Swier Electric Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1975

223 N.L.R.B. 569 (N.L.R.B. 1975)

SWIER ELECTRIC COMPANY
Swier Electric Company, Inc. and Phillip M. Ge-
novese
O'Barr Electric Co ., Inc. and Phillip M. Genovese
International Brotherhood of Electrical Workers, Lo-
cal Union No. 640, AFL-CIO and Phillip M. Ge-
novese. Cases 28-CA-3487-1, 28-CA-3487-2, and
28-CB-956
March 31, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On December 31, 1975, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent Employers filed exceptions and support-
ing briefs, and Respondent Union and the General
Counsel filed answering 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 and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents Swier Electric Company,
Inc., Phoenix, Arizona, and O'Barr Electric Co., Inc.,
Mesa, Arizona, their officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in these cases held on November 6, 1975, is based
upon unfair labor practice charges filed by an individual,
Phillip M. Genovese, herein called Genovese, against the
Swier Electric Company, Inc., O'Barr Electric Co., Inc.,
and International Brotherhood of Electrical Workers, Lo-
cal Union No. 640, AFL-CIO, herein separately called Re-
spondent Swier, Respondent O'Barr, and Respondent
Union and collectively called Respondents. The charges
against Respondents Swier and O'Barr, sometimes called
Respondent Employers, were filed on April 21, 1975, and
569
the charges against Respondent Union were filed on June
30, 1975. Thereafter these charges were consolidated for
hearing and an amended consolidated complaint issued on
July 30, 1975, on behalf of the General Counsel of the
National Labor Relations Board, Region 28, alleging that
Respondent Employers, have engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, herein called the Act, and
that Respondent Union has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of
the Act. Respondents filed answers denying the commis-
sion of the alleged unfair labor practices.
Upon the entire record,' from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYERS
During the calendar year 1974 Respondent Swier, an Ar-
izona corporation, which is an electrical contractor with its
place of business in Phoenix, Arizona, performed services
valued in excess of $50,000 for Arizona business enterpris-
es engaged in the sale of residential homes. Each of the
aforesaid business enterprises during the calendar year
1974 received gross revenues in excess of $500,000 and pur-
chased materials and supplies directly from points outside
of Arizona valued at substantial amounts.
During the calendar year 1974 Respondent O'Barr, an
Arizona corporation, which is an electrical contractor with
its place of business at Mesa, Arizona, purchased goods
and materials valued in excess of $50,000 which were trans-
ported and delivered to O'Barr from Arizona suppliers who
received said goods and materials in interstate commerce
directly from States of the United States other than Ari-
zona.
Respondents admit and I find that during the time mate-
rial herein Respondent Swier and' Respondent O'Barr each
was an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union, International Brotherhood of Elec-
trical Workers, Local Union No. 640, AFL-CIO, admits
and I find that it is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE QUESTION PRESENTED
The question presented by the several allegations of un-
fair labor practices against the Respondent Employers is
essentially whether they violated the Act on February 25,
1975,2 when they failed to transfer Genovese from Respon-
dent Swier's employ to O'Barr's. In this regard Respondent
Swier in February entered into an agreement with Respon-
dent O'Barr whereby O'Barr agreed to take over the per-
' Certain errors in the transcript are hereby noted and corrected.
2 Unless otherwise noted all dates herein refer to 1975.
223 NLRB No. 83
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance of Swier's existing contracts and employ Swier's
electricians . The Charging Party, Genovese, an electrician
employed by Respondent Swier was the only electrician on
Swier's payroll not transferred when O'Barr took over
Swier's contracts. The question is whether, as contended by
the General Counsel, the Respondent Employers failed to
transfer Genovese because he was not a member of Re-
spondent Union or of its International Union, the Interna-
tional Brotherhood of Electrical Workers, herein called the
IBEW.
The question presented by the several allegations of un-
fair labor practices against the Respondent Union is essen-
tially whether it violated the Act when in June and July it
refused the requests of the Respondent Employers and Ge-
novese that Respondent Swier be permitted to transfer Ge-
novese to Respondent O'Barr. The General Counsel con-
tends that the Respondent Union refused to grant these
requests because Genovese was not a member of Respon-
dent Union or of the IBEW.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent Employers at all times material herein
were parties to the same collective-bargaining contract
with the Respondent Union covering their electricians. The
contract among other things contains an exclusive hiring
hall agreement wherein the Respondent Union agreed to
maintain an out -of-work register of applicants for employ-
ment and to refer such applicants in the order of their
place on this register and Respondent Employers agreed to
hire only those applicants referred by Respondent Union
except in certain situations not relevant to this proceeding.
The alleged discriminatee, Genovese, who was terminat-
ed by Respondent Swier on February 25 had been em-
ployed by Swier as a journeyman wireman since August
1966. During his tenure of employment Genovese was not
a member of the Respondent Union nor of any local union
affiliated with the IBEW.
Bernard Swier, Respondent Swier's president and owner,
regarded Genovese as a very good employee and expressed
his high regard by treating him better than almost all of the
other employees. Genovese was permitted to use a compa-
ny truck as transportation between the jobsite and his
home and during his last 3 or 4 years of employment was
paid the contractual rate of pay for a foreman, even though
he did not act as a foreman, which was about 50 cents per
hour more than the journeyman rate. During 1972 or 1973
Bernard Swier expressed his esteem for Genovese's ability
when he told him in substance that the only reason Ge-
novese had not been made a job superintendent was be-
cause of Genovese's "Union problem." In sum, the record
establishes that the owner of Respondent Swier at all times
material herein regarded Genovese as an outstanding
worker.
The record also reveals that Respondent Swier believed
that the Respondent Union was hostile toward Genovese
because he was not a member of the Respondent Union.
Bernard Swier, as already indicated, in 1972 or 1973, told
Genovese that he had not been promoted to job superin-
tendent because of his "Union problem." Then in the late
summer or early fall of 1974 it is undisputed that Swier told
Larry Fischer, the field superintendent for Universal Real-
ty Company, a contractor for whom Swier was performing
electrical work, that "the Union had been hassling [Swier]
to get rid of [Genovese] . . . [but] that he was not going to
fire [Genovese], because [Genovese] was too good a man to
get rid of, and that he was not going to have the Union
telling him who he was going to hire and who he was going
to fire." Likewise, it is undisputed that in late December
1974 Swier told Genovese that Respondent Union's princi-
pal official, Glynn Ross, had tried to have Swier terminate
Genovese and Don Allen a "traveler," 3 but that Swier had
refused. Swier also told Genovese that he understood that
Respondent Union had tried to force another electrical
contractor that was signatory to a collective-bargaining
contract with the Union to terminate its "white ticket"
men.4 Finally, Bernard Swier testified that it was "common
knowledge" that Respondent Union was placing pressure
on all contractors to terminate their "white tickets" and
"travelers" and further testified that in late 1974 or early
1975 Jack-Falk, Respondent Union's steward in Swier's
employ, told this to Swier and also told Swier that so long
as there were unemployed electricians in the jurisdiction of
Respondent Union that Swier would have a problem if he
employed "white tickets" and "travelers." Swier did not
deny the remarks attributed to him by Genovese and
Fischer, as described previously, and admitted that he had
told a "few people" that he was having trouble with Re-
spondent Union over Genovese. Based on the foregoing, I
find that Bernard Swier believed that Respondent Union
was hostile toward Genovese because he was not a member
of Respondent Union or of the IBEW.
