Local Union No. 456, Electrical Workers, AFL-CIODownload PDFNational Labor Relations Board - Board DecisionsJun 29, 1970183 N.L.R.B. 1277 (N.L.R.B. 1970) Copy Citation LOCAL UNION NO. 456 , ELECTRICAL WORKERS AFL-CIO Local Union No. 456 , International Brotherhood of Electrical Workers, AFL-CIO and James Palmieri and New Brunswick Division , New Jersey Chapter, National Electrical Contractors ' Associa- tion, Inc . Case 22-CB-1519 June 29, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 2, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief and the Respondent filed an answering brief. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. ' Without adopting the Trial Examiner's exposition of the decision in Miranda Fuel Co , Inc, 140 NLRB 181 , enforcement denied 326 F.2d 172 (C A 2), we agree with his finding that there was a failure of proof in sup- port of the alleged violation of the Act We note in particular the Respon- dent's history of passing over other individuals on the referral list in all four groups; and that Palmieri was not passed over on the referral list for any job that he was qualified to perform , for discriminatory reasons . The record contains no evidence that once Palmieri made known to Marchitto his desire to be referred to a particular job, Marchitto refused to refer him because of his history of taking his differences with Respondent , its sister local, and its parent organization , to the Board The record does indicate that , on numerous occasions , Palmieri was denied referral because the em- ployers had specifically requested that Palmieri not be referred because of his unsatisfactory performance on prior jobs Finally , there is evidence that between July 1, 1963, and June 2, 1969 , Palmieri was referred to 27 jobs, notwithstanding that the Respondent received at least a dozen complaints about his unsatisfactory performances on the jobs , and that he was discharged from at least 3 of those jobs in 1968 for alleged incompetence and was therefore subject to the "delisting " procedures in the contract TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 1277 SIDNEY SHERMAN, Trial Examiner: Copy of the original charge herein was served on Respondent on June 19, 1969.' The complaint issued on December 5, and the case was heard on January 20, 1970. The only issue litigated was whether Respondent violated Section 8(b)(1)(A) and (2) by failing to refer Palmieri for employment in ac- cordance with the provisions of its hiring hall agree- ment. After the hearing briefs were filed by the General Counsel and Respondent.2 Upon the entire record,3 including observation of the demeanor of the witnesses, the following findings and conclusions are adopted: 1. JURISDICTION New Brunswick Division, New Jersey Chapter, National Electrical Contractors' Association, Inc.4 is an incorporated association of electrical contrac- tors operating within the State of New Jersey. Such association is authorized to, and does, represent its members in the negotiation of collective-bargaining contracts. Various members of NECA, including Acme Electrical Company, Inc. (hereinafter called Acme) and Comet Electrical Contractors, Inc. (hereinafter called Comet), annually purchase more than $50,000 worth of goods from local sup- pliers, who receive such goods directly from out-of- state sources. It is found that NECA is an employer engaged in operations affecting commerce. II. THE UNION INVOLVED Local Union No . 456, International Brotherhood of Electrical Workers, AFL-CIO, herein called Respondent , is a labor organization under the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The sole issue raised by the pleadings was whether Respondent violated Section 8(b)(1)(A) or 8(b)(2) of the Act by its admitted refusals to refer Palmieri for employment. A. Sequence of Events In 1958, Palmieri passed a journeyman's ex- amination administered by a local of the IBEW in Miami, Florida . In 1967, he became a member of Local 269, IBEW in Trenton, New Jersey, but was suspended by that local and was still suspended at ' All dates are in 1969, unless otherwise shown. ' Counsel for NECA Joined in Respondent 's brief. ' For corrections of the transcript and certain rulings on evidence, see the order of February 24, 1970, and the telegraphic order of March 20, 1970 ' Hereinafter referred to as NECA 183 NLRB No. 130 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time of the instant hearing. Also, after a hear- ing, at which evidence was offered concerning Pal- mieri's discharge from five jobs, he was in 1968 barred from that Union's hiring hall.' Meantime, in 1963 he had registered with Respondent in New Brunswick for referral to employment, pursuant to a hiring hall arrangement between Respondent and local electrical contractors. In 1967 Respondent ex- ecuted a 3-year contract with NECA renewing this arrangement , which contract recognized Respon- dent as the exclusive, primary source of referrals, provided for the classification of applicants into four "Groups" on the basis of journeyman status, experience, place of residence, etc.,-and required that Respondent give priority in referrals to all ap- plicants in a particular group over those in a lower rated group, and that, as between applicants in the same group, preference be given to the one who had first registered for employment. Thus, if an ap- plicant who qualified for assignment to Group I re- gistered on April 1, he would be entitled to referral ahead of any other Group I applicant who re- gistered after April 1, and ahead of any Group II applicant, regardless of his registration date. The above contract provided for but two excep- tions to this order of referral, the only one here relevant being the following: 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. No issue is raised as to the validity of the forego- ing provisions, but only as to the legality of Respon- dent's action in not referring Palmieri between June 2 and July 7, whilst referring other applicants in the same group who had registered for work after he did. Palmieri was assigned to Group II, in recognition of the fact that he had passed a test as a jour- neyman and had 5 years' experience in the trade. Between July 1, 1963, and June 2, 1969, Palmieri was referred by Respondent to 27 jobs,' and it was not disputed that Respondent received from em- ployers at least a dozen complaints about his per- formance on those jobs, and that in 1968 alone