applicants.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER6
The Respondent, International Brotherhood of Electrical
Workers, Local 379, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer to deny
employment to, or in any other manner to discriminate
against Johnny Franklin Teal or any other employee or
applicant in violation of Section 8(a)(3) of the National
Labor Relations Act, as amended.
(b) Refusing to refer Johnny Franklin Teal or any other
employee or applicant for employment because they make
or file complaints about Respondent's referral system, or
because of any other arbitrary and unfair considerations.
(c) Threatening employees with reprisal or loss of job
referrals because they make or file complaints under its
collective-bargaining contracts.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
I See International Union of Operating Engineers. Local 406. AFL-CIO
(New Orleans Chapter, Associated General Contractors of America, Inc.). 189
NLRB 255, 267 (1971).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
(a) Refer Johnny Franklin Teal for employment to
positions for which he is qualified, on an equal and
nondiscriminatory basis with other employees and appli-
cants.
(b) Make whole Johnny Franklin Teal for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Notify Johnny Franklin Teal in writing that Respon-
dent's referral system will be available to him on an equal
and nondiscriminatory basis with other employees and
applicants.
(d) Maintain and, upon request, make available to the
Board or its agents, for examination and copying, out-of-
work lists, referral cards and any other documents and
records showing job referrals and the basis for such
referrals of employees, members and applicants, which are
necessary to compute and analyze the amount of backpay
due Teal, and to assure him equal referral treatment.
(e) Post at its business offices, hiring hall, and meeting
places, copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by the
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
7 In the event that 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."
631