Nassau-Suffolk Chapter of the National Electrical Contractors' Association, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1974

215 N.L.R.B. 894 (N.L.R.B. 1974)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
December 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 28, 1974, Administrative Law Judge Samuel
Ross issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and a
supporting brief and a statement in support of the Ad-
ministrative Law Judge's Decision; Respondents, Lo-
cal Union No. 25, International Brotherhood of Elec-
trical Workers, Nassau-Suffolk Chapter of the
National Electrical Contractors' Association, Inc., and
Alcap Electrical Corporation filed exceptions and sup-
porting briefs; and National Electrical Contractors' As-
sociation and International Brotherhood of Electrical
Workers, AFL-CIO, each filed amicus curiae
briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified
herein.
We disagree with the finding of the Administrative
Law Judge that the Respondent Union did not violate
Section 8(b)(1)(A) and (2) of the Act by failing to per-
mit Ernesto Flores to take its journeyman's examina-
tion. Flores, who was not a member of Respondent
Union, wrote letters to the Union on a number of occa-
sions requesting permission to take its journeyman's
examination, the passing of which was necessary for his
reclassification to the highest priority referral group
under the contract, but he never received any response.
In January 1973, during a visit to the Union's employ-
ment office, Flores asked Union Employment Manager
Segall why he had received no response to his requests
to the Union's executive board to take the jour-
neyman's examination. According to Flores' credited
testimony, Segall replied:
I The motions of National Electrical Contractors Association and Inter-
national Brotherhood of Electrical Workers, AFL-CIO, to file briefs amicus
curiae are unopposed and we hereby grant the motions.
Maybe Ernie, maybe this is because you brought
us up on charges in 1969 with the Human Rights
Commission and, you know, the Board, they don't
take this lightly. Nobody likes to be brought up on
these charges.
Segall also suggested that Flores send his next letter
requesting permission to take the journeyman's exami-
nation by registered mail, return receipt requested.
Flores did so, but he still did not receive a reply.
We agree with the contention of the General Counsel
that Union Manager Segall's statement to Flores,
quoted above, reveals that the Union's real reason for
repeatedly denying Flores an opportunity to take the
journeyman's examination was because Flores had pre-
viously filed charges against the Union before the Hu-
man Rights Commission. In these circumstances, we
find that the Union's actions violated Section
8(b)(1)(A) and (2) of the Act by restraining and coerc-
ing Flores in the exercise of his rights under Section 7
of the Act, and by denying Flores greater employment
opportunities under its exclusive referral system since
Flores would have been placed in a higher and more
preferred referral category if he had been permitted to
take and pass, the Union's journeyman's examination.
We also agree with the contention of the General
Counsel that the notice to union members should in-
clude a provision that the Union will keep permanent
records of hiring and referral operations. This inadver-
tent omission by the Administrative Law Judge will be
added to the notice in order to advise the employees
that the basis of each referral will be preserved and in
order for the notice to be consistent with paragraph.
A,2,(c) of the Order.
AMENDED CONCLUSION OF LAW
Add the following as Conclusion of Law 5 and
renumber present Conclusion of Law 5 as 6:
"5. By failing and refusing to permit Ernesto Flores
to take its journeyman's examination the Respondent
Union has engaged in and is engaging in unfair labor
practices in violation of Section 8(b)(1)(A) and (2) of
the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondents Nassau-Suffolk Chap-
ter of the National Electrical Contractors' Association,
Inc.; and Alcap Electrical Corporation, Amityville,
New York, their officers, agents, successors, and as-
signs, and Respondent Local Union No. 25, Interna-
215 NLRB No. 125
NASSAU-SUFFOLK CHAPTER OF THE NECA 895
tional Brotherhood of Electrical Workers, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as modified be-
low:
1. Insert the following as paragraph A,I,(d) and re-
letter former paragraph (d) as (e):
"(d) Restraining and coercing Ernesto Flores in the
exercise of his rights under Section 7 of the Act by
denying Flores an opportunity to take the Union's jour-
neyman's examination and by denying him greater em-
ployment opportunities under the Union's exclusive
referral system."
2. Substitute the attached Appendix A for that of the
Administrative Law Judge.
disclose fully the basis on which each referral is
made.
WE WILL NOT restrain and coerce Ernesto Flores
in the exercise of his rights under Section 7 of the
Act by denying him an opportunity to take our
journeyman's examination and by denying him
greater employment opportunities under our ex-
clusive referral system.
WE WILL NOT in any like or -related manner re-
strain or coerce applicants for employment in the
exercise of rights guaranteed by Section 7 of the
Act.
LOCAL UNION NO 25,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
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 trial 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 maintain, enforce, or otherwise
give effect to any exclusive hiring arrangement or
practice with Nassau-Suffolk Chapter of the Na-
tional Electrical Contractors' Association, Inc., or
to any modification, extension, or renewal thereof,
where preference in referral for employment is
based on prior employment for an employer who
had a contract with us, or which denies eligibility
for referral because of employment by an em-
ployer 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 Con-
tractors' Association, Inc., or any other employer,
to discriminate against employees, or applicants
for employment, to encourage membership in our,
or any other, labor organization.
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
for the losses they suffered as a result of our dis-
crimination.
WE WILL keep permanent records of our hiring
and referral operations which will be adequate to
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: These con-
solidated cases were tried before me in Brooklyn, New York,
on April 2 and 3, 1974, based on charges filed on June 6,
1973, by Harold M. Weiner, an attorney, on behalf of his
client Ernesto Flores, an electrician, and on a consolidated
amended complaint which issued on January 25, 1974,
against Nassau-Suffolk Chapter of the National Electrical
Contractors' Association, Inc. (herein called NECA), Alcap
Electrical Corporation (herein called Alcap), and Local
Union No. 25, International Brotherhood of Electrical Work-
ers (herein called the Union), jointly called Respondents,
which later was amended on February 22 and March 19,
1974. In substance, the consolidated complaint as thus
amended alleges that the Respondents NECA, Alcap, and the
Union are parties to and maintain a collective-bargaining
agreement to which some nonmembers of NECA also are
signatories , whose provisions require the employer parties to
the agreement to hire employees exclusively through the
Union's employment office in accordance with referral proce-
dures which give preference in employment to applicants who
have previously worked under the Union's contracts, and
that thereby Respondents Association and Alcap are engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, and Respondent Union is engaging
in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act. The said complaint also alleges
that Respondent Union further violated Section 8(b)(1) and
(2) of the Act by failing and refusing to refer Ernesto Flores
and George Colletti, another electrician, for employment,
and by refusing to permit Flores to take its examination for
journeyman electrician, because of their nonmembership in
the Union and because Flores filed charges against the Union
with the New York State Division of Human Rights.' The
Respondents filed answers which deny the substantive allega-
I Union filed a motion to strike par 17 of the amended
complaint which charges it with refusing to permit Flores to take its exami-
nation for journeyman status because Flores had filed charges against it
which were dismissed by the New York State Division of Human Rights.
