IBEW, Local 46

National Labor Relations Board - Board Decisions

Apr 21, 1978

235 N.L.R.B. 1015 (N.L.R.B. 1978)

IBEW, LOCAL 46
International Brotherhood of Electrical Workers, Lo-
cal 46, AFL-CIO (National Electrical Contractors
Association) and Robert L. Green. Case 19-CB-
2854
April 21, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On September 2, 1977, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a brief in support of
the Decision.
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
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, dissenting:
I am unwilling to decide this case in the absence of
a complete record. The complaint alleged in sub-
stance that Respondent discriminated against Robert
L. Green in the operation of its hiring hall. The
Administrative Law Judge found that Green violated
Respondent's rule limiting the number of short-time
jobs allowed on a registry card to three, and therefore
Respondent acted properly in taking away Green's
dispatch number. However, the General Counsel has
shown that several other union members exceeded
this three-job limit, and no disciplinary action was
taken against those alleged offenders. 4 Accordingly, I
find that the Administrative Law Judge erroneously
refused to allow the General Counsel to develop the
background of racial conflict between Respondent
and black electricians, particularly the United Con-
struction Workers Association, a minority activist
group of which Green is a member. Moreover, the
General Counsel should have been permitted to
present evidence relative to Respondent's refusal to
235 NLRB No. 133
dispatch Green to a job at the Port of Seattle.
Although the Port of Seattle was a public entity with
which Respondent had no hiring hall contract, the
rejected evidence is nonetheless relevant with respect
to Respondent's animus towards Green.
In view of the foregoing, I would remand the
proceeding to the Administrative Law Judge for the
purpose of receiving the evidence proffered by the
General Counsel and for the purpose of issuing a
supplemental decision.
I Contrary to our dissenting colleague, we do not believe that the
Administrative Law Judge erred in refusing to admit evidence of certain
collateral issues going beyond the scope of the instant complaint. Particular-
ly with respect to proffered evidence of alleged general racial conflict
between Respondent and black electricians, there is no indication that such
evidence would be probative of the specific issue herein; namely, whether
Respondent discrimimaorily promulgated and enforced an unprecedented
rule against Green. Moreover, it would open up litigation of a collateral
issue going well beyond the Charging Party's own individual circumstances.
which has already been litigated for approximately 3 years in another forum
and which would not appear dispositive of the specific allegations of the
instant complaint.
Nor are we persuaded that Green was discriminatorily treated by
enforcement of the three-job rule against him but not against all other hiring
hall registrants who exceeded that limit. The record shows that the three-job
rule had previously been enforced against electrician Ernest Young in
October 1976, and also shows that, of 12 other individuals who were referred
to more than three jobs on a single card during the relevant time period, the
largest number of referrals of any other person was 6, and that occurred
only with regard to I individual. Green, on the other hand, did not low his
dispatch number until after his 13th referral on a single card, a number far
in excess of that applicable to any other individual. On these facts, we
cannot conclude that he was especially singled out for discriminatory
treatment by Respondent when it enforced its rule against him.
2 The General Counsel 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 credibili-
ty 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.
3 The Administrative Law Judge's Decision contains some apparently
inadvertent or inconsistent statements which do not, however, affect the
results herein. First, it appears from the entire record that the Administra-
tive Law Judge's references to "Jim Raynor" in fact allude to "James
Renner." Second, although the Administrative Law Judge in the fourth
paragraph of the section entitled "C. Alleged Removal of Green from the
Dispatch List" states that the only other reliable evidence of rule violation
besides that relating to Green concerns Ernest Young he later in the same
section correctly points out that there were in fact 12 persons shown to have
had more than three dispatches on the same card. Third, the Administrative
Law Judge states in the fifth paragraph of the section entitled "E. Summary
Analysis" that General Counsel's witnesses gave varying versions of the
rule, yet concludes in the seventh paragraph of the same section that even
though the notice to members may not have been explicit relative to the
short-job rule it is clear that members were well aware of its meaning. While
this appears facially inconsistent, we note that the Administrative Law
Judge consistently discredited witnesses who gave varying versions of the
rule and credited testimony of Respondent's witnesses that the rule was
clear. Therefore, there is no inherent inconsistency in these dual statements.
4 My colleagues apparently conclude that Respondent did not uniformly
enforce its three-job limit but state that Respondent's discipline of Green
was proper because he was referred 13 times on a single card, whereas the
largest number of referrals of any other person was 6. It seems to me that my
colleagues have missed the point. Green was disciplined allegedly for
violating a 3-job limit, not a 12-job limit. The General Counsel has shown
that at least 12 other employees exceeded the limit. The number of referrals
beyond three is irrelevant.
