Wismer and Becker

National Labor Relations Board - Board Decisions

Mar 16, 1977

228 N.L.R.B. 779 (N.L.R.B. 1977)

WISMER AND BECKER 779
Wismer and Becker, Contracting Engineers and Jess
Aaron Jameson
International Brotherhood of Electrical Workers Local
Union 497 and Jess Aaron Jameson , John Neal,
and Decevigne Kilpatrick. Cases 19-CA-7271, 19-
CB-2290, 19-CB-2266, and 19-CB-2267
March 16, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On April 8, 1976, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
filed exceptions, a supporting brief, and a request for
oral argument;1 Respondent Union filed exceptions
and a supporting brief, and the General Counsel
filed cross-exceptions and a supporting brief, a brief
in support of portions of the Administrative Law
Judge's Decision, and a brief in reply to Respon-
dents' exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings ,2 and conclusions of the Administrative Law
Judge to the extent consistent herewith.
1. The Administrative Law Judge found that
Respondent Union's demand that Respondent Em-
ployer replace 26 direct hires with union referrals and
Respondent Employer's acquiescence in that de-
mand violated Section 8(b)(2) and 8(b)(1)(A) and
Section 8(a)(3) and (1) of the Act, respectively. While
we agree with these conclusions, we do so to the
extent consistent with the following findings.
The pertinent facts are as follows: Respondent
Wismer and Becker is an electrical contractor and a
member of the National Electrical Contractors
Association. On January 11, 1974, before it hired any
employee for its job at Grand Coulee Dam, Wismer
and Becker entered into a "Visiting Employer
Compliance Agreement" with Respondent Union by
which it agreed to be bound by the collective-
bargaining agreement between the National Electri-
cal Contractors Association and Respondent Union.
i Respondent Employer has requested oral argument . This request is
hereby denied as the record, the exceptions , and the briefs adequately
present the issues and the positions of the parties.
2 The General Counsel and Respondent Union 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
228 NLRB No.96
The agreement provided for exclusive referral of
employees by Respondent Union.
At the beginning of March 1974, Union Represen-
tative Richardson informed Wismer and Becker's
project manager, Anderson, that the "change shack"
which Wismer and Becker had installed in the
powerhouse was inadequate under the contract
because it did not provide running water for washing
and drinking and it had no washing facility or flush
toilet. On March 5, Anderson directed five electri-
cians then working for Wismer and Becker to cease
reporting to the trailer designated as Wismer and
Becker's office and instead to report to the change
shack. On March 6, Richardson advised the electri-
cians to disobey this order and report to the trailer.
Thereafter, when the five electricians refused to
report to the shack, Wismer and Becker discharged
them. On March 18, Respondent Union filed a
grievance with the Joint Conference Committee
under section 1.6 of the contract alleging that the five
men were fired unjustly and that Wismer and
Becker's shop facilities were inadequate. After the
Joint Conference Committee deadlocked, the matter
was referred to the Council on Industrial Relations
for binding arbitration under section 1.9 of the
contract. On May 28, the Council on Industrial
Relations ordered Wismer and Becker to reinstate
the five electricians without backpay.
Between March 6 and June 23, 1974, Respondent
Union refused to dispatch any workmen to Wismer
and Becker from its exclusive hiring hall. As a result,
from March 12 through June 17, 1974, Wismer and
Becker hired 30 workmen outside the Union's
exclusive hiring hall, pursuant to the 1973-74
collective-bargaining agreement which provided, in
pertinent part:
5.4(a) 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 registered
in the highest priority group for which he
qualifies ... .
5.5 The Union shall notify the employer when he
places his call if there are no applicants .. .
who will apply to the employer within 48
hours after the Union receives the employ-
er's request, and the employer shall be free
to secure applicants from other sources
.... Employees not eligible for classifica-
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in one of the above [referral] groups
shall have the status of "temporary employ-
ees" and shall be replaced by qualified
individuals as soon as registered applicants
for employment are available under the
referral procedure.
On June 24, 1974, Respondent Union dispatched
25 men, including the 5 dischargees, to Wismer and
Becker. Wismer and Becker reinstated the 5 discharg-
ees but refused to comply with the Union's request
that it discharge the direct hires and replace them
with the other 20 union referrals. It informed the
Union that, contrary to the latter's position, the
direct hires were "eligible for classification" under
section 5.5 of the contract and therefore not
"temporary employees" subject to replacement by
dispatches from the hiring hall.
The Union subsequently filed a grievance with the
Joint Conference Committee. According to the
testimony of Union Representative Richardson, he
advised the Joint Conference Committee that the
direct hires "didn't go through the referral procedure.
They hadn't registered on the books, so according to
the agreement they couldn't be anything but tempo-
rary employees, as specified in the agreement."
Minutes taken of the meeting reveal that Project
Manager Anderson told the Committee that the
direct hires qualified under section 5.5 of the contract
and would not be replaced. Thereafter, on July 1,
1974, the Committee ruled in favor of the Union.3 As
a result of the Committee's decision, between July 3
and 15, 1974, Respondent discharged 26 direct hires
and hired 19 employees referred to it by Respondent.
The Administrative Law Judge, inter alia, found
that when the Union refused to refer workmen to
Wismer and Becker it abrogated section 5 of the
collective-bargaining agreement , that during the
period when section 5 was inoperative Section 8(f) of
the Act was without application to either Respon-
dent, and that the Employer was thus free to obtain
workmen from any source without reference to
section 5. He therefore concluded that the Union's
demand that the Employer's direct hires be dis-
charged and replaced with union referrals was
without contractual or legal justification, and that
3 The Committee decided-
We find Wismer and Becker in violation of Article 5.5 and it is the
decision of this Joint Conference Committee that all employees of the
Wismer and Becker Co employed at the Grand Coulee Dam third
powerhouse project under this collective-bargaining agreement who are
not duly registered as being in group 1 , 2, 3 or by Article 5, Section 5.4
of the referral procedure shall as of the date of this conference, July 1,
1974 be considered temporary employees
a The General Counsel subsequently discovered that the 1975-77
contract did not contain the "eligibility for classification" language which
supported his argument that the direct hires were eligible for classification
on the Union's referral register and, consequently , were not subject to
replacement by union dispatches, and therefore that he had inadvertently
the Union thereby restrained employees in violation
of Section 8(b)(1)(A) and attempted to cause the
Employer to discriminate against employees; i.e., to
encourage membership in the Union in violation of
Section 8(b)(2) of the Act. The Administrative Law
Judge further found that the Employer' s acquies-
cence in the Union's unlawful demand violated
Section 8(a)(3) and (1) of the Act. In so doing, the
Administrative Law Judge specifically found no
basis in the record for determining the eligibility for
registration of 19 of the direct hires.
Contrary to the Administrative Law Judge, we
conclude that 24 direct hires were, in fact, eligible for
referral under the applicable 1974-75 contract in
effect at the time the Union demanded their
replacement. Thus, at the hearing the parties stipulat-
ed:
[W]ith the exception of two individuals as to
whom the testimony will be received, those being
Bud Jameson and an employee named Phil
Mielcarek, the other 22 persons listed on the
amendment to paragraph 13, which was received
in evidence as General Counsel's [Exhibit] 2,
would have qualified in at least the group IV
referral status under the contract introduced or its
immediate predecessor to it. [Emphasis supplied.]
The "contract introduced" referred to the 1975-77
contract between the Union and the National
Electrical Contractors Association and "its immedi-
ate predecessor" referred to the previous contract
which was in effect July 1, 1974, through June 30,
1975. Thus, the parties stipulated that under either
contract 22 direct hires were "eligible for classifica-
tion" in referral group IV which granted eligibility
for placement on the Union's referral register to "all
applicants for employment who have worked at the
trade for more than 1 year." 4
The Administrative Law Judge, however, conclud-
ed that the parties' stipulation with regard to the
eligibility for registration of the direct hires was
"specifically tied to the 1975-1977 contract and lost
all probative value when that contract was removed
from the record." The parties' stipulation referred to
two contracts, one relating to eligibility for registra-
introduced the wrong contract into evidence. As a result, he filed a motion
with the Administrative Law Judge to substitute the 1974-75 contract,
which contained the "eligibility for classification" language and which was in
effect at the time the direct hires were discharged, for the one introduced. The
Administrative Law Judge denied the motion . Thereafter, the General
Counsel appealed this ruling to the Board . By telegraphic order dated
November 21, 1975, the Board, Chairman Murphy dissenting, granted the
appeal and reversed the Administrative Law Judge 's ruling . Pursuant to the
Board's Order , the Administrative Law Judge received the 1974-75 contract
in evidence and directed that the 1975 -77 contract be placed in the rejected
exhibit file. Chairman Murphy has reconsidered her position taken at the
time of the appeal , and now joins in the Board's reversal of the
Administrative Law Judge 's ruling.
WISMER AND BECKER 781
tion under the 1975-77 contract and one relating to
eligibility for registration under the "immediate
predecessor" to it, i.e., the 1974-75 contract which
was later introduced into evidence. In the absence of
any subsequent stipulation or motion to the contrary,
we find that removal of the 1975-77 contract from
the record did not disturb in any way the parties'
stipulation that 22 direct hires were eligible for
classification in referral group IV under the 1974-75
contract. We therefore find, based on that stipula-
tion, that the 22 direct hires were eligible for
registration in referral group IV under the 1974-75
contract. Additionally, the record discloses that
employees Bud Jameson and Philip Mielcarek each
had 1 year's experience in the trade. We therefore
find that these employees were also eligible for
referral under the applicable 1974-75 contract.
Thus, as the Employer was entitled under section
5.5 of the contract to hire men directly outside the
Union's exclusive hiring hall and as 24 direct hires
were eligible for classification in at least referral
group IV of the 1974-75 contract, the 24 were not
"temporary" employees subject to replacement by
union dispatches under that contract. Therefore,
inasmuch as Respondent Union's demand that these
employees be replaced by union dispatches and
Respondent Employer's compliance in that demand
had no legal or contractual justifications and clearly
had the effect of encouraging membership in
Respondent Union, we find that Respondents
violated Section 8(b)(2) and 8(b)(1)(A) and Section
8(a)(3) and (1), respectively.6 See The Radio Officers'
Union of the Commercial Telegraphers Union, AFL [A.
H. Bell Steamship Company] v. N.L.R.B. 347 U.S. 17
(1954).7
2. The General Counsel has excepted to the
Administrative Law Judge's failure to find that
Respondent Union violated Section 8(b)(2) and
8(b)(1)(A) by its refusal to refer Jess Jameson,
Richard Nelson, and Decevigne Kilpatrick for
employment with Wismer and Becker . We find merit
in these exceptions.
5 We find without merit Respondent Employer's asserted defense that it
discharged its direct hires in reliance on the Joint Conference Committee's
ruling that the direct hires were "temporary" employees . It is clear that the
Joint Conference Committee erroneously premised "temporary" status upon
actual registration with the Union rather than upon eligibility for
registration as expressly provided in sec. 5.5 of the contract. Accordingly, as
the Joint Conference Committee 's award was in contradiction of the express
language of sec . 5.5 of the contract , such award was without legal or
contractual justification and, therefore , was repugnant to the Act.
6 The Administrative Law Judge included in his recommended Order the
names of G. B. Fatland and G . M. Thunstrom , finding that they were
"members of the class described in the original charges and in the original
complaint, but omitted from the amendment to the complaint." Respondent
Employer has excepted to the Administrative Law Judge 's finding and
recommended Order in this regard , contending that these two employees
were not named in the complaint or the amendment to the complaint, that
The record discloses that on March 12, 1974,
Jameson was directly hired by Wismer and Becker.
On the following day, March 13, he went to
Respondent Union's office to inquire whether he
could be dispatched to Wismer and Becker. He was
informed that he could not work for Wismer and
Becker because the Union and Wismer and Becker
were having a "dispute." Between March 18 and 22,
Richard Nelson went to Respondent Union's office,
asked to be dispatched to Wismer and Becker, and
was told that the Union was not dispatching anyone
to it because of a "dispute." Thereafter, he went to
work for Wismer and Becker as a direct hire on
March 27, 1974. On April 8, 1974, Decevigne
Kilpatrick spoke to Union Business Manager Rich-
ardson and told him that he was going to work for
Wismer and Becker, but that he wanted to follow the
bylaws of the International Brotherhood of Electrical
Workers. However, Richardson refused to refer him
to Wismer and Becker because of the existing
"dispute" and told him that if he worked there
without a referral he would be a "scab." Later that
day, Wismer and Becker directly hired Kilpatrick for
its Grand Coulee Dam job.
In International Union of Operating Engineers,
Local 18 (Ohio Contractors Association), 204 NLRB
681 (1973), the Board stated in part:
When a union prevents an employee from
being hired or causes an employee's discharge, it
has demonstrated its influence over the employee
and its power to affect his livelihood in so
dramatic a way that we will infer-or, if you
please, adopt a presumption that-the effect of its
action is to encourage union membership on the
part of all employees who have perceived that
exercise of power (citing Radio Officers' Union).