During December 1974 Respondent Swier employed
about 24 electricians whose number by the middle of Janu-
ary was reduced to about 10 as 2 of Swier's commercial
jobs had ended and the electricians employed on those jobs
were terminated. The remaining 10 electricians were re-
garded by Bernard Swier as his keymen. However, by
Monday, February 20, their number had been further re-
duced to six, plus one warehouseman and one apprentice.
They were employed on the approximately six residential
wiring jobs then being performed by Respondent Swier.
The genesis of this case arises out of Respondent Swier's
decision to terminate its business operations and transfer
its contracts for the aforesaid jobs to another electrical
contractor, Respondent O'Barr.
In about the first week in February, Bernard Swier and
Joseph O'Barr, Respondent O'Barr's president, had a dis-
cussion about the possibility of Respondent O'Barr taking
over Swier's existing contracts and inventory. Swier men-
tioned that he was reducing his work force to his keymen
whom he identified as those who had worked with him for
several years and that because he felt close to these men he
3 The term "traveler" refers to an electrician employed in the geographi-
cal jurisdiction of Respondent Union who is not a member of Respondent
Union but is a member of another local union affiliated with the IBEW.
The term "white ticket" or "white paper" refers to an electrician who is
not a member of Respondent Union or of a local union affiliated with the
IBEW.
SWIER ELECTRIC COMPANY 571
wanted to do them a personal favor, that it was his desire
that they be transferred, to the electrical contractor that
agreed to take over his existing contracts so that they
would not have to go to the bottom of Respondent Union's
out-of-work register and be unemployed. O'Barr replied
that he would take anybody Swier wanted to transfer pro-
vided that the transferees were employed on one of the jobs
being transferred. Swier stated that it was possible that
they could arrange for such a transfer through Respondent
Union and indicated that there would be no problem in
transferring four of his keymen but that there might be a
problem in transferring two of them. In this regard Swier
explained to O'Barr that one of his keymen was a "travel-
er" and another one by the name of Phil Genovese had
some problems with Respondent Union, specifically, that
Genovese had been in and out of Respondent Union.
O'Barr asked if there was anything wrong with Genovese's
work. Swier replied, "nothing at all" and said that he was a
fine employee.5
Following their initial discussion there were further con-
versations between Swier and O'Barr which eventually cul-
minated in an agreement whereby O'Barr agreed to pur-
chase Swier's existing contracts and the inventory
connected with these contracts. With regard to the transfer
of Swier's employees, O'Barr testified that about 1 week
after their initial conversation Swier phoned him and stat-
ed that he intended to make a request to Respondent
Union that six men be allowed to transfer.
In the meantime Swier together with O'Barr during Feb-
ruary went to the offices of Respondent Union to seek
permission to transfer Swier's employees to O'Barr. In
other words the Respondent Employers wanted Respon-
dent Union to waive the normal contractual requirement
that employees before being hired by an employer must
have registered on Respondent Union's out-of-work regis-
ter and have been referred from this register to the employ-
er. According to the credible testimony of Respondent
Union's president, Dave Thomas, Swier told Thomas that
he was thinking of going out of business and selling his
existing contracts and inventory to O'Barr and wanted to
transfer some of his key employees to O'Barr so that
Swier's customers whose work O'Barr would continue to
perform would be satisfied. Thomas consulted with Glynn
Ross , Respondent Union's business manager, about this
request. Ross in effect instructed Thomas that if an electri-
cal contractor under contract with Respondent Union
went out of business completely and desired to transfer its
contracts and employees to another contractor that the
Union would waive the normal contractual hiring hall re-
quirements and allow such a transfer of employees provid-
ed that a written request was made to Respondent Union.
Thomas communicated this message to the Respondent
5 The above discussion between Swier and O'Barr is based on their testi-
mony where it is consistent with the other . Swier did not impress me as a
credible witness and I have rejected his testimony whenever it does not jibe
with O 'Barr's. In this respect , Swier testified that when he indicated that he
wanted to transfer his key employees that O 'Barr answered "he could take
five or six but no more than that, because he did not have any work." This
is contrary to O'Barr 's testimony described above that he indicated he
would employ all of the employees Swier desired to transfer so long as they
were currently working on the jobs being transferred from Swier to O'Barr.
Employers and indicated that the Union would sanction
the transfer of the employees named in a written request.
During the conversation between Respondent Employ-
ers and Thomas, no employees' names were mentioned. In
particular, Genovese's name was not brought up nor did
Thomas indicate that Respondent Union would be op-
posed to permitting the transfer of either Genovese or any
other employee. Nevertheless, it is undisputed that shortly
after this meeting Swier phoned O'Barr and told him that
"we will be able to transfer all of those electricians but the
one, Genovese."
Likewise, in about the middle of February Bernard
Swier indicated to Larry Fischer, the field superintendent
for Universal Realty Company, that Genovese would not
be transferred. The conversation between Fischer and
Swier occurred under the following circumstances. One of
the largest jobs being performed by Swier was the electrical
work for Universal Realty Company connected with the
construction of residential homes on two tracts herein re-
ferred to as the Universal Realty project. Genovese and
Kolb were the electricians employed on this job by Swier,
with Genovese performing the greater part of the work.
The person in charge of the scheduling and construction of
the Universal Realty project was Universal Realty
Company's field superintendent Larry Fischer. In the mid-
dle of February Fischer heard rumors that Respondent
Swier intended to sell his business to Respondent O'Barr.
Fischer was concerned over the effect of Swier' s cessation
of business on the Universal Realty project so he phoned
Swier and was.informed in effect that O'Barr would take
over the electrical work on the project but that Swier did
not know exactly which employees would be doing the
work. Swier told Fischer that he was able to transfer four
people to O'Barr. Fischer asked whether Phil Genovese
would be one. Swier replied, "He was not going to be able
to transfer Phil, because of the Union problems he [Phil]
had." Fischer stated that he preferred having Genovese
work on the project and in effect asked that Genovese be
transferred so that Genovese could continue doing the wir-
ing work. Swier stated that he did not believe this would be
possible.,
On February 21, pursuant to the Respondent Union's
request for a written statement, Bernard Swier transmitted
a letter to the Respondent Union which was signed by Ber-
nard Swier on behalf of Respondent Swier and by Joseph
O'Barr on behalf of Respondent O'Barr. The letter, pre-
pared by Swier, reads as follows:
We have entered into an agreement to dispose of our
company contracts to O'Barr Electric Company of
Mesa, effective Monday, February 24, 1975.