The said motion will be considered infra.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the complaint and the commission of unfair labor
practices.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration of
the briefs filed by the parties,' I make the following:
FINDINGS OF FACT
I COMMERCE
Respondent NECA, a New York corporation whose office
and principal place of business is located in Amityville, New
York, is an organization of employers in the electrical con-
tracting industry in the counties of Nassau and Suffolk in the
State of New York which bargains collectively on behalf of
its employer-members with labor organizations, including
Respondent Union. The Respondent Alcap is a member of
Respondent NECA. During the past year, a representative
period, the employer-members of NECA derived gross reve-
nues from their operations in excess of $500,000, and pur-
chased and received directly from places located outside of
the State of New York electrical supplies, equipment, and
other goods and materials valued in excess of $50,000 On the
foregoing admitted facts, I find that NECA and its employer-
members are engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted , and I also find, that Respondent Union is
a labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. Background Events
This case has its genesis in the efforts of Ernesto Flores, an
American citizen of Puerto Rican ancestry, to obtain and
retain employment in the electrical construction industry in
Nassau and Suffolk Counties, New York.
Flores, a resident of Bay Shore in Suffolk County, New
York, apparently learned the electrical and electronic trade
as a member of the United States Air Force. In December
1968, Flores was referred for employment by the office of
Equal Opportunity to Respondent Alcap, an electrical con-
struction contractor which is a member of Respondent
NECA and subject to its collective-bargaining agreement
with the Respondent Union. When interviewed for the job,
Flores was told by Chris Blunt, Alcap's president, that Alcap
needed "certain minorities" on its jobs because of its govern-
ment contracts, and that the Union had not been able to
2 On May 23, 1974, following the filing of briefs by the parties, counsel
for the Respondent Union mailed a letter to me (and copies to all the parties)
which in effect is a reply brief to that of the General Counsel The charging
party, as attorney for the alleged discrtmtnatee Flores, has objected to this
"novel procedure on the part of union counsel ," and has requested in effect
that briefing be reopened to permit him to respond to the Union 's reply brief
The Board's Rules and Regulations contain no provision for the filing of
reply briefs , and no application has been made or granted by me for permis-
sion to file any . I have disregarded the Union's "reply brief ' and deny the
application for the reopening of briefing.
provide him with a minority electrician. Blunt told Flores
that he would provide him with a letter to the Union which
would request that Flores be furnished a referral card, and he
warned Flores that notwithstanding his need for a minority
employee, he would promptly terminate Flores if he didn't
"produce." Flores accepted Blunt 's employment terms and
brought Respondent Alcap's letter to the Union's employ-
ment office. There, after questioning by Everett Lehman, the
Union's employment manager , regarding his prior experience
in the electrical construction industry, Flores was given a
referral card to work for Alcap.
Flores started to work for Alcap on January 2, 1969, and
he soon discovered from the foreman, a member of Respond-
ent Union, that his presence on the job was not welcome
either to the foreman or to "the other [Union] members
there." During the next few months, Flores received assign-
ments to perform the least desirable jobs "that nobody
wanted to do," and he was the butt of frequent derogatory
aspersions to his ethnic origin. Accordingly, on April 23,
1969, Flores filed a complaint with the New York State Divi-
sion of Human Rights against the Respondent Union, its
business manager, Walter Kraker, Respondent Alcap, its
owner Chris A. Blunt, his foreman, Richard Lee, and the
Union's shop steward, Richard Woodhouse, supported by an
affidavit in which he charged that he was being harassed and
discriminated against because of his "national origin."'
Flores nevertheless continued to work for the Respondent
Alcap for 3 years and 9 months.
On October 13, 1972, Alcap laid off Flores for lack of
work. However, the decision to do so resulted from a com-
plaint by telephone by Richard Segall, the Union's new em-
ployment manager, to Alcap's President Blunt that the con-
templated retention of Flores because Alcap "needed a
minority on the job" and the layoff of electrician Berard, a
member of the Union, constituted discrimination "against a
[Union] member."4
Following his layoff, Flores telephoned Segall , notified him
that he had been laid off, and asked for a referral to another
job. Segall advised Flores that there were "too many men out
of work." Flores asked Segall if he could sign the referral
book , and Segall said , "No, you can't do that because you
don't have four years with the Local, so you are going to have
to wait until you have your four years in and then I will let
you sign the book." A week or so later, Segall told Flores that
he would try to send him out on a job so that he could
complete his 4 years and be eligible to sign the referral book.
In early November 1972, Segall telephoned Flores and of-
fered him a job doing electrical work in connection with
residential housing construction. Segall told Flores that there
were other men out of work but that none of them wanted
his job. Flores accepted the job offer and began to work for
Merkel Electrical on about November 8, 1972. He worked on
that job for about one month until December 8, 1972, when
he again was laid off for lack of work. Following his layoff
by Merkel, Flores notified Segall and asked again to sign the
Union's referral book, but was told that he would have to wait
until January when he would have his "four years in."5
3 See G.C Exh 8
4 Segall admittedly told Blunt that he "was not interested in his
[Blunt's] minority problem and he [Blunt ] was discriminating against a
member " See G C. Exh. 11.
NASSAU-SUFFOLK CHAPTER OF THE NECA 897
B. The Hiring Provisions of the Respondents'
Collective-Bargaining Agreement
As noted above, the Respondent NECA is an organization
composed of employers who are engaged in the electrical
contracting industry in Nassau and Suffolk Counties, and the
Respondent Union is a labor organization which represents
employees who work as "electricians" in the construction
industry in that geographical area. NECA and the Union
have been parties to successive collective-bargaining agree-
ments pursuant to which the Union is the collective-bargain-
ing agent of all the electncians employed by employer-mem-
bers of NECA. The Union also is the recognized
collective-bargaining representative of electricians who are
employed by various other electrical contractors who are not
members of NECA, but who, by entering into a letter of
assent with the Union (G.C. Exh. 3), have agreed to be bound
by the terms of the collective-bargaining agreement between
the Union and NECA.
