Local Union No. 68, IBEW

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1904 (N.L.R.B. 1977)

1904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 68, International Brotherhood of
Electrical Workers (Howard Electric Company)
and Billy N. Burt, Jr. and Rocky Mountain
Chapter, National Electrical Contractors Associa-
tion, Party to the Contract . Case 27-CB-926
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING, JENKINS, AND WALTHER
On September 25, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision 1 in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, and each filed briefs in answer to the other's
exceptions. The Board subsequently granted the
Respondent's request to argue this case and a related
case2 orally before the Board and on July 29, 1976,
both cases were argued orally in Washington, D.C.
All parties were afforded an opportunity to partici-
pate in the argument.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and oral arguments and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent herewith.
The Administrative Law Judge found that the
Respondent violated Section 8(b)(1)(A) and (2) of the
Act by applying the so-called "1 in 4" years'
experience requirement of its exclusive hiring hall
contract in a manner which deprived the Charging
Party access to group I referral preference solely
because he had not worked for at least 1 year in the
last 4 years for employers subject to Respondent's
contract. For the reasons discussed below, we dis-
agree with that finding.
The facts ate not materially in dispute and may be
summarized as follows: Respondent has for many
years been party to successive collective-bargaining
agreements with Rocky Mountain Chapter, National
Electrical Contractors Association (herein called
NECA), an association of employers engaged in the
electrical contracting industry. The most recent of
such agreements ,3 effective April 1, 1975, through
March 31, 1976, provides , inter alia, that Respondent
"shall be the sole and exclusive source of referrals for
employment," and that it "shall select and refer
I On the same date , the Administrative Law Judge also issued an errata
correcting certain inadvertent errors in his Decision His Decision will
appear as corrected in the bound volumes of Board decisions
2 Interstate Electric Company, 227 NLRB 1995 (1977), issued this day.
3 The complaint alleged, and Respondent's answer admitted, that this
agreement covered not only the employees of employer-members of NECA,
but also employees of "signatory employers " The latter are described in the
pleadings as "employers or firms who have signed a letter of assent or other
227 NLRB No. 278
applicants for employment without discrimination
... by reason of membership or nonmembership in
the Union .4 Regarding the order of referral, the
contract provides:
5.18 Registration: The Union shall maintain a
register of applicants available for employment
under this agreement. Each available applicant for
employment shall be registered in the highest
priority group, on the basis of the groups listed
below, for which he qualifies.
GROUP I: All available applicants for employ-
ment who have 4 or more years' experience in the
trade, are residents of the geographical area
constituting the normal construction labor mar-
ket, have passed a journeyman's examination
given by a duly constituted Local Union of the
I.B.E.W. and who have been employed for a
period of at least 1 year in the last 4 years under a
collective bargaining agreement between parties
to this agreement.
GROUP II: All available applicants for em-
ployment who have 4 or more years' experience in
the trade and who have passed a journeyman's
examination given by a duly constituted Local
Union of the I.B.E.W.
GROUP III: All available applicants for em-
ployment who have 2 or more years' experience in
the trade, are residents of the geographical area
constituting the normal construction labor market
and who have been employed for at least 6 months
in the last 3 years in the trade under a collective
bargaining agreement between the parties to this
Agreement.
GROUP IV: All available applicants for em-
ployment who have worked at the trade for more
than 1 year.
5.33 Work List: The Union shall maintain an
"Out of Work List" which shall list the applicants
within each group in chronological order of the
dates they register their availability for employ-
ment.
5.36 Referral Procedure: Employers shall ad-
vise the Business Manager of the Local Union of
the number of applicants needed. The Business
Manager shall refer applicants to the Employer by
first referring applicants in Group I in the order of
their places on the Out of Work List and then
referring applicants in the same manner succes-
commitment to be bound by the collective bargaining agreement in effect
between Respondent and NECA." The contract itself defines the word
"employer" as "any person , firm or corporation as is in assent to this
Agreement."
4 Although the contract also contains a standard union-secunty clause for
the construction industry which requires membership in the Union 7 days
after employment with a signatory employer , the record discloses that this
provision was never enforced.
LOCAL UNION NO. 68, IBEW 1905
sively from the Out of Work List in Group II, then
Group III, and then Group IV.
On or about April 3, 1975, Charging Party Burt, a
former member of Respondent Union, went to
Respondent's office and asked to sign the out-of-
work book as a group I applicant for referral. He was
told by Respondent's agents that he did not qualify
for group I status because he had not worked for a
signatory contractor for a period of 1 year during the
last 4 years. He was invited to sign the group II book
but declined to do so. He thereupon filed the unfair
labor practice charge upon which the instant com-
plaint is bottomed.
The record discloses that applicants for referral are
routinely permitted to sign Respondent's out-of-work
book and are referred to available jobs regardless of
their membership or nonmembership in Respondent
Union. It further discloses that at the time of the
hearing there were several nonmembers who were
registered as group I applicants. The record also
establishes that over the years Respondent has
referred Burt to numerous jobs under its referral
system regardless of his membership or nonmember-
ship in Respondent. There is no evidence in the
record that Burt was ever denied membership in
Respondent.
In finding that Respondent's so-called "1 in 4"
years' experience requirement for group I referral
priority violated Section 8(b)(1)(A) and (2) of the Act,
the Administrative Law Judge relied, inter alia, upon
Nassau-Suffolk Chapter of the National Electrical
Contractors' Association, Inc. (Alcap Electrical Corpo-
ration), 215 NLRB 894 (1974), in which the Board
found that a similar contract provision is on its face
violative of the Act. We have reconsidered that
decision and, for the reasons more fully stated in
Interstate Electric Company, supra, issued this day,
have decided that a contract provision, between
qualified employers and labor organizations operat-
ing in the building and construction industry, which
grants priority in referrals based upon an applicant's
length of service with a signatory employer is
permitted by Section 8(f)(4) of the Act. Accordingly,
we overruled Nassau-Suffolk to the extent that it held
that such a seniority provision is inherently violative
of Section 8(b)(1)(A) and (2) and Section 8(a)(3) and
(1) of the Act.
The rationale on which our decision in Interstate is
based is equally applicable here. Accordingly, for the
reasons more fully articulated in that case, we find
that Respondent did not violate Section 8(b)(1)(A)
and (2) of the Act by maintaining or enforcing the "1
in 4" years' experience provision in its exclusive
hiring hall contract with NECA and signatory
employers.
In view of the foregoing, we shall dismiss the
complaint herein 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
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
For the reasons stated in my dissenting opinion in
Interstate Electric Company, 227 NLRB 1995 (1977),
issued this day, I would find that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by
maintaining and enforcing a hiring hall clause giving
priority in job referrals to applicants who have
worked for employers signatory to bargaining con-
tracts with Respondent Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Denver, Colorado, on July 1 and
September 4 and 5, 1975. The charge was filed on April 4,
1975, by Billy N. Burt, Jr., in his individual capacity. The
complaint issued on April 28, 1975, was amended on May
21 and during the hearing, and alleges violations by Local
Union No. 68, International Brotherhood of Electrical
Workers (herein called Respondent) of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act, as amended.
The parties were given opportunity at the hearing to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs were waived by all
parties.
FINDINGS OF FACT
I. ISSUES
The issues are whether Respondent has violated Section
8(b)(1)(A) and (2) of the Act by maintaining a hiring hall
clause giving priority in job referrals to applicants having
worked for employers signatory to bargaining contracts
with Respondent; and, incidental thereto, by refusing to
enroll Billy N. Burt, Jr., on its group I out-of-work list.
II. JURISDICTION
Respondent at all relevant times has been party to a
bargaining agreement with Rocky Mountain Chapter,
National Electrical Contractors Association , a multiem-
ployer association (herein called NECA). The employer-
members of NECA are engaged in the electrical contracting
business and, both singly and in the aggregate, annually
purchase and cause to be transported across state lines
goods and materials of a value exceeding $50,000.
NECA and its employer-members jointly and severally
are employers engaged in and affecting commerce within
Section 2(2), (6), and (7) of the Act.
1906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent and NECA have had a bargaining relation-
ship of many years' standing. Their current labor contract
runs from April 1, 1975, through March 31, 1976. The
contract contains a detailed job referral procedure. It
provides, among other things, that Respondent "shall be
the sole and exclusive source of referrals of applicants for
employment," and that it "shall select and refer applicants
for employment without discrimination ... by reason of
membership or nonmembership in the Union."
Regarding order of referral, the contract provides:
5.18 Registration: The Union shall maintain a
register of applicants available for employment under
this agreement. Each available applicant for employ-
ment shall be registered in the highest priority group, on
the basis of the groups listed below, for which he
qualifies.
GROUP I. All available applicants for employment
who have 4 or more years' experience in the trade, are
residents of the geographical area constituting the
normal construction labor market, have passed a
journeyman's examination given by a duly constituted
Local Union of the I.B.E.W. and who have been
employed for a period of at least I year in the last 4
years under a collective bargaining agreement between
parties to this agreement.
GROUP II: All available applicants for employment
who have 4 or more years' experience in the trade and
who have passed a journeyman's examination given by
a duly constituted Local Union of the I.B.E.W.
GROUP III: All available applicants for employ-
ment who have 2 or more years' experience in the trade,
are resident of the geographical area constituting the
normal construction labor market and who have been
employed for at least 6 months in the last 3 years in the
trade under a collective bargaining agreement between
the parties to this Agreement.
GROUP IV. All available applicants for employment
who have worked at the trade for more than 1 year.
5.33 Work List: The Union shall maintain an "Out of
Work List" which shall list the applicants within each
group in chronological order of the dates they register
their availability for employment.
5.36 Referral Procedure: Employers shall advise the
Business Manager of the Local Union of the number of
applicants needed. The Business Manager shall refer
applicants to the Employer by first referring applicants
in Group I in the order of their places on the Out of
Work List and then referring applicants in the same
I Burt testified that Legino made "passing reference" to Burt's having
ended his membership in Respondent in November 1974 Burt added- "I
have to honestly say that he did not" withhold Group I for that reason. Burt
later testified that he was under the impression that his nonmembership was
a factor Legino denied that it was, or that he said it was. Even crediting
manner successively from the Out of Work List in
Group II , then Group III, and then Group IV.
Burt, the Charging Party, was prompted to file the charge
when , on April 3 , 1975, he sought to enroll as a group I
applicant . Robert Legino, Respondent's business manager,
told him he was eligible for group II, but not I. Legino
explained that Burt did not satisfy the so-called l-in-4
qualifying element for group I-that the applicant must
"have been employed for a period of at least 1 year in the
last 4 years under a collective bargaining agreement
between parties to this agreement ."' Burt declined group
II, choosing instead to file the charge.
Burt has been a journeyman electrician for many years.
He has obtained referral as such from Respondent over the
years, as he has from sister locals of Respondent in the west
and southwest . He also operated an electrical contracting
business in Denver for a time . Respondent does not
contend that , apart from the 1-in-4 question , Burt was not
entitled to placement in group I.
Respondent makes about 3,000 referrals a year . There is
no evidence that it has applied its referral provisions,
generally or as concerns Burt, in disparate fashion. The
record is uncontroverted that nonmembers are permitted
access to group I if meeting the named elements.
B. Analysis
In International Photographers of the Motion Picture
Industry, Local 659, etc., 197 NLRB 1187,2 the Board dealt
with hiring hall contracts which , like that in the present
case, accorded referral priority to applicants having past
experience with employers signatory to union contracts.
Finding this arrangement to violate Section 8 (b)(1)(A), the
Board stated at 1189:
Section 7 gives employees the right to bargain collec-
tively through representatives of their own choosing, or
to refrain therefrom, subject of course to majority rule.
Respondent's actions penalize employees for having
exercised their statutory right to refrain from bargaining
collectively through Respondent in the past, while
rewarding those employees who have chosen to work in
units represented by Respondent.
Hiring hall provisions of much the same nature were
before the Board in Directors Guild of America, Inc.,
(Association of Motion Picture & Television Producers, Inc.),
198 NLRB 707 (1972).3 Observing that implementation of
the provisions prevented an applicant from obtaining
employment "because he had not engaged in union
activities in the past by obtaining his work experience with
employers who were signatories to contract with the
Respondent Union," the Board concluded (at 709) that the
provisions as applied were "an invasion of the undoubted
right of employees under Section 7 of the Act to refrain
Burt 's testimony, it is too ambiguous to support a finding that Legino raised
Burt's membership as a factor. Nor does the General Counsel make that
contention.
2 Enfd 477 F 2d 450 (C A D.C , 1973).
3 Enfd 494 F 2d 692 (C A 9, 1974)
LOCAL UNION NO. 68, IBEW
from union activities," thereby violating Section 8(b)(1)(A)
and (2).4
Finally, in Nassau-Suffolk Chapter of NECA, 215 NLRB
894 (1974), the Board was concerned with hiring hall
language similar in many respects to that in the present
case, including 1-in-4 experience requirements for place-
ment in either group I or group II. The Administrative Law
Judge, citing International Photographers of the Motion
Picture Industry, had found violations of Section 8(b)(1)(A)
and (2), reasoning (at 903):
The collective-bargaining agreement between NECA
and the Union . . . grants preference in employment
opportunities to applicants who have worked . . . for
employers who had collective bargaining agreements
with the Union, and it diminishes the employment
opportunities and discriminates against applicants with
equal or even greater competence and experience
merely because the latter have not worked for an
employer who was under contract with the Union... .
Such discrimination has a natural tendency to encour-
age membership in the Union.
The Board adopted this portion of the Administrative Law
Judge's decision without comment.
This body of recent authority compels the conclusion
that the 1-in-4 provision of Respondent's hiring hall
contract, as applied to deprive Burt of access to group I
because he lacked the specified experience with employers
subject to contract with Respondent, violated Section
8(b)(1)(A) and (2) of the Act.5
4 Indicating that an 8(bX2) violation was not found in International
Photographers of the Motion Picture Industry only because it was not alleged.
5 Respondent 's counsel argued on the record that clauses of the nature of
Respondent's 1-in-4 clause are unlawful only if coupled with an enforced
union-secunty provision ; and that, while Respondent 's contracts over the
years have had 8-day union-security clauses, the evidence shows that they
have not been enforced . Although the Board at one time may have
CONCLUSIONS OF LAW
1907
A. By maintaining and applying its exclusive hiring hall
contractual arrangement in a manner giving preference in
job referrals to applicants for employment having experi-
ence with employers subject to bargaining contracts with
Respondent, and thereby depriving Billy N. Burt, Jr., of
access to group I, Respondent violated Section 8(b)(1)(A)
and (2) of the Act.
B. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
It is recommended, to effectuate the policies of the Act,
that Respondent be ordered to cease and desist from the
unfair labor practices found and from any other invasions
of employees' Section 7 rights; and that it take the
affirmative action set forth below, including making whole
Billy N. Burt, Jr., for losses suffered because of Respon-
dent's misconduct against him . Concerning the make-whole
aspect of the remedy, it is concluded in agreement with the
General Counsel that, since proof of specific job loss was
not necessary to the establishment of substantive violations
herein, such job loss is an issue appropriately reserved for
the compliance phase of this proceeding. Backpay shall be
computed on a quarterly basis, with interest added at the
rate of 6 percent annually, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
subscribed to that view (see International Marine Terminals, Inc., 137 NLRB
588, 590 (1962)), there is nothing in the decisions cited in the body of this
Decision to suggest its continued currency. More particularly, International
Photographers of the Motion Picture Industries , Local 659, mentions in
footnote the existence of union-security clauses which "are not enforced,"
but assigns no significance either to the clauses or their disregard. 197 NLRB
1187, 1188, fn. 4 (1972).