Local Union 99, IBEW

National Labor Relations Board - Board Decisions

Nov 7, 1974

214 N.L.R.B. 723 (N.L.R.B. 1974)

LOCAL UNION 99, IBEW
Local Union 99, International Brotherhood of Electri-
cal Workers, AFL-CIO (Crawford Electric Con-
struction Co.) and Roval R. Migneault. Case 1-
CB-2070
November 7, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On July 31, 1973, Administrative Law Judge Sid-
ney D. Goldberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.'
The Providence Division of the Rhode Island and
Southeast Massachusetts Chapter of the National
Electric Contractors Association, herein called the
Association, and individual electrical contractors
have collective-bargaining agreements with Respon-
dent Union providing for the operation of an exclu-
sive hiring hall referral system. The complaint covers
a period beginning January 18, 1972. The collective-
bargaining contract in effect between the Respon-
dent and the Association expired May 31, 1972, and,
immediately thereafter, another contract with the
same referral provisions was signed by the parties
with an expiration date of May 31, 1973.
The agreement has certain classifications consist-
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2
The General Counsel has moved to dismiss the complaint and vacate
the Administrative Law Judge 's Decision on the ground that the Charging
Party and the Respondent have agreed on a non-Board settlement of the
issues The motion is denied The settlement provides no assurance that the
interests of the public , as distinguished from that of the Charging Party, will
be sufficiently protected While the Respondent has offered the Charging
Party $3,000 and membership in the Union, there is no binding provision
whereby the Respondent will be required to operate a nondiscriminatory
hiring hall in the future or to provide all qualified applicants with a
journeyman 's examination for priority in referral to jobs Nor does the pro-
posed settlement require that the Respondent post notices to inform all
employees of their statutory rights In these circumstances the Board does
not believe that acceptance of the General Counsel 's motion is consonant
with the Board's obligation to effectuate the policies of the Act
723
ing of several groups of applicants for referral. Pref-
erence is accorded applicants on the basis of their
group assignment. Thus, persons assigned to Group I
receive preference to available work over all other
applicants. Persons in Group II are preferred over
those in Group III and so forth. The criteria for as-
signment to the various groups is set forth in the con-
tract as follows:'
Group I. All applicants for employment who
have four or more years' experience in the trade,
are residents of the geographical area constitut-
ing the normal construction labor market, have
passed a journeyman's examination given by a
duly constituted Local Union of the I.B.E.W.
and who have been employed for a period of at
least one year in the last four years under a col-
lective bargaining agreement between the parties
to this Addendum.
Group II. All applicants for employment who
have four or more years' experience in the trade
and who have passed a journeyman' s examina-
tion given by a duly constituted Local Union of
the I.B.E.W.
Group III. All applicants for employment
who have two or more years' experience in the
trade, are residents of the geographical area con-
stituting the normal construction labor market
and who have been employed for at least six
months in the last three years in the trade under
a collective bargaining agreement between the
parties to this Addendum.
Group IV. All applicants for employment
who have worked at the trade for more than one
year.
In order to take the Respondent's journeyman
exam one has to make application for union mem-
bership. There are only nine men in Group I who are
not members of Respondent. However, these men
have passed the journeyman exam which requires
them to apply for union membership before taking it
and are now awaiting admission to the Respondent.
Respondent's two most recent business agents testi-
fied that in their experience there have never been
any nonmembers or "permit men" in Group I.
The last journeyman exam was given in March
1973 and only 9 men took it out of 200 applicants,
some of whom had been waiting for 20 years. Con-
trary to the provisions of the International constitu-
tion and Respondent Local 99's bylaws requiring
that the examining board meet quarterly to examine
3 The complaint does not allege , and the General Counsel does not con-
tend , that the referral system described in the contract is violative of the
Act
214 NLRB No. 28
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicants, the Administrative Law Judge found that
there had been, before the March 1973 exam, no ex-
amination since October 18, 1969. Prior to the exam
in 1969, other exams were given on August 20, 1968,
June 27, 1968, February 2, 1968, and August 15,
1967. Ten persons took the examination on October
28, 1969, and all ten qualified. Only one took the
exam on August 20, 1968, and he qualified. Nine
took the February 2, 1968, exam and the nine passed.
Five took the August 15, 1967, exam and all five
passed.
Respondent's current business agent testified that
he could not explain how the examining board of
Respondent chose the nine men to take the test in
March 1973. He said that they were selected from
pending applications which are on file but that there
are no criteria for the selection. However, he conced-
ed that George H. Lowe, Jr., one of those chosen, is
his brother-in-law. He also stated that the one person
who took the August 20, 1968, exam was selected
because he had unsuccessfully tried to organize a
shop for the Union and was discharged for this activ-
ity. He also said that the one person who took the
June 27, 1969, exam was already a member of the
Respondent who was changing his classification
from groundman to apprentice.
The Charging Party testified that he had always
been interested in doing electrical work but, because
he was unable to join the Electricians Union, he be-
came a carpenter and a member of the Carpenters
Union. He spent 3 years in the Armed Forces prior
to 1945 doing electrical work, and when he was re-
leased in 1945 he obtained a journeyman electrician's
license from the State of Rhode Island. At that time
he tried unsuccessfully to become a member of Re-
spondent. The Respondent's records contain two ap-
plications for membership filed by the Charging Par-
ty, one dated March 1, 1972, and one dated May 12,
1972.
During the administration of James Poland as
Respondent's business agent, nonunion persons were
given permit cards which stated that the bearer could
not be permitted to work overtime without permis-
sion from the Union's business manager . This card
was not issued to members and members did not
have to receive permission to work overtime. Al-
though the permit card overtime prohibition was ap-
parently not enforced and was discontinued on July
24, 1972, when Richard Stromberg took over as busi-
ness agent, permit men were never told that the state-
ment on the face of the card meant nothing.
The complaint alleges, inter alia, that Respondent
discriminates against nonmembers in its administra-
tion and enforcement of its group classifications for
job referrals "since journeyman's tests have not been
given and/or publicized by Respondent and/or Re-
spondent discriminatorily operates its exclusive hir-
ing hall and/or referral system and thereby prevents
nonmembers from achieving the necessary work re-
quirements." The complaint also alleges that the is-
suance of permit cards to nonmembers of the Union
which stated that they are prohibited from working
overtime without the permission of the business man-
ager of the Union constituted unlawful discrimina-
tion.
The Administrative Law Judge found that Re-
spondent violated Section 8(b)(1)(A) in failing to fol-
low the contract provisions in assigning applicants to
the groups described in the contract and in classify-
ing in Group I only members of the Union plus per-
sons who have passed its exam on the basis of an
application for membership. However, he found it
unnecessary to deal with the Respondent's method of
choosing the persons to whom it gives its examina-
tion, as he found this question falls within the provi-
so to Section 8(b)(1)(A) giving unions the right to
prescribe rules with respect to the acquisition or re-
tention of membership. He also dismissed the permit
card overtime allegation as moot on the ground that
the card did not normally come to the attention of
the employer; this prohibition was discontinued by
Stromberg; and there is no evidence that this provi-
sion was ever invoked.
The General Counsel argues that Respondent fur-
ther violated the Act by not giving the journeyman's
exam necessary for qualification in Group I unless
one applies for membership, by not having any other
established criteria for selecting those who are to
take the exam, and by not giving the exam on a regu-
lar basis. He also requests a finding that
Respondent's requirement that permit men receive
permission from the union's business manager before
being permitted to work overtime constitutes an ad-
ditional violation. We find merit in the General
Counsel's exceptions for the reasons stated below.
It is clear that a union violates Section 8(b)(1)(A)
of the Act when, under an exclusive hiring agreement
with an employer, it accords its own members prefer-
ence in job referrals over nonmembers utilizing its
hiring facilities.4 Incorporation of member preference
in the terms of an exclusive agreement is plainly un-
lawful. Such preference is no less unlawful when ac-
complished by discriminatory administration of be-
nign contract provisions or by fashioning seemingly
Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v
N L R B, 365 U S 667 (1961), Local Union No 269, International Brother-
hood of Electrical Workers, AFL-CIO, 149 NLRB 768 (1964), enfd 357 F 2d
51 (C A 3, 1966), International Brotherhood of Electrical Workers, Local
Union 340, AFL-CIO, 131 NLRB 260 (1961), enfd 301 F 2d 824 (C A 9,
1962)
LOCAL UNION 99, IBEW
objective criteria for referral priority which in fact
only union members can meet.
As shown by the facts above , the Union required
nonmember applicants for employment to apply for
membership before being allowed to take its journey-
man examination , successful completion of which
was necessary for placement in the top referral
group . This practice is obviously discriminatory as it
favored union members in job referral and relegated
nonmembers to a lower priority status simply be-
cause of their lack of union membership . As we said
in United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 633, AFL-CIO: 5
As applied by Respondent, the requirement that
a job applicant pass the journeyman's test en-
tails, in essence, a requirement that he belong to
the Union. This criterion would bar the most
qualified plumber from referral not because he
was unskilled, but because he had not been per-
mitted to take the test that serves as the sole
means of proving competence. Clearly, the crite-
rion for referral is not ability to do the work, it is
union membership.'
To say as did the Administrative Law Judge that
Respondent's rule of requiring an application for
membership before allowing people to take its exami-
nation is protected by the proviso turns the proviso
on its head. For the Union is not saying that in order
to be eligible for membership a person has to take a
journeyman exam, which would be legitimate, but
rather that in order to take an exam which is neces-
sary to gain admittance into Group I one has to ap-
ply for membership.
Accordingly, we find that the requirement to apply
for union membership before being eligible to gain
referral priority is a separate violation of Section
8(b)(1)(A) of the Act. To remedy this violation we
shall order Respondent to cease requiring individuals
to apply for membership before taking the exam.
Nonetheless, even if an individual desired to join
the Union in order to take the examination, the pos-
sibility of taking the journeyman's examination is re-
mote as shown by the fact that of approximately 200
pending applications dating back 20 years, no more
than a mere handful of individuals have been permit-
ted to take the journeyman's examination and thus
gain priority in Group 1. Since the present members
of Group I are all union members or awaiting union
admission because they took the exam when an ap-
178 NLRB 398 (1969)
e Ibtd, 399
725
plication for membership was illegally required as
found previously , by failing to give its examination
regularly to persons selected on the basis of nondis-
criminatory criteria , nonmembers have been "fro-
zen" into the nonpriority groups and the illegal pref-
erence for union members who already dominate
Group I has been perpetuated .' Hence , in these cir-
cumstances , we find that Respondent 's failure to give
its examination on a regular basis to persons selected
on the basis of nondiscriminatory criteria constitutes
a further violation of Section 8(b)(1)(A) as it tended
to give union -members who were already in Group I
continued preference in referrals on the basis of
union membership alone. In order to effectuate the
purposes of the Act, we shall order that Respondent
give its examination on a regular basis and base its
selection of those to whom it gives the examination
only on criteria related to employment.
Finally, contrary to the Administrative Law Judge,
we find that Respondent also violated Section
8(b)(1)(A) by requiring permit men to receive permis-
sion from the business manager to work overtime.
This requirement , which was printed on the permit
card , is discriminatory on its face in that members do
not have the same prohibition and in that the con-
tract states that overtime must be assigned to all
equally. As this violation continued for a substantial
period of time , we cannot agree with the Administra-
tive Law Judge that a cease-and-desist order or a
notice informing employees of their rights is unneces-
sary.
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are amended as follows:
"6. By requiring individuals to apply for union
membership before being eligible to take the
Respondent's journeyman examination, successful
completion of which was necessary for placement in
the top referral groups, the Union has restrained and
coerced Roval R. Migneault and other persons in
their exercise of rights guaranteed in Section 7 of the
Act and has committed an unfair labor practice with-
in the meaning of Section 8(b)(1)(A) of the Act.
"7. By denying nonmember applicants for em-
ployment an opportunity to take its journeyman ex-
amination by failing to give its examination on a reg-
ular basis and by failing to establish objective criteria
for selecting those eligible to take the examination,
the Union has restrained and coerced Roval R. Mig-
neault and other persons in violation of Section
8(b)(1)(A) of the Act.
7 Houston Maritime Association, Inc, 168 NLRB 615 (1967), enforcement
denied on other grounds 426 F 2d 584 (C A 5, 1970)
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"8. By prohibiting permit men on the face of their
permit cards from working overtime unless they re-
ceive permission from its business manager, the
Union has restrained and coerced Roval R. Mig-
neault and other persons in their exercise of rights
guaranteed in Section 7 of the Act and has commit-
ted an unfair labor practice within the meaning of
Section 8(b)(1)(A) of the Act.
"9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Local Union 99, International Brotherhood of Elec-
trical Workers, AFL-CIO, Providence, Rhode Is-
land, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Giving preference in any exclusive job referral
system it operates to its members or to persons who
have passed its examination on the basis of an appli-
cation for membership.
(b) Requiring nonmember applicants for employ-
ment to apply for membership before being eligible
to take its journeyman examination.
(c) Denying nonmember applicants for employ-
ment an opportunity to take its journeyman exami-
nation by failing to give its examination on a regular
basis and by failing to establish objective criteria for
selecting those eligible to take the examination.
(d) Requiring nonmembers to receive permission
from the Union's business manager in order to work
overtime.
(e) In any like or related manner coercing or re-
straining any applicant for employment through its
referral system in the exercise of the rights guaran-
teed in Section 7 of the National Labor Relations
Act, as amended.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Make whole Roval R. Migneault, in the man-
ner set forth in the section of Administrative Law
Judge's Decision entitled "The Remedy," for any
loss of pay he may have suffered since July 24, 1972,
by reason of preferences in referrals given to mem-
bers of the Union and persons who passed the
Union's examination on the basis of applications for
membership in the Union.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records showing referrals for employment since
July 24, 1972, all "out of work" lists since that date,
and all other records necessary to analyze the
amount of wages lost by Roval R. Migneault since
that date.
(c) Implement the exclusive referral system agreed
to in the contract between Respondent and the Prov-
idence Division of the Rhode Island and Southeast
Massachusetts Chapter of the National Electric Con-
tractors Association and other individual electrical
contractors, but suspend for 1 year for those appli-
cants described in section 2(g) and (1), below, the ap-
plication of the time requirements of employment
under the collective-bargaining agreement between
the parties to the contract for eligibility in Groups I
and III.
(d) In its operation of the exclusive referral sys-
tem, maintain permanent written records of its refer-
ral operations which will be adequate to disclose ful-
ly the basis upon which referrals are made and, upon
request of the Regional Director or his agents, make
available for inspection, at reasonable times, any re-
cords relating in any way to the referral system.
(e) In its operation of the exclusive referral sys-
tem, post in its office, and make available to any
applicant for employment the rules or methods gov-
erning its exclusive referral system.
(f) Administer its journeyman examination on a
regular basis and select individuals to take the exami-
nation only on the basis of relevant objective criteria
related to employment.
(g) Include in the initial journeyman examination
all job applicants who meet the qualifications estab-
lished under section 2(f), above, who have been dis-
criminated against by reason of preferences in refer-
ral given to members of the Respondent and to per-
sons who were selected to take the Union's
examination on the basis of applications for mem-
bership in the Respondent Local.
(h) Place in Group I those applicants described in
section 2(g), above, who pass the examination ad-
ministered under that section and who are otherwise
qualified for placement in this group under the con-
tract as modified by section 2(c) of this Order.
(i) In its operation of the referral system refer first,
for a period of 1 year, those applicants placed in
Group I as a result of section 2(h) of this Order, giv-
ing them preference over applicants who are current-
ly in Group I as a result of the discrimination found
herein.
(j) Place in Group I those applicants for employ-
ment who have passed the journeyman examination
administered by other locals of the International
Brotherhood of Electrical Workers, AFL-CIO, who
are otherwise qualified for placement in Group I un-
der the contract as modified by section 2(c) of this
Order and who have been discriminated against by
LOCAL UNION 99, IBEW
reason of preferences in referral given to members of
Respondent and to persons who were selected to take
the Union's examination on the basis of applications
for membership in Respondent Local, according
them the same priority given to applicants who are
currently in Group I.
(k) Notify present nonmembers in Group I who
are awaiting admission to union membership of their
right to withdraw their applications for union mem-
bership still remain in Group I.
(1) In connection with its journeyman examina-
tions, maintain written records of the administration
of the examinations which will be adequate to dis-
close fully the basis on which applicants are selected
and the regularity with which the examination is giv-
en and, upon request of the Regional Director of the
Board or his agents, make available for inspection at
reasonable times any records relating to the adminis-
tration of the examinations.
(m) Post at its office at 150 Ernest Street, Provi-
dence, Rhode Island, copies of the attached notice
marked "Appendix." 8 Copies of said notice, on
forms provided by the Regional Director for Region
1, after being duly signed by the Respondent's au-
thorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be
taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(n) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
B In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To Members and to all other applicants, union and
nonunion, for job referrals through the exclusive re-
727
ferral system of Local Union 99, International Broth-
erhood of Electrical Workers, AFL-CIO:
The trial held at Providence, Rhode Island, on May
14 and 15, 1973, in which we participated and had an
opportunity to give evidence, resulted in a decision
that, since July 24, 1972, in the operation of our ex-
clusive referral system, we have been committing un-
fair labor practices in violation of Section 8(b)(1)(A)
of the National Labor Relations Act, as amended.
We hereby notify all applicants for employment
through our referral system, whether they are mem-
bers or nonmembers of this local, that:
WE WILL NOT operate the exclusive referral
system, under our collective-bargaining con-
tracts with any employer or association of em-
ployers, so as to give preference to members of
this local or to persons who have passed the ex-
amination given by this local on the basis of an
application for membership.
WE WILL NOT require nonmember applicants
for employment to apply for membership before
being eligible to take our journeyman examina-
tion.
WE WILL NOT deny nonmember applicants for
employment an opportunity to take our journey-
man exam by failing to give the exam on a regu-
lar basis and by failing to establish criteria for
selecting those eligible to take the exam.
WE WILL NOT require nonmembers to receive
permission from the Union's business manager
in order to work overtime.
WE WILL make Roval R. Migneault whole for
any wages he lost since July 24, 1972, because of
our failure to refer him for employment by rea-
son of the preference we gave to members of this
local and to persons who have passed the exami-
nation given by this local, and we will pay him
interest, at 6 percent per annum, on such lost
wages.
In operating the exclusive referral system
agreed to in the contract between us and the
Providence Division of the Rhode Island and
Southeast Massachusetts Chapter of the Nation-
al Electric Contractors Association, WE WILL
keep permanent written records showing refer-
rals for employment, which shall disclose fully
the basis upon which each referral was made.
Upon request, we will make these records avail-
able to the Board or its agents for inspection,
copying, or any other proper use.
As long as we operate an exclusive referral
system, WE WILL post in our office, and make
available to any applicant for employment, a de-
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scription of the rules and methods by which
such system is being operated.
WE WILL conduct our journeyman examina-
tion on a regular basis and select individuals to
take the examination only on the basis of rele-
vant objective criteria related to employment,
and include in the initial journeyman examina-
tion all job applicants who satisfy the relevant
objective criteria related to employment who
have been discriminated against in the past.
WE WILL place in Group I, the highest priority
referral group, those job applicants who pass the
journeyman examination and those applicants
who have passed the journeyman examination
administered by our sister locals who are other-
wise qualified for placement in Group I, and
who have been discriminated against as a result
of our unfair labor practices.
WE WILL refer first, for a period of 1 year,
those applicants placed in Group I as a result of
their having been denied illegally the right to
take our journeyman examination.
WE WILL suspend for 1 year for those appli-
cants who have been denied illegally the right to
take our journeyman examination, or have
passed the journeyman examination adminis-
tered by our sister locals but who have been dis-
criminated against, the application of the time
requirements of employment under the collec-
tive-bargaining contract between the parties to
the contract for eligibility in Groups I and III.
WE WILL permit nonmembers in Group I who
are awaiting union admission to withdraw appli-
cations for membership but still remain in
Group I.
WE WILL maintain written records of our ex-
amination administration which will be ade-
quate to disclose fully the basis on which appli-
cants are selected and the regularity with which
the examination is given. Upon request, we will
make these records available to the Board or its
agents for inspection, copying, or any other
proper use.
LOCAL UNION 99, INTER-
NATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
AFL-CIO
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: In this
case , tried before me at Providence, Rhode Island, on May
14 and 15, 1973, the complaint t alleges that Local Union
i Issued October 31, 1972, on a charge filed July 19, 1972, and an amend-
ed charge filed October 12, 1972
99, International Brotherhood of Electrical Workers,
AFL-CIO (the union or respondent ), in its operation of a
hiring-referral system pursuant to its contract with employ-
ers, discriminated against nonmembers , and specifically
against Roval R. Migneault , the charging party, thereby
restraining and coercing such nonmembers in the exercise
of their rights guaranteed by the National Labor Relations
Act, as amended (the Act); causing employers to discrimi-
nate against nonmembers to encourage their membership
in the union ; and violating Section 8(b)(1)(A) and 8(b)(2)
of the Act.
Respondent answered , denying the allegations of coer-
cion and of attempts to cause discrimination , and the is-
sues so raised came on for trial before me as set forth
above.3 All parties were represented; they were afforded an
opportunity to present testimony and other evidence, to
cross-examine witnesses , and to argue on the facts and the
law. Briefs filed by the General Counsel and by counsel for
the Union have been considered.
For the reasons hereinafter set forth in detail , I find that
the Union, during the administration of Richard E. Strom-
berg as business manager , has improperly assigned appli-
cants for employment under the referral system to the
groups set forth in the contract and, by giving preference in
referrals for employment to members of the Union, re-
strained and coerced applicants for employment in viola-
tion of Section 8(b)(1)(A) of the Act.
Upon the entire record herein,4 and the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
I. THE PARTIES
The Union is admittedly a labor organization and I so
find.
The referral system of the Union, which is at the heart of
this case, is operated for the purpose of supplying electri-
cians to the members of Providence Division of the Rhode
Island and Southeast Massachusetts Chapter, National
Electrical Contractors Association (the Association), with
which it has a contract including the referral system, and to
other electrical contractors with whom it has similar con-
tracts. It is admitted that some of the members of the Asso-
ciation annually import electrical materials valued at more
than $50,000 and perform services valued in excess of
$50,000 annually for companies engaged in interstate com-
2 An additional allegation of restraint and coercion, based upon the exac-
tion of a permit fee from nonmembers , was withdrawn during the trial
D A similar complaint against Respondent, issued on a charge filed by
James R Haskel (Case I-CB-2224), had been consolidated with the com-
plaint issued on the Migneault charge and came on for trial at the same
time Shortly after the opening of the consolidated trial, however, Haskell's
counsel stated that his client had independently reached an adjustment with
the union and wished to withdraw the charge he had filed The General
Counsel did not oppose Haskell's request for permission to withdraw his
charge and Haskell stated on the record that he believed the arrangement
would be in his best interest Accordingly, Haskell was permitted to with-
draw the charge he had filed and the complaint issued thereon was dis-
missed
4Typographical errors in the transcript of testimony, all in statements
from the bench , have hereby been corrected
LOCAL UNION 99, IBEW
merce. It is also admitted that Crawford Electric Construc-
tion Co. (Crawford) and Lighting Service of Rhode Island,
Inc. (Lighting Service), which are specifically involved
herein, each annually imports electrical materials valued at
more than $50,000 and each annually performs services
valued at more than $50 ,000 for companies engaged in in-
terstate commerce.
I find that the activities of the Union, in its relations with
the Association, Crawford, and Lighting Service, affect
commerce.
II. BACKGROUND
A. The Contract
The time period relevant to this case begins January 18,
1972, 6 months prior to the filing of the charge. The collec-
tive-bargaining contract in effect on that date between the
Union and the Association expired May 31, 1972, and, im-
mediately thereafter , another contract was executed be-
tween them expiring May 31, 1973. The provisions in this
latter contract concerning the referral system-stipulated
to be the same as those in the previous contract-are as
follows:
ARTICLE IV
REFERRAL PROCEDURE
In the interest of maintaining an efficient system of
production in the industry, providing for an orderly
procedure of referral of applicants for employment,
preserving the legitimate interests of the employees in
their employment status within the area and of elimi-
nation discrimination in employment because of
membership or non-membership in the Union, the
parties hereto agree to the following system of referral
of applicants for employment:
1. The Union shall be the sole and exclusive source
of referrals of applicants for employment.
2. The Employer shall have the right to reject any
application for employment.
3. The Union shall select and refer applicants for
employment without discrimination against such ap-
plicants by reason of membership or non-membership
in the Union and such selection and referral shall not
be affected in any way by rules, regulations, by-laws,
constitutional provisions or any other aspect or obli-
gation of Union membership policies or requirements.
All such selection and referral shall be in accordance
with the following procedure:
4. The Union shall maintain a register of applicants
for employment established on the basis of the groups
listed below. Each applicant for employment shall be
registered in the highest priority Group for which he
qualified.
GROUP I. All applicants for employment who have
four or more years' experience in the trade, are resi-
dents of the geographical area constituting the normal
729
construction labor market , have passed a
journeyman's examination given by a duly constituted
Local Union of the I.B.E.W. 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 Addendum.
GROUP II. 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 I.B.E.W.
GROUP III. 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 Addendum.
GROUP IV. All applicants for employment who have
worked at the trade for more than one year.
If the registration list is exhausted and the 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, Saturdays, Sundays,
and holidays excepted, the Employer shall be free to
secure applications without using the referral proce-
dure, but such applicants, if hired, shall have the sta-
tus of "temporary employees". The Employer shall
notify the Business Manager promptly of the names
and Social Security Numbers of such temporary em-
ployees, and shall replace such "temporary employ-
ees" as soon as registered applicants for employment
are available under the referral procedure.
5. The Union shall maintain an "Out of Work List"
which shall list the applicants within each group in
chronological order of the dates they register their
availability for employment.
6. Employers shall advise the Business Manager of
the Local Union of the number of applicants needed.
The Business Manager shall refer applicants to the
Employer by first referring applicants in GROUP I.-
in the order of their places on the Out of Work List-
and then referring applicants in the same manner suc-
cessively from the Out of Work List in GROUP II,
then GROUP III, and then GROUP IV.
Any applicant who is rejected by the Employer shall
be returned to his appropriate place within his
GROUP and shall be referred to other employment in
accordance with the position of his GROUP and his
place within the GROUP.
The only Exceptions which shall be allowed in this
order of referral are as follows:
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. When the Employer states bona fide require-
ments for special skills and abilities in his request for
applicants, the Business Manager shall refer the first
applicant on the register possessing such skills and
abilities.
8. A copy of the referral procedure set forth in this
Addendum shall be posted on the Bulletin Board in
the offices of the Local Union and in the offices of the
Employers who are parties to this Addendum.
Employers who are not members of the Association and
enter into collective-bargaining agreements with the Union
sign an identical contract.
B. The Union 's Officials
From 1945 until 1963 the union 's business manager was
Thomas Carne . In 1963, James Poland became business
manager and served in that office until July 24, 1972. In an
election held June 10, 1972, Poland lost to Richard E.
Stromberg, who succeeded him on July 24. Stromberg had
been president of the union for 3 years and, prior to that,
had been a member of the executive committee for 6 years.
The presidency is not a full-time job but that of business
manager is.
C. The Charging Party
Royal R. Migneault testified that he had always been
interested in doing electrical work but, because he was un-
able to join the electricians' union, he became a carpenter
and a member of the carpenters' union. He spent 3 years in
the Armed Forces prior to 1945, doing electrical work, and
when he was released in 1945 he obtained a journeyman
electrician's license from the State of Rhode Island. At that
time, he testified, he tried, unsuccessfully, to become a
member of Local 99, the Respondent herein.
Migneault admitted that he remained a member of the
carpenters' union and that, from May 23, 1962, until Sep-
tember 30, 1968, he was a member of Carpenters' Local
1356. He testified that he paid his dues to that local but
that his work while he was a member of it was not as a
carpenter because the local was composed of maintenance
men and the work he did was "mill work." 5
In May 1967, Migneault testified, he first obtained a per-
mit card from Local 99 and it was issued to him by Poland.
At the same time, Poland referred him to a job at J & H
Electric Company and he worked for that company until
October 17, 1967. The Union's record shows that Mig-
neault was referred to a series of jobs on which he worked,
with only a single lapse of 2 weeks in 1970, until February
18, 1972. The union record further shows that, after the
termination of his employment on February 18,
Migneault's next job was at Lighting Service, and that it
5 The term "mill work" in this case is used to designate repair or renova-
tion work in an existing mill or factory, as contrasted with work done on
new construction
was obtained by him on June 26 through his own efforts;
that his employment there terminated July 14, 1972; and
that he obtained a job at C & K Electric on July 26, 1972,
through reference by the Union. The Union's records do
not show a termination date for this job but Migneault
testified that he worked for C & K until September 1972.
The union record does not show any further referrals for
Migneault. After leaving C & K, Migneault testified, he
found a job at Providence College6 which lasted 2- 1/2 to
3 months and terminated a few weeks prior to the trial of
this case.
The Union's records contain two applications for mem-
bership filed by Migneault, one dated March 1, 1972, and
one dated May 12, 1972.
D. Contentions of the Parties
The General Counsel contends:
1. That the issuance of permit cards to nonmembers of
the Union, which stated that they are prohibited from
working overtime without the permission of the business
manager of the Union, constituted unlawful discrimination
against nonmembers.
2. That the Union failed to classify in group I the appli-
cants entitled by the contract to be so classified but re-
stricted class I to members of the Union and by preferring
them in referrals discriminated against nonmembers.
3 That the Union discriminated against Migneault spe-
cifically by refusing to permit him to take its examination
and thereby become a member of class I; by refusing to
refer him to employers who had requested the referral of
applicants; and by causing or attempting to cause those
employers to refuse to hire him.
Respondent, making no reference to the manner in
which the referral system was operated, contends that the
record shows that the Union did not, in fact, discriminate
against Migneault in making job referrals.
E Discussion and Conclusions
1. The operation of the referral system
The record contains several descriptions of the operation
of the referral system during the period since January 19,
1972, including the one set forth in the contract . These will
be discussed in turn.
a. The referral system in the contract
As noted above, the contract specifies that group I shall
consist of men with 4 years' experience, who live in the
defined local area, who have passed the examination given
by an IBEW local, and who have worked under the
Union's contract for 1 year of the past 4; that group II
shall consist of men with 4 years' experience who have
passed an IBEW examination; that group III, shall consist
of men with 2 years' experience, who are residents of the
6 Mtgneault did not name the contractor on this job and Migneault's
name does not appear, for any period in late 1972 or early 1973, on any of
the lists of employees which were submitted by certain contractors as evi-
dence in this case
LOCAL UNION 99, IBEW
defined local area, and who have worked under the union
contract for 6 months of the past 3 years; and that group
IV shall consist of men who have "worked at the trade"
more than 1 year.' The testimony of both Poland and
Stromberg leaves no doubt that these requirements were
almost completely disregarded.
The contract provisions requiring the listing of appli-
cants, by groups, in the order in which they register their
availability for employment, and requiring that the referral
procedure be posted in the union office, were similarly dis-
regarded in whole or in part.
b. The referral system as operated by Poland
James Poland was business manager of the Union from
1963 until July 24, 1972, when he was succeeded by Rich-
ard E. Stromberg.8 In describing his method of operating
the referral system, Poland testified that he classified the
applicants for employment into three groups- in the first
group he placed the members of Local 99; in the second
group he placed members of other IBEW locals; and, in
the third group, he placed "permit men," i.e., nonmem-
bers.9
Applicants for employment through the Union's referral
system, Poland testified, included any State-licensed elec-
tricians who came into the office and signed the list which
he kept and their names appeared according to the dates
and in the order in which they were signed He testified
that he maintained only one list and that, in making refer-
rals, he did not discriminate between members and non-
members but assigned the job to the person highest on the
list who was in the office when the request came in. If there
was no applicant in the office and the contractor needed a
man at once, Poland would suggest that he hire a man "off
the street," i e., not through the Union, and then notify the
Union, giving the name of the man hired.10 If help was not
needed at once, Poland testified that he would refer the
next man on the list who came into the office or telephoned
him about a job. If, however, there were several applicants
in the office, those highest on the list would be referred for
employment, I I and the others urged to seek jobs on their
own. This same advice was given to applicants who came
to the office in search of employment when there were no
requests for help.
7 The complaint does not allege, and the General Coun,el does not con-
tend, that the referral system described in the contract is in any way viola-
tive of the Act
9 During the 6-week period between the election on June I I and the
changeover , Poland testified that he was out ill for 2 weeks There were no
occurrences during the interim period making necessary any findings con-
cerning the identity of the person in effective control of the referral system
during that time
9 While Poland referred , at another point in his testimony , to members of
other locals as "permit men," this reference appears to have been based on
the fact that, when referring those men for employment , he gave them the
Union's "permit" cards
10 Poland testified that he never utilized the contract provision which per-
mitted him to substitute an applicant who had applied through the referral
system for the man hired "off the street "
ii In making these referrals , Poland testified that he would read to the
contractor the name of the man then in the office highest on the list but that
the contractor would sometimes reject that man, or even every man so
suggested, and would then be advised to hire "off the street "
731
This method of making referrals, Poland testified, was
the only one he could follow , since a nonunion man on the
list might obtain ajob with a nonsignatory employer and it
was impossible for the Union to know, unless those appli-
cants again came to the office in search of employment,
whether they were still out of work.
While Poland testified that he was familiar with the pro-
visions of the contract, his testimony as a whole and sever-
al specific admissions undercut this claim so far as the re-
ferral provisions are concerned. Moreover, Poland admit-
ted that the contract requirement that the referral rules be
posted in the Union's office was never observed.
It is clear that Poland's separation of applicants into the
three groups he described did not conform to the contract
provisions on the subject but his unconditional testimony
was that he referred out applicants only if they were in the
union office when requests were received and that he re-
ferred them in the order of their appearance on the list.
Since he also testified that there was only one list, upon
which union members, members of other locals, and non-
members appeared strictly in the order in which they affix-
ed their names,12 there is no evidence in his testimony that
the referral system which he operated discriminated in fa-
vor of union members.
The only other testimony reflecting on Poland's opera-
tion of the referral system was that of Migneault, who testi-
fied that between February 18, 1972, when he was termi-
nated at Crawford, and July 24, 1972, when Poland's term
expired, he went to the union office once or twice a week,
stayed around for about half an hour talking with Po-
land 13 about job possibilities in the admittedly depressed
state of the local construction industry, and passing the
time with other applicants for employment. There was no
testimony by Migneault that anyone was ever referred for
employment from the union office while he was present
during this interval and Poland testified that he could not
recall having referred out anybody at all during the period.
Although Poland conceded that Crawford called him and
asked for some men around June 20, he testified that
Crawford wanted the men "within the hour"; that there
were no applicants in the office at the time; and that he
hadn't seen Migneault for "two or three weeks."14 When he
found the job at Lighting Service, Migneault testified, Ed-
ward Sullivan, Jr., its president, sent him back to the union
office for a formal referral but Poland instructed him to
take the fob and have Sullivan send the usual notification,
which was done.
In construing the effect of Section 8(b)(1)(A) on exclu-
sive hiring agreements-which this clearly was-the Board
and the courts have condemned practices which favor or
12 No copy of any version of the list in effect during Poland 's tenure was
produced by either side It is clear that the "list" was a concept which was
temporarily evidenced by successive pieces of paper
Migneault , referring to this same period at another point in his testimo-
ny, stated that his stay at the office depended upon how busy Stromberg
was Since it is not disputed that Stromberg was not at the union office until
shortly before he took over as business manager late in July, this is one of
several reflections on the accuracy of Migneault's recollection
14
Migneault testified that when he visited the office and was told by
Poland that there was no pending requests for men , he went out and found
the job with Lighting Service The record shows that the date of this was
June 26
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminate against applicants for employment on the ba-
sis of membership in or activities connected with the union
since such discrimination would restrain or coerce appli-
cants in their exercise of Section 7 rights. However, prefer-
ences based upon other criteria, not related to union mem-
bership or activities, have been held not proscribed by the
section. Thus, it has been held not unlawful for a union to
seek or grant preference in employment to "local men"; 15
to applicants for employment living in the area covered by
the union's collective-bargaining contract;16 to persons
who devote their entire time to the trade: 17 or to those who
have passed an examination for competency given by the
Union. 18
In view of the manner in which the referral system was
operated during Poland's tenure, it cannot be said that the
Union's requirement, that an applicant for employment-
member or nonmember- be in the union office at the time
of the contractor's request for a man discriminated against
nonmembers of the Union. Accordingly, I find that the
General Counsel has failed to establish that the referral
system at that time coerced or restrained any person in the
exercise of rights guaranteed by the Act or that it discrimi-
nated against Migneault in particular.19
The permit card used during Poland's tenure, which stat-
ed that the bearer could not be permitted to work overtime
without permission from the Union's business manager, is
alleged by the complaint as violative of the Act. The record
shows, however, that the card did not normally come to the
attention of the employer; that it was discontinued by
Stromberg when he took over on July 24, 1972; and that
there is no evidence that this provision was ever invoked.
There appears to be no valid reason, under these circum-
stances, for detailed discussion concerning it or for an ad-
judication of its validity under the Act. This allegation of
the complaint, therefore, will be dismissed as moot.
c. The referral system as operated by Stromberg
Stromberg, as the current business manager and custodi-
an of the Union's records, gave a description of the referral
system under his administration that was fuller and, in
some respects, different from its operation under Poland.
Stromberg conceded that, in his campaign to wrest the of-
fice from Poland, one of the issues which he exploited was
concerned with "permit men," and that he said "[t]hey
15 Bricklayers, Masons, etc, Union No 28 (Plaza Builders, Incorporated),
134 NLRB 751 (1961)
16 Metropolitan District Council, United Brotherhood of Carpenters, (George
H Stump) 194 NLRB 159 (1971)
7 New York Typographical Union Number Six (New York Times Co), 144
NLRB 1555 (1963), enfd sub nom Lawrence F Cafero v N L R B, 336 F 2d
115 (C A 2, 1964)
is National Electrical Contractors Association (Hudson-Bergen Division,
etc, 190 NLRB 196 (1971), review denied 457 F 2d 871 (C A 3, 1972)
1 Poland's group placement of applicants for employment, if shown to
have been used in making referrals, would have been discriminatorily favor-
able to union members and violative of Section 8(b)(1)(A) There is, howev-
er, no evidence that he ever preferred, from among the applicants for em-
ployment in the union office when a request came in, a union member over
a nonmember who had signed the unemployment list at an earlier date
While Poland's testimony concerning group placement raises a suspicion
that he may have used it in making Job referrals, there is no evidence that it
was ever so utilized during the relevant period
should be put in their group and go by group procedure."
The composition of the groups, as described by Strom-
berg,20 was as follows: in group 1, he placed members of
the Respondent and persons not members, but who had
passed the examination given by Respondent and were
awaiting admission into the local; in group 2, he placed
members of other IBEW locals and persons who had
passed the examinations of other IBEW locals; and, in
group 3, he placed nonunion applicants generally?' Strom-
berg referred to all of the applicants from employment in
groups 2, 3, and 4 as "permit men."
Although Stromberg stated that the classifications he de-
scribed were the same as those set forth in the contract, it is
obvious that this is untrue. The record shows, and I find,
that Stromberg classified applicants for jobs in the groups
he described and not as prescribed in the contract.
While the Union's "referral list" was, as stated above,
really an idea rather than a physical object, it is obvious
that the sheets of paper on which it appeared at particular
times constituted evidence of its contents at those times.
The only copy of the list that was produced was the one in
existence at the time of the trial of this case and Stromberg
testified that lists prior to the current one were always de-
stroyed. This list, therefore, Stromberg's testimony, and the
other union records in evidence are the principal sources of
information concerning Stromberg's operation of the refer-
ral system.
Whenever a qualified person first came to the union of-
fice seeking employment through the Union's referral sys-
tem, Stromberg testified, he would have the applicant write
his name and telephone number on a slip of paper; he
would then question the applicant or consult the union
records to determine the group to which the applicant be-
longed and he would write that designation on the same
slip of paper; and he would then give the slip to the office
secretary who would place the name on the "out of work"
list which Stromberg kept on his desk. When referred out,
the applicant's name would be crossed out. The list re-
ceived in evidence is the one, Stromberg testified, that was
on his desk on Friday, May 11, 1973, the last working day
before the opening of the trial of this case.
The list consists of four pages of ruled paper and all the
writing on them is in the same hand, which Stromberg tes-
tified was that of the office secretary. At the top of the first
page is written "Group #I"; there are 24 names on it, each
on a separate line; and those on the 14th and 15th lines
have lines drawn through them. At the top of the second
page there is written "Out of Work List," "as of 4/27/73,"
and "Group #2." On this page there are 10 names , each on
a separate line. The third page is headed "Out of Work
2"These descriptions by Stromberg varied at different points in his testi-
mony The compositions here set forth are based upon the descriptions
supported by documentary evidence or the weight of the testimony Strom-
berg was an evasive witness , his testimony contained many internal contra-
dictions, and I do not regard him as a credible witness
21 In describing group 3, Stromberg said that it consisted of applicants
who lived outside Local 99's geographical area and he did not state which
applicants were placed in group 4. While the evidence , as a whole, indicates
that Stromberg's operation placed nonunion applicants living inside Local
99's geographical jurisdiction in group 3 and nonunion applicants living
outside that area in group 4, he kept a single referral list labeled "Group 3 "
The confusion in the evidence on this point, however, does not affect the
decision herein
LOCAL UNION 99, IBEW 733
List" and "Group #3." Each of the 28 lines on this page
bears a name and a date, and the order is based upon these
dates, the oldest-"12/18/71"-being at the top of the
page. The fourth page is a continuation of the third; there
are three names on it and the last name carries the date
"5/8/73" This date, Stromberg testified, is the date when
the applicant, after having had his employment terminated,
appeared at the union office to seek employment.
Migneault's name appears on the seventh line of the group
3 list, with the date "9/14/72" next to it. In explanation of
the two names crossed out on the group 1 list, Stromberg
testified that these two union members were in the office
when a call came from a contractor asking for two men
and that he sent these men over
Stromberg further testified that these four pages had
been copied, about April 27, 1973, from an older set of
pages on which many of the names had been crossed out
and that it was the office practice to recopy the pages
whenever a large number of the names had been crossed
out and the sheets had become dirty and worn.
Additional union records used in the operation of the
referral system included the card index of members and,
filed separately, individual cards for every person who had
sought and obtained employment through the referral sys-
tem for many years 22 Two of these cards are in evidence:
one for Migneault and one for a man named George H.
Lowe, Jr., who is discussed later. Migneault's card is white;
it was prepared during Poland's tenure and it has typed, on
its face, the word "Permit." Below that are Migneault's
name, address, and social security number; on the reverse
there are entries in three columns which are entitled "con-
tractor," "started," and "ended." The entries on the back
of Migneault's card show this information for the jobs he
obtained through the referral service 23 commencing May
29, 1967, and ending with an entry "C. K. Electric"; the
date "7-26-72" in the "started" column, and nothing un-
der "ended." This is the job to which, Stromberg testified,
he referred Migneault only 2 days after becoming business
manager. The card for Lowe is a pink one, prepared during
Stromberg's tenure,24 and bears, on its face, Lowe's name,
address, social security number, and telephone number.
The entries on the reverse-the columns are not titled but
they are obviously the same as those on Migneault's card-
show that he was employed at Bell Electric until November
29, 1972; that he was referred to an employer designated as
"Vi" and worked from "2/73" until "2/73"; and that he
was referred to Smargon where his employment com-
menced March 12, 1973, and, so far as this card shows, has
not been terminated.
The operation of the referral system, of course, was
based upon requests by contractors for men. Sometimes, it
22 Stromberg testified that some of these cards went back to 1941 but it is
not clear whether the very old ones had been originally prepared for use in
the referral system
23
One entry, the job with Lighting Service which started June 26, 1972,
and has been mentioned above, carries the parenthetical notation "got own
job „
24 Stromberg testified that currently these cards, as well as the permit card
which he prepared, are on pink paper stock to differentiate the records
initiated under his administration from those used during prior administra-
tions
is clear from the record, the requesting contractor specified
some particular qualifications that he considered necessary
for the job: certain men, generally the older ones, could not
be expected to work on high structures or scaffolding, in
ditches, or on jobs requiring the handling of heavy materi-
als. At those times, Stromberg testified, he might telephone
someone he felt could meet the requirements. At other
times, contractors would ask the name of the man to be
referred and might reject him, as permitted under the con-
tract. Apart from these special circumstances Stromberg
testified that, if the request for a man or men was an urgent
one, he would send any applicant who was in the office,
regardless of his group assignment or his place on the list,
but that, of those in the office, he would send the man or
men highest on the list. If there was no one in the office, he
would send out the first man or men who came in.
Most of the time, as appears from the testimony of the
contractors, requests for men are made I or more days
before they are needed on the job. On these occasions,
which constitute the great majority of job referrals, Strom-
berg testified that he observed the contract; that he went
by the list and that he gave preference to men in group 1,
usually calling them on the telephone to inform them of the
proposed referral. Only if no man in group 1 or 2 was
available, he testified, would he send out an applicant from
group 3 who happened to come into the office.
From all of Stromberg's testimony, despite its internal
contradictions and his evasiveness as a witness, it appears
that he was attempting, in a general way, to operate the
contract referral system as he understood it and that his
referral of any available applicant in group I or 2 before
referring those in group 3 was done deliberately and with
assurance that he was properly administering the contract.
The critical flaw in Stromberg's conduct of the referral
system, however, is that his failure to follow the contract
provisions in assigning applicants to the groups as de-
scribed in it created a situation in which the system he
operated was not the one provided by the contract.
The contract's classification of applicants into groups
based on competence, local residence, experience in the
trade, and the Union's preferences in referral according to
those classifications would not, as noted above, constitute
coercion or restraint of job applicants in their exercise of
rights guaranteed in Section 7 of the Act; that is, their right
to refrain from becoming members of the Union. But by
ignoring the terms of the contract and classifying in group
I only members of the Union-plus successful applicants
for admission into the Union, a point discussed below-
and then observing the contract by giving preference to the
applicants in group 1, the Union effectively preferred its
members in making job referrals. This preference constitut-
ed restraint and coercion of nonmembers in their exercise
of rights guaranteed in Section 7 and was an unfair labor
practice proscribed by Section 8(b)(1)(A) of the Act 25
2. Other issues
While the foregoing facts disclose a violation of the Act
25 Local Union No 269, International Brotherhood of Electrical Workers, et
al, 149 NLRB 768 (1964), enfd 357 F 2d 51 (C A 3, 1966)
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring a remedial order, there are several subsidiary is-
sues presented herein . In line with the undisputed testimo-
ny that contractors, in requesting that applicants be re-
ferred for employment, sometimes stated particular re-
quirements or rejected specific applicants, the Union
introduced evidence that Migneault's work on a job for
United Electric in 1968 was unsatisfactory and that his
interference with the welders on a job at Lighting Service
caused a flash resulting in injury to him. The record shows
that Migneault worked for Lighting Service again after the
incident and the official of United Electric conceded that
he had forgotten about Migneault's poor work until re-
minded about it, a few days before the trial, by the Union's
business manager. There is no evidence, however, that on
any occasion when the Union referred Migneault, any con-
tractor refused to accept him. Accordingly, there is no issue
here that requires resolution.
In addition to his placement of union members in his
group 1, Stromberg testified that this group included nine
men who had, in March 1973, passed Local 99' s examina-
tion and were awaiting admission into the Union. There
was testimony that, contrary to the provisions of the Inter-
national constitution and Local 99's bylaws requiring that
the examining board meet quarterly to examine applicants,
there had been, prior to the examination held in March
1973, no examination since 1969. Stromberg testified that
application to take the test is made by application for
membership in the Union but he could not explain how the
examining board of the Union, in March 1973, chose the 9
men to take the test out of about 200 applications on file,
including Migneault's. He could not, moreover, explain
how the examining board had made its choices for any of
the other examinations given in his experience but he con-
ceded that George H. Lowe, Jr., one of those chosen,
whose employment card is described above, is his brother-
in-law. No determination is required on this point because,
under the proviso to Section 8(b)(I)(A), the Union's right
to prescribe rules with respect to the acquisition or reten-
tion of membership is not impaired by that section. Only
where, as here, union membership, or the lack thereof, is
used by the Union wn a manner that, it can be reasonably
inferred, restrains or coerces any person in his employment
relationship, does the proscription of this section come into
effect-and this has been found 26
Although the complaint alleges that the Union caused,
or attempted to cause, Crawford Electric and Lighting Ser-
vice to discriminate against Migneault in violation of Sec-
tion 8(a)(3) and that the Union thereby violated Section
8(b)(2) of the Act, there is no evidence that either of them,
or any other employer utilizing the referral system, had any
knowledge of the improper manner in which the Union
was operating it 27 or that any effort was made by the
Union to cause either of those employers to discriminate
against Migneault.28
26 The Union placed the applicants who had passed its examination in the
preferred group with its members and they have been discussed herein on
that basis The order recommended herein prohibits preference both to
members of the Union and those who have passed its examination Accord-
ingly, it appears unnecessary to deal further with the Union 's method of
choosing the persons to whom it gives its examination
27 See Local Union 268, IBEW, et al, supra
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON INTERSTATE
COMMERCE
The activities of the Union set forth in Findings of Fact
II and E, above, occurring in connection with the opera-
tions of the Association described in Finding of Fact I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
IV. THE REMEDY
It has been found that, since July 24, 1972, the Union
has registered in group I under the contract only union
members and certain applicants , that it has given prefer-
ence in job referrals to members of that group, and that it
has thereby operated the referral system in a manner
whose foreseeable consequence was restraint and coercion
of applicants for employment in their exercise of rights
guaranteed under the Act. Accordingly, I shall recommend
that it cease and desist from such conduct.
Since the Union's use of the foregoing method of regis-
tering applicants for employment in group I and giving
them preference in referrals constituted an unfair labor
practice violative of Section 8(b)(1)(A) and deprived Roval
R. Migneault of employment, I shall recommend that the
Union make him whole for such loss of employment. In
making Migneault whole, backpay shall be computed on a
quarterly basis and shall bear interest at 6 percent per an-
num, as prescribed in P. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1963).
If the Union continues to operate a referral system, I
shall recommend that it keep adequate records of the de-
tails of its operation and that it shall post in its office a
description of the manner in which the referral system is
operated.
Upon the foregoing findings of fact, I reach the follow-
ing:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Sections 2(5) and 8(b) of the Act.
2. Since July 24, 1972, Richard E. Stromberg has been
business manager of the Union and its agent within the
meaning of Sections 2(13) and 8(b) of the Act.
3. Lighting Service, Crawford, and some members of the
Association are employers engaged in commerce within the
meaning of Section 2(6) of the Act.
4. Lighting Service, Crawford, and the Association have
collective-bargaining contracts with the Union containing
a referral system making the Union the exclusive source of
employees for those employers.
5. By giving preference in referrals to members of the
28 The incident involving Lighting Service occurred during the adminis-
tration of Poland and it has not been found that he operated the referral
service in an improper manner Moreover , Poland raised no objection to
Migneault's employment with that company and he was , in fact, employed
by it
LOCAL UNION 99, IBEW 735
Union and to persons who have passed the Union 's exami- unfair labor practice within the meaning of Section
nation on the basis of applications for membership in the 8(b)(1)(A) thereof.
Union, the Union has restrained and coerced Roval R. 6. The said unfair labor practice is an unfair labor prac-
Migneault and other persons in their exercise of rights tice affecting commerce within the meaning of Section 2(6)
guaranteed in Section 7 of the Act and has committed an and (7) of the Act.
[Recommended Order omitted from publication.]