The conditions of the contract provide for the transfer
of six key people to the employ of O 'Barr electric.
They are:
Don Kolb Jerry Smith
Don Allen David Mueller
John Landry John Johnson, Warehouse
Man
On February 24 at the close of the workday Respondent
Swier went out of business and since that time has not
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed any electrical work nor employed any employ-
ees. There were seven employees in its employ on February
24. Of the seven (six electricians and one warehouseman),
six (five electricians and one warehouseman ), whose trans-
fers were requested by the Respondent Employers in their
letter to Respondent Union of February 21, were not ter-
minated by Respondent Swier but were transferred to the
employ of Respondent O'Barr on February 25. Viewed an-
other way, only one of Respondent Swier's remaining em-
ployees, Genovese , was terminated , not offered the oppor-
tunity to transfer.
On February 25 Swier notified Genovese that he had
been terminated . Swier told him that he was able to trans-
fer five electricians to O'Barr but unfortunately Genovese
was not included among them . Swier explained to Ge-
novese that the Respondent Union's representatives,
Thomas and Ross, would not consider a "white ticket"
man for transfer . Answering Genovese 's question, Swier
said that he did not submit a written request asking for
Genovese's transfer explaining that everything was verbal
since the Respondent Union's representatives would not
put anything in writing.6
On February 25, immediately after being told that his
employment had been terminated and he had not been
transferred, Genovese went to Respondent Union 's offices
and registered for work on the out -of-work register. There
were between 150 and 200 unemployed electricians already
registered . Genovese's name was eventually reached on or
about June 4 at which time he was referred to Gould Elec-
tric where he was employed from June 4 until June 12
when he was laid off due to a reduction in force . Also he
worked for I day, on May 14, for Carter Electric where he
had secured a job without a referral from Respondent
Union.
On April 21 Genovese filed the unfair labor practice
charges involved in this proceeding against Respondent
Employers and on the same day filed a charge against Re-
spondent Union in Case 28-CB-942 alleging in substance
that Respondent Union on February 25 had refused to
dispatch him to O'Barr because he was not a member of
Respondent Union . Thereafter, in May, the charge against
Respondent Union was withdrawn by Genovese apparent-
ly at the request of the Board 's Regional Office . The Board
agent informed Respondent Union 's president that the
charge would be withdrawn because there was insufficient
evidence to support the allegations.
6 The above description of Swier 's exit interview with Genovese is based
on Genovese's credible testimony . Of the two. Genovese's demeanor im-
pressed me more . In addition, Swier s testimony is contradictory and indi-
cates that his memory of the conversation was poor . Thus Swier eventually
categorically denied having in effect admitted to Genovese that he was not
transferred because he was not a member of Respondent Union . But when
asked initially if anything was said during the exit interview about the rea-
son Genovese was denied a transfer , Swier answered , "Not that I know of."
When asked if his answer was intended as a categorical denial , Swier an-
swered that he was very busy the morning of the exit interview and in effect
testified he had really no independent recollection of the entire conversa-
tion. Then he testified to the effect that Genovese 's version of the exit inter-
view was accurate . Under the circumstances. I reject Swier 's testimony that
he did not tell Genovese his transfer was denied because he was not a
"white ticket" man, but instead credit Genovese 's testimony which was giv-
en in a straightforward and candid manner.
On April 22, upon receipt of the unfair labor practice
charge filed against Respondent Union, the business man-
ager of Respondent Union, Ross , phoned Genovese and
asked why he had not first spoken to Ross about the mat-
ters alleged in the charge. Ross stated he did not like hav-
ing to read the charge to the membership,7 that Genovese
and Ross had known one another for years and always had
been able to talk and asked why Genovese did not talk
with and file a grievance with Ross about the matter. Ge-
novese replied that his reason for not speaking to Ross
about the problem was that he had been told by Bernard
Swier that Ross was one of the persons who had blocked
his transfer. Ross denied this. Genovese stated that he did
not know whether the accusation was true and that he had
filed his charges with the Board to find out the truth. Ross
stated that Genovese had been terminated at the same time
as the Respondent Union's steward employed by Swier,
which Genovese denied .8 The conversation concluded with
Ross reminding Genovese that in the past he had spoken
up on behalf of Genovese before the membership, and had
always treated Genovese fairly, and thanked Genovese for
taking the time to talk with him about the matter.9
On June 12 Respondent Employers sent the following
letter to Genovese:
We have received copies of the charges you have filed
with the NLRB arising from the transfer of certain
employees from Swier Electric to O'Barr Electric. As
you know, it may be some time before the matter is
resolved. To insure that no further time accumulates,
we now offer to request your transfer and referral for
employment by O'Barr Electric.
We suggest that you let us know within 5 days whether
you wish to accept this offer... .
By reply • letter dated July 13 Genovese notified Respon-
dent Employers that he accepted their offer. Upon receipt
of Genovese's acceptance Respondent O'Barr on June 16
transmitted to Respondent Union the following letter:
Due to charges filed with the NLRB pertaining to
Phillip Genovese an employee of Swier Electric, it is
hereby requested that Mr. Genovese be transferred
and referred from Swier Electric, as was accomplished
in the case of the other five employees of Swier Elec-
tric, to O'Barr Electric Co., Inc.
The letter was signed for Respondent O'Barr by its presi-
dent, Joseph O'Barr, with the notation "Bernard Swier
agrees with this request" and Swier's signature. Respon-
dent Union received the aforesaid June 16 request on or
about June 20 but took no action on the matter.
On June 23 Respondent O'Barr by mail sent a copy of
the June 16 request to Genovese who on June 30 went to
the offices of Respondent Union where he spoke to Busi-
7 Respondent Union's policy is that all lawsuits and charges brought
against Respondent Union must be read to the membership at the monthly
meetings.
8 Falk , Respondent Union 's steward employed by Respondent Swier, had
been terminated I week prior to Genovese.
9 The above conversation between Genovese and Ross is based on
Genovese's credible testimony . Of the two, Genovese, who testified about
this conversation in a straightforward and sincere manner, impressed me as
the more trustworthy witness.
SWIER ELECTRIC COMPANY 573
ness Manager Ross. Ross acknowledged he had received
the request. Genovese then asked whether he would receive
a transfer and referral as requested. Ross replied, "No, you
have already got two referrals from us." I Genovese de-
clared he understood that if "[Respondent Employers]
asked for him he would be transferred just like the other
men." Ross answered, "No they can not ask for you by
name; you have to be on the list [referring to the Respon-
dent Union's out-of-work register]." Ross concluded the
conversation by stating in effect that since Genovese had
gone to the Board that any request he made to Ross for a
transfer would have to be written not verbal."
