IBEW, Local 592

National Labor Relations Board - Board DecisionsApr 13, 1976

223 N.L.R.B. 899 (N.L.R.B. 1976)

IBEW, LOCAL 592 899 International Brotherhood of Electrical Workers, Lo- cal 592 (United Engineers & Construction Co.) and Edward Allen Gaymon . Case 4-CB-2456 April 13, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 16, 1975, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief and Respondent filed a brief in opposition to the exceptions filed by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER defer. After close of the hearing, briefs were filed by the General Counsel and the Respondent. Upon the entire record in this proceeding, including con- sideration of the posthearing briefs, and my observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER United Engineers and Construction Company is a Penn- sylvania corporation, engaged in general construction of a nuclear plant at a jobsite located in Salem, New Jersey. During the 12-month period preceding issuance of the complaint, a representative period, United Engineers real- ized gross revenues exceeding $500,000, and purchased goods valued in excess of $50,000 from firms located out- side the States of New Jersey and Pennsylvania. The complaint alleges, the answer admits, and I find that United Engineers and Construction Company is, and has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answers admits, and I find that International Brotherhood of Electrical Workers, Lo- cal 592, is, and has been, at times material herein, a labor organization within the meaning of Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was heard in Philadelphia, Pennsylvania, on September 4 and October 15, 1975, upon a charge filed by Edward Al- len Gaymon on March 25, 1975, and a complaint issued on June 30, 1975, which, as amended at the hearing, alleges that Respondent International Brotherhood of Electrical Workers, Local 592, violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, by refusing to refer Charging Party Gaymon for employment with United Engineers and Construction Company on the basis of arbitrary considerations and because Gaymon is a mem- ber of Local 902, International Brotherhood of Electrical Workers (IBEW). In its duly filed answer, Respondent de- nied that any unfair labor practices were committed, and affirmatively asserts that the appeal procedure set forth in the International Constitution of the IBEW represents an exclusive and complete forum to which the Board should III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issue The sole issue in this case is whether , under an exclusive referral system administered by Local 592, Gaymon who concededly would have been referred for employment with the Employer if entitled to preferred status pursuant to the governing hiring hall agreement, was wrongfully denied such a preference , and consequently denied employment in disregard of contractually defined standards. B. Concluding Findings Local 592 is a construction local of the IBEW, with juris- diction in four counties in southern New Jersey. Pursuant to an agreement with an affiliate of the National Electrical Contractors Association (NECA) a multiemployer associa- tion representing contractors who perform electrical work in the construction industry, Local 592 is authorized to maintain and administer an exclusive hiring arrangement. Article IV of the agreement, in effect at times material to this proceeding, defines the referral procedure. Section 4.4 thereof establishes referral preferences and, in material part, provides as follows: 4.4 The Union shall maintain a register of appli- cants for employment on the basis of the groups listed below. Each applicant for employment shall be regis- 223 NLRB No. 139 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tered in the highest priority group for which he quali- fies. GROUP is All applicants for employment who have four or more years experience in the trade , are resi- dents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the IBEW and who have been em- ployed 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. GROUP it: 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 tit: All applicants for employment who have two or more years experience in the trade , are resi- dents of the geographical area constituting the normal construction labor market and who have been em- ployed for at least six months in the last three years in the trade under a collective bargaining agreement be- tween the parties to this Agreement. GROUP iv: All applicants for employment who have worked at the trade for more than one year. As a matter of common knowledge, the membership of the IBEW consists of both electrical workers who are em- ployed in industrial -type operations and those employed in the construction industry. Local Union 902, IBEW, is an industrial type local which represents employees of the Government only, in- cluding those at the Philadelphia Naval Shipyard. Charg- ing Party Gaymon prior to 1972 was employed by the Phil- adelphia Naval Shipyard, during which employment he joined and has continued to be a member of Local 902. From time to time members of Local 902 have registered for referral in Local 592's hiring hall and had in fact ob- tained jobs on construction work through referral by the latter.' Gaymon was one such member of Local 902. Thus, after terminating his employment at the Naval Shipyard in 1972, he worked in construction out of Local 902, and Lo- cal 313, another construction local of the IBEW with juris- diction in Delaware . Prior to the events leading to the in- stant proceeding , Gaymon had received referrals out of Local 592 on three different occasions ; however, unlike the tight labor market conditions existing in 1975 , those refer- 1 The record includes a strong suggestion that, beginning in 1972, officials of Local 902 took steps to broaden the opportunities for its members to obtain referrals at hiring halls maintained by construction locals of the IBEW. Certain of these actions , such as conferring 'journeyman wireman" status on members who had successfully completed the shipyard's examina- tion for 'journeyman electrician " gives rise to the possibility that Local 902 was and has been engaged in a course of conduct calculated to place its journeyman on competitive parity with journeymen electricians in the con- struction industry , many of whom had gained journeyman status through the rigors of a 4-year apprenticeship or, at the very least, through successful completion of an examination tailored to the more comprehensive demands of that industry. Thus, though the classification "journeyman wireman." pursuant to IBEW policy, was limited to journeymen in the construction industry and was not a classification recognized by the Philadelphia Naval Shipyard, Alvin Shapiro, Local 902' s financial secretary , admitted that this classification was adopted by Local 902 to get certain of its members eligi- bility for a job in the construction branch of the IBEW. rals were effected by Local 592 when work was sufficiently plentiful to afford jobs to registrants in Group III. In January 1975, Gaymon was laid off by Peter D. Fur- ness, an electrical contractor. He at that time again regis- tered for work at Local 592's hiring hall, but, though Re- spondent Local 592 during the ensuing months referred all registrants with Group I preference, Gaymon had not been referred as of the close of the hearing herein. Respondent claims that Gaymon was placed in Group III, and con- cedes that, if Gaymon had been accorded Group I prefer- ence upon his registry in January 1975, he would have been referred for employment with United Constructors and Engineering Company. With respect to the requirements for Group I preference, Respondent also concedes, in effect, that Gaymon pos- sessed 4 or more years experience in the trade, is a resident of the geographical area constituting the normal construc- tion labor market, and had been employed for a period of at least 1 year in the last 4 years under Local 592 's collec- tive-bargaining agreement. Nonetheless, Respondent con- tends that the failure to refer Gaymon either as a Group I or Group II registrant was justified under the contractually established and perfectly legitimate standards limiting such preference to registrants who "have passed a journeyman's examination given by a duly constituted Local Union of the IBEW." See article IV, section 4.4 of the governing collective-bargaining agreement, as set forth in the above text. In this connection, the General Counsel concedes that Gaymon has never passed a journeyman examination giv- en by Local 592, or any other construction local of the IBEW. Nonetheless, the claim on his behalf relies on Gaymon's having passed a shop examination given by the Philadelphia Naval Shipyard in 1967, through which he attained the classification of "journeyman electrician" while employed at that location. According to testimony by Gaymon and Local 902's president and acting business manager, Walter Lesyk, Local 902, though having no role in the administration of the shop examination or its con- tent, sanctioned the examination given by the Shipyard. The General Counsel made no effort to controvert the commonly held fact that the versatility of skills and depth of qualifications required of a journeyman electrician in construction would be at a level superior to that of many industrial electricians, who in their particular plant, though recognized as journeyman, would have experience derived from relatively routine, repetitive functions narrowed by skill specialization, breakdowns in the craft, and familiarity of the work environment. Apparently in appreciation of these realities, the General Counsel does not contend that a violation would have inured if Local 592's contract speci- fied, in precise terminology, that Group I and II preference required successful completion of a journeyman examina- tion given by a construction local of the IBEW 3 Instead, 2 During the period material to this proceeding, no referrals were made from Group Ill. The position of the General Counsel in this respect is consistent with the limited theory underlying the complaint in National Electrical Contractors Association (Hudson-Bergen Division , et aL) 190 NLRB 196 (1971), affd. 457 F.2d 871 (C.A. 3, 1972), where such priority standards were not challenged as unlawful on their face. IBEW , LOCAL 592 the General Counsel claims that article IV, section 4.4 ex- presses the examination requirement in broad , unqualified language , which must be read as including the Naval Ship- yard examination , endorsed by Local 902. On this view of the case , the General Counsel argues that the denial of Group I preference , which in turn deprived Gaymon of a job with United Engineers and Construction Co., entailed a departure from the clear and unambiguous language in article IV , section 4 .4 of the governing collective -bargain- ing agreement , and thereby violated Section 8(b)(2) and 8(b)(1)(A) of the Act. Consistent with the General Counsel's legal premise, au- thority supports the view that where referral under an ex- clusive hiring hall agreement is conditioned upon clear and unambiguous standards set forth in that agreement, the refusal to refer an employee who qualifies for referral un- der such standards , without more , suffices to establish, pri- ma facie, a violation of Section 8(b)(2) and (1)(A) of the Act. Thus, in International Association of Heat & Frost Insu- lators & Asbestos Workers, AFL-CIO, Local 22 (Rosendahl, Inc.), 212 NLRB 913 (1974), a labor organization was held to have violated Section 8 (b)(2) and (1)(A) of the Act by refusing to refer a member , under a contractual request by name provision, despite the absence of specific evidence that the Union, in doing so , was motivated by a desire to encourage union membership . Pursuant to the holding in Rosendahl, supra, under an exclusive hiring arrangement a labor organization is under a duty to conform with and apply lawful contractual standards in administering regis- try, preference and referrals , and any departure therefrom resulting in a denial of employment to a member falls with- in that class of discrimination which inherently encourages union membership . See, e .g., Radio Officers' Union of the Commercial Telegraphers Union, AFL, [A. H. Bull Steam- ship Company] v. N.L.R.B., 347 U.S. 17, 40-42 ( 1954). Thus , under established precedent a proscribed discrimina- tory motivation is presumed where , through its control of employment opportunities , a labor organization demon- Contrary to the claim by the General Counsel there is no basis on this record for a specific finding that Gaymon was denied referral because of his membership in Local 902. There is no question that Gaymon's nonmember- ship in Local 592 or any other construction local did not preclude his refer- ral by the latter during periods when job opportunities existed in sufficient abundance to furnish employment to registrants not qualified for Group I or II preference . It is true that Gaymon testified that, upon inquiry of John Kaspar, Local 592's business agent, as to why he had not been referred in 1975, Kaspar, on two separate occasions , suggested that Gaymon had not been sent out because he was not from a construction local. However, were I to credit Gaymon in this respect, I would construe the remarks attributed to Kaspar as synonymous with Kaspar's position that Gaymon failed to qualify for Group I or II preference because he had not passed a journeyman 's examination given by a construction local at the IBEW. Such an interpretation is consistent with the explanation afforded Gaymon for his nonreferral by Ed DiGiovani, Local 902's president in March, 1975, and is entirely probable when considered against Gaymon's history of referrals when those in the Group III category were reached and his inability to obtain work when constricted job opportunities required Group I or II pref- erence . In any event, I regarded Gaymon as an untrustworthy witness, who impressed me as incapable or unwilling to relate the facts as they occurred, and with strong inclinations to perceive and afford accounts of events from the posture of his own self-interest. He often reflected an evasiveness, and his testimony was shifting , contradictory, and on occasion rendered improb- able by documented fact . My doubt as to the reliability of Gaymon leads me to credit Kaspar's denials. 901 strates its power by impairing an employee's tenure of em- ployment. See, e.g., International Union of Operating Engi- neers, Local 18, AFL-CIO (William F. Murphy),5 and Inter- national Union of Operating Engineers, etc, Local No. 513, AFL-CIO (S.J. Groves and Sons Co.).6 Respondent, by way of defense to the denial of Group I preference to Gaymon, relies solely on its claim that he had not "passed a journeyman's examination given by a duly constituted Local Union of the IBEW." Although Respon- dent contends that said requirement could only be met by successful completion of an examination given by duly constituted "construction" locals of the IBEW, no such limitation appears in article 4.4 of the governing collective- bargaining agreement, nor does any language appear in the overall agreement which supports such a construction. Nonetheless, Respondent offered evidence from a variety of sources which convincingly established that it was the universal intention, understanding, and practice under arti- cle IV, section 4.4 to regard examinations given by con- struction locals of the IBEW as the sole basis for satisfac- tion of the contractual standard in issue here. To refute the probative force of this testimony, the Gen- eral Counsel argues that, since the contract language in question is unqualified and unambiguous, such extrinsic evidence ought not be considered. In essence, the General Counsel in this respect claims that since the examination requirement for Group I preference fails to exclude exami- nations given by duly constituted locals of the IBEW which do not operate in the construction field, the parol evidence rule precludes addition of such a limitation upon the expressed contractual language through oral testimony. I would agree that the parol evidence rule, in most situa- tions, constitutes an effective judicial and administrative means of preserving the integrity of formal contracts, in- cluding collective-bargaining agreements . Indeed, the Board has recognized that concept in precluding alteration of the plain terms of a collective-bargaining agreement through extrinsic evidence in circumstances where a party to the contract was seeking to vary the express terms there- of.' And, indeed, in administering Section 8(b)(2) and (1)(A), the parol evidence rule might well be an effective means of assuring that union officials are not tempted to- wards manipulation of published preconditions for referral in a fashion calculated to impair the job opportunities of registrants through secretly held, or even contrived, limita- tions not apparent on the face of a governing collective- bargaining agreement. On the other hand, one cannot overlook the fact that, as employment declines, one registrant's established right to referral operates to another registrant's prejudice. Some caution must be exercised to assure that Board remedies are not invoked so as to disturb, through application of mechanistic principles, the relative rights of working men to a job where such rights are established by nondiscrimi- natory, uniformly applicable standards, which though un- s 204 NLRB 681 (1973), remanded to the Board at 496 F.2d 1308 (C.A. 6, 1974), with the Board reaffirming at 220 NLRB No. 29 (1975). 6 199 NLRB 921 (1972). 7 See Food Fair Stores, Inc., 202 NLRB 347, 353 (1973); and Teamsters, Local 439 (Pittsburgh-Des Moines Steel Company), 196 NLRB 971, 975 (1972). 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD published , are known , or at least should have been known to the individual who invokes Board processes to perfect a claim of preference against others competing for work. On this record , I am convinced that the filing of unfair labor practice charges by Gaymon occurred under circumstances in which he knew , or should have known , that eligibility for Group I or II preference required his having passed an examination given by a construction local of the IBEW. I have already referred to the evidence indicating that article IV, section 4.4 was intended by all parties to the agreement between NEGA and Local 592 to mean that only a journeyman examination given by a construction local of the IBEW would support eligibility for Group I or II placement . Were the evidence to end there , the allega- tions of the complaint, through a logical extension of estab- lished precedent , would be substantiated , for as a corollary to the statutory restrictions upon the power of labor orga- nizations to impair employee job rights is the right of the hiring hall applicant himself to be insulated from a labor organization 's departure from published standards for re- ferral which departure operates to his detriment, but which is argumentatively justified on the basis of considerations first conveyed through defenses in unfair labor practice litigation. Here, however, it does appear that Local 592 operated its hiring hall in a manner sufficient to apprise all registrants of the practice and intention underlying article IV, section 4.4 with respect to the journeyman examination. Thus, un- disputed evidence establishes that , when an applicant regis- ters at the hiring hall, he not only adds his name to the out-of-work register but also completes and signs a docu- ment entitled: "Application For Registration For Refer- ral." That document, in addition to name , date , address, date