Local Union No. 948 Electrical Wokers

National Labor Relations Board - Board Decisions

Dec 9, 1980

253 N.L.R.B. 656 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 948, International Brotherhood of
Electrical Workers, AFL-CIO and Lawrence
Moore and Flint Division, Michigan Chapter,
National Electrical Contractors Association,
Inc., Party to the Contract. Case 7-CB-4505
December 9, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On September 5, 1980, Administrative Law
Judge Peter E. Donnelly issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Local Union
No. 948, International Brotherhood of Electrical
Workers, AFL-CIO, Flint, Michigan, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Srandard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on July 10, 1979, by Lawrence
Moore, an individual, herein sometimes called Charging
Party. A complaint thereon was issued on August 28,
1979, alleging that Local Union No. 948, International
Brotherhood of Electrical Workers, AFL-CIO, herein
called Union or Respondent violated Section 8(b)(1)(A)
and (2) of the Act by discriminatorily refusing to permit
placement of nonmembers Lawrence Moore and James
Rawson on the out-of-work list as provided in the exclu-
sive referral provisions of its current contract with Flint
Division, Michigan Chapter, National Electrical Con-
253 NLRB No. 94
tractors Association, Inc., herein called the Association,
in order to refer its members over nonmembers to the
more desirable overtime work within the Respondent's
geographical jurisdiction. Pursuant to notice a hearing
was held before the Administrative Law Judge at
Burton, Michigan, on March 6, 1980. A brief was timely
filed by Respondent which has been duly considered.
FINDIINGS OF FAC I
The Association's Business
The complaint alleges, the answer admits, and I find,
that the Association and its employer-members are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
I. THE L.AtOR ORGANIZATION
The complaint alleges, the Union in its answer admits,
and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
It. TIL1 AI .EGE I) UNFIAIR ABOR PRACTICES
A. Facts'
Lawrence Moore is a member of Local 569, I.B.E.W.,
in San Diego, California, and James Rawson is a member
of Local 103, I.B.E.W., in Melford, Massachusetts. Both
are travellers, and came into the geographical jursidic-
tion of Respondent seeking work. 2 On Thursday, May
24, 1979,3 they went to the Union hall for the purpose of
registering on the Union's out-of-work book. Upon being
told that there was no work that day and hence no refer-
rals, they left and returned on Friday, May 25, at which
time they signed the out-of-work list designated for trav-
ellers.'
On Thursday, May 31 two jobs become available at a
Hammer and Smith Electric Company (H & S) jobsite.
Moore and Rawson were called by Hillis into Mullaly's
I There is conflicting testimony regarding the conversations between
Moore and Rawson on the one hand and Raymond Mullaly, business
manager of the Union, on the other. I have resolved these conflicts in
favor of Moore and Rawson. In reaching these conclusions, I have taken
into consideration the apparent interests of the witnesses and, as to John
Hillis, Union's office manager, with regard to the June 15 meeting, the
fact that his recollections thereof were concededly incomplete, overhear-
ing it as he did from outside Mullaly's office. In addition, I have consid-
ered the inherent probabilities; the probabilities in light in other events;
corroboration or lack of it; and consistencies or inconsistencies within the
testimony of these witnesses and between the testimony of each and that
of the other witnesses with similar apparent interests. In evaluating the
testimony of each witness I relied specifically upon his demeanor and
have made my findings accordingly, and while apart from considerations
of demeanor I have taken into account the above-noted credibility con-
siderations, my failure to detail each of these is not to be deemed a failure
on my part to have fully considered it. Bishop and Malco. Inc., 159
NIRB 1159, 1161 (1966).
Travellers are members of the I.BEW., working on a temporary
basis within the geographical jurisdiction of some local union other than
their home local union.
3 All dates refer to 1979 unless otherwise indicated.
Under the Employment referral procedures of Respondent's current
contract with the Association (art 111), priority in referral is made ac-
cording to priority groups as defined and designated therein. Travellers
are il priority group II. No contention is made by the General Counsel
that the referral procedures of this contract are illegal as written
656
LOCAL UNION NO. 948, ELECTRICAL WORKERS
office. Mullaly asked to see their current .B.E.W. dues
receipts to verify their current membership. According
to Moore, he also told them that he ran the Union and
did not want any trouble from them and that if they
were laid off or quit, not to come back to the union hall.
He issued them referral slips to the job at H & S.
Moore and Rawson testified that they also inquired
about going to work at Universal Electric Co. (Univer-
sal), or Petrus Electric Co. (Petrus), but were told that
they would get the same overtime on the H & S job.
Moore also testified that Mullaly told him that those
overtime jobs were being reserved for local men.
Mullaly testified, "I indicated at the time when they
went out, don't come back to the hall, if they quit or get
fired because of the fact we only had 40-hour work, and
they were looking for overtime." And, later, "I jokingly
said don't come back to the hall if you get laid off or get
fired because all we have is 40 hours of work, and they
were looking for an overtime job." According to Mulla-
ly, nothing more was said.
Moore and Rawson went to H & S and worked until
Friday, June 8. At that time Rawson heard from an elec-
trician working at Universal that Universal was working
more overtime than H & S; that both Universal and
Petrus were working 7 days a week at 10 hours a day or
70 hours per week, while they were working 5 days a
week at 9 hours a day or 45 hours per week.
Thereupon they decided that Rawson would call Mul-
laly to inquire about the possibility of working at either
Universal or Petrus. Rawson testified that in this tele-
phone conversation he was told by Mullaly that there
had been no calls for those jobs and that if he quit or
was fired from H & S not to bother coming back to the
Union hall. 5 Despite this admonition, both returned to
the union hall on Monday, June II11, and both again
signed the out-of-work book. They appeared at the union
hall each morning thereafter, without being referred,
until Friday, June 15. On this morning they were again
summoned to Mullaly's office by Hillis. Mullaly told
them that four local union men had quit a hospital job
with Weinstein Electric Company (Weinstein) which was
working 6 days a week 8 hours a day (48 hours per
week) and was going to 5 days a week 10 hours a day
(50 hours per week). Moore told him that this was not
much better than the job they had just left with H & S,
and that if it was all right they preferred to wait on the
book until a call came in for referral to Universal or
Petrus. According to Moore, Mullaly said that he was
not going to let them "ride the book," that they were off
the books, and that they might as well get out of his ju-
risdiction. Moore asked him to reconsider, that he was
being unfair, and that they should be allowed to go to
the bottom on the out-of-work list for having refused the
referral. However, Mullaly reiterated that they were "off
the books" and might as well get out of his office, and
that he was "sick of you Philadelphia lawyers coming in
here trying to run my organization." According to
Moore, Mullaly also told them that those jobs (Universal
and Petrus) were being reserved for union members and
5 Mullaly denied having received such a call from Rawson, saying that
he did not speak to either Moore or Rawson again until June 14 or 15
that he was crazy if he thought travellers were going to
get them. Rawson testified about this incident and his
testimony is basically a corroboration of Moore's er-
sion.
Mullaly concedes that a conversation took place, but
denies that he ever told Moore or Rawson that their
names would be removed from the out-of-work list. He
said that the conversation on June 15 was limited to his
offering them the Weinstein jobs and of thcir expressing
a desire to be referred to Universal or Petrus. Mullaly
testified that he told them that he had no calls from Uni-
versal or Petrus, but that they were adamant in not be-
lieving him, and left saying that they would straighten
out the matter in another way. Hillis corroborates Mulla-
Iy, but as noted above, as to this and the other conversa-
tions, I credit Moore and Rawson.
About 3 weeks later, during the first week of July,
Moore went back to the union hall, and again asked
Mullaly to reconsider, and permit them to sign the out-
of-work book. Mullaly replied that the situation was the
same as far as he was concern and they could, "just go
on rolling down the road." Mullaly denied having any
conversation with Moore or Rawson after June 15.
With respect to the contractual aspect of refusing the
Weinstein referral, the Association contract (art. III, sec.
3.07) provides that applicants who refuse a referral have
their names replaced at the bottom of the out-of-work
list. However, Mullaly testified, that as a matter of fair-
ness, applicants are permitted to refuse one referral with-
out their names being replaced at the bottom of the out-
of-work list. Thus, according to Mullaly, neither Moore
nor Rawson lost his place on the out-of-work-list until
July 9, "resign" day. Under the terms of the contract
(art. III, sec. 3.06) applicants on the out-of-work list
must, in order to maintain their position, "appear in
person to inform the Union of his continued availability
for employment on the second Monday of each month,"
which in this case was July 9, at which time they were
removed from the out-of-work list.
B. Analysis and Conclusions
It is the position of the General Counsel that Moore
and Rawson having refused the job referral, were re-
fused the contractual right to be replaced at the bottom
of the out-of-work list and that this refusal by the Union
was motivated by a discriminatory preference of its
members over nonmembers in referral to the job with
the most overtime.
Respondent denies any discrimination, contending that
the evidence does not support the conclusion that Moore
and Rawson were refused permission to replace their
names at the bottom of the out-of-work list after refusing
the referral to Weinstein. Respondent argues that once
having signed the out-of-work book, Moore and Rawson
were entitled, under a long established variance from the
written provisions of the contract, to refuse one job re-
ferral without losing their positions on the out-of-work
list. Thus, when they refused the referral to Weinstein,
they were, in fact, retained on the same position on the
out-of-work list until they failed to resign under the re-
registration provision of the contract on July 9.
657
DECISION OF NATIONAL LABOR RELATIONS BOARD
As noted above, I have credited the testimony of
Moore and Rawson as to their conversations with Mulla-
ly, including those conversations on May 31, June 15,
and in July, as well as Rawson's telephone conversation
with Mullaly on June 8. 1 conclude that both Moore and
Rawson were told by Mullaly that they could not obtain
employment within the Union's geographical jurisdiction
through the referral procedures of the contract and that
when they asked to be replaced at the bottom of the
work list to wait for the better overtime jobs at Univer-
sal and Petrus they were told that they were "off the
books." Despite Respondent's argument to the contrary,
any further effort by them to obtain referrals in the face
of Mullaly's representations to them would have been
futile. They were told that they would not be referred,
that they were "off the books," and that they might as
well leave the Union's work jurisdiction, all of which is
inconsistent with the argument that they were retained
on the out-of-work list in any position.
A review of the credited testimony concerning Moore
and Rawson's conversations with Mullaly satisfies me
that Mullaly was motivated by a desire to reserve to the
members of the Union, the jobs with the most overtime.
When Moore and Rawson sought these jobs for them-
selves, even to the extent of their willingness to refuse a
referral and be replaced at the bottom of the out-of-work
list, Mullaly told them that the jobs with the most over-
time were going to the union members, commenting that
he was sick of "Philadelphia lawyers" coming in and
trying to run the Union.
A careful analysis of all the evidence convinces me
that Moore and Rawson were denied access to the refer-
ral procedures of the contract, and that this was done in
order to retain the jobs with the most overtime for mem-
bers of the Union.6 Such conduct clearly violates Sec-
tion 8(b)(1)(A) and (2) of the Act. United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO,
Local 388 (Industrial Mechanical Contractors, Inc.), 245
NLRB 1252 (1979); International Union of Operating En-
gineers, Local 18, 18A, 18B, 18C, and 18 RA, AFL-CIO
(S.J. Groves & Sons Company), 227 NLRB 1477 (1979).
liI. THE EFFECTS OF THE UNFAIR lABOR PRACTICI-S
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes, burdening
and obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that Respondent
be ordered to cease and desist therefrom and from in-
fringing from any like or related manner on employees'
^ While the record does indicate that some travellers were referred to
Universal and Petrus. the circumstances of these referrals are unknown,
and do not overcome the clear and direct evidence of a violation
Section 7 rights, and that it take certain affirmative ac-
tions designed to effectuate the policies of the Act.
In view of my findings that Respondent discriminated
against Moore and Rawson by refusing to permit them
to remain on the out-of-work list, thus denying them
access to the referral procedures of the contract, I shall
recommend that Moore and Rawson be considered for
referral on a nondiscriminatory basis. I further recom-
mend that they be made whole for any lose of earnings
suffered by reason of the discrimination against them. In
making them whole, Respondent shall pay to them a sum
of money equal to that which they would have earned
had they been considered for referral without such dis-
crimination, such pay, if any, to be computed on a quar-
terly basis in the manner established by F. W. Woolworth
Company, 90 NLRB 289 (1955), with interest thereon
calculated according to Florida Steel Corporation, 231
NLRB 651 (1977); see, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
the entire record in this proceeding, I make the follow-
ing:
CONC.USIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The Association and its employer members are em-
ployers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. At all times material herein Respondent has been
party to a contract with the Association containing an
exclusive referral system under which Moore and
Rawson presented themselves as applicants for employ-
ment.
4. The Union by refusing to permit Moore and
Rawson to remain on the out-of-work list as provided
under the referral procedures of the contract, because
they were nonmembers of Respondent, violated Section
8(b)(1)(A) and (2) of the Act.
On the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER 7
The Respondent, Local Union No. 948, International
Brotherhood of Electrical Workers, AFL-CIO, its offi-
cers, representatives, and agents, shall:
I. Cease and desist from:
(a) Failing or refusing to refer to a job Lawrence
Moore, James Rawson, or any applicant when his or her
turn arrives for referral, in accordance with its referral
system, except to the extent that the collective-bargain-
ing contract providing for such referral list lawfully au-
' In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
658X
LOCAL UNION NO. 948, ELECTRICAL WORKERS
thorizes some other applicant to be referred ahead of any
applicant on said referral list.
(b) Discriminating against applicants for a job, includ-
ing Lawrence Moore and James Rawson because of non-
membership in the Union.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Immediately place the names of Lawrence Moore
and James Rawson on the appropriate Respondent's out-
of-work list and offer them referral to employment on a
nondiscriminatory basis in accordance with the Respond-
ent's contractual referral procedures.
(b) Immediately notify Lawrence Moore and James
Rawson of the action ordered in paragraph 2(a) above.
(c) Make Lawrence Moore and James Rawson whole
for any loss of pay they may have suffered in the manner
set forth in the section of this Decision entitled "The
Remedy."
(d) Post at its business offices, and its referral hall,
copies of the attached notice marked "Appendix." 8
Copies of said notice, provided by the Regional Director
for Region 7, after being signed by a duly authorized
representative of Respondent, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps has been taken to comply herewith.
e In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NoT-rcl To M-MBIFRS
POS1l I) BY ORDER OF I HF
NA IONAI LABOR RtI At IONS BOARD
An Agency of the United States Government
WI. WI.l. NOT fail or refuse to refer to a job any
applicant for a job, including Lawrence Moore and
James Rawson, when his or her turn for referral ar-
rives, according to our referral system, except to
the extent that our collective-bargaining contract
providing for such referral lists, lawfully authorizes
some other applicant to be referred ahead of any
applicant on said referral list.
WE WIll NOT discriminate against any applicant
for a job including Lawrence Moore and James
Rawson, because they are not members of Local
Union No. 948, International Brotherhood of Elec-
trical Workers, AFL-CIO.
WIE Wit I NOT in any like or related manner re-
strain or coerce employees in the exercise of rights
guaranteed by the Act.
WE witvl. immediately place the names of Law-
rence Moore and James Rawson on the appropriate
out-of-work list and offer them employment on a
nondiscriminatory basis in accordance with the Re-
spondent's contractual referral procedures.
WE WII_.L immediately notify Lawrence Moore
and James Rawson that their names are being
placed on the appropriate out of work list and that
they will be offered employment on a nondiscrimin-
atory basis in accordance with our contractual re-
ferral procedures.
WI: wIl.t. make whole Lawrence Moore and
James Rawson for any loss of pay they may have
suffered, with interest (by reason of our discriminat-
ing against them as applicants for), jobs who pre-
sented themselves for referral according to our re-
ferral system.
FtINT DIVISION, MICHIGAN CHAPTER NA-
TIONAl. ELECTRICAL CONTRACTORS Asso-
CIATION, INC.
659