Local 215, Int'l Brotherhood of Electrical, Etc.

National Labor Relations Board - Board Decisions

Apr 27, 1962

136 N.L.R.B. 1618 (N.L.R.B. 1962)

1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with said Union as the representative of our employees in the
appropriate unit.
THE MOUNTAIN STATES TELEPHONE
AND TELEGRAPH COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 500 Union Street, 327 Logan Building, Seattle 4, Washington,
Telephone Number Mutual 2-3300, if they have any question concern-
ing this notice or compliance with its provisions.
Local 215, International Brotherhood of Electrical Workers,
AFL-CIO [Eastern New York State Chapter of the National
Electrical Contractors Association ] and William DePaolo.
Case No. 3-CB-520. April 27, 1962
DECISION AND ORDER
On January 15, 1962, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report, and a brief supporting such exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified below z
The record facts clearly establish, as found by the Trial Examiner,
that the Respondent precluded DePaolo from obtaining employment
with the electrical firms under contract to it in the Poughkeepsie, New
York, area,' by denying DePaolo access to its referral procedures.
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Members Leedom, Fanning,
and Brown].
2 Respondent' s request for oral argument is hereby denied , as in our opinion , the record
in this case , together with the brief and exceptions , adequately present the Issues and
positions of the parties.
3 Frank H. McEnaney , Inc., Heady Electric Co., Inc , Spoor and Haines , Inc., W. J Snell,
Inc, and John P. O'Shea, d/b/a O'Shea Electrical Contractor.
136 NLRB No. 437.
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1619
This is so because of the undisputed fact that all of the Employers
involved uniformly employed only individuals referred or cleared by
the Respondent, pursuant to a practice each such Employer had re-
spectively followed for more than 20 years. Nonetheless, the Re-
spondent claims that its refusal to consider DePaolo for referral does
not constitute a violation of Section 8('b) (2) and (1) (A) of the Act.
More specifically, it contends that nothing in its relationship with the
said Employers required the latter thus to impose on employees or
perspective employees the condition of clearance or referral by it. We
find, as did the Trial Examiner, that Respondent's claim is without
merit.
As set forth more fully in the Intermediate Report, a bargaining
relationship between the above-named Employers and the Respondent
has existed for all or substantially all of the long period of time during
which the Employers have looked to the Respondent as the exclusive
source of referral. The credible evidence establishes that the referral
practices came into being many years ago as a result of mutual agree-
ment and have been followed since; they were formally integrated into
the written contract executed in 1958 by way of an addendum; and
while this addendum was omitted from the subsequent agreement for-
mally executed in 1960 (and effective during the times here material),
the manner in which both the above-named Employers and the Re-
spondent consistently conducted their business in this period estab-
lishes that there existed, at all times here material, an implicit
understanding between them that the exclusive referral practices
would be continued, as indeed they were. Thus, according to the
testimony credited by the Trial Examiner, no Employer hired or con-
tinued to employ any individual not having Respondent's sponsorship
or clearance; and no Employer deviated from any of the referral pro-
cedures as set out in the addendum to the 1958 contract. The record
further shows that : When William Heady wished to hire his brother
Raymond Heady he sent him for clearance and "registration" to
Respondent; Sorenson, the latter's agent, showed him the addendum
which had been specifically appended to the 1958 contract, and asked
him in which of the "classes" or "groups" there set out Heady wished
to "register"; when Snell wished to put his son-in-law to work in the
business, he "cleared" this matter with Sorenson; when DePaolo made
his numerous and aggressive attempts to obtain employment through
the Respondent and to obtain a right of "examination" which he be-
lieved (and Sorenson reasonably so realized) was needed as a pre-
requisite for obtaining work with the Employers, Sorensen never once
indicated by word or deed that the Union did not object to the Em-
ployers hiring him or anyone else directly and without union "clear-
ance"; nor did Sorenson ever state to DePaolo or any other party
641795-63-vol . 136-103
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interested in the matter, that the 1958 contract referral requirements
were no longer in effect; when DePaolo complained to the Employer's
bargaining representative (NECA) of his inability to obtain employ-
ment because of the Respondent's refusal to consider him for referral
(and membership) the NECA referred DePaolo to the addendum to
the 1958 contract, describing the latter as still being in effect.
In sum, we are satisfied on the basis of the foregoing and the record
as a whole that the above-named Employers and the Respondent were
parties to an exclusive referral arrangement which both parties main-
tained in effect during the times here material. We conclude and find,
therefore, as did the Trial Examiner, that by refusing, for the dis-
criminatory reasons explicated in the Intermediate Report, to con-
sider DePaolo for referral to the above-named Employers, the Re-
spondent caused such Employers to discriminate against him in hiring,
and that Respondent thereby violated Section 8(b) (2) and (1) (A)
of the Act .4
ORDER
The Board adopts as its Order the Recommendations of the Trial
Examiner, with the following additions and modifications :
(a) Delete from paragraph (1) of the said Recommendations the
words : "or any other electrical firm in the Respondent's territorial
jurisdiction for which it is the sole and exclusive source of referrals
to employment."
(b) Change paragraph 2 (a) to read as follows :
"Place William DePaolo's name on its out-of-work list for referral
to employment with any of the firms named below and refer him there-
from for employment, as it becomes available, on a nondiscriminatory
basis to Frank H. McEnaney, Inc., Heady Electric Co., Inc., Spoor
and Haines, Inc., W. J. Snell, Inc., and John P. O'Shea, d/b/a O'Shea
Electrical Contractor."
(c) Add at the end of paragraph 2(b) the words: "as modified in
the Decision and Order."
(d) Delete from the first paragraph of the notice the words: "or
any other electrical firm in our territorial jurisdiction for whom we
are the sole and exclusive source of referral to employment."
(e) Insert the following between the first and second paragraph of
the body of the notice :
"WE WILL place William DePaolo on our out-of-work list for re-
ferral to employment with any of the firms named above and refer
4 No proof was offered that Respondent ' s territorial jurisdiction encompasses employers
other than those named above, or that the Respondent in fact has similar referral agree-
ments or arrangements with any employers other than those above named We shall
therefore limit the provisions of the remedial order in conformity with the proof , includ,
Ing limiting Respondent ' s backpay obligation to loss of wages DePaolo would have earned
from the above -named Employers
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1621
him therefrom for employment, as it becomes available, on a non-
discriminatory basis."
(f) Insert the following in the notice immediately after the sen-
tence beginning "This notice must remain posted ..." :
"Employees may communicate directly with the Board's Regional
Office, 112 U.S. Courthouse Building, 68 Court Street, Buffalo 2, New
York, Telephone Number TL 4-4780, if they have any question con-
cerning this notice or compliance with its provisions."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed June 12, 1961 , by William DePaolo , an individual , the Gen-
eral Counsel of the National Labor Relations Board, herein called the Board, by the
Regional Director for the Third Region , issued his complaint dated September 29,
1961, against Local 215, International Brotherhood of Electrical Workers, AFL-CIO,
herein called the Respondent , alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning of Section
8(b)(2) and ( 1)(A) and section 2(6) and ( 7) of the National Labor Relations
Act, 61 Stat . 136, herein called the Act. The Respondent's answer to the complaint,
as amended at the hearing, denies the allegations of statutory violations set forth
therein. Copies of the complaint , the charge , and a notice of hearing were duly served
upon the parties . Pursuant to notice a hearing was held at Poughkeepsie , New York,
on'November 6 and 7, 1961, before the Trial Examiner daly designated to conduct the
hearing. All parties were represented by counsel . Full opportunity to be heard,
to examine and cross-examine witnesses , and to introduce evidence was afforded
all parties . After the close of the hearing the General Counsel and the Respondent
filed briefs which have been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACTS
1. PERTINENT COMMERCE FACTS
During times relevant to this case the Respondent was engaged in collective-
bargaining relations with the Eastern New York State Chapter of the National
Electrical Contractors Association , herein called NECA. This organization is a
New York corporation having its office and principal place of business at New-
burgh, New York. At times material to the case the Association had among its
members the following firms engaged in the electrical contracting business in the
Poughkeepsie , New York, area: Frank H. McEnaney , Inc., Heady Electric Co.,
Inc., Spoor and Haines, Inc., W . J. Snell , Inc., and John P. O'Shea d/b/a O'Shea
Electrical Contractor. The complaint as amended alleged and the parties stipulated
that in the 12-month period preceding issuance of the complaint each of the fore-
going firms purchased from electrical equipment suppliers goods and materials
valued in excess of $50,000 which were shipped directly to the place of business
of each of these firms within the State of New York from points outside the State.
From the foregoing I find that the Association and each of the above-named firms
is an employer engaged in commerce within the meaning of the Act and that the
exercise of the Board 's jurisdiction over their operations will effectuate the purposes
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 215 , International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization admitting to membership employees of employers comprising the
Association.
III. THE UNFAIR LABOR PRACTICES
The complaint as amended alleges the existence of a contract between NECA
and the Respondent constituting the Respondent the sole and exclusive source of
referrals of applicants for employment with NECA's employer-members in the
Poughkeepsie area. Alternatively, the complaint alleges such exclusive referral
arrangement exists by practice or understanding between these employers and the
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent . The General Counsel does not contend that such arrangement,
whether by contract or otherwise , is inherently unlawful . The General Counsel
does contend that the Respondent exercised its exclusive referral authority in an un-
lawful manner by refusing to refer or clear DePaolo for employment with these
employers because he had incurred the hostility and displeasure of the Re-
spondent by engaging in union activities of which it disapproved . The Respondent
denies the existence of any exclusive referral arrangement between it and NECA
or its member firms , and further denies the alleged refusal to refer DePaolo or
to clear him for employment.
A. Evidence relative to the alleged contractual arrangement for exclusive referrals
On July 1, 1958, the electrical firms mentioned in section I, above, acting through
an informal organization called the Electrical Contractors of Poughkeepsie and
Vicinity, made a labor contract with the Respondent with the termination date
of July 1, 1960. The contract provided for yearly automatic renewal unless either
party gave the other notice at least 90 days before the expiration date of its inten-
tion to terminate or modify the contract . On August 11, 1958, the parties agreed to
an addendum to their contract providing that the Respondent should be the exclusive
source of referral of applicants for employment with the contracting electrical firms.
As noted, the General Counsel does not attack this referral system as unlawful.
By registered letters dated November 20, 1959, the Respondent notified the fore-
going electrical firms of its decision to terminate the contract with them at its expira-
tion on June 30 , 1960. These firms responded in December 1959 with notice to the
Respondent that they had designated NECA to represent them in collective bargain-
ing and that NECA was authorized in their behalf to negotiate a new or revised
contract. Joseph R. LaRocca, NECA's executive manager for its Eastern New York
State Chapter, also notified the Respondent by letter dated December 9, 1959, of
NECA's representative status and expressed desire to begin negotiations at a con-
venient time for a new or revised contract . Negotiations between the Respondent
and NECA began in April 1960 and resulted in an agreement on June 30, 1960,
effective from July 1 for 3 years.
While there is certainty as to the culmination of the negotiations in agreement,
there are differences between the parties as to the exact agreement reached. The
main point of difference is over the inclusion in the contract of a system of exclusive
referrals by the Respondent . The General Counsel insists and the Respondent denies
that the agreement provided for such inclusion.
There is in evidence a nine-page document ( General Counsel's Exhibit No. 2)
which on its face purports to be the agreement reached on June 30, 1960, between
NECA and the Respondent . There is also in evidence a three-page document
(General Counsel 's Exhibit No. 10) entitled "Agreement Clause" and which refers
to agreements concerning specific items reached by NECA and the Respondent on
June 30, 1960. This document was signed on July 7, 1960, by LaRocca for NECA
and by Business Manager William Sorenson for the Respondent . As reliably ex-
plained by LaRocca, the three-page document consists of changes made at the
bargaining sessions in the old 1958 contract . LaRocca assumed that anything
contained in the old contract which was not changed during the negotiations would
be preserved in the new agreement . Upon the conclusion of the negotiations he
proceeded with the preparation of the document representing the new agreement
by amalgamation of the changes made in the 1958 contract with those portions left
unchanged . In doing so he did not incorporate the exclusive referral addendum
to the 1958 contract . Nor is there any language in the document which refers
to the addendum or in any terms to an exclusive referral system.
Notwithstanding the absence of reference in the written agreement to the 1958
referral procedures , the General Counsel contends that these procedures were
incorporated into the 1960 agreement . This, he maintains , was the understanding
of the parties. Because, as appears evident , the parties used the 1958 contract
as a point of reference in their negotiations and bargained for changes in or
modifications of that contract , the General Counsel submits that the parties agreed
to retain in their new contract everything in the old contract which was not by
negotiation eliminated or modified . He asserts that the referrals procedures were
an integral part of the 1958 contract . Hence, argues the General Counsel, the
absence of any agreement specifically providing for their elimination must be
regarded as revealing the intention of the parties to retain them in their new con-
tract. The General Counsel relies also on positive evidence to show that the parties
had considered in their negotiations and agreed to retention of the referral procedures.
This evidence consists of testimony by LaRocca to the effect that at the first meeting
in April 1960 there occurred a discussion in which Sorenson referred to a strike
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1623
in 1959 by the Respondent against Heady Electric Company, Inc., because of the
latter's asserted breach of the referral procedures. As to this circumstance LaRocca
testified:
Well, he (Sorenson) was wondering what to expect, if the Union did become
signed with the association, insofar as having the association bargain for the
employers in view of what happened, because it seemed that one of the men
at the negotiation table was the president of the firm of Heady Electric Com-
pany, as if to say, this is what happened yesterday what what can we expect
tomorrow.
LaRocca reasoned from this comment that Sorenson was talking about the 1958
referral procedures.' He thereupon assured Sorenson "that certainly we would
recognize them."
LaRocca further testified that Sorenson added to his remarks about the "referral
procedure" a request for "that as an item for discussion at the meeting." No copy of
the 1958 addendum was available so LaRocca obtained from NECA's New York
City office six copies of a "model agreement" which with insignificant difference was
like the addendum. According to LaRocca these copies were distributed by him at
the next bargaining session to all the negotiators at the table. There was, however,
never thereafter any discussion concerning the model agreement or of the subject
in any form. As LaRocca explained, "to the best of my knowledge it got obscured
in all the other discussions" and this ended the matter.
William Heady, president of Heady Electric Company, Inc., had been one of
NECA's negotiators in the bargaining for the 1960 contract. He testified that at
the first meeting in April the referral system was "mentioned [as] . .. one of the
things that we had to go over." He added, however, that he could not remember
the matter "vividly." There was no other testimony from him concerning this sub-
ject. Nor did any of the other NECA negotiators present at the meeting testify
concerning a discussion with Sorenson pertaining to the referral procedures.
