Local 367, IBEW

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 86 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 367, International Brotherhood of Electrical
Workers (Penn-Del-Jersey Chapter of the NECA)
and Gary Billcheck, Kenneth Pollack, William P.
Russell, Edward C. Meyer, Lawrence V. Kohl,
Patrick J. Nolasco, Olin A. Makley, Peter D.
Sciascia, and George J. Wilson, Jr. Cases 4-CB-
2632-1 through -8 and 4-CB-2642
June 10, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 22, 1977, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, the Respondent and General
Counsel filed exceptions and supporting briefs.
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, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order except 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, Local 367, International Brotherhood of
Electrical Workers, Easton, Pennsylvania, its offi-
cers, agents, and representative, shall take the action
set forth in said recommended Order, as so modified:
I. Substitute the following for paragraph 2(c):
"(c) Place in the appropriate referral group any
other nonmember registrant who was unlawfully
denied the opportunity to take the June 7, 1975,
examination without regard to the examination
requirement."
2. Add the following as paragraph 2(d) and
reletter the present 2(d) and the subsequent para-
graphs accordingly:
"(d) Make whole those individuals encompassed by
paragraphs 2(a), (b), and (c) of this Order for any loss
of earnings they may have suffered by reason of the
Respondent's unfair labor practices. Backpay will be
computed in the manner set forth in 'The Reme-
dy.' "
230 NLRB No. 12
3. Substitute the attached notice for that of the
Administrative Law Judge.
The General Counsel excepts, inter alia, to the Administrative Law
Judge's finding that, although the Respondent violated the Act by refusing
to permit nonmembers to take an examination which was necessary for
placement in the highest job referral categories, it did not violate the Act
with respect to nonmembers not shown to have been otherwise qualified.
We agree with the General Counsel that, the violation having been found,
the extent of any consequent loss by nonmembers in addition to those
specifically found to have suffered as a result is a question for the
compliance stage of this proceeding. We shall modify the recommended
Order and notice accordingly.
2 Members Penello and Walther agree with the Administrative Law
Judge that deferral to arbitration is not appropriate here. Chairman Fanning
joins in that conclusion but would not defer in any event for the reasons set
forth in GeneralAmerican Transportation Corporation, 228 NLRB 808 (1977),
Members Penello and Walther dissenting.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, the National Labor Relations
Board found that we violated the National Labor
Relations Act and ordered us to post this notice.
WE WILL NOT refuse to permit Gary Billcheck,
Kenneth Pollack, William P. Russell, Edward C.
Meyer, Lawrence V. Kohl, Patrick J. Nolasco,
Olin A. Makley, Peter D. Sciascia, Carl Phillips,
Samuel Strunk, Alfred L. Wright, or any other
eligible nonmember job applicant or registrant to
take an inside journeyman wireman's examina-
tion to enable them to qualify for placement in
priority referral Group I or II and thereby to
enhance their opportunities for referral to jobs
under the exclusive hiring hall provisions of our
contract with Penn-Del-Jersey Chapter of the
National Electrical Contractors Association, be-
cause these individuals are not members of our
organization.
WE WILL NOT otherwise attempt to cause or
cause the contracting employers to discriminate
against employees, job applicants, or registrants
in violation of Section 8(a)(3) of the Act.
WE WILL NOT remove George J. Wilson, Jr.,
from his Group II classification or place him in a
"none" classification to render him ineligible for
job referral under our exclusive hiring hall,
mentioned above, or bar him from using such
referral facilities to secure employment, in reprisal
for his activities in opposition to our officials and
their handling of the hiring hall and union affairs.
WE WILL NOT in any other manner restrain or
coerce employees, job applicants, or registrants in
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LOCAL 367, IBEW
the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL place the nonmember registrants who
were not permitted to take the June 7, 1975, inside
journeyman wireman's examination, in the other-
wise appropriate Group for referral to available
jobs in accordance with our contract with Penn-
Del-Jersey Chapter of the National Electrical
Contractors Association and our nondiscrimina-
tory hiring hall rules and regulations.
WE WILL make whole these individuals for any
loss of earnings they may have suffered by reason
of the unfair labor practices we have been found
to have committed.
WE WILL notify, in writing, the above-named
individuals that our exclusive hiring hall facilities
and job opportunities will be available to them on
an equal and nondiscriminatory basis with our
members, employees, job applicants, and regis-
trants.
LOCAL 367,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS
DECISION
STATEMENT OF THE CASES
PAUL BISGYER, Administrative Law Judge: These consol-
idated proceedings, with all the parties represented, were
heard on July 6 through 8 and August 10 through 13, 1976,
in Allentown, Pennsylvania, on the consolidated complaint
of the General Counsel issued on April 30, 1976,' as
subsequently amended,2 and the answer of Local 367,
International Brotherhood of Electrical Workers, herein
referred to as the Respondent or Local 367. In issue are the
questions (1) whether the Respondent, as the operator of
an exclusive referral system under its contract with
electrical contractors, discriminatorily deprived nonmem-
ber job applicants of an opportunity to take an inside
I The consolidated complaint is based on separate charges filed in Cases
4-CB-2632-1.-2,-3, and -4 on November 18, 1975, copies of which were
duly served on the Respondent by certified mail on November 20, 1975; on
separate charges filed in Cases 4-CB-2632-5 and -6 on November 24, 1975,
copies of which were duly served on the Respondent by certified mail on the
same day; and on charges filed in Case 4-CB-2632-7 on November 25,
1975, in Case 4-CB-2632-8 on November 26, 1975, and in Case 4-CB-2642
on December 2, 1975, copies of which were duly served on the Respondent
by certified mail on the respective filing dates.
2 On October 7, 1976, 1 denied a motion made by the General Counsel
near the close of the hearing further to amend the amended consolidated
complaint to allege the invalidity of certain clauses in the parties' collective-
bargaining contract dealing with prior employment of job applicants under
a collective-bargaining agreement between the parties as a condition for
placement in specific referral groups. The order and papers on which the
order is based were made part of the record in this case as AU Exh. I.
Subsequently, on January 31, 1977, the Board issued its decisions in
Interstate Electric Company, 227 NLRB 19% (1977), and Local Union No.
68, International Brotherhood of Electrical Workers (Howard Electric
Company), 227 NLRB 1904 (1977), upholding the validity of similar clauses
as those challenged in the General Counsel's denied motion.
journeyman wireman's examination to satisfy one of the
conditions for placement in priority referral Group I or II,
and thus denied them employment opportunities not
otherwise available to them in lower classifications, thereby
violating Section 8(b)(IXA) and (2) of the National Labor
Relations Act, as amended,3 and (2) whether the Respon-
dent violated the same sections of the Act by evicting
George J. Wilson, a former member and business manager,
from its hiring hall, changing his Group II classification to
"None" and barring him from using its exclusive hiring
hall facilities because of his opposition to the Respondent's
incumbent officials and their administration of union
affairs. At the close of the hearing, the parties waived oral
argument but subsequently filed briefs in support of their
respective positions.
Upon the entire record and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANIES INVOLVED
Penn-Del-Jersey Chapter of the National Electrical
Contractors Association, herein called NECA, is a Penn-
sylvania corporation with its principal place of business in
Philadelphia, Pennsylvania. It is an employer association
whose members are engaged in the construction business in
Delaware, New Jersey, and Pennsylvania. NECA exists for
the purpose, among others, of representing its employer-
members in the negotiation of collective-bargaining agree-
ments with labor organizations, including the Respondent.
During the past year, NECA's members received more
than $50,000 for services performed across state lines.
It is conceded, and I find, that NECA and its members
are and have been at all material times employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
I. THE LABOR ORGANIZATION INVOLVED
It is undisputed that the Respondent is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3 Sec. 8(bXIXA), in relevant part, makes it an unfair labor practice for a
labor organization or its agents "to restrain or coerce ... employees in the
exercise of the rights guaranteed in sec. 7 .... " Sec. 7 provides that:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(aX3).
Sec. 8(bX2) makes it an unfair labor practice for a labor organization or
its agents, among other things, "to cause or attempt to cause an employer to
discriminate against an employee in violation of subsection (a)3) .... "
The latter provision prohibits an employer "by discrimination in regard to
hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization .... "
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The Respondent's exclusive hiring hall; the
issues involving its administration
For more than 15 years, the Respondent, which is
predominately a wiremen's local union, and NECA have
been parties to successive collective-bargaining contracts
pursuant to which the Respondent has operated a hiring
hall for the exclusive referral of inside journeyman
wiremen 4 to projects in the Pennsylvania, New Jersey, and
Delaware area undertaken by NECA's employer-members.
The parties' contract in effect at the time of the events
herein, and which apparently is still current, is for a term
beginning July 1, 1974, through June 30, 1976, and yearly
thereafter absent notification to amend. This contract
recognizes the Respondent as "the sole and exclusive
source of referral of applicants for employment ...
without discrimination against such applicants by reason
of membership or non-membership in the Union ... ."
Acknowledging the right of the employer to reject any
applicant for employment, section 4 of the contract
provides for the Union to "maintain a register of applicants
for employment-on the basis of the groups listed below"
and for the registration of each applicant "in the highest
group for which he qualifies":
GROUP I - All Applicants for employment who have
four or more years' experience in the trade, are
residents of the geographical area constituting the
normal construction labor market, have passed a
Journeyman's examination given by Local #367,
I.B.E.W. or has been certified as a Journeyman
Wireman by Local #367 Inside Joint Apprenticeship
and Training Committee and who have been employed
for a period of at least one year in the last four years
under a collective bargaining agreement between the
parties of this Agreement.
GROUP II - All applicants for employment who
have four or more years' experience in the trade and
who have passed a Journeyman's examination given by
a duly constituted Local Union of the I.B.E.W. or has
been certified as a Journeyman Wireman by any Inside
Joint Apprenticeship and Training Committee.
GROUP III - All applicants for employment who
have two (2) or more years' experience in the trade, are
residents of the geographical area constituting the
4 The Respondent also has contracts for the exclusive referral of
journeyman linemen and residential wiremen not here involved. Although it
appears that the work of inside journeyman wiremen requires higher skills
than that of lineman or residential wireman, the record does not contain
sufficient detail to differentiate between the skills used in each classification.
I A separate ledger is kept for journeyman linemen.
6 There is testimony that several years ago some individuals were
referred to jobs without signing a referral book. There is also testimony that
on infrequent occasions, when both the business manager and assistant
business manager are absent from the hiring hall, job applicants sign a
yellow pad, from which their names are subsequently transferred to the
appropriate ledger.
T The reference to "Section 6.3 to 6.7" relates to the numbenng of the
provisions used in the parties' earlier contracts. In the current contract, the
sections in question should have been designated art. VI, secs. 3 to 7, to
conform with the adopted revised numbering system.
normal construction labor market and who have been
employed for at least six (6) months in the last three (3)
years in the trade under a collective bargaining
agreement between the parties to this Agreement.
GROUP IV - All applicants for employment who
have worked at the trade for more than one (1) year.
Referrals are made from the highest group first, that is
Group I, in the order of the applicant's place on the out-of-
work list until the list is exhausted in which event referral is
made from the next succeeding group until all the groups
are exhausted. To implement the operation of the hiring
hall, the Respondent maintains a bound ledger for each
group classification for inside journeyman wireman 5 which
must be signed weekly by an out-of-work applicant to be
eligible for referral.6 Section 8 of the contract contains a
provision for the establishment of an "Appeals Committee
. . . composed of one member appointed by the Employer,
one member appointed by the Local Union, and a Public
Member appointed by both these members .... " The
committee's function is "to consider any complaint of any
employee or applicant for employment arising out of the
administration by the Local Union of Section 6.3 to 6.7 of
this Agreement." 7 The contract further empowers the
appeals committee "to make a final decision on any such
complaint which shall be complied with by the Local
Union." The rules and regulations concerning the opera-
tion of the referral system are posted on bulletin boards in
the hiring hall.
As will be fully discussed below, on June 7, 1975, the
Respondent gave an inside journeyman wireman's exami-
nation only to its members to enable them to qualify for
priority referral in Group I or II. The amended consolidat-
ed complaint alleges that the Respondent since the end of
May 1975, or the beginning of June 1975, unlawfully
"failed and refused to allow, and denied an opportunity to,
non-members of Respondent to take an examination which
would have placed them in a higher priority group for
purposes of employment pursuant to the contract" and
"thereby denied [11 named nonmembers and other
nonmembers] employment opportunities pursuant to the
contract ... ."8 These allegations thus pose two distinct
questions (I) whether the Respondent discriminatorily
deprived job applicants of the right to take the examination
mandated in the collective-bargaining agreement in order
to meet one of the qualifications for placement in priority
referral Group I or II because they were not members of
Local 367, and (2) if so, whether they were also thereby
discriminatorily denied placement in those groups for
s Originally named in the consolidated complaint were the Charging
Parties Gary Billcheck, Kenneth Pollack, William P. Russell, Edward C.
Meyer, Lawrence V. Kohl, Patrick J. Nolasco, Olin A. Makley, and Peter D.
Sciascia. By written amendment to the consolidated complaint, Carl
Phillips, Samuel Strunk, "and others registered in or seeking employment
through Respondent's hiring hall in May and June 1975, non-members of
Respondent" were added by the Regional Director. During the hearing an
1 Ith individual, Alfred L. Wright, was included as a victim of discrimination
on motion of the General Counsel over the Respondent's objection. The
"others" mentioned in the amended consolidated complaint were 26
individuals subsequently named in G.C. Exh. 23 whom the Respondent
identified as nonmembers who had registered with it for the purpose of
obtaining employment between May I and July I, 1975.
88
LOCAL 367, IBEW
priority referral not otherwise available to them in the
lower group they then occupied. Manifestly, the latter
question presupposes the complainants' compliance with
the other conditions for inclusion in Group I or II. The
Respondent defends on various grounds, among others,
that no discriminatory treatment was proved and that, in
any event, the complainants have failed to resort to the
contractual appeals procedure or to exhaust the internal
union remedies to resolve their complaints regarding the
operation of the hiring hall as it affected them.
Another question to be considered is whether the
Respondent's eviction of Wilson from the hiring hall, his
declassification from Group II to "None," and the denial
of use of its referral facilities to him were unlawful
measures taken in reprisal for Wilson's opposition to
Business Manager Cuvo and Union President and Assis-
tant Business Manager Benner and their administration of
union affairs, as the General Counsel contends, or whether
its treatment of Wilson was justified by legitimate reasons,
as the Respondent argues. Here, too, the Respondent
urges, as a defense, that the pertinent allegations of the
consolidated complaint should be dismissed on account of
Wilson's failure to submit his grievance to the appeals
committee or to the internal union procedures for adjust-
ment. We turn to the evidence.
2. The Respondent's notification to members only
of the scheduled June 7, 1975, journeyman's
examination
It appears that during 1973 and the first half of 1974 or
so the Respondent had sufficient inside journeyman
wireman's work for both its members and nonmembers,
including the II named complainants 9 who utilized the
hiring hall to obtain such employment. However, in the
latter part of 1974, the effects of the recession in the
building construction industry began to be felt in the
Respondent's hiring hall, causing a scarcity of jobs and
unemployment among the Respondent's members, as well
as others. In fact, there is testimony, virtually uncontradict-
ed and which I credit, that in October 1974 Business
Manager Cuvo, President and Assistant Business Manager
Benner, and another union officer, Carl Snyder, suggested
to several complainants and other nonmembers that they
take a voluntary layoff from the United Engineers'
Martin's Creek Powerhouse project, to which they had
previously been referred and on which they were then
working, to make room for unemployed members.
