IBEW, Local 46Download PDFNational Labor Relations Board - Board DecisionsApr 21, 1978235 N.L.R.B. 1015 (N.L.R.B. 1978) Copy Citation 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. 1016 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. 1019 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. 1022 Copy with citationCopy as parenthetical citation