Local Union No. 441, IBEW

National Labor Relations Board - Board Decisions

Oct 30, 1975

221 N.L.R.B. 214 (N.L.R.B. 1975)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 441, International Brotherhood, of
Electrical Workers, AFL-CIO and John G. Kelley
and Edgar H. Marston
Local Union No. 441, International Brotherhood of
Electrical Workers, AFL-CIO (Otto K. Olesen
Electronics, Inc.) and Albert Kelley. Cases 21-CB-
5076, 21-CB-5077, and 21-CB-5095
October 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 13, 1975, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of. Section 3(b) of the
National Labor Relations, Act, as amended, the
National Labor Relations Board has delegated its
authority in this,proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to - adopt his recommended Order, as
modified herein.
We find merit in the General Counsel's exceptions
to the Administrative Law Judge's finding that
Respondent's conduct in regard to Albert Kelley's
termination by Otto K. Olesen Electronics, Inc.,
herein called Olesen, did not violate the Act.
Kelley, a nonunion sound technician, worked for
Olesen, a member of the Orange County Chapter,
National Electrical Contractors Association
(NECA),2 from April 1974 to September 25, 1974,3
and worked under the supervision of Elden Struhs.
At times material, Olesen also employed two other
sound technicians, Harry Bauwin and Bill Potter,
both of whom were members of Respondent. Kelley
had less seniority than Bauwin, but more than Potter.
On or about September 25, as found by the
Administrative Law Judge, Struhs informed Kelley
that Olesen was going to have to lay off one
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Respondent, at all times material, has had a collective-bargaining
agreement with NECA in which Olesen is a member, covering employees in
certain specified job classifications, including sound technicians The
agreement establishes a referral procedure, under which Respondent is the
221 NLRB No. 36
employee, that it would be, either Kelley or Potter,
that Kelley had seniority superior to. that of Potter,
that Potter was a "local man," and that it would be
"up to the hall." About a week earlier he had told
Kelley he would like to keep him. -
On September 25, Struhs called Respondent's
hiring hall and asked an assistant business agent
what procedure was to be followed . in laying off
employees and,whether seniority was controlling. In
the conversation, Struhs identified Bauwin, Potter,
and Kelley, who was known to the Union for his
attempt to sign priority-referral books, and stated
that two of them were journeymen' sound -techni-.
cians, while one was a "permit man."4 The'assistant
business agent told Struhs that seniority did not
control and that the 'Union "would like to see" the
permit men and the "out of classification men" laid
off first. Struhs indicated to the assistant business
agent that he would lay off the permit man.
Immediately thereafter, Struhs terminated Kelley.
Contrary to the Administrative Law Judge,, we are
not convinced that Struhs had reached a decision in
"his own mind!', before he called the union hall. Nor
do we find that Respondent's telephone response
lacked an "ingredient of instruction" -in the circum-
stances. Without -attempting to assess'Struhs' actual
state of mind, we' note that, as found 'by the
Administrative Law Judge, 'Struhs informed Kelley
that he would like to keep, him but that it was "up to
the Union" Furthermore, Struhs admitted that his
reason for calling the Union, was to find out what
procedure was to be followed in laying off employ-
ees.
In light of the foregoing, we find that Respondent's
telephone advice caused Struhs to discriminate
against Kelley within the meaning of Section 8(a)(3)
by terminating Kelley first because he was not a
member of Respondent. Therefore, Respondent's
conduct constituted a violation of Section 8(b)(2)
and , (1)(A) ' of the Act. We also find that it is
unnecessary to determine whether Respondent's
unlawful conduct, was fortified by a threat, as "the
relationship of cause and effect, the essential feature
of Section 8(b)(2), can exist as well where an
inducing communication is in courteous or even
precatory terms, as where it is rude and demanding."
N.L.R.B. v. Jarka Corporation of Philadelphia, 198
exclusive source of referral of applicants for employment in the job
classifications covered by the agreement
3 All dates refer to 1974 unless otherwise indicated
4 A permit man, in this context, refers to a sound technician who is not a
member of Respondent but has been permitted to register at Respondent's
hiring hall and be referred to various jobs. The term does not connote the
skills possessed by a sound technician
The other sound technicians referred from Respondent's hiring hall
consist of either "classified personnel," members of Respondent, or "out of
classification men," who are also members of Respondent but are not
journeymen sound technicians.
LOCAL UNION
F.2d 618, 621 (C.A. 3, 1952); Yellow Freight System,
Inc., 197 NLRB 979, 981 (1972).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations -Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Local Union No. 441, International Brother-
hood of Electrical Workers, AFL-CIO, its officers,
agents, and representatives, shall take the action set
forth in said recommended Order, as so modified:
1. Insert- the following as paragraph 1(c) and
reletter present paragraph 1(c) as 1(d):
"(c) Causing or attempting to cause Otto K. Olesen
Electronics, Inc., to -discriminate against employees
because they are not members of the Union."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Make Albert Kelley whole for any loss of pay
suffered , by reason of the discrimination against him,
with interest at 6 percent per annum."
- 3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse the request of John.Kelley,-
Donald Quigley, Edgar Marston, or Albert
Kelley, or any other applicant for referral under
our exclusive referral system, for permission to
sign any of the priority referral books such as
Book 1, Book 2, or Book 3, which they are
qualified to sign.
WE WILL NOT maintain, enforce, or otherwise
give effect to any understanding,,arrangement, or
practice pursuant to which members of Local
Union No. 441 receive preference in referral, over
nonmembers.
WE WILL NOT cause or attempt to cause Otto K.
Olesen Electronics, Inc., to discriminate against
Albert Kelley because he is not a member of the
Union.
WE WILL make Albert Kelley whole for any
loss of pay suffered by reason of the discrimina-
tion against him, with interest at 6 percent per
annum.
i Unless otherwise specified , all dates herein refer to the calendar year
1974.
NO. 441, IBEW r 215
WE WILL make John Kelley, Donald- Quigley,
Edgar Marston, and Albert Kelley whole for any
loss of pay they may have suffered because we
have refused to permit them to sign priority
referral books which they were qualified to_ sign.
LOCAL UNION No. 441,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,,
AFL-CIO -
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Administrative Law Judge : This case
was heard before me at Santa Ana, California, on
February 19 and 24, 1975, pursuant to an-order consolidat-
ing cases, consolidated complaint, and notice of hearing,
issued on November 14, 1974 , by the Regional Director,of
the National Labor Relations Board for Region 21:1 The
consolidated complaint is based on an original charge filed
in Case 21-CB-5076 -on September 9 by John .Kelley and a,
first amended charge filed in said case by John, Kelley onr
November 13; an original charge filed in Case 21 -CB-5077
on September 11 by Edgar -Marston and a first amended
charge filed in said case on November 13; and-, an initial
charge, filed in Case 21-CB--5095 on September 26 by
Albert Kelley and a first amended charge-filed .by Kelley in-
said case on November 13. •The consolidated complaint
alleges violations by the above captioned Union, of Section
8(b)(1)(A) and Section 8(b)(2) of the National Labor
Relations Act, as amended , hereinafter called the Act. The
parties timely filed briefs with me on April 7, 1975.
Upon the entire record in this case,2 I make the
following:
FINDINGS OF FACT
1. COMMERCE FACTS -
Orange County Chapter, National Electrical Contractors
Association, Inc., hereinafter called'NECA, is, and has
been at all times material herein , an association comprised
of various employers, including Otto K . Olesen Electron-
ics, Inc., hereinafter called ' Olesen, and exists for the
purpose of engaging in, and does engage in, collective
bargaining for,- and negotiates collective-bargaining agree-
ments on behalf of, its employer-members, including
Olesen , with various labor organizations, including `Re-
spondent. -
The employer-members of the Orange County Chapter
of NECA, including Olesen, are engaged in, business in
Orange County, as electrical contractors and have their
principal offices and places of business in the State of
California, and, in - the aggregate , annually purchase and
receive goods and materials valued'in excess of $50,000
2 Errors in the transcript have been noted and corrected.
216, DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
directly from suppliers located outside the, State of
California.
Upon these facts, which are not in dispute, I find that
NECA and , its' employer-members, including Olesen, are
employers engaged in -commerce or in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded that Respondent is now, and has been at
all times 'material herein, a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
III. THE ALLEGED UNFAIR -LABOR PRACTICES
A.. The Issues
The complaint alleges that Respondent has violated
Section -8(b)(1)(A) and Section 8(b)(2) of the Act by (1)
limiting registration in priority groups established ,under,
the contractual and/or separately established referral
system for sound technicians, to' members of Respondent,
and denying registration to nonmembers; (2) at, times
specified between July and September, informing appli-
cants that they would not, be permitted to register in. said
priority : groups because = they were not members of
Respondent, and, enforcing, said prohibition against said
applicants; (3) refusing to, refer. Edgar Marston as an
applicant for employment as a foreman because he was not
a member of Respondent; and (4) attempting to cause and
causing Olesen to lay off or terminate employee Albert
Kelley because he was not-a member of Respondent. ,
B. Pertinent Facts
1. The setting
a. The agreement
At all material times , under a collective-bargaining
agreement with NECA, Respondent has been the recog-
nized and exclusive collective-bargaining representative of
employees employed in certain specified job classifications,
including- individuals employed in performing sound work
and ' in other classifications relating to electrical' construc-
tion work. The agreement ' mandates Respondent'to select
and 'refer 'applicants, on a nondiscriminatory basis without
regard ' to union membership or the application of any rule,
regulation, bylaw, or constitutional provision of Respon-
dent.
In pertinent part, the contract establishes the following
referral procedure:
4. The Union shall maintain a register of applicants
for employment, established on the basis of the groups
listed below. Each" applicant for employment shall be
registered in the highest priority group for which he
qualifies.
Group I. All applicants for employment who have
four (4) or more years experience' in the electrical,
construction industry in any one or more of the
classifications listed herein; are residents of the
geographical area .constituting the normal construction -
labor market, have passed standard written objective
Journeyman Wireman's examination approved by the
parties to this Agreement and who have been employed
for a period of at least- two (2) years in the last four (4)
years under a Collective Bargaining Agreement be-
tween the parties.
Group II. All applicants for employment who have
four (4) or more years experience in the electrical
construction industry in any, one or more of the
classifications, listed herein, and who have passed a
standard written objective Journeyman Wireman's,
examination approved by the parties to this Agreement.
Group III. All applicants for employment who have
four (4) or more years experience in the electrical
construction industry_ in any one or more of the
classifications listed 'herein; are residents 'of the
geographical area constituting the normal construction
labor market and who have been employed at least one
year in the last three (3), years under a Collective
Bargaining Agreement between the parties.
Group IV. All applicants for employment who have
been,employed in the electrical construction industry
for more, than one year.
The agreement also contains a provision establishing a
tripartite committee vested with authority to make binding
determinations with respect to,, complaints filed by any
employee or applicant arising out of-the administration by
the Union of the referral procedure.
b. Respondent's hierarchy
On July 3, Walter Daniel Johnson was elected to the
separate positions of business manager and financial
secretary to - Respondent. At , relevant times -thereafter,
Johnson -served as Respondent's principal executive offi-
cer. Johnson appointed Marvin Markham to the position
of assistant business manager and designated Carl Wieder-
meyer as the business representative. Each had been a
longstandingmember'of Respondent.
Johnson had run' for office in the Union on a platform
challenging the policy of the incumbent administration
which had assertedly served to limit the infusion of new
members. Johnson vowed to open membership oppor-
tunity and upon taking office convened a meeting of his
principal subordinates and instructed them to administer
the contractual referral procedures on a fair and nondiscri-
minatory basis." During the last 3 months of 1974, 210 new
members were admitted to the Union. This constituted an
increase in membership of approximately 15 percent.
c. Operation of the referral system
With the exception of a 5-week period discussed below,
sound technicians and other classifications pertinent ,herein
have been referred under the procedure set forth in the
collective-bargaining agreement presently in effect between
the parties. Under the practice pursued by Respondent in
applying the contractual referral procedure, applicants
would register by signing a book and would list their job
classification in the process. In operation of the referral
LOCAL UNION NO. 441, IBEW
system, applicants were referred on the basis of their job
classification.
