Local 466, Int'l Brotherhood of Electrical, Etc.

National Labor Relations Board - Board Decisions

Mar 2, 1960

126 N.L.R.B. 912 (N.L.R.B. 1960)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 466, International Brotherhood of Electrical
Workers, AFL-CIO [Moore Electric Company ] and Charles
F. McGraner and The West Virginia-Ohio Valley Chapter,
National Electrical Contractors Association , Charleston Divi-
sion , Party to the Contract . Case No. 9-CB-181. March 2,1960
DECISION AND ORDER
On September 30, 1959, Trial Examiner Owsley Vose issued his
Intermediate Report in this case, finding that the Respondent had
engaged in and was engaging in unfair labor practices in violation of
Section 8(b) (1) (A) and 8(b) (2) of the Act, and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, exceptions to the Intermediate Report were filed by the Re-
spondent and the Charging Party.' A supporting brief was filed by
Respondent.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner,2 with the following addition and
modification.
'The charges in this proceeding were filed by Charles F . McGraner , an individual,
alleging , among other things, certain violations of Section 8(b) (1) (A ) and 8(b) (2)
relating to McGraner 's discharge . However, the complaint issued by the General Counsel
made no mention of McGraner 's discharge , and this matter was not litigated at the
hearing or referred to in the Intermediate Report. In his exceptions , McGraner urges
that the Board review the record and make some disposition in his behalf. However,
Section 3 ( d) of the Act vests the General 'Counsel with final authority to issue and
prosecute complaints , and the Board has no power to make unfair labor practice findings
on matters not alleged as such by the General Counsel or litigated at the hearing We
therefore find no merit in the Charging Party 's exceptions . Cf. Anderson, Clayton &
Co. Foods Division, 120 NLRB 1208, footnote 1.
2In adopting the Trial Examiner ' s finding of an unlawful hiring and referral arrange-
ment, we do not rely on the incidents relating to the unidentified nonmember job appli-
cants referred by Moore to Respondent 's business manager, Janney , for clearance The
record contains no evidence that any of these applicants actually approached Janney
for clearance and were refused , but only that they did not subsequently report for em-
ployment with Moore.
Member Fanning agrees with the majority 's finding that Respondent violated Section
8(b) (2) by maintaining in its 1957 and 1958 contracts specific closed -shop provisions
regarding temporary power and lighting work However , he does not believe that the
evidence supports the majority 's additional finding of an unlawful hiring arrangement
between Respondent and Moore . Accordingly , he does not join in that finding of the
majority , or in that part of the order requiring Respondent to refund to employees of
Moore, other than those engaged in temporary work, moneys unlawfully exacted as a
result of Respondent 's alleged unlawful arrangement with Moore.
126 NLRB No. 110.
LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL , ETC. 913
In passing on the validity of Respondent 's May 31, 1958 , contract,
the Trial Examiner noted that Respondent had struck the prefix
"IBEW" from the phrase "Journeyman Wiremen" in certain sections
of that contract , but at the same time had retained in section 26-c of
article III the provision that all temporary light or power used prior
to the letting of an electrical contract was to be installed and main-
tained by "IBEW" members. While he concluded that this language
was inadvertently retained in section 26-c, and treated that section as
if the reference to "IBEW" had been deleted, he nevertheless found
that the provision was unlawful under the Board 's decision in Anchor
Welding cC Manufacturing Company, et al.' We agree with this latter
finding of illegality. We do not, however , adopt the Trial Examiner's
conclusion that an inadvertent failure to delete an unlawful provision
relieves that provision of its otherwise clear illegality . Accordingly,
we find article III, section 26-c of the May 31 , 1958, contract to be
unlawful as specifically providing for closed-shop conditions in vio-
lation of Section 8 (b) (2) of the Act .4
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local Union No.
466, International Brotherhood of Electrical Workers, AFL-CIO,
and its officers, representatives, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Causing or attempting to cause members of The West Vir-
ginia-Ohio Valley Chapter, National Electrical Contractors Associa-
tion, Charleston Division, or nonmember signers of Association con-
tracts, or any other employer, to discriminate against employees by
requiring in collective-bargaining agreements that all temporary elec-
trical work be performed by Respondent's members, except as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Entering into, maintaining, or otherwise giving effect to any
agreement, arrangement, or understanding with Moore Electric Com-
pany, or with any other employer, whereby members of Respondent
are given preference in hiring, or in any other manner causing or
attempting to cause discrimination against employees, except as au-
thorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(c) In any like or related manner restraining or coercing the
employees of The West Virginia-Ohio Valley Chapter, National
123 NLRB 1877
See the Trial Examiner's finding that an identical provision in Respondent's May 17,
1957, contract provided for unlawful closed-shop conditions.
554461-60-vol. 126-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electrical Contractors Association, Charleston Division, or of non-
member signers of Association contracts, or any other employer, in
the rights guaranteed in Section 7 of the Act, except as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Refund to all employees who were employed during the period
beginning December 12, 1957, and ending on November 5, 1958, on
temporary power and lighting work on construction projects by
members of The West Virginia-Ohio Valley Chapter, National
Electrical Contractors Association, Charleston Division, and by non-
member signers of the Association's 1957 and 1958 contracts, all
moneys unlawfully exacted from them, in the manner and to the extent
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Refund to all employees employed by Moore Electric Com-
pany during the period beginning December 12, 1957, and ending
November 5, 1958, all moneys unlawfully exacted from them, in the
manner and to the extent set forth in the section of the Intermediate
Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or. its
agents, for examination and copying, all records, reports, out-of-work
lists, and other documents necessary to analyze the amounts of
moneys due and the rights of employment under the terms of this
Order.
(d) Post in the Respondent's business offices and meeting halls
copies of the notice attached hereto marked "Appendix." 5 Copies of
said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by said Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
days thereafter in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached hereto marked "Appendix," for posting
at the offices of members of The West Virginia-Ohio Valley Chapter,
National Electrical Contractors Association, Charleston Division,
and nonmember signers of Association contracts, said companies
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
LOCAL 466 , INT'L BROTHERHOOD OF ELECTRICAL , ETC. 915
willing , in places where notices to the companies ' employees are
customarily posted.
(f) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 466, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO; TO ALL EM-
PLOYEES OF MEMBERS OF THE WEST VIRGINIA-OHIO VALLEY CHAPTER,
NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, CHARLESTON
DIVISION, AND EMPLOYEES OF NONMEMBER SIGNERS OF ASSOCIATION
CONTRACTS; AND TO ALL APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act; we hereby notify you that:
WE WILL NOT cause or attempt to cause members of The West
Virginia-Ohio Valley Chapter, National Electrical Contractors
Association, Charleston Division, or nonmember signers of As-
sociation contracts, or any other employer, to discriminate against
employees by requiring in collective-bargaining agreements that
all temporary electrical work be performed by Respondent's mem-
bers, except as authorized in Section 8 (a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT enter into, maintain, or otherwise give effect to
any agreement, arrangement, or understanding with Moore Elec-
tric Company, or with any other employer, whereby members of
Respondent are given preference in hiring, or in any other manner
cause or attempt to cause discrimination against employees, ex-
cept as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT, in any like or related manner, restrain or coerce
the employees of The West Virginia-Ohio Valley Chapter, Na-
tional Electrical Contractors Association, Charleston Division,
or of nonmember signers of Association contracts, or any other
employer, in the rights guaranteed in Section 7 of the Act,
except as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL refund to all employees who were employed during
the period beginning December 12, 1957, and ending on Novem-
ber 5, 1958, on temporary power and lighting work on construc-
tion projects by either the members of The West Virginia-Ohio
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Chapter, National Electrical Contractors Association,
Charleston Division, or by nonmember signers of the Associa-
tion's 1957 and 1958 contracts, all moneys unlawfully exacted
from them, in the manner and to the extent set forth in the section
of the Intermediate Report entitled "The Remedy."
WE WILL refund to all employees employed by Moore Electric
Company during the period beginning December 12, 1957, and
ending November 5, 1958, all moneys unlawfully exacted from
them, in the manner and to the extent set forth in the section of
the Intermediate Report entitled "The Remedy."
LOCAL UNION No. 466, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which all parties were represented by counsel , was heard by
the Trial Examiner in Charleston , West Virginia, on July 14, 1959, upon the com-
plaint of the General Counsel and answer of Local Union No. 466 , International
Brotherhood of Electrical Workers, AFL-CIO, herein called Local 466 . Counsel
for both parties presented oral argument and counsel for the Respondent has filed
a brief.
The complaint raises two main questions in this case . The first is whether Local
466 has entered into and enforced certain provisions in collective -bargaining con-
tracts with The West Virginia-Ohio Valley Chapter, National Electrical Contractors
Association , Charleston Division , which allegedly established closed -shop conditions
for hiring men for temporary power and lighting work , thereby violating Section
8(b)(1)(A ) and 8 (b)(2) of the Act . The second question is whether Local 466
has entered into, and maintained , with members of the Association , an exclusive
referral arrangement under which it was contemplated that only members of, or
those approved by, Local 466 , would be referred for employment , thereby further
violating Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
The Association is a group of electrical contractors in the Charleston , West Vir-
ginia, area , which bargains collectively with Local 466 on a multiemployer unit
basis. The membership of the Association fluctuates slightly from year to year.
During the period covered by the complaint herein, included among the member-
ship were Moore Electric Company, Schoolfield -Harvey Electric Company, South
Charleston Electric Company, Electric Supply Company in Dunbar , Bayliss and
Ramey, and Damron Electric Company .' Moore Electric Company, during the year
ending May 31, 1958, performed services for customers outside West Virginia
valued in excess of $194,000 , and during the same period purchased almost $200,000
worth of materials and supplies , which were shipped to it from outside West Vir-
ginia. On these facts I find that the assertion of jurisdiction is appropriate with
I All these employers were not members during the entire period covered by the com-
plaint. Damron had only recently become a member , and Moore and the firm of Bayliss
and Ramey had dropped out by the time the 1959 contract was executed.
LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 917
regard to unfair labor practices affecting the employees of members of the
Association.2
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and Local 466's answer admits , that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The agreements of May 17,1957, and May 31, 1958
On May 17 , 1957, the Association and Local 466 entered into a collective-
bargaining contract covering the period beginning June 1, 1957 , and ending May 31,
1958, hereinafter called the 1957 contract. Other local electrical contractors, al-
though not members of the Association , also signed the contract .3 In addition to
a valid union-security clause 4 and various clauses covering wages, hours, and work-
ing conditions , the contract contains certain provisions , emphasized in the quotation
below, which the General Counsel contends are unlawful per se. These provisions
are as follows:
ARTICLE Ill
SEC. 28 . All temporary power and lighting on construction jobs shall be
installed and maintained by IBEW Journeymen Wiremen.
* * * * * * *
SEC. 28-C . When there is any temporary light or power used for any purpose
prior to the letting of the electrical contract such temporary power and lighting
shall be installed and maintained by members of the IBEW in the employ of
an electrical contractor.
SEC. 28-D . When the Employer who is awarded the electrical contract start-
ing work on the job and during the time said Employer has electrical workers,
no temporary work will be required except in the following instances:
(1) When the temporary lighting and /or power consists of twenty -five (25)
outlets or twenty -five (25 ) lights or more, or twenty -five (25 ) horsepower or
more, IBEW Journeymen Wiremen shall be employed at all times when any
of the above items are in use. All temporary work shall be installed and
maintained , moved and removed by IBEW Journeymen Wiremen . [ Emphasis
supplied.],
Article III of the 1957 agreement also contained the following provision which
is not alleged to be per se violative of the Act:
SEC. 9 . On any job requiring three or more journeymen one shall be desig-
nated as Foreman by the Employer . An additional Foreman shall be designated
by the Employer for each additional ten journeymen required on any job.
When two or more Foremen are required on any job, one shall be designated
by the Employer as the General Foreman , and shall receive the General Fore-
man's rates. All Foremen must be members of the IBEW in good standing.
Foremen shall not be permitted to work with tools after being responsible for
six men including himself. [Emphasis supplied.]
9 Cf Harlan B. Browning and Roy J. Ra€eo d/b/a Cottage Bakers , 120 NLRB 841,
842, enfd , 268 F 2d 938 (C A 10) ; Merrtitt- Chapman and Scott Corporation , 118 NLRB
380, 385-386 , enfd. 259 F . 2d 741 (C.A. 7).
3 These included Hunt Electric Company, Ostrin Electric Company, Doran Frame,
McCorkle Light and Electric Company, and Damron Electric Company.
• The clause reads as follows :
ARTICLE II
Employer Rights-Union Rights
Section S. All employees who are members of the Union on the effective date of
this Agreement shall be required to remain members of the Union in good stand-
ing as a condition of employment during the term of this Agreement. New em-
ployees shall be required to become and remain members of the Union in good
standing as a condition of employment on the thirtieth (30th) day following the
date of their employment or the effective date of this agreement, whichever Is later.
Any such workmen shall receive at least the minimum wages and work under the
conditions of this Agreement.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relevant in connection with the allegations of the complaint that Local 466
entered into an illegal exclusive referral arrangement is the following provision of
the 1957 agreement:
SEC. 20. On jobs employing twenty-five (25) or more electrical workers,
one shall be designated as full time Safety Inspector and Shop Steward, and
will be paid Journeymen's rate. On jobs employing twenty-four (24) elec-
trical workers or less, Shop Steward shall be allowed sufficient time during
working hours to perform such duties. At no time shall a Job Steward be
discriminated against for the faithful performance of his duties. He shall
remain on the job until the completion unless removed by the Business Manager
for a cause, however, should the Employer find a Steward's actions objection-
able, his case shall be disposed of by the Joint Conference Committee.
A new contract for the following year was signed by the parties on May 31, 1958,
hereinafter called the 1958 contract. As was the case with the 1957 contract, non-
members of the Association also signed the 1958 contract.5 Continued without
change in the new contract were Article 11, section 3, the union-security clause;
article III, section 9, requiring all foremen to be members of the Union; 6 article
III, section 20, relating to stewards; 7 and article III, section 28-C requiring tem-
porary power and lighting to be installed and maintained by members of the
IBEW.8 The designation "IBEW" preceding "Journeymen Wiremen" was elimi-
nated from the revised sections 28 and 28-D of article III (sections 26 and 26-D
in the new contract). The pertinent portions of the revised provisions read as
follows in the new contract:
SEC. 26. All temporary power and lighting on construction jobs shall be
installed and maintained by Journeymen Wiremen.
SEC. 26-D. All temporary work shall be installed and maintained, moved
and removed by Journeymen Wiremen.
B. The addendum of November 5, 1958, and the agreement of May 31, 1959
By an addendum thereto, the parties in effect eliminated the closed-shop provisions
of the agreement of May 31, 1958, substituting in place thereof provisions estab-
lishing an exclusive referral procedure by virtue of which the members of the
Association agreed to obtain all their employees through Local 466. Nonmembers
of the Association also signed the addendum. The addendum contained the provi-
sions assuring the nondiscriminatory operation of the referral procedure which the
Board deemed essential in the.Mountain Pacific case .9 This addendum was incor-
porated verbatim in an agreement entered into on May 31, 1959, in which these
parties, in referring to "Journeymen Wiremen," eliminated the designation "IBEW,"
and omitted the provision requiring all foremen to be members of Local 466. The
validity of the addendum and of the 1959 contract is not attacked in these pro-
ceedings.
C. The hiring practices of the parties during the pelriod the 1957 and 1958 agree-
ments were in effect
Moore Electric Company was a member of the Association during the period the
1957 and 1958 contracts were in effect. These contracts as noted above, contained
closed-shop provisions, obligating association members to hire IBEW members only
8 These included Bayliss and Ramey and Schoolfield Appliance & Service Co, who
had dropped out of the Association, Hunt Electric Company, Ostrin Electric Company,
Doran Frame, and McCorkle Electric Company.
0 Article III, section 7 in the new contract
7 Article III, section 18 in the new contract.
8 Article III, section 26-C in the new contract.
e In Mountain Pacific Chapter of the Associated General Contractors etc, 119 NLRB
883, the Board, after full consideration of the problem, held that exclusive hiring agree-
ments inherently tend to encourage union membership in violation of the Act. However,
the Board concluded that this illegal aspect of such agreements could be neutralized and
such agreements rendered lawful if they explicity set forth the following safeguards :
(1) The selection of applicants for referral to jobs shall be based on objective criteria
and shall specifically reject any aspect of union membership as a basis for selection ;
(2) the employer retains the right to reject any applicant referred; and (3) copies of
the referral procedure be posted by the parties in appropriate places in their offices.
LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 919
for temporary power and lighting work on construction jobs. Harry B. Moore, the
president of the Company, was president of the Association in 1958. The Moore
Electric Company obtained all its employees through the office of the business
manager of Local 466. As required by the agreements, Moore's foremen were all
members of Local 466. Moore's foremen were all empowered to hire and fire and
did substantial hiring. Local 466, in response to requests from Moore, furnished
none but members of Local 466, if they were available. At no time covered by
the record herein did Local 466 refer, nor did Moore employ, nonmembers of the
IBEW. On occasion, when no members of Local 466 were available, Moore utilized
members of other locals of IBEW from outside the area.
The General Counsel failed to adduce any evidence concerning the participation of
Local 466 in any arrangement for an exclusive referral system with the Association
or any of its members other than Moore, aside from the closed-shop provisions of
the 1957 and 1958 contracts. Nor does the record contain any showing whether
the foremen of these other contractors do any hiring.
Harry B. Janney, the business manager of Local 466 during most of the period
covered by the 1957 and 1958 agreements, testified that he at no time requested any
employer to abide by the contractual provision requiring foremen to be members
of the IBEW. Harry B. Moore, the president of Moore, on the other hand, testified
that the contract provision in question "certainly was" enforced. I credit Moore's
testimony in this regard and find that this provision was enforced at least as to
Moore Electric Company.
Business Manager Janney further testified that prior to the execution of the
November 5, 1958, addendum he operated a nonexclusive referral system for the
convenience of Association members, and that it was run on a nondiscriminatory
basis. According to Janney's testimony, no nonmembers ever sought to be listed
with him for employment. Donald Lane, general foreman for Moore and a
member of Local 466, testified in effect that one or two nonmembers of Local 466
called him for jobs, that he referred them to Janney, and that subsequently Janney
asked him about one of the men. This nonunion man was not referred to the job
by Janney, although Lane had a request in for men at that time which remained
unfilled. I credit the testimony of Lane, above related, and insofar as Moore is
concerned, reject Janney's testimony to the effect that he operated on a nondiscrim-
inatory basis in referring men for jobs. Janney's testimony in this regard is belied
by his action in response to requests from Moore, in referring only IBEW members
for jobs.
D. Local 466's bylaws
Consideration of the Respondent's bylaws is helpful in evaluating Local 466's
conduct in this case. Under the bylaws, membership in Local 466 is open to
apprentices who have "worked six months under the supervision or jurisdiction" of
Local 466 (article XIV, section 2). "Instruction of apprentices" is "under the full
supervision of the Apprenticeship Training Committee" of the Union (article XIV,
section 4). Apprentices are usually required to "serve four years before becoming
eligible to take the journeyman's examination" (article XIV, section 3).
Local 466's bylaws contain various provisions which render its members subject
to its discipline. Employees violating Local 466's bylaws or any approved agree-
ments or working rules of the Local can be brought to trial by the executive board.
It is empowered to "administer such discipline as it deems proper" (article XV,
section 1).10
The bylaws contain other controls to insure that members remain in good
standing with the Union. The business manager of the Union may at his discretion
"remove any member from any shop or job" (article VI, section 2). With respect
to the allocation of jobs among unemployed members, the business manager has
full responsibility to "devise such means as he considers practical and fair in
distributing available jobs to such members if they are qualified to do the work"
(article XV, section 5).
The business manager appoints the stewards. They work under his direction and
may be.removed by him at any time (article IX, section 1). Among the duties of
stewards are "to see that all journeymen and other workmen at their respective shops
or jobs have paid-up dues receipts and cards or valid working cards of the Local
Union" (article IX, section 2).
10 Donald Lane, a member of Local 446, was subjected to such disciplinary proceedings
for having solicited employment directly from an employer without going through the
office of the business manager. He was also charged with "working against the IBEW."
These proceedings against Lane were dropped prior to the hearing without any discipline
being ordered.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions concerning the 1957 and 1958 contracts
1. Preliminary statement
Section 8 ( a) (3) of the Act, among other things , prohibits employers from encour-
aging union membership by discrimination in regard to hire or tenure of employ-
ment. However, the proviso to Section 8(a)(3) permits , as an exception to this
broad prohibition , employers and unions , under certain conditions, to make agree-
ments requiring membership in a union as a condition of employment "on or
after the 30th day following the beginning of such employment or the effective date
of such agreement , whichever is the later ." Section 8 (b) (2) forbids unions from
causing or attempting to cause employers to discriminate in violation of Section
8(a)(3). Section 8(b)(1)(A) bans union restraint or coercion of employees in
the exercise of their rights under the Act. Under these provisions a union violates
Section 8 (b)(2) and 8 (b)(1)(A) by entering into or enforcing an agreement which
makes membership a condition of hiring or in some other respect gives a union
a greater degree of union security than is permitted in the proviso . Eichleay Corp.
v. N.L.R.B., 206 F. 2d 799, 803-804 (C.A. 3), and cases therein cited.
Even in the absence of a formal agreement to this effect , it is a violation of
Section 8(b)(2) and 8 ( b)(I)(A) of the Act for a union , pursuant to an informal
arrangement or understanding with an employer , to operate an exclusive referral
system under which preference is given to union members in referring employees for
jobs. N .L.R.B. v. National Maritime Union of America , et al. (The Texas Com-
pany), 175 F. 2d 686, 688-689 (C.A. 2), cert. denied, 338 U.S. 954, N.L.R.B. v.
United Brotherhood of Carpenters and Joiners of America, AFL, Local No. 517,
(Gil Wyner Construction Co.), 230 F. 2d 256, 258-259 (C.A. 1).
Under the Board 's decision in the Mountain Pacific case and subsequent decisions
applying the principles of Mountain Pacific to cases involving informal understand-
ings or arrangements for exclusive referral systems or hiring halls, the entering into
and enforcement of such an understanding or arrangement by a union will be
deemed a violation of Sections 8(b)(2) and 8(b)(1)(A) unless the understanding
or arrangement is reduced to writing and includes the Mountain Pacific safeguards.
Supra, footnote 9. Sheet Metal Workers International Association , Local No. 99
(Dohrmann Hotel Supply Company), 120 NLRB 1366; Local Union No. 450, In-
ternational Union of Operating Engineers , et al. (Tellepsen Construction Company),
122 NLRB 564; Galveston Maritime Association, Inc., et al., 122 NLRB 692;
Local 176, United Brotherhood of Carpenters, etc. (Dimeo Construction Com-
pany ), 122 NLRB 980; International Union of Operating Engineers, Little Rock
Local 382-382A, AFL-CIO (Armco Drainage & Metal Products, Inc.), 123
NLRB 1833.
Under the law discussed in the preceding paragraphs , the questions before me are
largely factual in nature . If Local 466 has in fact entered into and enforced con-
tractual provisions requiring that only IBEW members be hired for certain work,
its violation of the Act is clear . Similarly, if Local 466 has entered into and
given effect to an informal arrangement or understanding whereby the members of
the Association agree to obtain all their employees through Local 466, and that
only members of Local 466, or those approved by the Union, will be referred for
jobs, then Local 466 's violation of Section 8(b)(1)(A ) and 8 ( b)(2) follows.
2. The contract provisions
The 1957 contract between Local 466 and the Association contained , in addition
to a valid union -security provision , clauses requiring that all temporary power and
lighting on construction jobs "shall be installed and maintained , moved and re-
moved by IBEW Journeymen Wiremen." Thus, insofar as temporary power and
lighting work on construction jobs was concerned , the latter clauses in effect im-
posed closed-shop conditions , i.e., required that all such work be done by members
of the IBEW regardless of whether they had been employed by a member of the
Association for 30 days or not.