of birth, and other identifying data, requests the fol- lowing information: Number of years experience at the trade Firm Have you passed a journeyman examination given by a duly constituted Local Union of the IBEW for con- struction How long have you been employed under a Collective Bargaining agreement between Local Union No. 592 and the Contractors of the Cumberland Division of the N.J. Chapter of N.E.C.A. in the last 4 years I declare that the information given above is correct. (signed) The record shows that Gaymon completed such applica- tions at Local 592's hiring hall on at least four occasions between November 1973 and January 1975. In doing so, he in each instance responded affirmatively to the inquiry as to whether he had passed "a journeyman examination giv- en by a duly constituted Local Union of the IBEW for construction." Contrary to the General Counsel, I am satisfied that this document was adequate to place job applicants on notice that only a construction oriented examination would quali- fy them for placement in Group I or II. The questions on that application are sufficiently coextensive with criteria set forth in article IV, section 4.4 to lead one with only minimal intelligence to understand that their purpose was to provide Local 592' s agents information necessary to placement of registrants within their proper priority group- ing. Gaymon had never passed a journeyman examination "for construction" and I am unwilling to assume that, hav- ing completed these applications, Gaymon had a reason- able basis for belief that the examination he passed at the shipyard was the type contemplated by uniformly estab- lished rules under article IV, section 4.4. In these circum- stances, and on the basis of the entire record in this pro- ceeding, I find that the intent underlying article IV, section 4.4, the universal practice thereunder and the under- standing of the parties was to the effect that Group I or II preference would only be accorded to those who passed a journeyman examination given by a construction local, and that this limitation was communicated to job appli- cants under conditions sufficient to charge them with knowledge of its existence. I find that Gaymon knew or should have known of this requirement, and that, upon the entire record, the technicality whereby specific language to this effect was omitted from the contract does not warrant application of statutory proscriptions to accord a fictional priority to Gaymon which would, perforce, rest on an as- sumption that Gaymon should have been referred over some other applicant who met all perfectly legitimate re- quirements for Group I or II preference. Accordingly, I find that Respondent Local 592 has re- butted the presumption of discrimination arising from the General Counsel's case-in-chief by establishing that the re- fusal to refer Gaymon was grounded solely upon his failure to pass an examination demonstrating proficiency relevant to electrical work in the construction industry, a known, nondiscriminatory,8 and uniformly applied condition for preference under the hiring hall arrangement in this case. As implementation of this nondiscriminatory standard was "essential to its effective representation of employees," 9 Local 592 did not violate Section 8(b)(1)(A) and (2) of the Act as alleged in the complaint.10 CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B See Walter J. Barnes Electrical Co., Inc., 188 NLRB 183, 183-184 (1971), and N.L.R.B. v. News Syndicate Company, Inc., 365 U.S. 695 (1961). 9Cf. International Union of Operating Engineers, Local 18, AFL-CIO, (William F. Murphy), supra at 681. See Millwrights Local Union 1102, Car- penters, AFL-CIO (Planet Corporation), 144 NLRB 798 (1963). 10 In passing, it is noted that the assertion in the answer filed by Respon- dent Local 592 that the unfair labor practice allegations on behalf of Gay- mon be deferred to the "appeal procedure provided by the International Constitution" is lacking in merit . Respondent presents neither argument nor authority tending to support a theory which would require union members to exhaust internal union remedies as a precondition for the Board's asser- tion of jurisdiction . Such a result would be inconsistent with the remedial scheme under the Act, and can find no support in Collyer Insulated Wire, 192 NLRB 837 (1971 ), which contemplates , at a very minimum, the exis- tence of an alternative forum , empowered to issue final and binding (as distinguished from unilateral ) determinations with respect to issues of con- tract interpretation. IBEW, LOCAL 592 2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent , by refusing to refer Edward Allen Gay- mon, did not violate Section 8(b)(2) or (1)(A) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " 903 IT IS HEREBY ORDERED that the complaint in this proceed- ing be, and it hereby is, dismissed in its entirety. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.