In seeking to register or re-register at the union hall for
referral under the contractual referral procedures, an
applicant queued up in a line and approached the
registration window, in turn. Upon reaching the window,
he would be asked by the agent of the Union responsible
for handling the registration books whether he had
previously signed in a particular book. If the applicant had
previously registered in a particular book and his name
appeared in the book, he would be permitted by the agent
of the Respondent to again sign the same book. If,
however, the applicant requested to sign a book different
from that which he had previously signed, or in the event
he was a new registrant, the agent of Respondent would
request the registrant to produce a receipt. Members of
Respondent would be in possession of a dues receipt
known as a "yellow ticket" which listed the classification of
the applicant. On the other hand, nonmembers would be in
possession of a "white ticket" serving as a hiring hall fees
receipt which did not specify the classification of the
individual in possession thereof.
On August 13, however, Respondent instituted a
separate referral procedure for sound technicians. Under
this procedure, four priority groups were established and
sound technicians registered in one of four separate books
designated in descending order of priority as Books 1, 2, 3,
and 4. The new procedure came to the attention of
applicants, including John Kelley, Donald Quigley, Edgar
Marston, and Albert Kelley. The Respondent gave effect
to the procedure from August 13 to September 30.3
2. Pertinent events
a. John Kelley's background
John Kelley has worked as a sound technician since
1960. From 1960 until the summer of 1971, Kelley engaged
in business as a sound contractor and performed sound
work of the type performed by sound technicians under the
collective-bargaining agreement pertinent herein. Kelley
did not register with Respondent during the 1960-1971
period, but he became a member in 1965 after passing an
oral examination. However, he did not retain his member-
ship status and, in the summer of 1971, in support of his
3 The foregoing is based upon stipulations of the parties, documents in
evidence, and the credited testimony of John Kelley. Kelley's testimony
supports the finding that prior to August 13 sound technicians signed only
Books 3 and 4.
4 John Kelley earnestly testified that on July 12 he met with Dan
Johnson in the first of two meetings which transpired prior to the filing of
the charge herein. The net effect of Johnson's testimony, however, is to deny
the occurrence of such a meeting . A careful analysis of the record as a whole
convinces me that Kelley testified maccurately with respect to the
occurrence of a mid-July meeting with Johnson . Initially, it is noteworthy
that the content of John Kelley's pretrial affidavit is such as to reveal the
occurrence of only one meeting in the time frame above specified.
Moreover , both in his affidavit and during the course of a false start while
testifying as a witness at the hearing , Kelley tied the occurrence of the
alleged July 12 meeting to a period of time when Respondent was
maintaining a series of four separate books in support of the referral
procedure . In point of fact, these four separate books did not come into
existence for sound men until August 13, and, perforce, could not have been
a topic of conversation at a mid-July meeting Moreover, Kelley offered no
convincing explanation covering the absence of any reference in his pretrial
217
search for employment, he registered on Book 4 main-
tained by Respondent in furtherance of its contractual
procedures. Thereafter, Kelley continued to register with
Respondent on a regular and recurring basis and has been
referred by Respondent to approximately 40 different jobs
in which he worked in the capacity of a sound technician.
He regained his membership in Respondent in December
1974.
b. Efforts to sign higher book
As found above, on August 13 Respondent instituted a
separate referral procedure for sound technicians.
On August 14, John Kelley met with Dan Johnson,
Respondent 's business manager , in Johnson's office. No
one else was present .4 During the course of the conversa-
tion, Kelley requested that he be permitted to sign Book 1
under the newly instituted referral procedure . He explained
his qualifications which he believed justified his request.
Johnson raised a question as to Kelley 's alleged rights to
sign Book 1 and suggested that, rather than fighting for his
rights, he resolve the matter by becoming a member.
Johnson stated that Kelley could sign neither Book 1, 2,
nor 3 unless he was a member. Johnson stated , however,
that he was endeavoring to take the inequities out of the
referral system and to accelerate upward classification of
qualified registrants. Johnson urged Kelley to submit a
letter to the executive board requesting permission to take
the written examination for journeyman sound technician.
Kelley answered that he had endeavored unsuccessfully on
several previous occasions to gain such permission from
the executive board but that he was willing to try again.
Kelley agreed to write a letter to the executive board. He
asserted, however, that , if he were unsuccessful in becom-
ing a member after so doing , he would insist on his rights
under the referral procedure .5
As promised, Kelley wrote to the executive board
requesting to take the examination for journeyman sound
technician. On August 28, he was informed in writing that
his request had been denied pursuant to a decision of the
board. On September 9, Kelley filed unfair labor practice
charges against the Respondent.
affidavit to the first of two asserted meetings with Johnson . I am convinced
that, in , endeavoring to acquire accurate recall of events , Kelley incorrectly
tied the initial conversation with Johnson to a job layoff which, in actuality,
transpired in mid-August , and thereafter accomplished a mental and
testimonial transference back , so to speak , of some aspects of the
conversation which actually transpired during the course of the August 14
meeting. In short, I reject the testimony of John Kelley to the effect that a
meeting with Dan Johnson transpired on July 12 , or during the month of
July.
5 The foregoing is based upon the credited testimony of John Kelley. I
credit the testimony of Dan Johnson to the extent that Johnson 's testimony
is consistent with the foregoing findings. Specifically, I do not credit
Johnson's testimony to the effect that he did not state in words that
Johnson's present disqualification for signing Books 1, 2, and 3 was based
on his lack of union membership . While I accept Johnson's testimony to the
effect that , during the course of the conversation both Kelley 's desires for
membership and his expectation of being registered on a higher work book
were discussed, I credit Kelley's version of the terms used in interrelating
the two subjects during the course of the dialogue between Johnson and
Kelley.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Events involving Marston
Edgar Marston is a sound technician and has been
employed in that capacity smce,1969. In 1969 he registered
with Respondent and signed Book 4 which was the only
book proffered to him by the union representative at the
dispatch window where Marston signed in. Thereafter,
Marston received a "white ticket" or hiring hall receipt.
Marston continued from 1969 to September 1974 to sign
Book 4. In 1972, his request to be permitted to sign Book 3
was granted. However, he was never referred off Book 3.
Between 1969 and 1974, he made several unsuccessful
requests to be permitted to take the written sound
technician examination. His latest request, made in the
summer of 1974, was rejected by a decision of the executive
board. He was notified by letter dated August 28 that his
request had been denied. Marston did not become a
member of Respondent until December 1974.
On or about August 14, Marston had a conversation with
Dan Johnson in the lobby of the union hall. The
conversation transpired soon after Respondent had insti-
tuted the separate procedure for sound technicians.
Marston inquired of Johnson concerning the new proce-
dure and the meaning or function of the separate books.
Johnson responded that Book I was for use by members;
Book 2 was for travelers; Book 3 was open to members
who wished to be referred out of classification; and Book 4
was open to permit men. Marston continued to sign Book
4.6
d. Further applicant efforts to sign priority books
On September 10, John Kelley and Donald Quigley
spoke to Carl Wiedermeyer, Respondent's business repre-
sentative. The conversation transpired at Respondent's
hiring hall in the presence of Jerry Hilliard, a sound
technician . Quigley is a sound technician and has worked
in that capacity since 1967. In 1968 he commenced
receiving referrals through the auspices of,Respondent's
referral procedures. However, he did not become a
member of the Union until November 7.
During the course of the conversation, John Kelley and
Quigley spoke directly to Wiedermeyer and requested
permission to sign higher books. Kelley requested to sign
Book 1 and Quigley stated his desire to sign Book 3. In
responding to Kelley, Wiedermeyer asked for his "ticket'
and Kelley asserted that he was not a member of
Respondent and consequently had no ticket. Wiedermeyer
asserted that Kelley could not sign the higher book because
he was not a member. Kelley remonstrated that under the
collective-bargaining agreement he did not have to be a
member in order to sign a higher book. He read from a
6 The foregoing is based upon the credited testimony of Edgar Marston.
I do not credit Dan Johnson's denial of the conversation.
7 The foregoing is based upon the credited testimony of John Kelley and
Donald Quigley . I have also considered the testimony of Carl Wiedermeyer,
which supports the testimony of Kelley and Quigley in certain respects. In
finding that Wiedermeyer asked Kelley "for his ticket" and informed him
that he could not sign a higher book because he was not a member of the
Union , I have relied on the mutually corroborating testimony of Kelley and
Quigley. Their testimony , considered together, supports a finding that
Kelley's membership status was brought into issue and that, contrary to the
testimony of Wiedermeyer, the discussion was not limited solely to proof of
copy of the agreement in his possession and asserted that
his right to sign Book 1 was based on his qualifications;
that membership did not govern. Nonetheless, Wiedermey-
er stated that he did not have possession of the dispatch
books and that, in any event, he was not authorized to
permit nonmembers to sign higher books. Quigley and
Hilliard were present and Wiedermeyer referred the three
employees to Marvin Markham. Markham was at that
point in time Respondent's assistant business manager?
In speaking with Markham, Kelley and Quigley made
known their desire to obtain permission to' sign books
higher than Book 4. Markham replied that because they
were not members of Respondent they could not sign the
higher books. Kelley thereupon pointed out to Markham
the provision of the collective-bargaining agreement
precluding discrimination in the referral process on the
basis of union membership. Thereupon Markham request-
ed access to the records of the three employees and perused
them. After searching the records, Markham stated that the
employees had the required amount of work experience but
could not sign a higher book because they were not
members of the Union.
The conversation ended with Markham agreeing to bring
the matter before the executive board that evening. John
Kelley requested permission to appear before the board
and Markham agreed to so advise the board. Markham
stated, however, that he could not give Kelley assurances
in this regard. Kelley agreed to attend the meeting and be
available should he be permitted to appear:8
The executive board held its regular meeting that
evening . John Kelley attended and was permitted to
appear. Markham was present when Kelley entered to
meet with the Board but soon left.
In meeting with the executive board, Kelley was
questioned concerning his prior union membership and
was asked to state his present request to the board. Kelley
asserted that he desired to sign Book 1 and proceeded to
describe his qualifications. Board members noted that
Kelley had permitted his previous membership in the
Union to lapse due to nonpayment of dues, suggesting that
he did not hold his membership in high esteem. Nonethe-
less, the Board agreed to consider Kelley's request and
stated that he would be informed of the decision at a later
date. Donald Quigley did not attend the meeting:
e. The events of September 11
The following day - September 11 - John Kelley again
spoke with Markham. Kelley asked if he could sign Book I
and Markham refused him permission to do so. Kelley
then asked if Markham had been informed of the nature of
the executive board's decision with respect to his request.
Kelley's work experience and qualifications . I reached this conclusion after
considering Kelley's pretrial affidavit, in evidence, against the witness stand
testimony of Kelley and of Quigley.
8 The foregoing findings are based upon a consideration of the testimony
of John Kelley, Donald Quigley, and Marvin Markham. While I credit
certain' aspects of Markham's testimony , I do not credit that portion
wherein he claimed that he specifically disavowed to Kelley and Quigley
that nonmembership did not disqualify them from signing a higher book.
Neither do I credit Markham in that portion of his testimony wherein he
endeavored to give the term "membership" the connotation of a qualifica-
tion factor. I find this testimony to be a rationalization and reject it.
LOCAL UNION NO. 441, IBEW
Markham stated that the board had decided that John
Kelley could sign Book 3. He did so.
Later that day, Quigley talked to Markham in Respon-
dent's business office. The conversation transpired at the
window used for registration and Kelley was in line
directly behind Quigley. Quigley asked permission to sign
Book 3 and Markham refused to permit him to do so.
Markham stated that Quigley was not a member and that
John Kelley had been permitted to sign Book 3 only as a
result of the action of the executive board. Markham
added that he didn't have the right to permit Quigley to
sign and that in order for Quigley to be permitted to do so,
he would have to get specific permission from the executive
board or from Dan Johnson, business manager.
Still later in the day, Kelley met with Edgar Marston
and, as a result of their conversation, Marston went to the
registration window and spoke with Markham. Kelley
stood next in line to Marston as Marston and Markham
spoke together. Marston asked permission to sign Book 1
and his request was denied by Markham. Thereafter,
Marston made. successive unsuccessful requests for permis-
sion to sign Book 2 and to sign Book 3. Marston then
inquired why he was being refused permission to sign any
of the three books and Marston stated that it was because
he was not a member of the Union.9 Marston filed unfair
labor practice charges against Respondent on September
11.
f. Applicants allowed to sign Book 3
In late September, Donald Quigley spoke to Dan
Johnson and requested permission to sign Book 3. Johnson
stated that Quigley would be permitted to do so if he would
submit a letter outlining his qualifications. On or about
October 1, the letter was submitted to Johnson and
Johnson gave permission to Quigley to sign on Book 3.
Quigley did so and has signed Book 3 at all relevant times
thereafter.
In the meantime, Marston also submitted a letter to
Johnson outlining his qualifications. The letter was dated
October 3, and thereafter Marston was permitted to sign
on Book 3, on which book he has at all relevant times
signed.1o
g. The alleged discrimination against Albert Kelley
Albert Kelley, brother of John Kelley, worked in the
employ of Otto K.-Olesen Electronics Co, from some time
in April until September 25, when he was laid off. Kelley is
a sound technician and for approximately 10 years
performed the type of sound work covered by the
collective-bargaining agreement relevant herein. Kelley
initially registered as an applicant for employment under
9 I base the foregoing findings upon the credited testimony of John
Kelley, Donald Quigley, and Edgar Marston. I have carefully considered
their testimony against aspects of their pretrial affidavits which, as
suggested on cross-examination, give a different cast to certain comments
emanating from Marvin Markham. However, a careful analysis and
scrutiny of the record as a whole, including witness stand explanations by
the witnesses of specified elements of their pretrial affidavits, leads me to the
findings above made. Moreover, there is more than a suggestive gloss in the
record that, at the particular point in time encompassing the events of early
September, Markham did harbor the notion that membership per se and not
219
Respondent's referral procedures in the summer of 1971
and continued thereafter to do so on a regular basis. In all
instances until September 25, he signed on Book 4. Kelley
did not become a member of Respondent until December
14: However, in 1972 and again in 1973 Kelley requested
permission to take the written examination for journeyman
sound technician, but both of his requests were denied.
Following his layoff on September 25, Kelley spoke with
Carl Wiedermeyer. No one else was present.
In speaking with Wiedermeyer, Albert Kelley presented
his receipt for hiring hall fees and requested permission to
sign on Book 1. Kelley asserted that he was qualified to do
so and Wiedermeyer declined. Wiedermeyer asserted that
Book 1 was open only to members, but Kelley insisted that
he met all of the qualifications for signing on Book 1. He
reiterated his qualifications for Wiedermeyer's benefit.
Wiedermeyer stated that he wished to talk to Dan Johnson
and absented himself from his office.
When Wiedermeyer returned, he informed Albert Kelley
that he could sign Book 3 if he submitted a letter specifying
his qualifications. Kelley did so immediately and the letter
was transmitted by Wiedermeyer to Johnson. Shortly
thereafter, Johnson spoke to Kelley in person and gave
Kelley permission to sign Book 3. Kelley did so and
continued at all subsequent times to do so.11
h. The alleged unlawful termination of Albert Kelley
Otto K. Olesen Electronics, Inc., hereinafter called
Olesen, is engaged in sound and communication work. At
relevant times Olesen has been a party to the collective-
bargaining -agreement between Respondent and NECA
and has obtained employees through Respondent's referral
procedure. Elden Struhs is a sound technician and at
pertinent times served as a foreman for Olesen in Orange
County, California.'2
Albert Kelley was employed by Olesen-,as a sound
technician in 1973 and worked under the supervision of
Struhs. This employment stint ended due to a lack of work.
Thereafter, beginning in April 1974, Kelley again entered
Olesen's employ as a sound technician. Struhs again served
as Kelley's supervisor. Kelley was employed on several
different jobs for Olesen n-until his employment terminated
on September 25 due to a lack of work.
In the employ of Olesen at relevant times, were Harry
Bauwin, Bill Potter, and Kelley. Both Bauwin and Potter
were members of Respondent. Kelley was not. Bauwin
commenced working for Olesen in 1972 while Potter, first
worked for Olesen in August 1974.
A day or, two prior to September 25, Kelley, was
informed by Struhs that it would be necessary to lay off
one man. Struhs stated that it would be either Kelley or
Potter. Struhs noted that Kelley had seniority superior to
work qualifications governed signup rights.
10 The foregoing is based upon the credited testimony of Donald Quigley
and Marvin Markham, as well as documents in evidence.
11 The foregoing is based upon the credited testimony of Albert Kelley, a
stipulation of record, and documentary evidence of record. I have also
considered the testimony of Carl Wiedermeyer.
12 The record establishes that Struhs worked in the capacity of foreman
in Orange County from early 1973 until November 1974. It was stipulated
that he was a supervisor within the meaning of the Act throughout the
aforesaid period of time.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that of Potter and that he would like to keep Kelley.
However, Struhs observed that Potter was a "local man"
and that it would be "up to the hall."
The following day at approximately 1 i a.m. Olesen's
work at a high school project was completed. At this point
in time Struhs and Kelley spoke together and Struhs again
informed Kelley that it was necessary for him to lay off one
man. Struhs added that he was going to call the Union to
see which one it would have to be. He, proceeded to a
telephone booth and in Kelley's presence placed a
telephone call to Respondent. Kelley heard Struhs' end of
the conversation.
In calling Respondent, Struhs initially spoke to a
secretary who referred him to an assistant business
manager. Struhs identified himself to the assistant business
manager and stated that Olesen was having a reduction in
force. He asserted that it would become necessary for him
to lay off one man and identified the three employees
presently employed by Olesen by name. He identified two
of them as journeymen sound technicians and one as a
permit man. Struhs added that the permit man, Kelley, had
seniority over Potter, one of the union technicians. Struhs
asked if there were any particular order that he should
follow in laying off employees. He was informed by the
assistant business manager that seniority did not control
and that the usual procedure was to lay off permit men and
"out of classification men" first. Struhs said that he would
terminate the permit man. The conversation ended and
Kelley's termination followed. Kelley received his final
paycheck at a later date.13
Struhs testified that through conversations with Albert
Kelley he had learned of the efforts of John Kelley to
secure his claimed referral rights through Local 441, and
that Albert Kelley had intentions of doing the same. Struhs
further testified that he desired to contact the Union so as
to remove himself and the company from any conflict that
might arise between Albert Kelley and Respondent. Struhs
knew that his own union's collective-bargaining agreement
had no clause governing retention of employees on the
basis of seniority, and suspected that seniority did not
govern under the contract under which Local 441 operated.
It was Struhs' testimony, nonetheless, that he called
Respondent to assure himself of this fact.
i. The alleged refusal to refer Marston as foreman
Marston testified that in mid-August he was called to the
dispatch window by Markham and given a job referral.
Marston further testified that he asked if there were any
other jobs available, and that Markham responded he had
a foreman's job open for dispatch but that Marston was
not qualified to serve in the capacity of a foreman because,
as a white ticket man, he did not have qualified
journeyman status . Marston testified that he accepted the
other job referral and the conversation ended.
Markham was unable to recall the occurrence of any
such incident and documentary evidence of record
33 The foregoing is based on the credited testimony of Albert Kelley and
Elden Struhs . In finding that Struhs spoke with Albert Kelley on September
24 concerning an impending layoff, I do not adopt Struhs' testimony to the
effect - that he informed Kelley, in terms, that he had decided to lay off
Kelley. Moreover, I do not accept the testimony of Struhs to the effect that,
introduced by Respondent purporting to be all of the
referral slips covering the month of August fails to reveal
any incident of a referral of any individual to a foreman's
job. In substance, the purported effect of the documentary
evidence is to negative the inference that during the month
of August any employer made a specific request for the
referral of a foreman. The evidence reveals that at a
subsequent time Marston was dispatched to a foreman's
job, and Respondent raises no direct challenge to Mar-
ston's qualifications in August to serve in the capacity of a
foreman.
As shown by the record evidence, including Marston's
testimony on cross-examination, the clarity of Marston's
recollection concerning the details of this incident is open
to serious challenge. In the pretrial stages of the proceed-
ing, Marston had misidentified the agent of Respondent
purportedly involved in the refusal to refer, and he had also
incorrectly fixed the date of the alleged occurrence. While I
am unwilling to find that Marston engaged in no
conversation with an agent of Respondent relating to a
potential referral to a foreman's job, I am unable, upon this
record, to credit Marston's testimony as to the details of
the incident, including the dialogue which transpired and
the date of the occurrence.
Conclusions
A. The Referral Practices
The General Counsel is correct in his contention that a
labor organization contractually recognized as the exclu-
sive source of referral of applicants for employment in job
classifications covered by a collective-bargaining agree-
ment has the legal obligation to refer applicants on a'
nondiscriminatory basis, without regard to membership or
lack thereof. Local 357, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America [Los Angeles-Seattle Motor Express) v. N.L.R.B.,
365 U.S. 667 (1961). The Respondent does not challenge
this principle. The record before me establishes, and I fmd,
that, at times,relevant herein, Respondent failed to abide
by this legal obligation.
The evidence reveals that between August 14 and
September 30, agents of Respondent, endowed with the
principal responsibility for operating the referral system,
did, on several separate occasions, refuse to register
qualified applicants in higher priority groups maintained
under the then-prevailing referral system. In each instance,
the credited evidence of record establishes that the
controlling basis for so refusing was the nonmembership
status of the requesting applicant. Thus, during the time
period specified, John Kelley, Edgar Marston,' Donald
Quigley, and Albert Kelley were each deprived of their
contractual and/or legal right to higher priority grouping,
on a nondiscriminatory basis, without regard to union
membership. It is unnecessary in this Decision to explicate
the qualifications possessed by the four individuals
on the morning of September 25, in speaking with Kelley he was explicit in
mforming Kelley that he had been selected for layoff. Whatever private
notions Struhs harbored in this respect, in speaking with Kelley he made no
overt or explicit reference to his choice prior to calling the union hall.
LOCAL UNION NO. 441, IBEW
aforesaid, and, in point of fact, Respondent raises no direct
challenge on this score . Rather, Respondent principally
defends on the proposition that a new incumbency,
unskilled and unspecialized in the nuances of referral
procedures and techniques was, during times pertinent
herein, diligently laboring to improve a body of referral
criteria previously administered by the predecessor admin-
istration with less than the optimum degree of fairness.
Building on this thesis, Respondent further avers by way of
defense that , in declining to accede the several separate
requests by the four individual applicants for better
standing in the priority hierarchy established to augment
the referral machinery, the declinations imposed were
predicated- not on membership but on lack of proof of
qualifications . However , on the record before me, it is
essential to find that in August and September the
emerging attitude of liberalism which accompany the
selection by Respondent of a new administration had not
become sufficiently mature conceptually to impel responsi-
ble agents to abandon imbedded discriminatory notions
and attitudes . This fundamental lag led to unlawful
conduct ; and the change of heart and attitude of
enlightenment which appears to have later emerged in the
operation of Respondent's referral procedures does not
serve to render moot the regal effects of the offenses
perpetrated.14
The General Counsel properly rests the gravamen of his
case on the principle enunciated by the,Board in United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
Local 633, AFL-CIO (Albert _B. Harned), 178 NLRB 398,
enfd . 436 F.2d 1386 (C.A. 6, 1971 ). In Local 633 the
respondent union pursued a policy ` of referring only
journeymen to jobs under its contractually recognized
exclusive referral arrangement , and premised the attain-
ment of journeyman status on successful completion of a
journeyman's test . The union had rejected membership
applications submitted by the charging parties and later
refused them permission to take the journeyman's test
administered by the union because their membership
requests had been rejected. Finding without merit the
claim of the union , that it was contractually bound to refer
only journeymen , the Board stated:
In short, by virtue of their nonmembership in the
Union , they were unable to, demonstrate the compe-
tence which the Union felt was necessary in order for it
to refer them. By this means, they were excluded from
employment, while union members who applied later,
and were even asked to enter the jurisdiction from
other areas to fill the shortage of plumbers and
pipefitters in Local 633s jurisdiction , were quickly ,
placed.
Respondent violated the Act by establishing this
system of proving competence and then refusing to
allow Tabor and Harned to demonstrate their skills by
taking a test . As applied by Respondent , the require-
14 Respondent points out that none of the Charging Parties resorted to
the contractual complaint procedure to contest their alleged improper
treatment under the referral procedure This does not state a legal defense to
the issues herein raised. Wheeling-Pittsburgh Steel Corporation, 195 NLRB
661, 666 (1972), and cases cited at fn 17 therein
221
ment that a job applicant pass the journeyman's test
entails, in essence, a requirement that-he belong to the
Union. This criterion would bar the most qualified
plumber from referral not because he was unskilled,
but because he had not been permitted to take the test
that serves as the sole means of proving competence.
Clearly, the criterion -for referral is not ability to do the
work, it is union membership. Denial of referral based
on that criterion is a violation of Section 8(b)(2).
With respect to John Kelley, it is to be remembered that
on August 14 he had been serving in his craft for
approximately 14 years and he had once held membership
in the union. Additionally, for 3 years he had worked
under the collective-bargaining agreement. Previous ef-
forts, antedating the administration of Dan Johnson, to be
permitted to take the written journeyman wireman's
examination had been rejected. Thus, he possessed on
August 14 all of the qualifications essential to sign Book 1
under the separate referral procedure in effect for sound
men between August 13 and September 30, except that he
had not passed the written examination. On the occasion of
August 14, however, Johnson was informed by Kelley of
his past unsuccessful efforts to obtain permission to take
the examination and yet Johnson premised his request to
sign any higher book on his lack of membership in the
union. Clearly, under the collective-bargaining agreement
which had theretofore been in effect, Kelley was entitled to
sign Book 3. Moreover, if nondiscrimination had been the
true hallmark of Johnson's new administration, it would
have been consistent with avowed policy for Johnson to
have at least indicated his acquiescence in Kelley's request
to sign Book 3 under the separate referral procedures; and
it would have been additionally indicative of a liberalized
policy for Johnson to have agreed to at least investigate
and assess earlier union rejections of Kelley's previous
request to be accorded permission to take the required
written examination.15 Johnson made no such proffer and
referred Kelley to the executive board where his request for
permission to take the examination was rejected. Under the
authority of United Association of Journeymen and Appren-
tices, of the Plumbing and Pipefitting Industry of the United
States and Canada Local 633, AFL-CIO (Plumbing
Contractors of Owensboro, Kentucky), 178 NLRB 398
(1969), enfd. 436 F.2d 1386 (CA. 6, 1971), I find that, at all
times subsequent to August 13, John Kelley had the legal
right to be accorded a qualification standing sufficient to
entitle him to sign Book 1 under the separate referral
procedures relating to sound men and Respondent's
refusal and failure to accord him that right violated Section
8(b)(2) of the Act. This principle is applicable as well to the
refusal visited upon Edgar Marston by Markham on
September 11, and to the denial imposed upon Albert
Kelley by Wiedermeyer on or about September 25.
The continuity of attitude and approach which survived
the transfer, of leadership is amply demonstrated by the
response which John Kelley received to his August 14
15 Cogent in', this respect is the point made by the General Counsel that,
when John Kelley was finally admitted to membership in December 1974,
he was classified as a fully qualified sound technician. He had taken no
written examination Moreover, Kelley had once enjoyed membership
which suggests something as to his skills and qualifications.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request for permission to sign Book 1, and his late August
request to be permitted to take the written journeyman
wireman examination . It is further revealed-by the conduct
of its agents on separate occasions towards John Kelley
and other applicants.
Thus, in sum , I find that on August 14 Johnson denied
the separate requests of John Kelley and Edgar Marston to
sign on higher priority books; on September 10, John
Kelley and Donald Quigley were denied permission by
Markham to do so; on September 11, Marston's request
was demed by Markham who, on the same date, denied
Quigley's similar request; and, finally, on September 25,
Carl Wiedermeyer rejected Albert Kelley 's request to sign
a priority book . The credited evidence of record establishes
that the denials in question emanated from the concept
held by Johnson , Markham , and Wiedermeyer , at that
point in time , that membership in the Respondent was the
controlling criterion to be applied to the requests in issue.16
Such a discriminatory practice by a labor organization
charged with the implementation of an exclusive referral
arrangement, however valid the enabling bargaining
agreement may be on its face, and however faultless the
governing promulgated procedural rules may appear,
violates Section 8 (b)(2) and ( 1)(A) of the Act.17
B. The Layoff of Albert Kelley
In agreement with Respondent , however, I find that the
General Counsel failed to sustain the allegations of the
complaint with respect to the purportedly unlawful role of
Respondent in the layoff of Albert Kelley. In reaching this
conclusion, I find that the record does not establish a
causal connection between Respondent 's involvement and
the ensuing layoff.
I am of course aware that the Board has consistently held
that , to find that a' union caused or attempted to cause an
employer to discriminate against an employee, it is
unnecessary for the General Counsel to establish an
express demand on the part of the union, so long as a
causal connection between the union 's action and the
ensuing discrimination is shown. See, e.g., Northwestern
Montana District Council of Carpenters' Unions, etc. (Glacier
Park Company), 126 NLRB 889, 897 (1960). In those cases
wherein the Board has found a violation 'of Section 8(b)(2)
of the Act , based upon a union involvement in a
discriminatory termination of an employee , some reason-
able indication of a union's willingness to use its power,
authority, or economic strength to enforce its will in order
to achieve its objective is invariably present. See, e .g., St.
Joe Paper Company, 135 NLRB 1340 (1962); Sub Grade
Engineering Co., 93 NLRB 406 (1951 ); 18 Turner Construc-
16 I am not persuaded to the contrary by the evidence of record revealing
that, at the outset of his administration, Johnson convened a meeting and
instructed his newly designated subordinates that the operation of the
referral procedure would be fair and without resort to discrimination based
on the membership of the applicant. The conduct of Johnson, and his
agents, which transpired subsequent to the meeting, reveals that the precepts
articulated by Johnson were not given literal application
17 See United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and, Canada, Local 633, AFL-
CIO (Plumbing Contractors of Owensboro, Kentucky) supra, International
Brotherhood of Electrical Workers, AFL-CIO, Local 648 (Foothill Electrical
Corporation), 182 NLRB 66 (1970).
is Enfd sub nom. International Union of Operating Engineers, Hoisting and
tion Company, 1110 NLRB 1860 (1954); cf. Local, 771,
International Alliance of Theatrical Stage Employees, etc.