But the inference may be overcome, or the
presumption rebutted, not only when the interfer-
ence with employment was pursuant to a valid
union-security clause, but also in instances where
the facts show that the union action was neces-
sary to the effective performance of its function of
representing its constituency.
the parties' stipulation was inapplicable as to them , and furthermore that
there was no evidence that these employees were eligible for referral. We
find ment in these exceptions . Accordingly, we will not include Fatland or
Thunstrom within the remedial provisions of our Order.
r We find, inasmuch as the Respondent Employer initially refused to
comply with the Union's demand for the discharge of the direct hires,
argued against taking such action before the Joint Conference Committee,
and finally complied with the Respondent Union's demand only because
pursuant to the collective -bargaining agreement between the parties the
decision of the Joint Conference Committee was final and binding on it, that
the Employer made a good-faith attempt to avert the discharges of the direct
hires. In these circumstances , contrary to the Administrative Law Judge, we
shall hold Respondent Employer liable , but secondarily liable , for any
backpay owing the discriminatees. J. Willis & Son Masonry, 191 NLRB 872
(1971). Cf. Alberici-Fnun-Colnon, 226 NLRB 1315 (1976)
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case Respondent Union, vested with
an exclusive right of referral, had a concomitant
obligation to refer applicants without regard to union
considerations. Respondent Union's refusal to refer
Jameson, Nelson, and Kilpatrick was neither con-
tractually justified nor "necessary to the effective
performance of its function of representing its
constituency." Rather, in light of its subsequent
unlawful demand that Respondent Employer replace
its direct hires with union referrals, its refusal to refer
Jameson, Nelson, and Kilpatrick was an integral part
of its plan to apply pressure on Wismer and Becker
and to insure that only loyal union members who
had cooperated in refusing to seek jobs with the
Employer during the "dispute" would ultimately be
hired for the Grand Coulee Dam project. According-
ly, we find that Respondent Union's refusal to refer
Jameson, Nelson, and Kilpatrick to Wismer and
Becker was in derogation of these employees' Section
7 right to refrain from supporting the Union and
thereby encouraged support for the Union in
violation of Section 8(b)(2) and 8(b)(1)(A) of the
Act.8
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Wismer and Becker, Contracting
Engineers, Grand Coulee, Washington, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in International
Brotherhood of Electrical Workers Local Union 497,
or any other labor organization, by discharging
employees or otherwise discriminating against them
in regard to their hire or tenure of employment or
any other term or condition of employment, except
as authorized by Section 8(a)(3) and 8(f) of the
National Labor Relations Act.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
s The General Counsel has excepted to the Administrative Law Judge's
failure to find that Respondent Union refused to permit Jameson , Nelson,
and Kilpatrick to sign its out-of-work books in violation of Sec . 8(b)(IXA).
However, as found by the Administrative Law Judge, the record reveals that
the three men were not precluded from signing the out-of-work books and,
accordingly, we find no ment in the General Counsel 's exceptions in this
regard
In addition, the General Counsel has excepted to the Administrative Law
Judge's failure to find that Respondent Union expelled from membership
Jameson , Nelson , and Kilpatrick in violation of Sec . 8(bxl)(A). We find, in
agreement with the Administrative Law Judge , that the Union 's action is
permitted by the proviso to Sec . 8(bxlXA). In so doing , we note particularly
(a) In conjunction with Respondent Union, with
Respondent Union primarily liable, make whole the
following named employees for any loss of earnings
suffered as a result of the discrimination against
them. The backpay period shall begin on the date set
forth opposite each respective name and shall end for
each employee on the date when he was reemployed,
or on the date of the offer of reemployment if such
offer was not accepted or was refused. Backpay shall
be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest added thereto in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962):
C. Armstrong 7-3-74
Don Carpenter 7-3-74
Sid Colby 7-8-74
Don Dasautel 7-3-74
Dan Dubois 7-5-74
Jerry Fleshman 7-10-74
Edmund Flugham 7-3-74
Larry Goit 7-3-74
Clifford Grothe 7-3-74
Jim Hubbard 7-5-74
Jess Jameson 7-12-74
Bud Jameson 7-12-74
Darrell Kelly 7-3-74
Decevinge Kilpatrick 7-3-74
Fred Markley 7-8-74
Phil Mielcarek 7-5-74
David Mitchell 7-3-74
John Neal 7-12-74
Richard Nelson 7-10-74
Jim Nutting 7-11-74
Jim Pryor 7-12-74
Jim Robinson 7-8-74
Jack Simmons 7-5-74
Larry Ware 7-3-74
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
the absence of any evidence that as a result of their expulsion from
membership these employees were deprived of the opportunity to obtain job
referrals or suffered the loss of employment-related benefits . Accordingly,
we shall sustain the Administrative Law Judge 's dismissal of this allegation.
See, e.g., Tawas Tube Products, Inc., 151 NLRB 46 ( 1965).
9 In his recommended Order the Administrative Law Judge uses the
narrow cease-and-desist language , "in any like or related manner."
Respondents here have committed violations which go to the very heart of
the Act. We shall therefore require Respondents to cease and desist from in
any other manner infringing upon the rights guaranteed to employees by
Sec. 7 of the Act. N.LR.B. v . Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941). H. C. Macaulay Foundry Company, 223 NLRB 815 (1976).
WISMER AND BECKER 783
(c) Post at its office and electrical shack at Grand
Coulee, Washington, copies of the attached notice
marked "Appendix A."10 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by an authorized agent of
Respondent Employer, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its
employees are customarily posted. Reasonable steps
shall be taken by Respondent Employer to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Transmit to the Regional Director for Region
19 signed copies of said notice in sufficient numbers
to be posted by International Union of Electrical
Workers Local Union 497, in all places where notices
to its members are customarily posted.
(e) Post at the same places and under the same
conditions as set forth in paragraph A, 2(c), above, as
soon as forwarded by said Regional Director, copies
of the attached notice marked "Appendix B."
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent International Brotherhood of
Electrical Workers Local Union 497, Wenatchee,
Washington, its officer, agents , and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Wismer and
Becker, Contracting Engineers, or any other employ-
er, to discharge or otherwise discriminate against
employees in violation of Section 8(a)(3) of the Act.
(b) Discriminatorily refusing to refer applicants in
order to encourage or discourage support of the
Union.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) In conjunction with Respondent Employer,
with Respondent Union primarily liable, make whole
the above-named employees for any loss of earnings
suffered as a result of the discrimination against
them. The backpay period shall begin on the date set
forth opposite each respective name and shall end on
the date when Respondent Union notified Respon-
dent Employer that it had no objection to the
reemployment and the continued employment by
Respondent Employer of the employees herein
named. Backpay shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest added thereto in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(b) Post at its office and meeting hall in Wenat-
chee, Washington, copies of the attached notice
marked "Appendix B."11 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by the business manager
of Respondent Union, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be
taken by Respondent Union to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Transmit to the Regional Director for Region
19 signed copies of said notice in sufficient numbers
to be posted by Wismer and Becker, Contracting
Engineers, in all places where notices to its employ-
ees are customarily posted.
(d) Post at the same places and under the same
conditions as set forth in paragraph B, 2(b), above, as
soon as forwarded by said Regional Director, copies
of the attached notice marked "Appendix A."
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
10 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
11 See fn . 10, supra.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees in order to encourage
membership in International Brotherhood of
Electrical Workers Local Union 497, or any other
labor organization, except as permitted by Sec-
tion 8(a)(3) or Section 8(f) of the National Labor
Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE WILL, in conjunction with the Union, with
the Union primarily liable, make the employees
named below whole for any loss of earnings they
784 DECISIONS OF NATIONAL
may have suffered as a result of the discrimina-
tion against them:
C. Armstrong Darrell Kelly
Don Carpenter Decevigne Kilpatrick
Sid Colby Fred Markley
Don Desautel Phil Mielcarek
Dan Dubois David Mitchell
Jerry Fleshman John Neal
Edmund Flugham Richard Nelson
Larry Goit Jim Nutting
Clifford Grothe Jim Pryor
Jim Hubbard Jim Robinson
Jess Jameson Jack Simmons
Bud Jameson Larry Ware
WISMER AND BECKER,
CONTRACTING ENGINEERS
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Wismer and Becker, Contracting Engineers, or
any other employer , to discharge or otherwise
discriminate against any employee in order to
encourage membership in this Union , except as
permitted by Section 8(a)(3) or Section 8(f) of the
National Labor Relations Act.
WE WILL NOT discriminatorily refuse to refer
applicants for employment in order to encourage
or discourage support for the Union.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL, in conjunction with Wismer and
Becker, with ourselves primarily liable, make the
employees named below whole for any loss of
earnings they may have suffered as a result of the
discrimination against them:
C. Armstrong
Don Carpenter
Sid Colby
Don Desautel
Dan Dubois
Jerry Fleshman
Edmund Flugham
Larry Goit
Clifford Grothe
Jim Hubbard
Jess Jameson
Darrell Kelly
Decevigne Kilpatrick
Fred Markley
Phil Mielcarek
David Mitchell
John Neal
Richard Nelson
Jim Nutting
Jim Pryor
Jim Robinson
Jack Simmons
LABOR RELATIONS BOARD
Bud Jameson Larry Ware
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS
LOCAL UNION 497
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge: This
consolidated proceeding was heard before me in Seattle,
Washington, on September 16 and 17, 1975, and on
February 3, 1976. The consolidated complaint , issued on
May 2, 1975, is based on charges filed by individuals on
July 5 and August 15, 1974. The complaint , as amended
and particularized September 16, 1975, alleges in substance
that Wismer and Becker , herein called Respondent
Employer, discharged 24 named employees on and be-
tween July 3 and 12, 1974, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
and that International Brotherhood of Electrical Workers
Local Union 497, herein called Respondent Union, by
causing the Respondent Employer to discharge these 24
employees, violated Section 8(b)(1XA) and (2) of the Act.
The complaint further alleges that Respondent Union
violated Section 8(bx1)(A) and (2) of the Act by: (1)
between March 7, 1974, and June 18, 1974, refusing to
dispatch employees from its exclusive dispatch hall to
Respondent Employer at Grand Coulee Dam; (2) refusing
in March and April 1974 to permit Richard Nelson, Jess
Aaron Jameson, and Decevigne Kilpatrick to register on its
dispatch list for employment; and (3) instituting on June 5,
1974, and prosecuting intraunion charges against Jameson,
Kilpatrick, and Nelson designed to bring about their
expulsion from International Brotherhood of Electrical
Workers.
Respondent Employer, in its answer , denies that it
discriminated against employees and asserts that "all acts
taken by it were proper and appropriate under the
circumstances and were not contrary to nor violative of the
National Labor Relations Act." As affirmative defenses to
the September 16, 1975, amendment to the complaint
(naming, for the first time, employees discharged between
July 5 and 12, 1974), counsel for Respondent Employer
answers : ( 1) "insofar as any violation of the collective
bargaining agreement is an element of any allegation [of
the complaint ] that is a matter solely within the province of
the contract adjustment procedures , and is not an appro-
priate matter for litigation in front of the Board.... I am
still not aware of to what extent the General Counsel is
relying here on a contract violation, I want my defense to
be entered that that matter is beyond the competence of
this forum"; (2) "The allegations of the amendment to the
complaint are unsupported by a timely charge with respect
to the Respondent Employer"; and (3) "the conduct of the
Employer was perfectly lawful as a legitimate resolution of
the labor dispute under its right to make an arrangement
with the Union to rehire the people who had been
displaced during the existence of that labor dispute."
WISMER AND BECKER 785
Respondent Union in its answer denies the commission
of any unfair labor practice and affirmatively alleges: "any
cessation in performance of work constituted protected
concerted activity."
Upon the entire record in this proceeding, including my
observation of the witnesses and after due consideration of
the posthearing briefs, I make the following:
1.4. There shall be no stoppage of work either by
strike or lockout because of any proposed changes in
this Agreement or disputes over matters related to this
Agreement. All such matters must be handled as stated
herein ... .
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT EMPLOYER
Wismer and Becker is a California corporation engaged
as a mechanical and electrical contractor in the commer-
cial construction industry with its principal business office
located in Sacramento, California, and Idaho.
