Local Union No. 456, Electrical Workers, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 29, 1970

183 N.L.R.B. 1277 (N.L.R.B. 1970)

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