Under the'terms of the collective-bargaining agreement
between the Union, NECA, and the nonmembers who have
agreed to be bound thereby, the Union is "the sole and exclu-
sive source of referrals of applicants for employment" as
electricians, and it is required to select and refer such appli-
cants, without discrimination by reason of membership or
nonmembership in the Union, and in accordance with priori-
ties in referral based on the classification assigned to the
applicant for employment. The employers have the right to
reject any applicant for employment. Membership in the
Union on and after the 8th day of employment is, at the
option of the Union, a condition of employment. The contract
establishes criteria for classifying journeymen electricians
into five groups, designated respectively as groups I through
V.6 The Union is required to maintain an "out of work list"
of the applicants in each group in the chronological order of
the dates they register their availability for employment, and
to refer applicants to jobs in the order of their places on the
lists, first from the group I list, when that is exhausted, from
the group II list until that is spent, and so on. Thus, within
each classification, the applicant who has been out of work
the longest is referred first, and all applicants on higher clas-
sification lists must be referred to jobs before applicants on
lower classification lists can be dispatched.'
As indicated above, the lowest priority for referral pur-
poses is given to applicants who are classified as group V. To
qualify for group V classification, applicants for employment
as journeymen electricians must have worked "at the building
5 The findings in the foregoing paragraph are based on the credited tes-
timony of Flores which was uncontroverted for the most part Segall denied
that he ever told Flores that the "referral books of Local 25 were not
available to him to sign," but I do not credit Segall's denial because I regard
his testimony as less reliable than that of Flores which I consider to be
forthright and truthful I base this credibility determination both on de-
meanor and on the patently implausible explanation (described infra) which
Segall proffered for his admitted failure to follow the referral procedures in
the contract between the Respondents, as a consequence of which union
members were assigned to jobs to which Flores and Colletti, another non-
member of the Union, had greater entitlement
6 These classifications also are known and referred to as R-1 through
R-5, respectively
I The contract provides for some exceptions to this order of referral which
are irrelevant to the issues presented in this case
and construction trade for more than four years." Applicants
who have that experience and are also residents of the geo-
graphical area (Nassau and Suffolk Counties) are classified in
group IV. To qualify for group III classification, the appli-
cant must also "have passed a journeyman's examination
given by a duly constituted Local Union of the I.B.E.W."
Group II classification is assigned to applicants who have the
qualifications required for group III, but who also are resi-
dents of the geographical area and have worked at least 1 year
in the last 4 years under a collective-bargaining agreement
between the parties. To qualify for group I or R-1, the highest
priority rating for referral purposes, applicants for employ-
ment as journeymen electricians must have all the qualifica-
tions required for group II, and must have passed the jour-
neyman's examination given by the Respondent Union
(rather than that of another local union of I.B.E.W.). Eligibil-
ity to take the Respondent Union's journeyman' s examina-
tion also requires employment of at least 1 year in the last 4
under the parties' collective-bargaining agreement.' Finally,
the contract (par. 162) provides in part as follows:
An applicant who has registered for referral but who
thereafter is employed in the building and construction
trade in Nassau and Suffolk Counties as an electrician
for an employer who does not pay the wage rates and
fringe benefits contained in this Collective Bargaining
Agreement, shall be ineligible for referral from Groups
I, II, III , IV and V, for a period of one year following
the termination of such employment.
C. The Discriminatory Referral of Union Members to Job
Vacancies
During the entire period of 3 years and 9 months that
Flores worked for Alcap, he was classified by the Union's
hiring hall as a temporary employee.' Based on that classifi-
cation, Flores was subject to replacement "as soon as regis-
tered applicants for employment" were available for
referral.10 He nevertheless was not replaced or terminated
during this extended period, notwithstanding that persons on
the Union's referral lists admittedly were out of work. This
departure from the referral procedures in the collective-bar-
gaining contract quite apparently was motivated by Alcap's
need to retain a "minority" employee on his payroll and the
Union's acquiescence thereto. Thus, as found above, Flores
was not terminated by Alcap until Union Employment
Manager Segall, acting on behalf of a union member facing
layoff by Alcap, decided that he no longer was interested in
Alcap's "minority problem."" On November 3, 1972, after
his termination by Alcap, Flores was reclassified by the
Union as a group IV (R-4) journeyman electrician, and, as
previously described, he thereafter was referred by Segall to
work for Merkel Electrical and worked from November 8,
8 G C Exh 2, par 148-152, 159-160
9 Segall, the Union's manager of the hiring hall, so testified See also G C
Exh 4
10 Par 153 of the Respondent's collective-bargaining contract so provides.
See G C Exh 2
11 See fn 4, supra Segall was unable to offer any plausible explanation
for this obvious departure from the referral procedure in the contract, at
least none that I credit
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972, until he was laid off for lack of work on December 8,
1972.
During his employment by Alcap and Merkel, Flores, who
was not a member of Respondent Union, wrote letters to the
Union on a number of occasions requesting permission to
take its journeyman's examination, the passing of which was
necessary for his reclassification to the highest priority group
I (R-1), but he never received any response to his communi-
cations . After Flores was laid off by Merkel, he thereafter
repeatedly visited the Union's hiring hall office during
December 1972 and January 1973 seeking employment. Dur-
ing one such visit in January 1973, Flores asked Union Em-
ployment Manager Segall why he ws not being referred to a
job and why he had not been called by the Union's Executive
Board to take its journeyman's examination for reclassifica-
tion to a higher referral category. According to Flores' cred-
ited testimony, Segall replied:
Maybe Ernie, maybe this is because you brought us up
on charges in 1969 with the Human Rights Division and,
you know, the board, they don't take this lightly. No-
body likes to be brought up on these charges.
Segall also suggested that Flores send his next letter to the
Union requesting permission to take the journeyman's exami-
nation by registered mail, return receipt requested , and thus
be certain that it was received . Flores did so on February 24,
1973,11 but as in the case of his prior letters , he received no
reply from the Union.13
After Flores was laid off by Merkel on December 8, 1972,
he repeatedly sought employment as an electrician through
the Union 's hiring hall. Thereafter , although he admittedly
was eligible for referral to jobs as a group IV (R-4) applicant
after December 8, 1972 (excepting only 6 days from May 2
to 8, 1973), he concededly was never dispatched by the Union
to any job.14
As previously noted , the Respondent 's collective -bargain-
ing agreement requires the Union to maintain an "out of
work" list of the applicants for employment in each group or
classification, and within each classification , the applicant for
employment who has been out of work the longest is required
to be referred to a job first. Under this referral procedure,
Flores , as a group IV (R-4) journeyman electrician was enti-
tled to referral before any other group IV (R-4) applicant
12 See G C. Exh 9
13 Segall admitted having a conversation with Flores in which he sug-
gested that Flores send his request to the Union for permission to take its
journeyman's examination by registered mail. Segall also conceded that he
"believed" that Flores asked him why he was not being given the test Segall
could not:'remember" his response to Flores' question, but he denied that
he said it was because of Flores' charges against the Union to the Human
Rights Division As previously noted (see fn., 5, supra), I consider Flores'
testimony as candid, forthright, and genially reliable I therefore regard his
version of this conversation as more reliable than Segall 's I make this
assessment of Flores' credibility notwithstanding that there is no reference
to this conversation (which undisputedly occurred) in Flores' pretrial affida-
vit to the Board , and despite Flores' application for the return of his money
from the Industry Annuity Fund
14 To be available for referral, an applicant for employment through the
Union 's hiring hall must sign the Union 's out-of-work register at least once
every 2 months . Union Employment Manager Segall admitted that Flores
met the registration requirements , and that he was eligible for referral to jobs
on and after his termination by Merkel on December 8, 1972, except for the
6-day period between May 2 and 8, 1973.
