Electrical Workers IBEW Local 46 (Puget Sound NECA)

National Labor Relations Board - Board Decisions

May 24, 1991

303 N.L.R.B. 48 (N.L.R.B. 1991)

48
303 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Chapter filed the instant unfair labor practice charges with the Board
on July 26, 1988, just prior to the Union’s August 2, 1988 submission to the
CIR.
2 Nelson v. Electrical Workers IBEW Local 46, 899 F.2d 1557 (1990). We
note that the Ninth Circuit, in affirming the district court’s issuance of an in-
junction and stay of the Sec. 301 action, found ‘‘reasonable cause to believe’’
that the violation charged had been committed. This finding, however, is not
dispositive of the issues before us. In the first place, the court was merely rul-
ing on the propriety of preliminary relief. Second, the court viewed the issue
before it as a pure question of law; and it premised its determination of the
‘‘reasonable cause’’ issue on whether the theory of the complaint issued by
the Regional Director was ‘‘not insubstantial and frivolous.’’ Id. at 1561. This
leaves open the question, to be decided by the Board on a full record, whether
the theory of the complaint best comports with the congressional policies em-
bodied in the Act.
International Brotherhood of Electrical Workers,
Local Union No. 46, AFL–CIO and Puget
Sound Chapter, National Electrical Contractors
Association. Cases 19–CB–6367, 19–CB–6368,
19–CC–1841, and 19–CE–85
May 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On May 17, 1989, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent Union filed exceptions and a supporting
brief, and the General Counsel filed a brief in support
of the administrative law judge’s decision and an an-
swering brief. The Charging Party also filed an an-
swering brief and the International Brotherhood of
Electrical Workers, AFL–CIO, and the National Elec-
trical Contractors Association filed a joint amicus brief
in support of the Respondent.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
In this case the judge found that the Respondent
Union violated several different subsections of Section
8 of the Act. All the violations found are dependent
on the judge’s threshold finding that the Union’s pur-
suit of a contract grievance violated Section 8(e) of the
Act. Because we are not persuaded that Congress in-
tended Section 8(e) to apply to the conduct at issue
here, we reverse the decision of the judge and dismiss
the complaint.
A. Factual Findings
The facts are not in dispute. The Charging Party, the
Puget Sound Chapter of the National Electrical Con-
tractors Association (Chapter), is an association whose
members include both union and nonunion electrical
contractors. It negotiates, on behalf of its unionized
contractor members, a multiemployer collective-bar-
gaining agreement with the Union. The 1986–1988
agreement provided that the ‘‘Union shall be the sole
and exclusive source of referral of applicants for em-
ployment.’’ Section 5.4 of the agreement provided that
the Union would refer applicants ‘‘without discrimina-
tion against such applicants by reason of membership
or nonmembership in the Union.’’ The agreement also
provided that the Union would administer a joint
labor-management apprenticeship training program and
that ‘‘[a]pprentices shall be hired and transferred in ac-
cordance with the apprenticeship provisions of the
agreement between the parties.’’
The Chapter also offered two services for the benefit
of its nonunion contractor members: a referral service
for journeyman electricians and an apprenticeship
training program. The Union expressed its disapproval
of these nonunion programs to the Chapter orally, but
it was not until May 31, 1988, that the Union filed a
grievance pursuant to the provisions of the contract.
After the Chapter denied the grievance, the Union pur-
sued it to the Council on Industrial Relations for the
Electrical Contracting Industry (CIR), the arbitral
forum that the parties had agreed in their 1986–1988
contract to use for contract grievances.1 On August 16,
1988, the CIR issued a decision in favor of the Union,
ruling that the Chapter had violated the basic prin-
ciples which define the spirit and intent of the contract
by administering a job referral program and participat-
ing in an apprenticeship training program other than
those specified in the contract. It ordered the Chapter
to cease and desist from engaging in both activities.
On September 14, 1988, the Chapter’s board of direc-
tors voted to comply with the CIR award, and by Oc-
tober 13, both programs had been terminated.
On October 11, 1988, the Chapter filed suit in dis-
trict court under Section 301 of the Act, seeking vaca-
tion of the CIR award and damages. Thereafter, the
Regional Director for Region 19 petitioned the court
pursuant to Section 10(l) of the Act for an injunction
against the enforcement of the CIR award. The court
granted the 10(l) petition and stayed both actions pend-
ing a ruling by the Board. On April 2, 1990, the
United States Court of Appeals for the Ninth Circuit
affirmed the district court’s decision.2
B. The Judge’s Decision
The administrative law judge found that the Union
violated Section 8(e), 8(b)(4)(ii)(A), 8(b)(1)(A), and
8(b)(2) of the Act by its actions. As to Section 8(e),
he found that the labor agreement provisions, as inter-
preted by the CIR, are unlawful because they have an
object of benefiting union members generally rather
than one of solely benefiting unit employees. They re-
quire the Chapter, in effect, to cease doing business
with its nonunion contractor members because, without
the referral services, those members would withdraw
49ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
3 The judge reached this conclusion after making the finding that ‘‘employ-
ees who have chosen to remain nonunion’’ are ‘‘obviously precluded from job
referrals through the union hiring hall’’ because of their nonunion status.
4 In its brief, the Chapter makes essentially the same arguments as those
made by the General Counsel.
from the association. The judge also found that the
Chapter was not a party to the collective-bargaining
agreement, but only an agent for those contractors who
had signed letters of assent. He reasoned that, accord-
ingly, the effect of the provisions in issue was not con-
fined to the parties to the agreement, further supporting
the finding of an 8(e) violation. The judge rejected any
defense based on preservation of work traditionally
performed by unit employees.
Regarding the 8(b)(4)(ii)(A) violation, the judge
concluded that the Union’s filing and pursuit of the
grievance, which asked not only that the Chapter cease
and desist from the grieved activities, but that it pay
damages, was a coercive attempt to enforce an unlaw-
ful 8(e) provision. He also found that the CIR decision
and the Union’s threat to seek court enforcement of it
constituted violations of Section 8(b)(4)(ii)(A).
Finally, the judge found that the Union had violated
Section 8(b)(1)(A) and (2) in that its pursuit of the
grievance was prompted by an unlawful and discrimi-
natory objective rather than by genuine concern over
the merits of the grievance or the integrity of the col-
lective-bargaining agreement. He determined that those
employees who had chosen to remain nonunion suf-
fered discrimination based on that status in that they
were precluded from receiving job referrals through the
Union’s hiring hall, and are now precluded from refer-
ral through the Chapter’s program, as a result of the
CIR decision. Apprentices face the same dilemma.
Thus, he concluded, they are coerced into joining the
Union, which holds the key to employment.3
C. The Position of the Parties
The Union excepts to the judge’s decision, arguing
that there can be no unfair labor practice predicated on
its pursuit of a meritorious grievance pursuant to a
lawful contract clause. It asserts that in pursuing the
grievance, it had lawful primary objectives, such as
preserving work for its own members and protecting
the objectives of contract clauses which bar the Chap-
ter’s operation of a competing hiring hall and appren-
ticeship program. The Union contends that both the
employees and their bargaining agent have a primary
interest in maintaining the integrity of their bargained-
for programs and that the CIR was correct in finding
that the basic purposes of the parties’ agreement are
undermined when one party acts in conflict with its
terms.
In response, the General Counsel cites evidence that
the Chapter’s nonunion contractor members will with-
draw from membership if the nonunion services are
not resumed as clear proof of the cease-doing-business
effect of the Union’s actions. He asserts that work
preservation is not a defense available to the Union
under these circumstances, because the Union is actu-
ally attempting either to organize the nonunion firms
or to frustrate their business operations by making it
impossible for them to find qualified workers. This ob-
jective, the General Counsel contends, is inconsistent
with merely protecting the jobsite work of unit em-
ployees because it is aimed instead at benefiting union
members generally, an impermissible secondary pur-
pose.
The General Counsel also argues that the Chapter’s
role under the contract is clearly an administrative one,
for the benefit of its union signatory members, and
thus, the CIR cannot impose on it a commitment not
to do business with its other members. The commit-
ment to exclusivity here, he contends, is solely that of
the signatory employers to use the Union’s hiring hall
as their source of employees, and not a commitment
by their agent as to the conduct of its other business
relationships.4
The International Brotherhood of Electrical Workers,
AFL–CIO, and the National Electrical Contractors As-
sociation are joint amici curiae in this case in light of
their interest in the legal status of decisions issued by
their joint body, the CIR. They assert that the CIR’s
decision was entirely based on colorable contract
claims by the Union, which was lawfully seeking to
preserve not just the integrity of its bargained-for hir-
ing hall and apprenticeship program, but also the em-
ployment opportunities within the bargaining unit. The
Union sought to prevent the erosion of its finite pool
of available skilled workers, as well as to prevent in-
jury to the services on which unionized contractors
rely. These are lawful primary objectives, they argue,
and therefore, the grievance cannot be regarded as an
attempt to convert provisions of the collective-bargain-
ing agreement into unlawful ‘‘hot cargo’’ provisions,
in violation of Section 8(e).
The amici further argue that the Union’s effort to
protect the viability of the hiring hall from the Chap-
ter’s operation of a competing referral service reflects
interests that Congress sought to protect when, in the
Labor-Management Reporting and Disclosure Act of
1959, it enacted provisions relating to the construction
industry in Section 8(e) and 8(f). In particular, they
point to the history of Section 8(f), which permits the
execution of collective-bargaining agreements provid-
ing for the operation of nondiscriminatory hiring halls,
like the one to which the Chapter agreed here, that
serve as the exclusive source of referrals for employers
bound to the agreements.
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The 8(b)(4)(ii)(A) allegation rises or falls on the resolution of the 8(e)
issue because the complaint allegation under the former subsection charges co-
ercion with an object of forcing the employer into an agreement prohibited
by Sec. 8(e).
Findings of violations on the basis of the 8(b)(1)(A) and (2) allegations
similarly depend on our conclusion with regard to Sec. 8(e), because if we
find that the Union’s actions were entirely consistent with lawful primary ob-
jectives, then there is no basis for finding the discriminatory or otherwise un-
lawful intent proscribed by those sections. With respect to the judge’s finding
that employees who were not members of the Union would be ‘‘precluded
from referrals’’ through the Union’s hiring hall, we note that the agreement
under which the hiring hall operated required it to make referrals on a non-
discriminatory basis and that there was no evidence or allegation that any par-
ticular employee was ever refused a referral on the basis of a lack of union
membership. Of course, even employees who work under agreements contain-
ing union-security clauses may not lawfully be required by those clauses to
be a full member of the union. See NLRB v. General Motors Corp., 373 U.S.