On June 30, immediately following Ross' rejection of his
request that the Respondent Union allow him to work for
O'Barr, Genovese went to the Board's Regional Office and
filed the instant unfair labor practice charge against the
Respondent Union. Later that same day while at the
Board's Regional Office Ross was asked by the Board
agent who processed Genovese's charge whether Respon-
dent Union intended to approve Genovese's request for a
transfer to O'Barr. Ross answered that to allow Genovese
to go to work for O'Barr would constitute a violation of the
Respondent Union's hiring hall procedures but that he
would present the matter to the Appeals Board provided
for in the collective-bargaining agreement.
Thereafter on July 1, pursuant to Ross' statement that
his request for a referral to O'Barr should be in writing,
Genovese hand-carried the following written request to
Ross' office:
I would appreciate your assistance in my transfer and
referral to [Respondent O'Barr] from [Respondent
Swier] in the same manner in which you assisted in the
transfer and referral of the other men in the shop .. .
on or about February 25, 1975.
Enclosed please find a copy of the letter sent to you on
or about June 16, 1975, by [Respondent O'Barr].
Upon receipt of Genovese's July 1 written request for a
"transfer and referral" Ross instructed the Respondent
Union's hiring hall dispatcher Billy Wier to convene a
meeting of the Appeals Board which handles disputed mat-
ters involving the contractual referral system. In this regard
the collective-bargaining agreement establishes an Appeals
Board consisting of one member appointed by the Respon-
dent Union, one by the Arizona Chapter of the National
Electrical Contractors Association (NECA), and one pub-
lic member appointed by the aforesaid members,12 whose
function is to consider any complaint arising out of Re-
spondent Union's administration of the contractual refer-
ral system and whose decision on such matters shall be
final and binding. The Appeals Board met on July 3 at
which time it considered O'Barr's letter of June 16,
Genovese's letter of July 1, a copy of Genovese's termina-
1° Ross apparently was referring to the Goulder Electric and Carter Elec-
tric jobs. However, Genovese did not secure the Carter job, a 1-day job,
through the Respondent Union.
11 The June 30 conversation between Ross and Genovese is based on a
composite of their testimony insofar as it is consistent. I have not credited
Ross' testimony that Genovese said he had been sent by the NLRB to Ross
to ask for a transfer to Swier. Of the two witnesses , Genovese seemed more
credible than Ross.
12 The public member is not a member of Respondent Union.
tion slip from Goulder Electric, and the Respondent
Union's out-of-work register showing Genovese's position
relative to the other registrants. On July 3 the Appeals
Board issued the following decision:
The Appeals Board was provided copies of a letter
from O'Barr Electric to Local Union 640 dated June
16, 1975 (copy attached); also, copy of a letter from
Phil Genovese dated July 1, 1975 (copy attached);
also, copy of termination from Goulder Electric dated
June 12; 1975.
The decision of the Appeals Board is as follows:
The Appeals Board reviewed the requests of Phil Ge-
novese and O'Barr Electric. They noted the procedure
of the Appeals Board and the Referral Hall is well
defined in the Labor Agreement.
The records show that Mr. Genovese took an assign-
ment to Goulder Electric on June 4, 1975, and he hon-
ored a procedure that has served the Industry well for
17 years.
The Appeals Board unanimously votes to deny any
variation of the Referral Procedure for Mr. Genovese
because Mr. Genovese has used the procedure himself
and we feel he forfeited any rights to the requested
transfer when he accepted referral and employment at
Goulder Electric.
He was terminated there on June% 12, 1975 whereupon
he again signed the Book I Register availing himself of
the Referral Procedure for the second time since Feb-
ruary, 1975.
On July 30 the amended consolidated complaint issued
in this proceeding charging, among other things, Respon-
dent Union with violating the Act. On July 31 Business
Manager Ross, by letter sent to Respondent Employers,
with a copy to Genovese, answered Respondent Employ-
ers' June 16 request that Genovese be "transferred and re-
ferred" from Swier to O'Barr. This letter in pertinent part
reads:
I am now further responding to that request. More
particularly, at such time as you advise me or the
NLRB in writing that you discriminated against Mr.
Genovese back in February-as alleged in the above
mentioned unfair labor practice charge-or at such
time as the NLRB judicially determines that you un-
lawfully discriminated against Mr. Genovese and or-
ders his reinstatement, then upon the occurrence of
either event, this Local Union will issue a referral to
Mr. Genovese for employment at O'Barr Electric
Company.
However, as long as you insist that Genovese was
not unfairly discriminated against back in February;
then this Local Union will refuse to issue a referral to
him or to any other employee laid off by you back in
January or February, except in accordance with the
established nondiscriminatory hiring hall procedures
set out in the Labor Agreement.
One thing further. If you enter into a settlement
agreement with the NLRB, this Local Union will not
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stand in the way of Mr. Genovese going to work for
either of your companies if such employment is part of
the remedy required by the NLRB as part of the set-
tlement.
Thereafter, on August 15, Genovese received a letter
from Respondent O'Barr offering him employment. The
letter in pertinent part reads:
You are hereby offered employment as a journey-
man wireman with O'Barr Electric pending resolution
of the charges filed by you in Case No. 28-CA-3487-
1 and 2 with the NLRB.
For such employment, no referral will be required
from IBEW Local 640. In this regard, this offer of
interim employment and the fact that no referral will
be required has been approved by IBEW Local 640.
On the same date-August 15--Genovese received a letter
from the Respondent Union which in pertinent part read:
You are hereby advised that IBEW Local 640 has no
objection to your employment as a journeyman wire-
man by O'Barr or Swier pending resolution of the
NLRB charges filed by you in Case No. 28-CA-3487-
I and 2. In this regard, I am advised that an offer of
such employment is being made to you, and should
you decide to accept same, no referral from this Local
Union will be required.
Genovese accepted the offer of employment and com-
menced to work for Respondent O'Barr on August 19 as a
journeyman wireman and was still employed there on the
date of the hearing in this matter.
B. Analysis and Ultimate Findings
1. Respondent Swier
Respondent O'Barr agreed to employ the electricians
employed by Respondent Swier on the projects which
O'Barr took over from Swier. Respondent Swier transfer-
red to Respondent O'Barr all of the electricians employed
on these projects except one, Phillip Genovese, the alleged
discriminatee. Genovese would have been employed by
Respondent O'Barr absent the failure of Respondent Swier
to transfer him. The General Counsel contends that Re-
spondent Swier failed to transfer Genovese because he was
not a member of Respondent Union. I agree.
Genovese, one of Respondent Swier's most senior em-
ployees having been employed for almost 9 years, was held
in high esteem by Swier and normally was given preferen-
tial treatment. Yet, of the six electricians remaining on
February 24 in Respondent Swier's employ, all of whom
were employed on the jobs which were being assumed by
Respondent O'Barr, only Genovese was not transferred.
This despite the fact that O'Barr had told Swier that he
would employ the electricians working on the jobs he took
over from Swier. Of the six electricians, Genovese was the
only one that was not a member of Respondent Union or
of a local union affiliated with the IBEW. Swier, as found
above, believed that Respondent Union was antagonistic
toward Genovese because he was not a member. Neverthe-
less, in their initial discussion Swier told O'Barr that he
wanted to transfer all of the electricians , including Ge-
novese , employed on the jobs O'Barr took over, even
though , as Swier stated , there might be a problem securing
Respondent Union's permission to transfer Genovese,'
who, Swier explained to O'Barr, had been in and out of
Respondent Union . 14 However, when Swier prepared for
Respondent Union 's approval the list of employees whom
Respondent Employers desired to transfer , Genovese's
name was omitted . Swier in effect admitted that the reason
for his failure to transfer Genovese was because he was not
a member of Respondent Union . Thus, Swier told Fischer,
Universal Realty 's job superintendent, that the reason he
could not transfer Genovese was because of Genovese's
problem with Respondent Union and, in terminating Ge-
novese , explained to him the reason he was not transferred
was that the representatives of Respondent Union would
not consider his transfer because he was not a member of
the Respondent Union ; a "white ticket" man.
On the strength of the foregoing evidence , I find that the
General Counsel has established a strong prima facie case
that on February 25, during the normal course of business,
Swier, rather than terminate Genovese , would have trans-
ferred him to O'Barr with the other electricians but failed
to do so because of Genovese 's lack of membership in the
Respondent Union or because Swier believed that this lack
of membership would cause trouble over the transfer re-
quest . In these circumstances , it was incumbent upon Re-
spondent Swier, if it would rebut the General Counsel's
prima facie case , to come forward with evidence explaining
its failure to transfer Genovese on other grounds , for the
real reason lay exclusively within its knowledge . Miller
Redwood Company, 164 NLRB 389 (1967), enfd . on this
point 407 F.2d 1366, 1370 (C.A. 9, 1969).
Respondent Swier justifies its failure to transfer Ge-
novese on the ground that it never intended to transfer him
for the reason that he had worked solely on the Universal
Realty project whereas the other electricians had worked
on each of the other projects which were being taken over
by O'Barr . This justification , viewed in the light of the
whole record, rings false . There is no indication that prior
to the hearing in the instant proceeding that Bernard Swier
ever advanced this as the reason he failed to transfer Ge-
novese . To the contrary, as found above , Swier contempo-
raneously with his failure to transfer Genovese informed
O'Barr and Fischer that the reason was connected with
Genovese 's problems with Respondent Union and, in ef-
fect, candidly admitted to Genovese that he was terminat-
ed rather than transferred because he was not a member of
Respondent Union. I am convinced that if Swier had a
legitimate business reason for failing to transfer Ge-
novese-as he now claims-he would have stated this rea-
son to Genovese or at the very least to either O'Barr or
13 As described above, it was necessary to secure Respondent Union's
approval to transfer Genovese inasmuch as under the exclusive hiring hall
agreement which Respondent Employers were obligated to follow Swier's
electricians could not transfer their employment to O'Barr without regis-
tering on the hiring hall's out-of-work register maintained by Respondent
Union . Since there were about 200 employees already registered it is plain
that absent the approval of Respondent Union none of Swier's electricians
were eligible for employment with O'Barr.
14 Genovese had been a member of Respondent Union until about 1965.
SWIER ELECTRIC: COMPANY 575
Fischer rather than indicate that his conduct was based on
impermissible considerations.
Also Bernard Swier's failure to transfer Genovese makes
absolutely no sense when considered in the context of his
reasons for transferring the electricians to O'Barr. In this
regard Swier's desire to transfer the electricians with the
contracts was motivated by two considerations: (1) "he felt
close to the men and he'd like to do them a personal fa-
vor";15 and (2) in order that Swier's customers, whose work
O'Barr would continue to perform, would be satisfied with
O'Barr.16
Regarding (1), surely Genovese, one of Swier's most se-
nior employees who was regarded as an outstanding em-
ployee and accorded preferred treatment, was the type of
employee whom Swier would be expected to do a "person-
al favor" for, rather than Mueller, who had only been em-
ployed for about 6 months.
Regarding (2), Swier testified that the reason it was so
important that continuity of employment be maintained at
.the projects taken over by O'Barr was that it assured Re-
spondent Employers that O'Barr would not lose these jobs.
One of the largest of the projects taken over by O'Barr was
the Universal Realty project. The contract for this project
was terminable at will by Universal Realty if it was not
happy with O'Barr's performance. Genovese was the elec-
trician employed on this project who was the most familiar
with the project. The project's superintendent, Fischer,
who was very happy with Genovese's work and had indi-
cated this to Swier, specifically asked that Genovese be one
of the electricians transferred by Swier to O'Barr so that
Genovese could continue his work on the project. Under
these circumstances, it made no sense for Swier , who ad-
mittedly was interested in keeping Universal Realty happy,
not to transfer Genovese. This conclusion is buttressed by
Swier's testimony that his standard of selecting the employ-
ees for transfer was that he "took the key ones [he] felt
were very important for the next month only to make the
transaction work properly." It would seem if it was impor-
tant "only to make the transaction work properly for the
next month," Swier would have selected Genovese for
transfer in view of the fact that he was employed on one of
the largest projects being transferred whose superintendent
had specifically asked that he be transferred.
Based on the foregoing, I find that the reason advanced
by Respondent Swier for failing on February 25 to transfer
Genovese to O'Barr is not the real reason; rather the rec-
ord establishes by a preponderance of the evidence that
Respondent Swier, which exercised control over O'Barr's
hiring, failed to transfer Genovese to Respondent O'Barr,
in significant part, because Genovese was not a member of
the Respondent Union." Accordingly, Respondent Swier
15 This is what Swier told O'Barr.
16 This is what Swier told the representative of Respondent Union.
17 In reaching this conclusion I have considered the fact that Swier be-
lieved he would be in trouble with Respondent Union if he transferred
"traveler" Allen yet went ahead and transferred him, and the fact that al-
though under the impression Respondent Union was hostile toward him for
employing Genovese , Swier had previously never terminated Genovese.
This evidence , in my opinion , does not detract from the other evidence
described above which overwhelmingly establishes that Swier 's failure to
transfer Genovese was unlawfully motivated.
has violated Section 8(a)(1) and (3) of the Act.
2. Respondent O'Barr
Respondent Employers entered into an agreement
wherein Respondent O'Barr took over the performance of
Respondent Swier's existing electrical contracts. Also
O'Barr agreed to employ the electricians whom Swier de-
sired to transfer as long as the electricians were employed
by Swier on one of the contracts whose completion O'Barr
was undertaking. However, as found above, Respondent
Swier in selecting the employees for transfer unlawfully
discriminated against Genovese. The General Counsel con-
tends that Respondent O'Barr is jointly liable for this dis-
criminatory act. In essence the General Counsel contends
that Respondent O'Barr is jointly liable because O'Barr
designated Swier as its agent for the hire of the electricians
employed on the work taken over by O'Barr and that
O'Barr knew or with. reasonable diligence should have
known that Swier's failure to select Genovese for employ-
ment was unlawfully motivated. Respondent O'Barr takes
the position that it is not liable for Swier's misconduct for
the reason that O'Barr engaged in no affirmative conduct
in connection with Swier's failure to select Genovese for
employment; O'Barr was merely a bystander. In my opin-
ion, for the reasons set forth herein, I find that Respondent
O'Barr is jointly responsible for Respondent Swier's mis-
conduct.
Respondent O'Barr ordinarily would have hired the elec-
tricians it employed on the jobs it took over from Respon-
dent Swier using the Respondent Union's exclusive hiring
hall. O'Barr was obligated to hire applicants through the
hiring hall by virtue of its collective-bargaining agreement
with Respondent Union wherein O'Barr in effect designat-
ed the Respondent Union as its exclusive hiring agent. If
Respondent Union had discriminated against Genovese, in
the same manner as Swier, Respondent O'Barr would be
jointly responsible with Respondent Union for its unlawful
conduct especially if O'Barr knew, or with reasonable dili-
gence should have known, that the failure to select Ge-
novese for employment was discriminatorily motivated.
General Cinema Corporation, and Its Wholly Owned Subsid-
iary, Gentilly Woods Cinema, Inc., 214 NLRB 896
(1974), and cases cited therein; accord: Pacific Mari-
time Association v. N.L.R.B., 452 F.2d 8, 10 (C.A. 9, 1971).
In my opinion, the situation in the instant case is analo-
gous to the situation which exists when an employer desig-
nates a labor organization as its exclusive hiring agent.
Here, O'Barr, rather than use the Respondent Union as its
exclusive hiring agent as it was obligated to do under the
terms of its agreement with Respondent Union, turned
over to Respondent Swier the task of supplying the electri-
cians to be employed by O'Barr on those jobs it was taking
over from Swier. The relation between Swier and O'Barr
was not an ordinary contractual one, in which Swier had
no substantial control over the hire of O'Barr's electricians,
rather Swier was given effective hiring control over the se-
lection of the electricians whom O'Barr would employ. I
find Swier was designated by O'Barr to act as O'Barr's
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive hiring agent and, under these circumstances, is
jointly liable for Swier's discrimination against Genovese.
Cf. General Cinema Corp., supra, and Pacific Maritime As-
sociation v. N.LR.B., supra. In addition, the record estab-
lishes that Respondent O'Barr was not merely an innocent
bystander, rather O'Barr knew , or should have known, that
its agent, Swier, was unlawfully discriminating against Ge-
novese . When O'Barr agreed that Swier would supply
O'Barr's electricians, Swier indicated he had six electricians
that he intended to transfer , one of whom was Genovese,
but specifically alerted O'Barr to the possibility that there
might be a problem in securing his transfer explaining that
Genovese who had been "in and out of the Respondent
Union" was having problems with Respondent Union.
Upon learning this, O'Barr, who assumed from Swier's re-
marks that Genovese was not a member of Respondent
Union, asked whether there was anything wrong with
Genovese's work. Swier assured him that Genovese was a
good worker and indicated that he was one of his "key
men" and was employed on the Universal Realty project.
Thereafter, without explanation, Swier notified O'Barr that
"we will be able to transfer all of the electricians but one,
Genovese." Under these circumstances it would be naive
for me to conclude that Respondent O'Barr neither knew
nor had compelling reasons to surmise that Swier, in select-
ing the electricians for transfer, had discriminated against
Genovese for reasons proscribed by the Act . It is clear
from their initial meeting , described above, that O'Barr
knew that Swier desired to transfer all of his electricians,
including Genovese, and that the only reason Genovese
might not be transfered was due to his problems with Re-
spondent Union. Since Swier supposedly at no time ever
gave a different explanation to O'Barr for his failure to
include Genovese 's name on the transfer list it is reason-
able to assume that O'Barr must have concluded that this
failure was attributable to Genovese's problems with Re-
spondent Union. If O'Barr had any doubt about Swier's
reason for not transferring Genovese he could have re-
moved this doubt by exercising reasonable diligence. A
simple inquiry to either Swier, Genovese, or Fischer would
have readily revealed that unlawful discrimination had
been practiced in the case of Genovese." However, O'Barr
chose not to investigate even though Swier's previous state-
ments to O'Barr indicated that Genovese was a good work-
er and a keyman but might not be transferred to O'Barr
because of his problems with Respondent Union. For all of
these reasons, I find that Respondent O'Barr knew or by
reasonable diligence should have known that in selecting
the electricians for transfer Swier was discriminating
against Genovese for reasons proscribed by the Act.
Based on the foregoing, I find that Respondent O'Barr
by designating Respondent Swier as its exclusive hiring
agent or by having so designated Swier and acquiescing in
Swier's discriminatory conduct, discriminated in regard to
"During the period of time contemporaneous with his decision not to
select Genovese for transfer, Swier admitted to Fischer and Genovese that
Genovese was not being transferred because of his problems with Respon-
dent Union or his nonmembership . Under the circumstances I find it diffi-
cult to believe that Swier did not explain to O'Barr that his omission of
Genovese was based on union considerations.
the hire of Genovese . Accordingly, I find that Respondent
O'Barr violated Section 8(a)(1) and (3) of the Act.
3. Respondent Union
The General Counsel contends that Respondent Union
since June 16 has refused to permit the transfer and/or
referral of Genovese from Respondent Swier to Respon-
dent O'Barr because he was not a member of the Respon-
dent Union or a local union affiliated with the IBEW. Re-
spondent Union admits that on or about June 16 it refused
to permit the transfer or referral of Genovese to O'Barr for
employment but that it engaged in this conduct because
the employment of Genovese by O'Barr would have been
contrary to the exclusive contractual hiring hall procedure
governing Genovese 's employment . In agreement with Re-
spondent Union I find that the record establishes that the
motive for its refusal to sanction O'Barr's employment of
Genovese was that it would have been a violation of
O'Barr's exclusive hiring agreement with Respondent
Union.19 The facts pertinent to this matter can be briefly
stated.
In February Respondent Employers advised Respon-
dent Union that Respondent Swier was going out of busi-
ness and as a part of the sale of its contracts to Respondent
O'Barr was transferring six named employees. Respondent
Union allowed Respondent O'Barr to employ these em-
ployees without their being referred through the contractu-
al hiring hall because their transfer was a part and parcel of
Respondent Swier's cessation of business and transfer of
"business" to O'Barr 20 Genovese was not among those
whose transfer was sought by Respondent Employers and
the complaint does not allege nor does the record establish
that Respondent Union was responsible for this omission
or that Respondent Union engaged in conduct calculated
to prevent Respondent Swier from transferring and Re-
spondent O'Barr from employing Genovese . In other
words there is not an iota of evidence that Respondent
Union would not have sanctioned Genovese's transfer with
Swier's other electricians . Nevertheless , as found previous-
ly, Genovese was discriminatorily terminated from his em-
ployment by Respondent Swier on February 25. He regis-
tered on the out-of-work register and during the normal
course of business was referred to a job. Then on June 16
Respondent Employers requested to Respondent Union
that Genovese "be transferred and referred" from Respon-
19It is settled that an employer -union agreement to route all hiring
through a union operated hiring hall is not discriminatory per se and, absent
independent evidence of discrimination , does not run afoul of the Act. Lo-
cal 357, international Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America [Los Angeles-Seattle Motor Express] v. N. L.R.B., 365
U.S. 667 ( 1961). It is equally settled that where the provisions of an exclu-
sive, nondiscriminatory hiring hall have been circumvented , neither a union
nor an employer violates the Act by taking corrective action against the
evader including termination of the individual's employment . Local 542,
International Union of Operating Engineers , AFL-CIO, 151 N LRB 497, 499-
500 (1965).
20A transfer was the only way these men could have been employed by
O'Barr . If they had been terminated by Swier they would have been re-
quired to register on Respondent Union 's out-of-work register as a condi-
tion precedent for employment with O'Barr and since a substantial number
of unemployed electricians were already registered O'Barr would have been
unable to employ them.
SWIER ELECTRIC COMPANY 577
dent Swier to Respondent O'Barr, "due to charges filed
with the National Labor Relations Board." It is undisputed
that for Respondent Union to have granted this request
would have been contrary to the exclusive contractual hir-
ing hall agreement governing Genovese's employment.
This is what Ross, Respondent Union's business manager,
said to Genovese on June 30 when he told him that Re-
spondent Employers' request could not be granted. In re-
sponse to Genovese's request that Respondent Employers'
request for his transfer be granted Ross answered, "No,
they can not ask for you by name; you have to be on the
list [referring to Respondent Union's out-of-work regis-
ter]." The next day Genovese submitted a written request
to Respondent Union asking that it allow his transfer from
Respondent Swier to Respondent O'Barr. The same day
Ross, in answer to an inquiry from a Board agent who was
investigating Genovese's charge filed against the Respon-
dent Union told the Board agent that Respondent Union,
did not intend to approve Genovese's transfer request be-
cause to do so would constitute a violation of the contrac-
tual hiring hall procedures, but that Respondent Union
would present the dispute to the Appeals Board provided
for in the contract. Thereafter, on July 3, the Appeals
Board denied the requests of Genovese and Respondent
Employers . In essence the denial was premised on the fact
that a referral or transfer of Genovese to O'Barr for em-
ployment would violate the contractual hiring procedures.
Finally, it is admitted that since June 16, at all times mate-
rial herein, for Respondent O'Barr to have employed Ge-
novese would have constituted a breach of O'Barr's exclu-
sive hiring hall agreement with Respondent Union since
there were other electricians ahead of Genovese on the out-
of-work register.
The foregoing evidence, in my opinion, fully supports
Respondent Union's position that its refusal to refer Ge-
novese to O'Barr for employment was motivated by the
fact that such a referral would have violated the exclusive
hiring hall agreement between Respondent Union and Re-
spondent O'Barr. In arriving at this conclusion I have care-
fully considered the General Counsel's contention that
there is other evidence which demonstrates that Respon-
dent Union used the fact that Genovese was not eligible for
referral under the exclusive hiring hall agreement as an
excuse not to refer him and that its real reason was
Genovese's nonmembership in Respondent Union. Specifi-
cally, the General Counsel urges that the pretextual nature
of Respondent Union's treatment of Genovese is demon-
strated by its animus toward him because of his lack of
membership and the disparate treatment meted out to him.
In my opinion the whole record does not preponderate in
favor of a finding that Genovese's ineligibility for referral
to O'Barr was a pretext used by Respondent Union to dis-
guise an unlawful motive 21
Regarding Respondent Union's animus , I am of the view
that even assuming the record demonstrates animus that
since Genovese was not eligible for employment by O'Barr
and that since such employment would have been in dero-
gation of O'Barr's exclusive hiring hall agreement, that ab-
sent a showing of disparate treatment the fact that Respon-
dent Union in these circumstances may have welcomed the
opportunity not to refer Genovese or approve of his trans-
fer does not establish a violation of the Act. In any event,
I am of the opinion that the animus exhibited toward Ge-
novese by Respondent Union is insufficient to 'taint Re-
spondent Union's refusal in June and July to refer or trans-
fer Genovese to O'Barr for employment. The only
competent evidence of animus in the record is the testimo-
ny of Swier that in late 1974 or early 1975 Respondent
Union Steward Jack Falk stated to Swier that as long as
there were unemployed electricians in the jurisdiction of
Respondent Union that Swier would have a problem if he
employed "white tickets" and "travelers." 22 On the other
hand at no time material to this case did any official of
Respondent Union indicate to Genovese that Respondent
Union was hostile toward him because of his lack of mem-
bership. Indeed during his almost 10 years of employment,
within Respondent Union's jurisdiction, as a nonmember,
Genovese testified he always had received fair treatment
by Respondent Union, and, following his termination by
Swier, was given a referral by Respondent Union during
the normal course of business. Under these circumstances,
an isolated statement of Respondent Union's general an-
tipathy toward nonmembers made by a person who occu-
pies what is probably the lowest position in Respondent
Union is insufficient to taint Respondent Union's refusal
several months later to refer or transfer Genovese to
O'Barr for employment.
Likewise, I do not consider that Respondent Union's
treatment of Genovese was disparate when compared to its
treatment of the other electricians whose earlier requests
for transfers were granted. As described above, Respon-
dent Union permitted these earlier transfers at a time when
the employees were still employed by Respondent Swier.
They had not been terminated but were being transferred
in conjunction with Swier's cessation of business; and the
transfer of its contracts to O'Barr. In Genovese's case the
requests for his transfer came several months after Swier
had ceased business and had transferred his contracts to
O'Barr and at a time when Genovese's employment with
Swier had been terminated for almost 5 months. Under
these circumstances I - am not able to conclude that Re-
spondent Union's refusal to treat Genovese like the other
electricians, whose transfers it sanctioned, was so unrea-
22 The statements made by Swier to third parties (Genovese, Fischer, or
O'Barr) indicating that Respondent Union objected to Genovese 's employ-
ment were objected to by Respondent Union and admitted into evidence
solely for the purpose of establishing the motive and reason for Respondent
Swier's conduct . They are not competent evidence to establish Respondent
Union 's animus . Local 776, International Alliance of Theatrical and Stage
Employees (Film Editors) [Cascade Pictures Co. of California], 124. NLRB
842, 843 , fn. 2 (1959). Nor does the fact that Business Manager Ross told
Genovese that he intended to read Genovese 's unfair labor practice charge
to the union membership at the monthly meeting indicate , as contended by
the General Counsel , animus where, as here, it was normal practice for all
lawsuits or charges filed against Respondent Union to be read to the mem-
bership at the monthly meetings . Finally, the fact that Genovese was not
notified about or given an opportunity to attend the Appeals Board meeting
fails to establish that Respondent Union was hostile toward Genovese since
21 It is settled that the General Counsel is required to prove a statutory there is no showing that the failure to afford Genovese the opportunity to be
violation by a preponderance of the evidence . Falstaff Brewing Corporation, present or appear before the Appeals Board was a deviation from normal
128 NLRB 294, fn . 2 (1960). practice.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonable so as to constitute a case of disparate treatment.
