Electrical Workers Local 48 (Oregon-Columbia)

National Labor Relations Board - Board Decisions

Jun 13, 2005

344 N.L.R.B. 829 (N.L.R.B. 2005)

ELECTRICAL WORKERS LOCAL 48 (OREGON-COLUMBIA CHAPTER)
344 NLRB No. 102
829
International Brotherhood of Electrical Workers,
Local 48, AFL–CIO (Oregon-Columbia Chapter
of National Electrical Contractors Association)
and Paul Footlick and Dennis S. Coey and Pat-
rick Mulcahy and Richard S. Smith and Brad
Twigger and Terry Taylor and William Perry.
Cases 36–CB–1798–1, 36–CB–1798–2, 36–CB–
1798–3, 36–CB–1798–4, 36–CB–1798–5, 36–CB–
1798–6, 36–CB–1840–1, 36–CB–1853, 36–CB–
1859, and 36–CB–1947
June 13, 2005
ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR RECONSIDERATION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 23, 2004, the National Labor Relations Board
issued a Decision and Order1 in this proceeding, finding,
inter alia, that the Respondent violated Section
8(b)(1)(A) of the Act by dispatching numerous individu-
als out of order from its Portland, Oregon hiring hall.
After filing timely requests for extensions of time,
which were granted, on September 21, 2004, the Re-
spondent filed a Motion for Reconsideration, Rehearing,
and Reopening of the Record. The General Counsel filed
a response to the motion.2 The Respondent contends that
the Board erred with respect to the Respondent’s “short-
call” and biannual re-sign rules and its dispatching of
“stripped” employees; wrongly held unlawful the Re-
spondent’s preferential dispatches for salts and “pep-
pers”; deprived the Respondent of due process; improp-
erly shifted the burden of proof; and erred in its findings
concerning a number of individual hiring hall registrants.
The General Counsel agrees with the Respondent that the
Board’s related findings concerning the short-call rule
were mistaken, and he supports the motion to this extent.
In all other respects, the General Counsel opposes the
Respondent’s motion.
In its previous decision, the Board found as follows
(342 NLRB 101, 102): a “short call” is a job that lasts
less than a specified period of time; registrants dis-
patched to short-call jobs out of the Respondent’s hiring
hall retain their predispatch position on the out-of-work
list (OWL) when those jobs end; and if a job exceeds the
short-call time limit, the registrant loses his position and
“rolls” to the bottom of the OWL. The Board found that
during the relevant period, October 1992 to May 1994,
the Respondent’s short-call rule specified a 40-hour

1 342 NLRB 101 (2004).
2 The Respondent has requested oral argument. The request is de-
nied as the record, the Respondent’s motion, and the General Counsel’s
response adequately present the issues and the positions of the parties.
limit, and if a job lasted more than 40 hours, the regis-
trant was supposed to “roll.”
The Board also found that the short-call limit was
lengthened from 40 hours to 30 days in November 1994.
As the Respondent correctly contends in its Motion for
Reconsideration, the Board erred in this finding. The
Board correctly should have found that the short-call
limit was lengthened from 40 hours to 30 days effective
September 1992, and not November 1994. As a result,
the Board should have found that, throughout the rele-
vant period, the short-call limit was 30 days, not 40
hours.
We therefore grant the motion to correct the Board’s
factual findings as to (1) the date when the short-call
limit was lengthened to 30 days and, consequently, (2)
the duration of the short-call limit during the relevant
period. Accordingly, we withdraw the short-call find-
ings, together with other findings in our Decision and
Order dependent on those facts: the findings that “Local
48 applied a nonexistent short-call rule” (342 NLRB 101,
109), that “a number of individuals worked jobs in ex-
cess of the 40-hour short-call limit without rolling to the
bottom of their book” (id., slip op. at 105), and that the
individuals listed in section 3 of the evidentiary appendix
exceeded the short-call limit without rolling to the bot-
tom of their book (id., slip op. at 112–114);3 the ruling
that additional instances of failure to apply the short-call
rule may be established at compliance (id., slip op. at 9);
and paragraph 1(c) of the Order (id., slip op. at 14). We
also substitute the attached notice for that attached to our
Decision and Order. In all other respects, however, we
deny the motion because the Respondent has not demon-
strated extraordinary circumstances warranting reconsid-
eration, rehearing, or reopening of the record as required
by Section 102.48(d)(1) of the Board’s Rules and Regu-
lations.
Having withdrawn the Board’s finding that the Re-
spondent failed to enforce its short-call rule, we never-
theless reaffirm that the Respondent’s mistaken depar-
tures from its hiring hall rules violated Section
8(b)(1)(A) of the Act. As the Board previously found,
the Respondent permitted numerous individuals ineligi-
ble for listing on book 1—the top priority out-of-work
list—to register on that book. 342 NLRB 101, 104–105,
111–112. The Board emphasized that the Respondent
had no procedures in place to check book 1 registrations,

3 We reject the General Counsel’s contention that, with one excep-
tion, the individuals listed in section 3 of the evidentiary appendix were
still improperly dispatched because they exceeded the 30-day short-call
limit without rolling to the bottom of the out-of-work list. After a
careful examination of the record, we are satisfied that the evidence is
insufficient to prove nonenforcement of the 30-day rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
despite the ease with which book 1 eligibility could have
been routinely verified. Supra, slip op. at 8–9. More-
over, this failure to check was committed in the context
of other conduct, viz., purposeful departures from the
dispatch rules. That is, out-of-order dispatches went to
those who were willing to engage in union organizing.
In this context, the Respondent’s reckless indifference to
book 1 eligibility amplified the message that “applicants
had better stay in the good graces of the union if they
want to ensure fair treatment in referrals.”4 Under these
circumstances, we find that the Respondent’s failure to
police book 1 registrations, which enabled numerous
book 1–ineligible applicants to receive dispatches that
should have gone to applicants properly registered on
book 1, constituted gross negligence and therefore vio-
lated Section 8(b)(1)(A) under Contra Costa Electric,
supra.5
In sum, the Respondent’s motion is granted as de-
scribed above. In all other respects, the motion is denied.
ORDER
The National Labor Relations Board affirms its origi-
nal Order, as modified below, and orders that the Re-
spondent, International Brotherhood of Electrical Work-

4 Plumbers Local 342 (Contra Costa Electric), 329 NLRB 688, 691
(1999), petition for review granted and remanded sub nom. Jacoby v.
NLRB, 233 F.3d 611 (D.C. Cir. 2000), on remand Plumbers Local 342
(Contra Costa Electric), 336 NLRB 549 (2001), petition for review
denied sub nom. Jacoby v. NLRB, 325 F.3d 301 (D.C. Cir. 2003).
5 As before (342 NLRB 101, 109), we need not pass on whether the
proper standard is that set forth in Contra Costa Electric, supra, or the
“heightened” duty of fair representation standard applied by the Ninth
and D.C. Circuits (see Jacoby, supra, 233 F.3d at 611; Lucas v. NLRB,
333 F.3d 927 (9th Cir. 2003)), because the result here is the same under
either standard.
The dissent states that our conclusion was that “mistaken departures
from the hiring hall rules” violated the Act. The statement is incorrect.
The violation is the utter failure to monitor compliance with the rules in
the context of other (purposeful) conduct.
Although Member Liebman did not participate in the original deci-
sion, she agrees that its mistaken short-call findings should be cor-
rected. She disagrees, however, with her colleagues’ conclusion that
the remaining mistaken departures from the hiring hall rules neverthe-
less violated the Act. In her view, the Respondent’s honor system for
signing book 1 was not so far outside a “wide range of reasonableness”
as to breach the duty of fair representation. Air Line Pilots v. O’Neill,
499 U.S. 65, 67 (1991); Ford Motor Co. v. Huffman, 345 U.S. 330,
338 (1953). Contrary to her colleagues, she would not look to the
Respondent’s purposeful departures from the dispatch rules in analyz-
ing the issue of gross negligence. Even assuming its intentional out-of-
order dispatches were unlawful, those dispatches do not make its non-
detection of book 1–ineligible registrants into anything more than inad-
vertent mistakes. Adhering to the standard set forth by the Board in
Contra Costa Electric, supra, Member Liebman would not find that this
inadvertent conduct violated Sec. 8(b)(1)(A). In all other respects, she
agrees that the Respondent has not demonstrated extraordinary circum-
stances warranting reconsideration, rehearing, or reopening of the re-
cord.
ers, Local 48, AFL–CIO, Portland, Oregon, its officers,
agents, and representatives, shall take the action set forth
in the Order as modified.
1. Delete paragraph 1(c) and reletter the remaining
paragraphs accordingly.
2. Substitute the attached notice for that of the Board.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT deliberately depart from the rules gov-
erning the operation of the hiring hall in the following
ways: (i) giving preferential dispatching treatment to
salts—i.e., union members who take jobs with nonunion
employers to engage in union organizing—and “pep-
pers”—i.e., newly organized employees of nonunion
employers who remain with those employers to engage
in union organizing; (ii) returning, off the books, to their
newly organized former employer, employees who had
been “stripped”—i.e., persuaded to leave that employer
and join the Union—during a union organizing cam-
paign; (iii) giving off-the-books dispatches to individuals
as a reward for joining Local 48; (iv) sending discharged
employees back to the discharging employer off the
books; (v) permitting registrants to retain positions on the
out-of-work list despite having missed a compulsory
biannual re-sign; (vi) dispatching registrants requested by
name under circumstances where the collective-
bargaining agreement does not permit a name-request
dispatch; (vii) otherwise deliberately departing from the
rules governing the operation of the hiring hall where
such a departure is neither pursuant to a valid union-
security clause nor necessary to the effective perform-
ance of our representative function.
WE WILL NOT permit book 1–ineligible registrants to
register on book 1.
ELECTRICAL WORKERS LOCAL 48 (OREGON-COLUMBIA CHAPTER) 831
WE WILL NOT refuse to allow registrants the opportu-
nity to inspect and/or copy our records relating to the
operation of the hiring hall.
WE WILL NOT utilize a journeyman inside wireman’s
examination that in major part tests knowledge of our by-
laws and constitution, the contents of our collective-
bargaining agreement with the Oregon-Columbia Chap-
ter of the National Electrical Contractors Association,
and labor history, rather than knowledge of the electrical
trade, and WE WILL NOT utilize such an examination as the
basis for denying book 1 status to William Perry.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights set forth above.
WE WILL make available the requested records relating
to the operation of the hiring hall.
WE WILL, within 14 days from the date of the Board’s
Order, administer to William Perry, on request, a nondis-
criminatory journeyman inside wireman’s examination.
WE WILL make whole, with interest, all individuals
who suffered loss of employment because of our unlaw-
ful conduct for all earnings and other benefits lost as a
result of that conduct.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 48, AFL–CIO (OREGON-
COLUMBIA CHAPTER OF NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION)