Local Union 8, IBEW

National Labor Relations Board - Board Decisions

Dec 15, 1975

221 N.L.R.B. 1131 (N.L.R.B. 1975)

LOCAL UNION 8, IBEW 1131
Local Union 8, International Brotherhood of Electrical
Workers (Romanoff Electrical Corp.) and John D.
Hayes and Toledo Electrical Contractors Associa-
tion, Inc., Party in Interest
Romanoff Electric Corp. and Darrell Wayne Elliott
Local 8, International Brotherhood of Electrical
Workers (Romanoff Electric Corp .) and Darrell
Wayne Elliott and Toledo Electrical Contractors
Association , Inc., Party in Interest. Cases 8-CB-
2065, 8-CA-8674, and 8-CB-2495
December 15, 1975
DECISION Af 4D ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 30, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondents Romanoff
Electric Corp. and Local 8, International Brother-
hood of Electrical Workers filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith.
As a member of the Toledo Electrical Contractors
Association, Romanoff has had collective-bargaining
agreements with Local 8 for many years. These
agreements contain union-security provisions and
exclusive hiring hall provisions which set forth four
classifications of employees in descending order of
priority for referral to jobs. The current collective
agreement makes the following distinctions between
group I and group II applicants: I
Group I. All applicants for employment who have
four or more years experience in the inside
electrical construction trade, are residents of the
geographic areas constituting the normal con-
struction labor market, have passed an inside
journeymen's examination given by a duly consti-
tuted Labor Union of the I.B.E.W. and who have
been employed for a period of at least two years
in the last three years under a collective bargain-
ing agreement between the parties in disagree-
ment.
Group II. All applicants for employment who
have four or more years experience in the inside
electrical construction trade, and who have
passed an inside journeymen's examination given
by a duly constituted Local Union of the I.B.E.W.
The operative distinction herein is that group I
Includes journeymen residents in the Toledo area
while group II includes nonresident journeymen.
Applicants for employment must be selected and
referred without discrimination by reason of mem-
bership or nonmembership in the Union.
All employees are entitled to "scheduled overtime"
on projects which operate regularly on workweeks of
more than 40 hours. However, other projects require
"unscheduled overtime" in the event that such
operations require work beyond the regularly sched-
uled hours. Nineteen years ago the labor-manage-
ment committee established under the contract,
adopted a practice by which priority for unscheduled
overtime is given to members of group I; i.e., area
residents.2 The parties stipulated that unscheduled
overtime is not offered to applicants from groups
other than group I until the list of group I applicants
has been exhausted.
Respondents testified without contradiction that
the overtime assignment policies were adopted to
ensure an adequate supply of reliable labor to finish
projects, and contend that the priority "insures for
the, employer a loyal, ready pool of local residents
who will remain on the job until completion. For the
Union that is composed of local residents, it provides
a mechanism whereby its members receive prefer-
ence on a limited assignment of unscheduled
overtime." The Administrative Law Judge, however,
found that "the inherent illogicality and incredibility
of Respondents' explanation convinces me that the
preference here involved constitutes `action by a
union that impinges upon the employment relation-
ship which is arbitrary, invidious, or irrelevant to
legitimate union interests.' " Accordingly, the Ad-
ministrative Law Judge found that the Union
violated Section 8(b)(1)(A) and (2) and Romanoff
violated Section 8(a)(3) and (1) of the Act by
granting preference to area residents in the assign-
ment of unscheduled overtime.
As found by the Administrative Law Judge, absent
a finding of pretext or sham, preferential hiring or
job retention based on an objective criterion,
particularly in the construction industry, would not
be violative of the Act. A Priori, the preferential
' Only the first two classifications are relevant to the instant considera-
tion
2 The collective-bargaining agreements themselves , however, have never
expressly so provided.
221 NLRB No. 180
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment of unscheduled overtime should not
constitute an unfair labor practice where it is based
on the objective criterion of area residence. The
Board has long held that a union is not prohibited
from trying to ease the impact of local unemploy-
ment by attempting to cause employers to limit work
opportunities to strictly local applicants.3
It is clear that a union violates Section 8(b)(1)(A)
of the Act when, under an exclusive hiring agreement
with an employer, it accords its own members
preference injob referrals over nonmembers utilizing
its hiring facilities . 4 Obviously , a union which insists
upon preferential treatment of its own union mem-
bers for the performance of unscheduled overtime
work could violate the Act if, e.g., it is motivated for
the purpose of enforcing or encouraging compliance
with union-related obligations or adherence to the
union in some other respect . We agree with the
Administrative Law Judge that "a presumed or
professed concern for local unemployment cannot
prevail over proof of discriminatory intent to favor
union members." However, we find such proof
lacking in the instant case.
As found by the Administrative Law Judge , there is
no allegation in the complaint that the unscheduled
overtime was given preferentially only to local union
members and the brief of the General Counsel
requests findings of discrimination only against
"employees because they are not area residents."
Accordingly , the issue is not whether certain employ-
ees are accorded unlawful preferential treatment
because they are union members , but whether the
preferential treatment which local residents receive is
in violation of the Act. The Administrative Law
Judge first states that "it is not the Board's function
to second-guess the wisdom of measures adopted by
the parties to solve known problems ,"5 but subse-
quently finds that "the absence of any rational nexus
between a supposed problem and a purported
remedy certainly suggests that the proffered explana-
tion is sheer pretextual rationalization or cover-up of
impermissible motivation ." The Administrative Law
Judge rejected Respondents ' uncontradicted testimo-
ny that the unscheduled overtime assignment policy
here involved was adopted to assure an adequate
supply of reliable labor to finish projects and to
ensure the Employer a loyal, ready pool of local
residents who will remain on the job until comple-
tion, but finds that it is "manifestly unreasonable to
believe that granting local residents priority in
overtime work could do anything other than exacer-
bate the problem ." We are unable to agree with her
finding that there is no "rational nexus between the
problem and the remedy" or that the proffered
explanation is "sheer pretextual rationalization of
impermissible motivation ." Respondents state, and it
is not disputed, that travelers are less dependable
than area workers and that local' experience has
indicated that job completion schedules are usually
met with area men and not travelers. Consequently,
they accord preferential treatment in the assignment
of unscheduled overtime to employees residing in the
area. Such discrimination is clearly not per se
unlawful nor does the nexus seem so suspicious as to
require the Board to substitute its wisdom for that of
the parties. In summary, we are not satisfied that the
record indicates that Respondents had an unlawful
purpose in their policy of according preferential
assignment of unscheduled overtime to area resi-
dents. In making this evaluation, we find that
Respondents had a legitimate interest in favoring
residents of the area and further find that the
General Counsel did not meet its burden of proving
that Respondents acted unlawfully in fulfilling such
interests. Accordingly, we find that Respondent
Union did not violate Section 8(b)(2) and (1)(A) of
the Act by causing Respondent Romanoff Electric
Corporation to give preference in the assignment of
unscheduled overtime to local area employees and
that Respondent Romanoff Electric Corporation did
not violate Section 8(a)(3) and (1) of the Act by
giving preference in the assignment of unscheduled
overtime to local area employees. For the reasons
stated above, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
3 See, e.g, Local Union No 337, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO (Townsend and Bottum, Inc), 147 NLRB 929 (1964).
d Local Union 99, International Brotherhood of Electrical Workers, AFL-
CIO (Crawford Electric Construction Co ), 214 NLRB No 28 (1974)
5 Chicago Federation of Musicians, Local 10, American Federation of
Musicians (Shield Radio & TV Productions, Inc, et al ), 153 NLRB 68
(1965)
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: On
March 19, 1973, John W. Hayes filed with the Regional
Director for Region 8 a charge against International
Brotherhood of Electrical Workers Local Union 8 (the
Union), alleging violation of Section 8(b)(1)(A) of the Acti
since September 19, 1972, specifically by failing to process
grievances for Hayes, by discriminating in the operation of
its exclusive hiring hall, and by discnininating against
"travelers" in enforcing the collective-bargaining agree-
1 National Labor Relations Act, as amended (29 U S C Sec 151, et seq.)
LOCAL UNION 8, IBEW
ment with respect to travel time. On June 25, 1973, Darrell
W. Elliott filed with the Regional Director for Region 7
charges against the Union and Romanoff Electric Corp.,
alleging that since August 1972 the Respondents had
"followed a discriminatory practice of giving preference in
overtime assignments to members of Local 8 . . . over
travelers" and that on January 8, 1973, the Company had
discharged Elliott because he "voiced criticism of its
discriminatory overtime practices." A complaint was
issued pursuant to Hayes' charge on August 14, 1974. On
October 18, 1974, Elliott's charges were transferred from
Region 7 to Region 8. On January 8, 1975, the three cases
were consolidated and a consolidated complaint was issued
thereon.
Pursuant to due notice, a hearing was held before me in
Toledo, Ohio, on April 9, 1975. Except for Charging Party
Hayes, who failed to appear despite having been subpe-
naed, all parties were present or represented by counsel
and were afforded full opportunity to be heard, to present
oral and written evidence, and to examine and cross-
examine witnesses . The parties waived oral argument. Post
hearing briefs have been filed on behalf of the General
Counsel and both Respondents.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs, I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Romanoff Electric Corp., an Ohio corporation, with
its principal office and place of business in Toledo, Ohio, is
engaged in the business of performing electrical contract-
ing in the building and construction industry. During the
calendar year 1973 Respondent-Employer received materi-
als and supplies valued in excess of $50,000 at its
construction site in Monroe, Michigan, directly from
points outside Michigan. During the years 1972 and 1973
Respondent-Employer performed services valued in excess
of $50,000 for public utility corporations located outside
the State of Ohio, such as Detroit Edison, Detroit,
Michigan, which annually has a gross volume of business
in excess of $500,000 and receives materials at its Michigan
location valued in excess of $50,000 directly from points
outside Michigan. Respondent-Employer is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. Respondent Union is and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that Respondents
violated the Act by maintaining and enforcing an agree-
2 In their briefs Respondents request dismissal of "all charges filed on
behalf of John D. Hayes" because his failure to appear "denied both
respondents the opportunity to face its accuser and examine him regarding
his allegations" or "rebut his allegations ." Obviously there is no occasion to
"rebut" evidence which has not been presented or to cross-exarmne
"witnesses" who have not testified And it is not essential that the
1133
ment whereby all unscheduled overtime work is assigned to
employees "who are area residents" to the exclusion of
"similarly qualified non-area residents" and that Respon-
dent-Employer discriminated against Charging Party
Elliott by denying him overtime work and by discharging
him on January 8, 1973, for protesting the preferential
assignment of overtime to area residents.
A. Case 8-CB-2065 - John D. Hayes
As previously stated, Hayes filed a charge against
Respondent Union. But neither the original complaint nor
the consolidated complaint sets forth any facts concerning
him. At the hearing no evidence was adduced concerning
him or connecting him with the matters litigated . Although
counsel for the General Counsel in her brief requests a
make-whole remedy for Hayes, there is nothing in the
consolidated complaint or in the evidence which would
support any such specific relief.
It is true that Hayes' charge would support a complaint
against Respondent Union even without any showing of
personal interest in the matter . However, Elliott 's charge is
sufficient to support the relevant allegations in the
consolidated complaint.
Because of his failure to appear at the hearing in
response to a subpena , or to indicate in any other manner
any continuing interest in the matter , it is believed that
Hayes is no longer entitled to status as a party in this
proceeding. Accordingly, I shall recommend dismissal of
Case 8-CB-2065.2
B. Cases 8-CA-8674 and 8-CB-2495
1. The evidence
Apparently for many years , Romanoff, as a member of
the Toledo Electrical Contractors Association, Inc., has
had collective-bargaining agreements with Local 8,
I.B.E.W. The agreements , including the one covering the
period here involved , contain- exclusive hiring hall and
union-security provisions.
The hiring hall provision sets forth four classifications of
employees, in descending order of priority for referral to
jobs. Only the first two classifications are involved in the
present case. Group I embraces journeymen electricians3
with 4 or more years of experience who "are residents of
the geographic area constituting the normal construction
labor market [within Local 8's jurisdiction ] . . . and who
have been employed for a period of at least two (2) years in
the last three -(3) years under a Collective Bargaining
Agreement between the parties to this agreement." Group
II includes all journeymen applicants with 4 or more years
of experience. In short, so far as here relevant, Group I
covers journeymen residents in the Toledo area, while
Group II includes nonresident journeymen (so-called
travelers). The section on referral also provides that "The
Union shall select and refer applicants for employment
allegations of a complaint be proved through testimony of the Charging
Party . My recommended dismissal Case 8-CB-2065 thus is not based on
acceptance of Respondents ' arguments
3 "Journeymen" refers to people who "have passed an inside journey-
man's examination given by a duly constituted Local Union of the
I B.E W."
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without discrimination against such applicants by reason
of membership or non-membership in the Union."
The contract provides a basic workweek of five 8-hour
days. 'Overtime is paid at twice the straight hourly rate.
There is also a spread-the-work provision for a reduction of
the normal workday to 7 hours whenever more than 35
members of Respondent Union have been out of work for
more than 30 days. The contract also provides: "It is
mutually agreed by the parties hereto that overtime work is
generally undesirable and should be discouraged except
when absolutely necessary."'Donald R. DeBolt, Local 8's
business manager, testified that overtime is "discouraged."
However, some projects within the area, principally large
ones, operate on a regularly scheduled workweek of more
than 40 hours for varying periods of time. Frequently a
large construction project begins with a regularly sched-
uled workweek of more than 40 hours for the purpose of
attracting out-of-town workers (or travelers), and then,
after an adequate pool of workers has been recruited, the
scheduled hours are cut back to 40 per week. Some projects
also operate regularly on workweeks of more than 40 hours
if and when necessary to meet production dates or for
similar reasons. In these instances all employees work
"scheduled overtime." The project here involved was on a
straight 40-hour-per-week schedule. From time to' time
particular operations require some work beyond the
regularly scheduled hours. On these occasions some
employees, less than the total work force, are called upon
on an ad hoc basis. It is this latter type of overtime work,
called "unscheduled overtime," which is involved in 'the
present case?
Although the collective-bargaming agreements them-
selves have never expressly so provided, some 19 years ago
the labor-management committee established under the
contract adopted a practice by which priority in unsche-
duled overtime is given to members of Group I; i.e., area
residents 5 The complaint alleges, and the General Counsel
contends, that Group I members were given "exclusive
rather, than merely "preferential" assignment to unsche-
duled overtime. This contention is supported by Elliott's
testimony that early in his employment he was told by
Robert Beck, the union steward, that "there wasn't any
overtime list except for the local people." However, DeBolt
testified that "Travelers have been given unscheduled
overtime." 6 Without necessarily discrediting Elliott's testi-
4 In her brief, counsel for the General Counsel says "It is important to
note that although there are two forms of overtime available to a contractor,
scheduled and unscheduled, the fact is that a contractor can use one or the
other, but not both, on a job " The record does not support that statement.
Specifically there is nothing to indicate that, for example, if a particular
project was working a regularly scheduled workweek of five 9-hour days it
would be prohibited from having occasional unscheduled overtime
performed during the weekend This matter, however, is immaterial in this
case.
5 The classifications in the contract refer only to "applicants for
employment " Presumably, however, travelers remain nonresidents while
working in the area
6 On cross -examination by counsel for the General Counsel, DeBolt
testified
Q But since 1956 or 1957, or for twenty years, travelers in this
area have not been permitted to have unscheduled overtime9
A That is not true
Q I am sorry Since that time, priority has been given to area
residents, Group 19
mony as to Beck's statements (although I found Elliott a
generally unreliable witness), I credit DeBolt and thus find
that area residents are given priority in assignment of
unscheduled overtime but travelers are not totally in
assignment of unscheduled overtime but travelers are not
totally excluded.? Indeed, the parties stipulated that "Only
when [the list of] Group I applicants [is] exhausted is
unscheduled overtime offered to applicants from other
groups." DeBolt, Respondents' only witness, undertook to
explain the reason for adoption of the practice. He
testified:
The policy is, and always has been, that this
overtime is given to these people because they maintain
their residency here, they maintain the job, they come
on the job they stay on the j ob.
We have to depend on these people to complete the
job, where a guest comes in here to seek employment;
and when he gets ready to go, he can just up and go. He
don't care whether he leaves today or tomorrow, where
the man who has his home here and his family here, he
is devoted to the contractor, and we depend upon him
to finish thatjob and need him. That is why.
