Sachs Electric Co.

National Labor Relations Board - Board Decisions

Mar 26, 1980

248 N.L.R.B. 669 (N.L.R.B. 1980)

SACHS ELECTRIC COMPANY 669
Sachs Electric Company and Donald W. Jones
Springfield Division, Kansas City Chapter, National
Electrical Contractors Association, Inc. and
Donald W. Jones
International Brotherhood of Electrical Workers,
Local Union No. 453 and Donald W. Jones.
Cases 17-CA-8372, 17-CA-8374, and 17-CB-
1921
March 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On July 17, 1979, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, Respondent Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 453, herein called Respondent Union,
filed exceptions to the Administrative Law Judge's
Decision, a supporting brief, and a motion to
reopen the record. The Charging Party later filed
cross-exceptions and a supporting brief. Respon-
dent Union then filed a brief in opposition to the
Charging Party's cross-exceptions. Additionally,
Respondent Sachs Electric Company, herein called
Respondent Sachs, and Respondent Springfield Di-
vision, Kansas City Chapter, National Electrical
Contractors Association, Inc., herein called Re-
spondent NECA, filed a brief in opposition to the
Charging Party's exceptions. Finally, the General
Counsel filed a response in opposition to Respon-
dent Union's motion to reopen the record and a
motion to strike the attachments filed in support of
said motion.
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, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge, as modified herein, and to
adopt his recommended Order, as modified
herein. 2
Respondent Union and the Charging Party have 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 credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard 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.
2 Respondent Union's motion to reopen the record is hereby denied,
inasmuch as it raises no issues which are relevant to this proceeding. Ad-
ditionally, since they relate to matters which have no relevance to this
proceeding, the affidavit and other attachments to Respondent's motion
are hereby stricken from the record
248 NLRB No. 92
The Administrative Law Judge found that Re-
spondent Union, which administers a hiring hall
and is party to an exclusive referral agreement with
Respondent NECA, violated Section 8(b)(1)(A)
and (2) of the Act by discriminatorily refusing to
permit Bill Rodman and Larry J. Nolon, members
of other IBEW locals, to sign the highest priority
referral list, 3 and Section 8(b)(l)(A) by threatening
to file internal union charges against Rodman and
Nolon, and in fact filing such charges against
Rodman, because they had protested and sought to
vindicate their right to sign the highest priority re-
ferral list. We agree.
Contrary to the Administrative Law Judge,
Chairman Fanning and Member Jenkins additional-
ly find that Respondent Union violated Section
8(b)(1)(A) when, in late 1977, Union Steward
Danner and Union Business Manager Hensley re-
quested that travelers, members of other IBEW
locals who had been referred out of Respondent
Union's hiring hall, quit their jobs with Respondent
Sachs in favor of unemployed members of Respon-
dent Union. 4 The Administrative Law Judge re-
Further, we agree with the Administrative Law Judge that the appeals
committee's decision in favor of Respondent Union, because it had not
"willingly and knowingly" deprived Rodman and Nolan of their contrac-
tual right to sign the Book I referral list, did not resolve the question of
whether statutory rights were violated since the issue framed by the ap-
peals committee was not factually parallel to the statutory issue now
before us.
Accordingly, in agreement with the Administrative Law Judge and
consistent with the principles of Spielberg Manufacturing Company,
112
NLRB 1080 (1955), we will not defer to the appeals committee's deci-
sion. Suburban Motor Freight, Inc., 247 NLRB No. 2 (1980). Member
Truesdale agrees with the result because he finds the instant case distin-
guishable from Atlantic Steel Company, 245 NLRB No. 107 (1979). There,
the Board defered to an arbitration award because the arbitrator's find-
ings were "complete and comprehensive . . . and factually parallel to the
unfair labor practice question." SI. op., p 7.
3 Respondent Union's hiring hall maintains a series of referral lists To
be eligible to sign "Book ," the highest priority referral list, an applicant
must have at least 4 years of experience in the trade, be a resident of Re-
spondent Union's geographic jurisdiction, have passed a journeyman's ex-
amination given by any IBEW local, and have been employed for I year
during the preceding 4 years under an agreement to which Respondent
NECA and Respondent Union are, or were, parties. "Book II," the
second highest priority referral list, may be signed by anyone who meets
all the requirements of Book I except the residency requirement A
number of lesser priority lists are also maintained based upon experience
in the trade, residency, journeyman status, and previous work under
agreements between Respondent NECA and Respondent Union. The Ad-
ministrative Law Judge found that both Rodman and Nolon met the cri-
teria for signing Book I, but were prevented from signing it because they
were "travelers"; i.e., members of other IBEW locals, not Respondent
Union. Member Jenkins would note additionally that, for the reasons
stated in his dissenting opinion in Interstate Electric Company, 227 NLRB
1996 (1977), he considers the granting of a referral priority based upon
past experience with employers signatory to a union contract unlawful.
Nonetheless, inasmuch as this aspect of the referral agreement is not in
issue in this proceeding, he joins his colleagues in finding Respondent's
discriminatory refusal to accord qualified travelers Book I priority viola-
tive of Sec. 8(b)(1)(A) and (2) of the Act.
4 For the reasons given by the Administrative Law Judge, Member
Truesdale would adopt his recommendation and dismiss this allegation of
the complaint. In addition. Member Truesdale notes that the cases cited
by his colleagues in support of their finding that Respondent Union's re-
Continued
S C S T C m s a i v
6 69ud e f un h a e
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jected the General Counsel's allegation that these
"requests" constituted unlawful "directives" be-
cause, according to the Administrative Law Judge,
there was no element of restraint or coercion in
said requests since there was no evidence that the
requests were accompanied by direct threats of re-
prisal. Contrary to the Administrative Law Judge
and Member Truesdale, Chairman Fanning and
Member Jenkins believe that, under the circum-
stances of this case, Respondent Union's "requests"
were clearly coercive and hence unlawful.
The record shows that, in late November 1977,
approximately 32 of the electricians employed by
Respondent Sachs at its Ft. Leonard Wood jobsite
were travelers. On November 29, according to
credited testimony, Union Steward Danner told a
traveler that he (Danner) had been told by Union
Business Manager Hensley that a number of Re-
spondent Union's members were out of work and
that Danner should look for "volunteers" among
the travelers to relinquish their jobs to the local
members. Later that afternoon, Hensley and
Danner approached two other travelers and again
stated that, since Respondent Union's members
were "on the bench," Respondent Union wanted
travelers to quit. The next day, Rodman spoke to
Danner regarding Respondent Union's request. In
response to Rodman's expression of reluctance to
leave his job, Danner stated: "If I was in someone
else's jurisdiction and I was asked to leave I cer-
tainly would do so." Within several days after the
foregoing incidents, all 32 travelers either had been
laid off by Respondent Sachs or had quit.
The operation of a union hiring hall imposes
considerable responsibilities on the union agents in
charge of the hall. Thus, they must neither foster
nor countenance discrimination with regard to
access to, or referral from, the hall on the basis of
International union membership, local union mem-
bership, or any other arbitrary, invidious, or irrele-
vant considerations. E.g., Pattern Makers' Associ-
ation of Detroit and Vicinity, Pattern Makers' League
of North America, AFL-CIO (Michigan Pattern
Manufacturers Association), 233 NLRB 430 (1977);
Building Material, Truck Drivers, Chauffeurs, and
Helpers, Local No. 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Explo, Inc.), 229 NLRB 347 (1977);
Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974);
Pacific Maritime Association, 209 NLRB 519 (1974).