whose last employment terminated after December 8, 1972
George Colletti, another group IV (R-4) journeyman electri-
cian , who also was not a member of the Union, was laid off
from his employment on December 15, 1972, and he conced-
edly registered and was eligible for referral by the Union's
hiring hall on and after that date.15
Francis L. Carroll is a member of the Union who first
became a journeyman electrician on October 30, 1972, by
passing the examination given by the joint apprentice training
committee. Carroll was then reclassified from apprentice to
journeyman in Group IV (R-4), and was promptly referred
to a job on November 8, 1972, where he worked until Decem-
ber 28, 1972. Based on this date of Carroll 's termination,
Flores, who had been out of work since December 8, 1972,
and Colletti, whose last employment had ended on December
15, 1972, were entitled to referral to a job before Carroll.
Nevertheless, the Respondent Union referred Carroll, and
not Flores or Colletti, to a job on January 18, 1973, and when
that job ended on January 24, 1973, Carroll was again re-
ferred on the following day to another job. 16
Robert A. Estler is a member of the Union who first
became a journeyman electrician on August 16, 1972, by
passing the examination given by the joint apprentice training
committee. Estler then was reclassified in group IV (R-4),
and on August 30, 1972, he was referred to a job by the Union
at which he worked until May 4, 1973. After his termination,
Estler was not entitled to referral again before Colletti who
had been out of work since December 15, 1972." Neverthe-
less, the Union referred Estler, and not Colletti, to another
job on May 16, 1973. Estler's job ended on May 29, 1973, and
he thus was subordinate on the out of work list to Flores who
had restored his eligibility for referral on May 8, 1973. Never-
theless, the Union referred Estler, and not Flores (who had
been out of work since December 8, 1972), to a job on June
14, 1973.18
D. The Implausible and Pretextual Reason Asserted for the
Departures From the Referral Procedures
The Respondent Union admits that the repeated referral of
Union members Carroll and Estler to jobs to which nonunion
members Flores and Colletti had superior claims was con-
trary to the referral procedures in the collective-bargaining
agreement between the Respondents. The only explanation
offered by the Union for these conceded departures from the
contractual referral procedures is that contained in the tes-
timony of Union Employment Manager Segall. He testified
that on a date which he could neither remember nor approxi-
mate, except that it was in 1973, Union Business Manager
Joseph Cavanaugh gave him "a pamphlet . . from the-Inter-
national" which recommended that in future contracts nego-
tiated by the Union, applicants for employment who had
passed the joint apprentice training committee (JATC) "re-
quirements" should be classified in group I (R-1). Segall
testified that he interpreted the pamphlet thus given to him
15 See G C Exh. 5 A
16 See GC Exh 6A
n Estler was entitled to priority in referral over Flores because the latter,
by reason of his failure to sign the register , was then ineligible and was not
restored to eligibility until May 8, 1973 See in 14, supra
18 In the interim, Colletti had been dispatched to a job on June 8, 1973.
NASSAU-SUFFOLK CHAPTER OF THE NECA 899
,.as going into effect at that time ," that he therefore errone-
ously regarded Carroll and Estler , who had acquired journey-
man status by passing the JATC examination , as in R-1
instead of R-4, their proper classification , and that he accord-
ingly referred Carroll and Estler to jobs to which Flores and
Colletti concededly had greater entitlement . I place no cre-
dence whatsoever in Segall 's explanation for these departures
from the contractual referral procedures.
Segall has been a member of the Respondent Union since
1948. He also is "an official delegate" of the Union, and since
July 1972, by appointment by the Union 's business manager,
he has been the manager of the Union 's exclusive hiring hall.
According to his own testimony , Segall 's "duties as employ-
ment manager is [sic] to see that the referral procedure in the
collective bargaining contract is applied to all men on the
referral list." Segall thus was thoroughly familiar with the
contract 's referral procedures which he administered and
which governed his referral of applicants to jobs in electrical
construction work . The contract pursuant to which Segall
managed the Union 's exclusive hiring hall had an expiration
date of "midnight , April 30, 1974," -and provision for its
automatic renewal thereafter . Segall admitted that the refer-
ral procedures in the contract could not be modified unilater-
ally, "and would have to have the agreement of the employer
as well as the Union."" Carroll and Estler admittedly had
the same R-4 classification for referral purposes as Flores
and Colletti when the former two concededly were referred
to jobs to which the latter two had superior claims.20 A
mere cursory examination of the pamphlet pursuant to which
Segall allegedly concluded that Carroll and Estler should be
classified as R-1 is sufficient to clearly and unequivocally
reveal that it is only a recommendation from the Union's
parent International to the Respondent Union of provisions
which the latter should seek to include in the "next collective
bargaining agreement" negotiated by the Union , and that it
is not "a modification" of the contract then in effect.21 All
of the foregoing convinces me that Segall , a union official of
quite obvious intelligence , could not possibly have misinter-
preted the International 's recommendation of future contract
provisions as an amendment of the current contract, or "as
going into effect at that time," and I regard his testimony to
that effect as unworthy of any credence or belief.
My conclusion regarding the lack of credibility of Segall's
explanation for his departures from proper referral proce-
dures is buttressed by the Union 's hiring hall cards of Flores,
Colletti, Carroll, and Estler in evidence . These cards disclose
that when Flores and Colletti were reclassified from "tempo-
rary employee" to "R-4," notations to that effect and the
dates of the reclassifications were made on their respective
cards . 22 There is no like entry on the cards of either Carroll
or Estler to support Segall 's testimony that he interpreted the
receipt of the International's contract recommendations as a
reclassification of their status from R-4 to R-1 "going into
19 There is no evidence or contention that the referral procedures in the
Respondents ' collective -bargaining agreement were ever modified prior to
the date of the hearing in this case
20 On May 12, 1973, after Carroll improperly was referred to several jobs
to which Flores and Colletti had greater entitlement, Carroll passed the
Respondent Union's journeyman 's examination and, in accordance with the
contract, he then was correctly reclassified as R-1
21 See Resp Exh 3
22 See G C Exhs 4 & 5A
effect at that time ."23 To the contrary, the Union 's hiring
hall records affirmatively disclose that when Carroll passed
the Union 's journeyman 's examination on May 12 , 1973, and
then was properly reclassified from R-4 to R-1,24 the Union
prepared a new R-1 card for Carroll on June 8 , 1973, on
which it noted all his subsequent referrals to jobs 2' and it
coincidentally ceased using his R-4 card notwithstanding
that there was plenty of space thereon for additional
entries . 16 Moreover , even after Estler failed the Respondent
Union 's journeyman 's examination on May 12 , 1973, Segall
continued to refer him to jobs to which Flores , by virtue of
his longer period of unemployment , had greater
entitlement.27
I conclude from all the foregoing that Segall 's testimony,
that he interpreted the International Union 's recommenda-
tion of provisions for inclusion in future contracts as a modifi-
cation of the current contract 's referral procedures "going
into effect at that time," is a patently implausible after-
thought and pretext to conceal the real motive for the admit-
ted departures from the referral procedures of the Respon-
dent 's collective-bargaining agreement.
E. Contentions and Concluding Findings
1. The discriminatory failure to refer Flores and Colletti
to jobs
The complaint in this case alleges that the Respondent
Union failed and refused to refer Flores and Colletti to jobs
because they were not members of the Union, and that the
Union thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act.
As found above on undisputed evidence, Flores, who is not
a member of the Respondent Union, has been unable since
December 8, 1972, to obtain a referral to a single job through
the Union's exclusive hiring hall, while during the same
period, Carroll and Estler, who are members of the Union,
have been repeatedly referred to jobs to which, under the
contract's referral procedures and absent discrimination,
Flores and Colletti (also not a member of the Union) had
better claims. As further found above, the explanation offered
by Union Employment Manager Segall for according priority
to union members Carroll and Estler for jobs to which nonun-
ion members Flores and Colletti had superior claims is an
implausible and patently incredible pretext to conceal the real
23 See G C Exhs 6A and 7B
24 See fn 20, supra
25 See G C Exh 6B
26 See G C Exh 6A
27 Segall's explanation for referring Estler rather than Flores to a job on
June 14, 1973, was that he "hadn't [yet] received the memo" which advised
him of Estler's failure I place no credence in the explanation for the follow-
ing reasons In the case of Carroll who took and passed the same examina-
tion on the same day (May 12, 1973) that Estler failed, Segall testified that
he received notice thereof "a week or two after he [Carroll] had passed the
examination " I note in this regard that based on his receipt of notice that
Carroll passed the test, Segall prepared a new R -1 referral card for Carroll
which is dated June 8, 1973 See G C Exh 6B I therefore do not believe
Segall's testimony that he was not aware on June 14, 1973, when he referred
Estler to a job, that the latter had flunked the same journeyman 's examina-
tion on May 12, 1973, which he already knew that Carroll had passed Based
on this and other similar inconsistencies and self-contradictions in Segall's
testimony , and on his demeanor, I regard him as an unreliable witness whose
testimony is, for the most part, worthy of little credence.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motive for his failure to follow the referral procedures of the
collective-bargaining agreement.
In Shattuck Denn Mining Corporation (Iron King Branch)
v. N.L.R.B, 362 F. 2d 466, 470 (C.A. 9, 1966), the court of
appeals aptly stated the following in respect to an employer's
assignment of pretextual motives:
Nor is the trier of the fact-here the trial
examiner-required to be more naif than is a judge. If
he finds that the stated motive . . . is false, he certainly
can infer that there is another motive. More than that,
he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where,
as in this case, the surrounding facts tend to reinforce
that inference.
That rationale applies equally to the Union's conduct herein.
In this case, the Respondent Union has furnished a pretextual
explanation for the preferences given to union members to
jobs to which nonunion members had greater claim The
compelling inference therefrom, which I make, is that union
considerations motivated the preferential referrals of the
union members.
The Board's decision in International Union of Operating
Engineers, Local 18, AFL-CIO (William F Murphy), 204
NLRB 681 (1973), requires the same presumption or infer-
ence. There, the Board stated in part as follows:
When a union prevents an employee from being hired or
causes an employee's discharge, it has demonstrated its
influence over the employee and its power to affect his
livelihood in so dramatic a way that we will
infer-or, if you please, adopt a presumption
that-the effect of its action is to encourage union mem-
bership on the part of all employees who have perceived
that exercise of power [citing Radio Officers' Union v.
N.L.R.B., 347 U.S. 17 (1954)]. But the inference may be
overcome, or the presumption rebutted, not only when
the interference with employment was pursuant to a
valid union-security clause, but also in instances where
the facts show that the union action was necessary to the
effective performance of its function of representing its
constituency.. . .
clearly is nevertheless responsible for this conduct which was
within the scope of Segall's referral authority.
The Respondent Union further contends that Flores and
Colletti, who were classified as R-4 applicants, would, in any
event, not have been referred to the jobs to which Carroll and
Estler admittedly were improperly dispatched. The Union
bases this contention on the testimony of Segall that in assign-
ing Carroll and Estler to these jobs, he regarded them as in
the R-1 classification, and his further testimony that a
paucity of positions for R-1 applicants existed "since the
summer of 1973." I reject this contention as unsupported by
the record as credited.
As noted above, I conclude that Segall's testimony (that he
regarded Carroll and/or Estler as in R-1) is incredible partly
because their referral cards in evidence discloses that at the
times in question, they clearly were considered as in R-4, not
R-1, but nevertheless were improperly referred to jobs to
which R-4 applicants Flores and Colletti had better claims.
Moreover, as found above, even after Estler failed the Re-
spondentUnion's R-1 journeyman's examination on May 12,
1973, and thus obviously could not have been regarded as an
R-1, Segall continued nevertheless to refer him on June 14,
1973, and thereafter, to jobs to which Flores had superior
claims under the contract.21 There was thus no paucity of
jobs for R-4 applicants in January 1973, when Segall referred
R-4 applicant Carroll to two jobs to which Flores and Col-
letti both had superior claims, nor on June 14, 1973, when he
granted an improper preference to R-4 applicant Estler over
Flores 3°
I conclude from all the foregoing that the Respondent has
failed to adduce any credible evidence to overcome the com-
pelling inference that union considerations motivated the im-
proper referral of union members Carroll and Estler to jobs
to which, under the collective-bargaining agreement, nonun-
ion members Flores and Colletti had superior claims. I there-
fore find and conclude that by the said conduct, the Respond-
ent unlawfully encouraged union membership," and
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) and (2) of the Act.
2. The Respondent Union 's failure and refusal to permit
Flores to take its journeyman 's examination
The Respondent Union makes no contention that its failure
to refer Flores and Colletti to the jobs to which it improperly
dispatched union members Carroll and Estler resulted from
its admittedly lawful union-security clause, or was motivated
thereby. It likewise made no contention and advanced no
evidence that the preferences accorded to union members
Carroll and Estler over nonunion members Flores and Col-
letti "was necessary to the effective performance of its func-
tion of representing its constituency."
The Union did contend, however, that since Segall acted
"in contravention of the instructions which had been given to
him" to refer applicants in accordance with the contract, it
is not responsible for his conduct which admittedly was con-
trary to the referral procedures in the contract. I regard this
contention as devoid of ment Segall clearly was the Union's
agent for referring applicants to jobs, and even assuming that
he acted contrary to instructions in making these improper
referrals (which I do not believe)," the Respondent Union
The complaint in this case alleges in paragraph 17 that the
Union failed and refused to permit Flores to take its jour-
neyman's examination because he filed charges of discrimina-
tion against the Union with the New York State Division of
Human Rights, and that the Union thereby violated Section
21 As previously noted, I do not believe Segall's testimony that the prefer-
ences in assignments given to union members Carroll and Estler resulted
from a misinterpretation of the International 's recommendations of changes
for inclusion in future collective -bargaining agreements Moreover, in his
reply to a question from Respondent Union's counsel which quite obviously
was intended to elicit the opposite response, Segall admitted that he had
notified his superior, Union Business Manager Cavanaugh, that he "had
decided to apply the [International's] recommended definition for the
R-1 classification " to future referrals
29 See fn 27, supra
30 Collettf, in the interim, had also been referred to a job, notwithstanding
his admitted R-4 status
31 Radio Officers ' Union v NL.R.B, 347 U S 17, International Union of
Operating Engineers, Local 18 (William F Murphy), supra
NASSAU-SUFFOLK CHAPTER OF THE NECA 901
8(b)(1)(A) and (2) of the Act. The record in respect to this
allegation of the complaint is as follows:
As found above, Flores on a number of occasions sent
letters to the Respondent Union requesting permission to
take its journeyman's examination , the passing of which is
required for classification in the highest priority referral
group R-1, but he received no response to any of his com-
munications. The last such letter was sent by Flores to the
Respondent Union by registered mail on February 24, 1973,
but again produced no answer. As further found above, in
January 1973, during a visit to the Union's employment of-
fice, Flores asked Union Employment Manager Segall why he
had received no response to his requests to the Union's Ex-
ecutive Board to take the journeyman examination , and Se-
gall replied:
Maybe Ernie, maybe this is because you brought us up
on charges' in 1969 with the Human Rights Division,
and, you know, the board, they don't take this lightly.
Nobody likes to be brought up on these charges.
The Union adduced no testimony regarding its motive for not
permitting Flores to take its journeyman' s examination.
Based on the foregoing record, the General Counsel con-
tends that the Union's failure and refusal to permit Flores to
take the R-1 test was motivated by his 1969 charge to the
Human Rights Division of discrimination against him by the
Union, that the filing of the said charge by Flores was a
concerted activity protected by Section 7 of the Act, and that
therefore, the Union's reprisal against Flores for filing the
charge violated Section 8(b)(1)(A) and (2) of the Act. I con-
clude that the record is insufficient to establish that the
Union's failure to permit Flores to take its journeyman's
examination was motivated by Flores' 1969 charge against it.
As noted above, the only evidence of the Union's motiva-
tion for not permitting Flores to take its journeyman's test is
Segall's speculation that it might have been motivated by
Flores' charge to the Human Rights Division against the
Union. There is no evidence in the record that Segall was
privy to any knowledge of the Union's motive for not grant-
ing Flores permission to take its test. There is likewise no
evidence in the record that Segall's position as the Union's
employment manager included any authority over, or partici-
pation in, the Union's decisions on whether to grant or deny
requests for permission to take the Union's R-1 journeyman's
examination. I therefore conclude that the General Counsel
has failed to establish by the requisite preponderance of the
testimony that the Union's failure to permit Flores to take its
journeyman's examination was motivated by his charge
against the Union to the New York State Division of Human
Rights, and I will recommend dismissal of the complaint in
this respect.32
3 The unlawful provisions of the collective-bargaining
agreements
As indicated above, at all times material herein , Respond-
ents NECA and the Union have been parties to a collective-
bargaining agreement pursuant to which the Union is the
"sole and exclusive source of applicants for employment" as
electricians for the employer-members of NECA. The said
agreement has also been adopted by some employers who are
not members of Respondent NECA by signing a letter of
assent agreeing to be bound by its terms. The Respondent
Union is required by the agreement to refer applicants for
employment as electricians without discrimination by reason
of membership or nonmembership in the Union." The em-
ployers have the right to reject any applicant for employment.
Membership in the Union on and after the 8th day of employ-
ment is, at the option of the Union, a condition of employ-
ment.
The agreement provides for a series of priorities or prefer-
ences in referral based on various criteria. To qualify for
group I (R-1), the highest category for referral purposes, an
applicant for employment must have been employed for "at
least one year in the last four years under a collective bargain-
ing agreement between the parties of this Referral Proce-
dure." Another criteria for classification in group I is that the
applicant must "have passed a journeyman' s examination
given by Local #25 of the I.B.E.W. [the Union]," and to be
eligible to take that examination, the applicant also must have
had "one year [of work] in the last four years under a Collec-
tive Bargaining Agreement between the parties to this Agree-
ment." The agreement further provides that "an applicant
who has registered for referral" to a job and who thereafter
works as an electrician in the building and construction trade
in Nassau and Suffolk Counties "for an employer who does
not pay the wage rates and fringe benefits contained in this
Collective Bargaining Agreement, shall be ineligible for refer-
ral . . . for a period of one year following the termination of
such employment."
The complaint alleges and the General Counsel contends
that the foregoing provisions of the agreement between
NECA and the Union, and between the Union and the non-
members of NECA who have agreed to be bound thereby, are
unlawful on their face because they give preference and pri-
ority in employment opportunities to applicants who pre-
viously have worked as electricians for employers who had
collective-bargaining agreements with the Union, and dis-
criminate against applicants with equal or even greater
competence and experience merely because the latter have
not worked 1 year in the last 4 for an employer who was
under contract with the Union. The General Counsel, relying
on the Board's decision in International Photographers of the
Motion Picture Industries, Local 659 of the International Al-
liance of Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada
(MPO- TV of California, Inc., Y-A Productions, Inc.)," con-
tends that the maintenance and enforcement of the foregoing
provisions "penalize employees for having exercised their
statutory right to refrain from bargaining collectively
through Respondent [Union] in the past, while rewarding
those employees who have chosen to work in units repre-
sented by Respondent [Union],"" and thereby the Respond-
ents NECA and Alcap are engaging in unfair labor practices
32 In view of my conclusion above, I deem it unnecessary to consider or
pass on the Respondent Union's motion to strike par 17 of the complaint
See fn I, supra.
33 As found above, however, this has not always been the case
34 197 NLRB 1187 (1972)
3s Id
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8(a)(1) and (3) of the Act, and
the Respondent Union is violating Section 8(b)(1)(A) and (2)
of the Act.
The Respondent Union contends that the contract provi-
sions at issue herein are distinguishable from those which the
Board found violative of the Act in the International Photog-
raphers case, supra, on which the General Counsel relies. The
Respondent Union further contends that the provisions of the
Respondents' collective-bargaining agreement in this case
"are sufficiently similar to those approved" by the Board in
Local 367, International Brotherhood of Electrical Workers,
AFL-CIO (Caston Branch, Penn-Del-Jersey Chapter, Na-
tional Electrical Contractors Association), 134 NLRB 132,
and in Local Union No. 269, International Brotherhood of
Electrical Workers, AFL-CIO (Mercer County Division, New
Jersey Chapter, National Electrical Contractors Association,
149 NLRB 768 (1964), enfd. 357 F.2d 51 (C.A. 3, 1966), as
to render the decisions in those cases "dispositive of the issue
in this case."36 Respondents NECA and Alcap contend that
the allegedly illegal provisions in this case are lawful in the
light of the special exceptions granted to the building and
construction industry by Section 8(f) of the Act. The said
Respondents further contend that the complaint in this case
is time-barred by Section 10(b) of the Act because it is based
on a contract which was executed on November 1, 1972. I
find no merit in any of the Respondents' contentions for the
reasons indicated hereinafter.
It cannot be gainsaid that the Board's decisions cited above
by the Respondent Union, and those cited by me in footnote
36, supra, all involved collective-bargaining agreements
which contained provisions substantially similar to those
which are alleged in this case to unlawfully discriminate
against applicants for employment who have not previously
worked for employers who were parties to collective-bargain-
ing agreements with the Union. However, the legality of the
provisions which are under attack in this case were not liti-
gated or determined in any of the said cases. Thus, in Local
Union No. 367, IBEW, supra at 135, footnote 2, and in Local
Union No. 269, IBEW, supra at 773, footnote 5, the Board
specifically refused to pass on the validity of the contract
provisions because their illegality had not been alleged in the
complaint . In Local Union No. 164, IBEW, supra at 197, the
General Counsel conceded that the contract provisions were
lawful, and the issue of their validity thus was not litigated.
Finally, in Local # 42, International Association of Heat and
Frost Insulators, supra, the legality of the provision granting
preference in employment opportunities on the basis of prior
employment under a contract with the union does not appear
to have been raised, discussed, or determined. I therefore
reject as devoid of merit, the contention of Respondent Union
that the Board has "approved" the legality of the provisions
which are under attack herein, or that the cited decisions are
"dispositive of the issues in this case."
As noted above, the Respondent Union further argues that
the provisions of the collective-bargaining agreement under
attack herein, which grant priority in employment opportuni-
ties to applicants who have worked for 1 year in the last 4 for
an employer under a contract with the Union, are distinguish-
able from those involved in the International
Photographers case, supra, which the Board found unlawful.
In this regard, the Union urges that the collective-bargaining
contract in the International Photographers case prevented an
applicant from obtaining initial employment with any signa-
tory to the agreement unless he had been represented by the
union in prior employment , whereas in the instant case,
"there is no requirement that an individual have prior em-
ployment at which has was represented by Local 25 [the
Union] in order to work through the Local 25 - NECA
referral system."" I regard the asserted distinction between
the two contracts as without a difference, for both discrimi-
nate against an applicant who has not "had prior employment
at which he was represented by the Union." The only differ-
ence between the two provisions which I can perceive is the
degree or extent of the discrimination and diminution in
employment opportunities, a difference which I deem irrele-
vant to the question of whether the provisions discriminate
on the basis of prior representation by the Union.38
This brings us to the contention of Respondents NECA
and Alcap that under Section 8(f) of the Act, the provisions
in question are lawful in collective -bargaining agreements in
the building and construction industry. Section 8(f) of the Act
provides in pertinent part as follows:
It shall not be an unfair labor practice under subsection
(a) and (b) of this section for an employer engaged
primarily in the building and construction industry to
make an agreement covering employees engaged (or
who, upon their employment , will be engaged) in the
building and construction industry with a labor organi-
zation of which building and construction employees are
members . . . because . . . (4) such agreement specifies
minimum training or experience qualifications for em-
ployment or providesfor priority in opportunities for em-
ployment based upon length of service , with such
employer, in the industry or in the particular geograph-
ical area . . . . [Emphasis supplied.]
The provisions under attack in this case grant "priorities in
opportunities for employment," based not "upon length of
service with the employer," in this case, the employer-mem-
hers of NECA , but on service "under a collective bargaining
agreement between the parties to this Referral Procedure,"
which, in this case, includes employers who are not members
of the NECA multiemployer unit who signed a letter of assent
and thereby agreed to be parties to the "referral
procedure."39 Thus, the Local 25 - NECA agreement grants
priorities in employment to applicants which is based, not on
"length of service (seniority) with the employer," but rather
on the basis of having had prior employment at which he was
represented by the Union, a priority for which I find no
sanction in Section 8(f)(4) of the Act. I therefore reject the
37 Respondent Union's brief, p 9
36 Similar contract provisions also were involved in National Electrical 38 Indeed , according to Union Employment Manager Segall, the oppor-
Contractors Association (Hudson-Bergen Division of the New Jersey Chapter tunities for employment at the present time by applicants who are not
of NECA). 190 NLRB 196 (1971 ), and in Local # 42 of the International classified as in group I (R-1) are virtually nil.
Association of Heat and Frost Insulators and Asbestos Workers, 39 See International Photographers of the Motion Picture Industries, Inc.,
AFL-CIO (Catalytic Construction Company), 164 NLRB 916 (1967) Local 659, etc., supra
NASSAU-SUFFOLK CHAPTER OF THE NECA 903
contention that Section 8(f) sanctions the provisions which
are alleged herein to be unlawful.
The Respondents NECA and Alcap, relying on the Su-
preme Court's decision in Local Lodge No. 1424, Interna-
tional Association of Machinists, AFL-CIO [Bryan Manufac-
turing Company],40 finally contend that the complaint in
this case is time-barred by Section 10(b) of the Act because
the contract containing the allegedly unlawful provisions was
executed on November 1, 1972, more than 6 months before
the charges in these consolidated cases were filed. This con-
tention is clearly devoid of meet.
The complaint herein is based on the maintenance and
enforcement of contract provisions which allegedly are illegal
on their face. The maintenance and enforcement of a collec-
tive-bargaining agreement which on its face contains unlaw-
ful provisions is a continuing violation of the Act, and re-
quires no evidence of events preceding the Section 10(b)
period to establish the violation." The Local Lodge No.
1424, case, "supra, which the Respondents cite, and on which
they rely, involved a collective-bargaining agreement which
on its face was perfectly lawful and whose invalidity could
only be established by proof of events preceding the 10(b)
period. The reliance of the Respondents on that decision is
misplaced. I therefore reject the contention that the com-
plaint in this respect is time-barred.
Conclusion
The collective-bargaining agreement between NECA and
the Union, and between the Union and nonmembers of
NECA who have agreed to be bound thereby, undisputedly
grants preference in employment opportunities to applicants
who have worked as electricians for employers who had col-
lective-bargaining agreements with the Union, and it dimi-
nishes 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. The said
agreement also denies eligibility for referral for 1 year to any
registrant who works for an employer in the geographical
area who does not pay the wage rates and fringe benefits
contained in the agreement. Such discrimination has a natu-
ral tendency to encourage membership in the Union .41 The
Respondents' collective-bargaining agreement also
-"penalize[s] employees for having exercised their statutory
right to refrain from bargaining collectively through Re-
spondent [Union] in the past, while rewarding those who
have chosen to work in units represented by Respondent
[Union] "43 I therefore find and conclude that by maintain-
ing and enforcing the said contract provisions, the Respond-
ent Union has engaged in and is engaging in unfair 'labor
practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act, and the Respondents NECA and Alcap have en-
40 362 U S 411 (1960)
41 N.L.R.B. v E F Schuck Construction Co., Inc., 243 F 2d 519, 521
(C A 9, 1957).
42 Radio Ofcers' Union v NLRB, supra at 44-45 International Union
of Operating Engineers, Local 18, AFL-CIO (William F Murphy), supra
43 International Photographers of the Motion Picture Industries, Local
659, etc, supra.
gaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
Respondent NECA and its employer-members described in
section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent Union failed and
refused to refer Ernesto Flores and George Colletti to availa-
ble job openings because they were not members of the
Union, I will recommend that it make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by the payment to them of a sum
of money equal to the amount they normally would have
earned absent the discrimination, less their net earnings dur-
ing the said period or periods of discrimination.
I will also recommend that the Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all referral and other records nec-
essary to analyze and determine the amounts of backpay due
under the terms of this recommended remedy.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondents, Nassau-Suffolk Chapter of the National
Electrical Contractors' Association, Inc., and Alcap Electri-
cal Corporation, are employers engaged in commerce and in
operations affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent, Local Union No. 25, International Brother-
hood of Electrical Workers, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to refer, Ernesto Flores and
George Colletti to job vacancies because they were not mem-
bers of the Respondent Union, thereby encouraging member-
ship in a labor organization, the Respondent Union has en-
gaged in and is engaging in unfair labor "practices within the
meaning of Section 8(b)(2) of the Act, and has restrained and
coerced employees in the exercise of their rights guaranteed
by the Act, in violation of Section 8(b)(1)(A) of the Act.
4. By maintaining , enforcing, and otherwise giving effect to
an exclusive hiring-hall contractual arrangement which gives
preference in referrals and employment opportunities to ap-
plicants for employment who have previously worked for
employers who had collective-bargaining agreements with
the Respondent Union, and which discriminates against ap-
plicants for employment with equal or greater competence
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and/or experience merely because the latter had not worked
for an employer who had a contract with the Respondent
Union, 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 their collective-
bargaining agreement, the Respondents NECA and Alcap
have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act, and
the Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in this case, I hereby
issue the following recommended:
ORDER 14
A. Respondent Local Union No. 25, International Broth-
erhood of Electrical Workers, its officers, agents , and repre-
sentatives , 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 the Respondent Union.
(b) Maintaining, enforcing, or otherwise giving effect to the
provisions of its collective-bargaining agreement with Nas-
sau-Suffolk Chapter of the National Electrical Contractors'
Association, Inc., or to any modification, extension, or
renewal thereof, which grant preference in employment op-
portunities to applicants based on previous employment with
employers who had collective-bargaining agreements with it,
which discriminate against applicants for employment be-
cause of lack of previous employment with employers who
had contracts with it, and 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
organization as a condition of employment , as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effec-
tuate 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 discrimi-
nation against them in the manner provided in the section of
this Decision entitled "The Remedy."
(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 opera-
tions 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 notice marked "Appendix
A."45 Copies of said notice, on forms provided by the Re-
gional 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 the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein against
the Respondent Union be dismissed insofar as it alleges viola-
tions of the Act other than those found above.
B. Respondents Nassau-Suffolk Chapter of the National
Electrical Contractors' Association, Inc., and Alcap Electri-
cal Corporation, their officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to the
provisions of their collective-bargaining agreement with Lo-
cal Union No. 25, International Brotherhood of Electrical
Workers, or to any modification, extension or renewal
thereof, which grant preferences in employment opportuni-
ties to applicants based on previous employment by employ-
ers who had collective bargaining agreements with the above-
named Union, which discriminate against applicants for
employment because of lack of previous employment by em-
ployers who had contracts with the said Union, and 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, restrain-
ing, 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 mem-
bership in a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effec-
tuate 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 notice at-
tached hereto as "Appendix B."46 Copies of said notice, to
be furnished by the Regional Director for Region 29, shall,
44 In the event no exceptions are filed as provided by Section 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
Section 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
45 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
46 See fn 45
NASSAU-SUFFOLK CHAPTER OF THE NECA 905
after being duly signed by Respondents' representatives, be
posted immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondents 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 (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 have
been taken to comply herewith.
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 has 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 ef-
fect to any exclusive hiring arrangement or practice with
Local Union No. 25, International Brotherhood of Elec-
trical Workers, or to any modification, extension, or
renewal thereof, where preference in referral for employ-
ment is based on prior employment by an employer who
had a contract with the said Union, or which denies
eligibility for referral for employment because the appli-
cant 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 AND
ALCAP ELECTRICAL CORPORATION
I