On cross-examination, he testified that through his many
years of experience in the industry in numerous capacities
(as employee and as both union and management
representative) he had learned that travelers cannot be
relied on to remain and finish a job. He testified in part:
unscheduled overtime is only for the group 1
people,8 and I says why they keep it is it should be the
people who have residencies here and maintain here
and are steadily employed here, and the contractor
depends upon them to finish the job, where a traveler, if
he hears of another job on, overtime of greater degree or
,higher rates of pay -
At another point he testified:
Men come to me and say, is that all you got, forty
hours, I'm leaving. Or if they go on a job and see it is
overtime, they say, as soon as the overtime is over, I am
going to leave, leave your jurisdiction.
"A Since my history that has been given as I so stated
Q But in your area, Mr. DeBolt, travelers haven't been given that
unscheduled overtime for quite some time, is that correct9
7
A. That is not correct Travelers have been given -
Q. I mean priority on unscheduled overtime, is that correct[9]
A Travelers have been given unscheduled overtime
It would appear virtually irrational for either the Union or the
employers to preclude the possibility of having travelers work overtime if
and when there are not enough Group I employees available to meet
particular needs
8 This passing statement that "unscheduled overtime is only for the
group 1 people" is insufficient to nullify the more specific testimony that
Group II members have been assigned overtime work after Group I's
priority has been met.
LOCAL UNION 8, I-BEW
Charging Party Elliott is a resident of Texas and a
member of Local 479, I.B.E.W. He falls within Group II
under Respondent's contract. In July 1972 he was hired by
Romanoff for work on construction of the Maumee
Powerhouse project, a large power generating project in the
Toledo, Ohio, area. Of the approximately 200 electrical
workers employed there, roughly half were area residents
and half were travelers. The project consists generally of
two parts: the interior of the powerhouse itself and a
"precipitator" outside. Work on the precipitator is dirtier
and harder than that on the powerhouse and, accordingly,
work on the precipitator carries a premium wage rate.
From the beginning, Elliott worked on the precipitator and
some 90 to 95 percent of his work was compensated at the
10-percent premium rate. Elliott testified that employees
were regularly assigned to, either part of the project with
little or no interchange between the two .9
When Elliott reported to work on Monday, January 8,
1973, he observed that considerable work had been
performed on the precipitator on the weekend. On being
assigned, to work on the precipitator, where he had always
previously worked, he protested, saying that "if the local
men were good enough to work out there during the
weekends, they could work out there during the week."
Elliott said he was willing to work inside, on the
powerhouse, but would not work on the precipitator any
longer . According to Elliott, his foreman, Lee Mientkiewiz,
then said: "I guess I'll have to fire you." Thereupon the
foreman left to consult William Dworzak, the superinten-
dent. The foreman soon returned to say that there was no
other work available and therefore, since Elliott refused to
work on the precipitator, he should go get his pay and
termination slip. Elliott then went to the office. According
to Elliott, Dworzak asked what the trouble was and Elliott
said he refused to work on the precipitator, to which
Dworzak replied that there was no other work available
and he "didn't need [Elliott and a colleague] to run hisjob
or his local union."
On cross-examination, Elliott acknowledged that in a
preheating affidavit he said "we had quit because the local
men had worked up there Saturday and Sunday." At the
hearing Elliott also inadvertently disclosed that he had quit
the' job. In explaining why he had not signed the Union's
out-of-work list after the termination, he said: "I went back
and there was this other guy that had quit - had got fired
at the same time as I did -."
The General Counsel adduced some testimony from
Elliott apparently designed to establish that thereafter the
Union discriminatorily refused to refer Elliott to jobs.
However, the complaint contains no such allegation.
Additionally, at the hearing Elliott conceded that he did
not seek employment in the Toledo area after January 8,
1973. There is no evidence establishing any discrimination
in referrals to jobs.
9 In her brief, counsel for the General Counsel says: "The `travelers' or
Group II , were assigned to work on a precipitator ." However , the record
does not affirmatively establish any such general pattern of Job assignment.
While it appears that there were around 100 travelers on the job, Elliott
testified that on January 8, 1973, there were "probably around fifty" people
1135
2. Discussion and conclusions-
a. Alleged discriminatory discharge
The complaint alleges and the General Counsel main-
tains that the Union caused Romanoff to-discharge Elliott
because of his protest against the preferential assignment
of overtime to members of `Group I. But the evidence
unquestionably establishes that Elliott quit his job. It may
be conceded that Elliott could not legally be fired for
protesting the method of allocating overtime even if that
method was perfectly legal. Local Union No. 444, Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Gust K Newberg Construction Compa-
ny, 174 NLRB 1108 1969, enfd. 426 F.2d 229 , (C.A. 7,
1970). But an employee's protected right to protest does
not embrace the self-help remedy of quitting. It is well
established that an employee who quits iii anticipation, of
an unlawful discharge or in protest against unfair labor
practices is not deemed to have been constructively
discharged. Walker Electric Company, 142 NLRB 1214,
1215 (1963); Coats & Clark, Inc., Clarkdale Plant 113
NLRB 237, 238 (1955), enfd. in pertinent part 241 F.2d 556
(C.A. 5, 1957); Action Wholesale Co., Inc., d/b/a A. L.
French Co., 145 NLRB 627 (1964), enfd. 342 F.2d 798 (CA.
9, 1965); Acute Systems, Ltd., d/b/a McDonald's, 214
NLRB No. 127 (1974).
Even if it were to be found that Elliott was fired, I should
hold that his discharge was not violative of Section 8(a)(3)
of the Act. It is undisputed that on January 8, 1973, he
refused to work on the precipitator, where he was assigned.
His termination slip reports - as the reason for the
termination: "Refused job assignment, reason is Local 8
men worked overtime Saturday and Sunday." It is
generally entirely proper for an employer-to discharge, an
employee for refusal to execute a reasonable assignment. I
know of no authority which would render this principle
inapplicable where, as here, the employee's refusal was in
protest against some other, essentially unrelated, conduct
by the employer.i0
Overtime assignment practiceb.
In her brief counsel for the General Counsel argues:
The classifications in the contract between the Associa-
tion and the Union are only permitted as a result of the
specific statutory exception found in Section 8(f).
Without the exception provided in the' Act the
classifications themselves would be discriminatory
under 8(b)(1)(A) and 8(b)(2) of the Act.
No supporting authority is cited. Although Respondents
do not appear to disagree with the General Counsel's
position, it appears to be inaccurate . Section 8(f), added to
the Act in 1959,11 contains at least some provisions which
would be the law without that section. For, example,
Section 8(f) authorizes agreements for exclusive hiring halls
working on the precipitator.
50 There is no contention or evidence that Elliott was engaged in a
protest strike On the contrary , he requested powerhouse work that day
' P.L. 86-257, 73 Stat. 519. -
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the construction industry, although such agreements are
permissible without any such special statutory authoriza-
tion. Local 357, ' International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America [Los
Angeles - Seattle Motor Express], v. N.L.R.B., 365 U.S. 667
(1961).
- While Board cases sustaining geographical classifications
have most often arisen in the construction industry, the
decisions do not appear to have rested on Section 8(f). For
example, in Local 369, International Hod Carriers Building
and Common Laborers Union of America, AFL-CIO
(McCloskey Construction Corp.), 147 NLRB 1209 (1964),
Section 8(f) was not even cited. In Bricklayers, Masons and
Plasterers' International Union of America, Bricklayers,
Masons, Marble Masons, Tile Layers and Terrazza Workers
Union No. 28, AFL-CIO (Plaza Builders, Incorporated), 134
NLRB 751 (1961), the Board adopted Trial Examiner
Gilbert's decisionwhich said (at 754): "Absent any finding
of pretext or sham, I am of the,opinion that preferential
hiring or job retention based upon an objective criterion
such as area residence, particularly in the construction
industry, would not be violative of the Act." In Bricklayers,
Masons and Plasterers International Union of America,
Local No. 15, (Park Construction Company), 150 NLRB
1496 (1965), holding that a umon had not violated the Act
in requiring the hiring and retention of resident employees
in preference to nonresidents, the Trial Examiner said (at
1502): "The Act does not ... proscribe either discrimina-
tion or coercion of discrimination; the prohibitions of the
Act run against encouragement or discouragement of
membership in a labor organization. . . . The Respondent
here sought something different from enforcement of a
union-security provision; it sought employment of a man
from its, own area.' But in light of the statutory policy set
forth in Section 8(f) permitting agreements according
priority in referral to employees of a particular geographi-
cal area, it cannot be said that the Respondent's aim was
repugnant to the policies of the law." In adopting and
supplementing the Examiner's decision, the Board did not
refer to Section 8(f). See also Bricklayers, Masons and
Plasterers' International Union of America, Local No. 2,
AFL-CIO (Wilputte Coke Oven Division), 135 NLRB 323,
324 (1962), ' in which the Board, reversing the Trial
Examiner, found no violation of the Act because it could
not "infer that the layoff ... was caused by anything other
than a desire, in an area of substantial unemployment, to
retain available work for residents of the area." The Board
made no reference to Section 8(f). See also Local 542,
International Union of Operating Engineers (Koppers Co.,
Inc.) 117 NLRB 1863, 1869 (1957), enfd. 255 F.2d 703
(C.A. 3, 1958), decided in 1957 and assuming the propriety
of classifications, based on residence before 1959.
Thus it is unnecessary to decide whether, as maintained
by the General Counsel, Section 8(f)(4) is applicable only
to contractual provisions for hiring hall referrals (and,
apparently, layoffs). Cf. Union,No. 444, Iron Workers (Gust
K. Newberg Construction Co.), supra, 174 NLRB at 1110,
footnote 13. Whether the overtime policy here involved
violates the Act is to be resolved by general principles
12 It may be noted in passing that in Motor City, Local 58, LB E.W., A
sister local of the present Respondent Union, settled the complaint against
evolved in the administration of the Act, rather than
merely by analysis of the wording and legislative history of
Section 8(f)(4).
It has frequently been repeated that "discrimination at
the instance of a union is not per se an unfair labor
practice." Marquette Cement Manufacturing Company, 213
NLRB 182 (1974). The General Counsel does not question
the propriety of the classification of job applicants for
referral to employment through the hiring hall. In hiring
hall or job referral cases, the relevant question is whether
the union "was legally motivated by the [employees']
residence outside the local geographical area or illegally
motivated by their lack of membership in" the umon.
Metropolitan District Council, United Brotherhood of Car-
penters (Stump), 194 NLRB 159, fn. 2 (1971). An ostensible
geographical classification cannot validate conduct which,
as a matter of fact, is directed toward favoring union
members over nonmembers. N. L. R. B. v. Local No. 2, of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada AFL-CIO, 360 F.2d 428 (C.A. 2, 1966). If that
motivation is shown, it will be presumed that the action
encourages union membership within the stricture of
Section 8(a)(3) of the Act, even where the discriminatees
have been refused membership in the Union. The Radio
Officers' Union of the Commercial Telegraphers' Union,
A.F.L. V. N.L.R.B., 347 U.S. 17, 51 (1954); N. L.R.B. v.
Local 11I United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, et al, Clenenski Construction Co. 278
F.2d 823, 825 (C.A. 1, 1960).