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Seattle, Washington, on July 6, 7, and
26, 1977.1 The complaint, issued April 11, is based upon a
charge filed on February 28 by Robert L. Green (Green),
an individual. The complaint alleges that International
Brotherhood of Electrical Workers, Local 46, AFL-CIO
(Respondent), violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended (the Act).
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
General Counsel and Respondent.
Upon the entire record and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
National Electrical Contractors Association, Puget
Sound Chapter (the Association), is, and at all times
material herein has been, a multiemployer bargaining
association with its offices and place of business located in
Seattle, Washington. The Association's employer-members
are engaged in the business of electrical construction work.
During the past 12 months, which period is representative
of all times material herein, and in the aggregate course
and conduct of their business operations, employer-mem-
bers of the Association purchased and caused to be
transferred and delivered to their State of Washington
locations goods and materials valued in excess of $50,000,
which were transported to said locations directly from
States other than the State of Washington.
I find that the National Electrical Contractors Associa-
tion, Puget Sound Chapter, is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Pursuant to a contract between Respondent and the
Association, Respondent maintains and operates an exclu-
sive hiring hall system used by members of the Association.
Respondent's business manager is Robert Keller. David
Jordan is Respondent's business representative and custo-
dian of Respondent's dispatch records.
All dates hereafter are in 1977, unless stated to be otherwise.
2 The rack accommodates four categories of applicants, placed according
to priorities assigned pursuant to Respondent's agreement with the employ-
ers.
3 Registrants may call on a telephone to ascertain whether there is a job
possibility.
Most employees dispatched to employers by Respondent
are members of Respondent, but nonmembers also use the
hiring hall and its dispatch facilities. When any qualified
electrician wants to work, he signs the out-of-work registry
at the hiring hall, and a card is prepared by the business
representative, showing the registry card number, name of
the registrant, date applied for work, name of last employer
prior to signing the out-of-work registry, date last em-
ployed, and name of new employer and date of dispatch to
that employer. The registry card shows the various employ-
ers to whom the registrant has been dispatched, but it does
not show how long the registrant worked for any particular
employer. Numbers are assigned to the registry cards in
chronological order, thus earlier registrants have lower
numbers than later registrants. The cards of all current
registrants, after the cards have been filled in and signed,
are placed in a rack at the hiring hall under the supervision
of the business representative. The rack is behind glass
doors in full view of all registrants. The cards are placed in
the rack according to their numbers,2 with the lowest
number being at the top of the rack. Thus, a registrant can
tell by looking at the rack how far he is from the top, hence
his position relative to a job possibility. The lowest number
has first choice when a job is available.
The hiring hall opens at 8 a.m. each working day.
Registrants appear at the hall, 3 and jobs that are available
that day are announced by Jordan. When a job is
announced, it is available to the card in the rack with the
lowest number. Those who want the job bid for it by
calling out their card number. The person with the lowest
number gets the job if he wants it, but he may fail or
decline to take the job. If he so fails or declines, the job is
available to the second lowest number. The same proce-
dure is followed until the job is accepted. If a registrant
fails or declines to take three jobs (except in the case of
short jobs, discussed infra), his card is removed from the
rack. 4 When the job is assigned to a bidder, Jordan
completes a dispatch slip, signs the slip, and gives it to the
bidder, who takes the slip to the jobsite for delivery to the
employer. At the same time, an entry is made by Jordan in
the dispatch book which shows all dispatches by name of
employee, name of employer, and date of dispatch. After
the employee has been on the job more that 5 days, his
card is removed from the rack. At the end of the job the
employee returns to the hall and signs a new card. A new
number is assigned to the card, and the process is begun
anew.
Robert Green is a journeyman electrician who is a
member of Respondent and who works out of Respon-
dent's hiring hall. Green alleged that, in February, Jordan
and Keller arbitrarily and discriminatorily promulgated
and enforced a new hiring hall rule and removed him from
the work dispatch list. Those allegations involve the above-
described hiring hall procedure, and present the issues
involved in this controversy.
4 In order to obtain jobs thereafter, the individual must sign a new card
and be given a new number at the bottom of the list. He then starts the
process as a new registrant.
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IBEW, LOCAL 46
B. Alleged Unprecedented Rule
Paragraph 9 of the complaint alleges that, on or about
February 16, Keller and Jordan promulgated and enforced
an unprecedented rule limiting applicants for referral to
two 5-day referrals without notice to hiring hall registrants.
Jordan and Keller testified that, prior to September 1975,
a hiring hall rule provided that, if a person accepted
dispatch to a job from which he was laid off after no longer
than 3 days, he could return to the hall, retain the card
number upon which he was dispatched, and retain the
referral position he held at time of the dispatch. This was
known as the short-job rule. However, after three short-job
dispatches on the same card, the registrant's card was
removed from the rack and he was relegated to the bottom
of the list with a new card number. In August 1975,
following regular 30-day notice, members of Respondent
Local adopted a change in the short-job rule whereby the
rule thereafter was to apply to three jobs of no longer than
5 days each, rather than to three jobs of no longer than 3
days each. The following resolution was adopted at the
August meeting to become effective September 1, 1975:
Rules for Referral - Hours of Dispatch
8:00-8:30 a.m.
8:40-8:50
8:55-9:05
9:10-9:20
Group I Call
Group 2 Call
Group 3 Call
Group 4 Call
Wiremen will sign the Book and Card only when
unemployed.
Cards will be issued for 90 days.5
Wiremen shall lose their position on the Out-of-Work
List (i.e. be returned to the bottom of their list) after
they have failed to bid on three jobs which their
position on the Out-of-Work List entitled them to
successfully bid. For purposes of this policy no more
than one job per bid day shall be considered.
The-only-exgeptions to these rules will be wiremen on
sicklist or on jury duty.
When new cards are assigned they will retain their
same chronological order and be posted before any new
applicants are permitted to sign.
Wiremen can work 10 days for residential and 5 days
for all other work during the 90 day period and not
receive check marks during this period of such employ-
ment.
Cards shall be signed at time of dispatch or between the
hours of 4:00 p.m. - 5:00 p.m. only.
All dispatches shall be bid on a competitive basis.
There has been no other change in hiring hall rules.
Charles Shierk, a journeyman wireman and a member of
Respondent, testified that he has been working out of
Respondent's hiring hall about 25 years. Shierk, called as a
witness by General Counsel, stated that, within I or 2
months after Jordan and Keller assumed their present
offices in July 1975, he heard Jordan say at the hiring hall
"a person could take any number of five day short jobs and
if laid off at the discretion of the employer, that this person
could come back in and maintain his place on the list
indefinitely." Shierk said there was discussion about the
short-job rule at a union meeting about the same time he
heard Jordan's statement, but he does not remember what
was said. Shierk also testified that, in February 1976, he
was dispatched to Sprague Electric after a conversation
with Jordan:
Mr. Jordan told me that this Sprague Electric,
which is based in San Jose, California, had a project in
the Bellevue area whereby they could employ Local 46
members on a full-time long term basis, and would
occasionally require additional help from Local 46, and
with our five day short job system, that they made a
verbal agreement with Local 46, that they would call
this additional required help on a five day basis,
automatically, reduction in force, laid off, and one
could maintain one's number.
Shierk said he was laid off after 5 days, although there still
was work to do, and he could have worked longer. Finally,
Shierk testified that for as long as he can remember, if an
employee terminates himself after 5 days' work, and he can
remain longer on the job if he chooses to, the job is charged
against the employee's card; however, after February 28,
the rule was changed and thereafter the 5-day rule applied
even if the termination was effected by the employer,
whereas, prior to February 28, a termination by the
employer after 5 days' work was not charged against the
card.
Dale Jensen, a foreman with Electric Contractors, Inc.,
testified for General Counsel that he requested an electri-
cian from Local 46 about the end of January for a job at
Tenny's Toyota. Jim Raynor was dispatched to the job.
Jensen testified that Raynor recognized the job as one that
would last about 3 weeks, and he said he did not want to
lose his number for such a job; he threatened to quit unless
Jensen agreed to terminate him after 5 days. Later in the
day, Jensen talked with Jordan while Raynor was present.
The problem was presented to Jordan, who agreed to the
proposed arrangement and who said he appreciated Jen-
sen's saving Raynor's number in that manner. Jensen
stated:
And at that time I asked Mr. Jordan if I laid him off
in five days, could I put another call in and have Jim
come back out to save me the time of acclimating
someone else to the job, and he said that wasn't the
intent of the five day call, but it was perfectly legal.
The arrangement was carried out, and Raynor was termi-
nated after 5 days. Jensen then asked the Union for two
5 Pnor to this rule change, cards were issued for 30 days.
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more electricians for the Tenny job. Doug Bilyeu and
Green were dispatched, and on their second day of work
Jensen talked with Jordan. The length of the job then was
uncertain, but Jensen told Jordan he was going to try to
talk Bilyeu and Green into the same arrangement he had
with Raynor. Jordan did not reply. On February 8, Bilyeu
and Green were laid off, and, on February 9, Jensen again
asked the Union for two electricians. Bilyeu and Green
were dispatched to the Tenny job. At the end of 5 days they
were laid off for the last time. Jensen testified that he has
been an electrician and has worked out of the hiring hall
for about 10 years, although he has been dispatched to only
two jobs. He said he is not familiar with the rules of the
hiring hall, and he first heard of the short-job rule when he
talked with Raynor in January. In his pretrial affidavit
given to the National Labor Relations Board, Jensen stated
that Jordan told him that nothing could be done about
Raynor' accepting a second 5-day call, but in his testimony
on cross-examination Jensen said he and Jordan talked
about a possible third, fourth, and fifth call.
Green testified on direct examination that, prior to
February 16, he never heard of a rule limiting an employee
to any number of 5-day calls. Green said he talked with
Jordan in January:
I went up to the dispatch window, and I said, you
know, Mr. Jordan, I have a lot of calls on this card, you
know, and like it looks like it's running out, you know,
and we just were kind of kicking it around, and he said
its perfectly legal, Bob, because there ain't nothing
coming in but five day calls.
Clifton Evans, an electrician who has worked out of
Respondent's hiring hall since 1970, testified that, prior to
February 9, he never heard of a rule limiting a registrant to
"two five day calls," but, on February 16, he saw a "sign"
in the dispatch hall "saying something about two five day
calls now." He was in the hall on February 9 when Jordan
and Green had an argument, and Jordan and Keller said
registrants could only take "two five day calls." Some of
the members "half-way challenged" Jordan, but Evans was
unable to identify any challenger. Keller said he would
bring the matter up "in a meeting."
Ossie Slaughter, a journeyman electrician who has been a
member of Respondent since 1971, testified that he served
5 years as an apprentice and became a journeyman in June
1976. He has been in the hiring hall many times, to visit
and to seek employment, and has been dispatched to two
jobs. Since 1972 the hiring hall has had a rule limiting a
member to three short jobs on one card. The only change
in the rule since 1972 was one that was instituted in 1975,
providing that a "short job" was one of 5 days length rather
than the previous period of 3 days. He has not been
dispatched to a 3- or 5-day job. So far as his experience
shows, the hiring hall has been operated pursuant to the
rules as he understands them.
Ernest Young, an electrician member of Respondent
since 1968, testified that he knew of a hiring hall rule prior
to sometime in 1976, limiting short jobs to three on one
card. In October 1976, his card was placed at the bottom of
the work list after he had worked on four short jobs, and,
when he contested that action, Keller "verified what I
knew, that the rule was three jobs on a number." Young
voluntarily quit all four jobs after 5 days of work, or less,
on each job. Young stated, relative to the rule:
I felt that it hadn't been up before the membership as
a firmly established rule. That it was in the jurisdiction
of the dispatching procedure. However, since that time,
I figured that that's what we're paying them for.
James Renner, an electrician who has worked out of
Respondent's hiring hall approximately 9 years, testified
relative to the rule:
Yes, you were allowed, before '75, I believe you were
allowed to take three calls for three days on one
number. You could quit the two, but the third one you
had to take, like it or not, and that was later changed to
three five day calls.
The change from 3 days to 5 days was made, Renner said,
in the summer of 1975.
Hugh Andrew, area superintendent for Rosendin Elec-
tric, testified to his application of the short-job rule, before
and after incidents he testified relative to, that occurred in
1976.
Harry Hamasaki, an electrician who has been a member
of Respondent and who has used Respondent's hiring hall
since 1953, testified to Respondent's application of the
short-job rule for the past 10 years.
Tyree Scott, an electrician who has been a member of
Respondent about 2-1/2 years, testified for General Coun-
sel that he often uses Respondent's hiring hall, but that he
never heard of a short-job rule enforced by Respondent
prior to February 9.
