Electrical Workers Ibew Local 46 (Neca)

National Labor Relations Board - Board Decisions

Dec 23, 1985

277 N.L.R.B. 1235 (N.L.R.B. 1985)

ELECTRICAL WORKERS IBEW LOCAL 46 (NECA) 1235
International Brotherhood of Electrical Workers,
Local Union No. 46, AFL-CIO (NECA) and
David P. Dakon
International Brotherhood of Electrical Workers,
District 9, AFL-CIO and David P. Dakon.
Cases 19-CB-4233 and 19-CB-4251
23 December 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 27 May 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel and the Charging Party each
filed exceptions and a supporting brief. Respondent
Local 46 filed an answering brief to the exceptions
filed by the General Counsel and by the Charging
Party. Respondent District 9 filed cross-exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that Respondent Local 46
in its operation of an exclusive hiring hall did not
violate Section 8(b)(l)(A) and (2) of the Act by de-
priving David P. Dakon of an opportunity to take
a journeyman wireman's examination necessary to
qualify for placement on the highest priority refer-
ral lists. The judge found that Local 46 refused on
two occasions in June and July 19811 , to allow non-
member Dakon to take the examination available to
members before finally scheduling him in August
for a "referral" examination to be administered in
mid-September. We agree with the judge that the
referral examination specifically designed for non-
members was in effect functionally equivalent to
the examination open only to members. It tested
the saine material and if passed would have entitled
Dakon to the highest priority for referral to jobs
under the terms of the applicable collective-bar-
gaining agreement. For the reasons set forth by the
judge, we agree that by offering Dakon the referral
examination Local 46 met its statutory obligation to
treat members and nonmembers alike in the admin-
istration of its testing program.
However, for the reasons set forth below, we
disagree with the judge's conclusion that the 2-
month delay from Dakon's initial request to take
1 All dates are to 1981 unless noted otherwise
the journeyman wireman's examination until Local
46's granting of permission for the alternative and
equivalent examination did not constitute a viola-
tion of Section 8(b)(1)(A) and (2). Further, by find-
ing that Local 46 did not in any way violate the
Act, the judge found it unnecessary to rule on the
allegation that District 9 of the IBEW violated
Section 8(b)(1)(A) and (2) by ratifying Local 46's
actions. As explained below, because we find that
District 9 did not support or assist Local 46's un-
lawful delay in offering Dakon an appropriate ex-
amination, we shall dismiss the complaint against
District 9.
The judge noted that the 63-day delay in receiv-
ing permission to take an appropriate examination
which Dakon experienced might appear at first to
be a violation of Section 8(b)(1)(A). He found,
however, that Local 46's collective-bargaining
agreement with the National Association of Elec-
trical Contractors provided that "Reasonable inter-
vals of time for examination are specified as ninety
days." The judge reasoned that since a Local 46
member might be required to wait as long as 90
days before sitting for a requested wireman's exam-
ination, no violation occurred when Local 46 sub-
jected Dakon to a shorter waiting period.