Based on the foregoing, I find that the record does not
preponderate in favor of a finding that Respondent
Union's refusal to approve the transfer of Genovese or re-
fer him to Respondent O'Barr violated Section 8(b)(1)(A)
and (2) of the Act23 Accordingly , I shall recommend that
the amended consolidated complaint insofar as it pertains
to Case 28-CB-956 be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employers , Swier Electric Company,
Inc., and O'Barr Electric Co., Inc ., each constitute an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent Union , International Brotherhood
of Electrical Workers, Local Union No. 640, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent Union did not violate the Act when
it refused to approve a transfer for Phillip Genovese, or
refer him for employment with Respondent O'Barr.
4. Respondent Swier violated Section 8(aX3) and (1) of
the Act by failing to transfer Phillip Genovese from its
employment to Respondent O'Barr , over whose hiring poli-
cy Respondent Swier exercised effective control , because
Genovese was not a member of Respondent Union and/or
because Respondent Swier believed that his lack of mem-
bership would cause problems.
5. Respondent O'Barr violated Section 8 (a)(3) and (1) of
the Act since, having designated Respondent Swier as its
exclusive hiring agent or because it also acquiesced in Re-
spondent Swier's unlawful conduct, it is responsible for the
above illegal conduct of Respondent Swier.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Employers violated Sec-
tion 8(aX3) and ( 1) of the Act , I shall recommend that they
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Inasmuch as I have concluded that absent the unfair
labor practices found herein that Genovese during the nor-
mal course of business , on February 25, would have been
employed by Respondent O'Barr as a journeyman wire-
man it is necessary to restore the status quo ante, which
23 Respondent Union as an affirmative defense to the amended consoli-
dated complaint alleged in substance that its involvement in this matter
occurred as the result of improper conduct on the part of a Board agent.
Respondent Union makes no reference to this contention in its posthearing
brief, nevertheless I have carefully considered the record in this respect and
find that this contention is without merit. The evidence as to the circum-
stances under which the charges against Respondent Union were filed
proves that the Board agent did no more than furnish Genovese with appro-
priately drawn charges . See Petersen Construction Corp., et al., 128 NLRB
%9, 972-973 (1960).
means that Genovese is entitled to an offer of employment
by Respondent O'Barr .24 Such an offer was made on Au-
gust 15 which was accepted by Genovese who commenced
work for Respondent O'Barr on August 19 as a journey-
man wireman.25 Under the circumstances , I shall recom-
mend that Respondent Employers jointly and severally
make Genovese whole for any loss of earnings he may have
suffered by reason of the unfair labor practices , by pay-
ment of a sum of money equal to that which he normally
would have earned as wages from February 25 to August
15, 1975, the date he was offered employment by O'Barr,
less net earnings during such period , with backpay comput-
ed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and with interest computed thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
It will also be recommended , in view of the nature of the
unfair labor practices , that Respondent Employers be or-
dered to cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the
Act. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4, 1941).
Upon the basis of the foregoing findings of fact , conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER26
Respondent Employers, Swier Electric Company, Inc.,
Phoenix, Arizona, and O'Barr Electric Co., Inc., Mesa,
Arizona, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Encouraging membership in International Brother-
hood of Electrical Workers, Local Union No. 640, AFL-
CIO, or any other labor organization by failing to transfer
employees or by failing to hire employees because they are
not members of the aforesaid union or any other union or
by otherwise discriminating in regard to the hire or tenure
24 Under the circumstances the Respondent Employers' June 16 request
to Respondent Union that Respondent O'Barr be allowed to employ Ge-
novese is insufficient to toll Respondent Employers' backpay liability.
25 In concluding that Respondent O'Barr's offer of employment satisfied
the obligation of Respondent Employers , I realize that the offer was made
to Genovese "pending resolution " of the instant litigation . See Kansas Re-
fined Helium Company, Division of Angle Industries, Inc., 215 NLRB No. 67
(1974). Here , unlike the situation in the cited case, the question of whether
the offer of employment was sufficient to satisfy Respondent Employers'
obligation toward Genovese is an academic one since Genovese accepted
the offer and went to work for Respondent O'Barr.
26 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.
27 Respondent Swier at the time of the hearing had not engaged in busi-
ness since February 24. There is no contention , however, that Respondent
Swier no longer exists as a corporate entity. Accordingly, its ability to com-
ply with the terms of this Order is a matter best left for the compliance stage
of this proceeding. However, in the event Respondent Swier has not re-
sumed business operations we shall not require the posting of a notice by
Respondent Swier rather we shall order the mailing of notices.
SWIER ELECTRIC COMPANY
of employment of employees or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights un-
der Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Jointly and severally make Phillip M. Genovese
whole for any loss of earnings suffered by reason of the
discrimination against him, in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at their places of business copies of the attached
notice marked "Appendix." 28 Copies of said notice, on
forms provided by the Regional Director for Region 28,
after being duly signed by their representatives, shall be
posted by Respondent Employers immediately upon re-
ceipt thereof and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Employers to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) In the event it is no longer in business, Respondent
Swier shall mail a copy of the attached notice marked "Ap-
pendix" to all individuals who were employees of Respon-
dent Swier on February 24, 1975. Copies of said notice, on
forms provided by the Regional Director for Region 28,
after being duly signed by an authorized representative of
Respondent Swier, shall be mailed immediately upon re-
ceipt thereof as herein directed.
(e) Notify the Regional Director for Region 28, in writ-
579
ing, within 20 days from the date of this Order what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the amended consolidated
complaint be dismissed insofar as it alleges in Case 28-CB-
956 that the Respondent Union has violated the Act.
28 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in the Interna-
tional Brotherhood of Electrical Workers Local Union
No. 640, AFL-CIO, or any other labor organization
by failing to transfer employees or by failing to hire
employees because they are not members of the afore-
said union or another union or by otherwise discrimi-
nating against employees in regard to their hire or ten-
ure of employment or any term or condition of
employment.
WE WILL jointly and severally make Phillip Ge-
novese whole for any loss of earnings suffered by rea-
son" of the discrimination against him, together with
6-percent interest.
WE WILL NOT In any other manner interfere with,
restrain, or coerce you in exercising the rights guaran-
teed to you by the National Labor Relations Act.
SWIER ELECTRIC COMPANY, INC.
O'BARR ELECTRIC CO., INC.