Discussion
Green was not a convincing witness. His testimony was
evasive and self-contradictory and, at times, confusing. His
testimony includes several statements that show knowledge
of a short-job rule prior to February 9. However, regardless
of that testimony, the record contains abundant credible
evidence showing the longtime existence of a short-job
rule. The testimony of Jordan, Keller, Shierk, Jensen,
Slaughter, Young, Renner, Andrew, and Hamasaki relative
to existence of a short-job rule prior to February 9 is
credited. It is found that prior to September 1975, the rule
provided, that no more than three jobs of 3 days' duration
were permitted on one card number, and that, since
September 1975 and to the present time, the only change
has been an increase of permissible short-job duration to 5
days.
Some testimony was elicited from witnesses relative to
application of the rule. There has been some deviation in
the past, but it is clear that, generally speaking, the rule has
been uniformly applied:
(a) The rule has been followed by Respondent many
years, yet there is no evidence of any complaint about
application of the rule prior to the one filed herein.
(b) Ernest Young once was allowed to take four short
jobs on one card, but the error was discovered and his
name was moved to the bottom of the list.
1018
IBEW, LOCAL 46
(c) Green was permitted to take 13 short jobs on one
card, but that was an unusual situation and is discussed
infra.6
(d) The rule change effected in September 1975 was for
the benefit of members; it increased the length of short
jobs.
Testimony also was elicited relative to use of the rule.
That testimony shows that sometimes employers may
"cooperate" with employees and state on termination
documents that employees are "laid off'" at the end of 5
days, rather than having quit the job.7 Jordan's testimony
that he never has told anyone that an employee could take
an unlimited number of short jobs on one card is credited.
Jensen's testimony that Jordan told him an employee could
take a third, fourth, or fifth short job on one card is
contrary to Jensen's pretrial affidavit, is contrary to
Respondent's practice as shown by the record, and is not
credited. It is found that practices such as those outlined
above are not common, are not serious perversions of the
rule, and are not detrimental to the interest of Respon-
dent's membership.
Shierk's testimony that the short-job rule was changed on
February 28 to eliminate the previous restriction of the rule
to voluntary quits when work remained to be done is
without support, is contrary to the record, and is not
credited.
The record is devoid of any evidence that Respondent
issued a new rule in February limiting job applicants to two
5-day referrals as alleged in the complaint. The evidence is
strong and convincing that Respondent for many years has
had a short-job rule, and that the only change in the rule
was made in September 1975, well prior to any allegations
herein. General Counsel's burden of proof relative to
paragraph 9 of the complaint was not met.
General Counsel argued at the hearing that Respondent
violated the Act as alleged because of personal animosity
toward Green. It is unrealistic to conclude that Respondent
would promulgate and enforce an "unprecedented" rule
affecting hundreds of its members in order to discriminate
against a single member. Even Green apparently recog-
nized that this argument is without merit, since his
testimony clearly shows that he was aware of a short-job
rule prior to February 16.
Shierk's testimony does not square with either Green's
statement that no short-job rule existed prior to February
or with General Counsel's contentions. Shierk testified that
a short-job rule has been in existence as long as he can
remember, but that it was changed in February to make it
applicable to all short jobs rather than only to voluntary
6 Green testified that Shierk had five jobs on one card, and that Melvin
Bill had more than three. Shierk testified, but did not talk about this subject.
Bill did not testify. This testimony by Green has no support in the record
and is not credited.
7 Andrew credibly testified that this sometimes is done in order to permit
employees to file claims for unemployment insurance; a claim may be
rejected if an employee voluntanly quits his job.
I Evans testified principally about the Jordan-Green incident. Evans'
testimony was confused and self-contradictory. His statements concerning a
short-job rule of two calls and the exclusion of nonmembers from the hiring
hall are contrary to the record as a whole. Evans is not credited.
9 At the hearing. General Counsel sought to introduce evidence concern-
ing Respondent's dispatch of employees to a public agency not under
quits. That testimony is without credible support and is
contrary to the record as a whole.
Finally, if the short-job rule had been promulgated in the
manner General Counsel argues, Respondent would have
been confronted with a barrage of questions, arguments,
and opposition. However, so far as the record shows, only
Green objected to enforcement of the rule.
General Counsel acknowledges in its brief that at the
time Keller and Jordan assumed office on July 10, 1975,
Respondent had a short-job rule with a short job defined as
one of 3 days. Although General Counsel's argument is not
clear, it seems to be that exception is taken to Respondent's
contention that the definition of a short job was changed to
5 days. According to General Counsel, the 5-day definition
was not promulgated until after Green's number was
moved to the bottom of the list. However, that is beside the
point since the basic argument is whether Respondent had
a short-job rule. Obviously, it did. General Counsel does
not contend that the duration of any of Green's 13 jobs on
one number is related to the definition of a short job,
whether it is for 3 days or 5 days.
C. Alleged Removal of Green from the Dispatch
List
Paragraph 8 of the complaint alleges that, on or about
February 16, Jordan and Keller removed Green from
Respondent's dispatch list and thereafter failed and refused
to refer Green for employment.
Some basic facts are not in dispute:
1. Between June 10, 1976, and February 9, Green was
referred to 13 separate jobs and worked on each job no
longer than 5 days.
2. On February 2, Jordan asked for bids on a 5-day job
at Tenny's Toyota. Green was third from the top of the
bidding list. He bid, and was referred to the job.
3. On February 9, Jordan asked for bids on another 5-
day job at Tenny's Toyota. Green still was near the top of
the list, and he bid for the job. Jordan refused to award the
job to Green, and an argument ensued. 8 Keller intervened,
and Green was referred to the job.
4. On February 16, Green's name was moved by
Jordan, upon Keller's instructions, to the bottom of the
dispatch list.
5. Green was issued a new card with a new number on
April 1.
General Counsel argues that Respondent moved Green's
name to the bottom of the list because of its desire
personally to discriminate against Green.9 Respondent
argues that Green's name was moved solely because he had
abused the short-job rule.
contract with Respondent, allegedly to establish Respondent's racially
discnriminatory bias. That offer was rejected. (a) The U.S. district court's
decree relied upon by General Counsel to show earlier racial discrimination
by the Union was issued more than 7 years ago on June 16, 1970. There is
no evidence of any violation of that decree. (b) The public job to which
General Counsel referred has no relationship with the Union's hiring hall;
any evidence relative to use of employees on that job is irrelevant. (c) No
testimony was offered by General Counsel to show any racially discrimina-
tory statements or actions by Respondent, although opportunity to intro-
duce such testimony was given. It is noted, parenthetically, that witness
Slaughter is black, and he testified that, so far as he is concerned, the hiring
hall is operated properly.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is noted at the outset that Green had 13 referrals to
short jobs on the same card. There is no evidence that such
leniency was extended to any other member. The only
other reliable evidence of rule violation concerns Ernest
Young, who was moved to the bottom of the list after four
short jobs on the same card. When asked about this
apparent discrepancy, Jordan said Green's abuse of the
short-job rule was tolerated because of Jordan's desire not
to run afoul of the 1970 district court decree. It appears
that Respondent favored Green, rather than acting against
his interest. However, that issue is not the one that was
litigated.
General Counsel argues that Respondent intentionally
referred Green to short jobs, but the record shows a pattern
different from that argument. It is quite clear that Green
sought short jobs:
(a) After his registry with Respondent in May 1976,
Green moved up the list to near the top. He testified that he
was in the top 20 of the approximately 200 registrants for
several months prior to February. However, according to
Green's testimony, he did not regularly go to the hiring hall
to seek work referrals. He went "now and then." He was
unable to say how often because "I was in and out of
Seattle."
(b) Green testified that he declined to bid on jobs of 2 or
3 weeks' duration because he did not want to lose his
number for jobs that would last no longer than that.
(c) In February, according to Green, he bid on the
Tenny's Toyota job and accepted the referral. He bid on a
5-day basis; there was work after the 5 days that Green
could have had, but he quit in order to save his number.
(d) On June 10, 1976, Green was referred to a job at
Rosendin Electric, following his bid for the job. Green
testified:
Q. After you got to the job, was it in fact a five day
job, or in fact could you have worked longer?
That's my question.
A. I went for five days.
Q. Was there work to do longer than that?
A. They said we could have stayed. I only wanted
to stay for five days.
Q. Do you know how long you could stay?
A. I didn't ask them.
Q. You weren't interested enough to ask them how
long you could work?
A. No, wasn't, I wasn't.
Q. You were more interested in protecting your
number than you were [in] finding out how long you
could work for Rosendin, is that the fact?
A. Yes, I sure was. 1°
(e) On July 7, 1976, Green was referred to a job at
Howard Electric. However, he did not report for work
because he disagreed with the employer's reason for not
rehiring employees previously involved in a dispute.
(f) On November 4, 1976, Green was referred to Totem
Electric. However, he never reported to the job. He said he
i0 This job is still in progress. Andrew and Hamasaki credibly testified
that they urged Green to stay on the job, but Green refused. Green's fellow
employee, referred at the same time, did remain beyond the 5-day period
had trouble with his car and later talked with Jordan.