(Alfred Kelly), 131 NLRB 1 (1961); Gibbs Corporation, 124
NLRB 1320, 1321, 1330 (1959). No direct request by a
union that an employer effectuate an employee's discharge,
is required, and a warning, however veiled, is sufficient to
constitute a constructive request violative of the Act. See.
Southeastern Plate Glass Company, A Division of Automobile
Glass Company, Inc., 129 NLRB 412 (1961). However, on
the record before me, I am unable to discern the presence
of even a veiled threat, warning, or willingness to resort to
force or compulsion in the response which Respondent's
agent made to the inquiry posed to him by Struhs on the
morning of September 25. Moreover, I am unable to read
into' the agent's response any ingredient of instruction or
direction. See Local 771, International Alliance of Theatrical
Stage Employees, etc. (Alfred Kelly), supra,''cf. Sub Grade
Engineering Company, supra. It is, of course, wholly
consistent with trade union objectives for a labor organiza-
tion to prefer the retention of a member as opposed to a
nonmember in a position of employment. It may well be
that, in a given circumstance, the tacit practice of laying off
permit men and travelers in advance of union journeymen
members is entirely unlawful. However, on the instant
record, all that transpired on the occasion in question was
that Struhs, vested with full authority to act on behalf of
Olesen in matters affecting tenure of employment of
employees, posed a question to Respondent's agent
concerning practice and received a truthful response to the
effect that union members are usually given preference in
job retention over permit men. Absent here is any
suggestion by Respondent's agent that Olesen depart from
any existing personnel practice or countermand any
decision that may have been reached with, respect to the
layoff. Nothing that Respondent's agent said on the
occasion of September 25 reasonably inferred adverse
consequences should Struhs act in a manner inconsistent
with the usual pattern; and there, is insufficient basis for
inferring that Olesen's source of labor would in any
manner have been affected by, union counteraction had his
ultimate selection of the employee for layoff been differ-
ent.19
Accordingly, for the reasons stated above, and because I
am convinced that Struhs had reached a decision in his
own mind before he called the union hall to lay off Albert
Kelley unless he received some input from the Union' that
would dictate a change of mind, I find that the complaint
allegation relating to Respondent's 'alleged involvement in
Albert Kelley's termination by Olesen must be dismissed.
Portable Local No 101, etc., 216 F.2d 161 (C.A. 8, 1954).
19 While Struhs and Albert Kelley had spoken together concerning
Kelley's intention to vie with the Union over certain aspects of its referral
procedures, to the point of time of September 25, so far as the record
reveals, Albert Kelley had not undertaken a dialogue in this regard with
Respondent . It may have been that m'frst calling the Union Struhs was
acting with extra caution with respect to the instant layoff of Kelley because
of his insight into Kelley's status intentions. However, when the conversa-
tion transpired the Union had no reason to suspect Albert, „Kelley's
proposed course of action. It is also to be remembered that this was not the
first occasion when Struhs had laid Kelley off prior to effecting the job
tenure of other crewmembers.
LOCAL UNION NO . 441, IBEW 223
C. The Foreman Issue
Moreover, on the instant record, I am unable to find
meet in the General Counsel's claim that Respondent
violated the Act in allegedly denying Edgar Marston
referral to a foreman's job because of his asserted lack of
union membership. Absent a more credible version of the
occurrence than developed by the General Counsel at the
hearing before me, I find myself compelled to dismiss the
complaint insofar as it relates to the alleged involvement of
Respondent in a failure to refer Marston to a foreman's
job.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent in regard to their. hire and tenure of employ-
ment in violation of Section 8(b)(2) and (1)(A) of the Act.
4. By refusing to permit John Kelley, Donald Quigley,
Edgar Marston, and Albert Kelley to sign on priority
referral books maintained by it in the operation of its
exclusive referral system, Respondent violated Section
8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices and conduct
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Except as specifically found herein, Respondent
engaged in no conduct otherwise violative of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
employers described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully declined to
permit John Kelley, Donald Quigley, Edgar Marston, and
Albert Kelley to sign priority referral books which they
were qualified to sign, I shall recommend that Respondent
make whole each of the four aforesaid individuals for any
loss of earnings or other monetary loss they may have
suffered by reason of the discrimination practiced against
them. This loss of earnings shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289'(1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 441, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Orange County Chapter, National Electrical Con-
tractors Association, Inc., and its various employer-mem-
bers, including Otto K. Olesen Electronics, Inc., are
employers engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
3. By maintaining an exclusive referral system and
operating said referral system on a discriminatory basis,
Respondent has caused and attempted to cause employers
to discriminate against individuals who are not members of
20 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
ORDER 20
Respondent, Local Union No. 441, International Broth-
erhood of Electrical Workers, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving effect to
an exclusive referral or hiring arrangement or practice with
any employer pursuant to which union members receive
preference in hiring or referral over nonmembers.
(b) Refusing the request of John Kelley, Donald Quigley,
Edgar Marston, and/or Albert Kelley, or any other
qualified applicant who makes such a request, to sign any
priority referral book which he is qualified to sign and
which is maintained in connection with the operation of
the exclusive referral system.
(c) In any other manner restraining or coercing employ-
ees or applicants for employment with any employer in the
exercise of the rights guaranteed by Section 7, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as author-
ized by Section 8(f) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make John Kelley, Donald Quigley, Edgar Marston,
and Albert Kelley whole for any loss of earnings or other
monetary loss they may have suffered by reason of the
discrimination against them in the manner set forth in that
portion of the decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records pertaining to employment through its exclusive
referral system and all other records relevant and necessary
to the computation of the monetary loss, if any, sustained
by John Kelley, Donald Quigley, Edgar Marston, and
Albert Kelley, by reason of Respondent's discrimination
against them.
(c) Maintain a book or semipermanent type of record to
reflect accurately the operation of the referral system, and
for a period of 1 year, disclose to the Regional Director for
Region 21, or his agents, the manner of operation of the
referral system.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post in conspicuous places in its business offices,
meeting halls, and places where notices to its members are
customarily posted, copies of the attached notice marked
"Appendix." 21 Copies of said notice, on forms to be
provided by the Regional Director for Region 21, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 21, in
writing , within 20 days from the date of this Order, what
steps will be taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "