Nassau-Suffolk Chapter of NECA

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1021 (N.L.R.B. 1977)

NASSAU-SUFFOLK CHAPTER OF NECA
Nassau-Suffolk Chapter of the National Electrical
Contractors' Association, Inc. and Alcap Electrical
Corporation and Harold M. Weiner
Local Union No. 25, International Brotherhood of
Electrical Workers and Harold M. Weiner. Cases
29-CA-3424 and 29-CB- 1534
August 31, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND WALTHER
On December 30, 1974, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding that Respondent
Union had violated Section 8(b)(1)(A) and (2) and
Respondent Employers 2 had violated Section 8(a)(3)
and (I) of the Act by maintaining, enforcing, and
otherwise giving effect to an exclusive hiring hall
contractual agreement which gives preference in
referrals and employment opportunities to applicants
for employment who have worked at least I of the 4
years previous to the date of application for
employers which had collective-bargaining agree-
ments with Respondent Union; 3 and by denying
eligibility for referral for 1 year to registrants who
work for an employer whose wage rates and fringe
benefits are less than those provided in the collective-
bargaining agreement between NECA and Respon-
dent Union. The Board also found that Respondent
Union violated Section 8(b)(2) and 8(b)(1)(A) of the
Act by failing to permit Ernesto Flores to take its
journeyman examination because he had filed
charges against the Union with a state agency; and
violated Section 8(b)(2) and 8(b)(1)(A) of the Act by
failing and refusing to refer Ernesto Flores and
George Colletti to job vacancies because they were
not Respondent Union's members. The Board
ordered Respondents to cease and desist from their
unlawful conduct and to take certain affirmative
action designed to effectuate the policies of the Act.4
On February 21, 1975, Respondent Union filed a
petition to review and set aside the Board's Order in
the United States Court of Appeals for the District of
Columbia Circuit. On March 31, 1975, the General
Counsel filed a cross-application for enforcement of
the Board's Order.5
215 NLRB 894.
2 Hereinafter referred to individually as NECA and Alcap. respectively.
:' Hereinafter also referred to as the "I in 4" years' experience
requirement.
4 By order dated March 14. 1975. the Board's Decision and Order was
amended so as to order Respondent Union to offer Ernesto Flores an
opportunity to take thejourneyman examination.
I On Fehruary 24. 1975, the General Counsel had filed for an application
231 NLRB No. 170
Thereafter, on January 31, 1977, the Board issued
its Decisions and Orders in Interstate Electric
Company, 227 NLRB 1996, and Local Union No. 68,
International Brotherhood of Electrical Workers (How-
ard Electric Company), 227 NLRB 1904, wherein it
found, inter alia, that collective-bargaining contract
provisions analogous or identical to the "1 in 4"
years' experience requirement herein are not viola-
tive of the Act.
On February 28, 1977, the General Counsel filed a
motion with the court for leave to amend the
application for enforcement, stating that the Board
no longer sought enforcement of its Order insofar as
it requires all Respondents to cease maintaining,
enforcing and giving effect to the "I in 4" years'
experience requirement provision of their collective-
bargaining contract. On April 8, 1977, the court
granted the General Counsel's motion.
Thereafter, on April 21, 1977, the court, sua sponte,
vacated the Board's Order in part and remanded the
issue pertaining to the "1 in 4" years' experience
requirement for further consideration in light of
Interstate Electric Company, supra, and Howard
Electric Company, supra. The court also stated that
the Board's finding that Flores was discriminatorily
denied an opportunity to take the journeyman
examination has been rendered moot since Flores
has been permitted to take the examination in the
interim. Finally, the court remanded the remainder
of the Board's Order for further consideration
(Docket 75-1161).
On June 16, 1977, the Board advised the parties
that it had decided to accept the remand and that it
would take appropriate action consistent therewith.
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.