Because of the limited number of available jobs, it is
obvious that it would be to an applicant's decided
advantage if he were included in a priority referral group.
As noted above, the hiring hall provisions of the governing
9 Billcheck, Russell, Meyer, Makley, Phillips, Strunk, and Wright were
members of a sister Local 1319, essentially a lineman local. For this reason
they were classified by their union as linemen, although they were
experienced inside journeyman wiremen who sought work of that nature
and were actually referred by the Respondent to such jobs which, as
previously indicated, required higher electrical skills than lineman work.
The other four complainants, Pollack, Kohl, Nolasco. and Sciascia had no
union affiliation. They also had inside journeyman wireman experience and
were referred by the Respondent to jobs requiring those skills.
1' This requirement is found in the "Definitions" part of art. VI, sec. 4,
and reads as follows:
collective-bargaining contract required, among other
things, that an applicant pass "a Journeyman's examina-
tion" given by the Respondent Local 367 to be eligible for
placement in Group I or that he pass "a Journeyman's
examination given by a duly constituted Local Union of
the I.B.E.W." to be eligible for placement in Group II. To
qualify to take the examination, which the Respondent is
obligated to schedule once every 6 months, the contract
requires that the applicant have "four (4) years' experience
at the trade." ' ° The contract, however, does not define
what the phrase "experience at the trade" encompasses and
it is reasonable to assume that it generally includes the full
gamut of electrical skills in the trade and not, as the
Respondent suggests in its brief, only inside journeyman
wireman's experience.
In May 1975,11 Cuvo sent a letter solely to the
Respondent's members, stating, in pertinent part, as
follows:
Local 367 Examining Board will give an Inside
Journeyman Wireman's Examination at 9:30 A.M. on
Saturday, June 7th, 1975 at 32 North Second St.,
Easton, Pa. for any of our members wanting to take it.
This examination is not mandatory; however, we
cannot place some of our own members in Group I or
II because they do not have any record of examination
in their files. Also, some other Locals require "proof of
examination." You can find out your status, if you
don't know, by calling this office. We do have
documentation that all former members of Local 28,
Baltimore, have taken a Journeyman's Examination.
Also, all members who have completed the J.A.T.C.
course in the past five years, in this Local, do not
require an examination.
As you may or may not know, over one million,
seventeen thousand union building tradesmen are
presently unemployed, and this figure is climbing. We
have called locals from Florida to Alaska seeking work
for our unemployed, with very little success.
This letter was posted on a bulletin board in the hiring
hall and soon the notification of the scheduled examination
became the subject of discussion among the complainants
and other nonmember and member job applicants. Mani-
festly-and no claim is made to the contrary-the
examination was not open to any nonmember whether or
not he was then registered for work or was otherwise
The term "Examination given by Local Union No. 367" as referred
to in Group I. shall include experience rating tests if such examination
shall have been given prior to May 1, 1959, but from and after May I.
1959, shall include only written and/or practical examination. Exami-
nations for journeymen given by Local No. 367 shall take place once
every six months. An applicant shall be eligible for examination if he
has four (4) years' experience at the trade.
" Unless otherwise indicated, all dates hereinafter mentioned relate to
1975.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeking employment through the Respondent's hiring
hall,12 even though the contract expressly prohibits
discrimination based on union or nonunion membership in
the administration of the referral system.13 Moreover, not
only is there no evidence that any nonmembers were
informed that they could take the examination, but also it
is quite clear that it would have been futile for the
complainants or other nonmembers to request and secure
permission to take the examination. Indeed, the record
contains testimony, much of which is uncontroverted, of
inquiries and requests made by several complainants of
Cuvo, Benner, and other union officials to take the
examination only to be informed, as was already apparent,
that the examination was restricted to members and denied
to outsiders because too many members were unem-
ployed.'4 One of the complainants, Pollack, who received
from Cuvo this negative response to his request to take the
examination, promptly conveyed this information to other
complainants who were present in the hiring hall at the
time.
In contrast with the treatment accorded nonmembers,
there is uncontroverted and credited testimony by Robert
Vesey, a longtime member of Respondent Local 367, that,
after receiving the above-quoted notification of examina-
tion, he was upset that he was obliged to take the
examination and spoke to Cuvo about it a week before the
scheduled date. Cuvo assured Vesey that he had nothing to
worry about and showed him the examination which was
to be given on June 7. After reading it, Vesey remarked to
Cuvo that "any idiot" could pass it and telephoned several
friends to advise them to make sure that they took the
examination. As anticipated, Vesey subsequently passed
the examination and was placed in Group I as a qualified
inside journeyman wireman. Another member of the
Respondent for 17 years, Paul F. Seidt, credibly testified,
without contradiction, that a week before the June 7 date
of the examination Benner telephoned him to remind him
to take the examination. Seidt agreed to do so and passed
the examination, which he, too, thought was simple. As a
12 It appears that in May or June complainants Russell, Meyer, Nolasco,
Makley, and Wright had registered in the out-of-work books, while the other
complainants evidently saw no need at the time to register because of the
lack of available work, although they visited the hiring hall during that time
period.
3i To gain entrance to the examination room, applicants were required to
exhibit Local 367 dues receipts issued by the Respondent.
14 The only testimony that was contradicted was that given by Pollack
concerning his conversation with Cuvo, who denied that the conversation
ever occurred. I credit Pollack's account which I find plausible and in
conformity with the realities of the situation.
The Respondent also questions the veracity of Makley's testimony that he
had asked Benner for permission to take the June 7, 1975, examination to
upgrade his standing, by alluding to Makley's statement in a letter sent to a
Board agent after November 26, 1975. In this letter, Makley wrote that "I
just learned of the journeyman's examination approximately three weeks
ago when I saw a copy of the letter sent to Local 367 men which George
Wilson had, and am enclosing a copy to you." However, in the next
paragraph he stated:
I asked several months ago about taking the J.A.C.T. test which
would upgrade me to a different and higher level.
I was told by Russel [sic I Benner I couldn't take the test because I
was from an outside Local.
Confirming his conversation with Benner, Makley testified that he
mistakenly believed when he wrote the letter that the June 7 examination the
consequence, he was advanced from Group III to Group I
status.
On June 7,15 a written examination was given by the
Respondent to 103 members. The examination paper was
entitled "INSIDE WIREMAN - PRACTICAL EXAMINATION"
with the following introductory sentence: "Any member of
Local 367-who has been working as an Inside Journey-
man for at least eight (8) years shall be eligible to take this
examination." The test consisted of 10 questions, of which
the first question was an introductory inquiry and the next
3 and the 10th questions were union oriented.' 6 All 103
members passed the examination and were certified as
having successfully passed an "Inside Journeyman Wire-
man Examination." According to the minutes of a July 11
membership meeting of Local 367, Cuvo reported the
results of the June 7 examination and that 87 of the 103
members moved from Group III to Group II and 16 moved
from Group II to Group I.
It is clear that the contract's eligibility requirement to
take the examination is "four (4) years' experience at the
trade" and not 8 years as stated on the examination paper.
As discussed infra, I find that the 11 named complainants
satisfied the contract requirement and were therefore
qualified to take the examination. As for the other 26
nonmembers who had registered for referral in May or
June and are identified in General Counsel's Exhibit 23, no
evidence was adduced at the hearing to establish their
eligibility to take the examination.