he was discharged from at least 3 of those jobs. He became unemployed on May 29, 1969, and, ° Although notified thereof, Palmieri did not appear at that hearing ° Palmieri admitted only that he was referred by Respondent eight or nine times . However, I credit the testimony of Marchitto , Respondent's business manager , concerning 27 referrals, since it was documented by reference to specific dates, and since I was , in any event, more favorably impressed by Marchitto 's demeanor and candor. ' General Counsel 's Exhibit 3 lists 36 cases in which charges were filed by Palmieri. In one of these cases alone (Case 22-CA-347- 1-127) it is evident from the designation of the case that 127 charges were filed and it is clear that in another case (Case 22-CA-3438- 1-18) 18 charges were filed ° An appeal from dismissal of two other charges , filed on August 25, 1969 , was pending at the time of the instant hearing ' Another apparent exception applied to the filling of requests for ap- prentices . With regard to that matter , the contract provided only that the hiring of apprentices would be subject to the contract 's "apprenticeship although he applied for referral on June 2, and daily thereafter, he was not dispatched by Respon- dent until July 7. Meantime, Respondent was dispatching others in his group who had registered for referral later than he did. Thus, on June 10, although Palmieri was first in line for referral on the basis of his registration date, he was passed over in favor of another Group II applicant. This hap- pened again on various dates in June and the first 3 days of July. He was thereafter referred on the only two subsequent occasions that he applied (July 7 and 28). The record shows, also, that between February 24, 1965, and August 25, 1969, Palmieri filed with the Board a total of 179 charges," all of which were either dismissed by the Board' s Regional Director or withdrawn by Palmieri, and only in the instant case was there a reversal of the Regional Director's action by the General Counsel, on appeal.' Most of these charges alleged discrimination and other violations by employers. There were, in addition, a number of charges against Respondent's parent body and its sister local, Local 269, and two charges against Respondent, itself, one filed on May 21, 1968, and the instant charge, filed on June 19, 1969. B. Discussion 1. Respondent's reasons for not referring Palmieri As already noted, the contract prescribed an order of referral based on an applicant's group and his out-of-work seniority within his group, subject, inter alia, to the "special-skills" exception.' The contract reserved to the employer the right to re- ject any applicant, but stipulated that any one so re- jected would retain his position on the register. The contract provided, also, that, after an applicant had been discharged three times for incompetence or insubordination, Respondent was entitled to remove his name permanently from the register, subject to the applicant's right to appeal to an "Ap- peals Committee" established by the contract. It is clear that, although Palmieri received no referrals between June 2 and July 7, later regis- trants in his group were referred to journeyman work10 on the following dates: June 4, 5, 10, 12, 16, 18, 19, 25, 26, and 30, and July 1, 2, and 3.11 It provisions ," which, inter alto , prescribed the ratio of apprentices to jour- neymen General Counsel 's Exhibits 4A and 4B show that men were in fact assigned to work as apprentices who were not within any of the four groups defined in the contract It is accordingly inferred that , although not so specified in the contract , only applicants for work as journeymen were as- signed to those groups Presumably, this was because it was assumed that individuals competing for journeyman jobs would not be interested in ap- prentice work because of the large pay differential At any rate, the General Counsel does not take issue with the failure to offer Palmieri work as an apprentice 10 See preceding fn In addition , the record shows the referral to such jobs of persons other than Palmieri on June 18 ( Hoeffner ), June 20 (Guscott ) and June 30 ( Pearson ), but no identification of the group to which they were assigned. See General Counsel's Exhibit 4B LOCAL UNION NO. 456, ELECTRICAL WORKERS AFL-CIO should be noted at the outset, however, that Respondent's records in evidence show a general pattern of skipping over registrants other than Pal- mieri. Thus, on June 4, when Palmieri was eighth on a list of 25 applicants, Respondent referred the 2nd, 6th and 23rd man; and on June 30, when there were at least 15 Group II registrants, headed by Palmieri, and at least 9 Group IV registrants, Respondent referred numbers 5, 8, and 12 on the Group II list and the lowest man on the Group IV list. Yet, the only issue litigated by the General Counsel was whether Respondent violated the Act by passing over Palmieri. While it was the General Counsel's privilege to confine himself to the case of Palmieri, the foregoing general pattern of skipping over applicants militates against one of the theories advanced by the General Counsel at the hearing12 -namely, that Respondent singled out Palmieri for disparate treatment in the matter of referrals because of his longstanding feud with Respondent's sister local or because of the charge filed by him against Respondent on May 21, 1968. Moreover, as to this theory, it may be noted that not only was there no evidence of any denial of referrals to Pal- mieri before June 4, 1969, but the record affirma- tively shows that between May 21, 1968, and June 4, 1969, Respondent referred him 16 times . Finally, although, as discussed in more detail below, it was entitled to invoke the contractual "delisting" procedure, which would have barred Palmieri en- tirely from using its referral facilities, Respondent refrained from doing so. In view of this, I do not deem the evidence to preponderate in favor of a finding that Palmieri was singled out for disparate treatment in the matter of referrals or that his dif- ferences with Respondent or its affiliates was a fac- tor in the treatment accorded him. Another theory, on which the General Counsel mainly relied at the hearing, was that, whether or not Palmieri was passed over for reasons governing applicants generally, such passing over was unlaw- ful because it contravened the provisions of the contract as to the order of referral. So far as per- tinent , these provisions , as we have seen , required that referrals within a group be made in order of re- gistration, except when special skills were required. With regard to some of the occasions that Palmieri was passed over, Respondent relied at the hearing on the foregoing "special-skills" exception. Thus, the referral of Olson on June 10, in preference to Palmieri, was explained by Respondent 's business manager , Marchitto, on the ground that the job But apparently abandoned in his brief " It is inferred that the preference shown McGumess over Palmieri on June 5 was also based on the "special -skills" exception , since Respondent's records contain the notation "welder" next to McGumess' name and show that nine men besides Palmieri were passed over to reach McGumess " As shown by General Counsel's Exhibits 4A and 4B and the testimony of Marchitto , other instances of this occurred on June 4 (Holmes), June 16 (Petti and Lubeck ), June 17 ( Smith ), June 26 ( Woodward ), June 30 (Catalano and Blair), July 1 (Wegner and Gilbert ), and July 3 (Wortley) "The General Counsel attacks Marchrtto 's credibility at this point 1279 called for the special skills of a lineman , which Pal- mieri was not believed to possess , and there was no attempt at the hearing to show that he did. The referral of Decker, on June 16, in preference to Palmieri was explained on the ground that the job called for one, like Decker, who had special com- petence in working on electrical controls. There was no evidence that Palmieri had such com- petence, and the bona fides of this reason is con- firmed by the fact that to reach Decker Respondent passed over three others besides Palmieri. Similarly, the referral of Kerins in lieu of Palmieri on June 18 was attributed, inter alia , to the former's special skill as a rigger. Since the foregoing testimony was not contradicted, I credit it and find that in the in- stances cited above Respondent passed over Pal- mieri for a reason authorized by the contract.13 However, it is clear, also, that on a number of oc- casions Palmieri was denied referral because the employer (a) asked for another man by name or (b) had on a prior occasion barred any further referral of Palmieri. An instance of (a) occurred on June 25, when nine men, including Palmieri, were passed over to reach Collins, who had been specifi- cally requested by the employer.14 marchitto ex- plained, and I find, that it had been Respondent's practice since the inception of the referral system in 1962 to honor employer requests for particular men, regardless of their standing on the list. According to Marchitto, an instance of passing over Palmieri because of the employer's previously registered objection to him occurred on July 3, when he was not referred to Comet because in March 1968, in discharging Palmieri, Comet's general foreman had told Marchitto that Palmieri would never be hired by Comet again .15 Likewise, on June 18 and 30, and July 2, Palmieri was denied referral to Acme because of a specific request by Acme, in terminating him on May 29, that he not be referred again . 16 Here, again , Marchitto ex- plained, and I find, that it had always been his prac- tice to honor a request by an employer that a par- ticular man not be referred. It seems that a persuasive argument can be made that the foregoing practice of honoring requests by an employer to refer, or not to refer, a particular man was justified by the aforenoted contractual provision reserving to employers the right to refuse to accept a referral, since the only alternative to the practice adopted would have been to go through the useless , time-consuming motions of referring one or more men who were certain to be rejected, However , there was no effective contradiction of such testimony, and it was in fact corroborated by Comet 's general foreman See also the testimony of Jacob, discussed below Accordingly , I credit Marchitto here. "The General Counsel would impeach Marchrtto's credibility here by pointing to the fact that he referred Palmieri to Acme on July 28 However, I credit Marchitto 's explanation that he did so because, confronted with an extreme manpower shortage , Acme at that time pleaded with him to send any available men. Moreover , Acme's superintendent confirmed that he had on May 29 instructed Marchitto not to refer Palmier again 1280 DECISIONS OF NATIONAL either because the employer had specified a preference for another man or because he had in- terdicted the referral to him of the one entitled thereto by seniority. In any case, apparently because of the foregoing considerations, the General Counsel in his brief does not challenge the propriety of the foregoing practice as applied to Palmieri. In fact, in his brief, the General Counsel appears to challenge only those refusals to refer Palmieri which were based, as the General Counsel puts it, solely on Marchitto's "subjective" appraisal of Pal- mieri's limitations as a journeyman electrician. In this category, the General Counsel places the failure to refer Palmieri to the following jobs on the dates specified: 1. June 12-The Triangle job. 2. June 16-The Maul job. 3. June 16-The Ensana job."' With regard to the last of these jobs, not- withstanding some apparent confusion in Marchit- to's testimony on this point, I credit his final ver- sion , which was corroborated by his secretary and not denied by Palmieri and, on the basis of such testimony, it is found that the job was offered to all those present in the hiring hall at the time, presumably including Palmieri, and that, because of its relatively brief duration, all of them turned it down, except Teal, who was dispatched.18 There remains to be considered the circum- stances with regard to the Triangle and Maul jobs. Palmieri was admittedly passed over on those occa- sions and there was concededly no express request by the employer that someone else be referred or that Palmieri not be referred, nor was there any special skill involved. The only reason advanced by Marchitto for not dispatching Palmieri was an ap- prehension that he would come to grief on the job. In order properly to evaluate this explanation, it is necessary to consider Palmieri's entire work histo- ry, insofar as here relevant. The record shows that between July 1, 1963, and June 2, 1969, Respondent, as noted above, had referred Palmieri to 27 jobs; that Marchitto had received at least a dozen complaints about his per- formance on those jobs; that this was more com- plaints than Marchitto had received about any other employee; that in 1968 alone Palmieri was discharged from at least 3 of those jobs for alleged incompetence; that in 1968 Respondent's sister local in Trenton struck Palmieri's name from its re- gister under the circumstances described above; and that the most common complaint against him was that he did not attend to his work, preferring to 1' In addition, the General Counsel contends that no credit should be given to Marchitto's testimony that the failure to refer Palmieri to Comet and Acme , as noted above , was due to the employer 's objections to Pal- mien and that such nonreferrals should be ascribed to Marchltto's subjec- tive judgment of Palmieri 's competence For reasons already explained, this contention is rejected See fns 15 and 16, above 11 If further corroboration of this explanation were needed , it should suf- LABOR RELATIONS BOARD engage in conversation with other employees or in other unproductive activities. Thus, Marchitto testified that the complaints about Palmieri "were to the extent that he wanted to roam around the job a lot, talk to other trades, discuss antiques, firearms and such ... and for the most part was more con- cerned about himself rather than production on the job." Jacob, an officer of Comet, who was called by the General Counsel, testified that Palmieri was twice discharged by Comet under the following cir- cumstances: He was fired the first time for not doing as he was told. You could never find him when he is on the job. The second time for the same reason. He walked around three days and nobody could find him. To pay a man $85 a day and not find him, I don't see us supporting him. When asked at the hearing whether he would now accept a referral of Palmieri, Jacob gave an emphatic, negative answer. Douglas, superintendent for Acme, testified that he twice selected Palmieri to be among the first to be laid off on a particular job because he was "holding up the men," and would "do nothing all day." Absent any contradiction thereof,1e all the foregoing testimony is credited. In the light of this history, Marchitto adopted with respect to Palmieri a policy, which he described as one of trying to fit the man into "a job that he would last." It appears from Marchitto's further testimony that he imple- mented that policy by avoiding any referral of Pal- mieri to a job where supervision was so strict that he was bound to come to grief, and by picking spots for him where his shortcomings might be over- looked. Thus, Marchitto explained that on June 12, in connection with the Triangle job, he passed over Palmieri in favor of three later registrants because the employer had just had to discharge an ineffi- cient crew that had caused him considerable finan- cial loss, and had entreated Marchitto to send him "handpicked" replacements. If one adds to this the fact that, as Marchitto credibly testified, the man sent by Marchitto on that occasion to replace the discharged supervisor specified that he did not want Palmieri in his crew because of past experiences with him, there was ample justification for believing that, if Palmieri had been referred, he either would have been rejected out of hand or would have en- joyed only a brief tenure. Moreover, the fact that such objection to Palmieri was made by the man as- signed to supervise the crew for Triangle would seem to make the case one where Respondent merely honored a request that Palmieri not be referred, with which practice the General Counsel, as noted above, professes to have no quarrel. rice to note that , in addition to Palmien , Kenns and Brazier , who had pri- ority over Teal , were not dispatched that day , and the fact that Teal rere- gistered on June 18 attests to the brevity of the job 1° The only effort the General Counsel made to rebut the testimony derogatory to Palmieri was through Jacob , who, as noted above , turned out to be a damaging witness against Palmieri on the score of his competence. LOCAL UNION NO. 456 , ELECTRICAL WORKERS AFL-CIO As for the Maul job, Marchitto explained that this involved work on a nuclear facility, and that he had been advised that on a prior occasion, when as- signed to such a facility, Palmieri had run afoul of a security officer.20 According to Marchitto, he con- cluded from this that a nuclear operation was not a good place to send Palmieri. It follows that the General Counsel's entire case rests on the Maul incident, which was the only one where Marchitto cited no basis for refusing to refer Palmieri other than a "subjective" appraisal of his deficiencies. It is clear that there was nothing in the contract that expressly authorized Respondent to deny referral on that ground. The General Counsel contends, moreover, that the fact that the contract prescribed a procedure for "delisting" any one who, like Palmieri, had thrice been discharged for incompetence or insubordination reflects the intent of the parties that such employees be dealt with only in that manner and not by the application of the selective referral procedure adopted in Pal- mieri's case . Marchitto's answer to this contention at the hearing was that he was reluctant, for hu- manitarian reasons, to take such drastic action against any employee, and there is no reason to doubt, nor does the General Counsel question, the veracity of this explanation.21 Accordingly, the question comes down to this: Where a contract gives a union the option of referring an employee in accordance with a prescribed procedure or barring him entirely from its hiring hall because of his work record, is it unlawful for the union to take a middle ground and adopt a policy of selective referrals tailored to his demonstrated deficiencies as an employee? The General Counsel contends that the question should be answered in the affirmative, because the selective referral policy applied to Palmieri deviated from the objective criteria prescribed by the contract. The General Counsel 's main reliance, here, is on the Miranda case,22 which will next be considered. 