As previously indicated, infra, subsequent to our
initial decision herein, we reconsidered the issue
respecting the lawfulness under the Act of contract
provisions which grant employment referral priority
to employees who satisfy a "1 in 4" years' experience
requirement or requirements analogous thereto. In
Interstate Electric Company, we held that a contract
provision, between qualified employers and labor
organizations operating in the building and construc-
tion industry, which grants priority in referrals based
upon an applicant's length of service with a signatory
for enforcement of the Board's Decision and Order in the United States
Court of Appeals for-the Second Circuit. On February 28, 1975, the General
Counsel made a motion for leave to withdraw the aforesaid application for
enforcement as Respondent Union had filed a petition for review of the
Board's Decision and Order in the United States Court of Appeals for the
District of Columbia Circuit. The court granted the motion on March II.
1975.
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer is expressly made lawful by Section 8(f)(4)
of the Act. In both Interstate and Howard we
expressly overruled our prior decision herein to the
extent that it held that such contract seniority
provisions are inherently violative of Section
8(b)(l)(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 fully set forth in that case, we find that
Respondents did not violate Section 8(b)(1)(A) and
(2) and Section 8(a)(3) and (1) of the Act by
maintaining, enforcing, and otherwise giving effect to
the exclusive hiring hall contractual agreement which
gives preference in referrals and employment oppor-
tunities to applicants for employment who have
worked at least I of the 4 years previous to the date
of application with employers who had collective-
bargaining agreements with Respondent Union.
Having found that Respondents did not violate the
Act by maintaining and enforcing the hiring hall
provisions described above, we shall dismiss these
allegations of the complaint.
The court of appeals concluded that our finding
that Respondent Union violated the Act by failing to
permit Ernesto Flores to take its journeyman
examination had been mooted by the fact that he
was permitted to take the examination in the interim.
Accordingly, as we accept the court's findings and
conclusions as the law of this case, we shall also
dismiss the 8(b)(1)(A) and (2) allegation of the
complaint relating thereto.
In all other respects, we affirm our previous
findings.
ORDER
Pursuant to Section 10(c) of the National Relations
Act, as amended, the National Labor Relations
Board hereby orders that:
A. Respondent Local Union No. 25, Internation-
al Brotherhood of Electrical Workers, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Failing or refusing to refer for employment
Ernesto Flores, George Colletti, or any other
applicant because of their nonmembership in Re-
spondent Union.
(b) Maintaining, enforcing, or otherwise giving
effect to the provisions of its collective-bargaining
agreement with Nassau-Suffolk Chapter of the
National Electrical Contractors' Association, Inc., or
6 In accordance with our decision in Florida Sleel Corporation, we shall
apply the current 7-percent rate for periods prior to August 25, 1977, in
which the "adjusted prime interest rate" as used by the Internal Revenue
Service in calculating interest on tax payments was at least 7 percent.
7 In the event that this Order is enforced by a Judgment of a United
to any modification, extension, or renewal thereof,
which deny eligibility for referral to registrants who
work for employers whose wage rates and fringe
benefits are less than those provided in the aforesaid
agreement, or those which follow it.
(c) Causing or attempting to cause Nassau-Suffolk
Chapter of the National Electrical Contractors'
Association, Inc., its employer-members, or any
other employer, to discriminate against employees or
applicants for employment in violation of Section
8(a)(3) of the Act.
(d) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make Ernesto Flores and George Colletti whole
for any loss of earnings they have suffered by reason
of the discrimination against them in accordance
with the formulas set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962); and Florida Steel
Corporation, 231 NLRB 651 (1977).6
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all referral and other records necessary to analyze
and determine the amounts of backpay due under
the terms of this Order.
(c) Keep permanent records of its hiring and
referral operations which will be adequate to disclose
fully the basis on which each referral is made.
(d) Post at its business and employment referral
offices and meeting halls copies of the attached
notice marked "Appendix A." 7 Copies of said notice,
on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent
Union, shall be posted by it for a period of 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material.