Similarly, a union violates the Act if it coerces em-
ployees previously referred out of its hiring hall
quest to travelers to quit were coercive are cases in which similar re-
quests were accompanied by threats or by actual violence. Absent such
circumstances here, Member Truesdale is not persuaded that the General
Counsel has met his burden of establishing that the requests made by this
Respondent were coercive and violated the Act.
into quitting their jobs based on such impermissible
considerations. See International Brotherhood of
Electrical Workers, Local 309, AFL-CIO-CLC (R.
Dron Electrical Co., Inc.), 212 NLRB 409 (1974);
see also The Lummus Company v. N.L.R.B., 339
F.2d 728, 734 (D.C. Cir. 1964).
Here, the coercive nature of Danner's and Hens-
ley's requests that travelers quit is manifest. We
have found previously that IBEW locals commonly
"request" travelers to quit so that unemployed
local members can take their places. R. Dron Elec-
trical Co., supra at 414. These "requests" occa-
sionally have been enforced by threats of violence
and even actual violence. Id. Additionally, travel-
ers asked to quit under circumstances such as those
present in the instant case undoubtedly are aware
that the "requests" come from union officials
who, by virtue of their responsibilities in adminis-
tering the hiring hall, control, and will continue to
control, the travelers' livelihoods within the hiring
hall's jurisdiction. Thus, it should not come as a
surprise if these "requests" are construed by travel-
er employees as more than mere solicitations for
"volunteers." In this connection, it is noteworthy
in the instant case that, of the 32 travelers em-
ployed at the Sachs Ft. Leonard Wood project in
late November 1977, none remained in early De-
cember. In short, it strains credulity, and indeed it
contradicts record testimony, to suggest, as does
the Administrative Law Judge, that all the travel-
ers who quit their jobs on the Sachs project did so
voluntarily as a "courtesy" to their Local 453
brethren. Accordingly, contrary to the Administra-
tive Law Judge, we find that, in late November
and early December 1977, Respondent Union co-
erced travelers into quitting their jobs, and that this
conduct violated Section 8(b)(1)(A) of the Act. 5
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6
of the Administrative Law Judge:
"6. By its efforts to cause travelers to quit their
jobs in order to provide jobs for Local 453 mem-
bers, Respondent Union has engaged in, and is en-
gaging in, unfair labor practices within the meaning
of Section 8(b)(l)(A) of the Act."
AMENDED REMEDY
In view of the foregoing finding that Respondent
Union violated Section 8(b)(1)(A) by requesting
travelers to quit the Sachs Ft. Leonard Wood pro-
b Contrary to the Charging Party, neither Respondent NECA nor Re-
spondent Sachs, which is a member of Respondent NECA, is liable for
Respondent Union's actions in this regard, inasmuch as the complaint, as
amended at the hearing, did not specify either Respondent Employer as a
respondent with respect to this incident, and, in addition, their liability
was not fully litigated.
----- ---
SACHS ELECTRIC COMPANY 671
ject, we shall, in addition to adopting those reme-
dies provided in the Administrative Law Judge's
recommended Order, order Respondent to cease
and desist from making such requests and to take
the following affirmative action designed to effec-
tuate the policies of the Act. Respondent Union
shall be ordered to make whole Bill Rodman,
Larry Nolon, and any other traveler who quit his
employment at the Sachs Ft. Leonard Wood pro-
ject because of Respondent Union's unlawful re-
quests" for any loss of earnings they may have suf-
fered because of their compliance with those un-
lawful requests. Backpay shall be computed on a
quarterly basis, plus interest, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).
See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). 7
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, as modi-
fied below, and hereby orders that the Respondent
Union, International Brotherhood of Electrical
Workers, Local Union No. 453, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order, as so modified:
1. Insert the following as paragraph l(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Requesting persons referred out of Respon-
dent Union's hiring hall to quit their jobs because
they are not members of Respondent Union."
2. Substitute the following for paragraph 2(c)
and reletter the subsequent paragraphs accordingly:
"(c) Make whole Bill Rodman, Larry J. Nolon,
and any other similarly affected employee for any
loss of earnings they may have suffered because of
Respondent's unlawful request that they quit their
jobs at the Sachs Ft. Leonard Wood jobsite, in the
manner set forth in the section of the Board's Deci-
sion and Order entitled 'Amended Remedy.'
a It is uncertain from the Administrative Law Judge's Decision, and
the record, how many and which of the 32 travelers employed on the
Sachs project were laid off by Sachs or quit because of Respondent
Union's unlawful requests. We deem this determination an appropriate
matter for the compliance stage of this proceeding.
7 Contrary to our dissenting colleague, we are not persuaded that, as
part of the remedy for the Union's discriminatory refusal to permit
Rodman to register on the referral list in question, he should be reimn-
bursed for his "out-of-pocket expenses in taking to arbitration his claim
that he was entitled to such listing" Such an order is unwarranted here
in view of the availability of the Board's processes for a determination
regarding the Union's unfair labor practices and the adequacy of our
backpay and registration remedy which satisifies the Board's duty under
the Act to restore Rodman to the status quo ante The cases cited in the
dissent are inapposite because they, unlike the instant proceeding, in-
volved special situations which required additional relief to effectuate the
purposes of the Act
"(d) Make whole Bill Rodman and Larry J.
Nolon for any loss of earnings they may have suf-
fered by reason of the discrimination against them
in the manner set forth in the section of this Deci-
sion entitled 'The Remedy.'"
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, concurring in part and dissent-
ing in part:
I agree with Chairman Fanning and Member
Truesdale as to the disposition on the merits of the
unfair labor practices found by the Administrative
Law Judge. I also agree with Chairman Fanning
that Respondent Union violated Section 8(b)(1)(A)
by "requesting" travelers to quit their jobs. Unlike
my colleagues however, I would find that a proper
part of the remedy for Respondent Union's dis-
criminatory refusal to permit Bill Rodman to sign
the Book I referral list is reimbursement for his
out-of-pocket expenses in taking to arbitration his
claim that he was entitled to such listing.
As the Administrative Law Judge found, Re-
spondent Union's business manager twice refused
Rodman's personal attempts to sign Book I, the top
priority referral list, where Rodman belonged, stat-
ing that he was refusing because Rodman was a
traveling IBEW member from another local, not a
member of Respondent Union, and that: "No
goddam traveller is going to sign Book I." This fla-
grant discrimination, committed without any color-
able basis except the business manager's discredited
afterthought that he had doubts as to Rodman's
qualification to be on that list, constituted an imme-
diate threat to Rodman's employment security and
predictably caused him to pursue the appropriate
legal means to secure a prompt remedy. When
Rodman attempted to appeal to an IBEW Interna-
tional vice president, the latter responded that his
appeal should be through the contract appeals pro-
cedure. Rodman retained an attorney to take the
matter from there, and paid for a transcript of the
arbitration hearing as part of the litigation expense.
The Board has interpreted its function of making
employees whole for losses suffered because of
unfair labor practices as including, in appropriate
cases, reimbursement of legal expenses incurred as
a direct result of such unlawful conduct. Baptist
Memorial Hospital, 229 NLRB 45, 46 (1977), enfd.
in relevant part 583 F.2d 906 (6th Cir. 1978). Such
a remedy may be appropriate even when the legal
expenses were incurred, not as a direct result of the
unfair labor practices, but in connection with an
employee's reasonable response to the effects of
that conduct. See Liberty Mutual Insurance Co., 235
NLRB 1387, 1388 (1978), enforcement denied on
other grounds 592 F.2d 595 (Ist Cir. 1979), where
SACHS ELECTRIC COMPANY
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board ordered reimbursement of attorney's fees
an unlawfully discharged employee incurred in de-
fense of an injunction action brought by the em-
ployer because after the discharge the employee
violated a covenant not to compete with the em-
ployer. Here, as in the above cases, only by reim-
bursing the employee for these necessary expenses
will we succeed in making him whole "and in ful-
filling our obligation to remove, insofar as is possi-
ble, the effects of Respondent's unfair labor prac-
tices." Baptist Memorial Hospital, supra at 46. More-
over, as we recognized there, unless we are willing
to shape a full and appropriate remedy, tailored to
the circumstances of the case, we are being un-
mindful of our obligation to demonstrate to the
victimized employee and his fellow employees that
we are prepared to protect the exercise of their
Section 7 rights. Id. at 46, fn. 12; Liberty Mutual
Insurance Co., supra at 1388.
