Local Union 675, Electrical Workers

National Labor Relations Board - Board Decisions

May 20, 1976

223 N.L.R.B. 1499 (N.L.R.B. 1976)

LOCAL UNION 675, ELECTRICAL WORKERS 1499
Local Union 675, International Brotherhood of Elec-
trical Workers, AFL-CIO (S & M Electric Co.) and
Theodore Owchariw and Union County Division of
the Northern New Jersey Chapter, Inc., National
Electrical Contractors Association , Inc., Party to
the Contract . Case 22-CB-2879
May 20, 1976
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND WALTHER
On January 15, 1976, Administrative Law Judge
James V. Constantine issued the attached Decision
in this proceeding . Thereafter , the Respondent
Union and the General Counsel filed exceptions and
supporting briefs. The Party to the Contract, by let-
ter, joined in Respondent Union's exceptions. The
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order, except as modified
herein.
We agree with the Administrative Law Judge's
holding that Respondent violated Section 8(b)(1)(A)
of the Act by its discriminatory refusal to refer the
Charging Party for employment under the terms of
its exclusive referral system. However , we cannot
agree with his conclusion that Respondent did not
violate Section 8(b)(2) of the Act by the same con-
duct.
The Administrative Law Judge based his finding
on the ground that "the record is bare of any evi-
dence that Local 675 made any effort, whether di-
rectly or indirectly, to induce any employer to refuse
employment to Owchariw." This conclusion must be
rejected. The Board has consistently found a viola-
tion of Section 8(b)(1)(A) and (2) of the Act where a
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 ( 1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that Respondent failed to
present sufficient evidence to establish that its reason for not referring Ow-
chariw on October 24, 1974, was that the particular employer involved re-
quested a member of a minority. We do not, however, pass upon the ques-
tion of whether such reason would excuse the Union's conduct.
union has discriminatorily refused to refer an em-
ployee for employment pursuant to the terms of an
exclusive referral system in effect between the union
and an employer.' Such union conduct, by its very
nature indirectly induces the Employer to refuse em-
ployment to that employee in violation of Section
8(a)(3). Hence, we find that by discriminatorily refus-
ing to refer Owchariw for employment, the Respon-
dent Union violated Section 8(b)(2).
We agree that it is inappropriate to defer to the
arbitral forum but not for the reasons set forth by the
Administrative Law Judge.4 The Board has held that
it would not be consonant with statutory policy to
defer to arbitration 5 in cases where the interests of
the aggrieved employee are in apparent conflict with
the interests of the parties to the contract .6 In the
instant case, it is clear that the interests of Owchariw
and the parties to the contract are conflicting.'
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 5:
"5. By discriminatorily refusing to refer Owchariw
for employment pursuant to the terms of an exclusive
referral agreement because he filed unfair labor prac-
tice charges with the National Labor Relations
Board, and because he complained to Respondent's
parent International Union about Respondent's lack
of impartiality toward the membership, Respondent
has violated Section 8(b)(1)(A) and 8(b)(2) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Local
Union 675, International Brotherhood of Electrical
Workers, AFL-CIO, Elizabeth, New Jersey, its offi-
3 Local #624, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO
(Power Piping Company), 211 NLRB 942 (1974); International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 101
(Stearns-Roger Corporation), 206 NLRB 30 (1973); International Union of
Operating Engineers, Local 18, AFL-CIO (C. F. Braun Company), 205
NLRB 901 . 910 (1973).
4 The Administrative Law Judge erred in finding that there is no applica-
ble grievance procedure in the contract . The referral appeals procedure is
clearly set out therein and we find that it is applicable to the circumstances
here.
5 Collyer Insulated Wire. A Gulf and Western Systems Co., 192 N LRB 837
(1971).
6 Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543
(1972).
t Member Jenkins would , in any event , not defer to arbitration for the
reasons set forth in his dissent in Collyer Insulated Wire, supra.
223 N-LR) No. 223
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cers, agents , and representatives , shall take the action
set forth in the said recommended Order as so modi-
fied:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Failing or refusing to refer to a job Theodore
Owchariw or any applicant signing its referral list
when his name or the name of such applicant is
reached on said referral list, except to the extent that
the collective-bargaining contract providing for such
a referral list lawfully authorizes some other appli-
cant to be referred ahead of any applicant on said
referral list.
"(b) Causing or attempting to cause an employer
to discriminate against an employee in violation of
Section 8(a)(3) of the Act.
"(c) In any other manner restraining or coercing
employees in the exercise of rights guaranteed by
Section 7 of the Act.
"(d) Discriminating against applicants for a job,
including Theodore Owchariw, signing our referral
list, by not referring them to a job , because they file
charges with the National Labor Relations Board, or
because they engage in other activities protected by
the National Labor Relations Act, or because they
complain to the International Union about hiring
hall procedures."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to refer to a job
any applicant for a job, including Theodore Ow-
chariw, signing our referral list , when his name
is reached on said referral list, except to the ex-
tent that our collective-bargaining contract pro-
viding for such a referral list lawfully authorizes
some other applicant to be referred ahead of any
applicant on said referral list.
WE WILL NOT discriminate against applicants
for a job, including Theodore Owchariw, signing
our referral list, by not referring them to a job,
because they file charges against us with the Na-
tional Labor Relations Board, or because they
engage in other activities protected by the Na-
tional Labor Relations Act, or because they
complain to our International Union about our
hiring hall procedures.
WE WILL notify Theodore Owchariw that
when his name is reached on our referral list he
will be sent to a job unless under the collective-
bargaining contract someone signing after him is
lawfully entitled to be sent out before him.
WE WILL make whole Theodore Owchariw for
any loss of pay he may have suffered, with inter-
est at the rate of 6 percent, by reason of our
discriminating against him as an applicant for a
job who signed our referral list by not referring
him when his name was reached on said list.
WE WILL NOT cause or attempt to cause
S & M Electric, or any other employer, to dis-
criminate against any employee in violation of
Section 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of rights guar-
anteed by the Act.
LOCAL UNION 675, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case instituted pursuant to Sec-
tion 10(b) of the National Labor Relations Act, herein
called the Act. (29 U.S.C. 160(b).) It was commenced by a
complaint issued on July 31, 1975, by the General Counsel
of the National Labor Relations Board , herein called the
Board, through the Regional Director for Region 22 (New-
ark, New Jersey), naming Local Union 675 I.B.E.W. as
Respondent and Union County Division of the Northern
Jersey Chapter, Inc., National Electrical Contractors Asso-
ciation , Inc., as Party to the Contract . Said complaint is
based on a charge and an amended charge filed respective-
ly on January 27 and July 25, 1975, by Theodore Owchar-
iw, the Charging Party herein.
In substance the complaint alleges that Respondent vio-
lated Section 8(b)(1)(A) and (2), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7), of the Act. Respondent and the Party to the Contract
each has answered admitting some of the allegations of the
complaint but denying that any unfair labor practices were
committed.
Pursuant to due notice this case came on to be heard
before me at Newark, New Jersey, on October 22 and 23,
1975. All parties were represented at and participated in
the hearing, and had full opportunity to introduce evi-
dence , examine and cross -examine witnesses , file briefs,
and offer oral argument . Briefs have been received from all
parties.
This case presents the issues of whether Respondent:
1. Maintains and operates an exclusive job referral sys-
tem whereby all electricians to be employed by employer
members of the Party to the Contract must be referred to
them by Respondent.
LOCAL UNION 675, ELECTRICAL WORKERS 1501
2. Failed and refused to refer the Charging Party for
employment with employer members of the Party to the
Contract when he applied for referral to employment with
said employer members.
3. If Respondent did so refuse, did such refusal occur
because he complained about its hiring procedures to
Respondent's International Union and to the NLRB.
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. AS TO JURISDICTION
The Party to the Contract , herein called NECA, and
S & M Electric Co., herein called S & M , are New Jersey
corporations . NECA, an employer itself, is an association
of employers whose members are engaged in the electrical
industry in New Jersey and in other States . S & M is an
employer and as such is a member of NECA. NECA is
authorized to bargain collectively for its members and to
enter into a single collective-bargaining contract covering
the employees of its members , and for many years NECA
has done so.
In the year preceding July 31, 1975, the members of
NECA provided and performed electrical services valued
in excess of $50 ,000, of which electrical services valued in
excess of $50,000 were performed in States other than New
Jersey . I find , notwithstanding NECA's denial in its an-
swer , that it and its constituent members, including
S & M, are employers within the meaning of Section 2(2),
and are engaged in commerce as defined in Section 2(6)
and (7 ) of the Act , and that it will effectuate the policies of
the Act to assert jurisdiction over Respondent in this pro-
ceeding.
11. THE LABOR ORGANIZATION INVOLVED
Local Union 675, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called Local 675, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICE
A. General Counsel's Evidence
Theodore Owchariw, the Charging Party, testified sub-
stantially as follows as a witness for the General Counsel.
He is an "electrician, inside by the trade." He started to
learn such trade in Montreal, Canada, in 1949, and served
an apprenticeship of 4 years there. In 1952 or 1954 he was
admitted to membership to Local 568 IBEW, in said Mont-
real, and thereafter worked as a journeyman electrician in
different cities in Canada until he immigrated to Elizabeth,
New Jersey, in 1959. While living in Elizabeth he worked
for 16 straight months under Local 581 of the IBEW in
Morristown, New Jersey, but belonged to Local 568,
IBEW, of Montreal during said period. Other jobs he
worked on from 1972 to 1974 are given in General
Counsel's Exhibit 3.
In 1961 he started to work in the Elizabeth, New Jersey,
area. Although he did belong to said Local 568 but not to
Local 675, he was referred to jobs in that area by John
O'Connor,. the business agent of Local 675, whom the an-
swer of said Local 675 admits to be its agent within the
contemplation of Section 2(13) of the Act. (The answer of
NECA denies that Local 675 is a labor organization, that
O'Connor is one of its business agents, and that Local 675
and NECA have been parties to a collective-bargaining
contract covering electricians employed by employer
members of NECA. But G.C.Exh. 2 is a contract between
NECA and Local 675.) He had to show his card estab-
lishing his membership in the International Brotherhood of
Electrical Workers each time O'Connor obtained a job for
him.
Owchariw in 1971 or 1972 wrote to said International
explaining that he was an American citizen, that he be-
longed to Local 568, and that his nonmembership in an
American local of IBEW "holds me a little back from my
work." The IBEW replied, "get in touch with Local 675
and make it on your own." Then he wrote a letter dated
March 24, 1974, to the IBEW asserting that Local 675 dis-
criminated against him as said Local's business agent
"sends only those men out to work that he likes." See Gen-
eral Counsel's Exhibit 4. The IBEW's president replied by
a letter dated April 2, 1974, informing him that "the matter
has been referred to the International Vice President." See
General Counsel's Exhibit 5. By letter dated April 9, 1974,
said vice president wrote him to take his grievance to the
Referral Appeals Committee. See General Counsel's Ex-
hibit 6. So Owchariw on April 12 wrote to said vice presi-
dent insisting that members of IBEW "must be protected."
See General Counsel's Exhibit 7. He received a reply dated
April 15. See General Counsel's Exhibit 8. He also went to
see O'Connor, the business agent of Local 675, to whom he
showed the letter (G.C.Exh. 6) directing him to see the
Referral Appeals Committee, but O'Connor replied, "find
out for yourself" as to whom Owchariw should see.
Later Owchariw found out who composed the executive
board of Local 675 and presumed they would entertain his
lack of being referred to jobs by O'Connor. Then Owchar-
iw appeared before said executive board in November
1974.
On April 16, 1974, Owchariw filed a charge with the
National Labor Relations Board against Local 675 alleging
that it unlawfully failed to refer him to jobs. See General
Counsel's Exhibit 9. This charge was withdrawn on May 7,
1974. On that date he was also "referred out" to a job. See
General Counsel's Exhibit 3. He is required to have a per-
mit from Local 675 to be referred out and he must renew
said permit on the date marked on said permit requiring
renewal. Failure to renew a permit on the date required
deprived such person of the right to be referred until he
obtained a new permit. On August 20, 1974, Owchariw was
a day late, i.e., he went for it on August 21, in obtaining a
renewal because of a water leak in the basement of his
home, so that O'Connor refused to renew it. Such failure to
renew caused Owchariw to lose his job at Maglio Electric.
Owchariw then complained of this treatment to a news-
paper on August 21, which published such complaint, see
General Counsel's Exhibit 10. After this article was pub-
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lished Owchariw was referred to a job with Valentine Elec-
tric. See also General Counsel's Exhibit 3.
Owchariw described "the procedures in the union hall
that a man has to go through when he is being referred
out." Such person arrives at such hall by 7:30 a.m. and
signs his name and local union number on a list or referral
book kept in the office on the second floor. Then he goes to
the third floor where he waits until he is informed whether
he will go out on a job or not. See General Counsel's Ex-
hibit I1-A to I1-E for some of such referral lists for the
group or category in which Owchariw belonged. The actual
assignment or referr al of such signers, i.e., Owchariw's
group, for a specific period are given in General Counsel's
Exhibit 12. To be included in such group i.e., group I. a
journeyman must possess certain qualifications. See article
VII, and particularly 7.5 thereof, in the contract between
Local 675 and NECA, in evidence as General Counsel's
Exhibit 2. Owchariw is qualified to perform any "inside
work," as he has been licensed by Elizabeth, New Jersey,
to perform such work.
Since October 24, 1974, Owchariw daily went to the hall
of Local 675 and signed the register or referral book. But
he was not referred to any job since then except for one
day's work in December (i.e., Dec. 17). In December 1974
and January 1975 he arrived at the hall about 6:45 a.m.
every day, and found that he was not only the first one
there but that the door would be locked at the time. Never-
theless on each occasion when the door was opened for
him and he entered he found five to seven names already
on said referral list notwithstanding "nobody would be
around. [He] couldn't even get first on the list" even
though he was the first to enter the hall. However, he was
occasionally the first to sign such list, but even on these
days he was never sent out except once, i.e., on December
17, 1974.
On cross Owchariw testified he was still a member of
IBEW Local 568 in Montreal, Canada, but worked in the
jurisdiction of Respondent Local 675 "under a travelling
card from [his] home local in Montreal." He also had been
referred to work in 1959 and 1960 by IBEW Local 581 in
Morristown, New Jersey. He also testified that although his
work permit once expired on August 20, 1974, because he
was unable to get it renewed on time, Local 675 did renew
it on August 24, 1974, and referred him to another job.
And he further testified on cross that in 1970 he was re-
ferred to jobs by Local 675, and in 1971 and 1972 it re-
ferred him "on and off" to jobs.
Further, on cross, Owchariw testified that the union hall
entrance door is opened at 7 a.m. in the morning by a
carpenter's union agent ;' that access to the referral book
which applicants sign is reached through a window in front
of the desk on which the book rests on the second floor of
the hall; that he found such window open when the front
door was unlocked at 7 a.m. and that such window re-
mained opened until 9 a.m. or a little later. He added that
although he was the first electrician to enter the building he
observed the signatures of other electricians already in
such book. An example is the list for December 13, 1974,
1 The Carpenter's union occupied part of the building.
where Mikos Marion's name is the first on the referral list
notwithstanding that Owchariw arrived there at 7 a.m. and
Marione at 7:05 a.m. See General Counsel's Exhibit I1-C
and 13-A. (13-A is Owchariw's reproduction of the first
two names on I1-C.) Marione was referred to a job on said
December 13.
Also on cross Owchariw testified that on those days
when he was the first electrician to arrive at the union hall,
he saw John O'Connor, business manager of Local 675,
come in after him "quite a few" times in December 1974.
On December 17 O'Connor sent him out on a 1-day job as
Owchariw signed the referral book as the first one on that
day. In fact Owchariw on cross claimed that on "many
days" he signed the referral book in December 1974 and
January 1975 as the first one "but I am still not working."
Carol Owchariw, wife of Theodore Owchariw, also was
called as a witness by the General Counsel. An adequate
summary of her testimony is here set forth. In August 1974,
her husband informed her that "his work permit had ex-
pired and he couldn't renew it" while employed at Maggio
Construction by reason of referral by Local 675. As a result
she called on Business Manager O'Connor of said Local
675 to ascertain why O'Connor did not renew said permit.
But O'Connor ordered her to get out or he "would call the
bunny wagon . . . and get the police" if she did not leave.
Consequently she left O'Connor's office and went to the
Elizabeth Daily Journal, After speaking to said newspaper
it printed an article about her husband's failure to get his
permit renewed. See General Counsel's Exhibit 10.
At this point the General Counsel rested.
B. Respondent's Evidence
Respondent's only witness, John O'Connor, its business
manager, testified substantially as follows. Local 675 has a
three-story office building on East Grand Street in Eliza-
beth, some of which it occupies and some of which it also
leases to other building crafts. The second floor has general
offices while the third floor has additional offices and a
dayroom. After an applicant for work signs the referral
book on the second floor he goes to the dayroom on the
third floor to "await a call for employment if and when it's
available." On the second floor, where his office is located,
there is an "area with a window for the referral procedure."
Said window, which is "slidable," is about 2 feet by 2 feet,
and "makes it accessible for an individual seeking employ-
ment to sign the book and fill out the referral card with his
experience." Said window is kept locked all day except
from 7 a.m. to 8 a.m. "for referral purposes only." See
Respondent's Exhibit I for one of said referral cards.
When calls come to O'Connor from employers who want
employees he tries to "match the requirement that an em-
ployer requests" with the qualifications of those who have
signed the referral book, after which he goes to the third
floor dayroom and calls an applicant by name "to go out
to work." He arrives at his office prior to 7 a.m. and the
front door to the building is unlocked before he gets there.
O'Connor insists he never has allowed any appicant to sign
the referral book "at the close of a day's business ... for
work on the next day," and has never permitted anyone to
sign for another.
LOCAL UNION 675, ELECTRICAL WORKERS 1503
O'Connor has observed some applicants leave the prem-
ises after signing the referral book. But if such a person is
not in the dayroom when O'Connor called him to go out
on a job O'Connor would then call the next available man
in the dayroom and send him out to the job. O'Connor also
testified that article II of the collective-bargaining contract
(G.C Exh. 2) granted the employer the right to "call for a
specific employee by name," and, under "those conditions
[O'Connor is] obligated to supply that employee." In addi-
tion, according to O'Connor, "there are many classifica-
tions such as the welder, the burner and the splicer and a
line man, a panel control wire man, to mention a few . . .
In each of these instances [O'Connor] .. selects a man
who has that particular skill."
Continuing, O'Connor testified that Local 675 has "not
received or accepted any transfers into Local 675 . . in
many, many years." This is because, as "a matter of eco-
nomics," it is preferable to have people "working on a tem-
porary referral for employment . . . rather than take them
into membership and upset the economics of the entire
area." See section 5, article XXV of the International
constitution of IBEW which sanctions this by providing
that each local union "shall have full autonomy to accept
or reject all request [sic] for transfers." See Respondent's
Exhibit 2. Also, articles 7.16 and 7.17 (VII in the contract)
of the collective-bargaining contract provide for an appeals
committee " to consider any complaint of any employee or
applicant for employment arising out of the administration
by the Local Union of Section 7.4 through 7.15 of this
Agreement." See General Counsel's Exhibit 2.
On August 21, 1974, Owchariw was a day late in request-
ing that his referral be renewed. So O'Connor told him it
could be renewed only before it expired the day before.
Thereupon Owchariw left, but only after being told he
could have it renewed on the following Monday. Shortly
thereafter Mrs. Owchariw came in to see O'Connor with-
out permission and screaming. O'Connor ordered her to
leave and "suggested" to her that if she failed to do so he
would call the police. She left. Her husband's work permit
was renewed on the following Monday, and he was "subse-
quently assigned out to work."
O'Connor further testified that Local 675 uses a "formal
employment termination report," prepared by supervisors
on the jobsite. Its purpose is to "make available to
[O'Connor's] office information on a particular individual's
specialties perhaps or deficiencies " Some of these reports
on Owchanw were offered in evidence as records kept in
the regular course of business by Local 675, but as they
were prepared by supervisors of each employer for whom
Owchariw worked they were excluded absent evidence that
they were prepared in the regular course of business of
such employers.
On October 24, 1974, Owchariw signed the referral book
ahead of Zappulla, Stauch, Rigby, and Schultes (See G.C.
Exh. I l-A); but although they were sent out that day on
jobs, he was not. (See G.C Exh. 12). O'Connor described
Rigby as a "member of Local 675, journeyman, electrician,
wireman." Rigby, Stauch, and Zappulla were sent to the
Molnar Buckeye project to do panel control wiring because
"they have had experience in this type of work" and also
because they went through "special programs and train-
ing" conducted by Local 675 "to train [its] men in panel
wiring." But, according to O'Connor, Owchariw had not
"gone through this -type of training." Further, O'Connor
claimed the employer "requested these men by name."
O'Connor also testified that Schultes was a "welder
above and beyond being an electrician." O'Connor on said
October 24 assigned him to the Sheraton Hotel job because
Schultes "either . was requested or he may have been
the only one available for assignment at that moment."
On October 29, 1974, Richard Christopher signed the
referral book after Owchariw (See G C.Exh. I I-A for said
date.) Christopher was sent out to a job, whereas Owchariw
did not receive any assignment on that day. According to
O'Connor, Christopher "is capable of welding" in addition
to being a "journeyman wiring electrician," and "you must
be a journeyman in order to be a welder . . welding is
considered an additional skill " Other journeymen "wire-
men" or electricians who are also capable of welding are
Edward Deem, Jacob F. Racon, and Thomas Roman. But
a journeyman may not be sent out "to fill a slot of an
apprentice." There are no apprentices on the referral list in
evidence as General Counsel's Exhibit I I-A And, the con-
tract with NECA (See G.C.Exh. 2) provides in article VII,
section 15, subsection A, "When an employer states bona
fide requirements for special skills and abilities in his re-
quest for applicants, the Business Manager [of Local 675]
shall refer the first applicant on the register possessing such
skills and abilities." No call was ever received from an em-
ployer requesting that Owchariw be sent to a job
O'Connor insisted on the witness stand that he has "nev-
er discriminated against anybody" in general, and Owchar-
iw in particular, in sending and assigning anyone on the
referring lists of Local 675 And O'Connor "on several oc-
casions," about which he could not be specific as to dates,
"attempted to find Mr Owchariw to refer him out to work
and didn't find him available in the day room" of Local
675. And O'Connor categorically stated, "under no cir-
cumstances have I prevented Mr. Owchariw from being
sent out," or even "preferred another employee over Mr.
Owcahriw for work assignments outside the requirements
of the contract . . as shown by General Counsel's Exhibit
2." However, under said contract O'Connor may select
anyone he wants to be the electricians' shop steward on
any job.
On December 2, 1974, Owchariw's signature appears
nine signatures above that of Pete Brennan on the referral
list, but Brennan was selected on that day for the Sealand
project because he could operate heavy electrical equip-
ment while Owchariw could not And on December 3,
1974, notwithstanding that Owchariw's signature appears
first on the referral list, O'Connor selected number 13 on
that list, i.e., Ed Deem was sent to the Rheem job on that
day "as a foreman . . at the employer' s request . .."
On the Sealand job Gidosh was sent by O'Connor at the
employer's request, and on the Merck jobs the employer
requested specific individuals although "there was nothing
unusual about those projects." On December 5, 1974, Bor-
enstein was sent to the Exxon job because he was "proba-
bly the only one available "
On December 19, 1974, Jacob Racon signed the referral
list last and Owchariw signed second Although Racon was
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent out to the Sheraton electric project, Owchariw was not
assigned to any job on that day. O'Connor had "no recol-
lection" why Racon was selected to work on this job. On
December 23 Owchariw signed the referral list first. But
Caruso and Gregory, both of whom signed after Owchar-
iw, were sent to work at Kean College, whereas Owchariw
did not get an assignment. Gregory was selected because
he was to be foreman on this job. No reason was men-
tioned by O'Connor as to why Caruso, who was the 14th to
sign, was selected over Owchariw, the 1st person to sign.
Also on December 23 Kenna was selected to work on the
Clark project for Prime Electric. Kenna 's signature was
number 24 on the referral list. According to O'Connor,
Kenna was sent "at the request of the employer." And on
said December 23 Zimmerman, who signed as number 26,
was assigned to work at Kean College because "he was
probably the only one available."
Continuing, O'Connor explained that "the hiring system
closes down at 9 o'clock" each morning; but if he receives
calls from employers for employees after that time he will
select "anyone hanging around the hall ... that is the day
room." Consequently, on such occasions, which occurred
"many , many" times , the men so assigned were not neces-
sarily those entitled to priority but, rather, were those who
were "available in the hall at a given moment."
On December 26 Cyhero and Kope, the last two who
signed the referral list, were assigned to the Scheering proj-
ect, notwithstanding that Owchariw signed first on that
day. "That [sending Cyhero, who "may have been an ap-
prentice", and Kope] was a request from the employer,"
according to O'Connor's testimony. Also, on January 6,
1975, Churchill and Deem were sent out as a result of a
"request of the employer." But Kavalieros, who also was
sent out on said January 6, was assigned to a job because
"he would be the only one available in the hiring hall,"
even though he signed as number 35 and Owchariw signed
as number 3 on said January 6.
Cain was assigned to a job on January 13 because "in all
probability he was the only one available." On this day
Owchariw's signature is the 4th one on the referral list,
whereas Cain's is the 19th. And on January 24 Fullman,
who signed seventh, was selected over Owchariw, who
signed first, because "there was a request for a minority
... by the employer. Joseph Fullman is a minority." Fi-
nally, on direct, O'Connor testified that on February 6,
1975, Caruso, who was third on the referral list (Owchariw
having signed as the first ), was sent out to the Buckeye
project as a lineman because the employer had submitted a
request for a lineman.
On cross O'Connor testified that he does not keep rec-
ords disclosing that an employer made a request for a spe-
cific or particular individual, and that his testimony above
that an employer desired that a certain employee be sent to
a project was "to the best of my recollection." He also
testified , in answering a question as to how he knew the
individual qualifications of those signing a referral list, that
"I am familiar enough with the people to know their expe-
rience . . . I believe my memory in dealing with the skills
of all the people that come through the hall generally I
know pretty well."
Further, on cross, O'Connor testified that he never dis-
cussed an applicant's skills" with any of those, including
Owchariw, who "signed the referral list of Local 675 . . . I
had no reason to discuss it with Mr. Owchariw . . . . Gen-
erally I know their experiences . . . [because] I worked
with them in the field." But he admitted he had no recol-
lection of ever working with Owchariw.
Also, on cross, O'Connor stated that in those instances
when an employer did not mention a specific individual to
be sent to a job he, O'Connor, "would most certainly send
the man out [who was] on top of the [referral] list." Howev-
er, even the top man would not be sent out if he did not
possess any special skills required on a particular job. That
is why Peter Brennan was sent out as an equipment opera-
tor on December 2, 1974. In that case O'Connor did not
send Owchariw, who had signed the referral list ahead of
Brennan , because Owchariw did "not to my [O'Connor's]
knowledge" have "the ability to perform that job." O'Con-
nor also explained that sometimes early applicants for em-
ployment signed on the right side of the referral book, so
that those signing on the left side actually signed at a later
time . In such instances, if he noticed it, he first sent out
those signing on the right side.
C. General Counsel's Rebuttal
Theodore Owchariw was recalled to testify for the Gen-
eral Counsel on rebuttal. A summary of such testimony
follows. Owchariw is familiar with what constitutes the job
of panel control wiring, and has performed such work on
many occasions in both Canada and the United States. In
fact he did such work "even under John's [O'Connor's]
direction." Finally, he insisted that he was not aware of
any training program put on by Local 675 to qualify a
journeyman as a panel control wireman.
D. Concluding Findings and Discussion
1. As to alleged violations of Section 8(b)(2) of the Act
This segment of the Act provides that it shall be an un-
fair labor practice for a labor organization to cause or at-
tempt to cause an employer to discriminate against an em-
ployee in violation of Section 8(a)(3) or to discriminate
against an employee on some ground other than his failure
to pay periodic dues and initiation fees. Paragraph 18 of
the complaint herein alleges that Local 675 violated said
Section 8(b)(2) by refusing to refer Owchariw for employ-
ment for reasons proscribed by the Act.
As set out below I have found that Local 675 has violat-
ed Section 8(b)(1)(A) of the Act by refusing to refer Ow-
chariw for employment for discriminatory reasons. But the
record is bare of any evidence that Local 675 made any
effort, whether directly or indirectly, to induce any em-
ployer to refuse employment to Owchariw. Absent such
evidence I am required to find that the General Counsel
has failed to establish that Local 675 committed any viola-
tion of this section of the Act. Accordingly, I shall recom-
mend that this aspect of the complaint be dismissed for
lack of proof to sustain it.
LOCAL UNION 675, ELECTRICAL WORKERS 1505
2. As to the alleged violations of Section 8(b)(1)(A) of the
Act
O'Connor testified on cross, and I credited him on this
aspect of his testimony, that in those cases when an em-
ployer asked for an employee but did not mention a partic-
ular individual to be sent to the job, O'Connor "would
most certainly send the man out [who was] on top of the
[referral] list." Admittedly Owchariw was often on top of
the referral list or at least ahead of the one sent out by
O'Connor, but Owchariw was not on these occasions, ex-
cept for December 17, 1974, sent out after October 23,
1974. O'Connor testified that he did not refer Owchariw on
these occasions, giving reasons why O'Connor chose those
who signed the referral list after Owchariw. Such occasions
may be classified in groups, and these groups will be taken
up and discussed below, beginning with subparagraph (a).
Article 7.4 of the contract (G.C.Exh. 2) provides that
Local 675 "shall select and refer, applicants for employ-
ment without discrimination against such applicants ... .
All such selection and referral shall be in accord with the
following procedure. 7.5. The Union shall maintain a regis-
ter of applicants for employment . . . 7.14.... The Busi-
ness Manager shall refer applicants to the Employer . . . in
the order of their place on the `Out of Work List' . . . 7.15.
The only exceptions which shall be allowed in this order of
referral are as follows: (A) When the Employer states bona
fide requirements for special skills and abilities in his re-
quest for applicants, the Business Manager shall refer the
first applicant on register possessing such skills and abili-
ties." (B) Relates to "the age ratio clause in the Agree-
ment" and is not pertinent here.
(a) O'Connor testified that he often sent applicants on
the referral list who signed after Owchariw because the
employer requested them by name. But nothing in the con-
tract has been cited which grants to O'Connor as the Local
675 business manager or to the employer the right to disre-
gard.the order in which such applicants' names appear on
the referral list, except as permitted by section 7.15 thereof.
Hence I find that O'Connor could not for this reason send
out an applicant who signed the referral list after Owchar-
iw. Local 357, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America [Los An-
geles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667
(1961), in my opinion does not compel a contrary conclu-
sion . The same comment applies to Laborers' International
Union of North America, Local No. 107 v. Kunco, Inc., 472
F.2d 456 (C.A. 8, 1973), for in that case the contract pro-
vided that the employer could request "men . . . by
name."
Even if the contract permitted the employer to request
an applicant by name, and thus could ask for one who had
signed after Owchariw, and O'Connor could honor such
request, I find that Respondent has failed to establish such
requests on the record unfolded at the trial. This is because
not a single employer was put on to testify that he request-
ed any applicant by name, and also because O'Connor
kept no record of such requests. It is true that Local 675
was not requierd to keep such records; but since it retained
referral lists , some of which are in evidence as General
Counsel's Exhibit 11, it is reasonable to expect that a nota-
tion could have been made on such referral lists indicating
which applicant was sent out ahead of another who signed
before him. I am unable to accept O'Connor's oral testimo-
ny that he remembers every single person who was so se-
lected out of turn over a period of several months. Further,
O'Connor did not explain, and I do not infer, how an em-
ployer who asked for X knows that X has signed the refer-
ral list for any one particular day. For X may not have
signed the referral list because of any number of reasons,
such as illness or actual employment pursuant to being sent
out by O'Connor on a job on which the employee is still
engaged. Since the record fails to sustain the contention of
Local 675 that it could disregard article 7.14 of the contract
to "refer applicants to the employer . . . in the order of
their place on the `Out of Work List,"' I find that sending
applicants who signed after Owchariw to jobs ahead of him
because the employer asked for such persons by name dis-
criminates against him.
(b) O'Connor also testified that he sent out some appli-
cants who signed the referral list after Owchariw because
the employer stated that special skills and abilities were
required for the job. Article 7.15 of the contract does pro-
vide that, in such instances, "the Business Manager shall
refer the first applicant on the register possessing such
skills and abilities." O'Connor testified that Owchariw was
sometimes not sent out, even though he signed before those
who were referred, because he lacked the skills and abilities
required on the job involved. But I do not credit O'Connor
that Owchariw lacked such skills and abilities, as I credit
Owchariw that he not only could perform that work which
O'Connor claimed he could not, but that O'Connor has
observed him perform such work. Additionally, I do not
credit O'Connor, not only as he failed to state at the trial
the basis for asserting that Owchariw lacked certain abili-
ties, but also because O'Connor presented no corroborative
evidence from any employer that the employer's job re-
quired special skills and abilities which a journeyman elec-
trician lacked. In fact General Counsel's Exhibit 12, which
is a compilation of referrals from October 24, 1974, to Feb-
ruary 6, 1975, significantly does not allude to any special
skills or abilities required for the jobs there described.
(c) O'Connor further testified that sometimes he sent
out an applicant who signed after Owchariw because such
applicant was the only one in the day room when O'Con-
nor went there. Thus O'Connor assigned Zimmerman, who
signed as number 26 on December 23, 1974, even though
Owchariw signed as number I on that day, to a job be-
cause, according to O'Connor, Zimmerman "was probably
the only one available." But I credit Owchariw that he was
in the dayroom and available at the time. Hence I find that
Owchariw was available on this occasion and that the fail-
ure to send him out was discriminatory.
(d) On December 19, 1974, Owchariw was the second
applicant to sign the referral list and Racon the last. Yet
O'Connor had "no recollection" why Racon, rather than
Owchariw, was selected on this day. I find this was dis-
criminatory. And on December 23 Owchariw, who signed
1st, was not sent out, but Caruso, who signed 14th, was
selected by O'Connor over Owchariw. But O'Connor gave
no reason in his testimony why he selected Caruso and
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to send out Owchariw . I find this also discriminated
against Owchariw.
(e) On said December 23 O'Connor referred Gregory to
a job although Gregory was next to the last on the referral
list for that day. O'Connor justified this on the ground that
Gregory was to be the foreman on the job. I find that this
was proper since O'Connor may choose anyone he wants
to be foreman and is not obligated to have the foreman
sign ahead of any other applicant on said referral list.
Hence I find that Owchariw was not discriminated against
when Gregory was selected for this job.
(f) O'Connor mentioned one instance of a man referred
ahead of Owchariw although the latter had signed before
that man because the person so referred was a member of
a minority. But O'Connor failed to give any details indicat-
ing what minority such man belonged to and what quota
had been established for such minority. Accordingly, I find
that no satisfactory reason has been advanced for failing to
extend to Owchariw the priority granted by the contract to
those who sign the referral list ahead of others . See General
Counsel 's Exhibit 12 for the referrals of others than Ow-
chariw since October 24, 1974.
(g) According to O'Connor one of those sent ahead of
Owchariw was an apprentice . I find that this was nondis-
criminatory, even though Owchariw signed ahead of such
apprentice , since the contract in articles III and IV of the
contract recognizes apprentices as a class by themselves.
3. As to whether the foregoing discriminatory conduct
contravenes the Act
On April 16, 1974, Owchariw filed a charge (Case 22-
CB-2663) alleging that the Respondent failed to refer him
to jobs in violation of Section 8(b)(I)(A) of the Act. See
General Counsel's Exhibit 9. And on March 21, 1974, he
wrote to the International Brotherhood of Electrical Work-
ers that Respondent Local 675 discriminated against him
in referring him to jobs as said Local 's "Business Agent
sends only those men out to work that he likes ." See Gen-
eral Counsel 's Exhibit 4. The question then is whether the
foregoing charge and complaining letter contributed en-
tirely or substantially in causing O'Connor to discriminato-
rily refuse or fail to refer Owchariw to jobs on those occa-
sions when , as found above , someone who signed the
referral list after Owchariw was sent out on a job.
A critical examination of the record warrants the infer-
ence-and I draw it-that the above -described charge and
complaining letter at least substantilly caused O'Connor
not to refer Owchariw to jobs when it was Owchariw's turn
to be sent out according to his signature 's place on the
referral list. In drawing this inference I have not credited
O'Connor's explanation , except on one occasion , as to why
he referred persons on the list whose signatures appear af-
ter Owchariw's. The one referral on which I credit O'Con-
nor is when he sent out an applicant on a job to be fore-
man; and , as found above , I have found this referral to be
nondiscriminatory even though such foreman signed the
referral list after Owchariw . However , merely discrediting
O'Connor, without more , is insufficient to establish the
motive behind his not sending out Owchariw.
But when an explanation is not credited the fact that it is
rejected may be considered with other evidence to de-
termine the actual reason for not referring Owchariw when
his name was on the referral list ahead of those sent out.
Thus I find that after October 22, 1974, Owcahriw worked
only 8 hours , i.e., on December 17, and has not been re-
ferred to any job since then . See General Counsel 's Exhibit
3 for his referrals from October 9, 1972, to the date of the
hearing of this case in late October , 1975. Since I have been
unable to accept O'Connor 's explanations (except that for
one referral ) as to why Owchariw has not been referred to
a job since said October 22 (except for an 8-hour job on
December 17) I believe I am justified in concluding, and
that it is reasonable to infer , that Owchariw's above charge
and letter caused O 'Connor to refuse or fail to refer Ow-
chariw to a job on those occasions when those who signed
the referral list after him were selected for jobs. This infer-
ence is in my opinion justified because Owchariw, who
fairly regularly was sent out on jobs from October 9, 1972
to October 22, 1974 (see G.C.Exh. 3 for a complilation of
such jobs), has not been sent out (except for a I-day job on
December 17, 1974), on a job since October 22 , 1974. See
also General Counsel's Exhibit 13, which is a record kept
by Owchariw.
4. As to whether Owchariw should have submitted his
grievance to the referral appeals committee
When Owchariw wrote to the International of Local 675
on March 21, 1974 (see G.C.Exh. 4), he was advised by the
International 's vice president letter of April 9, 1974, "that
your complaint concerning the administration of the refer-
ral procedure by Local No . 675, IBEW should be taken up
with the Referral Appeals Committee, which is specifically
constituted to handle such matters ...." See General
Counsel's Exhibit 6. Admittedly Owchariw did not submit
a "complaint concerning the administration of the referral
procedure" to said referral appeals committee . But I am of
the opinion that such inaction on his part does not prevent
the Board from passing upon the merits of the charge
which led to the present hearing . This is because I have
been unable to find any grievance procedure in the con-
tract (see G .C.Exh . 2) which applies to the facts found
herein . It follows , as far as I can ascertain , that Collyer
Insulated Wire, 192 NLRB 837 (1971), does not prevent me
from passing on the merits of Owchariw's charge. Conse-
quently I do not pass upon the question of whether Local
675 has waived a possible Collyer defense as it has not
affirmatively pleaded it in its answer.
Finally , I find that Owchariw was not discriminated
against "because he engaged in other activity protected by
the Act," as alleged in paragraph 15, or that Local 675 "did
cause employer-members of NECA to discriminate"
against Owchariw to encourage membership in Local 675,
as alleged in paragraph 18, of the complaint . This is be-
cause evidence to sustain such allegations is absent from
the record.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section III,
above , occurring in connection with the operations of
NECA and its constituent members as described in section
LOCAL UNION 675, ELECTRICAL WORKERS
I, above , have a close , intimate , and substantial relation-
ship to trade , traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in un-
fair labor practices I shall recommend that it be ordered to
cease and desist therefrom and that it take specific affirma-
tive action, as set forth below, designed to effectuate the
policies of the Act.
In view of the finding that Respondent discriminated
against Owchariw by not referring him when he was enti-
tled to be sent out on a job, it will be recommended that he
be considered for such referral without any discrimination.
It will further be recommended that he be made whole for
any loss of earnings suffered by reason of the discrimina-
tion against him. In making him whole Respondent shall
pay him a sum of money equal to that which he would
have earned if he had been referred without discriminating
against him , less his net earnings during such period. Such
pay, if any, is to be computed on a quarterly basis in the
manner established by F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at 6 percent calcu-
lated according to the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Finally, it will be rec-
ommended that Respondent post appropriate notices.
Upon the facts developed by this record Respondent's
conduct does not in my opinion demonstrate a general dis-
regard or hostility to the Act, and I so find. Accordingly, I
find that a broad remedial order against Respondent is not
warranted . Rather, I find that it will effectuate the policies
of the Act to enjoin Respondent from repeating the type of
unfair labor practice heretofore found as to any applicant
for work signing its referral list.
Upon the foregoing findings of fact and the entire record
in this case I make the following:
CONCLUSIONS OF LAW
1. Local 675 is a labor organization within the meaning
of Section 2(5) of the Act.
2. NECA and its constituent members , including
S & M, are employers within the meaning of Section 2(2),
and are engaged in commerce as defined in Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction over Respondent in this pro-
ceeding.
3. At all times material Theodore Owchariw was an ap-
plicant for employment who signed the Local 675 referral
list. Said list was maintained by Local 675 pursuant to its
collective-bargaining contract with NECA. Said contract
provides that Local 675 shall operate an exclusive hiring
hall for NECA and its constituent members.
4. By discriminating against Owcahriw by not referring
him to jobs when his name was reached on the referral list,
because he filed a charge with the Board and also com-
plained to the International of Local 675 that Local 675
1507
was not impartial to applicants signing said Local's referral
list, Local 675 restrained and coerced Owchariw in the
exercise of rights guaranteed to him in Section 7 of the Act.
5. By restraining and coercing Owchariw in the manner
set forth in paragraph 4, supra, Respondent has engaged in
unfair labor practices proscribed by Section 8(b)(1)(A) of
the Act.
6. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
7. Respondent has not committed any other unfair labor
practicies alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'
Respondent , Local Union 675, International Brother-
hood of Electrical Workers, AFL-CIO, Elizabeth, New
Jersey, its officers , agents, and representatives , shall:
1. Cease and desist from failing or refusing to refer to a
job Theodore Owchariw or any applicant signing its refer-
ral list when his name or the name of such applicant is
reached on said referral list, except to the extent that the
collective-bargaining contract providing for such a referral
list lawfully authorizes some other applicant to be referred
ahead of any applicant on said referral list.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Notify Theodore Owchariw that when his name is
reached on Respondent 's referral list he will be sent to a
job unless under the collective-bargaining contract some-
one signing after him is lawfully entitled to be sent out
before him.
(b) Make Theodore Owchariw whole for any loss of pay
he may have suffered , with interest at the rate of 6 percent,
by reason of Respondent 's discriminating against him, as
provided in the section above entitled "The Remedy."
(c) Post at its business offices, its referral hall, and its
dayroom , copies of the attached notice marked "Appen-
dix." 3 Copies of said notice , provided by the Regional Di-
rector for Region 22 , after being signed by a duly author-
ized representative of Respondent , shall be posted by it
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to members are custom-
arily posted . Reasonable steps shall be taken by Respon-
2 In the event no exceptions are filed as provided in Sec. 102.46 of the
Board's Rules and Regulations . the findings, conclusions, and the recom-
mended 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 purpos-
es.
7 In the event 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."
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent to insure that said notices are not altered , defaced or have been taken to comply herewith.
covered by any other material. IT IS FURTHER RECOMMENDED that the complaint be dis-
(d) Notify the Regional Director for Region 22, in writ- missed insofar as it alleges unfair labor practices not found
ing, within 20 days from the date of this Order, what steps herein.