734, 742 (1963).
6 The court of appeals did not dispute this general proposition but rather
found that the particular contractual provisions at issue in that case had unlaw-
ful secondary motives because they were aimed at pressuring one set of em-
ployers in order to resolve a dispute between the union and certain other em-
ployers (those who were delinquent in their payments to the multiemployer
trust funds).
7 386 U.S. at 636.
D. Analysis
The issue for decision is both narrow and novel:
whether a union violates Section 8(e) of the Act by
submitting to arbitration a contractual grievance seek-
ing to bar the practice, by an employer association
which has signed the collective-bargaining agreement
on behalf of its unionized members, of providing an
employment referral service and apprenticeship pro-
gram for its nonunion members, when these operations
threaten to undermine the hiring hall and apprentice-
ship programs established in the collective-bargaining
agreement.5 We find for the following reasons that it
does not.
We agree with the General Counsel and the Charg-
ing Party that the parties’ agreement, as interpreted by
the CIR, falls within the literal terms of Section 8(e),
insofar as it would require the Chapter to cease offer-
ing a hiring hall and apprenticeship program to its non-
union members. But in deciding whether the existence
of that objective requires a finding that the contract
clauses as construed in the grievance violate Section
8(e), we should avoid an approach that takes no ac-
count of the contractual context and the relationships
of all those affected. See National Woodwork Mfrs.
Assn. v. NLRB, 386 U.S. 612, 619 (1967) (finding that
while conduct may come within a literal reading of
Section 8(e), that is not the end of the analysis). Sec-
tion 8(e), like Section 8(b)(4), ‘‘could not be literally
construed; otherwise it would ban most strikes [and
agreements] historically considered to be lawful, so-
called primary activity.’’ Electrical Workers UE Local
761 v. NLRB, 366 U.S. 667, 672 (1961). And primary
activity is protected even though it may seriously af-
fect neutral third parties. NLRB v. Operating Engineers
Local 825, 400 U.S. 297, 303–304 (1971). As the
Board observed nearly two decades ago, in Operating
Engineers Local 12 (Griffith Co.), 212 NLRB 343
(1974), enf. denied 545 F.2d 1194 (9th Cir.), cert. de-
nied 434 U.S. 854 (1977):
It is by now well established that [not] every bar-
gaining contract with a ‘‘cease doing business’’
objective [that comes] literally within the pro-
scription of Section 8(e) of the Act, is . . . nec-
essarily unlawful. The Board and the courts have
held that a union may lawfully require a contract-
ing employer to cease or refrain from doing busi-
ness with another employer if the union’s objec-
tive properly falls within certain carefully delin-
eated exceptions, such as ‘‘work preservation’’
and maintenance of ‘‘union standards.’’
Id. at 343–344 (footnotes omitted).6
Although we do not agree with the Union that the
object of its grievance in this case was true ‘‘work
preservation,’’ we do agree that, under all the cir-
cumstances, we should recognize a ‘‘carefully delin-
eated’’ exception for its pressing of the grievance
under the circumstances here, without doing violence
to the congressional intent embodied in Section 8(e).
As summarized in National Woodwork, supra,7 the
legislative history of Section 8(e) indicates that Con-
gress was particularly concerned about abuses by the
Teamsters of clauses that ‘‘obligated neutral employers
not to do business with other employers involved in
labor disputes with the union’’—typically, clauses that
obligated trucking companies not to handle the goods
of other employers involved in disputes with the
Teamsters to which the trucking companies were not
parties. What is at issue here, however, is not truly
analogous to the clauses which Congress sought to ad-
dress.
The concern motivating the Union, which was at the
focus of the dispute manifested in the grievance, was
protection of the contractually established hiring hall
and apprenticeship system. The Chapter, whose con-
duct the Union sought to proscribe through its griev-
ance, was not a ‘‘neutral’’ with respect to that concern.
It was, in fact, the signatory to the collective-bargain-
ing agreement in which the hiring hall and apprentice-
ship system were established. Whether we characterize
the Chapter as an independent party to the agreement,
or merely the agent through which employers have ne-
gotiated and executed the agreement, the fact remains
that the Union could reasonably expect the Chapter not
to take action directly undermining this provision in an
agreement to which it had put its name. We decline to
read Section 8(e) to preclude the actions taken by the
Union in this case when those expectations were frus-
trated.
We note that the Chapter was itself operating the
rival hiring hall and apprenticeship system. This is not
a case in which a related entity of a contract signatory
51ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
8 S. Rep. No. 187, 86th Cong. 1st Sess. 28 (1959), reprinted in 1 Leg. Hist.
424 (LMRDA 1959).
9 Ibid.
10 See fn. 5, supra.
11 National Woodwork, supra at 644.
12 See fn. 7, supra.
13 See Operating Engineers Local 12 (Griffith Co.), supra (in finding no un-
lawful secondary objective in clause that required employer-members in multi-
employer unit to cease doing business with other member employers during
periods in which the latter were delinquent in their contributions to joint trust
funds, Board reasoned there was a common interest of employees of all the
employers in the stability of the trust funds that covered them all). Compare
Painters Local 36 (Stewart Construction), 278 NLRB 1012, 1015 (1986) (dis-
tinguishing Griffith in finding unlawful a clause that required boycott of an
employer to secure wage and benefit payments for the employees of another
employer). As already noted (fn. 6, supra), the court of appeals did not agree
that the delinquency provision was lawful; but the basis of its holding—that
the clause was aimed at resolving the Union’s disputes with the boycotted em-
ployers—does not apply in this case, where the Union is not seeking recogni-
tion from the Chapter’s nonunion members.
14 The General Counsel concedes that ‘‘this was a lawful hiring hall as
structured.’’
independently carries on operations which a union
challenges as harmful to its interests. Similarly, this is
not a case in which the Chapter is being pressured
with respect to disputes between the Union and the
Chapter’s nonunion members. There was no suggestion
either in the grievance or otherwise that the Union
would have dropped its grievance if any of the non-
union Chapter members hired employees who were
members of the Union or agreed to sign the collective-
bargaining agreement.
Given the way in which the construction industry is
organized, the Union could reasonably believe that the
Chapter’s operation of parallel job referral and appren-
ticeship systems for nonunion employers threatened the
viability of the contractually established systems. As
Congress recognized in enacting the special provisions
for the construction industry in Section 8(f), employees
in that industry are typically not tied indefinitely to
any single employer, but work from job to job for dif-
ferent employers.8 A great number of skilled workers
in the industry ‘‘constitute a pool of such help centered
around their appropriate craft union,’’ and employers
who sign collective-bargaining agreements with those
unions gain access to that pool through the contractual
referral system.9 Of course, since exclusive hiring halls
must be operated in a nondiscriminatory fashion, the
pool from which referrals would be made to signatory
employers would likely include both union members
and employees who did not belong to the Union.10
Whatever the membership characteristics of the pool,
however, in order to live up to the responsibilities
placed on it as the ‘‘exclusive’’ source of referrals to
employers bound by the agreement, the Union would
need to have an ample supply of workers available.
The rival hiring hall and referral system established
by the Chapter for its members who were not union
employers could be expected to draw employees from
the limited pool of skilled workers and therefore un-
dermine the ability of the Union to maintain an avail-
able labor supply to meet the needs of the employers
who were bound by the collective-bargaining agree-
ment. Whether or not the CIR, in finding merit to the
Union’s grievance, correctly concluded that the Chap-
ter’s establishment of the rival programs violated spe-
cific articles of the collective-bargaining agreement,
the fact remains that the grievance was sufficiently re-
lated to legitimate concerns about the effects of direct
actions of the Chapter on lawful union interests pro-
tected by the agreement that it cannot be condemned
as an effort ‘‘tactically calculated to satisfy union ob-
jectives elsewhere.’’11 It did not focus on the labor re-
lations between the Chapter’s nonunion employer-
members and their employees. The Chapter’s nonunion
employer-members were free to hire employees on
whatever terms they wished, union or nonunion.12 As
explained above, the grievance focused on maintaining
the skilled employee pool available for referral under
the agreement. The employees enrolled in the appren-
ticeship programs under the agreement and working for
employers under the agreement had a common interest
in the stability of that arrangement.13
We are particularly reluctant to find that the Union’s
efforts to protect its hiring hall arrangements violate
Section 8(e) in view of the unique statutory treatment
afforded such arrangements in the Act. By adding Sec-
tion 8(f) to the Act, Congress specifically approved of
the use of hiring halls in the building and construction
industry—notwithstanding the fact that an exclusive
hiring hall agreement plainly restricts a signatory em-
ployer’s ability to ‘‘do business’’ with alternative re-
ferral services. See Senate Committee Print on the
Labor-Management Reporting and Disclosure Act of
1959 (1 Leg. Hist. 967 (LMRDA 1959)) (‘‘it will not
be an unfair labor practice for a union and an em-
ployer, engaged primarily in the building industry to
sign an agreement because . . . (3) such agreement re-
quires the employer to notify the union of a need for
craftsmen and gives the union an opportunity to refer
such craftsmen for employment . . .’’).
There is no contention in this case that the Union
would violate Section 8(e) by seeking to prevent signa-
tory employers from going outside the hiring hall if the
Union had qualified individuals available for work.14
As noted above, it would exalt form over substance to
find that the Chapter could indirectly achieve the same
result by establishing a competing hiring hall in the
same geographic area, thereby reducing the number of
skilled employees for the Union to refer and increasing
the likelihood that signatory employers would go out-
side the Union’s hiring hall to find qualified employ-
ees. Under these circumstances, we find that the
Union’s efforts in this case to prevent its hiring hall
from being undermined by the Chapter’s competing
hiring hall do not violate Section 8(e).
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 National Woodwork, supra, 386 U.S. at 645, quoting Electrical Workers
UE Local 761 v. NLRB, 366 U.S. 667, 674 (1961).
1 All dates refer to 1988 unless otherwise indicated.
2 On November 16, Regional Director of Region 19 signed an order approv-
ing withdrawal of charge in Case 19–CB–6369 and dismissing allegations in
par. 17 of the consolidated complaint alleging a violation of Sec. 8(b)(3) of
the Act (G.C. Exh. 1(r)). In addition at hearing, General Counsel withdrew the
allegations in par. 16 of the complaint alleging a violation of Sec. 8(b)(1)(B)
of the Act.