We disagree. The issue is whether Dakon was
discriminated against because he was not a member
of Local 46. While Local 46 was not required to
give Dakon a members-only examination, it was
obligated under Section 8(b)(1)(A) to offer Dakon
the equivalent examination and to schedule such
examination as expeditiously as it would have
scheduled members for the examination designed
for them. Despite its obligations, Local 46 twice in
2 months flatly denied Dakon the opportunity to
take any examination qualifying him for priority re-
ferral. Further, there is no evidence suggesting that
in practice members of Local 46 are not permitted
to take the next scheduled examination following
the date of their request or that the scheduling is
such that members are routinely forced to wait the
contractually permitted 90-day period before sitting
for an examination. Accordingly, the outside limit
for reasonable intervals between scheduled exami-
nations is not the proper gauge for determining the
existence of unlawful delay. Therefore we find that
Local 46, by refusing for 2 months to offer Dakon
the opportunity to take a qualifying examination,
discriminated against him in violation of Section
8(b)(1)(A) and (2).2
2 Since, however, the record does not reveal Local 46's examination
schedule for the time period between Dakon's 23 June request and the
mid-September date of the referral examination, the remedy section of
this Decision and Order sets forth the standard by which the extent of
Dakon's losses resulting from the discrimination against him shall be cal-
culated in the compliance stage of this proceeding
277 NLRB No. 139
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to District 9's involvement in Local 46's
unfair labor practicethe record shows that Dakon
wrote to District 9 .Vice President S. R. McCann
on 1 August explaining that Local 46 had told him
on 23 June that ,he could not take the journeman
wireman's examination _ because he was not a
member of that local. Dakon appealed to District 9
for relief under the terms of the IBEW constitu-
tion. On 25, August District 9 Representative
Cokely told Dakon that if he attended the Local 46
executive board meeting that evening, he would be
scheduled for a referral examination which, if
passed, would qualify him for registration on the
highest priority referral list, book I. The record re-
veals that Dakon did attend the meeting and was
promptly scheduled for the September referral ex-
amination. However, Dakon then stated that he
would not take the offered examination since it en-
titled him to priority referrals only within Local
46's geographical jurisdiction. On 4 September
Dakon renewed his request to McCann that he be
allowed to take the journeyman wireman's exami-
nation . McCann again explained that if Dakon
passed the offered examination, he would be placed
on book I for referrals under, the terms of Local
46's collective- bargaining agreement with the
Puget Sound Chapter of the National Association
of Electrical Contractors.
On this record we find that District 9 did not
ratify or otherwise participate in Local 46's unlaw-
ful delay in offering Dakon an appropriate exami-
nation . In fact,, after investigating Dakon's 1
August appeal, representatives of District 9 twice
told Dakon that passing Local 46's offered exami-
nation was sufficient to qualify him for book I and
twice encouraged Dakon to sit for that examina-
tion. We therefore dismiss the allegation that Dis-
trict 9 joined Local 46 in violation of Section
8(b)(1)(A) and (2) with respect to Dakon's job op-
portunities under the Local 46-NECA collective-
bargaining agreement.
THE REMEDY
Having found that Respondent Local 46 has en-
gaged in unfair labor practices within the meaning
of Section 8(b)(1)(A) and (2) of the Act, we shall
order it to cease and desist and to take certain af-
firmative action to effectuate the policies of the
Act. We shall order Local 46 to make Dakon
whole for any loss of earnings he might have suf-
fered by reason of the discriminatory denial of job
opportunities by payment to him of a sum of
money equal to that he would have earned, absent
the discrimination, from the date he first registered
on the out-of-work list subsequent to the first
referral/examination administered after 23 June
1981 until the date of the September 1981 referral
examination offered Dakon.3 Backpay is to be
computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
accordance with Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
We shall further order Local 46 to maintain and
make available to the Board or its agents, on re-
quest, job registration records and any other docu-
ments or records showing job referrals and the
basis for such work assignments of employees,
members, applicants, and registrants. In addition,
Local 46 shall notify the discriminatee that use of
the hiring hall facilities will be available to him for
referral on an equal basis with other registrants,
members, and nonmembers of its organization alike.
Posting of the customary notice will also be re-
quired.
CONCLUSIONS OF LAW
1. The National Electrical Contractors Associa-
tion (NECA) and its members are employers en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondents, Local 46 and District 9 of
the International Brotherhood of Electrical Work-
ers, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. From 23 June 1981 until 25 August 1981 Re-
spondent Local 46 denied nonmember David P.
Dakon permission to take a journeyman wireman's
examination or its equivalent thereby denying him
an opportunity for placement in priority referral
book I and limiting his opportunity for job referral
under the exclusive hiring hall provisions of its col-
lective-bargaining agreement with NECA. By this
action Respondent Local 46 attempted to cause and
caused NECA's members to discriminate against
Dakon in violation of Section 8(a)(3) of the Act
and Local 46 thereby violated Section 8(b)(2) of
the Act.
4. By reason of the discrimination against Dakon
Respondent, Local 46 has restrained and coerced
an employee in the exercise of his statutory rights
within the meaning of Section 8(b)(1)(A) of the
Act.
5. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
3 In finding Respondent Local 46 liable for backpay, we note that
Dakon subsequently passed an examination in September 1982 which
qualified him for placement in book I, the highest priority referral regis-
ter
ELECTRICAL WORKERS IBEW LOCAL 46 (NECA)
6. Respondent Local 46 has not otherwise violat-
ed the Act and Respondent District 9 has not in
any way violated the Act.
ORDER
The National Labor Relations,Board orders that
the Respondent, International Brotherhood of
Electrical Workers„ Local Union No. 46, AFL-
CIO, Seattle, Washington, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Refusing to permit nonmember job applicants
or registrants to take a journeyman wireman's ex-
amination or equivalent which would enable them
to qualify for placement in priority referral book I
or II and thus to enhance their opportunities for re-
ferral to jobs under the exclusive hiring hall provi-
sions of its contract with the Puget Sound Chapter
of the National Electrical Contractors Association
because such individuals are not members of its or-
ganization or from otherwise causing the contract-
ing employers to discriminate against employees,
job applicants, or registrants in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees, job applicants, or registrants
in the exercise of the rights guranteed them by
Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole discriminatee David P. Dakon
for any loss of earnings he may have suffered by
reason of the discrimination against him in the
manner set forth in the remedy section of this De-
cision and Order.
(b) Notify Dakon in writing that the Union's ex-
clusive hiring hall facilities and job opportunities
will be available to him on an equal and nondis-
criminatory basis with other members, employees,
job applicants, and registrants.
(c) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, job registration and referral records and any
other documents or records showing job referrals
and work assignments, and the basis for making
such referrals and assignments, of members, em-
ployees, job applicants, and registrants, which are
necessary to compute and analyze the amount of
backpay due to Dakon and to determine his right
to referral to jobs under the terms of this Order.
(d) Post at its business offices, hiring hall, and
meeting places in Seattle, Washington, copies of
the attached notice marked "Appendix."4 Copies
1237
of the notice, on forms provided by the Regional
Director for Region 19, after being signed by
Local 46's authorized representative, shall be
posted by Local 46 immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted . Reasonable steps shall
be taken by Local 46 to ensure that the notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to permit David P. Dakon
or any other eligible nonmember job applicant or
registrant to take a journeyman wireman 's examina-
tion or equivalent to enable them to qualify for
placement in priority referral book I or II and
thereby to enhance their opportunities for referral
to jobs under the exclusive hiring ; hall provisions of
our contract with the Puget Sound Chapter of the
National Electrical Contractors Association be-
cause these individuals are not members of our or-
ganization.
WE WILL NOT otherwise attempt to cause or
cause the contracting employers to discriminate
against employees , job applicants, or registrants in
violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees, job applicants,'or regis-
trants in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL make whole David P. Dakon for any
loss of earnings he may have suffered by reason of
the unlawful discrimination against him.
WE WILL notify David P. Dakon, in writing,
that our exclusive hiring hall facilities and job op-
portunities will be available to him on an equal and
4 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nondiscriminatory basis with our members, em-
ployees, job applicants, and registrants.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL
UNION No. 46, AFL-CIO
Patrick F. Dunham, Esq., for the General Counsel.
Hugh Hafer, Esq. (Hafer, Cassidy & Price), of Seattle,
Washington, for Respondent Local 46.
Victoria L. Bor, Esq. (Sherman, Dunn, Cohen, Leifer &
Counts), of Washington, D.C., for Respondent Interna-
tional.
David P. Dakon, of Bremerton, Washington, pro se
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Seattle, Washington, on
March 1, 1983, pursuant to a second amended consolidat-
ed complaint issued by the Regional Director of the Na-
tional Labor Relations Board for Region 19 on February
1, 1983, and which is based on charges filed by David P.