Within the 3 years last past, Respondent Employer has
been engaged in projects in Alaska, Oregon, Idaho, and
Washington. For its project at Grand Coulee Dam in the
State of Washington it has, within the 12-month period
ending May 2, 1975, caused to be shipped from points
outside the State of Washington, directly to the project,
goods and materials valued in excess of $50,000.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the National Labor Relations
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
In late 1973 or early January 1974, the Bureau of
Reclamation of the United States Department of the
Interior awarded to Respondent Employer a contract for
completion of electrical and mechanical facilities in
powerhouse 3 at Grand Coulee, Washington. When
complete, the Grand Coulee complex will be the largest in
the world and will produce power to serve approximately
4-1/2 million people. Respondent Employer is a member of
National Electrical Contractors Association. All of its
employees on every project are represented by Internation-
al Brotherhood of Electrical Workers and labor relations
are governed by contracts between IBEW locals and
NECA regional chapters. Grand Coulee is located in the
Central Division of the Inland Empire Chapter of the
National Electrical Contractors Association and within the
territorial jurisdiction of Respondent Union, the office of
which is located in Wenatchee, Washington. Before
bidding on the Grand Coulee job, Robert Glenn Albrecht,
president and general manager of Respondent Employer,
made an investigation of the labor situation on the job. On
January 11, 1974, before any employee was hired, Respon-
dent Employer entered into a "Visiting Employer Compli-
ance Agreement" with Respondent Union, by which
Respondent Employer agreed to be bound by all the terms
and conditions of a contract between The Inland Empire
Chapter of NECA and Respondent Union effective from
July 1, 1973, to June 30, 1974.
This NECA-IBEW contract contains, inter alia, the
following provisions:
1.6. All questions or disputes which are not
adjusted between the Union and the Employer shall be
referred to the Joint Conference Committee.
1.7. There shall be a Joint Conference Committee
consisting of three members representing the Union
and three members representing the Employer ... .
The Committee shall meet within seventy-two hours
when a meeting is requested by either party. The party
requesting the meeting shall state the purpose of the
meeting or the nature of the grievance to be adjusted.
s s
1.9. Should the Joint Conference Committee be
unable to agree or adjust any matter within 48 hours,
such shall then be referred to the Council on Industrial
Relations for a decision which shall be final and
binding on both parties.
1.10. When any matter in dispute has been referred
to conciliation or arbitration for adjustment, the
provisions and conditions prevailing prior to the time
such matter arose shall not be changed or abrogated
until a decision has been rendered in such conciliation
or arbitration.
* s s
2.3. The Union agrees that if, during the life of this
Agreement it grants to any other employer any better
terms or conditions for work covered by this Agree-
ment than those set forth in this Agreement, such better
terms or conditions shall be made available to the
Employer under this Agreement and the Union will
immediately notify the Employer of any such conces-
sions.
s s s
2.4.(a) Employers shall provide a place for employees
to change clothes, washup and store toolboxes. All
employers shall see that sanitary drinking facilities and
toilet facilities are available in shop and accessible to
jobs.
2.6. The Employer recognizes the Union as the
exclusive representative of its employees performing
work within the jurisdiction of the Union for the
purposes of collective bargaining ... .
The Employer shall have the right to determine the
competency and qualifications of its employees and the
right to discharge employees for any just and sufficient
cause. The Union may institute a grievance procedure
under the terms of this Agreement if it feels that any
employee has been unjustly discharged ... .
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All workmen employed by the Employer shall, as a
condition of employment , tender the full and uniform
admission fees in effect in the Local Union within
thirty-one days following the beginning of employment
under this Agreement . All workmen who may be
accepted into membership shall thereafter maintain
their continuous good standing in the Union as a
condition of employment ....
s s • s s
3.21. Workmen employed under the terms of this
Agreement shall do all electrical construction , installa-
tion or erection work .... Such work shall also
include the welding, burning, brasing, bending , drilling
and shaping of all copper, silver, aluminum, angle iron,
and brackets to be used in connection with the
installation and erection of electrical wiring and
equipment ....
However, the above shall not apply to items which
cannot be fabricated under this Agreement because of
the nature of the fabrication or to items which are not
customarily fabricated under this Agreement under
trade practice in this jurisdiction. Prior to arranging for
the fabrication of such items by employees or subcon-
tractors not under this Agreement , the contractor will
discuss the work involved with the Business Manager of
the Local Union.
• s s • s
5.1. The Union shall be the sole and exclusive
source of referrals of applicants for employment ... .
5.2. The employer shall have the right to reject any
applicant for employment and the union shall not
attempt to frustrate this right through delays in referral
of other applicants, withholding of accurate informa-
tion on the availability of workmen or other means.
5.3. The Union shall select, classify and refer
applicants for employment without discrimination
against such applicants by reason of membership or
non-membership in the Union or by reason of such
applicants' race, color , religion, sex or national origin.
Such selection and referral shall not be affected in any
way by rules, regulations , by-laws, constitutional
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:
5.4.(a) The Union shall maintain a register of
applicants for employment established on the basis of
the groups listed below. Each applicant for employ-
ment shall be registered in the highest priority Group
for which he qualifies.
GROUP I - All applicants for employment who have
four or more years' experience in the trade, are
residents of the geographical area constituting the
normal construction labor market, have passed a
journeyman's examinati on given by a duly constituted
Local Union of the IBEW and who have been
employed for a period of at least one year in the last
four years under a collective bargaining agreement
between the parties to this addendum.
GROUP II - All applicants for employment who have
four or more years ' experience in the trade, who have
passed a journeyman 's examination given by a duly
constituted Local Union of the IBEW, and who are
residents of Washington.
GROUP III - All applicants for employment who
have four 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 rv - All applicants for employment who
have had two or more years' experience in the inside
electrical trade.
s s r a s
5.5 The Union shall notify the employer when he
places his call if there are no applicants in the above
groups who will apply to the employer within 48 hours
after the Union receives the employer's request, and the
employer shall be free to secure applicants from other
sources, provided the Union has notice of at least six
working hours before a holiday or a weekend to call
applicants whom the employer wishes to report at 8:00
a.m. the next work day . Employees not eligible for
classification in one of the above groups shall have the
status of "temporary employees" and shall be replaced
by qualified individuals as soon as registered applicants
for employment are available under the referral
procedure. The employer shall notify the Business
Manager promptly of the names and Social Security
numbers of any employees hired who were not referred
by the Union referral office.
s s • s s
5.7.(a) 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
availability for employment . . . . No applicant may
register on the Out-of Work List or remain registered
while he is employed at the trade . An applicant's name
will not be removed from its place on the list if he is
referred to a job of five days' or less duration ....
: s • • s
5.7.(d) An applicant who is temporarily unable to re-
register or is unable for two weeks or longer to accept
employment due to sickness , injury or absence from the
area on emergency personal business but who is not
employed anywhere at the trade may sign a certificate
to this effect, which shall be placed on file at the
referral office , with a copy to the NECA office. Such
applicant's name shall continue to remain in the same
position on the Out-of-Work List until the applicant
personally files at the referral office a certificate that he
is again able to accept referrals... .
5.8.(a) 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 successively
WISMER AND BECKER
from the Out-of-Work List in Group II, then Group III,
and then from Group IV as prescribed ....
B. Sequence of Events
Before signing the visiting employer agreement, the
Union and the Employer met on January 8, 1974, "in an
attempt to unravel some of the spaghetti (Employer] felt we
might get into." Employer was represented by Division
Manager Holland, Vice President Pester and Project
Manager Anderson. Union was represented by Secretary-
Business Manager Richardson and by another officer.
Employer representatives stated that they intended to send
electricians referred to it by the Union to Employer's
Sacramento shop to fabricate cable tray supports. Richard-
son objected and there was no agreement .) Employer
representatives stated that they intended to provide
chemical toilets and cool can drinking water facilities in a
"change shack" to be located inside the powerhouse.
Richardson replied that the Union would require flush
toilets and running water and that these should be located
in a shop outside of the powerhouse. There was no
agreement.2
Between January 21 and February 18, 1974, 13 electri-
cians referred by the Union were hired by Employer. Of
these, one worked for 4 weeks, three worked for 3 weeks,
one worked for 2 days, and three worked for only 1 day. As
of March 4, 1974, 5 of the 13 were still employed.
Throughout this period electricians reported to and ate
lunch in a trailer designed to be Employer's office.
On March 4, 1975, Anderson instructed his foreman,
Meredith Williams, to have carpenters erect scaffolding on
which electricians were to work. On March 5, Richardson
inspected the facilities in the electrical "shack" which
Employer had installed in the powerhouse. True to its
promise , there was no running water for washing or
drinking, no washing facility and no flush toilet, nor was
there any flush toilet at the powerhouse level on which the
new "shack" was situated. Richardson told Anderson that
the facilities were totally inadequate and offered to show
him the shop of another contractor on the project,
Drucker's, which had all that the Union required. Then,
accompanied by a pipefitter representative, Junior Rodg-
ers, Richardson called on Anderson. Richardson and
Rodgers asserted that the scaffolds should be erected by
electricians and pipefitters. Anderson replied that the
award to the Carpenters would stand. Richardson also told
Anderson that the facilities in the new "shack" were not
satisfactory. Following this meeting, Williams was instruct-
ed by Anderson to order the five electricians, then working,
to report to the new "shack" at 8 a.m. the following
morning.
On the morning of March 6, one of the electricians
telephoned Richardson and informed him that "they had
been invited to report to the shop." Richardson advised the
electricians to disobey this order and to report, as they had
been doing, to the trailer. The electricians took Richard-
son's advice and, finding no one at the trailer, resumed
work where they had left off the previous day.
Contract, sec. 3 21.
z Contract, sec. 2.4(a).
Contract , secs. 5.2 and 5.8(a).
787
At or about 8:45 a .m. on March 6, Anderson, accompa-
nied by Williams, went to the electricians ' work station.
AAnderson] made it clear ... that we had established a
reporting place and that they were to report there each
morning to receive their orders of the day from their
foreman ... that at twelve o'clock noon was the time
when they took their half hour for lunch, and twelve-
thirty was the designated lunch period end ... .
When some of the electricians objected to eating lunch in
the new "shack," Anderson granted permission to eat in
any nondesignated area, provided they did not litter.
Anderson specifically warned all five that repeated tardi-
ness would subject them to being discharged. At 12 noon,
Anderson observed that the electricians had already left for
lunch. At 12:30 he observed them returning on foot to their
work area . At 1:30 p.m. he telephoned the Union and
asked that two journeymen electricians be dispatched at 8
a.m. on March 7. At 4:30 p.m. on March 6, Employer
discharged all five electricians. No electrician reported on
either Thursday, March 7, or Friday, March 8. When
Anderson telephoned the Union on March 8, he was
informed by Richardson's secretary that Richardson was in
Hanford, was having difficulty in obtaining men, and was
working on Anderson's request.
On Monday, March 11, 1974, Anderson, after receiving
permission from his superior, Lee Holland, and after
notifying the National Electrical Contractors Association,
advertised for electricians in the Spokane and Wenatchee
newspapers. The ads stated that the project would last for
2-1/2 years and that applicants should communicate with
Anderson by letter or by telephone.
From March 6 through June 23, 1974, Respondent
Union, in clear violation of its contract,3 refused to
dispatch any workmen to Employer. Between and includ-
ing March 12 and June 17, 1974, Anderson hired 30
workmen. Each was informed that Employer was party to a
labor agreement and that a copy of the agreement was
available for the inspection of the applicant. Anderson
called specific attention to the union-security clause,4 to
the clause relating to sanitary facilities ,5 and to the clause
permitting him to hire workmen directly when Respondent
Union was unable to supply workmen requested by
Employer.6 Each applicant was told that the Union would
be notified of his hire and advised of his name and social
security number. Anderson testified that he told each
applicant:
that it appeared to me that if they had one year or more
experience in the trade that they would presumably be
classified in at least Group IV and therefore could not
be replaced. But I did make it a point to tell them that
this may not be the Union's position and that, at some
point in the future, I might be proven to be wrong.
With reference only to the union-security clause, Ander-
son told each direct hire "that they should weigh this and
let their conscience be judge."
4 Contract, sec. 2.6.
S Contract, sec. 2.4(a).
6 Contract, sec. 5.5.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
True to his promise, Anderson notified the Union by
telegram of the name, social security number, and date of
hire of each man hired directly by him. Some of these did
tender to the Union, by mail, initiation fees and dues.
These tenders were promptly returned by the Union. Only
3 of the 30 men hired directly by Anderson were members
of IBEW. These were Jess Jameson, Decevigne Kilpatrick,
and Richard C. Nelson.
On March 14, 1974, the Union and the Employer met at
the Coulee House. On this date the only employees on
Respondent Employer's payroll were the foreman, Wil-
liams, and Jess Jameson, who had been hired on March 12.
The Employer was represented by Project Manager
Anderson and Mechanical Construction Division Manager
Lee Holland. The Union was represented by its officers,
Richardson and Cokeley. The National Electrical Contrac-
tors Association was represented by George Seaman,
manager of Central Division, Inland Empire Chapter.
Richardson stated that he had instructed the electricians
not to report to the inadequate "change shack." Anderson
insisted that the shack complied fully with the require-
ments of the contract. Richardson replied that, if Anderson
continued to discharge workmen for refusal to use the
change shack, he would have to go through the entire
union rolls and it would "cost" the Employer. There was
no discussion of the Union's failure to refer replacements
for the five men discharged, nor of Respondent Employer's
advertisement, nor of the direct hire of Jameson.
On March 18, 1974, Richardson wrote to Seaman:
Be advised that we have a dispute with Wismer and
Becker, Electrical Division, over the firing of five
workmen. These five workmen's termination slips state
the reason for discharge was refusal to report to
assigned work area and repeated tardiness.
We disagree that this was the reason for firing these
workmen. These men did not refuse to work and they
were not tardy in reporting to their work assignments.
Project Superintendent for Wismer and Becker, Gary
Anderson, insisted that these men report to a shop that
didn't meet the requirements of Article 2.4 of the
Collective Bargaining Agreement.
At its meeting on March 20, the Joint Conference
Committee failed to agree, three members voting for the
Union and three members voting for the Employer. The
dispute was then referred to the Council on Industrial
Relations.
Following the committee deadlock Anderson, on March
21, 1974, telephoned Richardson , reminded him that
Employer had a standing order for workmen, and asked if
the Union would be sending him any people. Richardson
acknowledged the existence of the standing order and
replied that the Union would not refer any workmen to
Wismer and Becker unless it was ordered to do so by the
International office. As of March 21, 1974, the only
electricians on the payroll of Respondent Employer were
the foreman, Meredith Williams, and Jess Jameson.
On June 20, 1974, Anderson received a copy of the
decision of the Council on Industrial Relations (dated May
28) ordering Respondent Employer to reinstate the five
electricians without backpay. On the previous day, June 19,
Richardson had told Anderson that all electricians then
working were "temporary" and must be replaced by
referrals from the Union. On Thursday, June 20, Anderson
telephoned Richardson and asked him to send the five
discharged electricians to Grand Coulee. Richardson said
he was having difficulty in locating the men.
On Monday, June 24, the Union dispatched 25 men,
including the five dischargees, to Respondent Employer.
The five were "signed up." The other 20 were refused
employment. The 5 then refused to work unless the other
20 were hired. That afternoon Richardson telephoned
Employer's Division Manager Holland,7 who agreed to
discharge all the electricians then working and replace
them with workmen referred by the Union. The Union
agreed to dispatch four men every second working day
until all of Anderson's direct hires had been replaced.
On June 25, four of the March 6 dischargees returned to
work. On June 26, the fifth dischargee and four other
workmen referred by the Union were hired and went to
work. On the same day, June 26, 1974, the agreement
between Richardson and Holland was repudiated by
Holland's superior, Respondent Employer Vice President
R. E. Pester, in the following letter:
International Brotherhood of Electrical Workers Local
Union 497
We are in dispute as follows:
# I Firing of five men unjustly
#2 Qualifications of shop facilities Article 2.4
Therefore, I wish to request that Wismer and Becker,
Electrical Division, be cited to appear at the Joint
Conference Committee, Wednesday evening, March
20, 1974, at 7:30 p.m., Local Union 497 office, 27 N.
Chelan, Labor Temple, Wenatchee, Washington,
98801, in answer to these alleged violations according
to Articles 1.6, 1.7, 1.8, 1.9, 1.10, 2.3, and 2.6 sub
paragraph 5.
Attention: Mr. C. L. Richardson , Business Manager
Under any fair and lawful reading of the contract we
can not agree with your position that our present
electrical employees are not eligible for classification
and therefore do not have the status of "temporary
employees."
On March 7, 1974, we placed a call for workers and
were informed none were available.
Pursuant to Article V of the agreement we then
recruited workers from other sources. However, Inter-
national Brotherhood of Electrical Workers, Local
Union 497, breached its obligation under the contract
7 Monday, June 24, was Anderson's first day of vacation. He returned to
work on Monday, July 1.
WISMER AND BECKER 789
and failed to refer applicants as soon as they were
available.
As you are aware, our present employees have been
working in excess of two and three months and have
tendered initiation fees to IBEW, Local Union 497, in a
good faith effort to become members in good standing.
Earlier this week we agreed to accept referrals on a
limited basis. We are now advised by counsel we should
not accept referrals which would require us to replace
present employees.
Accepting any referrals at this time would necessitate
displacing a present employee, and we do not believe
this is proper under the contract or lawful under the
National Labor Relations Act.
If this matter has not been resolved to your
satisfaction please consider this letter as our referral of
our dispute to the Joint Conference Committee.
Upon receipt of Pester's letter, Richardson, on June 27,
1974, wrote to George Seaman , NECA chapter manager:
We wish to request an immediate Joint Conference
Committee Meeting according to Article I, specifically
Article I Section 1.6 and Section 1.7, of the Collective
Bargaining Agreement.
Local Union 497 IBEW alleges Wismer & Becker,
Contracting Engineers is in violation of Article 1.9 and
5.5 of the Collective Bargaining Agreement.
We wish for the earliest possible meeting to resolve
this dispute.
The Joint Conference Committee met on July 1, 1974.
The employer representatives were: James Mack, Bob
Fries, and Dan Swartz. Union representatives were Jack
Acord, Bill Beuhler, and Gradon Hemingway. Wayne
Folder, NECA representative, was present as a nonvoting
observer. Mack was elected chairman and Acord was
elected secretary. The letters of June 26 and 27 were read.
Richardson, speaking for Respondent Union,
advised the committee that . . . these people were
temporary employees, and Wismer and Becker agreed
to this originally, and then they came back and
objected to this procedure outlined in the agreement
I presented the letter from Mr. Pester and made
that part of my presentation . . . . [These employees]
were picked up off the bank, as we would call it. They
didn't go through the referral procedure. They hadn't
registered on the books, so according to the agreement
they couldn't be anything but temporary employees, as
specified in the agreement . . . . I probably advised
them that Kilpatrick had come to the office, but anyone
else, to my knowledge, had never appeared at the office
.... I advised them we hadn't made any referrals to
Wismer and Becker [because ] we had a dispute and
they had fired five of our people.
The minutes taken by Jack Acord accurately describe the
position of Respondent Employer at the July 1 hearing as
follows:
Mr. Gary Anderson called into the meeting at 1:45
p.m.
Mr. Anderson gave a statement as follows: On
Monday, June 24, 5 men that had been laid off
previously, reported to the job site plus approximately
20 other men. At that time the 5 men were accepted
and the other men were told there was no call for more
men.
After a discussion with Mr. Holland an agreement
was made to have 4 more men plus 4 men every other
day until all temporary employees were replaced.
The following day Mr. Holland called and said there
was a change of plans and that the people employed are
not temporary employees.
There is now the five men which were laid off plus
the first group of 4 men are employed.
The five men were called to comply with the C.I.R.
decision.
The original intent of the call for the 4 men every
other day was to replace the men already employed,
but after more discussion with the head office the call
was cancelled and a letter sent to the local Union.
Question (by one of the committee) Mr. Anderson what
was the interpretation of your legal people of Article 5.5
of the agreement between NECA and Local Union
497?
Answer: I am not certain, I have been on vacation. I
contacted Mr. Holland and he was vague. The
following day I received word they had changed their
mind and that the men employed are not temporary
employees.
Question: Mr. Anderson, what proof of competence
do you have on these men?
Answer: Some men have a state license. I inter-
viewed others as to their qualifications.
Question: Mr. Anderson, are there any men em-
ployed from a labor union?
Answer: Not to my knowledge.
Question: Mr. Anderson, do you feel these men are
qualified under Article 5.5?
Answer: Yes, that is right, and we do not intend to
replace these men we have employed.
Question: Mr. Anderson, have these men went to the
Local Union hall to sign the out of work book?
Answer: Not to my knowledge.
Mr. Anderson excused from the meeting at 2:15 p.m.
After the employer-members of the committee held a
separate caucus, a vote was taken and the Joint Conference
Committee unanimously agreed on the following decision:
After careful consideration of the evidence submitted
the Joint Conference Committee rules as follows:
We find Wismer and Becker in violation of Article
5.5 and it is the decision of this Joint Conference
Committee that all employees of the Wismer and
Becker Co. employed at the Grand Coulee Dam third
power house project under this collective bargaining
agreement who are not duly registered as being in
group 1, 2, 3 or 4 by Article 5 section 5.4 of the referral
procedure shall as of the date of this conference, July 1,
1974 be considered temporary employees.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meeting adjourned at 3:45 p.m.
Between July 3 and 12, 1974, Respondent Employer
discharged the 24 men named in the amendment to the
complaint and also discharged G. B. Fatland and G. M.
Thunstrom, who had been hired by Anderson on April 1,
1974. Between July 5 and 15, 1974, Respondent Employer
hired 19 men referred to it by Respondent Union. Twenty-
three of the men hired between June 26 and July 15 had
never before worked for Respondent Employer on its
Grand Coulee project. All were registered in Book I in the
office of Respondent Union. Many of these in violation of
sections 5.7(a) and 5.7(d) of the contract had retained their
places on the out-of-work list while employed outside of
the territorial jurisdiction of Respondent Union and quit
these jobs to go to work for Respondent Employer.
C. Jameson, Nelson, and Kilpatrick
On Monday, March 11, 1974, Jess Jameson telephoned
Anderson in answer to Employer's advertisement and was
invited to the project for an interview. On Tuesday, March
12, Jameson was hired. Anderson told Jameson "that there
had been several things brought up about the facilities not
being adequate, and the Union would probably have a
picket line up." When advised that Jameson held an
honorable withdrawal card from IBEW Local 73 in
Spokane, Anderson advised him to apply for reinstate-
ment. Anderson handed him a copy of the contract, told
him that Respondent Union would be advised of his social
security number and telephone number, and that he would
have to pay dues to Respondent Union.
On either March 13 or 14 Jameson drove to Wenatchee,
entered the office of Respondent Union, and spoke to a
young man who , on this record , was neither an agent nor
an employee of the Union. Jameson testified:
I asked this young man if Claude Richardson was there
and he said "No," that he was not available, and I
asked him if I could get a dispatch to go out to Wismer
and Becker, and he said "No" and I said "Why?" and
so he said that they were having a dispute.
s
I asked him for a reason why, and he said "Well, I'm
not going to give you a reason . We're just not sending
any help out." And I asked him if I could sign the out
of work book and he said "no." And I said, "Well, Is
Mr. Richardson here?" and he said "No" and I turned
around and left.
Richard C. Nelson entered the IBEW apprenticeship
program at age 18. He completed the 4-year apprenticeship
and passed the journeyman wireman's examination of
IBEW Local 46 in Seattle in 1970 . His classification in the
Seattle area was Group I. He first learned that there might
be a job opening with Respondent from the state
"unemployment office" in Everett, Washington, read
Anderson's ad, and telephoned Anderson. Nelson then
telephoned Respondent Union. Nelson testified:
A woman answered the phone. I asked if there were
any men on the out of work list, or what the situation
was as far as signing the books. She replied that they
did have several men on the out of work list; however,
most of them were working out of the jurisdiction, and
there were not very many people readily available to
take a dispatch. I replied I 'd like to come over there and
sign the book and see if I couldn 't get dispatched. She
said it wouldn't be any problem.
Nelson drove to Wenatchee on some date between March
18 and 22 and went to the dispatch window of Respondent
Union . He presented his paid-up dues receipt to the man at
the window and said that he was interested in going to
work at the third powerhouse for Wismer and Becker and
wanted to sign the book. The man replied that the Union
was not dispatching anybody to that job because of a
dispute. Nelson testified:
So he said he didn't have anything for me in that area,
but he'd let me sign the book. So I just replied that I
was going to go to work for Wismer and Becker and I
left the hall.
Nelson returned to Seattle, telephoned Anderson on
Monday, March 25, was promised a job, and went to work
for Respondent Employer on Wednesday, March 27, 1974.
Decevigne Kilpatrick became a member of IBEW Local
46 in Seattle in 1968 while working at Todd Shipyards. He
was classified as a marine electrician . When IBEW lost its
contract with Todd in 1970 or 1971, Kilpatrick was placed
on "inactive" status . After speaking to Anderson in
response to Respondent Employer 's ad, and being offered
employment, Kilpatrick drove to Wenatchee and called on
Richardson at the office of Respondent Union on Monday,
April 8, 1974. Kilpatrick presented a letter from an officer
of Local 46, recommending him for employment as a
construction electrician. He told Richardson that he was
going to work for Wismer and Becker and he was trying to
follow the bylaws of the International Union. Richardson
replied that the Union had a dispute with Respondent
Employer and was not referring anyone to its Grand
Coulee project. Kilpatrick remonstrated that, since he was
unemployed, and since the job was being offered through
the State of Washington Department of Employment
Security, and since the Union was not on strike, he would
lose his unemployment benefits if he did not take the job.
Richardson was not persuaded. He told Kilpatrick that he
would not give him a referral to Wismer and Becker and if
he worked there without a referral he would be a "scab."
When Kilpatrick asked if he could sign the book,
Richardson replied that there were 40 or 50 men out of
work and his chances of getting a referral were very slim.
Kilpatrick took this as a refusal, went to Grand Coulee,
and was hired by Anderson on the same day.
On June 5, 1974, Richardson preferred charges with the
recording secretary of Respondent Union against Jameson,
Nelson, and Kilpatrick for violation of the constitution and
bylaws of the International Brotherhood of Electrical
Workers. On the same date the recording secretary mailed
separate registered letters to their home addresses, request-
WISMER AND BECKER 791
ing each to appear before the trial board of Respondent
Union on June 27 , 1974, to answer the following charges:
Inasmuch as you are a member of International
Brotherhood of Electrical Workers, Local Union 46 [73
in Jameson 's letter] and are employed by Wismer and
Becker, Contracting Engineers at the Third Power-
house , Coulee Dam, Washington , and have solicited
your work, and are working with nonunion people, we
allege that you are in violation of the following:
International Brotherhood of Electrical Workers
Constitution , Article XXVII , Sections 3, 10 and 21-(3)
violation of any provision of this Constitution, and the
rules herein, or the bylaws, working agreements, or
rules of L . U. (10) Working in the interest of any
organization or cause which is detrimental to, or
opposed to, the I.B.E.W. (21) Working for any
individual or company declared in difficulty with a
L.U. or the I.B.E.W ., in accordance with this constitu-
tion.
IBEW Local 497 By-Laws , Article XIII Section 9-
No member shall solicit employment at any shop or
job, or shift from one shop or employer to another
without the consent of the Business Manager ... .
All three appeared before the trial board on June 27.
Jameson testified:
They asked me how I got my experience . I explained
to them how I did . They asked me why I was not a
member of 73 no longer and I explained to them why.
And, they said, "Well, we don't feel you're qualified, so
we're not going to accept your explanations" and then
they told me to get out of the room .... They asked
me where all this working ability had come from, so I
told them from several different contractors , and that I
was a contractor myself for three years, and they said,
"Well, why did you get out of the union?" so I said,
"Well, I had worked at other places, and I went into a
different craft." And that was it . . . . They asked me
how I acquired the job at the project , and I told them,
and they said, "Well, that's not legal ...."
Nelson described his experience before the Executive
Board as follows:
My name was called after some of the other fellows
and I went into the room . . . . The only person I
recognized is Mr . Richardson . . . . I was asked
various questions about myself, my background, where
I'd worked, how long I'd worked for Wismer and
Becker . . . . The first question I received was how
long I had worked at Wismer and Becker . I replied,
sometime in March up until the time I sat on that Trial
Board . I was asked what I thought of Meredith
Williams , and I replied I thought he was one of the
most knowledgeable men I 'd ever worked with in the
business , and that I felt fortunate to get a chance to
work with him. I think I replied , as far as Gary
Anderson , that I thought he was a real nice fellow, and
seemed to be extremely fair in all aspects of construc-
tion , as far as myself was concerned . He really had
been very nice to me . I was asked if I was aware I was
working with nonunion labor, and I said, "Yes", that I
was; but I also replied those men had applied for union
membership , and had been denied .... I was asked
why I went to work for Wismer and Becker without a
union dispatch . I replied that I was refused a union
dispatch , and that I didn't feel that there was justifica-
tion for being refused ; that I was aware there was a
dispute going on, but there was no grounds for that
dispute to ever have come about.
And Mr. Richardson, at that time , replied that it was
none of my business to interpret the Union agreement.
He asked me if I had ever come into the Hall to discuss
the matter with him , and I said, "Yes" I had, but he was
not there and he called me a liar . . . . They asked me
how I got Union membership . . . . I told them I went
through apprenticeship in school through Local 46,
took the journeyman wireman's exam . . . . I got one
of the highest grades ever recorded for an apprentice on
the exam . . . . I passed that exam and was awarded a
journeyman wireman's card, and became a Book One
member, or a Class "A" member in the International
Kilpatrick testified:
Q. (by Mr. Sanders) What questions were asked of
you by the Executive Board?
A. Well, were they aware that I had violated their
bylaws by finding my own job. These were some of the
questions ; that they had a dispute with Wismer and
Becker, of which I was aware of - and I think I was
asked my opinion on it , which I gave my opinion rather
quickly, which was an adverse opinion of their opinion.
Primarily this was about the line of questioning. It
lasted about 14 or 15 minutes.
Under date of July 2, 1974, Jameson, Nelson, and
Kilpatrick were notified by registered mail that each had
been found guilty on all charges by the trial board of
Respondent Union, and the recommendation of the trial
board that each "be expelled from membership in the
IBEW." This action of the trial board was appealed by all
three to W. L. Vinson, International vice president,
International Brotherhood of Electrical Workers, who
ruled on August 23, 1974, in each case:
By communication received in this office [date] you
appealed from an action of the Trial Board of Local
Union 497. As you were advised I have obtained the
record of the proceedings from Local Union 497.
I am also advised that you have filed a complaint
with the National Labor Relations Board over matters
connected with your employment which brought on the
charges.
Please be advised that I decline to issue a decision on
your appeal until the matter is either withdrawn from
or concluded by the Board.
In the meanwhile your appeal will be held in my files
until I am advised of the proceedings before the Board.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Evidence Relating to Prior Experience in the
Electrical Trade of Employees Discharged July 3 to
12, 1974
On the first day of the hearing before me, I received the
following stipulation:
NELSON: I would offer General Counsel's Exhibit 3
as a contract, which by its terms covers the period from
July 1, 1975, through June 30, 1977. Now, as it happens,
July 1, 1975, fell almost in the middle of many of the
events that will be the subject of this case; so I would
propose the following stipulation with my offer: that a
predecessor collective bargaining agreement was in
effect at all times material and which did not contain
any significant variations from the document which I
am offering. There is one aspect of the predecessor
agreement which differed from the contract which I am
offering, and I will note as part of my stipulation, that
being in Article V which describes the Union Referral
system. The document I am offering sets forth the
requirements for registration on the Union's Group IV
book as being one year of experience in the inside
electrical trade, whereas the predecessor agreement set
forth two years of experience in the inside electrical
trade as being the criteria for registration in Group IV.
HAFER: I accept the authenticity of the document
and the stipulation.
MORGAN: The employer would enter into that
stipulation and has no objection to the exhibit.
HUTCHISON: We enter the same stipulation.
JUDGE O'BRIEN: General Counsel's Exhibit 3 is
received and the stipulation is received.
A second material stipulation was received on the
afternoon of September 16, 1975:
NELSON: I think it would be appropriate to pose a
stipulation that, with the exception of two individuals
as to whom testimony will be received, those being Bud
Jameson and Phil Mielcarek, the other 22 persons listed
on the amendment to paragraph 13, which was received
in evidence as General Counsel's 2, would have
qualified in at least the Group IV referral status under
the contract introduced or its immediate predecessor to
it.
HAFER: We will accept and agree to the stipulation
so long as no inference is to be drawn that any of them
would have qualified for a higher group status, first of
all, and secondly, with the specific understanding that,
in fact, at no time material did any of them apply for
registration on a Group IV except as may otherwise be
established by evidence here in this hearing.
NELSON: That understanding was part of a pre-trial
understanding, and I accept the qualification. There
will be evidence that certain individuals came to the
hall for that purpose; and, as to any persons for whom
we don't bring in that kind of specific testimony, the
inference may be drawn that they did not in fact,
affirmatively seek to register in Group IV.
JUDGE O'BRIEN : Do you have an agreement, Mr.
Hafer?
HAFER: Yes.
JUDGE O'BRIEN : Mr. Morgan?
MORGAN: Yes, I would so stipulate.
JUDGE O'BRIEN : Mr. Hutchison?
HUTCHISON: Yes, Your Honor.
JUDGE O'BRIEN : The stipulation as amended and
explained is received.
At the request of counsel for the Respondent Employer,
and with the concurrence of counsel for Respondent
Union, counsel for the General Counsel and counsel for
Jess Jameson (counsel for Kilpatrick being absent), I ruled:
"Insofar as it is within my power, I rule that this stipulation
may not be used as evidence in any other case."
Bud R. Jameson, a brother of Jess Jameson, was hired by
Anderson on March 27, 1974, and discharged on July 12,
1974. While in the military service in 1955, he was assigned
for a period of 8 months to wiring tents in France. Between
1956 and 1964, he wired residences for between 25 and 30
private parties, each job lasting from 4 days to I week. In
1973 he worked about 15 days for his brother, Jess, doing
general house wiring . At undetermined periods he wired
four barns, each job requiring at least 1 week's work. This
was the total extent of his experience at the inside electrical
trade when he was hired by Anderson as a journeyman
electrician.
Philip J. Mielcarek was hired by Anderson on April 23,
1974, and discharged on July 5, 1974. In 1964 he worked
steadily for 8 months connecting (service hookups) and
repairing driers and small appliances. Between 1965 and
1970 he worked for his father-in-law, a journeyman
electrician. The work was steady for 2 or 3 months during
each of the first three winters of this employment. For the
entire 5-year period he also worked on about 125 separate
days, mostly Saturdays. The work was mainly trailer
hookups, installing extra outlets and heaters. During this
period Mielcarek wired two residences. This was the extent
of his experience in the inside electrical trade when he was
hired as a journeyman electrician by Respondent Employ-
er, and was granted a temporary license to wire by the
State of Washington. One week after his discharge he filled
out a resume of his electrical experience for Respondent
Union and was permitted to register for employment in
Book IV.8
The hearing closed on September 17, 1975. Briefs were
due on October 22, 1975.
On October 7, 1975, the General Counsel filed with me a
"Motion to Substitute Exhibit and to Correct Record." By
order dated October 16, 1975, I denied his motion. On
November 21, 1975, the Board granted his motion for leave
to appeal and entered the following telegraphic order:
RE WISMER AND BECKER 19 cB 2266 ET AL GENERAL
COUNSEL'S REQUEST FOR SPECIAL PERMISSION TO APPEAL
THE ADMINISTRATIVE LAW JUDGE'S ORDER DENYING
GENERAL COUNSEL'S MOTION TO SUBSTITUTE 1974-75
CONTRACT FOR CONTRACT PREVIOUSLY RECEIVED IN
s The contract which became effective July 1, 1974 , required only I year
of expenence for registration in Group IV.
WISMER AND BECKER 793
EVIDENCE IS HEREBY GRANTED . THE APPEAL IS GRANTED
AND THE ADMINISTRATIVE LAW JUDGE'S RULING IS
REVERSED . (CHAIRMAN MURPHY DISSENTS). BY DIRECTION
OF THE BOARD.
On November 24, 1975, I issued the following:
NOTICE AND ORDER
PLEASE TAKE NOTICE that I shall on Tuesday,
February 3, 1976, at 10:00 a.m. in Room 3064, Federal
Building, 915 Second Avenue, Seattle , Washington,
reopen the hearing in the above entitled matter. I shall
at the opening of the hearing receive in evidence as
Administrative Law Judge's exhibits the following
documents:
ALT 1: The Board's telegraphic order of November
21, 1975.
ALT 2: My order of October 16, 1975.
I shall direct the official reporter to physically
remove from the exhibit file the document entitled
1975-1977 Agreement received in evidence as General
Counsel's Exhibit No. 3 and to place said document in
the rejected exhibit file. I shall receive in evidence as
General Counsel's Exhibit No. 3 the 1974-75 contract
which I am directed by the Board's order of November
21, 1975, to substitute for the contract previously
received in evidence.
The action of the Board having effected a substantial
alteration of the record to the prejudice of Respondents
herein, it is:
ORDERED that my order of October 16, 1975, be and
hereby is vacated and declared null and void, and it is
further
ORDERED that counsel for all parties be prepared on
the date, time and place above noted to present and to
argue any and all motions relating to further proceed-
ings, if any, to ensure that all parties receive a full and
fair hearing and to aid me to make a just determination
of the issues posed by the complaint and by the answers
herein.
At the opening of the hearing on February 3, 1976, I took
the action described in the above notice and order and also
received in evidence as ALJ exhibits, without objection, the
"Visiting Employer Compliance Agreement" dated Janu-
ary 11, 1974, and the agreement between Local 497 IBEW
and Central Division, Inland Empire Chapter, NECA,
effective from July 1, 1973, through June 30, 1974. I then
called on counsel and received the following replies:
NELSON: Your honor, General Counsel has nothing
further at this time.
MORGAN: (for Respondent Employer) I have noth-
ing at this time.
HAFER: (For Respondent Union) Yes, Your Honor.
We at this time have some testimony we wish to
present, in view of the significant changes in the record.
Three witnesses called by counsel for Respondent
Employer were examined and cross-examined and the
hearing was again closed.
On this record I fmd:
1. Jess Jameson, as of March 12, 1974, had more than 2
years' experience in the inside electrical trade and was
eligible for registration in Group IV.
2. Richard C. Nelson, as of March 27, 1974, had 4
years' experience in the inside electrical trade, had passed a
journeyman's examination given by a duly constituted
local union of the International Brotherhood of Electrical
Workers and was a resident of the State of Washington. He
was therefore eligible for registration in Group II.
3. Decevigne Kilpatrick, as of April 8, 1974, had more
than 2 years' experience in the inside electrical trade and
was eligible for registration in Group IV.
4. Bud R. Jameson , as of March 27, 1974, had less than
2 years' experience in the inside electrical trade and was
not eligible for registration in Group IV.
5. Philip J. Mielcarek, as of April 23, 1974, had less
than 2 years' experience in the inside electrical trade and
was not eligible for registration in Group IV.
6. The action of the Board and the subsequent inaction
of the General Counsel preclude any finding on this record
as to the eligibility for registration of the remaining 19
alleged discriminatees . The stipulations of September 16,
1975, were specifically tied to the 1975-77 contract and lost
all probative value when that contract was removed from
the record. The General Counsel had ample opportunity
on February 3, 1975, to invite stipulations based on the
1973-74 contract in effect when the alleged discriminatees
were hired and the 1974-75 contract which was in effect
when they were discharged, but failed to do so. Neither did
he tender any other evidence of their eligibility for
registration.
E. Arguments of Counsel
1. Argument of the General Counsel
(a) When the five electricians refused to report to the new
shack, they were engaged in a strike prohibited by the "no
strike" clause of the contract,9 and it was therefore an
"unprotected strike."
(b) The Union's refusal to refer workmen from its
exclusive hiring hall was an "unprotected strike."
(c) Each of the "outside hires" had 2 or more years'
experience in the trade and was therefore, by the express
terms of the contract, immune from displacement by later
referrals from the hiring hall.
(d) The Union's demand that the "outside hires" be
discharged is presumed to "encourage union membership"
and to violate Section 8(b)(2) of the Act.
(e) This presumption can only be overcome by evidence
that the Union's action was necessary to the effective
performance of its representative function.
(f) The Union was not motivated by any good-faith
interpretation of the contract.
(g) (1) The contract language is clear and unambiguous
on its face and cannot be varied by parole.
9 Contract , sec 1 4.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The Administrative Law Judge improperly received
parole evidence that "direct hires" to secure immunity
from replacement by registered workmen must , after being
hired , register at the union hall.
(3) This parole evidence is incredible and should be
disregarded.
(4) The requirement that "direct hires" register in the
Union 's books was never communicated either to the
Employer or to the "direct hires ," and this failure of notice
violated the Union's duty of fair representation owed to the
"direct hires."
(h) "The Union 's action against the outside hires was
specifically designed to punish persons who failed to make
common cause with the Union by participating in its
unprotected withholding of services to the Company ...
the Union 's primary interest was in enforcing union loyalty
by making object lessons of any persons who chose to work
for a disfavored employer."
(i) The Union's "intensely hostile feelings towards the
outside hires because of their failure to maintain solidarity
with the unprotected refusal to work for the company" is
evidenced by:
(1) Richardson called Kilpatrick a "scab" when he
announced that he was going to work for Employer.
(2) Kilpatrick , Jameson, and Nelson were subjected to
union discipline for "working in the interest of any
organization or cause which is detrimental to or opposed to
the IBEW."
(3) Jameson in the disciplinary hearing was questioned
concerning his dropping of membership in a sister local
and was "scolded" for his "not legal" action in working for
the Company.
(4) Nelson in the disciplinary hearing was questioned in a
hostile manner about his having worked with "nonunion
labor."
(5) Many of the men sent to the jobsite by the Union to
displace the outside hires had been working at other jobs
up to that point, only to abandon them (as we view it, to
make sure that no "scabs" stayed on the job).
(j) This evidence showing that the Union was primarily
activated by disciplinary considerations and a desire to
enforce union loyalty by supplanting the outside hires with
union loyalists makes out a clear violation of Section
8(bX2).
(k) No evidence was presented by either Respondent that
the Union 's actions were necessary to its role as representa-
tive of employees working on Employer 's project. The
Union was not forced to take action against the outside
hires because they ( 1) failed to tender dues or initiation
fees , or (2) because they were working for substandard
wages, or (3) because they were hired in violation of any
contract term, or (4) because they contravened some other
contractually established arrangement, or (5) because they
had engaged in "felonious and egregious conduct which
could seriously threaten the Union's very financial surviv-
al."
(1) The discharge of direct hires was not justified as part
of a strike settlement . Quoting the General Counsel 's brief:
No contention is made nor to be implied that a labor
organization has no right, in the context of a lawful
economic strike , to attempt to negotiate the reinstate-
ment of striking employees as part of an overall strike
settlement, even when an incidental effect of such
agreement might be to cause the displacement of some
or all persons hired as striker replacements....
Substantially different considerations obtain, how-
ever, where, as here, the Union initiates an unprotected
work stoppage , later implements an unprotected with-
holding of referral services , and then seeks to displace
persons hired who possess immunity from displacement
by virtue of a contract provision to which the Union is
already committed . Thus, from the standpoint of
Federal labor policy, there is no overriding union
interest in, nor right to call a strike where, as here, the
right to strike has been contractually waived, as has the
right to withhold labor furnished through the hiring
hall, and as has the right to displace outside hires
otherwise qualified to register in Groups I through IV.
Reduced to its simplest elements, what the Union
did here was to engage in economic self-help to win its
way in a series of disputes with the company, even
though it had contractually waived the resort to such
self-help . It then sought to displace persons lawfully
hired in accordance with clear contractual mandate on
the theory that if the Union never had withheld its
hiring hall services in the first instance, the outside hires
never would have taken place.
Viewed in this light , it is apparent that the Federal
labor policy which would justify the right of a union to
seek to return lawful economic strikers to their jobs
simply has no application to the instant facts.
(m) There was no condonation by the Employer of the
Union's unprotected strike. There is no evidence that
Employer knowingly and willingly condoned the Union's
demands when, under the compulsion of the decision of the
Joint Conference Committee decision, it discharged the
outside hires.
(n) This is not a case where the Board should defer to
arbitration because:
(1) The outside hires were not parties to, nor participants
in, the Joint Conference Committee hearing.
(2) The outside hires were not grievants themselves and
had no personal standing to prevent the matter from being
decided.
(3) The outside hires never agreed to be bound by the
Joint Conference Committee decision.
(4) None of the parties to the Joint Conference
Committee proceeding had any institutional interest in
seeing to it that the interests of the outside hires were
"adequately protected in the arbitral process."
(5) The Union's interests were in absolute conflict with
those of the outside hires.
(6) While the Employer superficially assumed the role of
advocate for outside hires, it was most interested in
completing its project. Whether the work was done by
outside hires or by union referrals was a matter of little
consequence to it.
WISMER AND BECKER 795
(7) The Employer was concerned about its own statutory
liability were it to acquiesce in the Union's demands
without at least a token fight.
(8) There was little or no evidence that the Joint
Conference Committee was informed that some of the
outside hires had been refused in their efforts to register
with and be referred by the Union to the job.
(9) There is no evidence that the Joint Conference
Committee was informed that the outside hires were in fact
eligible for classification in one of the referral groups,
which was the only contractual requirement for achieving
permanent status.
(10) If the Joint Conference Committee had been aware
that outside hires were eligible for registration and had
reached its decision in spite of that evidence, the result
would have been repugnant to the policies of the Act.
(o) Quoting the General Counsel's brief:
In summary, therefore, whether the Union's action
be construed as a punitive attempt to impair the job
rights of the outside hires because they failed to make
common cause with the Union's declared policy of
refusing to furnish workers to the Company during the
pendency of the dispute, or merely action against the
job rights of the outside hires under circumstances
where the Union could not satisfy its burden of
demonstrating that its actions were necessary to the
fulfillment of its representative function, Section 8(b)(2)
was violated.
(p) The Employer's discharge of the outside hires in
response to union pressures which themselves violated
Section 8(b)(2) is itself a violation of Section 8(a)(3) of the
Act.
(q) It is no excuse for the Employer that the pressure on
the Employer was severe or irresistible.
(r) While the proviso to Section 8(b)(1)(A) of the Act
permits a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership, and
to discipline members for conduct inimical to its interests,
union discipline to encourage accomplishment of an
unlawful object or contravention of a collective-bargaining
agreement is not protected. Where the Union's disciplinary
action is intended to punish members for refusing to
participate in an unprotected strike or withholding of
services, such discipline violates Section 8(b)(1)(A) as an
impermissible restraint on the right of employees under
Section 7 to refrain from union activities. Therefore, the
Union's disciplinary action against Nelson , Jameson, and
Kilpatrick because they worked for the Employer during a
time when the Union was engaged in an unprotected strike
or withholding of services, violated Section 8(b)(1XA) of
the Act.
2. Argument of counsel for Respondent Employer
(a) There is no evidence or reasonable inference that
Wismer and Becker acted with discriminatory intent, or
with knowledge that the union 's demands were unlawful.
(b) Wismer and Becker had a lawful and recognized right
to terminate the replacements as part of the strike
settlement.
(c) The decision of the Joint Conference Committee
under the contract that the replacements were indeed
"temporary" and should be replaced was binding upon
Wismer and Becker and should be deferred to by the
Board.
In support of the foregoing propositions Employer
argues, with pertinent citations to Board and court
decisions:
(d) The General Counsel must prove, to establish a
derivative employer liability, that the Employer knew
about and acquiesced in illegal action on the part of the
Union.
(e) Employer had no knowledge of the disciplinary
proceedings aganist Jameson , Nelson, and Kilpatrick until
after the decision of the Joint Conference Committee had
been handed down and complied with.
(f) The Union had the legal right to insist on strict
compliance with the referral provisions (art. 5) of the
contract.
(g) Employer has an absolute right to terminate replace-
ments as part of a strike settlement.
(h) Where there has been a strike settlement, the Board
must accept the Employer's classification of strike replace-
ments as "temporary" or "permanent" and temporary
replacements must be discharged upon demand by the
Union.
(i) An arbitration award is the preferred remedy for both
contractual and statutory violations.
(j) The Charging Parties need not be parties to the
grievance and arbitration proceeding.
(k) Deferral to arbitration is appropriate where the
interests of the employer and the interests of the charging
parties coincide even where the union 's interests are
contrary to those of the charging party.
(1) The Board will defer to arbitration where the interests
of the employees have been adequately represented.
(m) Contract interpretation is for the arbitrator and not
for the Board.
(n) A decision of the Joint Conference Committee based
on misinterpretation of contract or inaccurate assessment
of employee experience is not prohibited.
(o) Quoting the brief of counsel for Respondent Employ-
er:
The decision to terminate the replacements was
made by Robert G. Albrecht, the President and
General Manager of Wismer and Becker Contracting
Engineers . He made the decision after being informed
by legal counsel that the company had no alternative
except to abide by the Joint Conference Committee's
decision. The decision to terminate the outside hires
was based solely on the decision of the Joint Confer-
ence Committee. Mr. Albrecht had no knowledge of
the hiring practices of Local 497 and had never
received information that Local 497's hiring hall
practices were unlawful in any way. He had no
knowledge that the union was seeking to have the
employees terminated because they refused to join an
unlawful work stoppage . . . .
The company had never operated non-union, and
had several projects at that time using IBEW , including
three power plants on the Snake River, an airport in
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portland, and the Trojan Nuclear Power Plant. It
simply was not feasible to breach its contract and
operate nonunion.
No legal recourse appeared available. The Joint
Conference Committee decision was binding on Wis-
mer and Becker. No appeal was possible under the
contract, because the decision was unanimous. Declar-
ative relief was precluded because a court would defer
to the contract remedies on one hand, and to the
NLRB on the other, respecting any defense the
company had based on the Act. Nor was any appeal to
the Board itself a realistic answer to a construction shut
down.
3. Argument of counsel for Respondent Union
(a) The General Counsel's case rests on the following
theories: (1) the refusal to dispatch men violated the labor
contract, as interpreted by the General Counsel; (2) the
direct hires were therefore permanent employees under the
contract as interpreted by the General Counsel; and (3)
replacement of the permanent employees constituted an
"inherent" (i.e., per se) encouragement of union member-
ship.
(b) A union which strikes in violation of a "no strike"
clause does not thereby commit an unfair labor practice.
(c) The Union's refusal to dispatch men between March
6, 1974, and late June of that year was not an unfair labor
practice.
(d) The Employer accepted both the C.I.R. decision
reinstating the discharged men and the Joint Conference
Committee decision directing replacement of the direct
hires. The strike, if in breach of contract, was condoned.
The condonation wiped the slate clean.
(e) This case involves the interpretation of a hiring hall
article. Such clauses, unlike the prohibited arrangements
involved in the Radio Officers case, are not prohibited by
the Act.
(f) Where, as here, the case relates to a lawful hiring hall,
it "is the `true purpose' or `real motive' in hiring or firing
that constitutes the test." Local 357, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America [Los Angeles-Seattle Motor Express] v.
N.LR.B., 365 U.S. 667, 675 (1961).
(g) The General Counsel conceded that, if the language
of the contract required the conclusion that the direct hires
were "temporary," his case would fail. In his motion dated
October 6, 1975, the General Counsel states: "The General
Counsel would not knowingly have placed into evidence
the '75-'77 contract, since the '75-'77 contract would not
have permitted the General Counsel to argue that `under
the contract, they were entitled to remain' whereas the
language in Article V, Sec. 5.5 of the '74-'75 contract would
permit such an argument."