(e) Mail to the Regional Director for Region 29,
signed copies of Appendix A for posting by Respon-
dent Employers in places where notices to employees
are customarily posted.
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1022
NASSAU-SUFFOLK CHAPTER OF NECA
(0 Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint herein
against the Respondent Union be dismissed insofar
as it alleges violations of the Act other than those
found above.
B. Respondents Nassau-Suffolk Chapter of the
National Electrical Contractors' Association, Inc.,
and Alcap Electrical Corporation, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving
effect to the provisions of their collective-bargaining
agreement with Local Union No. 25, International
Brotherhood of Electrical Workers, or to any
modification, extension, or renewal thereof, which
deny eligibility for employment to registrants who
have worked for employers whose wage rates and
fringe benefits are less than those provided in the
aforesaid agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at their offices, and at the offices and
jobsites of the employer-members of NECA, copies
of the attached notice "Appendix B." " Copies of said
notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent
Employers' representatives, shall be posted immedi-
ately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent Employers to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Post at the same places and under the same
conditions as set forth in paragraph B, 2(a) above,
and as soon as they are received from the Regional
Director for Region 29, copies of Respondent
Union's notice marked "Appendix A."
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent Employers have taken to
comply herewith.
I See fn. 7.
MEMBER JENKINS, dissenting in part:
For the reasons stated in my dissenting opinion in
Interstate Electric Company, 227 NLRB 1996 (1977),
I would find that Respondent Employers violated
Section 8(a)(3) and (1) of the Act, and 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 a bargaining
contract with Respondent Union.
APPENDIX A
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
NOTICE TO ALL MEMBERS AND OTHER PERSONS USING
THE HIRING HALL OF LOCAL UNION NO. 25,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
WE WILL NOT fail or refuse to refer for
employment Ernesto Flores, George Colletti, or
any other applicant because of his nonmember-
ship with us.
WE WILL NOT maintain, enforce, or otherwise
give effect to any exclusive hiring arrangement or
practice with Nassau-Suffolk Chapter of the
National Electrical Contractors' Association,
Inc., or to any modification, extension, or renewal
thereof, which denies eligibility for referral
because of employment by an employer whose
wage rates and fringe benefits are less than that
provided in our contract with the said association.
WE WILL NOT cause or attempt to cause
Nassau-Suffolk Chapter of the National Electrical
Contractors' Association, Inc., or any other
employer, to discriminate against employees, or
applicants for employment, to encourage mem-
bership in our, or any other, labor organization.
WE WILL NOT in any like or related manner
restrain or coerce applicants for employment in
the exercise of rights guaranteed by Section 7 of
the Act.
Since it was found that we violated the Act by
failing and refusing to refer Ernesto Flores and
George Colletti to jobs, WE WILL reimburse them
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the losses they suffered as a result of our
discrimination, with interest.
WE WILL keep permanent records of our hiring
and referral operations which will be adequate to
disclose fully the basis on which each referral is
made.
LOCAL UNION No. 25,
INTERNATIONAL
BROTHERHOOD OF
EILECTRICAL WORKERS
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and had ordered us to
post this notice and we intend to carry out the Order
of the Board.
WE WILL NOT maintain, enforce, or otherwise
give effect to any exclusive hiring agreement or
practice with Local Union No. 25, International
Brotherhood of Electrical Workers, or to any
modification, extension or renewal thereof, which
denies eligibility for referral for employment
because the applicant worked for any employer
whose wage rates and fringe benefits are less than
that provided in our contract with the said Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees, or
applicants for employment, in the exercise of their
rights guaranteed in Section 7 of the Act.
NASSAU-SUFFOLK
CHAPTER OF THE
NATIONAL ELECTRICAL
CONTRACTORS'
ASSOCIATION, INC.
ALCAP ELECTRICAL
CORPORATION
1024