Dakon, an individual, on August 27 and September 14,
1981.1 Case 19-CB-4251 was amended on September 3,
1982. The complaint alleges that International Brother-
hood of Electrical Workers, Local Union No. 46, AFL-
CIO (Local 46) and the International Brotherhood of
Electrical Workers, District 9, AFL-CIO (the Interna-
tional) have been engaged in certain violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act.2
Issues
The issues are: (1) whether Local 46 as the operator of
an exclusive hiring hall discriminatorily deprived Dakon
of an opportunity to take the journeyman wireman's ex-
amination to satisfy one of the conditions of placement in
priority referral group I or II, and thus denied him em-
ployment opportunities not otherwise available to lower
classifications, (2) whether or not the International rati-
fied Local 46's denial and thereby also violated the Act,
and (3) whether or not Local 46 can be charged with
maintaining a closed-shop hiring arrangement with the
Seattle Department Stores Association.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, have been filed on
behalf of the General Counsel and each Respondent.
All dates herein are 1981 unless shown to be otherwise
By motion in his brief, counsel for the General Counsel has moved to
withdraw par 9 of the complaint That paragraph alleged that Local 46
had engaged in arbitrary and capricious conduct in referring maintenance
electricians to employee -members of the Building Owners and Managers
Association (BOMA) At the hearing the parties stipulated that during
1981 Local 46 had referred no employers to BOMA employees, although
about 14 workmen were employed 'during that time I thereupon dis-
missed that paragraph for failure of proof The dismissal stands and the
motion to withdraw is denied
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. THE EMPLOYERS' BUSINESS
Respondents admit and I find that (1) the Puget Sound
Chapter of the National Electrical Contractors Associa-
tion (NECA) is an employer association whose members
are engaged in the building and construction industry as
electrical contractors in the State of Washington and (2)
the Seattle Department Stores Association (SDSA) is an
employer association whose members are engaged in
retail merchandising in the Seattle area. Both NECA and
SDSA are organized, inter alia, to represent member-em-
ployers in collective bargaining with Local 46 They are
not related to each other. During the past year NECA
and SDSA have each received more than $50,000 from
the sale and purchase of goods and services across state
lines and SDSA's members, in the aggregate, annually do
a gross volume of business in excess of $50,000.
Respondents therefore concede, and I find, that
NECA and SDSA at all material times have been em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.3
II. THE LABOR ORGANIZATION INVOLVED
Respondents admit and I find both Local 46 and the
International to be labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background,
Local 46 is chartered by the International to represent
"inside construction" electricians in the Seattle area. It
has a collective-bargaining agreement with NECA effec-
tive June 1, 1980, expiring on May 31, 1983. Under the
agreement , Local 46 administers a hiring hall which
refers electricians to jobs available from NECA employ-
ers, Pursuant to the agreement, the NECA employers
use the hiring hall exclusively to obtain employees.
The contractual referral procedure requires Local 46
to maintain a register of applicants for employment. Ap-
plicants include electricians who are both members and
nonmembers of Local 46. Applicants are classified into
four groups, representing different job referral priorities.
To qualify for the highest priority group or "Book I" ap-
plicants must:4
[Have] four or more years' experience in the trade,
[he] residents of the geographical area constituting
the normal construction labor market, have passed a
Journeyman Wireman 's examination given by a duly
constituted Inside Construction Local Union of the
I.B.E.W. or have been certified as a Journeyman
3 BOMA is an employer association whose members own and operate
office buildings It, too, is engaged in commerce Further references to
BOMA will not be made due to the dismissal mentioned in fn 2, supra
4 Sec 5 05 of the Local 46-NECA contract
ELECTRICAL WORKERS IBEW LOCAL 46 (NECA)
Wireman by any Inside Joint Apprenticeship and
Training Committee and .. . have been employed
for a period of at least one year in the last four
years under a collective bargaining agreement be-
tween the parties to this Agreement
The qualifications for book II are identical, except that
the applicant need not be a resident nor have been em-
ployed by a party to the agreement
Under the International's constitution, its local unions
classify their members according to their skill in a par-
ticular aspect of the trade. Local 46 administers the jour-
neyman wireman's examination to its members to enable
them to be classified as journeymen wiremen members,
as well as to qualify them for priority referral through
book I or II
Dakon is a member of IBEW Local 1245 in Walnut
Creek, California, a nonconstruction local. His IBEW
membership classification is "journeyman lineman." He
began working in Local 46's jurisdiction in 1976. He was
originally registered on book IV, was referred to jobs,
and on meeting appropriate requirements, graduated to
book III.
B. The Examination
On June 23, 1981, Dakon appeared before Local 46's
executive board and asked to take the journeyman wire-
man's examination. Dakon said his purpose in requesting
the journeyman wireman's exam was to be able to regis-
ter on book I for referrals, rather than book 111. The
board refused to schedule him for the examination.
Dakon testified that when he made his initial request
before the board to take the exam, he was told that it
was given only to members of Local 46.
On July 28, Dakon again appeared before the board
and repeated his request, which was again denied. At
that time he attempted to deposit his "traveling card"
(issued by his home local to permit him to transfer mem-
bership) with Local 46 but the board refused to accept it,
citing article XXV, section 5, of the IBEW constitution.
In pertinent part that section states that a local union has
full autonomy with regard to requests for membership
transfers. On August 1, Dakon wrote S. R. McCann, an
International vice president having West Coast responsi-
bilities, explaining that Local 46 had refused to give him
the exam, appealing to McCann for relief.
On August 25, whille in Local 46's business office,
Dakon had a telephone conversation with a Mr.
Cokely,5 an International representative who reported to
McCann Cokely advised Dakon if he attended a Local
46 executive board meeting scheduled for that evening,
he could take a "referral examination" which, if passed,
would qualify him to register on book I 6 Dakon did so
and was scheduled to take the "referral exam" in mid-
September.
Dakon testified that the next day he visited Harold
Meyers, Local 46's president and executive board chair-
Kochley was misspelled in the transcript5
6 The journeyman wireman's exam consists of two separate 50-question
batteries used interchangeably to prevent cheating The referral exam
consisted of 25 questions from each of the two batteries
1239
man, to obtain study materials Meyers, as had Cokely
earlier, informed Dakon that the referral exam was ad-
ministered locally and only covered Local 46's geo-
graphical jurisdiction, Thereupon, Dakon refused to take
it On September 4 Dakon wrote Meyers and McCann,
renewing his request that he be allowed to take the jour-
neyman wireman's exam.
Dakon attended the September 8 executive board
meeting saying he would not take the referral exam. He
again requested and was refused the journeyman wire-
man's exam. By letter of September 4 Dakon reaffirmed
his "appeal" to McCann.
On September 16, McCann wrote Dakon in response
to the renewed appeal In his letter, McCann explained
that Local 46 could give classification exams only to its
members, also citing article XXV, section 5 of the Inter-
national's constitution. McCann explained once again
that if Dakon passed the referral exam, he would be
placed on Local 46's group I register.
By then Dakon had filed the instant charges. He next
spent a year appealing the matter to the International. Fi-
nally on September 17, 1982, after a directive from the
International, Local 46 gave Dakon the journeyman
wireman's exam. He passed it and has since been placed
on book I.
C. The Seattle Department Stores Association
Question
The General Counsel introduced copies of a 7-year-old
agreement between the Seattle Department Stores Asso-
ciation (SDSA) and the Seattle Building Trades Council
on behalf of various craft unions, including Local 46. Al-
though signed in 1975, its term ran from July 1, 1974, to
June 30, 1976. It contains an automatic. renewal clause. It
also contains the following clause:
"Section 1. All employees on Building Trades work
by Members of the Association to be members in
good standing of their respective building Trades
Union."
The General Counsel contends the clause is illegal on its
face for it creates a "closed shop" contrary to Section
8(a)(3) of the Act.
Donald McAlpine,' personnel manager for the South-
center Bon Marche department store, testified that he
hired only one electrician during 1981. He said he re-
quested the electrician from Local 46 "because of agree-
ments we have with the International, I believe." This
particular electrician was requested by name on several
occasions from Local 46 because of his past in-store
training and familiarity with the store's display wiring. 8
No other evidence was introduced to establish that the
1974-1976 agreement has remained in effect.
r McLapine is misspelled in the transcript
8 The selection of this electrician over Dakon has not been placed in
issue by the complaint
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS AND CONCLUSIONS
A. The_Examination Issue
Upon the foregoing facts the General Counsel asserts
that the Local 46's refusal to allow the Charging Party
to take the journeyman wireman's examination because
he was not a member of its local violated Section
8(b)(1)(A) and (2) of the Act. I agree that the evidence
clearly indicates Local 46 refused to allow Dakon to
take the journeyman wireman's exam. I nevertheless con-
clude that the refusal did not violate Section 8(b)(1)(A)
and (2) of the Act.
In support of her contention, the General Counsel
cites Electrical Workers IBEW Local 367 (NECA), 230
NLRB 86 (1977), enfd. mem. 578 F.2d 1375 (3d Cir.
1978). In that case the Board found that the local union's
refusal to offer nonmembers the opportunity to take the
journeyman wireman's exam violated Section 8(b)(1)(A)
and (2) of the Act. The finding was based on the conclu-
sion that the refusal accorded members preference in re-
ferral opportunities and deprived nonmembers of a
chance to improve their job opportunities in the exclu-
sive hiring hall.
As can be seen, there is a significant difference be-
tween Local 367 and the instant case. In Local 367, the
nonmember employees were denied the opportunity to
take any exam which would qualify them for preference
in referral opportunities. Dakon, however, was offered
the "referral examination ," composed of the same ques-
tions as the journeyman wireman's exam. If he had taken
it and passed, he would have been placed on book 1, thus
affording him the same referral opportunities as any
other book I occupant. Local 367 is therefore distinguish-
able and not controlling here. The journeyman wire-
man's exam is for members only. Dakon was not a
member. The referral exam was for nonmembers such as
he. However, he refused to take it, demanding the other.
His refusal is the reason he did not accede to book I, not
anything which Local 46 did.
I am aware that Local 46 initially refused to adminis-
ter the journeyman wireman's exam to Dakon and did
not immediately offer him the alternative. At first blush
the delay appears unsupportable. Yet he was scheduled
to take the comparable exam 63 days after his initial re-
quest. Section 5.10 of the NECA agreement permits a
similar delay for examinees who are Local 46 members:
"Reasonable intervals of time for examinations are speci-
fied as ninety days." The delay Dakon experienced was
no worse than a member might endure I am therefore
unable to find a violation with respect to it.
In administering a testing program a union must ensure
that the same standards apply to members and non-
members alike. E.g., Plumbers Local 633 (B & W Con-
struction Co.), 249 NLRB 67, 71 (1980), enfd. 668 F.2d
921 (6th Cir. 1982). Here Local 46 members take one of
two journeyman wireman's exams, each consisting of 50
questions. Its nonmembers take a referral exam composed
of 25 questions taken from each of the two journeyman
wireman's exams. Members and nonmembers who have
passed either exam are allowed to register in book I or
II, depending on their having met the other require-
ments. In this circumstance I cannot find that more diffi-
cult standards are applied to nonmembers than to mem-
bers.
Dakon asserts that his passing the referral exam will
not be given recognition by other IBEW "inside con-
struction" locals in other geographical areas saying they
will accept only the journeyman wireman's exam in de-
termining priority of referrals. However, no evidence has
been offered that local unions elsewhere will not accept
the referral exam in determining priority of referrals.
Even assuming Dakon to be correct, I am not aware of
any duty imposed by the Act which obligates a local
union in one area to assist employees it represents in ob-
taining employment in other areas under the jurisdiction
of other locals. Indeed, conversely, and consistent with
the duty to represent employees in its own area , section
5.01 of the Local 46-NECA agreement specifically de-
fines Local 46's interest as preserving the legitimate in-
terests of employees in obtaining employment "within
the area ." This is the same duty which is imposed on
Local 46 by the Act. By offering Dakon the referral
exam, it met that duty, the only one it had with respect
to providing job opportunities.