(h) The Board does not substitute its views of a contract
for those of the parties. Under the Union's interpretation of
the contract, which was adopted by the Joint Conference
Committee and accepted by the Employer, the direct hires
were "temporary" employees.
(i) The General Counsel seeks to impose his view of the
contract upon the Administrative Law Judge. Given his
view of the contract , the direct hires attained some sort of
protected status . This is a bootstrap argument.
(j) Removal of direct hires from a construction job under
an exclusive hiring hall contract is not a per se violation.
(k) The record , Board and court decisions , and the facts
of life in the construction industry require dismissal of the
complaint . A finding of unlawful conduct requires the
Judge to ignore the history, purpose , and interpretation of
the contract placed by the parties to the agreement . Having
rewritten the contract , the Judge would be required to
impose an impermissible per se test of liability. Arguable
contract interpretations do not support an unfair labor
practice complaint.
(1) The second leg of the General Counsel 's case rests
upon the recommended expulsion of three union members.
Given the testimony of the concerned members, one must
conclude that their expulsion resulted from the direct
solicitation of work in violation of the Union's bylaws.
However, the Union's motivation need not be decided
since no fine was levied . Expulsion , for good reasons or
bad reasons , does not violate the Act. Pattern Maker's
Association of Los Angeles and Vicinity, 199 NLRB 96
(1972); NLRB. v. Machinists, 489 F.2d 769 (C.A. 1, 1974).
F. Concluding Findings
1. The discrimination
This case arises from the stubborn refusal of Respondent
Employer to comply with local custom and its failure to
employ available contractual procedures to resolve what
Employer's counsel calls "a minor dispute." The dispute
over the placing and facilities of the electrical shack could
have been settled by the Joint Conference Committee
within 72 hours after the visiting employers compliance
agreement was signed January 11, 1974, and 10 days before
the first electrician was hired.
Anderson elected to stand fast and to show Richardson
who was going to boss the job. Richardson, who had for
more than 24 years been primarily responsible for protect-
ing the rights of electricians working at Grand Coulee, was
equally determined to maintain existing working condi-
tions at the dam. Richardson's concern was underlined by
the most favored employer clause of the contract, section
2.3, supra.
When work began in January, electricians changed their
clothes and ate their lunches in a trailer which, because it
had been designed to be Employer's office, presumably
met the requirements stated by Richardson. So long as that
condition obtained, the Union had no reason to invoke the
contractual grievance procedures.
Issue was joined when Anderson ordered the electricians
to report, to change, and to eat lunch in a shack in the
powerhouse which contained chemical toilets, had no
running water for washing or drinking, and had only cool
can drinking water. Richardson, when he instructed the
electricians to disobey this direct order, was relying on the
contract provision (1.10, supra), "conditions prevailing
prior to the time such matter arose shall not be changed
ff
The first overt act in the conflict between Anderson and
Richardson was Anderson's order to report to the new
WISMER AND BECKER 797
shack . The second overt act was Richardson's instruction
to the electricians . Anderson committed the third overt act
when he ordered the discharge of electricians on March 6,
1974. The fourth overt act was Richardson's refusal to
dispatch workmen on Thursday , March 7, or Friday,
March 8.
As of Monday, March 11 , little harm had been done. The
adequacy of the new shack , the legitimacy of Anderson's
orders , the merits of the discharge , and the Union's failure
to refer workmen , all could and should have been settled
by reference to the contract 's grievance procedure.
The advertisements for workmen in the Spokane and
Wenatchee newspapers , and the direct hire of Jess
Jameson, were a declaration of war which was accepted
with alacrity by Richardson . At the meeting on Thursday,
March 14 , Richardson expressed an intent to continue
sending men to Employer, as requested, with standing
instructions to refuse to use the new change shack, and if
Employer continued to discharge them for this act of
insubordination, the Employer could go through the entire
union roll, to the "cost" of Employer . Direct negotiations
between the parties ended on March 21, with Richardson's
acknowledgment that the Union had a standing order from
the Employer , but would send no men to the Employer
unless ordered to do so by the International Union.
From and after March 21, 1974, the Employer knew, if it
did not know before, that there were workmen registered in
the union hall eligible for employment who were not being
referred and that the Union had , since at least March 8,
1974, deliberately violated the contract and was deter-
mined to persist in its contract violation.
The failure of Employer to invoke the grievance
procedure in this situation is unexplained. This violation by
the Union was so open and flagrant that it might well have
warranted the issuance of a mandatory injunction by a
United States district court under the principle enunciated
by the Supreme Court of the United States in Boys
Markets, Inc. v . Retail Clerks Union, Local 770, 398 U.S.
235 (1970). The intransigence of the Employer and its
failure and refusal to avail itself of the grievance and
arbitration procedures of the contract encouraged the
Union to persist in its open and flagrant violation of the
contract . The Union did, however , attempt to secure a
peaceful resolution of the underlying dispute when it filed a
grievance on March 18 over the discharge of the five
electricians and the "qualifications of shop facilities."
When the Union achieved a partial victory on its
grievance on June 20, 1974, the Employer capitulated to all
of the Union's demands.
The 26 men who had supported the Employer and who
had made it possible for the Employer to carry out its
contract with the U. S. Government were abandoned.
There is not the slightest indication on this record that
Anderson, when he appeared before the committee, told
the committee that any of these 26 had, at the time of hire,
2 years' experience in the trade , or that Anderson called
attention to the contract provision making them permanent
employees. The only witness in this case to the proceedings
before the committee was Richardson . Anderson sat at the
counsel table and heard this testimony , yet he was not
called to deny , qualify, explain, or amplify the testimony of
Richardson, or any statement in the minutes. When
Richardson was asked by Employer's counsel,
Q. Now, when Mr. Anderson came in there, is it a
fact that he made a strong presentation , he argued
vigorously that these people were qualified?
A. No sir, he didn't.
* s s
Q. Didn't he tell the committee, Mr. Richardson,
that they worked out there on the job for several
months, and in his opinion, they could do that work?
A. For the work that he had assigned them, they
had been able to perform that work . They were doing
bolt and nut work ... .
Q. Do you have any memory of Mr. Anderson
making any statement about whether or not he
intended to replace these people at this meeting in July
first, 1974?
A. That was the purpose . That was his position
with the committee, that he didn't intend to replace
them.
Q. When you say that was his purpose, did he
argue that strongly, that he wanted to keep those people
and he didn't want to replace them?
A. I don't think he made a strong argument, but I
think that was his intent, to keep them.
Q. Did Mr. Anderson at any time ever state that
these people were not qualified under the contract?
A. I don't recall.
Q. Did he at any time ever admit that there was
any reason why they were not entitled to work on the
project?
A. As temporary employees, that's what he hired
them for and interviewed them for. I assume they were
the best he could get.
This "minor dispute over working conditions ," as it is
characterized by counsel for Respondent Employer, has
occupied the time of Board personnel for almost 2 years,
and will probably continue to occupy their time for more
than 2 years in the future . The intransigence of 2 men,
Anderson and Richardson, has resulted in substantial
injury to : (1) the 5 men discharged on March 6, 1974, (2) 30
men registered on the out-of-work list who were denied
employment between March 7, and June 25, 1974, and (3)
the 26 men who were discharged between July 3 and 12,
1974. No one has been benefited by this dispute, which
could have been so easily resolved by prompt resort to the
grievance procedures of the collective-bargaining agree-
ment . When the General Counsel finally decided, more
than 9 months after the initial charge was filed, that
issuance of complaint was warranted, both Respondents
very commendably took immediate steps to mitigate
damages . The Respondent Union agreed to register any of
the 26 who applied, and the Employer offered to reemploy
all 26.
It remains for me to suggest, and for the Board to decide,
whether 26 men shall be made whole and whether 3 men
may be expelled from the Union.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties to this proceeding, in their exhaustive
exposition of some 80 Board and court cases , have lost
sight of the text of the National Labor Relations Act. By
way of reminder:
Section 7: Employees shall have the right to . . . assist
labor organizations . . . and to engage in other
concerted activities . . . and shall also have the right to
refrain from any or all of such activities ... .
Section 8(a): It shall be an unfair labor practice for an
employer -(1) to interfere with, restrain , or coerce
employees in the exercise of the rights guaranteed in
section 7; . . . (3) by discrimination in regard to hire or
tenure of employment or any term or condition of
employment to encourage or discourage membership in
any labor organization ... .
Section 8(b) It shall be an unfair labor practice for a
labor organization or its agents - ( 1) to restrain or
coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provided, That this paragraph
shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or
retention of membership therein ... .
Section 8(f) It shall not be an unfair labor practice
under subsections (a) and (b) of this section for an
employer engaged primarily in the building and
construction industry to make an agreement covering
employees engaged (or who . . . will be engaged) in the
building and construction industry with a labor
organization of which building and construction em-
ployees are members . . . because . . . (3) such
agreement requires the employer to notify such labor
organization of opportunities for employment with
such employer , or gives such labor organization an
opportunity to refer qualified applicants for such
employment , or (4) such agreement specifies minimum
training or experience qualifications for employment or
provides for priority in opportunities for employment
based upon length of service with such employer, in the
industry or in the particular geographical area ... .
Article 5 of the NECA-IBEW contract contains provi-
sions repugnant to Section 8(a) and 8 (b) of the Act. Section
8(f) qualifies rights guaranteed in Section 7 and protected
by Section 8. It must therefore be strictly construed, and no
contract interpretation which exceeds the precise limits of
Section 8(1) can protect either employer or union from the
prohibitions of Section 8(a) and 8(b) of the Act.
In 1959, in anticipation of the effective date of Section
8(f) (September 14, 1959), the Inland Empire Chapter of
NECA and several IBEW locals, including Respondent
Union, executed an addendum to the then current basic
agreement which , with minor changes, became article 5 of
the 1973-74 contract. This addendum contained the
following clause:
If the registration list is exhausted and the Union is
unable to refer applicants . . . the Employer shall be
to Although 1 was directed by the Board to remove the 1975-77 contract
from the record, I am not precluded from taking official notice of its
content.
i i In my order of October 16, 1975, denying his motion to substitute one
free to secure applicants without using the referral
procedure, but such applicants , if hired and not eligible
for classification in one of the above groups , shall have
the status of temporary employees. The Employer .. .
shall replace such temporary employees as soon as
registered applicants for employment are available
under the referral procedure.
The above clause, defining and restricting the rights of
"temporary" employees, remained in succeeding contracts
until June 30, 1975. The current contract, effective from
July 1, 1975, to June 30, 1977, contains the following
provision: 10
5.6. If the registration list is exhausted and the Local
Union is unable to refer applicants ... the Employer
shall be free to secure applicants without using the
referral procedure, but such applicants, if hired, shall
have the status of "temporary employees."
5.7. The Employer ... shall replace such "temporary
employees" as soon as registered applicants for employ-
ment are available under the Referral Procedure.
Since the basic thrust of the General Counsel's argument
is that the outside hires, because eligible for registration,
had a contractual right to be immune from replacement by
union referrals, he was understandably upset when he
discovered, 2 weeks after the hearing closed, that he had
offered the wrong contracta1
At the reopened hearing, February 3, 1976, Eugene D.
Cokeley, IBEW International representative, testified that
as business manager of Local 112, Pasco, Washington, he
participated in the negotiations which resulted in the 1959
addendum. With specific reference to the "temporary
employee" clause, Cokeley testified:
Mr. Wilkerson [the NECA spokesman] said the
reason he wanted that language in the referral was that
in the event an employer had to go to great lengths to
recruit employees, that after those people had an
opportunity to work for that employer, and if he felt
that they were better mechanics, more qualified to do
the type of work he had to do, he wanted the
opportunity to send them to the local union office and
get registered in whatever book they qualified for ... .
Q. (by union counsel) Was there any other reason
stated by the employer negotiators for the inclusion of
the language we are talking about?
A. No.
Q. Do you have a present recollection with respect
to the question of whether or not Mr. Wilkinson
indicated in these negotiations that registration would
be a part of changing a person who had been hired
directly from a temporary to a regular employee?
A. Yes, definitely they would be registered and
then they would cease to, if they were registerable, then
they would cease to be a temporary employee and
inapplicable contract for another inapplicable contract, I suggested that the
General Counsel offer the contract which was in effect when the alleged
discnminatees were hired. As above noted, I received the 1973-74 contract
on February 3, 1976.
WISMER AND BECKER 799
would not be subject to discharge when registered
applicants became available.
The gravamen of the argument of both Respondents,
insofar as it relates to contract interpretation , is that the
Joint Conference Committee correctly interpreted and
applied the contract when it found that the direct hires
were "temporary employees" on the sole ground that they
had not been "duly registered ." There are several things
wrong with that position : ( 1) The requirement for registra-
tion, as described by Cokeley, does not appear in the
contract . (2) This requirement was never communicated to
Respondent Employer nor to the direct hires . (3) The
Union , as the exclusive statutory representative of the
direct hires ,12 was duty bound to advise them of the
requirement that they be registered before demanding their
discharge for failure to register.
I specifically find that the decision of the Joint Confer-
ence Committee , based as it was solely upon the failure of
the outside hires to register with the Union , is wholly
repugnant to the purposes and policies of the National
Labor Relations Act.
This finding , however, does not relieve the General
Counsel of the burden of proving by a preponderance of
the evidence that the Union caused the Employer to
discharge the direct hires to "encourage membership in"
the Union.
The entire addendum to the 1959 contract and the entire
article 5 in the 1973-74 contract create a business
relationship whereby the Union, as an employment agency,
becomes the sole source of employees for the Employer.
When the Union ceased , on March 6, 1974, to refer
workmen to the Employer , that business relationship was
suspended . The Employer tacitly consented to the suspen-
sion of that business relationship until June 24 , 1974, when
Holland, with Anderson on vacation, agreed with Richard-
son to discharge all of Anderson 's direct hires and to
replace them with men referred from the Union . For the
entire period that the Union was refusing to refer
workmen, Anderson went through the senseless act of
pretending to comply with article 5. The Union 's refusal to
perform its obligations as an employment agent relieved
Employer of all obligations under article 5 of the contract.
During the entire period when article 5 was inoperative,
with the tacit consent of Employer, Section 8(f) of the Act,
on which article 5 depended for its legality, was without
application to either Employer or Union.
Each and every one of the 30 men hired by Anderson,
without union referral , obtained on the day he was hired all
of the rights guaranteed by Section 7 and all of the
protections afforded by Section 8(a)(1) and (3) and 8(b)(2)
of the National Labor Relations Act.
The acquiescence of the Employer in the demand of the
Union, without contractual or other legal justification,
necessarily encouraged membership in the Union under
the broad principles enunciated by the Supreme Court in
The Radio Officers Union of the Commercial Telegraphers
Union, AFL, [A. H. Bull Steamship Company ] v. N.LRB.,
347 U.S. 17 (1954). The refinement of these principles by
the Supreme Court in Local 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), have no application to the facts of this
case.
The proceedings before the Joint Conference Committee
have all of the surface appearances of collusion : i.e., "a
secret understanding between two parties who proceed
fraudulently against each other in order to defraud a third
person." Holland and Richardson had agreed that the
direct hires would be replaced with referrals from the
Union. The agreement had been partially implemented by
the hire of four union referrals . The Employer did not
present to the committee any evidence that any of the
direct hires had 2 years ' or more experience in the trade,
and did not argue to the committee that any of the direct
hires was eligible for referral . Employer presented no
evidence of any kind or nature to support the assertion in
its letter repudiating the Holland -Richardson agreement
that the direct hires were not "temporary employees." In
no way can such a proceeding deprive employees of rights
guaranteed by statute.
There was no strike and consequently the acquiescence
of the Employer in the demand of the Union that outside
hires be discharged was not a strike settlement . To strike is
"to quit work in order to obtain or resist a change in
conditions of employment." Before there can be a strike,
there must be a direct employer-employee relationship.
Workmen registered in the Union 's hiring hall who were
being refused dispatch to Wismer and Becker were not
strikers . They were victims of the Union's primary boycott
while the Union, in its capacity as an employment agent,
was refusing to send workmen to Employer.
By way of summary : When the Union, by its refusal to
refer any workmen to Employer , abrogated article 5 of its
contract (a readily severable provision), Employer was free
to obtain workmen from any source without reference to
article 5. Employees so hired acquired all the rights
guaranteed in Section 7 and protected by Section 8(a)(1)
and (3) and 8(b)(l)(A) and (2) of the Act, without any of
the limitations of Section 8(f) of the Act or article 5 of the
contract . When the Union demanded that these employees
be replaced by strangers to the employment relationship,
for the sole reason that the replacements would carry valid
union referrals , the Union attempted to cause the Employ-
er to discriminate against employees to encourage union
membership within the meaning of the Radio Officers case,
and thereby violated Section 8(b)(2) of the Act . When the
Employer acquiesced in this demand it violated Section
8(a)(3) of the Act. By these acts Employer and Union
restrained and coerced employees in the exercise of their
Section 7 right to refrain from assisting the Union.
Employer thereby violated Section 8(aXl) and Union
violated Section 8(b)(1)(A) of the Act.
Since there was no strike, cases relating to strike
settlements have no application.
The decision of the Joint Conference Committee is
wholly repugnant to the purposes and policies of the Act
and should be disregarded by the Board.
12 Contract , sec 2.6.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer's plea that it was forced to either comply
with the Joint Conference Committee decision or go out of
business does not excuse its violation of the National
Labor Relations Act.
2. The refusal of the Union to dispatch workmen
The complaint alleges that Respondent Union violated
Section 8(bX 1)(A) of the Act by:
Commencing on or about March 7, 1974, and continu-
ing until on or about June 18, 1974, Respondent Union
refused, although requested, to dispatch employees for
employment by Respondent Employer at the Coulee
Dam job.
How this action restrained or coerced what employees is
not explained by the General Counsel. Inferentially, the
employees restrained were job applicants listed in the
Union's out-of-work books. If so, since they are the Union,
they restrained and coerced themselves, which is not an
unfair labor practice. I have found that the refusal to refer
was not a strike . If it were a strike in violation of the
Union 's no-strike commitment , the strike would not be an
unfair labor practice. The refusal to refer was a breach of
contract , a suspension of the operation of a portion of the
contract, and an abrogation of a severable portion of the
contract. This, on its face, is a violation of Section 8(b)(3)
of the Act by the Union, but the complaint does not allege
any violation of Section 8(bX3).
The Union did not, by its refusal to refer workmen,
violate Section 8(b)(l)(A) of the National Labor Relations
Act.
3. The alleged refusal of the Union to permit
applicants to register in its out-of-work book
The complaint alleges that on specific dates the Union
refused to permit Jess Jameson, Nelson, and Kilpatrick to
register in its out-of-work book and thereby violated
Section 8(bx1)(A) of the Act.
Nelson testified that, when he called at the union office
and asked for a dispatch to Wismer and Becker, he
declined an invitation to sign the out-of-work book.
Kilpatrick testified that, when he was denied a referral to
Wismer and Becker by Richardson, he asked if he could
sign the book. When Richardson's reply indicated to
Kilpatrick that signing the book would put him behind 40
or 50 other men for referral to some job other than Wismer
and Becker's, he decided to go to work for Employer
without a referral. Clearly Kilpatrick could have been
registered in Book IV had he so desired.
Jess Jameson testified that the young man to whom he
spoke said that Jameson could not sign the out-of-work
book. I do not credit this testimony. The request to sign the
book is not included in Jameson 's initial recitation of his
conversation with the young man . His recollection of the
date of his call at the union office and of his observations
on that occasion were quite vague . He had already been
hired by Anderson and knew, before he went to the union
office, that he would not be referred to Employer.
Respondent Union did not violate Section 8(b)(1)(A) of
the Act by refusing to permit any person to sign its out-of-
work book.
4. Discipline of union members
The rights guaranteed in Section 7 of the Act are rights
guaranteed to individuals as employees . The proviso to
Section 8(b)(1)(A) of the Act deprives the Board of any
implied power to protect the rights of individuals in their
capacity as union members . In the cases cited by counsel
for the General Counsel, the Board was required, as part of
its duty to protect Section 7 rights, to enter orders affecting
union membership . In this case there is no such necessity.
After his expulsion from the Union, if that shall be the
determination of the International vice president , Nelson
will remain eligible for registration in Group II and will
enjoy the right of referral to available jobs without
discrimination because of his lack of union membership.
Similarly, Jess Jameson and Kilpatrick will remain eligible
for registration in and dispatch from Book IV. On this
record Respondent Union did not, by its disciplinary
proceedings against Jess Jameson , Nelson, and Kilpatrick,
violate Section 8(b)(l)(A) of the Act.
5. A timely charge supports the paragraph of the
complaint as amended, naming 24 alleged
discriminatees
The charge filed by Jess Jameson on August 15, 1974,
received by Wismer and Becker on August 19, 1974, alleges
that Respondent Employer violated Section 8(a)(1) and (3)
by:
In or about July 1974, the Employer discharged Jess
Aaron Jameson and approximately 25 other employees
because they refused to engage in an unlawful work
stoppage conducted by International Brotherhood of
Electrical Workers Local Union 497 when such Union
refused to dispatch workers from its hiring hall in
violation of a pending collective bargaining agreement.
The consolidated complaint, issued May 2, 1975, con-
tains the following allegations:
8. On or about March 22, 1974, Respondent
Employer, pursuant to the terms of the NECA
Agreement, commenced hiring employees in lieu of the
dispatch procedures referred to above in Paragraph 5.
s s s s
13. a. Commencing on or about July 5, 1974, and
through on or about July 11, 1974, Respondent Union
dispatched individuals for employment to Respondent
Employer at the Coulee Dam job to replace those
individuals employed by Respondent Employer de-
scribed in Paragraph 8, above.
b. Commencing on or about July 5, 1974, and
through on or about July 12, 1974, Respondent
Employer hired those individuals dispatched to it by
Respondent Union described in Paragraph a. above
WISMER AND BECKER 801
and terminated those individuals who it had hired
described in Paragraph 8 above.
I find that the charge filed less than 6 months after the
discharges described in the charge and in the complaint
and merely particularized in the amendment to the
complaint was sufficient to support the amendment. The
complaint against Respondent Employer is not barred by
Section 10(b) of the National Labor Relations Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Electrical Workers
Local 497, Respondent herein , is a labor organization
within the meaning of Section 2(5) of the Act, the
membership of which comprises employees in the building
and construction industry within the meaning of Section
8(f) of the Act.
3. By discharging each of its following named employ-
ees on the date set forth opposite each respective name,
Respondent Employer has encouraged membership in
Respondent Union in violation of Section 8(a)(3) of the
Act.
The activities of both Respondents as set forth above,
occurring in connection with the operation of Respondent
Employer described above , have a close, intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead and have led to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It has been found that both Respondents have engaged
in certain unfair labor practices . It will therefore be
recommended that they cease and desist therefrom and
take certain affirmative action , as set forth in the recom-
mended Order below, designed to effectuate the policies of
the Act.
The General Counsel has suggested that the remedial
order should require Respondent Employer to offer
reinstatement to the 24 direct hires named in the amend-
ment to the complaint, and that primary backpay liability
be assessed against Respondent Union . I disagree. The
responsibility of both Respondents for the discrimination
against the direct hires is inextricably intertwined , and their
backpay liability is and should be joint and several. This
backpay liability ceased when the Respondent Union, in
the summer of 1975, withdrew all objection to the
reemployment of the discriminatorily discharged direct
hires, and permitted them to register for employment at its
hiring hall, and Respondent offered reemployment to all of
the direct hires.
My remedial order includes the names of G. B. Fatland
and G. M. Thunstrom, members of the class described in
the original charges and in the original complaint, but
omitted from the amendment to the complaint.
I further find that in the precise circumstances of this
case a broad cease and desist order is not warranted.
CONCLUSIONS OF LAW
1. Wismer and Becker , Contracting Engineers , Respon-
dent herein , is an employer within the meaning of Section
2(2) of the Act engaged primarily in the building and
construction industry within the meaning of Section 8(f) of
the Act and engaged in commerce and in a business
C. Armstrong 7-3-74
Don Carpenter 7-3-74
Sid Colby 7-8-74
Don Desautel 7-3-74
Dan Dubois 7-5-74
G. B. Fatland 7-10-74
Jerry Fleshman 7-10-74
Edmund Flugham 7-3-74
Larry Goit 7-3-74
Clifford Grothe 7-3-74
Jim Hubbard 7-5-74
Jess Jameson 7-12-74
Bud Jameson 7-12-74
Darrell Kelly 7-3-74
Decevigne Kilpatrick 7-3-74
Fred Markley 7-8-74
Phil Mielcarek 7-5-74
David Mitchell 7-3-74
John Neal 7-12-74
Richard Nelson 7-10-74
Jim Nutting 7-11-74
Jim Pryor 7-12-74
Jim Robinson 7-8-74
Jack Simmons 7-5-74
G. M. Thunstrom 7-10-74
Larry Ware 7-3-74
4. By interfering with, restraining, and coercing its
employees in the exercise of the right to refrain from union
activities guaranteed in Section 7 of the Act, Respondent
Employer has violated Section 8(a)(1) of the Act.
5. By attempting to cause and causing Respondent
Employer to discriminate against its employees in violation
of Section 8(a)(3) of the Act, Respondent Union has
violated Section 8(b)(2) of the Act.
6. By restraining and coercing employees of Respon-
dent Employer in the exercise of rights guaranteed in
Section 7 of the Act, Respondent Union has violated
Section 8(b)(1)(A) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]