There also can be no question that a classification
purportedly based on the employees' residence cannot be
used to cover up discrimination in favor of union members
as against nonmember travelers in the assignment of
overtime. Motor City Electric Company, 204 NLRB 460
(1973) (Sec. 8(a)(3) and (1));12 Air Conditioning, Refrigera-
tion and Steamfitters Local Union No. 725 etc. (Bechtel
Corp.), 194 NLRB 1089,(1972) (Sec. 8(b)(2) and (1)(A)).
Motor City and Bechtel are not determinative precedents in
the present case because in both cases it was assumed that
"travelers" were distinguished from "members of the
union" and therefore discrimination between the two
classes, if shown, would unquestionably violate the Act.
It might well be, as discussed'below, that the record in
the present case would warrant an inference, as the
General Counsel's brief states, that unscheduled overtime
was given preferentially (or even exclusively) "'to only local
union members." The insurmountable problem on this
view, however, arises from the fact that the complaint
contains no such allegation. Indeed, the General Counsel's
brief requests findings of discrimination only against
"employees because they are not area residents."
It has never been held that preferences afforded area
residents are per se invalid. 'Cf. Bobby Nick Ward v.
N.L.R.B., 462 F.2d 8, 9, fn. I (C.A. 5, 1972). At least where
referrals to employment are involved, the General Counsel
must ",prove by a preponderance of the evidence that
Respondent's motive'... was to seek preference for its
members rather than for local' area men." Bricklayers,
it alleging violation of Sec. 8(b)(I)(A) and (2)
LOCAL UNION 8, ,iBEW
Local 15, (Park Construction Company), 1500, supra, That
"Group I" and "Union members" may, as a matter of fact,
be coextensive classes, does not supply the missing
allegation or proof as to motivation, the determinative fact.
Cf. Bricklayers, Local 28 (Plaza Builders, Inc.), 134 NLRB
751, 753, (1961); International Union of Operating Engi-
neers, Local No. 98, AFL-CIO (Consolidated Gas and
Service Co.), 155 NLRB 850, 852 (1965).
If there has been any violation of the Act in the present
case, it must stem from the Union's'breach of its duty of
fair representation, the Board's formulation of that
principle having originated in Miranda Fuel, Co., 140
NLRB 181 (1962), erif. denied 326 F.2d, 172 (C.A. 2, 1963).
As recently as September 5, 1974, in Marquette Cement
Mfg. Co., supra, 213 NLRB 182 (1974), a panel of the
Board (Members Jenkins, Kennedy, and Penello) em-
braced the rule of N.L.R.B. v. Local 294 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent [Valletta Motor Trucking
Co., Inc.], 317 F.2d 746 (C.A. 2, 1963), which rejected the
Board's "novel conclusion [in Miranda] .that ... a union
violates the Act if it seeks ,unfair discrimination, even if
that discrimination is not based on union membership or
activity" and held, to the contrary, that "Referral by the
union violates the Act only when there is discrimination
based upon union membership or union activity." At 749,
fn.4, 751. However, the duty of fair representation within
Miranda has been enforced to censure discrimination by
unions on the basis of sex, race, and nationality Local 106
Glass Bottle Blowers Association (Owens-Illinois, Inc.), and
Local No. 245, etc., 210 NLRB 943 (1974); Pacfc Maritime
Association (Local 52, I.L. & W. U), 209 NLRB 519' (1974),
Local Union No. 12, United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO [League of Gadsen
The Business], 150 NLRB 312 (1965), enfd. 368 F.2d 12
(C.A. 5, 1966), cert. denied 389 U.S. 837 (1967);'NL.R.B.
v. I.L.A., Local 1581, 489 F.2d '635, 638 (C.A. 5, 1974).
In what appears to be its latest consideration of the
matter, the Board reaffirmed the Miranda view that the
duty of fair representation requires "avoidance of arbitrary
conduct." General Truck, Drivers, Warehousemen, Helpers
and Automotive Employees, Local 315, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Rhodes & Jamieson ,Ltd.), 217 NLRB No. 95
(1975), issued April 30, 1975. The majority of the Board
panel in Rhodes & Jamieson consisted of Members Jenkins
and Kennedy. While dissenting, Member Penello did not
express disagreement with the Miranda rule and appears to
have accepted it in General Truck'Drivers, Chauffeurs, and
Helpers Union, etc., Local 692, International Brotherhood of
Teamsters, Local 692, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America
(Great Western Unifreight System), 209 NLRB 446 (1974).
Thus, while Member Fanning apparently stands by his
original dissenting views in Miranda (see Pacific Maritime
Association, (Local 52, I.L. & W. U), supra, 209 NLRB 519
(1974), and opinions there cited), it appears that a majority
of the Board now stands foursquare behind Miranda.
While Rhodes & Jamieson concerned an individual
grievance or complaint, the governing principles are the
same for alleged group and individual discriminations. See
1137
N.L.R.B v. Local 542, International Union of Operating
Engineers, AFL, etc., [Koppers Co., Inc.] 255 F.2d 703, 705
(C.A. 3, 1958): "[I]f ... the union has in fact required the
employer to act in subservience to its referral scheme and
internal regulations, it does not matter whether the means
of coercion was a collective bargaining agreement or a
demand unsupported by any bargain." See Local 315,
Teamsters (Rhodes & Jamieson, Ltd), supra, 217 NLRB No.
95.
It thus appears that a union violates the Act when it
makes invidious or arbitrary classifications among employ-
ees.
The burden, of course, is on the General Counsel to
establish the violation; i.e., that the priority classification
followed in assigning overtime was invidious, arbitrary,
and unrelated to legitimate concerns of the union and the
employers. N.L.R.B. v. Local 2, Plumbers, supra, 360 F.2d
428. In the present case the General Counsel adduced no
affirmative evidence to establish that the classification was
arbitrary or invidious as applied to overtime assignment.
However, there may be situations in which a classification
may be so inherently discriminatory and so manifestly
unrelated to any legitimate objective as to be presumptive-
ly improper on its face. As said in Local 315, Teamsters
(Rhodes & Jamieson, Ltd), supra:
[I]f a duty to avoid arbitrary conduct, as part of an
affirmative, fiduciary responsibility, means anything, it
must mean at least that, there be a reason for action
taken . ' Sometimes the reason will be apparent, some-
times not. When it is not the circumstances may be
such that we will have no choice but to deem the
conduct arbitrary if the' union does not tell us what it is.
It may well be that, as suggested by the spread-the-work
provisions in the contract, affording priority to area
residents in referral to and retention on jobs is a legitimate
means of preserving work for local residents and prevent-
ing or ameliorating local unemployment. As said in Local
Union No. 337, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada (Townsend and Bottum, Inc.), 147
NLRB 929, 930-931 (1964): "[T]he Act doesnot prohibit a
union from trying to ease the impact of local unemploy-
ment by . . . attempting to cause employees to limit work
opportunities to strictly local applicants." Cf. International
Typographical Union, Columbus Typographical Union No. 5
AFL-CIO (Dispatch Printing Company), 177 NLRB 855,
affd. 437 F.2d 454 (CA. 6). New York Typographical Union
Number six International Typographical Union AFL-CIO
(New York Times), 144 NLRB 1555, 1558 (1963), affd. 336
F.2d, 115 (C.A. 2, 1964). But a presumed or professed
concern for local unemployment cannot prevail over proof
of discriminatory intentto favor union members.
Everett Construction Company, Inc., 186 NLRB 240
(1970), remanded sub nom. Ward v, N.L.R.B., supra, 462
F.2d 8 (C.A. 5, 1972), reversed, 198 NLRB 1113 (1972). In
Everett, the Board, reversing Trial Examiner Gillis, held
that the respondent union and employer had acted out of
concern for local unemployment rather than simply to
favor union members. The Fifth Circuit, however, held that
the Board had unwarrantedly reversed the Trial Examin-
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's credibility determinations and that there was no
substantial evidence to support the Board's finding. On the
remand, the Board accepted. the court's decision and
adopted the Examiner's order,, without expressing any
reservations.
While preference to area residents in obtaining and
retaining employment may be reasonably calculated to
prevent or ameliorate local unemployment, it is difficult to
see how preference in the allocation of overtime could
serve,such purpose. No alternative explanation for over-
time preference to area residents readily suggests -itself.
Although it is not the Board's function to second-guess the
wisdom of measures adopted by the parties to solve known
problems Chicago Federation of Musicians, (Local 10,
American Federation of Musicians (T. V. Productions, Inc.),
153 NLRB 68, 84 (1965), the absence of any rational nexus
between a supposed problem and the purported remedy
certainly suggests that the, proferred explanation is sheer
pretextual. -,rationalization or, coverup of impermissible
motivation. i3
As set forth above, Respondents maintain that the
overtime assignment policy here involved was adopted to
assure an adequate supply of reliable labor to finish
projects. As stated in the Union's brief, the priority
"ensures for the Employer a loyal, ready pool of local
residents who will remain on the job until completion. For
the Union, that is composed of local residents, it provides a
mechanism whereby its members receive preference on a
limited assignment , of unscheduled overtime."
According to DeBolt, travelers are unreliable because
they are inclined to depart for greener ' pastures when
overtime ends. Whether DeBolt was referring to scheduled
overtime (in which travelers participate equally with local
employees) or unscheduled overtime, or both, it is
manifestly unreasonable to believe that, granting local
residents priority in overtime work could do anything other
than exacerbate the problem. There was no evidence that
local residents ever leave jobs, or threaten; to do so, when
overtime is cut down or eliminated. And, as a matter of
sheer common sense, it seems most unlikely that area
residents would leave and assume the expense, inconven-
ience, and possible hardship of maintaining second
residences merely because they were denied -priority in
sporadic and infrequent unscheduled overtime. In this
connection it should be noted that, as DeBolt testified and
the collective-bargaining agreement provides, overtime
work is discouraged, and Respondent emphasizes in its
brief that very little unscheduled overtime is performed. If
Respondents were really concerned with assuring 'a
continuing adequate supply of labor, it would appear more
reasonable to afford priority in overtime to the travelers,
who generally have the additional expense of maintaining
temporary second residences and who, according to
Respondent Union's business manager, actually do quit
when overtime peters'outJ4 The inherent illogicality and
incredibility of Respondents' explanation convinces me
13 The real motive which readily comes to mind is a desire to favor
members of the Union. Federation of Telephone Workers of Pennsylvania,
Local 58 (Bell Telephone Company of Pennsylvania), 194 NLRB 461, 467
(1961); International Union of Elevator Constructors, Local No 1, AFL-CIO
(N Y Elevator Manufacturers' Association, 214 NLRB No. 51 (1974) Cf
International Longshoremen 's Association, Local No 1581 AFL-CIO
that the preference here involved constitutes `action by a
union that impinge[s] upon the employment relationship
which [is] arbitrary, invidious; or irrelevant to legitimate
union interests." Ashley, Hickham-UHR Co. (Local 1102;
Carpenters), 210 NLRB 32 (1974).
It may well be that there would be, no violation of
Section 8(a)(3) and (1) of the Act if the employer had
adopted the overtime preference, policy on its own
initiative without the instigation or agreement of the
Union. However, as said in N.L.R.B. v. I.L.A., Local 1581,
supra, 489 F.2 at 637:
Section 8(b)(2) is not concerned solely with situations
where the discrimination involved is between union
members and nonmembers, or between "-good" mem-
bers and "bad or indifferent" members . . . . It applies
where the union has induced the employer to discrimi-
nate on the basis of any invidious or arbitrary
classification ....'
Under Miranda, supra, 140 NLRB at 190, when an
employer aquiesces' in and acts pursuant to a union's
instigation of invidious discrimination, the employer
violates Section 8(a)(3) and (1). Compare Jubilee Manufac-
turing Company, 202 NLRB 272 (1973), with Pacific
Maritime Association (Local 52, I.L. & W.A.), supra.15
Contrast Locals 106 and 245, ^ Glass Bottle Association
(Owens-Illinois, Inc.), 210 NLRB 943 (1974).
On all evidence, for the reasons set forth above, I find
that the Union violated Section 8(b)(1)(A) and (2) and
Romanoff violated Section 8(a)(3) and (1) of the Act by
granting preference to, area residents in the assignment of
unscheduled overtime.
c. Denial of overtime to Elliott
The General Counsel contends that Respondents violat-
ed the Act by denying overtime work to Elliott "because he
was not a member of Group I, an area resident." There is
no doubt that Elliott was not given any unscheduled
overtime work and that he would not be given any so long
as Group I members were available for such assignment.
On the other hand, there is"no evidence that there would
have been overtime available for him in the absence of the
unlawful preference to Group I members.
The only unscheduled-overtime on the job shown by the
record was performed on the weekend of January 6-7,
1973. Although not entirely 'precise, Elliott's testimony
indicates that the work on the precipitator performed at
that time was done by employees regularly assigned to
work on the powerhouse. There was no contradiction of
Elliott's testimony that there was little' or'no interchange
between the powerhouse and precipitator crews. The
collective-bargaining agreement' contains no provision for
honoring seniority in any respect. Under these circum-
stances, it is perhaps reasonable'to assume that, in the
absence of the unlawful preference to Group I members,
(Manchester Terminal Corporation), 196 NLRB 1186; 1181 enfd. 489 F.2d
635 (C A. 5, 1974). If it had been so alleged, I should so find in this case.
14 No opinion is here expressed as to whether such reverse discnmina-
tion would be lawful.
i5 But cf. George Williams Sheet Metal Co (Local 67, Sheet Metal
Workers), 201 NLRB 1050, 1055 (1973).
LOCAL UNION 8, IBEW 1139
unscheduled overtime work on the precipitator would be
given to employees regularly assigned to the precipitator,
But the General Counsel adduced no evidence as to the
number of employees given overtime work on January 6
and/or 7, 1973, or as to the number regularly assigned to
the precipitator. Thus, it cannot be said that the General
Counsel has established that Elliott, as an individual, was
denied unscheduled overtime. Actually, Elliott was but one
member of the homogeneous Group II, whose members, as
a class , were denied equal opportunity with Group I
members . The present record is insufficient for a determi-
nation of how many, if any, members of Group II were
actually unlawfully denied overtime work.
Accordingly, I shall recommend dismissal of the specific
allegation that Elliott was unlawfully denied overtime.
International Longshoremen's and Warehousemen's Union,
Local No. 13 (Pacific Maritime Association), 192 NLRB
260, 264, fn. 24 (1971). I shall, however, recommend that
Elliott, along with other members of Group II, be provided
an opportunity to establish the amount of the monetary
loss, if any, suffered as a result of being unlawfully denied
overtime work.
CONCLUSIONS OF LAW
1. Local Union 8, International Brotherhood of Electri-
cal Workers, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Romanoff Electric Corp. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
3. By causing Respondent Romanoff Electric Corp. to
give preference in the assignment of unscheduled overtime
to employees in Group I, as defined in the "Referral
Procedures" provisions of its collective-bargaining agree-
ment with Toledo Electric Contractors Association, Inc.,
Respondent Union (Local 8, I.B.E.W.) has violated Section
8(b)(2) and (1)(A) of the Act.
4. By giving preference in the assignment of unsche-
duled overtime to employees in Group I, as defined in the
"Referral Procedure" provisions of the collective-bargain-
ing agreement between Local 8, I.B.E.W., and Toledo
Electric Contractors Association, Inc., Respondent Roma-
noff Electric Corp. has violated, and is violating, Section
8(a)(3) and (1) of the Act.
5. The- General Counsel has not established by a
preponderance of the evidence that the Respondents have
committed any unfair labor practices other than as set
forth-in 3 and 4, above.
THE REMEDY
having found that Respondent Union and Employer,
respectively, have violated Section 8(b)(l'XA) and (2) and
Section 8(a)(3) and ( 1), I shall recommend issuance of an
order containing the cease -and-desist , recordkeeping, and
notice posting requirements customary in such cases.
Additionally, since I have found that Respondents have
discriminated against employees in Group II (travelers), I
shall recommend that the Respondents be required, jointly
and severally, to make whole any employees who may have
suffered financial loss as a result of the discrimination
against them in the assignment of unscheduled overtime
Cf. international Brotherhood of Boilermakers, Iron Shp
Builders, Blacksmiths, Forgers and Helpers, Local 101,
(Stearns-Roger Corporation), 206 NLRB 30, fn. 3 (1973).
Any backpay due hereunder shall be computed in
accordance with F. W. Woolworth Company, 90 NLRB 289
(1950), with 6-percent per annum ' interest in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716.(1962).
[Recommended Order omitted from publication.]