3 In an unusual, if not unprecedented procedure, Respondent presented at
hearing a document entitled ‘‘Motion and Memorandum of International
Brotherhood of Electrical Workers, AFL–CIO, and the National Electrical
Contractors Association for Leave to File a Joint Brief as Amici Curiae.’’
(G.C. Exh. 1v.) I granted this motion and its brief has been received and con-
sidered with the other briefs of the parties.
The difference we have recognized here, between
unlawful secondary objectives and the cease-doing-
business objective focused on the operation of rival
programs to those established by the collective-bar-
gaining agreement, may well be characterized as a fine
distinction; but as the Supreme Court long ago ob-
served, ‘‘‘[h]owever difficult the drawing of lines more
nice than obvious, the statute compels the task.’’’15
ORDER
The complaint is dismissed.
James C. Sand, Esq., for the General Counsel.
Hugh Hafer and Cheryl A. French, Esqs. (Hafer, Price, Rine-
hart & Schwerin), for the Respondent.
Robert Fried and Mark R. Thierman, Esqs. (Thierman, Cook,
Brown & Mason), of San Francisco, California, for the
Charging Party.
John A. McGuinn and Gary L. Lieber, Esqs. (Porter, Wright,
Morris & Arthur), for the National Electrical Contractors
Association.
Laurence J. Cohen and Richard M. Resnick, Esqs. (Sherman,
Dunn, Cohen Leifer & Counts, P.C.), for the International
Brotherhood of Electrical Workers, AFL–CIO, Amici Cu-
riae.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Seattle, Washington, on Decem-
ber 1 and 2, 1988,1 pursuant to an order consolidating cases,
consolidated complaint, and notice of hearing issued by the
Regional Director for the National Labor Relations Board for
Region 19 on October 14 and which is based on charges
filed by Puget Sound Chapter, National Electrical Contractors
Association (Chapter or Charging Party) on July 26. The
complaint alleges that International Brotherhood of Electrical
Workers, Local Union No. 46, AFL–CIO (Respondent) has
engaged in certain violations of Sections 8(e), 8(b)(1)(A),
8(b)(2), and 8(b)(4)(ii)(A) of the National Labor Relations
Act (the Act).2
Primary Issue
Whether Respondent violated various provisions of the Act
listed above, by submitting first to Chapter, then after rejec-
tion, to the Council on Industrial Relations for binding arbi-
tration, a grievance objecting to Chapter’s practice of dis-
patching both inside wireman job applicants and apprentice
trainees to Chapter’s nonunion firm members who requested
the service, and after the grievance was ultimately found to
have merit, Chapter was ordered to cease and desist from op-
erating the services described above on the grounds they vio-
lated the applicable collective-bargaining agreement now ex-
pired and a successor agreement.
All parties were given a full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel, Charging Party, and Amici Curiae.3
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
General Counsel offered a written stipulation which reads
as follows:
1. The following employers each have made sales of
services within the state of Washington within the past
twelve months, which period is representative of their
operations generally, valued at in excess of $50,000,
and, during the same period have also made sales of
services in other states valued at in excess of $50,000:
Burke Electric
Power City Electric
Superior Electric Service
Northwest Electric
Service Electric
2. The following employers each have purchased
goods valued at in excess of $50,000 directly from sup-
pliers located outside the State of Washington for ship-
ment to said employers’ respective places of business
or jobsites within the State of Washington within the
past twelve months, which period is representative of
each such employer’s business operations generally:
BURKE ELECTRIC
POWER CITY ELECTRIC
SIGNAL ELECTRIC
SUPERIOR ELECTRIC
UDL ELECTRIC
NOLET ELECTRIC
COLLINS ELECTRIC
NORTHWEST ELECTRIC
EVERGREEN ELECTRIC
SERVICE ELECTRIC
3. The following employers, during the past twelve
months, which period is representative of their respec-
tive operations generally, each purchased goods valued
at in excess of $50,000 for delivery to their respective
places of business or jobsites within the state of Wash-
ington directly from suppliers outside said state or from
suppliers within said state which themselves had pur-
chased such goods directly from suppliers outside said
state:
53ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
4 Errors in transcript are noted and corrected.
5 Longstanding Board precedent holds that a signer of an IBEW Letter of
Assent A becomes part of a multiemployer bargaining group. Vincent Electric
Co., 281 NLRB 903 (1986).
6 A portion of the money collected by Chapter from its members is sent to
NECA.
TRIG ELECTRIC
FOX ELECTRIC
This stipulation has been signed and entered into this
1st Day of December, 1988, at Seattle, Washington.
Hugh Hafer, Counsel for IBEW local 46
/s/ Robert Fried, Counsel for Puget Sound Chapter
/s/ James Sand, Counsel for General Counsel
[G.C. Exh. 22.]
Although Respondent’s attorney did not sign the document,
he orally agreed to its contents at hearing. (Tr. p. 11.) Rep-
resentatives of Power City Electric, Collins Electric and Su-
perior Electric Service Co. testified at hearing and estab-
lished their nonunion status and membership in chapter.
Accordingly based on the stipulation recited above and the
testimony of three nonunion contractors, I find that Power
City Electric, Collins Electric, and Superior Electric Service
Co. are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, International Brotherhood of Electrical Work-
ers, Local Union, No. 46, AFL–CIO admits, and I find, that
it is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts4
1. Background
Chapter, a Washington State nonprofit corporation, is one
of approximately 133 chapters which constitute the National
Electrical Contractors Association (NECA). Chapter’s By-
Laws and Code of Ethics recite its objectives which include:
OBJECTIVE
(1) To arrange for and promote meetings of Elec-
trical Contractors who are engaged in business in this
area, and provide them with an effective voice.
(2) To promote harmonious labor-management rela-
tions and provide for the orderly settlement of labor
disputes through the Council on Industrial Relations
and otherwise.
(3) To promote and join in the operation of programs
of practical training and related instruction for appren-
tices, and advance training for journeymen in the elec-
trical trade in this area.
. . . .
(10) To increase and stabilize the membership of Na-
tional Electrical Contractors Association, Inc., and to
cooperate in general with said National Association,
conducting all activities in accord with its Constitution.
. . . .
(12) To speak for the electrical contracting industry
as a whole and represent its interests before legislative
assemblies, governmental agencies and other bodies.
[G.C. Exh 2.]
With a total membership of approximately 70 contractors,
Chapter is about evenly divided with 50 percent union or sig-
natory and 50 percent nonunion or nonsignatory. A member
of Chapter or nonmember may signify its willingness to be
bound by the terms of a collective-bargaining agreement by
executing a Letter of Assent A or B (G.C. Exhs. 4, 5).5
Chapter, itself, does not directly engage in any electrical con-
tracting nor does it employ electricians to perform electrical
craft work. In return for the payment of annual dues amount-
ing to $475 and additional fees based on a formula of 18
cents for each electrician hour worked,6 union and nonunion
members receive a variety of services from Chapter. For ex-
ample, for its union members, which constitute a multiem-
ployer bargaining unit, Chapter negotiates, administers and
polices various collective-bargaining agreements. One of
these agreements, effective between June 30, 1986 and May
31, was received into evidence (G.C. Exh 3). The agreement
covers all inside electrical construction work within the terri-
torial jurisdiction of Respondent.
For its nonunion members, Chapter provided until October
13, a two-prong referral system for inside wiremen job appli-
cants and for apprentice trainees. The referral program con-
stituted about 70 to 75 percent of the total service provided
by Chapter to its nonunion members. As a result of a griev-
ance filed by Respondent as more fully explained below, the
referral system is now terminated.
The current executive director of Chapter is Steve
Washburn, a lengthy witness at hearing. He reports to a
Board of Directors elected by the membership. As the geo-
graphical jurisdiction of each NECA Chapter is roughly
equivalent to that of a corresponding IBEW local, Chapter
and Respondent are responsible for the same area in and
around the city of Seattle, Washington. Washburn’s counter-
part in Respondent is David Jordan, Respondent’s business
manager and financial secretary, and also a witness at hear-
ing.
Respondent has a membership between 3200 and 3500 of
which approximately 1600 are inside wiremen, the tradesmen
affected by the issues in this case. The others are assigned
to various other job units such as marine ship yard worker.
2. The grievance
For a long period of time, Respondent’s officials had dis-
approved of Chapter’s nonunion referral program. For several
years prior to May 31, the date of filing of a formal griev-
ance, both Jordan and Henry McGuire, a business representa-
tive for Respondent, made various verbal objections to Chap-
ter’s practice. During this period of time, Respondent oper-
ated its own hiring hall referral system by which it referred
its members or members of other locals to union contractors.
Because union members generally earned higher wages and
more generous fringe benefits, as set forth in the collective-
bargaining agreement, Respondent viewed the competing
nonunion referral system as a threat tending to encourage
contractors to become nonunion so as to lower their labor
costs substantially. In late January or early February, Re-
spondent officials Jordan and McGuire met with Washburn
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and his associates and offered to refer union members out of
Respondent’s hiring hall to nonunion contractors. The pur-
pose of the offer was to further Respondent’s educational and
organizational goals, and to blunt the effect of Chapter’s
nonunion referral system. However, Chapter officials rejected
this proposal.
In any event, on May 31, Respondent filed a grievance
pursuant to applicable provisions of the 1986–1988 labor
agreement. (G.C. Exh 3.) In pertinent part, the grievance
reads as follows:
May 31, 1988
Puget Sound Chapter of NECA
Mr. Steve Washburn
711 6th Avenue, North
Seattle, WA 98109
Subject: Grievance of IBEW Local #46 against Puget
Sound Chapter of NECA
Dear Mr. Washburn:
The Puget Sound Chapter of NECA has violated the
labor agreement with respect to the dispatch of workers
involved in inside electrical construction work and the
training of Journeymen and others within the jurisdic-
tion of IBEW Local #46.
Our Agreement starts out stating that the agreement
is an, ‘‘Agreement by and between the Puget Sound
Chapter, National Electrical Contractors Association,
and Local Union No. 46, International Brotherhood of
Electrical Workers. It shall apply to all firms who sign
a letter of assent to be bound by this agreement. As
used hereinafter in this agreement, the term ‘‘Associa-
tion’’ shall mean the Puget Sound Chapter, National
Electrical Contractors Association and the term
‘‘Union’’ shall mean Local Union No. 46, I.B.E.W.
The term ‘‘Employer’’ shall mean an individual firm
who has been recognized by an assent to this agree-
ment.’’
Letters of Assent may be signed by firms which will
bind such firms to the terms and conditions of the
NECA/IBEW Agreement and restates the fact that the
IBEW and NECA are the principle parties to the Agree-
ment. Under the Section titled ‘‘Basic Principles’’ the
Agreement states, ‘‘This agreement shall cover all in-
side electrical construction work and workers within the
territorial jurisdiction of Local Union No. 46 of the
International Brotherhood of Electrical Workers.’’
Clearly, all employees doing electrical construction
work are covered by this Agreement.
In Article I, Section 1.03 the Agreement states, ‘‘The
agreement shall be subject to change or supplement at
any time by mutual consent of the parties hereto. Any
such change or supplement agreed upon shall be re-
duced to writing signed by the parties hereto and sub-
mitted to the International Office of the IBEW and the
National Office of the NECA for approval, the same as
this agreement. Once again, it is clearly stated who the
principle parties are to this Agreement.
In Article V, Section 5.01 the Agreement states, ‘‘In
the interest of maintaining efficient system of produc-
tion in the industry providing for an orderly procedure
of referral of applicants for employment preserving the
legitimate interests of the employees in their employ-
ment status within the area and of eliminating discrimi-
nation in employment because of membership or non-
membership in the Union, the parties hereto agree to
the following system of referral of applicants for em-
ployment.’’ Section 5.02 states, ‘‘The Union shall be
the sole and exclusive source of referral of applicants
for employment.
The Puget Sound Chapter of NECA has violated the
agreement by referring applicants for employment in
violation of Article V, Section 5.01 through 5.21.
Also, the agreement has been violated with respect
to apprenticeship. On September 30, 1987 the parties
agreed to the new National NECA and IBEW standard
fifth year apprenticeship language (See copy attached.)
The agreement to adopt the language was made by the
parties as specified in Article I, Section 1.03 of the
agreement and was, in fact, made between the Puget
Sound Chapter of NECA and IBEW Local 46.
The new language inserted in our Article III, Section
3.12 states, ‘‘There shall be a Joint Apprenticeship and
Training Committee having four members representing
the Puget Sound Chapter of NECA and an equal num-
ber of four members representing Local 46 of the
IBEW. This committee shall make local standards in
conformity with the National Apprenticeship and Train-
ing Standards for the Electrical Contracting Industry
governing the selection, qualifications, education, and
training of Journeymen and others. The local standards
will be promptly agreed upon by the parties to this
Agreement and shall be registered with the National
Joint Apprenticeship and Training Committee and the
appropriate State or Federal Apprenticeship Registration
Agency.’’ Also, Section 3.19 states, ‘‘The parties to
this Agreement shall enter into a Joint Apprenticeship
and Training Trust Fund Agreement which shall con-
form to Section 302 of the Labor-Management Rela-
tions Act of 1947, as amended.’’
The JATC is set up between the Puget Sound Chap-
ter of NECA and IBEW Local 46 and these parties are
signatory and bound to the provisions under the JATC
Sections of the Labor Agreement.
Article III, Section 3.14(a) states, ‘‘The Committee
shall supervise all matters involving apprenticeship
training in conformity with the provisions of this
Agreement and the registered local Apprenticeship
Standards. In case of a deadlock, the matter in dispute
shall be referred to the parties to this Agreement for
settlement. Any proposed change in this Agreement
pertaining to Apprenticeship and Training should first
be considered by the committee for their recommenda-
tion before being acted upon by the parties to this
Agreement.’’ It is clearly a matter of fact that the Puget
Sound Chapter of NECA has established a nonunion
apprenticeship program and has been involved in all
matters involving apprenticeship training and referral
outside of the purview of the agreed to joint oversight
committee, the JATC in direct violation of the Agree-
ment.
In Article V, Section 5.20 the Agreement states,
‘‘Apprentices shall be hired and transferred in accord-
ance with the apprenticeship provisions of the agree-
ment between the parties.’’ It is clear, that NECA has
55ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
hired and transferred in direct violation of the Agree-
ment.
[G.C. Exh. 6.]
As relief, Respondent sought inter alia, damages and a
cease-and-desist order against Chapter’s referral practices.
On June 3, Chapter replied to the grievance as follows:
June 3, 1988
Hank McGuire
Business Representative
LU 46, IBEW
2700 First Ave
Seattle, WA 98121
RE: Response to your letter dated May 31, 1988
Dear Hank:
Please be advised that the Puget Sound Chapter,
NECA is not bound by the terms and conditions as de-
lineated in the Labor Agreement. Please refer to page
one of the Labor Agreements where it states in part:
‘‘It shall apply to all firms who sign a letter to be
bound by this agreement.’’
In addition the same paragraph states in part:
‘‘The term ‘employer’ shall mean an individual
firm who has been recognized by an assent to this
agreement.’’
In your letter dated May 31, 1988 you discuss the
clause under ‘‘Basic Principles.’’ Notice the word
throughout the clause, ‘‘employer,’’ then read the defi-
nition of the word employer as delineated above.
Your fallacious conclusion may be referred to as an
‘‘Argumentum Ad Ighoratiam.’’ NECA will not nor can
participate in such a charade. A similar but reverse situ-
ation would be for NECA to file a grievance against
LU 46, IBEW for IBEW electricians ‘‘moonlighting’’
or for IBEW electricians working for Merit Shops with
their card in their shoe. Sending such letters back and
forth does not respond to market conditions.
I trust the discussion of filing grievances against
each other has ended.
Sincerely,
/s/ Steve R. Washburn
cc: Randy Burke
Gary Lane
Jim Mackey
[G.C. Exh. 7.]
On June 16, Chapter supplemented its response by contend-
ing that Respondent’s 30-day filing period for submitting the
grievance had expired over 3 years ago when Chapter had
begun its nonunion referral program. (G.C. Exh. 9.)
On July 12, Respondent submitted a letter to Chapter
which reads as follows:
July 12, 1988
Steve Washburn, Chapter Manager
N.E.C.A.
711 6th Avenue, North
Seattle, WA 98109
Dear Mr. Washburn:
With respect to the grievance concerning the referral
of applicants for employment and training and referral
of apprentices by the Puget Sound Chapter of NECA,
we wish to make the following proposal in the interest
of industrial peace and prosperity. We will drop our de-
mands for any and all damages if the Chapter will im-
mediately cease and desist from all the grieved activi-
ties to our satisfaction.
We do not wish to pursue this all the way to the
CIR. However, if the Chapter continues to engage in
the grieved activities, we have no alternative but to pro-
ceed to the Council and ask for full damages.
Attached is a settlement agreement for your consid-
eration.
Sincerely,
/s/HANK McGuire
Hank McGuire, Business Representative
Local Union No. 46, I.B.E.W.
HM:dr
opeiu#8 Afl–cio
encl.
cc: John J. Barry, President, I.B.E.W.,
International Office
S.R. McCann, Vice-President, I.B.E.W.,
Ninth District
Bill Grostick, International Rep., I.B.E.W.,
Ninth District
Mike Lucas, Organizer, I.B.E.W.,
International Office
Emerson Hamilton, President, N.E.C.A.
Dan McPeak, Director of N.E.C.A.
John M. Grau, Executive Vice-President,
National N.E.C.A.
Bill Birkett, District Rep, S. Colorado Chapter
of N.E.C.A.
[G.C. Exh. 12.]
The next day, the parties to the grievance met but were un-
able to reach agreement on the proposals contained in the
July 12 letter above. (G.C. Exh. 14.)
On August 2, Respondent submitted its grievance to the
Council on Industrial Relations for the Electrical Contracting
Industry (CIR), a nationwide contractual dispute resolution
forum established by NECA and IBEW. (G.C. Exhs. 15a–c.)
On August 16, the CIR issued its decision finding as fol-
lows:
1. through 6. The Council finds that the contract lan-
guage clearly names the Puget Sound Chapter, NECA,
as party to the collective-bargaining agreement, which
is signed for the Chapter by its representative. Ref-
erences in the agreement to ‘‘The Parties’’ are defined
as Local Union 46, IBEW, and the Puget Sound Chap-
ter, NECA. The agreement specifically states it is ‘‘by
and between the Puget Sound Chapter, NECA, and
Local Union 46, IBEW.’’
The Council further finds that the Puget Sound
Chapter, NECA, through its agent(s), has clearly vio-
lated the basic principles which define the spirit and in-
tent of the Inside Collective Bargaining Agreement be-
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween the Chapter and the Local Union. Parties to an
agreement should not enter into a contract and subse-
quently work in conflict with its terms. More specifi-
cally, the areas of the agreement where the intent was
violated by the Chapter include Article III in the Chap-
ter’s unilateral support of, and participation in, an ap-
prenticeship program other than that defined in the
aforementioned Labor Agreement. By assisting and par-
ticipating in a separate apprenticeship program, the
Chapter is obviously competing with the agreed-upon
JATC Program for the available pool of applicants,
thereby creating a clear conflict of interest.
The Chapter has violated the intent of Article V of
the agreement by their administration of a job referral
procedure other than that provided for in their collec-
tive-bargaining agreement with Local Union 46, IBEW.
Local 46 has presented evidence that the Chapter has
solicited job applicants on the Local 46 Referral List
for referral to jobs for other than signatory employers.
Since the Local 46 exclusive referral system is avail-
able to both Union and nonunion electricians, the Chap-
ter’s participation in a separate referral system clearly
undermines the availability of electricians for the Local
Union to refer through the agreed-upon referral system
thereby creating a conflict of interest by the Chapter.
Therefore, the Council directs the Puget Sound
Chapter, NECA, and its agent(s) to immediately cease
and desist from engaging in any and all activities which
are in conflict with the spirit and intent of their collec-
tive-bargaining agreement with Local 46, IBEW.
Unanimously Adopted:
Washngton, D.C.
August 16, 1988
[G.C. Exh. 16.]
Meanwhile, a new collective-bargaining agreement has by
now been negotiated between Chapter and Respondent (G.C.
Exh. 17). While not yet—as of the date of close of hearing—
approved by IBEW, both sides are governing themselves as
though the successor agreement is in full force and effect.
The new agreement does not provide for binding arbitration
by the CIR as does the old agreement. In all other particu-
lars, relevant and material provisions appear to remain the
same.
When Chapter did not immediately terminate its job appli-
cant and apprentice referral programs, both Jordan and
McGuire threatened to seek court enforcement of the CIR de-
cision. On or about September 14, Chapter decided to com-
ply with the decision (G.C. Exh. 23). On September 16, Re-
spondent was notified of the decision (G.C. Exh. 19). By Oc-
tober 13, Chapter had terminated both programs and termi-
nated an employee named Gwen Tuthill, the coordinator for
the Manpower Assistance Program, under which the appren-
tices had been referred for training.
As part of the closing down process, Washburn also trans-
ferred without cost, Chapter’s computers and software used
in the defunct referral programs to Associates Building Con-
tractors (ABC), another trade group. This transaction in-
cluded a verbal understanding between Chapter and ABC
that at some unspecified future date, ABC would return to
Chapter the computers, but not the software containing
among other materials, the names of 1500 to 1700 persons
on Chapter’s nonunion out-of-work list.
Chapter and ABC are not connected to each other. How-
ever, the latter apparently intends to set up a system similar
to that which Chapter shut down. No credible evidence was
presented to show such a system has actually begun to func-
tion or will necessarily function in the future.
After Chapter shut down its referral system, it continued
to receive as of late October, up to 10 calls per day from
job applicants wishing to register or re-register on Chapter’s
out-of-work list for nonunion referrals. Washburn told his
staff to explain to these callers why the referral system was
no longer operating.
According to Washburn, before the CIR decision, his
membership of nonunion contractors had been increasing.
After Washburn circulated a written notice in late September
or early October, stating that the referral system was to be
shut down, he received written notice from about 10 contrac-
tors that they were terminating membership either imme-
diately or within 30 days.
At hearing, representatives of three nonunion contractors
testified regarding their membership in Chapter and the ef-
fect of the discontinued job applicant and apprentice training
programs on their plans to continue membership. Witnesses
David Defeyter on behalf of Power City Electric, Robert
Collins on behalf of Collins Electric Co., and James Donald-
son, on behalf of Superior Electric Service Co., all gave
similar testimony which I fully credit. They were dues pay-
ing, nonunion members of Chapter primarily to receive the
benefits of the job referral and apprentice training programs.
Subsequent to the termination of the programs, they were re-
quired to use newspaper want ads, word-of-mouth, or other
methods to obtain employees. These other methods involved
extra expense and were otherwise less effective and satisfac-
tory than Chapter’s now terminated programs.
The witnesses indicated that they had not yet terminated
membership but rather continued to pay dues and to a certain
extent participate in the affairs of Chapter. Their reluctance
to sever membership is based on the uncertainty caused by
the instant case and other litigation referred to below. These
legal actions, even when considered with the likelihood of
lengthy appeals and related litigation are for now, sufficient
to encourage the three contractors to continue membership.
However, I find the threat to withdraw from Chapter if the
job applicant and apprentice training system is not revived is
substantial and not speculative.
As a basis for my conclusion, I note the following: One
contractor, Dwyer Electric Co., has in fact, terminated mem-
bership in Chapter due to the CIR decision (G.C. Exh. 23).
Defeyter, representing Power City Electric Co., has with-
drawn from NECA based on its national policy of not pro-
viding service to nonunion firms. Prior to August 16, Chap-
ter obviously did not accept this national policy. Finally, as
a matter of common sense and logic, if nonunion members
are no longer receiving 70 to 75 percent of the services for
which they are paying annual dues, it appears to follow natu-
rally, they will eventually stop paying for that which they no
longer receive.
57ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
7 Sec. 10(l) of the Act provides district courts with the power to temporarily
enjoin unfair labor practices that impinge on the public interest in the free
flow of commerce (i.e., strikes and boycotts) Aguayo v. Tomco Carburetor
Co., 853 F.2d 744 fn. 2 (9th Cir. 1988).
8 Judicial opinions in collateral proceedings under Sec. 10(j) (or Sec. 10(l))
do not control the Board’s dispositions of unfair labor practice charges. Adver-
tiser’s Mfg. Co., 280 NLRB 1185, 1186 fn. 3 (1986). Accordingly, the 10(l)
injunction is noted for background only.
9 Notwithstanding the decision of Chief Judge Rothstein, as of the hearing
date of the instant case, Chapter had not decided whether it would resume its
job applicant referral or its apprentice trainee programs.
10 In accord with standard practice, the two rejected exhibits are placed in
the rejected file and will be considered by the Board or reviewing court if ap-
propriate.
3. The 10(l) injunction7 and related litigation
On October 11, Chapter filed in U.S. District Court for the
Western District of Washington an amended complaint
against Respondent seeking vacation of the CIR award and
damages. (C.P. Exh. 2.) Exhibit B to the complaint is an Au-
gust 31 letter from John Dwyer, a representative of Dwyer
Electric, Inc., to Washburn giving unequivocal notice that ef-
fective September 30, Dwyer Electric was terminating its
membership and affiliation with Chapter due to the CIR deci-
sion.
Subsequent to this lawsuit, the NLRB, by its Regional Di-
rector, acting pursuant to Section 10(l) of the Act, petitioned
the U.S. District Court for the Western District of Washing-
ton, for a preliminary injunction enjoining the enforcement of
the CIR arbitration award. A memorandum opinion in that
case authored by Chief U.S. District Judge Barbara J.
Rothstein, and dated November 21, has been admitted into
evidence in this case (C.P. Exh. 1). Based entirely on affida-
vits (Tr. pp. 371–372), the court’s decision granted the
Board’s petition for a preliminary injunction on the grounds
that the CIR’s interpretation of the collective-bargaining
agreement violates Section 8(e) of the Act.8 The court then
consolidated the Board’s case with the earlier case filed by
Chapter and stayed both cases pending a ruling by the
NLRB.9
B. Analysis and Conclusions
1. Preliminary matters
a. Respondent’s motion to reopen record
With its brief, Respondent filed a Motion to Reopen the
Record in order to admit Respondent’s Exhibits 18 and 19.
Respondent submits with the Motion, an ‘‘Affidavit of Kath-
leen Phair Barnard.’’ The Affiant represents that she is an at-
torney in the office of Respondent’s trial counsel, Hugh
Hafer. Affiant, who did not participate in the hearing, also
avers that she is familiar with the record of this case. She
then purports to identify in conclusionary terms the two ex-
hibits which are offered into evidence: Exhibit 18 purports
to be a ‘‘true and accurate copy of a letter received by the
Secretary of the CIR seeking clarification of the decision of
the CIR at issue in this proceeding, and the CIR decision re-
sponding to this letter and clarifying its award.’’ Respond-
ent’s Exhibit 19 purports to be ‘‘a true and accurate copy of
a newsletter distributed by [Chapter], which states that Chap-
ter’s suspension from NECA has been suspended.’’
No basis for affiant’s characterizations of the exhibits is
included. No discussions of relevancy or citations of author-
ity are submitted. Both General Counsel and Charging Party
object.
Section 102.35 of the Board’s Rules and Regulations
reads, in pertinent part:
Duties and powers of administrative law judges . . . .
. . . the administrative law judge shall have authority,
with respect to cases assigned to him . . . (h) . . . to
order hearings reopened . . . .
Unlike a subsequent section of the Board’s Rules and Regu-
lations, Section 102.48 (d)(1) dealing with the reopening of
the record after the Board decision or order, Section 102.35
(h) does not include specific standards or guidelines deter-
mining how a motion like that submitted by Respondent
should be evaluated. I conclude therefore that a decision on
such motion is committed to the sound discretion of the ad-
ministrative law judge. Cf. NLRB v. Cutter Dodge, 825 F.2d
1375, 1380 (9th Cir. 1987).
Based on Respondent’s failure to show adequate founda-
tion, and relevancy, I deny Respondent’s motion to re-open
the record and refuse the offer of Respondent’s Exhibits 18
and 19.10
In further explanation of my decision, I note that hearing
of this case occurred on December 1 and 2. The exchange
of correspondence over the next two weeks as represented in
Respondent’s Exhibit 18 adds nothing to the case. In addi-
tion, the original CIR decision speaks for itself and does not
require ‘‘clarification’’ for purposes of my deciding whether
it violated Section 8(e) and other sections of the Act.
As to Respondent’s Exhibit 19, this document relates to a
dispute between Chapter and NECA. It is even less relevant
than Respondent’s Exhibit 18. I will discuss the entire issue
in greater detail below in so far as it relates to Respondent’s
affirmative defense of intervening cause.
To the extent that Respondent has incorporated any discus-
sion of the rejected exhibits in its brief, I will ignore the dis-
cussion.
b. Respondent’s motion for continuance
Much was made at hearing of Respondent’s motion for
continuance for the purpose of subpoenaing in various elec-
trical contractor members of Chapter, to explore whether
they had terminated or had threatened to terminate member-
ship in Chapter because of the CIR decision or for other rea-
sons. Because this issue may well be addressed on appeal,
it is prudent to discuss the matter briefly.
Section 102.43 of the Board’s Rules and Regulations
reads:
Continuance and adjournment—In the discretion of
the administrative law judge, the hearing may be con-
tinued from day to day, or adjourned to a later date
. . . by the administrative law judge . . . .
Administrative law judge’s discretion has been noted and re-
peatedly approved by the Board and courts. See, e.g., Franks
Flower Express, 219 NLRB 149 (1975), enfd. mem. 529
F.2d 520 (5th Cir. 1976), and NLRB v. Interboro Contrac-
tors, 432 F.2d 854, 860–861 (2d Cir. 1970), cert. denied 402
U.S. 915 (1971).
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 However, I note a frequent intervening cause offered by Respondents and
uniformly rejected by the Board is reliance on advice of counsel. See Medical
Center at Bowling Green, 268 NLRB 985, 986 fn. 3 (1984); NLRB v. Hendel
Mfg. Co., 483 F.2d 350, 353 (2d Cir. 1973).
Turning now to the instant case, I note the following fac-
tors which influenced my decision to deny Respondent’s Mo-
tion: (1) Pursuant to Sections 102.95, 102.96, and 102.97 of
the Board’s Rules and Regulations, the Board instructs that
a case in which a 10(l) injunction has been issued is entitled
to expeditious processing. As noted in ‘‘The Facts,’’ a 10(l)
injunction was issued in the instant case; (2) Respondent
failed to request subpoenas duces tecum in a timely manner
and to describe with sufficient specificity that relevant evi-
dence which it expected to obtain. Hearing in the case had
been continued once from November 17 to December 1
(G.C. Exh. 1m). Respondent was well versed in the issues
based on the 10(l) injunction hearing. Moreover, it knew that
General Counsel had specifically alleged in paragraph 15(b)
of the complaint (G.C. Exh. 1k) that Dwyer Electric, Inc.,
had terminated its membership in Chapter because of the
CIR decision. Yet Respondent did not even attempt to bring
in an official of Dwyer to ascertain whether it did terminate
membership in Chapter, and if so, whether it did for the rea-
son alleged by the General Counsel.
The failure of Respondent to bring in Dwyer Electric rep-
resentatives or to explain why he could not do so, casts
doubt on the bona fides of any claim of prejudice. In fact,
Respondent could point to no specific evidence that it needed
to defend itself. Instead Respondent sought to engage in the
classic ‘‘fishing expedition’’ in the hope—not even in the ex-
pectation—that something helpful might turn up. To support
this conclusion, I need look no further than Respondent’s
cross-examination of the three contractors called by General
Counsel. Respondent had a full opportunity to cross-examine
these witnesses—who are representative of the other contrac-
tors—and so far as I am concerned, Respondent developed
no information helpful to any aspect of its case.
In its discussion of this issue (Br. pp. 45–49), Respondent
has failed to mention and discuss the fact that issuing the re-
quested subpoenas would have required a continuance of in-
definite duration while Respondent attempted to serve and to
schedule the various contractors.
Respondent also contends (Br. p. 47) that it was entitled
to test the veracity of the letters attributing contractors’ with-
drawals from Chapter to the CIR decision. Again, I am puz-
zled because Respondent’s counsel himself noted during
hearing:
MR. HAFER: Exhibit 21, [letters from contractors]
Your Honor, was identified verbally on the record and
has not been marked and has not been offered.
MR. SAND: That’s right.
[Tr. p. 368.]
Since the exhibit which Respondent now seeks to rebut was
never offered or received, said exhibit will not be considered
in arriving at a decision.
In light of the above, I reaffirm my decision that Respond-
ent failed at hearing and fails again now to show why a con-
tinuance and issuance of subpoenas are warranted.
c. Respondent’s so-called intervening cause theory is
not supported by credible evidence
At all times material to this case, Chapter found itself in
disagreement with NECA over Chapter’s practice of provid-
ing services to its nonunion members. Respondent now con-
tends that to the extent that Chapter has lost members, such
losses are the result of the conflict between Chapter and
NECA, rather than the result of the CIR decision issued as
the result of Chapter’s grievance. Accordingly, Respondent
argues, it cannot be found to have violated Section 8(e) of
the Act.
Because the record is devoid of evidentiary support for
Respondent’s theory, it is unnecessary to determine whether
Respondent’s affirmative defense, if proven, may constitute
a valid defense to an 8(e) violation.11
I begin with NECA’s long-range plan issued in October
1987, some 4 years after Chapter began its job applicant pro-
gram for Chapter’s nonunion members. This document reads
in pertinent part:
Based on the labor policy adopted by the vast major-
ity of NECA members, labor relations services have
been and are projected to be one of the foremost serv-
ices desired by NECA members. To be effective at de-
livering these services requires the establishment and
maintenance of harmonious relationships with the cor-
responding labor union including the commitment to
support mutually desirable goals and programs. The
promotion of such goals and programs will at times be
in conflict with the interests of electrical contractors
who are not signatory to union labor agreements.
Accordingly, NECA cannot appropriately serve all
interests of both signatory and nonsignatory electrical
contractors. Until such time as the labor policy and
labor relations interests of the majority of NECA’s
members change, it must place the interests of signatory
contractors above those of nonsignatory contractors.
NECA will not, therefore, provide services which are
unique to the needs of nonsignatory contractors and
which would conflict with the best interests of signa-
tory electrical contractors. Further, NECA and its chap-
ters should investigate the special business interests and
labor policy of each applicant for membership, and if
they are found to be outside the scope of the Associa-
tion’s services or in conflict with any of its policies, the
applicant shall be appropriately advised concerning the
Association’s limitations in providing him a service and
promoting his interests. [R. Exh. 1, p. 4.]
Following the issuance of the long-range plan, NECA offi-
cials sent various letters to Chapter objecting to its continu-
ing policy of providing job applicant and apprentice training
services to its nonunion members. (See, for example, R. Exh.
8, sub Exh. 27.)
59ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
On June 17, some 8 months after the long-range plan, and
some 2 weeks after Respondent filed its grievance, NECA
wrote a stronger letter to Chapter. It reads as follows:
June 17, 1988
Board of Directors
Puget Sound Chapter, NECA
711 Sixth Avenue
Seattle, Washington 98109
Gentlemen:
At each of its meetings over the past two years, the
NECA Executive Committee has reviewed complaints
and problems regarding the operations of the Puget
Sound Chapter. We have specified some of these prob-
lems to you in past letters. In general, we find that
there is dissatisfaction with your chapter operations
being expressed by a number of your members, by po-
tential members who refuse to join because of your
policies, by the local union, and by your surrounding
NECA chapters and other NECA chapters on the West
Coast. Of particular concern is the disruption your oper-
ations and policies have created in the labor relations
activities of your own chapter and of neighboring
NECA chapters.
A number of these problems can be attributed to
your support of nonunion apprenticeship programs in
the State of Washington, your failure to grant proper
autonomy and service to IBEW-employing electrical
contractors, your repeated violations of the membership
and jurisdictional provisions of the NECA Bylaws and
your general operational philosophy which is out-of-
phase with other NECA chapters and National policies.
The Executive Committee believes that while these ac-
tions justify the removal of your chapter’s charter of af-
filiation with NECA, we prefer that your chapter mem-
bers address these issues directly and attempt to resolve
them.
To remedy the problems that we have noted we rec-
ommend the following specific actions:
1. Union-employing electrical contractors must be
given autonomy over their own contract negotiations
and labor relations matters apart from the influence or
control of nonunion electrical contractors or board of
director members.
2. The chapter should support the NECA/IBEW Joint
Apprenticeship Program in your area and the State of
Washington and cease efforts to undermine this pro-
gram by support of competing programs.
3. The chapter should honor its commitments under
its collectively bargained labor agreements and dis-
continue operation of a nonbargained referral hall for
electricians.
4. The chapter should work cooperatively with other
NECA chapters in the state and region to advance com-
mon goals and interests.
5. The chapter and its agents must cease its labor re-
lations representation and negotiations in areas assigned
to other NECA chapters. The chapter must coordinate
and cooperate its activities with other chapters on these
matters.
6. Any electrical contractor eligible for membership
and providing support to the chapter must become a
member of the chapter and National, otherwise the
granting of membership status and receipt of payments
from that firm must cease.
7. The chapter must support the temporary member-
ship provisions of the National Bylaws and direct all of
its permanent members to provide support for other
NECA chapters when traveling into their chapter juris-
dictions.
8. The chapter shall conduct a meeting of all its
members to discuss the issues presented in this letter
and to determine their position in resolving these prob-
lems.
If after thorough discussion of these matters your
chapter determines that it does not wish to change its
current operations and policies we suggest that your
chapter disaffiliate itself from NECA by relinquishing
its charter. If there is disagreement within your chapter
and you find that you cannot resolve your problems we
offer our assistance in finding alternate solutions.
We request that a response to this letter be sent to
us within forty-five days. By copy of this letter we also
welcome direct comments from individual members of
your chapter.
Sincerely,
/s/Emerson Hamilton President
/s/Bill Coburn Vice President,
District 6
/s/John M. Grau Executive
Vice President
cc: NECA Executive Committee
Puget Sound Chapter Members
District 6 NECA Chapter Presidents,
Governors & Managers
Daniel J. McPeak
[R. Exh. 5A.]
This was answered by Chapter’s letter [signed by Chap-
ter’s Board of Directors to NECA taking issue with many of
the matters raised in the June 17 letter (R. Exh. 5b).
During the period from October 1987 to August 16, when
the CIR decision was issued, certain facts cannot be ignored.
First, neither Business Representative McGuire nor any other
Respondent official complained to NECA about Chapter’s
practices before filing the grievance. I must assume the rea-
son Respondent’s officials did not complain was because
they recognized as the evidence strongly suggests, that
NECA lacked authority to impose its will on Chapter or any
other chapter member of NECA. For the same reason, NECA
never instituted legal action to force chapter to accept the
provisions of NECA’s long-range plan, or to impose a re-
ceivership or trusteeship on Chapter for the latter’s continued
defiance of NECA’s policies.
Prior to May 31, the date the grievance was filed, NECA
never directed Chapter to discontinue the job applicant or ap-
prentice training programs. It wasn’t until after the CIR
award was issued that NECA undertook specific action
against Chapter. Thus, during a meeting in October, officials
of NECA advised Chapter that it was suspended—not for
violating the long-range plan, not for ignoring NECA’s letter
recited above, but instead because Chapter filed charges with
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I express no opinion on whether the suspension of Chapter, short lived
or not, for the stated reason, violates the Act.
13 Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411, 419 (1960). 14 Compare Electrical Workers IBEW Local 6, 257 NLRB 573 (1981).
the Board.12 Apparently, NECA viewed this act as a form of
noncompliance with the CIR award. When Washburn asked
an NECA official to explain exactly what consequences
flowed from the suspension, the official replied that since no
Chapter had ever been suspended before, he didn’t know.
Apparently the ‘‘suspension’’ has now been lifted.
It is unnecessary to make findings regarding the nature of
the legal relationship between Chapter and NECA. However,
Washburn testified flatly that each chapter was autonomous
and not subject to direct control by NECA. He also testified
that many other Chapters of NECA around the country were
providing services to nonunion members similar to those pro-
vided by Chapter. While interesting and unrebutted, none of
this is particularly germane to the central issue in the case
concerning whether Respondent violated Section 8(e) of the
Act, an issue which I will address below.
When Chapter finally did close down its job applicant and
apprentice training programs it did so to comply with the
CIR decision and not to abide by any policy or directive of
NECA.
Based on the above discussion, I reject entirely Respond-
ent’s argument in its brief (pp. 35–45). I find that the non-
union contractors who terminated membership in Chapter or
threatened to, depending on the outcome of this Board pro-
ceeding, were not influenced by any intervening cause. In
fact, no intervening cause even exists.
d. The statute of limitations issue
Respondent contends (Br. pp. 28–32) that this action is
barred by Section 10(b) of the Act. This agreement is totally
without merit and is entitled to only brief discussion.
Section 10(b) of the Act provides:
That no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such
charge is made . . .
The Board has said that the 6-month limitations period
does not begin to run until the person adversely affected is
put on notice, actual or constructive, of the act constituting
it. Metromedia, Inc.–KMBC-TV, 232 NLRB 486, 488 fn. 20
(1977).
Congress added Section 10(b) to the Act in 1947 for a
twofold purpose—‘‘to bar litigation over past events ‘after
records have been destroyed, witnesses have gone elsewhere,
and recollections of the events in question have become dim
and confused,’ H.R. Rep. No. 245, 80th Cong., 1st Sess., p.
40, and of course to stabilize existing bargaining relation-
ships.’’13 Just as the first reason enhances the integrity of the
fact finding process, the second ground serves an equally im-
portant purpose of establishing a sense of repose over dis-
putes among employers, employees, and unions. Because, in
the main, employment as well as bargaining relationships
tend to be ongoing, Section 10(b) reflects a policy judgment
that it is better for these relationships (and for industrial
peace in general) to bring the disputes to a head in fairly
short order rather than to have an extended period in which
to vindicate a statutory right. Kanakis Co., 293 NLRB 435
(1989).
In the instant case, all agree that the grievance in issue
was filed on May 31 (G.C. Exh. 6). Respondent’s own sub-
mission to the CIR on behalf of its grievance begins, ‘‘This
grievance was filed on May 31, 1988.’’ (R. Exh. 8, p. 1.)
The collective-bargaining agreement under which the griev-
ance purports to have been filed reads in pertinent part:
Any complaint, dispute or grievance not filed in
writing by the complaining party within thirty (30) days
of the date of the alleged complaint, dispute or griev-
ance shall be waived. [G.C. Exh. 3, Sec. 2.18.]
In light of the factual references cited above, I find the
limitations period begins to run from May 31, the date of fil-
ing of the grievance. The filing of the charges on July 26
is therefore timely.
While Respondent presented evidence that prior to May
31, both Jordan and McGuire had expressed objections to the
services by Chapter to its nonunion members, said com-
plaints do not qualify as grievances under the labor agree-
ment, for statute of limitations purposes. If they did, the
grievance would be void pursuant to Section 2.18 of the
agreement recited above. Moreover, the objections prior to
May 31 were based not on alleged violation of specific con-
tract provisions, but were based generally on Respondent’s
resentment at losing market share to nonunion contractors
and at Chapter’s perceived support of that process. So long
as Respondent complained verbally and informally, Chapter
was under no coercion to abandon its nonunion programs.
Only when Respondent put its grievance in writing did it
achieve its goal of shutting down the programs.14 For the
10(b) period to begin to run, all that is required is that the
‘‘Act’’ giving rise to unlawful conduct be known. To require
more would reduce Section 10(b) to the meaningless. Al Bry-
ant, Inc., 260 NLRB 128, 135 fn. 19 (1982).
In conclusion, I note that the Board has interpreted the
words ‘‘to enter into’’ [taken from Section 8(e) of the Act]
broadly to encompass the concepts of reaffirmation, mainte-
nance or giving effect to any agreement which is within the
scope of Section 8(e). Mine Workers (Garland Coal), 258
NLRB 56, 58 (1981). See also Bricklayers Local 2 v. NLRB,
562 F.2d 775, 781 fn. 27 (D.C. Cir. 1977). As I will find
below, Respondent’s attempt to enforce certain sections of
the labor agreement by the processing of its grievance vio-
lated Section 8(e) of the Act and since the May 31 grievance
was within the 10(b) period, this case is not barred.
2. Alleged violations of the Act
a. The alleged 8(e) violation
I begin with Section 8(e) of the Act which reads in perti-
nent part as follows:
It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any contract
or agreement, express or implied, whereby such em-
ployer ceases or refrains or agrees to cease or refrain
from handling, using, selling, transporting or otherwise
dealing in any of the products of any other employer,
61ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
15 See Iron Workers Pacific Northwest Council (Hoffman Construction), 292
NLRB 562 (1989).
or to cease doing business with any other person, and
any contract or agreement entered into heretofore or
hereafter containing such agreement shall be to such ex-
tent unenforceable and void.
Next, I turn to the grievance filed by Respondent and
quote in part the relief requested:
Finally, we are asking that all members of the Puget
Sound Chapter of NECA cease and desist from engag-
ing in inside electrical construction work unless it is in
accordance with the language agreed to by the parties
to the Labor Agreement. While the terms and condi-
tions of employment may not apply to specific firms
which have not assented to the Agreement by signing
a letter of assent, it is our contention that those firms
are bound to the sections of the Agreement agreed to
by the parties. Therefore, such Sections as those which
deal with the training of Journeymen and others and re-
ferral of applicants for employment do apply to the
Puget Sound Chapter of NECA and its component parts
which define it as an organization and entity, namely
its members. [G.C. Exh. 6, p. 3.]
The decision of the CIR has been set forth in the Facts,
above, and need not be repeated.
I turn next to pertinent sections of the labor agreement.
Section 5.02 states: ‘‘The Union shall be the sole and exclu-
sive source of referral of applicants for employment.’’ Other
relevant sections read as follows:
3.12 There shall be a Joint Apprenticeship and Train-
ing Committee of three members representing the Em-
ployer and three members representing the Union. This
committee shall make local standards in conformity
with the National Apprenticeship and Training Stand-
ards for the Electrical Contracting Industry governing
the selection, qualifications, education, and training of
all apprentices. It shall also be responsible for training
Journeymen and others. These local standards will be
promptly agreed upon by the parties to this Agreement
and shall be registered with the National Joint Appren-
ticeship and Training Committee and the appropriate
State or Federal Apprenticeship Registration Agency.
3.16 All apprentices must enter the program through
the Committee and shall not be eligible for employment
until they have been indentured to the Committee. An
apprentice who has completed his probationary period
may be removed from training by the Committee in ac-
cordance with its rules, for cause. Such removal by the
Committee also cancels his classification of apprentice
and opportunity to complete his training.
3.17 The Committee is authorized to and shall inden-
ture sufficient new apprentices to provide for the avail-
ability of a total number of apprentices in the training
area not to exceed a ratio of one apprentice to three
Journeyman Wiremen who are normally employed
under the terms of this Agreement.
An individual Employer shall employ only inden-
tured apprentices secured from the Committee. No Em-
ployer is guaranteed any specific number of appren-
tices. The Committee will determine whether or not any
individual Employer is entitled to an apprentice as well
as the total number of apprentices to be assigned to that
Employer. 3.19 The parties to this Agreement shall
enter into a joint Apprenticeship and Training Trust
Fund Agreement which shall conform to Section 302 of
the Labor-Management Relations Act of 1947, as
amended.
The Trustees authorized under this Trust Agreement
are hereby authorized to determine the reasonable value
of any facilities, materials, or services furnished by ei-
ther party. All funds shall be disbursed in accordance
with this Trust Agreement.
Professor Morris explains the application of Section 8(e)
to provisions of a labor agreement such as those quoted
above.
Section 8(e) applies only to agreements with secondary
objectives. Agreements with primary objectives are not
unlawful even if the literal application of Section 8(e)
seems to prohibit them. As the court in [National
Woodwork Manufacturers Association v. NLRB, 386
U.S. 612, 645 (1967)] stated. ‘‘The touchstone is
whether the agreement or its maintenance is addressed
to the labor relations of the contracting employer vis-
a-vis his own employees. . . .’’ If the object of a sus-
pect clause is to benefit union members generally, as
distinguished from employees within the bargaining
unit, the clause violates Section 8(e). If however, the
object is to preserve the work of the bargaining unit or
otherwise benefit unit employees, the clause is pre-
sumptively lawful. [II Morris, Developing Labor Law,
1197 (2d ed. 1983).]
I find that the provisions quoted above from Articles 3 and
5 of the labor agreement as interpreted by the CIR are un-
lawful under Section 8(e) of the Act. In support of this con-
clusion, I note that the object of the suspect clauses is to
benefit union members generally, rather than unit employees
because these clauses require Chapter in effect to cease doing
business with its nonunion members.15 The evidence in this
case shows that the primary services which Chapter provides
to its nonunion members are job referral and apprentice train-
ing. Without these programs, nonunion members will with-
draw from the Chapter. This is the gist of the testimony pro-
vided by the three contractors called by General Counsel.
Another contractor, Dwyer Electric apparently has already
withdrawn from Chapter because of the CIR decision (C.P.
Exh. 2, Exh. B.)
In determining whether various clauses require a cessation
of business, the Board does not limit itself to the particular
words used in the provisions. Rather the Board considers all
the circumstances, necessary implications, and effects of the
provisions. II Morris, ibid, p. 1200, citing Lithographers,
Local 78, 130 NLRB 968, 976 (1961).
Thus a circumstance which cannot be ignored in the
present case is the status of Chapter. Both Respondent and
Amici argue that Chapter is a party to the labor agreement.
I reject this claim. Cf. Colorado Building Trades Council,
239 NLRB 253, 256 (1978). Instead, I find that Chapter is
a multiemployer bargaining group for its union members. As
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 I do not understand Respondent to have raised any issue in this case
based on the construction industry proviso to Sec. 8(e). This case does not
warrant such a defense. Bricklayers Local 2, supra, 562 F.2d at 787–788. Ac-
cordingly, discussion is not required. Similarly, any defense based on the al-
leged ‘‘unclean hands’’ of Chapter is rejected. This defense does not operate
against a Charging Party. Teamsters Local 294 (Island Duck Lumber), 145
NLRB 484, 492 fn. 9 (1963), enfd. 342 F.2d 18 (1965).
17 II Morris, supra at 1192.
18 Id. at 1196. See also Iron Workers Pacific Northwest, supra.
19 In its Br. p. 20 the General Counsel asserts other examples of Respond-
ent’s coercion such as the filing of a counterclaim in Chapter’s district court
action and an alleged appeal of the district court’s temporary injunction. None
of this appears of record in the present case and would be cumulative in any
event. I express no opinion thereon. Similarly, I express no opinion as to
whether the threats and coercion of NECA against Chapter and the apparent
temporary suspension of Chapter by NECA are in any way attributable to Re-
spondent in further violation of Sec. 8(b)(4)(ii)(A).
such, Chapter acts as agent for the union signatories who are
the real parties to the agreement. Chapter has only that de-
gree of authority delegated to it by its union members. See
Custom Color Contractors, 226 NLRB 851, 852–853 (1976);
Hillsdale Inn v. NLRB, 764 F.2d 739, 742 (10th Cir. 1985).
This is a circumstance tending to support a finding that the
labor agreement clauses recited above violate Section 8(e)
because their effect is not confined to the signatories of the
labor agreement.
In addition to the suspect provisions of the labor agree-
ment as interpreted, discussed above, this case also concerns
the filing of the grievance to enforce these provisions.
As a general rule, processing of disputes through the
grievance machinery is a vehicle by which meaning and con-
tent are given to the collective-bargaining agreement. Bache
v. AT&T, 840 F.2d 283 (5th Cir. 1988). Yet, not all griev-
ances are proper. The Board has limited access to grievance
proceeding where the claimant sought to compel an act
which was directly and in itself unlawful. Hanford Atomic
Metal Trades Council (Rockwell International), 291 NLRB
418 (1988).
The grievance filed by Respondent in the instant case was
directly and in itself unlawful because under Board law, the
words from Section 8(e) ‘‘to enter into,’’ have been inter-
preted broadly to encompass the concepts of reaffirmation,
maintenance or enforcement of any agreement which is with-
in the scope of Section 8(e). Mine Workers, supra, 258
NLRB at 58. See also Carpenters Local 743 (Longs Drug),
278 NLRB 440, 443 (1986); Hotel & Restaurant Employees
Local 531 (Angelus Auto Parks), 237 NLRB 1204, 1206
(1978), enfd. 623 F.2d 61 (9th Cir. 1980). Since Respondent
was attempting to enforce an 8(e) contract by filing the
grievance, Respondent violated Section 8(e) for this reason
as well.
In finding that Respondent has violated Section 8(e) as de-
scribed above, I find that the relevant clauses had secondary
objectives which required Chapter to cease doing business
with its nonunion members. I reject any defense based on the
claim that the provisions merely sought to preserve, for the
employees within the bargaining unit, work that they have
traditionally performed. See Chemical Workers Local 6-18
(Wisconsin Gas), 290 NLRB 1155 (1988).16
b. The alleged 8(b)(4)(ii)(A) violation
Again I begin the discussion by turning to the statute in
question:
Section 8(b)—It shall be an unfair labor practice for
a labor organization or its agents:
(4)(ii) to threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting com-
merce, where in either case an object thereof is:
(A) forcing or requiring any employer . . . to
enter into any agreement which is prohibited by Sec-
tion 8(e).
I turn next to a case cited by General Counsel (Br. p. 17)
Elevator Constructors (Long Elevator), 289 NLRB 1095
(1988). There the Board affirmed the Administrative Law
Judge’s holding that Respondent violated Section
8(b)(4)(ii)(A) by filing a grievance based on an interpretation
of a provision in the collective-bargaining agreement that
would convert the provision into a de facto hot cargo provi-
sion, in violation of Section 8(e). This case applies to the in-
stant case.
The term ‘‘hot cargo agreement’’ refers to provisions in
labor agreements which provides that unit employees need
not handle nonunion, unfair or struck goods of other employ-
ers.17 Such provisions were outlawed by Congress in 1959
in Section 8(e). Section 8(b)(4)(A) prohibits a union from
picketing or otherwise attempting to force an employer to
agree to a hot cargo provision.18
In the instant case, Respondent violated the cited statute
by filing the grievance which asked not only that Chapter
cease and desist but that it pay to Respondent certain alleged
damages, to be determined by audit. On July 13, the parties
met and Respondent offered to drop its demand for damages
if Chapter would enter into an agreement prohibited by Sec-
tion 8(e) (G.C. Exh. 12).
Of course any discussion of unlawful threats and coercion
cannot ignore the CIR decision itself and the threats of Re-
spondent officials to seek court enforcement if Chapter did
not obey the CIR decision. All of this constitutes violations
of Section 8(b)(4)(ii)(A) of the Act by Respondent and I so
find.19 Compare Teamsters Local 483 (Ida Cal), 289 NLRB
924 (1988).
c. The alleged 8(b)(1)(A) and 8(b)(2) violations
In Glaziers Local 558 (PPG Industries), 271 NLRB 583,
586 (1984), the Board stated as follows:
Section 8(b)(2) of the Act makes it an unfair labor
practice for a labor organization, inter alia, to cause or
attempt to cause an employer to discriminate against an
employee to encourage or discourage membership in
any labor organization. Section 8(b)(1)(A) makes it an
unfair labor practice to restrain or coerce employees in
the exercise of their Section 7 rights. As the Supreme
Court stated in Radio Officers v. NLRB, 347 U.S. 17,
40 (1954), ‘‘the policy of the Act is to insulate employ-
ees’ jobs from their organizational rights. Thus, [Sec-
tions] 8(a)(3) and 8(b)(2) were designed to allow em-
ployees to freely exercise their right to join unions, be
good, bad, or indifferent members, or abstain from join-
ing any union without imperiling their livelihood.’’
The Board presumes that a union acts illegally any
time it prevents an employee from being hired or
causes an employee to be discharged because by such
conduct a union demonstrates its power to affect the
63ELECTRICAL WORKERS IBEW LOCAL 46 (PUGET SOUND NECA)
20 The case of Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983),
provides no help to Respondent. In that case, the Supreme Court held that an
employer’s prosecution of a retaliatory suit against picketing employees con-
stitutes an unfair labor practice under Sec. 8(a)(1) if (1) the suit is filed with
an improper motive, and (2) lacks a reasonable basis in law. In Teamsters
Local 25 v. NLRB, 831 F.2d 1149 (9th Cir. 1987), the court enforced a Board
decision that found a union had committed unfair labor practices by filing and
processing multiple grievances. At 1154 fn. 4, the court noted that in finding
improper motivation for the filing of the grievances, the Board may not be
required to satisfy the stringent Bill Johnson’s benchmark before condemning
a union’s abuse of the grievance procedure. See also Teamsters Local 705
(Emery Air Freight), 278 NLRB 1303, 1304 (1986). I find that Respondent’s
grievance had unlawful objectives as found in this decision. Accordingly, the
Board is not precluded from enjoining Respondent from continuing to process
the grievance and the CIR decisions.
21 In addition, General Counsel should have an opportunity at compliance
to demonstrate the existence of a defined and easily identified class, to wit,
those nonunion job applicants and apprentice trainees, who may have lost job
opportunities due to the Respondent’s actions in obtaining the CIR decision.
However, the Board has expressed caution in this type of case where the mem-
bers of the class are subject to reasonable dispute. See Teamsters Local 158
(Contractors of Pennsylvania), 280 NLRB 1100, 1101 (1986).
employee’s livelihood in so dramatic a way as to en-
courage union membership among employees. A union
may, however, rebut this presumption ‘‘by evidence of
a compelling and overriding character showing that the
conduct complained of was referable to other consider-
ations, lawful in themselves, and wholly unrelated to
the exercise of protected employee rights or to other
matters with which the Act is concerned.’’ Carpenters
Local 1102 (Planet Corp.), 144 NLRB 798, 800 (1963).
The Board recently stated in Carpenters Local 2396 (Tri-
State Ohbayashi), 287 NLRB 760 (1987), that ‘‘it is settled
that, absent an exclusive hiring hall arrangement, a union
violates Sections 8(b)(2) and 8(b)(1)(A) if it interferes or at-
tempts to interfere with an individual’s employment for
union-related reasons.’’
Section 8(b)(1)(A) of the Act prohibits unions from penal-
izing employees for exercising their Section 7 rights. Profes-
sional Engineers Local 151 (General Dynamics), 272 NLRB
1051 (1984). Employees have a Section 7 right to refrain
from joining a union.
More specifically, where a union’s filing and processing of
a grievance adversely affecting employees is prompted by an
unlawful and discriminatory objective rather than by a genu-
ine concern over the merit of the grievance or the integrity
of the collective-bargaining agreement, the union’s conduct
falls within the proscriptions of Sections 8(b)(1)(A) and (2)
of the Act. Teamsters Local 515 (Cavalier Corp.), 259
NLRB 678, 681 (1981); see also Food & Commercial Work-
ers District 227 (Kroger Co.), 247 NLRB 195 (1980).
I agree fully with General Counsel at pages 20–23 of his
brief, that as a result of Respondent’s unlawful acts, those
employees who have chosen to remain nonunion have been
discriminated against. They are obviously precluded from job
referrals through the union hiring hall because they are not
members of the Union. Now they are precluded from referral
through Chapter’s nonunion job referral which has been ter-
minated by virtue of the CIR decision for which Respondent
is responsible. Those persons seeking to become apprentices
are faced with the same dilemma.
As a result of this, those employees who have chosen to
remain nonunion are coerced into joining the Union, which
by virtue of its exclusive hiring hall, holds the key to em-
ployment. In addition, those employers, who have chosen to
remain nonunion are coerced into becoming signatories to
the labor agreement so they may have a ready, efficient and
skilled source of labor without having to resort to newspaper
want-ads, word-of-mouth referrals, or the unreliable system
of walk-in applications. Based on the above, I find that Re-
spondent has violated Sections 8(b)(1)(A) and 8(b)(2) of the
Act.20
CONCLUSIONS OF LAW
1. Power City Electric Co., Collins Electric Co., and Supe-
rior Electric Service Co. are employers engaged in commerce
on in industries affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent, International Brotherhood of Electrical
Workers, Local Union, No. 46, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent has not met its burden of proof with respect
to its affirmative defenses.
4. By entering into, maintaining, giving effect to, and
seeking to enforce by the filing of a grievance, sections 5.02;
3.12; 3.16; 3.17; and 3.19 of the collective-bargaining agree-
ment, effective June 30, 1986, through May 31, 1988, be-
tween Chapter and Respondent, the Respondent has engaged
in unfair labor practices in violation of Section 8(e) of the
Act.
5. Under the circumstances described in paragraph 4
above, the CIR decision issued as the result of Respondent’s
grievance also violates Section 8(e) of the Act.
6. By attempting to enforce an exclusive hiring hall refer-
ral clause and apprentice training clauses which could, in ef-
fect, require chapter to terminate its employee job applicant
and apprentice training programs to its nonunion members,
Respondent has violated Section 8(b)(4)(ii)(A) of the Act.
7. By processing its grievance with respect to an 8(e) con-
tract, Respondent has caused Chapter to discriminate against
nonunion employees and nonunion contractors and has there-
by violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
8. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I recommend it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act, and that it post an appro-
priate notice attached hereto as Appendix I. In addition, Re-
spondent shall make whole for any loss of wages or benefits
they may have suffered, those persons who lost employment
opportunities between October 13, the date Chapter termi-
nated its services to its nonunion members, and whatever
date Respondent complies with this Order. This relief in-
cludes but is not limited to Chapter employee Gwen Tuthill,
who was terminated effective October 31, because the non-
union program was terminated, the income Chapter may have
lost due to nonunion members withdrawal because of the
CIR decision, and any increased costs of nonunion contractor
members of Chapter caused by the termination of the non-
union services.21 Such computations required will be as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interest, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]