Jordan then said he need not report to the job.
(g) On August 3, 1976, Green was referred to CTM (Carl
T. Madsen) Electrical Contractors and worked 7 hours. On
August 23, he was referred again to CTM. Green stated,
"The job was for five days." Green did not work after 5
days, and he testified that, when he left the job, little work
remained to be done. Green said he was not told that he
could work longer than 5 days. His termination notice
shows "laid off' after a 5-day call. Slaughter testified that
he worked on the same job, and that the job lasted 4 weeks
after the date Green reported. Slaughter was an impressive
witness, and he is credited.
Based upon Green's testimony, his recent work history,
and the record as a whole, it is apparent that Green moves
in and out of Seattle, goes to the hiring hall on an irregular
basis, occasionally calls the hiring hall on the telephone to
ask about jobs, and actively seeks and works at short jobs.
There is no basis for concluding that Respondent referred
Green to jobs in any manner other than that solicited by
Green himself. There is, however, other evidence to
support Respondent's contentions herein:
(a) Jordan testified that, on August 23, 1976, he talked
with Green in the hiring hall, told Green that he was
abusing the short-job rule, and said the abuse must stop.
Jordan said Green became angry and profane and left.
Green denied that conversation. Jordan's testimony was
straightforward and unhesitating and is credited.
(b) Keller testified that he talked with Green in February
and told him he was being unfair to the other members by
taking so many short calls on one card. Green denied that
conversation. Keller is credited.
(c) Jordan testified that Green returned to the hiring hall
on February 16, after completing the last Tenny's Toyota
dispatch, and Jordan offered him a new card with a new
number, contingent, as is customary, upon presentation of
a dues payment receipt. Green said he did not have a
receipt, and Jordan offered to talk with Keller about
getting an alternate confirmation that dues had been paid
to date. As Jordan was trying to reach Keller on the
telephone, Green left. Green came to the hall 2 or 3 days
later and asked Jordan for dispatch book information,
union bylaws, and other documents, all of which were
given to Green. On April I, Green came to the hall and
obtained his new card. He was dispatched to ajob on April
29. Jordan testified that based upon movement of numbers
given to other members on February 16, had Green signed
a new card on that date, he would have been eligible for 24
referrals between February 16 and April 1.
Green denied that Jordan asked him on February 16 to
take a new number.
Much of Jordan's testimony summarized above was not
challenged, and Jordan was a convincing witness. He is
credited over Green to the extent that their testimony
differs. Green refused to sign a new card on February 16,
as he acknowledges:
and is still employed on the job. Green was given a "laid off' termination at
his own request.
1020
IBEW, LOCAL 46
Q. You're complaining, Mr. Green, that in Febru-
ary, 1977 you were wrongfully given a new number,
aren't you? Isn't that what you're complaining about?
A. No, no. They took my number and put it at the
bottom - my old number and put it at the bottom of
the list.
Q. When they put your old number at the bottom
of the new list, the next thing that happens is to come in
and get a new card, wasn't it?
A. Well, no - right, right, that should be it, yes.
Q. And that's what happened some weeks later?
A. No, no - well, I told them, at that point, that I
wasn't going to get a number or anything until I could
find out if there was something I could do about this,
and, when I do, if they tell me I'm wrong, well, I'll be
glad to go to the bottom of the list if I'm wrong.
This testimony lends credence to Jordan's testimony that
Green asked him on about February 18 or 19 for certain
documents and Jordan's testimony relative to the sequence
of events.
(d) Green testified that he feels an employee should be
allowed to take as many short jobs as he wants on one card
without limitation. This testimony clearly indicates Green's
attitude toward the referral system. The action he advo-
cates would be to the detriment of employers, it would be
unfair to other employees, and it would preclude an orderly
hiring hall procedure.
General Counsel lists in his brief dispatches of several of
Respondent's members between June 3, 1976, and March
9. It then is argued that, since the list shows several
dispatches of more than three times on the same cards,
Respondent is not evenly enforcing its short-job rule. That
argument is irrelevant so far as Green's allegations are
concerned, but, even if it is assumed, arguendo, that it is
relevant, the argument is without merit for several reasons.
(a) During the period June 2, 1976, to March 10, Respon-
dent dispatched 376 members to 918 jobs. Only 12 persons
are shown by General Counsel to have more than 3
dispatches on the same card during that period of time.
