J.E. Brown Electric

National Labor Relations Board - Board Decisions

Nov 23, 1994

315 N.L.R.B. 620 (N.L.R.B. 1994)

620
315 NLRB No. 84
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 22, 1987, the Respondent entered into a Letter of As-
sent ‘‘A’’ which bound it to the terms of the collective-bargaining
agreement between the Union and the Coastal-Sabine Division of the
Southeast Texas Chapter, National Electrical Contractors’ Associa-
tion, Inc. (NECA), a multiemployer bargaining group. The Respond-
ent, by virtue of the contract, agreed to recognize the Union within
the meaning of Sec. 8(f) of the Act as the representative of a unit
appropriate for the purposes of collective bargaining under Sec. 9(b)
(employees performing electrical work), for the period of March 2,
1992, through March 6, 1993, and March 6, 1993, through March
6, 1995. The parties have stipulated that the Respondent’s recogni-
tion of the Union was pursuant to Sec. 8(f) of the Act.
Although the Respondent, by letter to the Union dated January 13,
1993, indicated its wish to terminate the existing collective-bargain-
ing agreement, and on February 1, 1993, announced its intention to
terminate the delegation of its bargaining rights to NECA, the parties
stipulated that the Respondent’s Letter of Assent has never been
timely revoked and that the Respondent at all relevant times has
been bound by the terms of the collective-bargaining agreement be-
tween NECA and the Union.
2 Art. II, secs. 6 and 7 provide:
Section 6: If the registration list is exhausted and the Local
Union is unable to refer applicants for employment to the Em-
ployer within forty-eight (48) hours from the time of receiving
the Employer’s request . . . the Employer shall be free to secure
applicants without using the Referral Procedure but, such appli-
cants, if hired, shall have the status of ‘‘temporary employees.’’
Section 7: The Employer shall notify the Business Manager
promptly of the names and Social Security numbers of such
‘‘temporary employees’’ and shall replace such ‘‘temporary em-
ployees’’ as soon as registered applicants for employment are
available under the Referral Procedure.
3 Art. II, sec. 4 states:
The Union shall select and refer applicants for employment
without discrimination against such applicants by reason of
membership or non-membership in the Union and such selection
and referral shall not be affected in any way by rules, regula-
tions, bylaws, constitutional provisions or any other aspect or
obligation of Union membership policies or requirements.
J. E. Brown Electric, Inc. and International Broth-
erhood of Electrical Workers, Local 479, AFL–
CIO. Case 16–CA–16108
November 23, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
Upon a charge filed May 20, 1993, by International
Brotherhood of Electrical Workers, Local 479, AFL–
CIO (the Union), the Regional Director for Region 16
issued a complaint against J. E. Brown Electric, Inc.
(the Respondent), alleging that the Respondent en-
gaged in certain unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act. Copies of the complaint and notice of hear-
ing were served on the Respondent and the Charging
Party. The Respondent filed a timely answer denying
the commission of any unfair labor practices.
On September 30, 1993, on the basis of an all-party
stipulation, the parties filed with the Board a petition
to transfer the instant proceeding to the Board without
a hearing before an administrative law judge and sub-
mitted a proposed record consisting of the formal pa-
pers and the parties’ stipulation of facts with attached
exhibits. On November 22, 1993, the Deputy Execu-
tive Secretary of the Board issued an Order granting
the petition, approving the stipulation, and transferring
the proceeding to the Board. Thereafter, the General
Counsel and the Respondent filed briefs.
The Board has considered the stipulation, the briefs,
and the entire record of this proceeding and makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Texas corporation, is engaged in
the business of electrical construction and repair of
electrical restaurant equipment at its Lumberton, Texas
facility and construction sites, where it annually pur-
chases and receives products, goods, and materials val-
ued in excess of $50,000 directly from points located
outside the State of Texas. We find that the Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issue is whether the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to adhere to
the exclusive hiring hall provisions of the collective-
bargaining agreement between the parties.
A. Facts
The exclusive hiring hall provision of the parties’
applicable collective-bargaining agreement1 requires
the Respondent to obtain electricians to perform bar-
gaining unit work through the Union’s hiring hall,
which is the ‘‘sole and exclusive source of referral of
applicants for employment.’’ The agreement provides
that if the Union is unable to refer applicants for em-
ployment within 48 hours of receiving the Respond-
ent’s request, the Respondent is free to secure ‘‘appli-
cants’’ without using the hiring hall, and that all such
‘‘applicants,’’ if ‘‘hired,’’ shall have the status of
‘‘temporary employees.’’ The agreement further pro-
vides that the Respondent is required to ‘‘replace such
‘temporary employees’’’ as soon as applicants are
available from the hiring hall.2
The agreement also contains a nondiscrimination
clause.3 The parties stipulated that ‘‘[a]ny qualified
electrician may register at the hall on the out-of-work
list(s) and will be referred i[f] there is work avail-
able.’’
In August 1992 the Respondent requested that the
Union provide licensed electricians to perform con-
621J. E. BROWN ELECTRIC
4 In fact, if one were to employ the Respondent’s literal-minded
approach to the entire provision, one could argue that the Respond-
ent did not have the right to fill the positions with its own trans-
ferred employees in the first instance, because they could not prop-
erly be considered ‘‘applicants’’ within the meaning of the provision.
Under this reading, the term ‘‘hired’’ in the following sentence
would be explained by the fact that the parties had agreed that the
only way in which persons not coming through the hiring hall could
be placed in unit positions would be by the employer’s selection of
outside ‘‘applicants’’ after the 48-hour period had expired. Thus,
under any reading of the provision that takes a consistent approach
throughout, the Respondent was not privileged under the contract to
do what it did.
Wholly apart from the internal inconsistency of the Respondent’s
argument, it is contrary to the parties’ stipulation (Stipulation, par.
11) that the Respondent was ‘‘allowed by the collective bargaining
agreement’’ to transfer existing employees from the restaurant equip-
ment repair portion of the business, which is nonbargaining unit
work, to perform bargaining unit work.
struction work, which is bargaining unit work. The
Union was unable to provide the requested electricians.
After 48 hours had passed, the Respondent again con-
tacted the Union repeating its request for licensed elec-
tricians. The Union again could not provide the re-
quested electricians. On August 17, 1992, the Re-
spondent transferred three nonbargaining unit employ-
ees from the restaurant repair portion of its business to
perform the bargaining unit work.
In January 1993 the Union had available electricians
on its referral lists with appropriate licenses. After
learning that the three transferred employees were still
performing bargaining unit work, the Union requested
that the Respondent hire electricians through the
Union’s hiring hall to perform the work pursuant to
sections 6 and 7 of the parties’ collective-bargaining
agreement. The Respondent advised that because of the
workload of the Respondent, additional electricians
were not required. The Respondent refused to lay off
the existing employees who were performing unit
work. The Union replied that it did not seek the layoff
or termination of the existing employees, but protested
that the Respondent was required to hire union-referred
electricians under section 7 of the contract.
On March 8, 1993, without request for a referral
from the hiring hall, the Respondent hired another
electrician (whom the Respondent had first contacted
in August 1992) to perform bargaining unit work.
On May 20, 1993, the Union filed the instant unfair
labor practice charge against the Respondent for violat-
ing the contract’s exclusive hiring hall provisions.
B. The Parties’ Contentions
The General Counsel contends that the Respondent
failed to comply with the hiring hall provisions of the
parties’ collective-bargaining agreement by failing in
and after January 1993 to hire available electricians
from the hiring hall to perform bargaining unit work,
thereby violating Section 8(a)(5) and (1) of the Act.
The Respondent contends that it never ‘‘hired’’ any
new ‘‘temporary employees’’ to perform bargaining
unit work but allowed existing employees to perform
unit work, and that the exclusive hiring hall provision
in the collective-bargaining agreement does not require
it to lay off or discharge existing employees. The Re-
spondent also contends that the effect of the provision
is to require the Respondent to hire only union mem-
bers in violation of the Texas ‘‘right-to-work’’ statute.
C. Analysis
We find that in August 1992, when the Respondent
filled unit positions by transferring existing employees
from nonunit positions, the Respondent secured ‘‘ap-
plicants’’ from outside the hiring hall for bargaining
unit positions. Such ‘‘applicants’’ were required to be
‘‘hired’’ as ‘‘temporary employees.’’ When the Union
notified the Respondent in January 1993 that hiring
hall applicants were available, the collective-bargaining
agreement required that the Respondent ‘‘replace’’ the
‘‘temporary employees’’ with the qualified applicants
referred through the hiring hall.
We find no merit to the Respondent’s argument that
it was allowed to fill the unit positions on a permanent
basis because it ‘‘transferred’’ existing nonunit em-
ployees instead of ‘‘hiring’’ employees to fill the posi-
tions. First, we note that what the agreement leaves
employers free to do is to ‘‘secure’’ applicants without
using the hiring hall if the Union is unable to supply
applicants within the 48-hour period. Regardless of the
fact that the three transferred employees came from
within the Respondent’s own work force, they were as
clearly ‘‘secured’’ to fill the bargaining unit positions
in question as if they had been brought in from the
outside. Given the evident purpose of the provision,
the reference to ‘‘hired’’ employees is best explained
as merely the use of a common term for securing em-
ployees rather than a loophole to allow an employer to
circumvent the hiring hall by hiring workers into
nonunit positions from sources other than the hiring
hall and then transferring them over to vacant unit po-
sitions.4 We further note that, according to the stipu-
lated record, when the Respondent originally re-
sponded to the Union’s demand that the positions in
question be vacated for applicants from the hiring hall,
it did not articulate the interpretation of the contract
provision that it now presents to us. Rather, the Re-
spondent simply refused the Union’s demand and stat-
ed that it planned to ‘‘rescind’’ the collective-bargain-
ing agreement.
We therefore conclude that the contract’s exclusive
hiring hall provisions for ‘‘hiring’’ cover the ‘‘trans-
ferred’’ employees, who were therefore ‘‘temporary
employees’’ to be replaced as soon as hiring hall appli-
cants became available. Consequently, the Respondent
has failed to comply with the contract’s exclusive hir-
ing hall provisions since January 1993, when the
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Sec. 14(b) provides:
Nothing in this Act shall be construed as authorizing the exe-
cution or application of agreements requiring membership in a
labor organization as a condition of employment in any State or
Territory in which such execution or application is prohibited by
State or Territorial law.
6 We also reject the Respondent’s contention that by enforcing the
hiring hall provision, the Union would be compelling it to discharge
existing employees in violation of Sec. 8(a)(3) of the Act. See Team-
sters Local 357 (Los Angeles-Seattle Motor Express) v. NLRB, 365
U.S. 667 (1961). Plumbers Local 577, 196 NLRB 124 (1972), and
the other cases on which the Respondent relies, are inapposite. In
each of those cases, unlike here, the union caused the employer to
transfer and/or otherwise deny employment to an individual because
of nonmembership in the union or for other discriminatory reasons.
7 Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the
benefit funds in order to satisfy our ‘‘make-whole’’ remedy. Merry-
weather Optical Co., 240 NLRB 1213 (1979).
8 These cases, which are listed in American Commercial Lines, 291
NLRB 1066, 1076 fn. 48 (1988), are as follows: Southwestern Steel
& Supply, 276 NLRB 1569 fn. 1 (1985), enfd. 806 F.2d 1111 (D.C.
Cir. 1986); Southwest Security Equipment Corp., 262 NLRB 665,
666 (1982), enfd. 736 F.2d 1332 (9th Cir. 1984), cert. denied 105
Union notified the Respondent that qualified hiring
hall applicants were available.
We further conclude that in March 1993 the Re-
spondent again failed to comply with the contractual
hiring hall provisions when, without requesting a refer-
ral, it hired an individual who was not referred through
the hiring hall to perform unit work. The Respondent
has made no effort to justify this hiring as contrac-
tually permitted.
The Respondent also argues that the provision as en-
forced by the Union requires the Respondent to hire
union members only and that it is thus invalid under
the Texas ‘‘right-to-work’’ statute, pursuant to Section
14(b) of the Act,5 which outlaws union-security
clauses. This argument is without merit.
Contrary to the Respondent’s contention, the hiring
hall provisions at issue do not require that the Re-
spondent hire only union members. Rather, the con-
tract provides that the Union shall refer applicants
without discrimination ‘‘by reason of membership or
non-membership in the Union,’’ and referral shall not
be affected ‘‘by rules, regulations, bylaws, constitu-
tional provisions, or any other aspect or obligation of
Union membership policies or requirements.’’ Nor
does the record support the Respondent’s assertion that
the Union enforced the contract provisions to require
union membership of applicants in order to be referred.
Indeed, the parties stipulated that any qualified elec-
trician could register on the out-of-work list and would
be referred if work was available.
Thus, on the record before us, the Union maintains
a hiring hall that, though exclusive, does not require
union membership. Because courts have held that Sec-
tion 14(b) does not empower states to prohibit non-
discriminatory exclusive hiring halls, the Respondent’s
reliance on the Texas ‘‘right-to-work’’ statute is mis-
placed.6 NLRB v. Associated Contractors, 349 F.2d
449, 453 (5th Cir. 1965), cert. denied 382 U.S. 1026
(1966), enfg. 143 NLRB 409 (1963); Laborers Local
107 v. Kunco, Inc., 472 F.2d 456, 458–459 (8th Cir.
1973).
For the foregoing reasons, we find both that the Re-
spondent has failed to comply with the exclusive hiring
hall provisions of the agreement and that this failure
violated Section 8(a)(5) and (1) of the Act. American
Commercial Lines, 296 NLRB 622 (1989).
CONCLUSION OF LAW
By failing to comply with the hiring hall provisions
of the parties’ collective-bargaining agreement, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist from engaging in those unfair labor prac-
tices and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to comply with the exclusive hiring hall
provisions of the parties’ contract, to offer full and im-
mediate employment to those work applicants who
would have been referred to the Respondent for em-
ployment through the Union’s hiring hall were it not
for the Respondent’s unlawful conduct, and to make
them whole for any loss of earnings and other benefits
they may have suffered by reason of the Respondent’s
failure to hire them. Backpay is to be computed as set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Further, we shall also
order the Respondent to make whole the appropriate
fringe benefit trust funds for losses suffered by reim-
bursing such funds to the extent that contributions
would have been made on behalf of those individuals
who would have been referred to work were it not for
the Respondent’s unlawful failure to use the Union’s
hiring hall7 and to make those individuals whole for
any losses they may have suffered as a result of the
Respondent’s failure to make such contributions, Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd.
661 F.2d 940 (9th Cir. 1981), with interest as pre-
scribed above.
We recognize that in prior cases involving the repu-
diation of exclusive hiring hall provisions, the Board
has limited the respondent’s remedial obligation to
making employees whole for lost wages and benefits,
and the Board has not provided an affirmative rein-
statement order.8 These cases do not address how the
623J. E. BROWN ELECTRIC
S.Ct. 1854 (1985); Yeager Distributing, 261 NLRB 847, 849 (1982),
enfd. mem. 718 F.2d 1109 (9th Cir. 1983), cert. denied 469 U.S. 917
(1984); Wayne Electric, 226 NLRB 409 fn. 3 (1976). See also the
subsequent American Commercial Lines case (296 NLRB 622, 626
(1989)).
9 Members Stephens and Cohen suggest, in their concurring opin-
ion, that another possible reason for the Board’s failure to grant a
reinstatement remedy in these cases lies in the ‘‘practical problems’’
involved in determining which individuals on the hiring list would
be entitled to employment. This reasoning, however, is not explicit
in any of the cited decisions. In any event, in our view, reference
to the particular hiring hall rules of the unions involved will in most
cases provide ample guidance to determine which individuals were
in line for employment at the time of the employer’s hiring hall vio-
lation. To the extent there may be any uncertainty, the remedial pur-
poses of the Act are certainly not served by allowing the Respond-
ent, who is the wrongdoer, to benefit from that uncertainty by reliev-
ing the Respondent from a remedy that is imposed in almost every
other case of discriminatory refusal to hire. For all these reasons, we
do not view the potential for ‘‘practical problems’’ as a serious im-
pediment to ordering a respondent to employ individuals who would
have been in line for employment had the respondent not repudiated
its hiring hall obligations. 10 Casey Electric, 313 NLRB 774 (1994), and cases cited therein.
exclusion of a reinstatement provision comports with
the Board’s established remedial policy of attempting
‘‘to restore, so far as possible, the status quo that
would have obtained but for the wrongful act.’’ NLRB
v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265
(1969).
This precedent appears to be premised on what the
Board termed in Dean General Contractors, 285
NLRB 573, 574 (1987), ‘‘a precompliance presump-
tion against reinstatement in the construction indus-
try.’’9 In Dean General, a case involving a discharge
in violation of Section 8(a)(1) of the Act, the Board
rejected ‘‘the application of a precompliance presump-
tion against reinstatement adverse to the aggrieved em-
ployee on behalf of the adjudicated wrongdoer.’’ Over-
ruling prior cases to the extent inconsistent, the Board
held in Dean General that, ‘‘as in other industries, re-
instatement and backpay issues in the construction in-
dustry ordinarily will be resolved by a factual inquiry
during the compliance process rather than by resorting
to a presumption that may or may not accurately re-
flect the realities of the employment relationship or by
resorting to a shift of evidentiary burdens from the ad-
judicated wrongdoer to the aggrieved employee.’’ Ac-
cordingly, the Dean General Board ordered the tradi-
tional reinstatement and backpay remedy with the un-
derstanding that the respondent could introduce evi-
dence at compliance regarding the likelihood of the
discharged employee’s transfer or reassignment to
other projects subsequent to the job from which he had
been unlawfully discharged.
We find that the reasoning of Dean General is con-
trolling here, and we overrule the cases cited in fn. 8,
supra, to the extent they are inconsistent with our deci-
sion today. The Board has applied the Dean General
remedy to employees denied hire in violation of Sec-
tion 8(a)(3),10 and there is no principled basis for with-
holding this remedy here to employees who were de-
nied hire in violation of Section 8(a)(5). In both situa-
tions, had the employer acted lawfully, certain appli-
cants would have been hired. Therefore, in both kinds
of cases, ordering the employer to offer those appli-
cants employment and to pay backpay is necessary to
‘‘undo the effects of violations of the Act.’’ NLRB v.
Seven-Up Bottling Co., 344 U.S. 344, 346 (1953). In-
deed, a remedy that does not include a reinstatement
provision fails to fulfill our responsibility under Sec-
tion 10(c) of designing ‘‘measures . . . to recreate the
conditions and relationships that would have been had
there been no unfair labor practices.’’ Franks v. Bow-
man Transportation Co., 424 U.S. 747, 769 (1975).
For these reasons, we shall henceforth include rein-
statement orders as a necessary part of the remedy in
cases involving the repudiation of exclusive hiring hall
provisions with the understanding that, as in Dean
General, reinstatement and backpay issues will be re-
solved by a factual inquiry at the compliance stage of
the proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, J. E. Brown Electric, Inc., Lumberton,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to comply with the hiring hall provisions
of the parties’ collective-bargaining agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Comply with the terms of the hiring hall provi-
sions of the parties’ existing collective-bargaining
agreement.
(b) Offer full and immediate employment to those
work applicants who would have been referred to the
Respondent for employment through the Union’s hir-
ing hall were it not for the Respondent’s unlawful con-
duct and make them whole for any loss of earnings
and other benefits they may have suffered by reason
of the Respondent’s failure to hire them, in the manner
set forth in the remedy section of this decision.
(c) Make whole the appropriate fringe benefit trust
funds for losses suffered by reimbursing such funds to
the extent that contributions would have been made on
behalf of those individuals who would have been re-
ferred to work were it not for the Respondent’s unlaw-
ful failure to use the Union’s hiring hall and make
those individuals whole for any losses they may have
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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
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.’’
1 See, e.g., Plumbers Local 32 (Alaska Pipeline), 312 NLRB 1137,
1138 fn. 1 (1993). Although most hiring halls are found in the con-
struction industry, that is by no means the only industry in which
they exist. For example, American Commercial Lines, 291 NLRB
1066, 1076 (1988), cited by our colleagues, arose in the maritime
industry.
2 See cases cited at fn. 8 of the opinion for the majority.
suffered as a result of the Respondent’s failure to make
such contributions, in the manner set forth in the rem-
edy section of this decision.
(d) Preserve and, on request, make available to
agents of the Board for examination and copying, the
payroll records, social security records, timecards, per-
sonnel records, and all of the other records necessary
to analyze the amounts due under the terms of this
Order.
(e) Post at its facility in Lumberton, Texas, copies
of the attached notice marked ‘‘Appendix.’’11 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBERS STEPHENS and COHEN, concurring.
We agree, for the reasons stated in the opinion for
the majority, that the Respondent violated Section
8(a)(5) and (1) of the Act when it repudiated the con-
tractual hiring hall provision by refusing to accept
qualified electricians referred through the hall for four
bargaining unit positions which the Respondent had
previously filled with employees Rachel Knighton,
Raymond O. Tippett Jr., Wiley Tanton, and Randy
Bridges.
We also concur in the reinstatement order, but we
do not believe it wise to announce any broad new rule
that such orders are always appropriate for hiring hall
repudiation cases. While it is true, as our colleagues
state, that the Board has not supplied adequate ration-
ale for withholding such orders in similar cases in the
past, we do not agree that a general presumption about
the construction industry—effectively overruled by
Dean General Contractors, 285 NLRB 573, 574
(1987)—was the only conceivable justification for the
Board’s prior practice. A better reason lies in the com-
plex patterns of employment under a typical hiring hall
clause, pursuant to which employees frequently work
for one employer, then return to the out-of-work list
for referral to the next job up when they once again
reach the top of the list. Subsequent jobs are likely to
be with different employers, although this can be af-
fected by particular contractual hiring hall provisions,
such as ‘‘by-name’’ referral provisions, that permit an
employer to obtain referral of an employee whose
work he liked without regard to position on the out-
of-work list.1 Deciding whom—of the many employees
available for referrals during a substantial period of
hiring hall clause repudiation—should be ordered to be
‘‘reinstated’’ to existing jobs at the time when imple-
mentation of the Board’s order is commenced is likely
to present considerable practical problems to all parties
to a hiring hall arrangement. If the respondent em-
ployer commences to abide by the hiring hall clause as
directed, it would seem that this would require accept-
ing for existing jobs the next available employee on
the hiring hall out-of-work list. It is not likely to effec-
tuate the purposes of the Act to delay orderly resump-
tion of hiring hall referrals in order to await the out-
come of a determination in the compliance process of
which ones of the various employees who had passed
through the hall during the period of contract repudi-
ation would likely be holding now-existing jobs had
the employer been accepting referrals as required. This
practical difficulty is, we submit, the reason that the
Board has—without apparent protest by any party—al-
ways given simply a make-whole remedy, but not a re-
instatement order, when repudiation of a hiring hall
clause was found.2 Dean General Contractors pre-
sented no such problem because it concerned reinstate-
ment of a particular employee who had been hired and
then discharged by the Respondent employer; and
Casey Electric, 313 NLRB 774 (1994), cited by our
colleagues, had a similarly limited and specific focus,
in that it concerned 23 named individuals who were
discriminatorily refused jobs on two particular projects.
Initial hiring by the employer was at issue, not referral
from a hiring hall.
Because the complaint in this case has a limited
focus—the Respondent is alleged to have repudiated
the hiring hall clause solely by virtue of its actions re-
specting positions held by the employees named in
paragraphs 10 and 11 of the complaint (whom it re-
fused to replace with qualified hiring hall applicants)—
we agree that a reinstatement order is appropriate here.
It is, as our colleagues agree, subject to the Respond-
ent’s right under Dean General to show in compliance
that even if the particular applicants whom the Union
sought to refer to the positions in question had been
accepted by the Respondent, the jobs would subse-
quently have terminated and the employees would not
have been retained for other projects.
625J. E. BROWN ELECTRIC
APPENDIX
NOTICE TO EMPLOYEES
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to comply with the
hiring hall provisions of our collective-bargaining
agreement with the International Brotherhood of Elec-
trical Workers, Local 479, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL honor, abide by, and apply the terms of
the hiring hall provisions of our existing collective-bar-
gaining agreement with the International Brotherhood
of Electrical Workers, Local 479, AFL–CIO.
WE WILL offer full and immediate employment to
those work applicants who would have been referred
to us for employment through the Union’s hiring hall
were it not for our unlawful conduct and WE WILL
make them whole for any loss of earnings and other
benefits they may have suffered by reason of our fail-
ure to hire them, with interest.
WE WILL make whole the appropriate fringe benefit
trust funds for losses suffered by reimbursing such
funds to the extent that contributions would have been
made on behalf of those individuals who would have
been referred to work were it not for our unlawful fail-
ure to use the Union’s hiring hall and WE WILL make
those individuals whole for any losses they may have
suffered as a result of our failure to make such con-
tributions.
J. E. BROWN ELECTRIC, INC.