I conclude, therefore, that Local 46's refusal to allow
Dakon to take the journeyman wireman's examination
did not violate Section 8(b)(1)(A) and (2) of the Act. I
find it unnecessary to determine whether the Internation-
al ratified Local 46's conduct. A violation by Local 46 is
a prerequisite to finding the International to have violat-
ed the Act. Because Local 46 did not violate the Act,
the complaint against the International must be dismissed
as well.9
B. The Closed-Shop Issue
The other remaining issue is raised by paragraph 10 of
the complaint alleging that Local 46 has and is now
maintaining a closed-shop arrangement with SDSA. The
contract in question , covering maintenance electricians,
appears to have expired in 1976 but, by virtue of the
automatic renewal clause, may still be in effect. This is a
distinct possibility as its wage provisions simply require
that employees be paid a fixed percentage of the con-
struction rate under the NECA agreement. Before reach-
ing that issue, however, I must deal with Local 46's ar-
gument that no unfair labor practice charge has been
filed to support the complaint.
The only charge against Local 46 filed by Dakon al-
leges that he has been denied the right to take the jour-
neyman wireman 's exam. It mentions referral classifica-
tions set forth in the NECA contract. Although the
9 The complaint also alleges that in Vice President McCann's Septem-
ber 16 letter to Dakon, McCann told him that a local union "could refuse
to register travelers " The allegation seems to have confused two con-
cepts-right of a traveler to "register" on the out-of-work list often main-
tained by local unions and the right to "travel" by transferring member-
ship from one local union to another McCann's letter quoted the Interna-
tional's constitution provision relating to membership transfers, Clearly
he was discussing that topic, not the right of a job applicant to register
on an out-of-work list. This allegation must also be dismissed, as the pro-
viso to Sec 8(b)(1)(A) clearly permits local unions to reject the member-
ship applications of travelers. "[thhis paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to the ac-
quisition or relation of membership "
ELECTRICAL WORKERS IBEW LOCAL 46 (NECA) 1241
charge refers to "miscellaneous employers signatory to
IBEW contracts," it also refers to construction industry
"electrical contractors" only. It does not in any way
concern itelf with the employment of maintenance elec-
tricians in the retail store industry. Neither SDSA nor its
members is mentioned at all. It is clear, therefore, that
Dakon has never filed a charge putting the legality of
the SDSA contract in issue. He was only concerned with
the NECA contract and the examination to obtain refer-
ral priorities under it. It cannot be said that the contents
of the SDSA contract are closely or even reasonably re-
lated to the charge as filed. The closed-shop aspect of
the complaint is, therefore, unsupported by an unfair
labor practice charge and its issuance is without author-
ity under Section 10(b) of the Act. I conclude that para-
graph 10 is an attempt by the General Counsel to initiate
an action on its own motion and must be dismissed.
NLRB v. Kohler Co., 220 F.2d 3, 7 (7th Cir. 1955). See
also R. J. Causey Construction Co., 241 NLRB 1096
(1979) (complaint must be "closely related to the viola-
tions alleged in the charge"). It is therefore unnecessary
to determine whether the 1974-1976 SDSA contract is
still in effect. McAlpine's testimony suggests that it may
not be. He said the Bon Marche was bound by a con-
tract with "the International," but he may have meant
the Building Trades Council. I shall not attempt to
decide the issue on such evidence even though the Gen-
eral Counsel failed to show the 1974-1976 SDSA agree-
ment to McAlpine to see if he would have corrected
himself.
CONCLUSIONS OF LAW
1. Respondents Local 46 and the International are
labor organizations within the meaning of Section 2(5) of
the Act.
2. The General Counsel has failed to prove that Local
46 violated Section 8(b)(l)(A) and (2) of the Act by de-
nying Dakon the right to take the journeyman wireman's
examination; he has failed, therefore, to show that Re-
spondent International did anything unlawful in that
regard; nor has he shown.the International to have made
any lawful statements to Dakon regarding his right to
register for work.
3. No unfair labor practice charge has been filed
within the meaning of Section 10(b) of the Act to enable
the Board to address the closed-shop allegation in the
complaint.
[Recommended Order for dismissal omitted from pub-
lication.]