This is not like the cases where we consider the
"extraordinary" remedy of awarding the expenses
of prosecuting a case before the Board. There, at
least, a charging party usually has the viable option
of utilizing the services of the professionals in the
Board's regional office to investigate and litigate
the alleged unfair labor practice. The instant case
falls, rather, within the line of cases where, in var-
ious situations, an individual employee justifiably
has felt compelled to take immediate steps, on his
own, to protect himself against or minimize the
impact of a serious violation of his rights by a
union or an employer. See, e.g., Liberty Mutual In-
surance Co., supra; Baptist Memorial Hospital, supra
(award of legal fees for defense of criminal pros-
ecution as part of enforcement of an unlawful no-
solicitation rule); George A. Angle, 242 NLRB No.
112 (1979) (award of legal fees for defense of suit
for malicious prosecution filed in retaliation for em-
ployee's filing a charge with the Board); Glass
Bottle Blowers Association of the United States and
Canada, AFL-CIO, Local No. 106 (Owens-Illinois,
Inc.), 240 NLRB No. 29 (1979) (award of legal fees
for representation in arbitration proceeding after
union unlawfully refused to process a grievance
fairly). When the Board ultimately vindicates these
rights, and finds that they were violated in an arro-
gant demonstration of raw power, simple justice
and commonsense demand that the consequences of
such acts be fully remedied to the extent that this is
feasible. Otherwise, the apparent impunity with
which such acts were committed will be seen as
having been justified, and the power demonstrated
by the misconduct will be remembered with more
deference than the Board's response to it. Nothing
could more seriously discredit both the processes
of the Board and the purposes of the Act.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the law and has ordered us
to post this notice. We intend to abide by the fol-
lowing:
WE WILL NOT request that travelers, mem-
bers of other IBEW locals, quit their jobs in
order to make room for our local members
who are unemployed.
WE WILL NOT threaten to file or file in-
traunion charges against employees because
they have exercised rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL NOT cause or attempt to cause any
employer to deny employment to, or in any
other manner discriminate against, Bill
Rodman or Larry J. Nolon, or any other em-
ployee applicant, in violation of Section 8(a)(3)
of the Act.
WE WILL NOT refuse to permit qualified ap-
plicants to register in our Referral Book I be-
cause of their lack of membership in our
Local, or because of any other unfair or arbi-
trary consideration.
WE WILL NOT in any like or related manner
restrain or coerce any employees in the exer-
cise of the rights guaranteed them by Section
7 of the Act.
WE WILL NOT make whole Bill Rodman,
Larry J. Nolon, and any other similarly affect-
ed employee, with interest, for any loss of
earnings they may have suffered by reason of
our unlawful request that travelers quit their
jobs at the Sachs Electric Company Ft. Leon-
ard Wood project in order to make room for
unemployed local members.
WE WILL NOT permit Bill Rodman and
Larry J. Nolon to continue to register in our
Referral Book I and dispatch said employees
without regard to their union membership or
other unfair or arbitrary reason.
WE WILL permit any other qualified em-
ployee applicants, upon request, to sign Refer-
ral Book I and dispatch them without regard
to their union membership or other unfair arbi-
trary consideration.
SACHS ELECTRIC COMPANY 673
WE WILL make whole Bill Rodman and
Larry J. Nolon for any loss of earnings they
may have suffered by reason of our discrimina-
tory failure to permit them to sign Book I,
with interest.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAl.
UNION No. 453
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This
case was heard before me on November 20 and 21,
1978,1 in Springfield, Missouri. The charge against Sachs
Electric Company, herein called Respondent Sachs, was
filed by Donald W. Jones, an individual, in Case 17-CA-
8372 on June 22. Jones filed the charge in Case 17-CA-
8374 against Springfield Division, Kansas City Chapter,
National Electrical Contractors Association, Inc., herein
called Respondent NECA, on June 23. Jones filed the
charge in Case 17-CB-1921 against International Broth-
erhood of Electrical Workers Local Union No. 453,
herein called Respondent Union, on May 5. The com-
plaints, as amended, allege that Respondent Union has
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended, and that Respondents NECA
and Sachs (herein collectively called the Employers)
have violated Section 8(a)(3) and (1) thereof.
General Counsel and all Respondents have filed briefs
which have been carefully considered. Upon the entire
record, my observation of the witnesses, and upon the in-
herent probabilities and improbabilities of their testimo-
ny, and having taken into account all of the arguments
made at the hearing and in briefs submitted, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent NECA is a multiemployer association
comprised of electrical contractors in the building and
construction industry including Respondent Sachs. It
maintains its principal office and place of business in
Springfield, Missouri, where it is and has been at all
times material herein continuously engaged in providing
labor relations and related services to its employer-mem-
bers operating in the western Missouri-eastern Kansas
area. During the year immediately preceding the com-
plaint's issuance, Respondent NECA's members in the
course and conduct of their business operations, pur-
chased, transferred, and delivered to their Missouri facili-
ties goods and materials valued in excess of $50,000,
which goods and materials were transported to said fa-
cilities (either directly or indirectly) from outside Mis-
souri. The complaint alleges, Respondent NECA admits,
and I find that Respondent NECA and its employer-
' All dates herein are between November 28, 1977. and July 3. 1978
unless otherwise specified
members are now, and have been at all times material
herein, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent Sachs is a business entity licensed to do
business in Missouri with offices in St. Louis and is en-
gaged in the installation of electrical wiring and appli-
ances at various jobsites throughout Missouri. Annually,
Respondent Sachs purchases goods and services valued
in excess of $50,000 directly from sources located outside
Missouri. The complaint alleges, Respondent Sachs
admits, and I find that Respondent Sachs is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It. LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent Union admits. and
I find that the Union is now, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICLES
A. Facts
Respondent NECA and Respondent Sachs (through its
membership in Respondent NECA) have been parties to
contracts with the Union for a number of years, the most
recent of which was effective September 1, 1977,
through August 31, 1978. Article XI of that contract,
which is reproduced in its entirety as Appendix B of this
Decision, provides for an exclusive hiring hall arrange-
ment including a classification of job applicants for pur-
pose of specifying the priorities pursuant to which they
will be referred to and laid off from jobs.2 In summary,
employees placed in Group I receive first preference in
assignments and are the last to be laid off. To be a
Group I (or "Book I" as the term was used at the hear-
ing) employee, an applicant must have at least 4 years
experience "in the trade," be a current resident of the
Local's geographical jurisdiction, have passed a journey-
man examination given by any IBEW local, and have
been employed I year during the preceding four under
an agreement to which Respondent NECA and Respon-
dent Union are parties.3 Group II under the agreement
provides second preference to those who meet all the re-
quirements of Group I except the current residency re-
quirement. Group III designation gives third preference
to those who have only 2 years' experience "in the
trade" but who are current residents of the area and who
have worked 6 months in the preceding 3 years under an
agreement between the parties. Group IV is for employ-
ees who have worked "at the trade" for more than I
year, but less than 3.