Clearly, the statistics alone do not support General Coun-
sel's argument. (b) Jordan credibly testified that dispatches
alone are not indicative of work performed, since jobs
often are rejected by employees upon arrival at the
worksite, and employers often reject or do not need
employees after referral. That testimony has inferential
support in the dispatches listed by General Counsel.
Several are shown to have been made I or 2 days after an
earlier dispatch, indicating the possibility that jobs or
employees were rejected or not required. (c) The most
dispatches on a single card, among the 12 persons listed,
was 6 (Pipkin). All others show either four dispatches (eight
employees) or five dispatches (three employees). (d) Gener-
al Counsel subpened all of Respondent's hiring hall books
and records, but the list of dispatches used as examples are
selective and incomplete, and the information given there-
on can not be considered presumptive, since it does not
show the point in issue; i.e., the number of days worked.
This allegation of the complaint is not proved.
D. Alleged Statement
Paragraph 7 of the complaint alleges that, on or about
February 9, Jordan told Green that Respondent no longer
would dispatch him for 5-day jobs.
There is no testimony or evidence in the record to
support this allegation.
Jordan told Green his old card had been removed from
the rack, and that he could have a new card and new
number, but that statement was entirely proper, as dis-
cussed above.
E. Summary Analysis
A short-job rule is a necessary device in a hiring hall such
as the one involved herein. General Counsel does not
contest that proposition.
Respondent long has had such a rule, as General
Counsel acknowledges and as most witnesses attested.
Between May 1976 and February, Green accumulated 13
short jobs on one number, greatly in excess of the number
allowed by the short-job rule and greatly in excess of any
other employee.
Green contends that he was discriminated against when
Jordan moved his name to the bottom of the list; Green
refused to accept a new number. Green further contends
that he should be allowed to work as many jobs as he wants
on one card.
Although General Counsel's theory of the case is not
entirely clear, it appears to be that Respondent changed its
short-job rule in February solely to discriminate against
Green. That allegation was not proved. First, General
Counsel's witnesses gave varying versions of the rule and
changes allegedly made in the rule; some of those witnesses
said there never was a rule. Clearly, there was a rule that
last was modified in September 1975, and Green was well
aware of the rule. Second, there is nothing to show that
Respondent had a desire or a reason to discriminate
against Green. To the contrary, it is clear that Green was
given preferential treatment. Third, it is unrealistic to
conclude that Respondent would change its hiring hall
system solely to discriminate against a single member.
General Counsel argues that Green was treated dispa-
rately from other members. That contention was not
proved. Even if the list of dispatches set forth in General
Counsel's brief is accepted, arguendo, as showing that other
members worked on more than three jobs on one card, the
argument is not proved. First, the highest number of jobs
shown on the list is less than half the number Green had.
Second, deviation from the rule would be only approxi-
mately three percent (12 members from among 376
dispatched), which is a nominal departure inadequate upon
which to base a conclusion of disparate treatment.
Finally, General Counsel seems to contend that Respon-
dent's hiring hall is not fairly operated. Reliance for
support of that argument primarily is placed upon the list
of dispatches discussed supra. However, there is nothing in
the record to show that the hiring hall is operated
improperly or unfairly. Further, it is apparent that no office
the size of the one involved herein can be run without
error. Ernest Young's testimony is illustrative. He exceeded
the short-job limitation, the error was discovered, and he
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was moved to the bottom of the list. It may well be, as
argued by General Counsel, that the September 1975
notice to members was not explicit relative to the short-job
rule, but it is clear that members were well aware of its
meaning." Further, Respondent's operation of the hiring
hall since 1970 pursuant to court decree and without
complaint, so far as the record shows, is not consistent with
discriminatory practice.
The record thus made shows neither individual nor
group discrimination by Respondent.
CONCLUSIONS OF LAW
1. The Association and its members are, and at all
times material herein have been, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local 46, AFL-CIO, is, and at all times material herein has
" Evans, who is discredited supra, testified without any support that he
saw a "sign" in the dispatch hall on February 16 "saying something about
two five day calls now."
12 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,
been, a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, International Brotherhood of Electrical
Workers, Local 46, AFL-CIO, did not violate Section
8(b)(1)(A) and (2) of the Act, as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER' 2
It having been found and concluded that Respondent,
International Brotherhood of Electrical Workers, Local 46,
AFL-CIO, has not engaged in unfair labor practices, the
complaint is dismissed in its entirety.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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