3. Complainants' qualifications for placement in
Group I or II
In addition to passing the examination as one of the
conditions for inclusion in Group I, the collective-bargain-
ing contract requires that an applicant have "four or more
years' experience in the trade"; residency in "the geograph-
ical area constituting the normal construction labor
market," as therein specifically described; and employment
for "at least one year in the last four years under a
Respondent had scheduled was a J.A.C.T. (apprenticeship) test and that he
did request Benner for permission to take that examination but that he was
turned down because he was from an outside local. I credit Makley's
explanation and undisputed testimony and find no inconsistency or
falsification, as the Respondent asserts.
15 Cuvo originally testified that he thought that the examination was held
on July 5, 1975. However, he subsequently corrected his testimony upon
learning that the true date was June 7, 1975. 1 have no reason to believe that
Cuvo willfully gave false testimony concerning the date of the examination.
16 These questions were:
I. How many years have you been working at the electrical
construction trade?
2. How many years have you been in the I.B.EW.?
3. Which I.B.E.W. Locals have you worked out of (to the best of
your recollection)?
4. Name one or more I.B.E.W. Business Managers for reference
(active).
10. Why is being in the I.B.E.W. a benefit to the working
electrician?
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LOCAL 367, IBEW
collective bargaining agreement between the parties of this
Agreement." For eligibility in Group II, the contract
requires the same "four or more years' experience in the
trade," as well as passing an examination given by any
IBEW local union.
At the outset, it is noted that the Respondent does not
question the complainants' compliance with the residency
requirement for placement in Group 1. In any event, the
record supports such a finding. As for the 4 or more years'
experience in the electrical trade, the Respondent also does
not dispute the testimony of complainants Billcheck,
Russell, Meyer, Makley, Phillips, and Strunk, which I also
find establishes that their electrical experience, which
includes inside wireman's work, meets this requirement.
However, the Respondent contends that the evidence
relating to the electrical experience of the other five
complainants falls short of the 4 years needed to qualify for
placement in Group I or II. We consider each of these
individuals separately.
Pollack testified, without contradiction, to a work record
of 17 years in a variety of electrical jobs. This encompassed
inside journeyman wireman's jobs among which was the
Martin's Creek Powerhouse job he had obtained through
the Respondent's hiring hall and where he had worked for
17 months until October 1974. Nolasco credibly testified
that he performed full-time electrical work for an employer
in the electrical trade from 1963 to 1968; private electrical
jobs "on the side" from 1968 to 1973; and from 1973
through 1974 when he worked for various electrical
contractors on referral from the Respondent's hiring hall.
He further testified that this experience included inside
journeyman wireman's work. According to Sciascia's
undisputed and credible testimony, he was employed as an
electrician by different contractors for about 15 years.
From 1972 to 1975, he was referred to various jobs through
the Respondent's hiring hall. His experience included
inside journeyman wireman's work. Wright's credible
testimony shows that he was an electrician for 11 years
with inside journeyman experience. He, too, has received
such wireman's jobs on referral through the Respondent's
hiring hall since November 1972. Lastly, although Kohl
appeared to be a confused and at times an incoherent and
difficult witness to comprehend, the record sufficiently
demonstrates that he possessed more than 4 years'
experience in the electrical trade, a part of which he
acquired through referral from the Respondent's hiring
hall. In fact, in 1974, the Respondent permitted him to take
an inside journeyman wireman test which, as indicated,
required 4 years' electrical experience. However, he failed
the test, according to Kohl, because of inadequate
preparation. Without going into further detail, which
appears to me to be unnecessary, I find, in sum, that the
five above-named individuals, as well as the six other
complainants whose electrical experience is not contested,
satisfy the contractual requirement of "four or more years'
experience in the trade" for placement in Group I or II.
1" These jobs were Sargent Electric from February 28 to May 17, 1974,
and United Engineenring from May 28 to October 2, 1974. While Kohl's
employment does not meet a condition for Group I placement, it does
satisfy the 6-months-in-the-last-3-years requirement for Group III place-
ment.
With respect to the additional Group I requirement of
employment of "at least one year in the last four" under a
bargaining agreement between the parties, the Respondent
only argues that Wright, Sciascia, and Kohl do not meet
this condition. However, the Respondent's own record of
Wright's employment discloses that since November 1972
he has been referred by the Respondent to jobs governed
by its bargaining agreement with contractors for whom he
worked much longer than I year. The undisputed evidence
also establishes that Sciascia, on referral from the Respon-
dent's hiring hall, worked at least I year onjobs covered by
the Respondent's bargaining contract. As for Kohl, on the
other hand, his employment card produced as an exhibit
by the Respondent discloses that Kohl was referred to jobs
governed by the contract but that such employment totaled
approximately 7 months.17
Finally, the Respondent concedes that since June none
of the 11 complainants has been referred to any job
through its hiring hall.
4. Wilson's registration for referral; his
subsequent declassification from Group II to
"None"; and denial of access to and use of the
hiring hall
George J. Wilson, Jr., served as the Respondent's
business manager for something less than 10 years until
1966 when he resigned from that position and his union
membership which dated back to 1945. In 1968, his
membership was restored but was terminated the following
year for nonpayment of dues.
There is no evidence of any contact between Wilson and
the Respondent until the spring of 1974 when Wilson
telephoned Union President and Assistant Business Man-
ager Benner. Wilson made various inquiries of Benner
concerning the former's contemplated employment with
Blasco Electric Company and whether he would be
permitted to perform wiring work on Blasco's McDonald
Restaurant job as a journeyman wireman or foreman.
When Benner indicated that Wilson would probably first
have to register for referral, Wilson raised the subject of his
contemplated appointment as Blasco's superintendent.
Wilson then asked whether he could work with tools of the
trade as a partner of the firm. The conversation ended with
nothing conclusive being decided.' 8 Wilson thereafter
continued his association with Blasco as superintendent for
several months when it was terminated, according to
Wilson, because of certain suspected pressures put on
Blasco which Wilson apparently attributed to Respondent
Business Manager Cuvo and Benner. Wilson testified he
was therefore determined "to get even" with Cuvo and
Benner.
In early spring of 1975, Wilson called Cuvo on the
telephone to arrange a meeting to have a discussion with
him regarding a matter not otherwise identified. Cuvo
abruptly hung up, saying that he was too busy running the
Union. Not long after this aborted conversation, Wilson
met Benner in the post office building in Easton, Pennsyl-
IR The foregoing statement essentially reflects Benner's credited testimo-
ny which I find was more detailed and accurate than Wilson's brief account.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vania, and told him that he would do everything he
possibly could do to see that both Cuvo and Benner were
replaced at the next union election.
On September 4, Wilson appeared at the Respondent's
hiring hall where he secured a membership application
form from Benner. Wilson completed the form which he
returned to Benner. At a union meeting held on September
8, Wilson's application was brought up, but no action was
taken on it as a result of Cuvo's objection. It appears that
Wilson had not pursued proper procedures for readmission
to the Union.
On September 5, Wilson went to the Respondent's hiring
hall to register for employment. Benner handed Wilson an
out-of-work book to sign which Wilson did, commenting
that he assumed that the book was for Group II referral. At
the hearing, Cuvo admitted that Wilson was placed in
Group II when he first registered for wireman's work. The
record further establishes that Wilson has been an
electrician for approximately 20 years, having passed an
inside journeyman wireman's examination in 1949.'9 Like
other job applicants, Wilson remained in the hall until its
regular 9 a.m. closing time, without receiving a referral.
Wilson continued to visit the hiring hall on the morning
of September 8, 9, and 10 in his unsuccessful search for a
job. On the latter date (September 10), Wilson was evicted
from the hall under the following circumstances: While in
the hall, Wilson joined several individuals at the registra-
tion desk. At that time, Wilson's brother, Thomas, asked
Benner what his standing was on the out-of-work list. At
that point, Cuvo appeared, inquiring what was going on.
Benner told Cuvo of Thomas Wilson's request. Cuvo then
looked through the referral book and advised Thomas
Wilson what his position was. Thereupon, George Wilson
asked for his standing on the list. Cuvo replied that he
could not tell him. Wilson then inquired, "You mean, you
can't or you won't?" Cuvo responded, "Both," and noted
that Wilson was not a member. Commenting that this
would not go well with the NLRB, Wilson shouted a not
uncommon obscenity20 at Cuvo who ordered Wilson to
leave the hall or he would call the police. Wilson thereupon
left the hall as Cuvo proceeded to his office to call the
police who arrived a few minutes later and cleared the hall.
Cuvo testified that it was Wilson's obscene remark that
caused him to evict Wilson. 21
19 Specifically, the evidence shows that Wilson worked in the electrical
trade from 1940 to 1957, except for 4-3/4 years when he was in the military
service; that he was the Respondent's business manager from 1957 to 1966;
that he was engaged in his own business as an electrical contractor and
general contractor from 1969 through 1973, working with the tools of the
electrical trade; that he was employed by Blasco Electric Company as
electrical superintendent for 3 or 4 months in 1974, supervising an
electrician on the job but not working with tools himself; and that he was
self-employed between January 1, 1975, and September 30, 1975, during
which period he performed the necessary journeyman wireman's work on
various residences, along with other nonelectrical jobs. Wilson also testified
that he satisfied all the requirements for inclusion in referral Groups I
through IV except that he had not worked I year in the last 4 years under
the Respondent's contract with contractors entitling him to Group I
eligibility, or 6 months in the last 3 years which is needed for eligibility in
Group Ill. In evidence is also a letter issued by the Respondent under date
of August 7, 1968, that its "records indicate that on June 30, 1949, George J.
Wilson, Jr. passed an examination given before the Examining Board of
I.B.E.W., Local Union No. 367."
20 Cuvo testified that his female secretary was within hearing distance.
However, he conceded that he heard the same expression in the hiring hall
before, but it was not in such a loud voice.
Notwithstanding his eviction, Wilson visited the hiring
hall in the ensuing days, either staying inside the hall for a
short while or loitering on the street. During these times, he
engaged members in conversation in which he complained
about being discriminated against.
On September 22, Wilson appeared at the hiring hall to
register.22 Benner handed him a form entitled "Application
For Referral As Construction Electrician." Wilson filled
out and dated the form and returned it to Benner. In it,
Wilson stated that he had 25 years' experience as "inside
wireman" and under the item "Former Employers" he
wrote "H. N. Crowder, Jr. Co., IBEW 367, 1946-1968."23
Later in the day, and out of the presence of Wilson, Cuvo
noted the word "None" in the section of Wilson's
completed form entitled "Classification" opposite a vertical
listing of Group I through V. In addition, Cuvo wrote
under "Comments" his reason for giving Wilson a "None"
classification, as follows:
Applicant is not considered an inside journeyman
wireman. To the best of my knowledge, he has not
worked as a construction electrician for a period of
over 18 years. The fact that he passed a written
examination (or claims to have) over 26 years ago does
not qualify him as a job applicant in this hiring hall.
A.A.C.
Cuvo testified that he acted unilaterally in thus changing
Wilson's classification from Group II in which he had
previously been placed to "None," for the reason that he
(Cuvo) had "determined that [Wilson] did not meet the
minimum requirements for the lowest priority group
[Group IV] because he had not worked at the trade for
more than one year within the lastfour years."24 (Emphasis
supplied.) However, Cuvo conceded that there is nothing in
the contract that imposes this requirement for Group IV
eligibility. He, nevertheless, justifies his injection of the new
condition of employment in the trade of more than I year
in the last 4years by the fact that at a meeting of the labor-
management committee 25 subsequently held on September
26, the committee concurred in his interpretation of the
requirement in question.26 According to Cuvo, who was
one of the Respondent's representatives on the committee,
On the basis of this incident Cuvo subsequently filed a complaint in a
local magistrate's court against Wilson. alleging harassment. The complaint
was dismissed after a trial held on October 30.
21 However, in his testimony in the magistrate's court Cuvo stated, in
effect, that, if Wilson were a member, he could not evict him. The General
Counsel alludes to this testimony as an admission of disparate treatment.
22 To remain on the out-of-work list job applicants have been required to
renew their registration weekly.
23 Although the form states that "You must show proof of the above
statements," there is no evidence that Benner, Cuvo, or any other union
official requested it.
24 This quoted statement, confirmed as true by Cuvo on the witness
stand, is taken from his affidavit given to a Board agent.
25 Art. I of the Respondent-NECA agreement provides for the establish-
ment of a labor-management committee, consisting of three union
representatives and three employer representatives, to consider "la11l
questions or disputes which are not adjusted between the Union and the
Employer."
26 The minutes of this committee meeting, in relevant part, read, as
follows:
92
LOCAL 367, IBEW
he was prompted to submit this interpretation to the
committee for approval because of the Wilson matter.
Concerning Cuvo's revocation of Wilson's Group II
classification, the only evidence of the reason consists of
Cuvo's above-quoted notation made on Wilson's Septem-
ber 22 application and Cuvo's testimony that Wilson was
removed from the Group II classification between Septem-
ber 15 and 24. However, it further appears from the
minutes of the labor-management committee's September
26 meeting that the committee also adopted an interpreta-
tion retroactively supporting Cuvo's revocation of Wilson's
Group II status. 27
On September 23, Wilson again came to the hall. Benner
promptly informed him that, on Cuvo's orders, he was
barred from the hall and that if he did not leave he would
be arrested, Whereupon Wilson departed. However,
Wilson returned the next day accompanied by another
applicant to witness Wilson's anticipated ejection. As
expected, Benner directed Wilson to leave, which he did.
On September 25 or 26, Wilson received the following
letter dated September 24 from Cuvo, as the Respondent's
business manager and financial secretary:
This letter is to officially advise you that you are
barred from this Local Union's Hiring Hall.
You were advised of this verbally by my assistant
yesterday, September 23, 1975 and again this morning.
He stated to you, under my direction, that this action
has nothing to do with your status as a member or non-
member. This is a fact.
This property (32 North Second Street, Easton, Pa.)
is private property, and we reserve the right to refuse
admission to these premises to anyone that we so
choose.
If you enter these premises again, after receipt of this
notice, we will file a complaint of trespassing against
you.
Despite this notification that his presence was not
welcome at the hiring hall, Wilson subsequently sought to
register for work at the hall but without success. There is no
evidence whether Wilson thereafter has persisted in these
efforts.
There can be no doubt of the bitter feelings and hostility
which have existed between Wilson, on the one hand, and
Cuvo and Benner on the other, for some time before the
In accordance with Article I of the collective bargaining agreement ...
the following interpretations were unanimously agreed to, following
much discussion:
"... W]ho have worked at the tradefor more than one (I) year" shall
be construed to mean that this requirement shall have been met within
the reasonable past. Reasonable past shall mean that no more than four
(4) years have elapsed since the applicant has fulfilled this requirement.
(re: Group IV)
27 Thus, concerning the interpretation of the relevant language of Group
II, the committee minutes read:
'four or more years experience in the trade" shall be construed to mean
September events previously described. Wilson had warned
Benner that he would exert his energies to see that he and
Cuvo were defeated at the next union election. He had also
prepared a resolution for members to submit at a union
meeting to provide for the discontinuance of Benner's
salary as assistant business manager. During the early part
of the week of September 8, in the union hall Wilson called
Benner an "idiot" in the presence of other job applicants.
On another occasion during the same time period, Wilson
disparaged Benner by telling the men in the hall that
Benner was simply an overpaid clerk. It is also clear that
Wilson has repeatedly and openly voiced to members and
nonmembers his criticism of the way the hiring hall and
union affairs were being managed by Cuvo and Benner.
Indeed, Cuvo in his affidavit given to the Board asserted
that "[s]ince on or about September 4, 1975, Mr. Wilson
has continually attempted to inject himself into the hiring
hall to impede and harass the union officials and staff in
the performance of their duties." Whether Wilson's vocal
opposition to the incumbent union officials was the
motivating reason for his eviction, declassification and
denial of the use of the Respondent's referral facilities will
be considered in the "Concluding Findings" section of this
Decision. 28
B. Concluding Findings
i. With respect to discrimination against the 11
named complainants29
It is settled law that a union which undertakes to operate
an exclusive hiring hall pursuant to a contract or other
arrangement with employers as the exclusive source of
recruitment of employees is obligated to treat applicants
equally and to refer them to jobs without regard to their
union membership or loyalty or the lack of it. If the union
fails to observe this obligation and administers the hiring
hall in a discriminatory manner, it clearly violates Section
8(bX2) and (IXA) of the Act.30 As shown above, this is
precisely what the Respondent did when it solicited and
permitted only its members to take the inside journeyman
wireman's examination, mandated by the contract, to
enable them to qualify for Group I or II priority referral
status, while simultaneously depriving nonmembers simi-
larly using the Respondent's hiring hall of the right to take
the examination to improve their job opportunities. The
that this expenence shall have been in the reasonable past. Reasonable
past shall mean that no more than four (4) years have elapsed since the
applicant has fulfilled the requirement. (re: Group II)
28 Whether or not the complainants and Wilson were completely candid
in their testimony concerning their knowledge of the appeals procedure for
remedying complaints regarding the administration of the hiring hall or
concerning the assistance Wilson furnished the complainants respecting the
filing of the unfair labor practice charges herein does not affect the
foregoing factual presentation which is based on virtually uncontradicted
and credible testimony or which is otherwise compelled by the evidence in
the record.
29 Billcheck, Pollack. Russell, Meyer, Kohl. Nolasco, Makley, Sciascia,
Phillips, Strunk, and Wright.
30 Local 357, International Brotherhood of Teamsters, Chauffeurs Ware-
housemen and Helpers of America [Las Angeles-Seattle Motor Express] v.
N.LRB., 365 U.S. 667 (1961); Local Union 136, Muskingwn Valley District
Council of the United Brotherhood of Carpenters and Joiners ofA merica, AFL-
CIO (Frank Vlack Company, Inc.), 165 NLRB 1040, 1041 (1967).
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific victims of this disparate treatment were the II
complainants who, despite the fact that they satisfied the
only contractual prerequisite of 4 years experience in the
trade for taking the examination, and despite the contract's
explicit prohibition against discrimination based on union
membership, were not permitted to take the examination. 1l
Thus, by restricting the examination solely to its members,
the Respondent, not only accorded members preference in
referral opportunities, but prevented the complainants
from fulfilling one of the conditions for placement in
priority Group I or II where similar referral prospects
would have been available to them.
In short, I find that, by denying the 11 complainants the
right to take the wireman's examination because they were
not members of its Local Union, the Respondent, in
violation of Section 8(bX2) of the Act, attempted to cause
and caused the contracting employers to discriminate
against them to encourage membership in its labor
organization, in violation of Section 8(a)(3) of the Act. I
further find that such conduct amounted to restraint and
coercion of employees in the exercise of their statutory
rights violative of Section 8(b)( I)(A) of the Act.32 However,
I find that no unfair labor practices were committed
against the 26 other nonmembers included in General
Counsel's Exhibit 23 as no evidence was adduced by the
General Counsel that those individuals were eligible under
the contract to take the examination. Accordingly, the
relevant allegations of the amended consolidated com-
plaint respecting these 26 nonmembers will be dismissed.
Apart from the unlawful discrimination inherent in the
Respondent's failure to make the examination available to
the complainants, I find that the Respondent's conduct
also deprived the named complainants of the opportunity
to achieve Group I or II status for priority referral. It has
previously been found that all the complainants, except
Kohl, met the contract requirements of 4 years' experience
in the trade,33 residency, and at least I year in the last 4
years of employment in jobs covered by the parties'
collective-bargaining agreement, for placement in Group I.
Kohl, however, did not possess the 1 year in the last 4 years
of employment under the parties' contract, although he did
have 4 years' experience in the trade required for Group II
status. Thus, the only condition not fulfilled by the
complainants to gain such priority status in Group I or II,
as the case might be, was passing the wireman's examina-
tion. Since the Respondent deliberately made this an
unattainable condition, it is not unreasonable to assume
31 As indicated previously, during the May-June period when the
examination was announced and administered, five of the complainants had
registered for work; others saw no need to sign the referral book when they
visited the hiring hall because of the job shortage and the limited possibility
of securing employment; and a number of complainants, to the knowledge
of other complainants, unsuccessfully tried to obtain permission from
officials of the Respondent to take the examination.
32 Local Union No. 269, International Brotherhood of Electrical Workers,
A FL-CIO (Mercer County Division, New Jersey Chapter, National Electrical
Contractors Association), 149 NLRB 768 (1964), enfd. 357 F.2d 51 (C.A. 3,
1966); Nassau-Suffolk Chapter of the National Electrical Contractors'
Association, Inc. and Alcap Electrical Corporation, 215 NLRB 894 (1974).
33 The Respondent states in its brief that the required 4 years' experience
must have been gained as a journeyman wireman. Apart from the fact that
the record does not describe the particular skills encompassed in wireman's
work, except that they involve higher skills than those required in other
electrical classifications, the provisions in the contract at bar, as well as in
that, had the complainants been given the opportunity to
take the examination, they would have passed it.34 Indeed,
the reasonableness of this assumption is indicated by the
fact that all of the 103 members who had taken the
examination had successfully completed it and shortly
thereafter were placed in Group I or II. Moreover, one
member, who was shown the examination by Business
Manager Cuvo in advance of its scheduled date, found the
examination to be so easy that he advised his friends to be
sure to take it. In any event, it appears to me that, under
the circumstances of this case, equity and fairness demand
that the burden of proving that the complainants would
have failed the examination and thereby would have been
ineligible for Group I or II status should rest on the
Respondent which had unlawfully prevented the complain-
ants from submitting to the test. As one court so aptly
observed, 35 although in a different context, "it rested upon
the torlfeasor to disentangle the consequences for which it
was chargeable." Since the Respondent has not demon-
strated that the named complainants were incapable of
passing the examination, and having found that all of
them, except Kohl, have met the other qualifications for
inclusion in Group I and afortiori in Group II, I find that
the Respondent violated Section 8(bX2) and (IXA) of the
Act in not according them such priority status.3 6 As for
Kohl, I find that, since he lacked employment of I year in
the past 4 years under a collective-bargaining contract
between the parties, the Respondent violated the same
provisions of the Act with respect to him only in not
placing him in Group II, which did not impose that
requirement as a condition for inclusion in that group.3 7
The Respondent, nevertheless, argues, in defense, that
the consolidated complaint should be dismissed with
respect to all the complainants on the ground that they
failed to pursue the contractual remedy for the adjustment
of grievances regarding the administration of the referral
system. As noted, above, the contract establishes an
appeals committee, composed of a union representative, an
employer representative, and a public member selected by
the other two, with authority to consider and make a final
decision on applicants' complaints arising out of the
operation of the referral system. I find no merit in the
Respondent's contention.
There is no question that deferral to an arbitral forum is
a discretionary matter. 38 Section 10(a) makes it clear that
the Board's power "to prevent any person from engaging in
any unfair labor practice [cannot] be affected by any other
other IBEW contracts, only speak of experience in the trade-manifestly, a
general characterization, which includes the whole gamut of electrical skills.
In any event, the record indicates that the complainants do possess
wireman's experience and, in fact, they had previously been referred to such
jobs by the Respondent.
34 Of course, the union-oriented questions, previously mentioned, would
have no relevance.
35 N.LR.B. v. Remington Ran4 Inc., 94 F.2d 862, 872 (C.A. 2, 1938).
38 Whether and at what times jobs would have been available to the
complainants will be determined in the compliance stage of this proceeding.
Proof of job availability is not necessary to establish a violation under Sec.
8(b)2) and (IXA) of the Act. Utility and Industrial Construction Cornpany,
214 NLRB 1053 (1974).
37 It appears that Kohl also satisfied the Group II requirement of 6
months' employment in the past 3 years under the parties' contract.
38 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB
837 (1971).
94
LOCAL 367, IBEW
means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise .... " I do
not believe that it would serve the purposes of the Act to
deny the complainants access to the Board to vindicate
their statutory rights simply because they failed to submit
their grievances to the appeals committee. Not only is
Respondent Business Manager Cuvo, who is inextricably
involved in the unfair labor practices alleged herein, a
member of this committee, but the employer-member,
though not charged as a party respondent, is potentially
responsible for the discriminatory administration of the
hiring hall which it has agreed with the Respondent to
establish as the exclusive source for recruiting electricians.
In these circumstances, whether or not the employer-
member of the committee is unalterably disposed to
support the Respondent's position, I find that a possible
conflict of interest exists vis-a-vis the complainants. This
appears to me to make the appeals committee an
inappropriate forum for the impartial resolution of the
complainants' grievances against the Respondent regard-
ing the discriminatory treatment they allegedly received
from the Respondent's operation of the hiring hall.39
Accordingly, I find that the complainants did not forfeit
their statutory rights by not submitting their complaints to
the appeals committee.
Equally without merit is the Respondent's contention
that the consolidated complaint should be dismissed
because the complainants failed to exhaust the internal
union remedies for redress of their wrongs, before filing the
unfair labor practice charges in this case. Here, too, I find
that, apart from the fact that most of the complainants
were not members of the IBEW and therefore not bound
by its constitution or bylaws, their right to resort to the
Board for vindication of their statutory rights to be free
from discriminatory treatment does not depend on the
unavailability of internal union remedies.40
2. With respect to discrimination against Wilson
As discussed above, Business Manager Cuvo evicted
Wilson, a former business manager and member of the
Respondent, from the hiring hall, declassified him from
Group II to "None," and barred him from using the
Respondent's hiring hall to secure employment. It is the
General Counsel's position that this treatment of Wilson
was motivated by Wilson's opposition to Cuvo and to
Respondent President and Assistant Business Manager
Benner and their administration of the hiring hall and
union affairs and that the Respondent therefore violated
Section 8(b)(2) and (I)(A) of the Act. Denying that it
committed any unfair labor practices, the Respondent
justifies Wilson's eviction on the ground that he had
directed an obscene remark at Cuvo. As for the declassifi-
cation of Wilson and its refusal to permit him to utilize its
39 Local Union 675, International Brotherhood of Electrical Workers,
A FL-CIO (S d M Electric Co.), 223 NLRB 1499 (1976).
40 In fact, art. VI, sec. 3, of the collective-bargaining agreement provides,
inter alia, that the nondiscriminatory "selection and referral [of applicants
for employment I shall not be affected in any way by rules, regulations, by-
laws, constitutional provisions, or any other aspect or obligation of Union
membership policies or requirements."
I' Cf. International Union of Operating Engineers, Local 18, AFL-CIO
(Ohio Contractors A ssociation), 220 NLRB 147 (1975); Philadelphia Typo-
hiring hall, the Respondent urges that it took this action
because Wilson lacked the qualifications for placement in
any referral group, particularly Group II or IV. I find the
Respondent's justification unsupported by the facts or the
law.
It has been found that Wilson was provoked to make the
obscene remark by Cuvo's refusal to tell him what his
standing was on the referral list for the asserted reason that
Wilson was not a member of the Respondent. Certainly
this remark, whose use in the hiring hall (or even in other
respectable circles) is not an uncommon occurrence, was
not so obnoxious as to justify excluding a job applicant
from the hiring hall which he was utilizing to secure
employment.4 ' Moreover, viewing this eviction in light of
Cuvo's subsequent conduct in removing Wilson from
Group II to "None" so as to render him completely
ineligible for referral from any group and in barring him
from utilizing the hiring hall facilities, convinces me that
the eviction was but the initial step in Cuvo's efforts to
eliminate Wilson from the hiring hall because of his
activities in opposition to the incumbency of Cuvo and
Benner and the way they operated the hiring hall and
handled union affairs. Admittedly, Cuvo and Benner were
aware of Wilson's campaign against them and his determi-
nation to unseat them in the next election.
As indicated above, the Respondent, however, denies
that the declassification of Wilson and his disqualification
from using the hiring hall was improperly motivated. It
argues that Wilson's experience in the electrical trade was
acquired too long ago to be viewed as an adequate
compliance with the Group II or IV requirements. For the
same reason, the Respondent attaches no significance to its
certification that in 1949 Wilson had passed an examina-
tion given by its examining board.
Concededly, there is absolutely nothing in the controlling
collective-bargaining agreement of the parties restricting
the qualifying experience to that gained in recent years. 4 2
Indeed, Cuvo not only admitted that much but also
testified that he had unilaterally interpreted the agreement
to require recent experience when he considered Wilson's
registration application. This appears to be the first time
that the contract was given that interpretation-at least, no
evidence was produced to show otherwise. Moreover,
apparently realizing the vulnerability of his interpretation,
Cuvo, after having already declassified Wilson and denied
him access to the hiring hall, submitted on September 26
his interpretation to the labor-management committee for
its approval. The committee agreed with Cuvo's interpreta-
tion, determining that the phrase "worked at the trade for
more than one (1) year" to qualify for inclusion in Group
IV meant that "no more than four (4) years have elapsed
since the applicant has fulfilled this requirement." This
construction of the requirement retroactively confirmed
graphical Union No. 2 (Triangle Publications. Inc.. et al.), 189 NLRB 829
(1971).
42 In fact, where the parties thought it necessary to provide a time
limitation for the acquisition of experience, provision was made for it in the
contract. Thus, Group I requires employment of 1 year "in the last four
years" under an agreement of the parties, while Group III requires
employment of 6 months "in the last three (3) years" under an agreement of
the parties.
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cuvo's determination of Wilson's ineligibility for inclusion
in Group IV. Although not specifically relied upon by the
Respondent, the labor-management committee on the
same occasion also construed the Group II requirement of
"four or more years' experience in the trade" to mean "no
more than four (4) years have elapsed since the applicant
has fulfilled this requirement." This, in effect, also gave
Cuvo retroactive support of his removal of Wilson from
Group II. I further find nothing in the contract which
justifies Cuvo's disregard of Wilson's successful completion
of Local 367's examination in 1949 as a qualifying factor
because it occurred in the distant past. Indeed, the contract
expressly recognizes the continued vitality of examinations
of that vintage by its inclusion in the definition of Local
367's qualifying examination "experience rating tests if
such examination shall have been given prior to 1959." In
sum, it is clear that the Respondent's retroactive alteration
of conditions for placement and referral casts serious doubt
on the purity of the Respondent's motivation for the
treatment accorded Wilson, and betrays the pretextual
nature of the reasons advanced for declassifying and
depriving him of the right to seek employment through the
Respondent's hiring hall.
In view of the foregoing, I am led to the inescapable
conclusion that the action taken against Wilson was not
dictated by legitimate considerations but by the enmity
engendered in Cuvo by Wilson's fervent opposition to him
and Benner whose defeat in the next union election Wilson
was determined to bring about. Under established law,
Wilson's activities were protected by the Act and may not
serve as a basis for depriving him of the right to seek
employment through the exclusive hiring hall facilities
which the Respondent was entrusted to administer fairly
and equally without regard to a job applicant's union
membership or nonmembership or his attitude toward
union officials or their management of union affairs.43
Accordingly, I find that, by discriminating against Wilson
in the manner related above, the Respondent violated
Section 8(bX)(2) and (I)(A) of the Act. For the reasons
discussed above with respect to the discrimination against
the II named complainants, I further find that Wilson was
not obligated to submit his complaint for adjustment to the
appeals committee or to internal union procedures.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and that it take certain affirmative action designed
to effectuate the policies of the Act.
I have found that the Respondent has discriminated
against job applicants Billcheck, Pollack, Russell, Meyer,
Kohl, Nolasco, Makley, Sciascia, Phillips, Strunk, and
Wright by denying them the opportunity to take the inside
journeyman wireman's examination on June 7, 1975, and
43 International Union of Operating Engineers, Local 406, AFLCIO (New
Orleans Chapter, Associated General Contractors of America, Inc.), 189 NLRB
255, 265 (1971); Local Union 136, Muskingum Valley District Council of the
United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Frank
Vlack Company, Inc.), 165 NLRB 1040, 1042 (1967).
44 In accordance with Board policy, earnings from extra employment in
by thus depriving all of them, except Kohl, of their right to
be placed in Group I for referral purposes. As for Kohl, I
have found that he was entitled to placement in Group II.
It is therefore recommended that these individuals be
placed in the indicated groups for referral to available jobs
in accordance with the applicable provisions of the
Respondent's current contract with NECA and its nondis-
criminatory hiring hall rules and regulations, including
registration in appropriate out-of-work books. Moreover,
as additional redress for the discrimination practiced
against them, it is recommended that they be made whole
for any loss of earnings they might have suffered by reason
of the discriminatory denial of job opportunities in Group
I, in which all the complainants, except Kohl, were entitled
to be placed, and in Group II in which Kohl should have
been placed, by payment to each of them of a sum of
money equal to that which each normally would have
earned, absent the discrimination, from the date they first
registered on the out-of-work list subsequent to the
administration of the June 7, 1975, wireman's examination,
less his net earnings during the said period of discrimina-
tion.4 Backpay shall be computed with interest on a
quarterly basis in the manner prescribed by the Board in F
W. Woolworth Conpany, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
I have also found that Wilson was unlawfully removed
from referral Group II and barred from using the
Respondent's exclusive hiring hall facilities. To remedy
such discrimination, it is recommended that he be restored
to his Group II status previously given to him and that he
be made whole for any loss of earnings he suffered by
reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned from September 5, 1975, the date he
first registered for employment in the out-of-work book,
less his net earnings during the period of discrimination.
Backpay shall be computed with interest as indicated
above.
To facilitate the computation and to assure the discrimi-
natees equal referral treatment, the Respondent shall
maintain and make available to the Board or its agents, on
request, job registration records and any other documents
or records showing job referrals and the basis for such
work assignments of employees, members, applicants, and
registrants. In addition, the Respondent shall notify the
discriminatees that use of the hiring hall facilities will be
available to them for referral on an equal basis with other
registrants, members and nonmembers of its organization
alike. Posting of the customary notice is also recommend-
ed.
Because of the serious nature of the unfair labor
practices committed by the Respondent, it will further be
ordered that the Respondent cease and desist from in any
other manner infringing upon employee rights. 45
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
which any of the above-named individuals regularly engaged before the
discrimination will not be considered in the computation.
45 Local Union No. 121, United Association ofJourneymen and Apprentices
of the Plumbing and Pipefitting Industry (M. J. Doyle, Inc.), 223 NLRB 1250
(1976); cf. N.LR.B. v. Express Publishing Company, 312 U.S. 426, 433
96
LOCAL 367, IBEW
CONCLUSIONS OF LAW
I. NECA and its members are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By not permitting nonmember job applicants to take
the inside journeyman wireman's examination, thereby
denying them the opportunity for placement in priority
referral Group I or II and limiting their opportunity for job
referral under the exclusive hiring hall provisions of its
contract with NECA, the Respondent attempted to cause
and caused NECA's members to discriminate against the
nonmember job applicants in violation of Section 8(a)(3) of
the Act and the Respondent thereby violated Section
8(b)(2) of the Act.
4. By removing Wilson from his Group II classification
and placing him in a "None" classification as to render him
ineligible for job referral under its exclusive hiring hall,
mentioned above, and by barring him from using such
facilities to secure employment, all in reprisal for his
activities in opposition to the Respondent's incumbent
officials and their handling of the hiring hall and union
affairs, the Respondent similarly violated Section 8(bX2) of
the Act.
5. By reason of the discrimination against the nonmem-
ber job applicants and Wilson, as found above, the
Respondent restrained and coerced employees in the
exercise of their statutory rights within the meaning of
Section 8(bX)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not engaged in the other unfair
labor practices alleged in the amended consolidated
complaint with respect to other nonmember job applicants
to be in violation of Section 8(bX2) and (1)A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER46
The Respondent, Local 367, International Brotherhood
of Electrical Workers, Easton, Pennsylvania, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Refusing to permit Gary Billcheck, Kenneth Pollack,
William P. Russell, Edward C. Meyer, Lawrence V. Kohl,
Patrick J. Nolasco, Olin A. Makley, Peter D. Sciascia, Carl
Phillips, Samuel Strunk, Alfred L. Wright, or any other
nonmember job applicant or registrant to take an inside
journeyman wireman's examination in order to enable
them to qualify for placement in priority referral Group I
or II and thus to enhance their opportunities for referral to
(1941); N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536
(C.A.4, 1941).
46 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
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
jobs under the exclusive hiring hall provisions of its
contract with Penn-Del-Jersey Chapter of the National
Electrical Contractors Association, because these individu-
als are not members of its organization or from otherwise
attempting to cause or causing the contracting employers
to discriminate against employees, job applicants, or
registrants in violation of Section 8(aX3) of the Act.
(b) Removing George J. Wilson, Jr., from his Group II
classification and placing him in a "None" classification so
as to render him ineligible for job referral under its
exclusive hiring hall, mentioned above, and barring him
from using such referral facilities to secure employment, in
reprisal for his activities in opposition to the Respondent's
incumbent officials and their handling of the hiring hall
and union affairs.
(c) In any other manner restraining or coercing employ-
ees, job applicants, or registrants in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Place in Group I the individuals named in paragraph
l(a) of this Order, except Kohl who is to be placed in
Group II, for referral to available jobs, as provided in "The
Remedy" section of this Decision.
(b) Restore Wilson to the Group II referral status which
had previously been assigned to him.
(c) Make whole the individuals named in paragraph l(a)
of this Order and Wilson for any loss of earnings they may
have suffered by reason of the discrimination against them
in the manner set forth in "The Remedy" section of this
Decision.
(d) Notify, in writing, the individuals named in para-
graph l(a) of this Order and Wilson that the Union's
exclusive hiring hall facilities and job opportunities will be
available to them on an equal and nondiscriminatory basis
with other members, employees, job applicants, and
registrants.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, job
registration and referral records and any other documents
or records showingjob referrals and work assignments, and
the basis for making such referrals and assignments, of
members, employees, job applicants, and registrants, which
are necessary to compute and analyze the amount of
backpay due to the individuals named in paragraph l(a) of
this Order and Wilson and to determine their right to
referral to jobs under the terms of this recommended
Order.
(f) Post at its business offices, hiring hall, and meeting
places in Easton, Pennsylvania, copies of the attached
notice marked "Appendix." 47 Copies of said notice, on
forms provided by the Regional Director for Region 4,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
47 In the event that the Board's 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."
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(g) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the amended consolidated
complaint be, and it hereby is, dismissed insofar as it
alleges violations of Section 8(bXIXA) and (2) of the Act
other than those found herein.
98