Bill Rodman became a journeyman member of Local
11 of the IBEW (Los Angeles, California) in 1970 and
has been a journeyman wireman since that year. At the
time of the hearing Rodman had been a resident of Re-
2 Essentially the same referral procedure was before the Board in In-
terstale Electric, 227 NLRB 1996 (1977), and its validity under tie Act is
not in question here.
3 There is a redundancy in the experience and examination require-
ments: no applicant can take the examination unless he has 4 years experi
ence "at the trade."
SACHS ELECTRIC COMPANY 3
674 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
spondent Union's geographical jurisdiction for 6-1/2
years. It is not in dispute that he had worked for signato-
ry contractors for in excess of 1 year during the 4 years
preceding December 1, including Respondent Sachs
from late September 1977 through that date. Larry
Nolon became a member of Local 728, of the IBEW
(FT. Lauderdale, Florida) in 1969 and has been a jour-
neyman wireman since that year. At the time of the
hearing he had been a resident of Respondent Union's
geographical jurisdiction for about 9-1/2 years. It is not
in dispute that he also worked for signatory contractors
in excess of I year during the 4 years preceding Decem-
ber 1, including Respondent Sachs from some time in
September to December 1.
It is also not in dispute that, to become journeyman
wireman, Rodman and Nolon passed examinations of the
type required by the contractual referral rules; Respon-
dent Union's actual or presumed knowledge of such
achievement is an issue in this case.
On November 29, Sachs employed electricians in
Groups 1, II, and III on its jobsite at Ft. Leonard Wood,
near Springfield, Missouri. Among the electricians were
a group of journeymen who were members of different
IBEW local unions throughout the United States; these
employees, including Rodman and Nolon, were referred
to as "travelers."
On November 29, jobsite union steward (and admitted
agent of the Union) J. C. Danner told traveler Sam
Miller that he had been informed by Business Manager
Jim Hensley that members of the Union were out of
work and that Danner was to start looking for volun-
teers to quit their employment in order to create job
openings for members of the Local. Miller stated that he
did not want to quit because Christmas was coming and
Danner advised Miller to "hide out somewhere" while
he began looking elsewhere on the site for "volunteers."
That afternoon Hensley and Danner approached travel-
ers Casper Heinrich and Dennis Jolley. Hensley stated
that there were members of Respondent Union "on the
bench" and he wanted the travelers to quit. Hensley fur-
ther told Heinrich and Jolley that he wanted the travel-
ers to get together and decide when and how to leave in
an order that would not look like a work stoppage. On
the following day, Rodman, who had signed Book 1I,
asked Danner if any Book III (or "out of classification")
employees were going to quit or be laid off. Danner re-
sponded that they were going to remain on the job.
Rodman then said that he would not leave if the out-of-
classification employees were going to remain on the job.
Danner responded: "If I was in someone else's jurisdic-
tion and I was asked to leave I certainly would do so."
Danner spoke later that morning with more travelers in
Nolon's work area. Nolon asked Danner what was going
to happen to the out-of-classification employees. Danner
stated that they were going to stay and Nolon said, "So
am I." However, later than afternoon, several out-of-
classification employees were, in fact, laid off.4
4 This paragraph is from the undenied testimony of Rodman, Nolon,
Miller, and Heinrich which I credit. Danner did not testify; Hensley did
not deny the remarks attributed to him and did not deny that he asked or
told Danner to solicit travelers to quit.
Rodman testified that on December I he called the
Union's hiring hall and spoke to Hensley. According to
Rodman, he told Hensley that he did not wish to leave
the job and Hensley replied, "If you do not leave the
job, I will pull your work permit." Hensley denied
having ever threatened to pull any traveler's work
permit. According to the current IBEW constitution (art.
XXV, sec. 6), a copy of which was received in evidence,
a journeyman may not work in the area of another Local
without deposit of a traveling card or receipt of a
"working card." Presumably the "work permit" is the
same as the "working card." If Rodman had been work-
ing in the area on such a permit, its being pulled would
have had a devastating effect on his employment possi-
bilities in the area of which he had been a resident for
over 6 years. This being so, Rodman surely would have
mentioned the alleged threat in the processing of various
intraunion charges and appeals, discussed infra, which he
did not. Moreover, at this point in his testimony Rodman
gave a stilted, seemingly memorized rather than recalled,
recitation which I cannot credit. Finally, I found Hens-
ley's denial of the threat credible.
On December 1, Nolon went to the union hall and re-
quested to sign, and did sign, Book II. On December 2,
Rodman also went to the hall. Rodman testified that on
that date he requested to sign Book I and Hensley re-
plied, "No goddamn traveler is going to sign Book I."
Rodman further testified that he did not sign Book II,
which had been his practice since coming to the area as
traveler, and that he left without signing any book.
Hensley credibly denied that Rodman requested to sign
Book I on December 2. Moreover, Respondent produced
for the record a copy of Book II's ledger for that date
which clearly showed Rodman's signature which
Rodman acknowledged on cross-examination. Finally, it
is to be noted that at a hearing pursuant to the appeals
procedure provided by article XI of the contract, dis-
cussed infra, the following exchange occurred:
Q. (By Rodman's attorney): In December of '77
when you had this discussion with Mr. Hensley, did
you make an attempt to sign Book I at that time?
A. (By Rodman): No, sir, he intimidated me to
the point where I was afraid to sign it.
Q. Just respond to the question. You did not
make an attempt to sign Book I until sometime after
January of 1978, is that correct?
A. That's correct, yes, sir.
Because of these conflicts and the credibility of Hensley
on the point, I find that Rodman did not request to be
allowed to sign Book I on December 2, and Hensley did
not, on December 2, make the remark attributed to him
as quoted by Rodman. 5 (I further find that Hensley did
not on this occasion, as Rodman additionally testified,
say that he pulled all the travelers off the Sachs' job just
to see who would cause trouble.)
On February 28 Rodman and Nolon appeared at the
hall. After some argument between Rodman and Hensley
F I do find, as discussed infra, that the quoted "g-- traveler" remark
was made by Hensley to Rodman and Nolon on February 28 as both em-
ployees testified.
SACHS ELECTRIC COMPANY 675
over a referral which Rodman did not get (and a Local
member did), Rodman asked to sign Book I. Hensley
asked Nolon what he wanted to do. Nolon asked if sign-
ing Book I would put him ahead of the 16 employees
then ahead of him on Book II. Hensley conceded that it
would. Nolon said that, in that case, he too wished to
sign Book I. Hensley then replied, "No goddamn traveler
is going to sign Book 1.6 Hensley testified that he told
Nolon and Rodman that they were not qualified for
Book I, but he did not tell them what qualification they
failed to meet. It is undisputed that Rodman and Nolon
met all qualifications for Book I and they knew it. If
Hensley had questioned their qualifications he would
have been immediately challenged, and I find that he did
not; the only thing he told them was that travelers such
as they could not sign Book I. Hensley did offer to allow
Rodman and Nolon to sign Book II as they, and other
travelers, had always done. Rodman and Nolon refused
to sign Book II unless they could place beside their
names the words "signed under protest." Hensley refused
stating that, as any other registrant, they could place on
the Union's books their name, address, number of their
home local, and the date. Rodman and Nolon left with-
out signing either Book I or Book II.
Later on February 28 Rodman and Nolon visited Jack
Moore, IBEW International vice president. They tried to
present their plight to Moore, but he stated that their
complaints would have to be in writing before he could
consider them. On March 2 they sent letters to Moore
listing their complaints. Moore responded by letter dated
March 6 that they should pursue the matter through the
appeals procedure provided by the contract. By letters
dated April 21 and 25, Rodman and Nolon did file such
appeals.
On March 22, after an unsuccessful attempt to have
private counsel appeal to Hensley to allow them to sign
Book I, Rodman and Nolon again presented themselves
at the union hall and again requested to sign that Book.
Rodman and Nolon testified that on that date Hensley
told them that Book I was reserved for Local members
only, that he knew of Rodman's letter to Moore, and
that if Rodman continued to cause trouble he, Hensley,
would press intraunion charges against him. 7 Hensley
denied making this statement, but I find that he did so as
I was favorably impressed by the testimony on this point
by Rodman and Nolon, especially Nolon.
8 In making this finding, I credit Nolon and Rodman over the denial of
Hensley. I realize that Rodman erroneously placed the identical remark
in his December 2 meeting with Hensley and that there are other prob-
lems with Rodman's overall credibility. However, Nolon impressed me as
a throroughly ingenuous witness, and Rodman appeared credible on his
recitation of the remarks if not, in all respects, its timing. Moreover, the
effect of the remark, if not its exact wording, is uncorroborated by Hens-
ley's assertion on cross-examination that no traveler had ever even asked
to sign Book .
I Rodman also testified that Hensley stated that he intended "to get
your ticket pulled if you continued to fool with us." Apparently a
"ticket" is a "work permit" discussed above as well as a dues receipt as
Rodman testified, but the General Counsel does not allege this portion of
Hensley's remarks to be a threat. It is to be noted that Nolon did not
mention any such statement although he was, according to Rodman, pre-
sent. These factors fortify my previous crediting of Hensley's testimony
that he never threatened to "pull" anyone's work permit
On April 13 Hensley filed intraunion charges against
Rodman. The first charge alleged that Rodman had
made false statements in a letter addressed to Moore.
The second was that Rodman had released information
to a person not entitled to it. The false statement, ac-
cording to Hensley, was that Rodman represented to
Moore that he (Rodman) was passed over the referral al-
though he was currently registered when, in fact,
Rodman was not currently registered. The information
alleged to have been wrongfully released was a copy of
the IBEW constitution, the Local's bylaws, and a copy
of the current contract between Respondent's Union and
NECA which Rodman gave to the private attorney
through whom Rodman had sought permission to sign
Book I. Hensley concludes his charges: "Thereby (sic), I
am filing charges against Mr. Rodman for creating dis-
sention, slandering and giving information to persons not
entitled to such." On May 5, after hearing at which
Rodman was summoned to be present, the executive
board of the Local found Rodman guilty as charged and,
as punishment, ordered him to return to Los Angeles
within 90 days to retake the oath of membership.
Rodman appealed his "conviction" to Moore who, by
letter of June 28, reversed the executive board. The only
reason Moore gave for his action was that ". . . The
Trial Board of Local Union 453, IBEW did not process
the charges against you in the proper manner... ."
Hensley testified that he filed the slandering charges
against Rodman because he, in fact, was not current on
the registration books. There was no evidence of prece-
dent or necessity 8 for this charge, and I therefore dis-
credit this testimony and find that the only reason for the
"slandering" charge was Rodman's attempt to secure
registration in Group I. Hensley did not offer an explana-
tion of why he filed a charge against Rodman for release
of the IBEW constitution, the Local's bylaws and the
contract, and I find that this portion of the charge was
also caused by Rodman's attempt to sign Book I.
On April 24, Rodman and Nolon again appeared at the
hall and asked to sign Book I. It is undisputed that Hens-
ley refused on the stated grounds that he knew of their
appeals which had been submitted to the committee and
since the matter was then "in the hands" of that commit-
tee he would not do anything. Rodman and Nolon also
testified that on this date Hensley threatened to file in-
traunion charges against Nolon if he continued to make a
"pest" of himself. Hensley testified that Nolon had said
that he would, if allowed to sign Book I, contract all
Local members and get their consent before accepting
any referrals over them. Hensley testified that he told
Nolon, "If you take the names from Book No. I, call
those people and ask them about jobs, you will be inter-
fering with Business Manager's duties and I will file
charges against you." The General Counsel did not seek
to rebut this specific testimony of Hensley which places
the threat in an entirely different light. I find that Hens-
ley's account of the matter is more credible than that of
Nolon and Rodman, and find that the threat, as alleged,
was not made. (However, it is to be noted that even
8 Hensley could have simply pointed out the inaccuracy to Moore by
letter or telephone call
SACHS~~~ E C I CO PN 675
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hensley's account demonstrates that it was understood
that Nolon's lack of Local union membership was the
real impediment to his being placed in Group I.)
The requests to sign Book I and refusals by Hensley
were thereafter repeated orally and in writing in a series
of visits to the hall and letters to Hensley which it would
be needless to detail here. It will suffice to say that
Hensley rejected several representations and tenders of
proof of qualifications that Rodman and Nolon made
stating that the matter was in the hands of the appeals
committee and they should present their evidence to that
body.
The appeals committee, which met on June 12, was
composed of one representative of the NECA, one of the
Union (who would have been Hensley had he not been
directly involved) and a "public member," who was a re-
tired state judge. Rodman and Nolon were represented
by private counsel and Hensley represented himself in
the proceeding of which a transcript was made, a copy
of which was received in evidence herein. The appeals
committee decision, which issued on July 3, stated that
the only issue before it was whether Hensley had "will-
ingly and knowingly" violated the contract by refusing
to place the names of Rodman and Nolon on the Group
I referral list. As stated by the decision, "Hensley admits
he refused to let them sign the Group I list, but states
that neither of the complainants, at any time prior to
filing of their appeals, ever presented him with any writ-
ten proof that they had passed a journeyman's examina-
tion, and that such failure on their part was the basis for
his refusal." The committee found this to be an adequate
defense to the charge, as it framed the issue, and held
that there was no willful violation of the contract, but
that Nolon and Rodman could "now" sign Book I be-
cause it was undisputed that they met Group I's qualifi-
cations and "they have finally produced written evidence
that they have passed the journeyman's electricians ex-
amination (sic)."
Thereafter, on July 3, Rodman and Nolon presented
themselves at the hall, requested to sign Book I, were
permitted to do so, and since that date have been dis-
patched according to that classification.
At the hearing on the complaint herein, Hensley was
asked by his counsel:
Q. You made reference to your statement-well,
in reference to your statement that you told him
you did not think they were qualified to sign Book
No. 1, what did you have in mind? What did you
base such a statement or observation on?
A. The Fact that they have-I never saw any
proof at that time, had never saw any proof they
had passed a journeyman-wireman exam. Also,
there are questions of residency, how long they had
been there, where they lived, as spelled out in the
working agreement.
It is to be noted that Hensley was asked what he had
in mind, not what he told Rodman and Nolon, and, as I
have found, the only thing he told them in this regard
was that they were travelers. It is undisputed that Hens-
ley never told them that he thought that they were, or
could have been, unqualified because of residency. It is
undisputed that they were residents;9 It is undisputed
that to secure the dues receipts they presented each
time' they signed Book II they had to have passed a
test prescribed by article XI of the contract. t More-
over, had Hensley had a good-faith doubt that Rodman
and Nolon had passed the examination, he necessarily
would have expressed that doubt which, even according
to his account, he did not do until the appeals hearing.
Accordingly, I find that the testimony by Hensley that
he possessed a good-faith doubt that Rodman and Nolon
possessed all the qualifications of Group I is not credi-
ble.' 2
B. Analysis and Concluding Findings
1. Deferral to arbitration
Respondent Union, in effect, moves that the Board
defer to the appeals committee decision as an arbitration
award under the principles of Spielberg Manufacturing
Company, 112 NLRB 1080 (1955). Spielberg holds that
deferral to arbitration awards is appropriate where the
proceeding is fair and regular, all parties have agreed to
be bound, and the result is not "clearly repugnant to the
purposes and policies of the Act." I find that the appeals
committee decision does not meet the third test. The
committee held that the only issues before it were Hens-
ley's alleged contract violations, and only those made
"willingly and knowingly" at that. The statutory propri-
ety of Hensley's conduct was left unscrutinized. More-
over, the committee's holding did not remedy past viola-
tions; nor did it purport to prevent similar violations in
the future.
This being the case, I find that deferral to the commit-
tee's decision is inappropriate, and Respondent Union's
motion is accordingly denied.
2. Coercive quits
On November 28 and 29, 1977, Hensley and Danner
told travelers on the Sachs' Ft. Leonard Wood job that
Respondent Union wanted them to quit in favor of Local
members who were then unemployed. The General
Counsel contends that this action was a "directive"
which would unlawfully tend to encourage membership
9 Respondent attempted to make an issue of Rodman's signing of Local
I's Book I in Los Angeles on July 28, 1977. Rodman plainly stated on
the page that he was a resident of "Boliver, Missouri." Just why Local 11
permitted Rodman to sign its Book I with such a notation is not an issue
in this case. Moreover, Rodman received no referrals as a result of that
single registration.
10 It was the testimony of Rodman and Nolon that each time they reg-
istered they were required to present a current dues receipt from their
home Local of the IBEW. That this was required is not in dispute; the
legality of the requirement was not placed in issue in this case.
I Hensley conjectured that some unscrupulous persons in other local
unions of the IBEW may barter membership to individuals who have not
passed the examination. There was no support for this conjecture and
Hensley acknowledged that he had no reason to ever believe that
Rodman or Nolon had used wrongful means to secure their journeyman
cards.
12 Moreover, the assertion here, but not at the appeals committee hear-
ing, that he questioned Rodman's and Nolon's residency, as well as
having passed examinations, represents a substantial shift in the professed
justifications of Hensley's action which, in my opinion, further serves to
discredit his testimony on this point.
SACHS ELECTRIC COMPANY 677
in Respondent Union. I disagree. There is no credited
testimony that Hensley or Danner did anymore than re-
quest the travelers to quit. The General Counsel does not
suggest, and I do not find, any element of restraint or co-
ercion in such requests, and therefore, the requests
cannot be said to have violated Section 8(b)(1)(A) of the
Act as alleged in the complaint.
3. Intraunion charges
Hensley filed charges against Rodman because he con-
ferred with an attorney and appealed to Moore in an
effort to secure rights guaranteed by article XI of the
contract; namely, the right to be referred under the con-
tract without regard to union membership. While a union
may impose discipline on its members in an effort to pro-
tect a legitimate union interest, it may not do so if its
action "invades or frustrates an overriding policy of the
labor laws...." Scofield v. N.L.R.B., 394 U.S. 423 at
429 (1969). One cannot gainsay that adherence to labor
agreements is a policy of the labor laws'3 and that the
charges would tend to frustrate this policy. The Board
has held that employees are protected from union disci-
pline where the subject conduct is performance of con-
tractual responsibilities, 4 correspondingly the protection
necessarily extends to the assertion of contractual rights.
The documents released to the lawyer were not confi-
dential and their disclosure did not interfere with the le-
gitimate operation of the hiring hall or any other func-
tion of the Union. That Rodman may have overstated his
case to Moore by stating that he had been currently reg-
istered is a factor in which the Union may not take
refuge; Hensley could have easily countered any misin-
terpretation by Rodman by presentation of the referral
books to Moore. There was no legitimate need of the
Union which was satisfied by the processing of the
charges. The subsequent action of Moore in reversing
the Union's decision does not moot the issue as Respon-
dent Union contends. There is nothing in Moore's letter
to suggest that the charges should not have been brought
and there is nothing to suggest that, absent compliance
with the Order recommended herein, that the Union will
not similarly discipline other individuals who seek vindi-
cation of contractual rights.15 Moreover, the acts of
summons and subjection to internal union trial are acts of
discipline themselves and, under the circumstances
herein, violations of the Act which require affirmative
remedy. Freight Drivers and Helpers Local Union No. 557Z
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Liber-
ty Transfer Company, Inc.), 218 NLRB 1117 (1975).
Therefore, I find and conclude that the summons for
trial, trial, and discipline of Rodman by Respondent
Union violated Section 8(b)(1)(A) of the Act, and I fur-
ther find that the threat of the same action by Hensley to
Rodman further violated the same section of the Act.
13 Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Ala-
bama, 353 U.S. 448 (1957).
'4 Local 12419. International Union of District 50, United Mine Workers
of America (National Grinding Wheel Company, Inc.), 176 NLRB 626, 628
(1969).
'5 Cf. Local 100, Transport Workers Union of America (Liberty Coaches,
Inc.), 230 NLRB 536 (1977).
4. Group I registrations
Respondent Local 453 contends that Rodman and
Nolon were not placed in Group 1, or allowed to sign
Book I, because they did not present Hensley with evi-
dence of their qualifications until after they filed their
petition with the appeals committee. 6 Respondent
Union does not contend that Rodman and Nolon were
not qualified to register in Group 1. Respondent does not
contend that they were asked for evidence of their quali-
fication and refused to present it. Rather, Respondent
contends its refusal to permit them to sign Book I was
legally permissible because Rodman and Nolon failed to
make physical demonstration of their qualifications, even
though they were not asked for such demonstration. I
reject this contention. I have found herein the only state-
ment Hensley made to Rodman regarding their qualifica-
tions, or lack of them, was that "no g--- traveler is
going to sign Book I."
Additional support for the conclusion that the failure
to present evidence of their having passed the examina-
tion was not the real reason for Hensley's refusal to reg-
ister Rodman and Nolon in Book I is found in Hensley's
statement on direct that he had "questions" about the
employees' meeting the residency requirement when,
theretofore, he had never questioned their qualifications
or, at most, questioned their passing of journeyman's ex-
aminations at the appeals committee hearing. As stated
by the Board in Painters Local Union No. 1555, affiliated
with the International Brotherhood of Painters and Allied
Trades, AFL-CIO (Alaska Constructors, Inc.), 241 NLRB
No. 112 (1979), such "belated and changing explana-
tions" for refusal to refer constitute evidence that the ex-
planations are pretextual and that the refusals are dis-
criminatory.
The only qualification Rodman and Nolon failed to
meet was membership in Respondent Union. This qualifi-
cation is an impermissible one under the statute since
"travelers" are, by definition, nonmembers of the Union
and the refusal to permit registration in the preferred
grouping would necessarily encourage membership
therein. Accordingly, I find and conclude that by refus-
ing to allow Rodman and Nolon to register in Book I
from February 28 to July 3, 1978, because they were not
members of Respondent Union, Respondent Union vio-
lated Section 8(b)(1)(A) and (2) of the Act.
5. Employer liability
Citing the case of Morrison-Knudsen Co., Inc., et al., d/
b/a Robinson Bay Lock Constructors v. N.L.R.B., 275
F.2d 914 (2d Cir. 1960), enfd. as modified 123 NLRB 12
(1959), cert. denied 366 U.S. 909 (1961), the General
Counsel contends that NECA should be held liable for
the violations committed by Respondent Union since
NECA, by entering into a valid exclusive hiring hall
agreement, vested the Union with power to hire in its
'6 Even if this contention had the slighest basis in law or fact before
Rodman and Nolon presented letters attesting to their passage of the
journeyman examination, it had none afterward, even though the matter
was "in the hands of the committee." That is, there was no impediment
to Hensley's permitting them to register in Book I before the committee
ruled.
SACHS ELECTRIC COMPANY
678 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
behalf. The General Counsel further contends that Re-
spondent Sachs is also jointly and severally liable for the
Union's conduct solely because it is a member of NECA.
The General Counsel does not contend that NECA
sponsored or condoned, or even knew of, Hensley's re-
fusal to permit Rodman and Nolon to sign Book I before
they filed their appeal. The General Counsel does not
contend that Respondent Sachs knew of or participated
in Hensley's conduct or that Sachs is anymore culpable
than any other of the 57 members of NECA. The only
reason advanced for singling out Sachs was that the
Charging Party had not filed any charges against any of
the other members of NECA.
Morrision-Knudsen did not establish the proposition
that in all cases of exclusive hiring halls, an employer as-
sociation and any one of its members against whom a
charging party may choose1 7 to file charges become in-
surers for all of a union's violative conduct. The Board
therein did hold that the employer who was a party to
an exclusive arrangement was liable for the consequences
of the Union's unlawful conduct, even absent knowledge
of specific violative acts, but in so doing the Board spe-
cifically noted that the arrangements involved therein
lacked "adequate safeguards against discrimination."
While the Board cannot require safeguards,"' their pres-
ence necessarily undermines the General Counsel's con-
tention that Morrison-Knudsen requires a holding that vi-
carious liability should be imposed against an employer
association even though it has negotiated such safe-
guards, regardless of participation in, or knowledge of,
the violative conduct alleged. 19
In this case adequate safeguards against discrimination
were present in the form of the appeals committee. The
contract provided a body to hear and remedy complaints
such as those of Rodman and Nolon, and they were
heard within a reasonable time.20 While, ultimately, the
appeals committee did not issue a decision which in all
respects comport with the requirements of Spielberg
Manufacturing Company, as I have previously discussed,
this does not, except by circular reasoning, require a
holding that the safeguard embodied in the contract was
inadequate. Simply stated, the committee could have
issued an adequate decision, it just failed to do so in this,
its first, case. The contract required participation by an
i; Charges can be, and are, filed for a myriad of reasons, including real
or imagined grievances over unrelated matters. If the charges against
Sachs related to some matter other than the fortuitous circumstances that
it was the last employer to which Respondent Union referred Rodman
and Nolon before the events of this case, it is not borne out by the record
herein.
Is Local 357, International Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v.
N.L.R.B., 365 U.S. 667 (1961)
t1 A fortiori, Morrison-Knudsen does not require imposition of derivative
vicarious liability upon any member of such association whom an charg-
ing party (in the exercise of whim, caprice, prejudice, malice or igno-
rance) may designate by the simple expedient of filling out an NLRB
charge form.
20 Certainly, the delay from February 28 (the first refusal by Hensley)
until April 25 (the filing of the appeals) is in no way attributable to the
employers or the committee. While the period of April 25, to June 12,
hearing date, may seem to have been somewhat longer than desirable, it
must be remembered that this was the first such appeal which had been
presented and the first time the appeals committee had been convened
impartial public member. 21 The grievants were repre-
sented vigorously by a private attorney. In this particular
case there is no basis for concluding that the employer
member had reason to thwart the efforts of the grievants,
unless one indulges in a presumption of employer hostil-
ity toward the employees or predilection toward encour-
aging union membership. That is, two of the three arbi-
ters involved were not hostile to the interests of the em-
ployees and, given the factors of a speedy hearing and
full representation and participation by the grievants, the
safeguard against discrimination was adequate in this
case, and the provision for that safeguard insulates Re-
spondent Employers from imposition of liability without
fault. 22
CONCLUSIONS OF LAW
1. Respondent NECA and its employer-members, in-
cluding Respondent Sachs Electric Company are em-
ployers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to file intraunion charges against Bill
Rodman and filing such charges against Bill Rodman be-
cause he exercised rights guaranteed by Section 7 of the
Act, the Union has been and is violating Section
8(b)(1)(A) of the Act.
4. By discriminatorily refusing to permit Bill Rodman
and Larry J. Nolon to register in its Referral Book I, the
Union has caused and attempted to cause employers to
discriminate against Rodman and Nolon in violation of
Section 8(a)(3) of the Act, and the Union thereby has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(l)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Respondent Union has not otherwise violated the
Act as alleged herein.
7. Respondent NECA and Respondent Sachs have not
violated the Act as alleged herein.
THE REMEDY
Respondent Union argues that since Rodman and
Nolon refused (on February 28, and thereafter) to sign
Book II without the notation "signed under protest"
21 Compare Lummus Company, 142 NLRB 517 (1963), where the ma-
jority rejected a contention that individual employees should be required
to submit to an arbitral procedure which precluded "access to an impar-
tial tribunal" and because they had no knowledge of the existence of the
procedure in the first place. Here, Rodman and Nolon testified that they
were familiar with the contract and had a pamphlet which (for all its
other misinformation) described the appeals procedure; also Moore's
letter of March 6 specifically referred the employees to the appeals com-
mittee.
22 recognize that the Board would not have required Rodman and
Nolon to submit their grievances to the appeals committee in the first in-
stance. Local Union 675. International Brotherhood of Electrical Workers,
AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976). However, the
issues of initial deferral and vicarious liability are not the same. Here, the
issue is whether the employers have completely turned the hiring hall
over to the Union so as to subject themselves to absolute liability for all
the wrongful acts of the Union. I find that by contractually providing for
the appeals procedure, they have not done so.
SACHS ELECTRIC COMPANY 679
beside their respective names, the referrals they would
have received pursuant to such registration should be
counted against them as willful loss of earnings. I dis-
agree. The Employees' insistence was occasioned only
by Respondent Union's unlawful conduct. They were
not, by seeking to insert three words, attempting to make
the Union's books a medium in some type of campaign.
To say that the simplistic notations would have had a
disruptive influence on the lawful operation of the refer-
ral procedures is speculation in its purest form. Accord-
ingly, I deny Respondent's request in this regard.
Having found that the Union violated Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it
be required to cease and desist from such violations and
take certain affirmative action designed to effectuate the
policies of the Act. I shall recommend that the Union be
ordered to make whole Bill Rodman and Larry Nolon
for any loss of earnings they may have suffered by
reason of the discrimination against them, computed on a
quarterly basis, plus interest, as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977). To facilitate the
computation and assure Rodman and Nolon of equal re-
ferral treatment, the Union shall maintain and make
available for the Board or its agents, upon request, out-
of-work lists, referral cards, and any other documents
and records showing job referrals and the basis for such
referrals of employees, members, and applicants. I fur-
ther recommend that the Union be ordered to post ap-
propriate notices, and to notify Rodman and Nolon in
writing that registration for the use of the Union's refer-
ral system will be available to them on an equal and non-
discriminatory basis with other employees and appli-
cants.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 23
The Respondent, International Brotherhood of Electri-
cal Workers, Local 453, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer to
deny employment to, or in any other manner discrimi-
nate against, Bill Rodman or Larry J. Nolon or any
other employee or applicant in violation of Section
8(a)(3) of the National Labor Relations Act, as amended.
(b) Refusing to permit Bill Rodman or Larry J. Nolon
or any other qualified employee-applicant to register in
its Referral Book I because of their lack of membership
in Respondent Union, or because of any other arbitrary
or unfair consideration.
23 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
findings, 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.
(c) Filing, or threatening to file, intraunion charges
against employees because they make or file complaints
under its collective-bargaining contracts.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Permit Bill Rodman and Larry Nolon to continue
to register in its referral Book I and dispatch said em-
ployees without regard to their union membership or
other unfair or arbitrary consideration.
(b) Permit any other qualified employee-applicant,
upon request, to sign referral Book I and dispatch them
without regard to their union membership or other unfair
or arbitrary consideration.
(c) Make whole Bill Rodman and Larry J. Nolon for
any loss of earnings they may have suffered by reason of
the discrimination against them in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Notify Bill Rodman and Larry J. Nolon in writing
that registration for and use of the Union's referral
system will be available to them on an equal and nondis-
criminatory basis with other employees and applicants.
(e) Maintain and, upon request, make available to the
Board or its agents, for examination and copying, out-of-
work lists, referral cards and any other documents and
records showing job referrals and the basis for such re-
ferrals of employees, members and applicants, which are
necessary to compute and analyze the amount of back-
pay due Rodman and Nolon, and assure them equal re-
ferral treatment.
(f) Post at it business offices, hiring halls, and meeting
places, copies of the attached notice marked "Appendix
A." 24 Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
24 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 B
Article XI
Referral Procedure
In the intersts of maintaining an efficient system of
production in the industry, providing for an orderly pro-
cedure of referral of aplicants for employment, preserv-
SACHS ELECTRIC COMPANY 9
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the legitimate interests of the employees in their em-
ployment status within the area and of eliminating dis-
crimination in employment because of membership or
non-membership in the Union, the parties hereto agree to
the following system of referral of applicants for employ-
ment.
1. The Union shall be the sole and exclusive source of
referrals of applicants for employment.
2. The Employer shall have the right to reject any ap-
plicant for employment.
3. The Union shall select and refer applicants for em-
ployment without discrimination against such applicants
by reason of membership or non-membership in the
Union and such selection and referral shall not be affect-
ed in any way by rules, regulations, bylaws, constitution-
al provisions or any other aspect or obligation of union
membership policies or requirements. All such selection
and referral shall be in accordance with the following
procedure.
4. The Union shall maintain a register of applicants for
employment established on the basis of the groups listed
below. Each applicant for employment shall be regis-
tered in the highest priority group for which he qualifies.
GROUP I-All applicants for employment who have
four (4) or more years experience in the trade, are resi-
dents of the geographical area constituting the normal
construction labor market, have passed a journeyman's
examination given by a duly constituted Local Union of
the IBEW and who have been employed for a period of
at least one (1) year in the last four (4) years under a col-
lective-bargaining agreement between the parties to this
Agreement.
GROUP II-All applicants for employment who have
four (4) or more years experience in the trade and who
have passed a journeyman's examination given by a duly
constituted Local Union of the IBEW.
GROUP III-All applicants for employment who
have two (2) or more years experience in the trade, are
residents of the geographical area constituting the
normal construction labor market and who have been
employed for at least six (6) months in the last three (3)
years in the trade under a collective-bargaining agree-
ment between the parties to this Agreement.
GROUP IV-All applicants for employment who
have worked at the trade for more than one (1) year.
If the registration list is exhausted and the Union is
unable to refer applicants for employment to the Em-
ployer within forty-eight (48) hours from the time of re-
ceiving the Employer's request, Saturdays, Sundays and
Holidays excepted, the Employer shall be free to secure
applicants without using the referral procedures, but
such applicants, if hired, shall have the status of "tempo-
rary employees." The Employer shall notify the Business
Manager promptly of the names and Social Security
Numbers of such temporary employees and shall replace
such temporary employees as soon as registered appli-
cants for employment are available under the referral
procedure.
DEFINITIONS
"Normal construction labor market" is defined to
mean the following geographical area:
This area shall include the following named coun-
ties in the State of Missouri: Christian, Dallas,
Douglas, Greene, Hickory, Howell, Laclede,
Oregon, Ozark, Polk, Pulaski, Shannon, Stone,
Taney, Texas, Webster and Wright.
The above geographical area is agreed upon by the the
parties to include the areas defined by the Secretary of
Labor to be appropriate prevailing wage areas under the
Davis-Bacon Act to which this Agreement applies, plus
the commuting distance adjacent thereto, which includes
the area from which the normal labor supply is secured.
"Resident"-means a person who has maintained his
permanent home in the above defined geographical area
for a period of not less than one (1) year or who, having
had a permanent home in this area, has temporarily left
with the intention of returning to this area as his perma-
nent home.
"Examinations"-An "examination" shall include expe-
rience rating tests if such examination shall have been
given prior to the date of this Agreement, but from and
after the date of this Agreement shall include only writ-
ten and/or practical examinations given by this Local
Union, or any other duly constituted Local Union of the
IBEW. Reasonable intervals of time for examinations are
specified as thirty (30) days. An applicant shall be eligi-
ble for examination if he has four years experience at the
trade.
5. The Union shall maintain an "out-of-work list"
which shall list the applicants within each group in
chronological order of the dates they register their avail-
ability for employment.
6. Employers shall advise the Business Manager of the
Local Union of the number of applicants needed. The
Business Manager shall refer applicants to the Employer
by first referring applicants in GROUP I in the order of
their places on the "out-of-work list" and then referring
applicants in the same manner sucessively from the "out-
of-work list" in GROUP II, then GROUP III, and then
GROUP IV. Any applicant who is rejected by the Em-
ployer shall be returned to his appropriate place within
his GROUP and shall be referred to other employment
in accordance with the position of his GROUP and his
place within the GROUP.
The only exceptions which shall be allowed in this
order of referral are as follows:
(a) When the Employer states bona fide require-
ments for special skills and abilities in his request
for applicants, the Business Manager shall refer the
first applicant on the register possessing such skills
and abilities.
(b) If the age ratio clause in the Agreement calls
for the employment of an additional employee or
employees on the basis of age, the Business Man-
ager shall refer the first applicant on the register
satisfying the applicable age requirement provided,
however, that all names in higher priority groups, if
any, shall first be exhausted before such over-age
reference can be made.
7. An Appeals Committee is hereby established com-
posed of one member appointed by the Union, one
SACHS ELECTRIC COMPANY 681
member appointed by the Employer or by the Associ-
ation, as the case may be, and a Public Member appoint-
ed by both these members.
It shall be the function of the Appeals Committee to
consider any complaint of any employee or applicant for
employment arising out of the administration by the
Local Union of Sections 3 to 7 of ARTICLE X (sic) of
the Agreement. The Appeals Committee shall have the
power to make a final and binding decision on any such
complaint which shall be complied with by the the Local
Union. The Appeals Committee is authorized to issue
procedural rules for the conduct of its business, but it is
not authorized to add to, subtract from, or modify any of
the provisions of this Agreement and its decisions shall
be in accord with the Agreement.
8. A copy of the referral procedure set forth in this
Agreement shall be posted on the Bulletin Board in the
offices of the Local Union and in the offices of the Em-
ployers who are parties to this Agreement.
9. Apprentices shall be hired and transferred in accor-
dance with the apprenticeship provisions of the Agree-
ment between the parties.
10. When making reductions in the number of employ-
ees due to lack of work, Employers shall use the follow-
ing procedure:
(a) Temporary employees, if any are employed, shall
be laid off first. Then employees in GROUP IV shall be
laid off next, if any are employed in this GROUP. Next
to be laid off are employees in GROUP III, if any are
employed in this GROUP, then those in GROUP II, and
then those in GROUP 1.
(b) Paragraph (a) will not apply as long as the special
skill requirement as provided for in Section 6 (a) is re-
quired.
(c) Supervisory employees covered by the terms of
this Agreement will be excluded from layoff as long as
they remain in a supervisory capacity. When they are re-
duced to the status of Journeyman, they will be slotted
in the appropriate Group in Paragraph (a) above.