Local 466 contends that these clauses should be read together with the union-
security provision and that the former should not be construed as taking precedence
over the latter. However, so to interpret these clauses requiring that all temporary
work be given to IBEW Journeymen Wiremen is , in effect, to read them out of
the contract altogether Since the parties saw fit to include these additional clauses
in the contract, and they must have had some purpose in doing so , I can only
conclude that the parties contemplated that these clauses would have the meaning
and effect they appear on their face to have, namely, to require that all the work of
LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 921
the kind specified in these provisions would be performed by IBEW members,
regardless of whether they had been employed for 30 days or not.il
In the contract entered into on May 31, 1958, the provisions in the previous con-
tract requiring all temporary power and lighting work to be done by "IBEW
Journeymen Wiremen" were changed in that the designation "IBEW" was eliminated
in two of the three places in which it had appeared in the previous contract. Local
466 contends that the parties intended to strike the designation "IBEW" in each of
the places where it appeared in section 26 of article III, and that the parties inad-
vertently omitted to strike it from section 26-C. Since I can see no purpose in
leaving in the "IBEW" in section 26-C while at the same time striking it from section
26, which covers the same work in general terms, I accept Local 466's contention in
this regard, and in my consideration of these provisions am treating them as though
no specific reference to "IBEW" were contained in any of them.
However, I do not conclude, because of the elimination of the designation "IBEW"
from section 26, that the parties thereby intended that nonmembers could be em-
ployed for this work. "Journeymen Wiremen" is an IBEW classification. Under the
bylaws of Local 466, its members, after spending 4 years as apprentices, were entitled
to take an examination given by Local 466, which, if they passed, entitled them to
the "Journeyman Wireman" status. Thus, only members of Local 466 and other
locals of the IBEW can be rated as "Journeymen Wiremen." 12 Rather, under all the
circumstances, including the facts, discussed below, that the 1958 contract continued
to require foremen to be union members and that the referral practices of Local 466
remained unchanged up until the signing of the November 5, 1958, addendum, I
conclude that the parties, by providing in the 1958 agreement that temporary lighting
and power work on construction jobs would be done by journeymen wiremen, con-
templated that IBEW members only would be given such jobs.13
These provisions in the 1957 and 1958 agreements, in effect requiring that only
IBEW journeymen wiremen be hired for temporary work, imposed closed-shop
conditions and were per se unlawful because they did not afford the 30-day waiting
period required by the proviso in section 8(a)(3) of the Act. Accordingly, Local
466's inclusion of these provisions in the contracts, and also its enforcement thereof,
violated section 8 (b) (2) and 8(b) (1) (A) of the Act.
3. Local 466's referral practices during the 1957 and 1958 contract period
The 1957 and 1958 contracts between Local 466 and the Association do not, on
their face, purport to establish an exclusive referral system I find the evidence in-
adequate to establish the existence of an associationwide understanding or arrange-
ment with Local 466 for the operation by it of an exclusive referral system under
which it was contemplated that only members of Local 466 or those approved by it
would be referred for jobs. Aside from the closed-shop provisions of the 1957 and
1958 contracts and the practices of Local 466 in referring men to Moore Electric
Company, there is no other evidence of such an associationwide arrangement. The
record does not show what Local 466's practices were in referring men to members
of the Association other than Moore. While the 1957 and 1958 contracts both
require that "all foremen must be members of the IBEW in good standing," the
record does not show whether the foremen of the other members of the Association
"I cannot accept Local 466's further contention that these clauses were placed in the
contract for the purpose of showing that temporary work on construction jobs was to be
done by members of Local 466 rather than members of some other building and construc-
tion trades union. By the contract, the members of the Association agreed that they
would require all their employees to be union members after 30 days' employment This
provision insured that all work of the members of the Association would be done by mem-
bers of Local 466 to the maximum extent permitted by law. These clauses could not have
been included for the purpose of requiring other contractors on construction projects
to use IBEW members for electrical work because these other contractors were not parties
to the agreement
11 In the 1957 and subsequent contracts a joint apprenticeship and training committee
was established in which Local 466 relinquished its exclusive control over apprentice
training to a committee consisting of three members representing the Association and
three representing Local 466. There is nothing in the contracts, however, giving non-
members the right to train as apprentices. The 1958 and subsequent contracts contain
a provision specifically requiring all apprentices to "be registered with the Union before
being put to work "
"Cf. Local 363, a/Jlhated with the International Brotherhood of Boiler makers, etc.
(Anchor Welding & Manufacturing Company, et al.), 123 NLRB 1877
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do any hiring . The contracts in this case , unlike those in some others,14 do not
contain any provisions requiring foremen to do the hiring. Accordingly, I recom-
mend dismissal of the allegations of the complaint to the effect that Local 466
entered into and enforced with the Association as a whole an arrangement for an
illegal exclusive referral system.