2. The Miranda rule Long before Miranda, the courts had developed the doctrine, initially in cases involving racial dis- crimination by unions'23 but later extended to other union conduct, that the power conferred by statute on a union to act as the exclusive bargaining representative of the employees imports a statutory S0 Palmieri did not dispute Marchitto 's testimony concerning that in- cident Moreover , Palmieri admitted at the hearing that he was discharged from still another job, at a plant of the United States Steel Corporation, because of an alleged breach of security regulations. " The General Counsel acknowledges that Respondent 's sister local suc- ceeded in removing Palmieri from its register by resort to a procedure similar to that provided for in Respondent 's contract '= Miranda Fuel Company, Inc , 140 NLRB 181, enforcement denied 326 F 2d 172 (C.A. 2). 1281 duty fairly to represent all of the employees, both in collective bargaining,24 and in the enforcement of the resulting agreement.25 At the same time, the court recognized that a "wide range of reasonable- ness must be allowed a statutory bargaining representative in serving the unit it represents, sub- ject always to complete good faith and honesty of purpose in the exercise of its discretion. "26 In its latest pronouncement on the subject the Supreme Court has defined the duty of fair representation as the "obligation to serve the in- terests of all members without hostility or dis- crimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. "27 However, until Miranda, such duty of fair representation was regarded as cogniza- ble only by the courts and not as an unfair labor practice under Section 8(b) of the Act.28 In Miranda, after agreeing with the courts that the grant to unions in Section 9 of the Act of exclu- sive representation rights imposed on them an obligation of fair representation, a majority of the Board held that the counterpart of this duty was the right of employees to fair representation-or, as the majority phrased it, the right "to be free from un- fair or irrelevant or invidious treatment by their union-" that such right was protected by Section 7 of the Act, and that any infringement thereof by a union, therefore, violated Section 8(b)(1)(A). The majority then considered whether a union also violates Section 8(b)(2) "when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee." While recognizing that there could be no violation of Section 8(b)(2), un- less the action in question encouraged membership in a labor organization, the Board majority reasoned that such encouragement is inherent in any union action which causes an employer to af- fect an individual's emoployment status, and that, absent any justification for such action in terms of some "legitimate employer or union purposes," such action violates Section 8(b)(2). Turning to the facts in Miranda, the Board majority found that the union in that case, in response to pressure by certain members of the bar- gaining unit, caused to be canceled the seniority of one, Lopuch. The only reason cited by the union for demanding such cancellation of seniority was that Lopuch had taken an extended leave of absence, which began 3 days before the period r" Steele v Louisville & N.RR , 323 U S. 192, Tunstall v Brotherhood of Locomotive Firemen, 323 U.S. 210. " See Ford Motor Co v Huffman, 345 U S 330, Syres v. Oil Workers, 350 U S. 892 " See Humphrey v Moore, 375 U S 335 " Ford Motor Co. v Huffman, supra 21 Vaca v. Sipes, 386 U S. 171 28 /but 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designated in the contract for such a leave. Since the contract provided for forfeiture of seniority only for a late return from such a leave but not for an early departure thereon , it was found that the union 's action conflicted with the contract. The Board majority then stated: In acceding to the unjustified pressures of some employees within the unit , all of whom were union members , and thereupon causing, in violation of the contract , a forfeiture of Lopuch 's contract status in relation to the other employees in the unit , Respondent Union exceeded a legitimate union purpose in clear violation of Lopuch's right to fair and impartial treatment from his statutory representative, and it thereby violated Section 8(b)(1)(A) of the Act. The sacrifice of Lopuch to placate the other drivers does not, in our opinion, comport with the requirements of fair dealing. Accordingly, because the Union caused Miranda to discriminate against Lopuch, and the discrimination had a foreseeable effect of encouraging union membership . . . and be- cause such discrimination was in violation of the outstanding contract and was otherwise ar- bitrary and without legitimate purpose, we find that the Union thereby violated Section 8(b)(1)(A) and (2) of the Act .... [Emphasis supplied.] In dissenting , Chairman McCulloch and Member Fanning rejected the rationale of the majority that the duty of fair representation imposed on unions by Section 9 of the Act creates a right protected by Section 7 of the Act, the infringement of which by a union necessarily violates Section 8(b)(1)(A). With respect to various precedents cited by the majority in this regard , which involved discrimina- tion because of union membership or race, the dis- sent stated: The reduction of Lopuch's seniority for his absence from work was a far cry from the obvi- ous and invidious discriminations that were the subject of the cited cases. On the 8 ( b)(2) issue, the dissent rejected the "u- narticulated" premise of the majority that "any ar- bitrary action taken by a union which affects an employee 's employment status is , by definition, to encourage union membership and hence violative of Section 8(b)(2)." The dissent was unable to per- ceive any real distinction between the union's ac- tion in Miranda , in exercising control over Lopuch 's seniority , and the action of the union in the Local 357 case,29 in exercising control over hir- ing under a hiring hall agreement . In the latter case, the Supreme Court had rejected the Board's con- tention that vesting control of hiring in a union's hands had the natural and foreseeable effect of en- couraging union membership , and the court sanc- tioned the delegation of such control to a union under an exclusive hiring agreement . With regard to the majority 's attempt to distinguish Local 357 on the ground that the hiring hall agreement in that case had a legitimate business purpose , whereas this was not true of the union's reason for reducing Lopuch's seniority , the dissent argued that such reason was related to a legitimate objective of eliminating seasonal fluctuations in employment. Each of the three members of the court in Miran- da wrote a separate opinion . On the 8 (b)(1)(A) is- sue, the principal opinion by Justice Medina refused to read into Section 7 of the Act any pro- tection of employees against a union 's breach of the duty of fair representation imposed by Section 9. On the 8(b)(2) issue, justice Medina held that, since it benefited "union and non-union men alike," the demotion of Lopuch "could not con- ceivably have been thought to encourage union membership ." In concurring in the denial of en- forcement, Justice Lumbard, on the 8(b)(1)(A) is- sue, did not reach the question of the propriety of the Board 's expansive reading of Section 7, but re- lied solely on the view that there was insufficient evidence that the union had breached its duty of fair representation, or that it acted for any reason other than a good-faith belief that Lopuch had for- feited his seniority under the agreement. On the 8(b)(2) issue, Justice Lumbard agreed with Justice Medina that an essential element of a violation of that provision was that the derogation of the em- ployment status be based on the employee's rela- tionship to the union , a factor not present in Miran- da. In dissenting from the denial of enforcement, Justice Friendly deemed it unnecessary to pass upon the 8(b)(1)(A) issue, which he characterized as merely an " alternative ground" for the Board's 8(b)(2) finding. As to the latter finding, Justice Friendly agreed with the Board majority that the union's treatment of Lopuch was arbitrary, and that the Board was not precluded by the Local 357 case from inferring that such treatment, even though un- related to the enforcement of union obligations, would encourage adherence to the union. Thus, it appears that the only member of the court (Justice Medina) who reached the question of the legal validity of the Board 's 8(b)(1)(A) find- ing rejected it, and that a majority of the court, contrary to the Board majority, held that, in order to rule that union -caused employer action adverse to an employee violated Section 8(b)(2), it was S° Local357,1BEW v N.L.R.B , 365 U S 667 LOCAL UNION NO. 456, ELECTRICAL WORKERS AFL-CIO necessary to find that such action was inspired by the employee's relation to the union.30 Nevertheless, in later cases a Board majority (Members Leedom, Brown, and Jenkins) has reaf- firmed the position of the majority in Miranda. In those cases, Chairman McCulloch and Member Fanning have adhered to their contrary views.31 At the present time, based on their positions in the cases cited above, it appears that there are two Board members for, and two against, the Board's Miranda decision, and that it remains for the next appointee to the Board to break the deadlock. Nevertheless, and despite the court's reversal thereof, it will be assumed for the purpose of this decision that the view of the former Board majority in Miranda is controlling here. 3. Applicability of Miranda Even under Miranda,32 Respondent would be held to have breached its duty of fair representation only if it acted arbitrarily. The General Counsel contends that any action which, as here, is not authorized by the contract should be deemed ar- bitrary and therefore unlawful. However, it is clear from Miranda, itself, that arbitrary action, as the term was there used, connotes more than overstepping of contractual limits . For, in that case, although it so happened that the union 's action was deemed by them to conflict with the contract, the Board majority did not go so far as to say that any union action in breach of contract infringed on a Section 7 right, but defined the right there invaded as a right to be free from action taken by a union for reasons which were "irrelevant, invidious or un- fair." And, while, in finding a violation of 8(b)(1)(A), the majority referred to the union's derogation of Lopuch's contractual status, stress was laid on the fact that the only reason for the union's action was to placate the other union members, who would benefit by the reduction in Lopuch's seniority. This would seem to imply that improper motivation is essential to a finding of unfair representation, and that that element was supplied in Miranda by the fact that the union acted only for the purpose of ad- vancing the seniority of others at Lopuch's expense. Here, however, there was no evidence, nor suffi- 3° See Hughes Tool Company, 147 NLRB 1573 , 1591 Cf footnote 5 in the Board 's decision in the Local Union No 12, 150 NLRB 312, where the Board majority asserted that the court decision in Miranda was not adverse to the Board majority on the 8 ( b)(2) issue It would seem that , if anything was decided by the court in Miranda , it was that there could be no 8(b)(2) violation unless the alleged discriminatory action was related to the union attitudes of the discriminatee . Such holding was clearly contrary to the view of the Board majority in that case. Si Hughes Tool Co, 147 NLRB 1573, Local Union No 12, 150 NLRB 312, enfd 368 F 2d 12 (C A 5), cert denied 389 U S 837, rehearing denied 389 U S 1060 "Hereafter , unless otherwise specified, all references to "Miranda" denote the Board majority ruling in that case "There was not even any evidence as to the union affiliation of those who were referred to the Maul job, or any other job, in preference to Pal- 1283 cient warrant for inferring, that Respondent was under pressure from other job applicants, nor that it acted to advance their seniority at Palmieri's ex- pense,33 or for any reasons other than those set forth above. Any such inference would be difficult to reconcile in any case with the fact that Respon- dent made no effort to bar Palmieri entirely from its hiring hall as it was entitled to do under the con- tract. It is accordingly found that the 8(b)(1) issue under Miranda may not be resolved merely by reference to the contract'34 but rather by evaluating the totality of the union's conduct, including its motivation, in the light of its duty to refrain from "irrelevant, invidious or unfair" action. On the issue of fairness, it can hardly be said that it was less fair to Palmieri to adopt a policy of selective referrals than to exclude him entirely from the hiring hall, in accordance with the contract. Moreover, it is not clear that, on balance, the pol- icy of automatic referrals urged by the General Counsel would have operated to Palmieri's ad- vantage. While such a policy would have resulted in a speedier initial referral, Palmieri would thereby lose his position on the register, and, in case of an early discharge, which was not unlikely under the circumstances , would have to return to the bottom of the list. As against this, a policy of selective referral would mean waiting longer for a job but with a better chance of keeping it. Whether the instant action was "irrelevant" de- pends on the content of that term as used by the Board majority in Miranda. Whatever else that term may denote, it is clear that the relative efficiency of a particular employee or group of employees is not irrelevant to the employment relation. Efficiency is the key to survival of a business, on which both em- ployer and employees depend for their livelihood, and discrimination by an employer on the basis of efficiency is a classical example of permitted dis- crimination. Such discrimination does not cease to be relevant to the industrial scene because it is practiced, as here, by a union rather than an em- ployer. Nor does it cease to be relevant because the union's contract limits the extent to which it may base its actions on differences in employee efficien- cy and the union exceeds those limits. Such a con- tractual provision cannot change the facts of indus- mien " Support for this conclusion may be found in Maremont Corporation, 149 NLRB 482 , where a three-member panel agreed , albeit for divergent reasons, that the respondent union had violated Section 8(b)(2) and (I) of the Act by securing a reduction in the seniority of certain employees Although all three members agreed , in effect , with the Trial Examiner that the respondent union's action contravened the contract , they deemed it necessary to stress other grounds for finding a violation , Chairman McCul- loch and Member Jenkins relying on evidence that the union was motivated by the disaffection of the employees toward the union, and Member Leedom relying on evidence of discrimination because of race If the General Counsel 's position , as here expounded, were sound , the Board members could have simply relied on the breach of contract and there would have been no need for them to become involved in an airing of diver- gent views 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial life nor detract from the importance of effi- ciency of operations or its relevance to the vital in- terests of employers and employees. It is not clear what the term "invidious" as used in Miranda adds to "unfair" and "irrelevant." Dic- tionary definitions suggest that "invidious" may have a connotation of malice or personal hostility. 5 The fact that, so far as the record shows, Respon- dent continued to refer Palmieri regularly even after the first charge filed by him against it , and the fact that, although entitled to do so, it at no time sought to invoke against him its contractual "de- listing" procedure, amply attests to its forbearance toward him. It is concluded, therefore, that the Respondent's action herein was not unfair, irrelevant, or invidi- ous, so as to warrant a finding that it violated Sec- tion 8(b)(1)(A). We must next consider whether such action vio- lated Section 8(b)(2) of the Act, which proscribes any action by a union that causes, or attempts to cause, an employer to discriminate against an em- ployee in violation of Section 8(a)(3). The latter provision, subject to certain exceptions not here relevant, forbids an employer to encourage or discourage union activity by discriminating against employees with regard to any aspect of the employ- ment relation. It is elementary that 8(b)(2) is violated when a union causes the employer to discriminate because of an employee's union attitude. However, here, as noted above, it was not proved that Respondent's treatment of Palmieri was related to his lack of membership in Respondent or to his controversy with it or its sister local. We thus come to the further proposition, enunciated in Miranda, that any union-caused action by an employer adverse to an employee, even if unrelated to the employee's union status, violates 8(b)(2), unless such action had some legitimate business or union purpose. In Miranda, the Board majority, in deference to the s' Compare the Supreme Court's reference to "hostility" in its definition of the duty of fair representation quoted above from Vaca v. Sipes 3 Local357, Teamsters v N.L.R B 365 U S 667 J' As noted above, the ultimate violation findings in Miranda were based on both the breach of contract and the fact that the action against Lopuch was "otherwise arbitrary and without legitimate purpose ", and, the majori- ty there stressed the view that no legitimate purpose was served by reduc- ing Lopuch 's seniority for leaving work 3 days before the official start of the slack season , that the only ones who benefited by such reduction were those employees who were junior to Lopuch, and that the union thus ac- ceded to "the unjustified pressures " of such employees and "sacrifice[d l Lopuch to placate" them s' Ford Motor Co v. Huffman, supra In his brief, the General Counsel , in addition to Miranda, relies on M B Construction Co , 146 NLRB 1358, 1367, and New York Mailers ' Union, Local 6, 133 NLRB 1052, which he cites for the proposition that the "Board has consistently held that a discriminatory referral for any reason except to enforce a valid union-security provision under Section 8(a)(3), is violative of Section 8(b)( I )(A) and ( 2) of the Act unless the lack of refer- ral is pursuant to objective criteria established and spelled out in a collective bargaining agreement " While the foregoing quoted language appears in the Trial Examiner's Decision in M B Construction, it was merely dictum in that case Moreover , in affirming the dismissal of the complaint in that Supreme Court's ruling in the Local 357 case '36 recognized that a union hiring hall had a legitimate business purpose and that a contract provision, such as is here involved, giving a union exclusive referral privileges was therefore not per se violative of 8(b)(2). The General Counsel would presumably differentiate this case from Local 357 on the ground that Respondent did not follow the contract with respect to Palmieri. However, as I read Miran- da, while, as already noted, the majority adverted to the union's departure from the contract, the ulti- mate test adopted therein for the legality of union- caused action under 8(b)(2) was not conformity with contract provisions but whether such action had a legitimate business or union purpose.37 Here, the objective of the hiring hall clause was to assure a regular and adequate supply of qualified labor; and it has been found that Respondent's treatment of Palmieri was calculated to promote that objec- tive. It follows that, here, as in Local 357, and un- like Miranda, the Respondent's action was for a legitimate business purpose. It is, accordingly, concluded that Respondent acted within the "wide range of reasonableness" al- lowed a bargaining agent in serving its constituents and with "good faith and honesty of purpose in the exercise of its discretion";38 and that there was here no violation of 8(b)(1) or 8(b)(2) under Miranda.39 Moreover, even if there were such a violation, it would still be necessary to consider whether the Board has authority to grant any relief. Any finding of a violation here would have to be predicated es- sentially on the fact that the contract was breached. Had the contract authorized Respondent to con- sider efficiency as well as out-of-work seniority in making referrals, the General Counsel would no doubt concede that Respondent did not violate the Act by considering Palmieri's fitness. Thus, the gravamen of Respondent's offense is that it con- sidered that factor without any express leave to do so in the contract. This would seem therefore to be case , the Board expressly refused to adopt the Trial Examiner's "exposition of the law applicable to the case " In The New York Mailers case the Board, also, found no violation in a refusal to refer, and there was nothing in the result or opinion in that case that would support the foregoing quoted lan- guage. Throughout his brief, the General Counsel, also, stresses his concern that to permit unions to substitute subjective for objective criteria with re- gard to referrals would give them a discretion in that area which would be susceptible of abuse. However , that problem is inherent in any situation where the legality of a union 's action depends on its state of mind , and the Act is replete with such situations Thus, the burden of proving that the union did not act for a legitimate reason in cases like the one at bar would be no greater than the burden of proving that a union bargained in bad faith under 8(b)(3) or secured a discharge for discriminatory reasons under 8(b)(2) In any case , it is too late now to argue that the Board should not allow unions to base referrals on noncontractual, subjective considerations For it is well-settled that a union may impose a limit on the amount of an em- ployee 's employment, if it shows that it did so pursuant to a reasonable and bona fide effort to spread the work equitably among the employees. Gravure West , 181 NLRB 417, Shield Radio & T V. Productions, Inc, 153 NLRB 68, 84 See The New York Times Co, 144 NLRB 1555, 1588, affd 336 F 2d 115 (C A 2). LOCAL UNION NO. 456 , ELECTRICAL WORKERS AFL-CIO the sort of case that , as shown by the legislative his- tory of the 1947 amendment to the Act, Congress intended to leave to the courts rather than to the Board.40 Moreover , even if it be assumed that the Board has discretionary power to deal with allegations based on a mere breach of contract , there are cogent policy considerations which militate against the Board 's exercising that power here . When one considers , on the one hand , the breadth and mul- tiplicity of Palmieri 's charges against unions and employers and, on the other hand, the various com- plaints by employers against him, ranging from breach of security regulations to gross insubordina- tion , "goldbricking ," and utter incompetence, one has to conclude either ( a) that for reasons not ap- parent in the record there is a conspiracy among certain electrical contractors in the Trenton and New Brunswick areas to deprive Palmieri of a livelihood, or (b) that he is determined to work on a job on his own terms and , to achieve this end, has adopted the tactic of harassing any employer who objects to this attitude by filing meretricious charges with the Board . That the latter is the more likely situation is indicated by the absence of any effective rebuttal of the evidence in the record 40 A provision in the Senate bill, which would have made it an unfair labor practice to violate the terms of a collective -bargaining contract, was deleted in conference , with the following explanation Once parties have made a collective bargaining contract the enforce- ment of that contract should be left to the usual processes of the law and not to the National Labor Relations Board H. Conf. Rep. No. 510 on H. R 3020 , 80th Cong . 1st Sess ., pp 41-42, Board 's Legislative History of Labor Management Relations Act, 1947, Vol. I, pp 545-546. See United Telephone Company of the West, 112 NLRB 779, 782, As- 1285 relating to Palmieri's shortcomings as an employee and the virtually uniform fate of the multitude of charges filed by Palmieri. Although a Regional Director's dismissal of a particular charge is not a conclusive adjudication of the merits, his failure to find merit, after due investigation, in any one of 179 charges filed by the same individual warrants the inference that he is using the Board's processes, not to redress wrongs, but as a sort of buffer against proper disciplinary action by his employers. It is a fair assumption that for the Board to find in Pal- mieri's favor here would merely encourage his ef- forts in that direction. Accordingly, to the extent that the Board has any discretion to refuse to act on a pure breach-of-contract issue, it would be well advised to exercise that discretion here and remit Palmieri to the courts. It will , accordingly, be recommended that the in- stant complaint be dismissed either on the merits or because of the availability of a judicial remedy. RECOMMENDED ORDER It is ordered that the complaint herein be, and it hereby is, dismissed. sociation of Salaried Employees v Westinghouse Electric Corp., 348 U.S 437, fn 2 Cf. N.L.R B. v C & C Plywood Corp, 385 U S 421, 427-428, where the Court characterized such legislative history as a determination by Congress " that the Board should not have general jurisdiction over all alleged violations of collective -bargaining agreements " While the Court there held that the Board was not precluded by such Congressional policy from construing contract clauses interposed as a defense to an unfair labor practice charge, here the contract provisions are not pleaded as a matter of defense but form the very basis of the charge Copy with citationCopy as parenthetical citation