However, as to Moore Electric Company, I find that Local 466 had such an
understanding or arrangement. The record affirmatively shows that Moore's fore-
men did substantial hiring and obtained all their men through the office of the
business manager of Local 466. In response to requests from Moore, Local 466
referred only its own members if they were available. Occasionally it sent members
of other locals of the IBEW. Nonmembers of the -IBEW were never referred.
Although there is no provision in Local 466's bylaws which in so many words
require its members, when employed as foremen, to give preference to members of
Local 466, the effect of various provisions of the bylaws in combination was to
bring about the giving of preference to members of Local 466. As noted above, the
executive board of Local 466 had the power to punish members for infractions of its
rules and to determine the "proper" discipline to be meted out. There being no
limitation in the bylaws on this power, 1 find that the executive board had the
power to suspend or terminate the membership of any member, if it found the
circumstances warranted it. Under the union-security provisions of the 1957 and
1958 contracts, such suspension or termination meant the loss of employment. This
power in Local 466's executive board to suspend or terminate, from which, so far as
the record shows, there is no appeal, impaired the independence of its foremen
members in selecting employees for hiring.
Also, the power vested in the business manager to remove members from their
jobs and, in times of unemployment, to determine which of the unemployed
members were to get the available jobs, gives the business manager an effective
means of controlling the actions of the foremen.15 It should be borne in mind that
the foreman on one job may be a rank-and-file worker on the next, hence it is to
the interest of the foreman to keep in the good graces of the business manager. The
business manager appoints and removes the stewards who are obliged under the
bylaws to see that all workmen on the job have paid-up dues receipts or are
otherwise in good standing with Local 466. Since under article III, section 20 of
the contracts stewards are the last to be laid off on any job, their status as steward
is a definite asset to them. In order to retain this favored status they would be
likely to follow the wishes of the business manager who is solely responsible for
their remaining in this preferred position. Thus through the stewards, the business
manager can keep track of all the foremen's actions with regard to hiring. The
net result of these internal union arrangements, I find, is to place pressure upon the
foremen to hire members of Local 466 and to render them subservient to the will of
Local 466 and its business manager, who is actively interested in furthering, and
controlling through his office, the employment of members of Local 466.16
Under all the circumstances-the fact that the 1957 and 1958 contracts imposed
closed-shop conditions for hiring men for temporary work; that Moore obtained
all its employees through Local 466 and understood that the Union insisted that
only its members be hired if available; that no others were referred for employment
during the period of the 1957 and 1958 contracts; that the contracts required fore-
men to be union members and that they did substantial hiring insofar as Moore was
concerned; 17 and that Local 466's bylaws as a whole effectively required its foremen
members to give preference in hiring to IBEW members-I find that Local 466,
pursuant to an understanding with Moore Electric Company, operated an exclusive
referral system under which, in response to requests for men, it referred members
of the IBEW only. I conclude that Local 466's entry into and enforcement of this
exclusive hiring arrangement, with its closed-shop conditions, constituted a violation
of Section 8(b) (2) and 8(b) (1) (A) of the Act.
14 Cf. American Newspaper Publishers Association, 86 NLRB 951, 957-959, enfd 193
F 2d 7182, 796, 805 (C.A. 7), cert. denied, 344 U.S. 812; Honolulu Star Bulletin, 123
NLRB 395.
15 Cf. Houston Maritime Association Inc., et al, 121 NLRB 389.
14 Members of Local 466 were prohibited from soliciting employment directly from
employers and were required to apply only through the office of business manager. As
indicated above, one member who bypassed the business manager was subjected to disci-
plinary proceedings in the Union
17 See Booth and Flinn Company, etc, 120 NLRB 545, 549-551; Houston Maritime
Association, Inc., et. at., supra; International Union of Operating Engineers, Local 150,
etc (Fluor Company, Ltd.), 122 NLRB 1374; United States Steel Corp., etc., 122 NLRB
1324.
LOCAL 466, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 923
Furthermore, even aside from the preference granted IBEW members in the opera-
tion of this exclusive hiring arrangement, Local 466's entering into and enforcing the
arrangement was violative of the Act because it did not include the safeguards in
which the Board in the Mountain Pacific and subsequent cases had held were es-
sential to render an exclusive hiring or referral arrangement lawful.18
IV. THE REMEDY
Having found that Local 466 has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
I have found that Local 466 entered into and enforced the 1957 and 1958 agree-
ments with the Association which granted illegal closed-shop conditions ,with respect
to the hiring of men for temporary power and lighting work on construction projects.
The General Counsel had requested the application of the Brown-Olds 19 dues-
reimbursement remedy to dissipate the effect of these illegal closed-shop conditions
of employment. Local 466, while not disputing the illegality of such provisions, at
least insofar as the 1957 contract is concerned, urges that it attempted in good faith
to bring its contracts into compliance with the Act, and cites as proof of this fact its
execution of the November 5, 1958, addendum which established a nondiscriminatory
exclusive referral system containing the Mountain Pacific safeguards, and also its
execution of the 1959 agreement, from which it allegedly eliminated all objection-
able clauses. Local 466 contends that in these circumstances it would not effectuate
the policies of the Act to order dues reimbursement.
However, by enforcing closed-shop conditions of employment under its agreement
with the Association, Local 466 has inevitably coerced employees to pay the dues,
fees, and assessments necessary to achieve and retain membership.20 Also by enter-
ing into and enforcing with Moore Electric Company an understanding or arrange-
ment for an execlusive referral system by virtue of which it was contemplated that
only members of Local 466 would be referred for jobs, if available, Local 466 has
further coerced the employees of Moore to pay the dues, fees, and assessments neces-
sary to obtain and maintain good standing in local 466.21 In these circumstances the
equities, as between Local 46, the wrongdoer, and the employees who may have in-
voluntarily paid dues and other fees and assessments in order to get or keep their
jobs, would seem to favor the victims of the wrongdoing. Accordingly, I reject Local
466's contention in this regard 22
I shall recommend that Local 466 reimburse the employees of the members of the
Association and of the signers of the 1957 and 1958 agreements who were employed
on temporary power and lighting work on construction projects for any dues, fees,
assessments, or other moneys paid by them to Local 466 in satisfaction of the obliga-
tions of union membership during the periods their employers were covered by these
agreements. The liability of Local 466 so to reimburse shall cover the period
commencing on December 12, 1957 (6 months prior to the service of the charge),
and ending on November 5, 1958, the date on which the parties and signers of the
1958 agreement executed the addendum, which I find was intended to replace the
illegal closed-shop provisions of the 1958 agreement 23
16 In N.L.R B. v. Mountain Pacific Chapter, etc., 270 F 2d 425, the Court of Appeals
for the Ninth Circuit, rejecting the Board's view that a contract conferring exclusive
hiring rights on a union without the so-called Mountain Pacific "safeguards" was per ae
illegal, set aside the Boards' order and remanded the case to the Board for further con-
sideration. However, In the absence of any official statement by the Board that it is
acquiescing in the Ninth Circuit's decision, I am bound by the Board's decision in the
Mountain Pacific case. Scherrer and Daviason Logging Company, 119 NLRB 1587,
1589.
1e United Association of Journeymen & Apprentices of the Plumbing it Pipefitting Indus-
try etc. (J. S. Brown-E. F. Olds Plumbing it Heating Corporation), 115 NLRB 594, 597-
602
iro Argo Steel Construction Company, 122 NLRB 1077.
21 See Local 363 affiliated with the International Brotherhood of Boilermakers ( Anchor
Welding & Manufacturing Company, at al ), 123 NLRB 1877.
22 The Board rejected a similar contention under similar circumstances in Argo Steel
Construction Company, 122 NLRB 1077.
xi With respect to the appropriateness of the dues-reimbursement remedy generally, see
Local Union No 450, International Union of Operating Engineers, AFL-CIO, etc.
(Tellepsen Construction Company), 122 NLRB 564; Local 138, International Union of
Operating Engineers , AFL-CIO, etc. (Nassau and Suffolk Contractors Association, etc.),
'924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
I shall further recommend, in view of Local 466's understanding or arrangement
with Moore Electric Company for the operation of'an illegal exclusive referral sys-
tem, that Local 466 reimburse the employees of Moore Electric Company for any
dues, fees, assessments , or other moneys paid by them to Local 466 in satisfaction
of the obligations of union membership during the period beginning December 12,
1957 (6 months prior to the service of the charge), and ending on November 5, 1958.
In view of the fact that Local 466 in effect eliminated the objectionable provisions
of the 1957 and 1958 contracts in the November 5, 1958, addendum , and that the
General Counsel does not contend that Local 466s contracts or referral practices
after November 5, 1958, were in any way unlawful, I conclude that a broad cease-
and-desist provision is not warranted. Accordingly, I will recommend that Local
466 cease and desist from in any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act 24
CONCLUSIONS OF LAW
1. Local Union No. 466, International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By restraining and coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act, as found above, Local Union No. 466, International
Brotherhood of Electrical Workers, AFL-CIO, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
3. By causing and attempting to cause the members of the Association and non-
member signers of the Association contracts to discriminate against their employees
in violation of Section 8(a)(3), Local Union No. 466, International Brotherhood of
Electrical Workers, AFL-CIO, has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b) (2) of the Act.
4. The unfair labor practices found herein affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
123 NLRB 1393; Gay Engineering Corporation, 124 NLRB 451; N.L.R.B. v. General
Drivers, Chauffeurs and Helpers, Local Union No. 888, etc. ( Unit Parts Company), 264
F. 2d 21, 23 ('C.A. 10), and cases therein cited.
a* Gay Engineering Corporation, 124 NLR.B 451.
Dixie Electrotype Co., Inc. and International Stereotypers' and
Electrotypers' Union Local No. 78, Petitioner . Cane No.10-RC-
4546. March 2, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Aaron Z. Dixon, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. '
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged. in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
126 NLRB No. 108.