Raymond Heady, brother of William Heady, testified that in obtaining employ-
ment in July 1960 with his brother's firm, he had gone to the Respondent's office where
he told Sorenson he wanted to "register under the referral procedure." According
to Heady, Sorenson showed him the 1958 referral addendum and asked him to desig-
nate the appropriate classification in which he should be listed. Heady assertedly
made a designation with which Sorenson concurred. He related, "I just asked for
employment. He (Sorenson) said that he had called for men, but he was going to
try and get the men that were in the local who were working out of town first "
The Respondent's witnesses testified that nothing was said at the bargaining
meetings to indicate the Respondent's desire to perpetuate the 1958 referral pro-
cedures in the new contract. On the contrary, according to Robert W. Moran, the
Respondent's president, who appeared at the meetings with Sorenson, when NECA's
negotiators proposed discussion of a referral system he and Sorenson stated their
refusal to consider the matter and it was dropped. He testified that the Respondent
had before then decided at a regular meeting to abandon the 1958 referral pro-
cedure and that his refusal to discuss the subject was governed by his organization's
determination. Sorenson testified that to his knowledge nothing was said about a
referral procedure during the negotiations. If it was brought up, he said, it was not
discussed. He confirmed Moran's testimony that the NECA negotiators were told
of the Respondent's unwillingness to negotiate this matter because of the position
taken by the Respondent by official resolution at its meeting. As to the conversation
at the first bargaining meeting, related by LaRocca, concerning the 1958 strike
against Heady Electric Company, Sorenson claimed no recollection that anything
at all was said about this matter. He furthermore denied that the issue which pro-
voked the strike involved an interpretation of the 1958 referral addendum but in-
sisted, instead, that it arose out of a breach of a clause in the 1958 contract pertain-
ing to job stewards. Sorenson vehemently denied the testimony by Raymond Heady
that when he consulted Sorenson in his office in July 1960 about employment the lat-
ter showed him the 1958 referral addendum and asked him to designate the classi-
fication in which he should be listed. He maintained that he did not even have the
1 LaRocca also testified that Sorenson had asked him whether he would continue to
recognize the referral procedures, and was assured that he would I do not believe that
this was the form of LaRocca's discussion of this subject with Sorenson LaRocca stated
without qualification that the only comment by Sorenson on this subject was that con-
tained in the above-quoted testimony I am satisfied that LaRocca's other veision of
what transpired between him and Sorenson concerning the matter is the product of
LaRocca's impression or reasoning.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addendum in his possession, and that he merely told Raymond Heady when the latter
related that he had been employed by his brother that if this was satisfactory to his
brother, he too was satisfied.
B. Evidence relative to a referral practice or understanding
The officials and owners of the several employer firms now covered by the NECA
contract and formerly by the 1958 contract with NECA's predecessor association
testified that pursuant to their historical hiring practices they relied upon the Respond-
ent as the sole source of their electricians. The General Counsel contends that
their description of the manner in which they procured their personnel warrants a
finding that there existed and still exists an understanding between these firms and
the Respondent whereby employment with these firms may be obtained only through
exclusive referral from the Respondent and clearance by it.
William Heady testified that his firm has always called Sorenson whenever it needed
men, and that if anyone applied directly for a job he would send him to the Re-
spondent for clearance and referral before hiring him. He stated that clearance
and referral of applicants by the Respondent was a compulsory condition preceding
his hire of them and that this conclusion is based on his belief that he is bound by
the referral provisions of the 1958 addendum which he considers part of the 1960
contract. Since the 1960 contract became effective, he has sent and had referred
to him by the Respondent approximately 10 persons. With respect to them, at
no time has he been informed by the Respondent that their referrals were not a neces-
sary precondition to hiring.
Clifford R. Haines is president of Haines and Spoor. He testified that his firm
also follows the hiring procedure described by Heady. He related that the only
reason he does so is that this had been the procedure followed by Mr. Spoor until
his death in February 1961. Up to then Haines had merely been Spoor's employee.
Since the 1960 contract became effective, he knows of possibly three employees hired
under this procedure. He has not been told by the Respondent that the procedure
is not obligatory.
William J. Snell, president of W. J. Snell, Inc., testified he also calls the Respond-
ent for personnel and sends applicants who come directly to him to the Respondent
for referral. He would not hire anyone who failed to obtain clearance from the
Respondent. He has been following this procedure for 15 years or as long as he has
been in business. He assumed he was in all this time under some written commit-
ment to hire only those employees referred to him by the Respondent, but acknowl-
edged that after the 1947 Taft-Hartley amendments outlawed the closed shop there
was no contract language spelling out these requirements until the 1958 addendum
was added to the contract. He believes that these requirements are in his present
contract. Since that contract became effective, 10 or 12 persons have been referred
to him by the Respondent. He has not been informed by the Respondent that it is
no longer necessary to clear applicants through it.
John P. O'Shea is the owner of O'Shea Electrical Contractor. In his 32 years of
business, he has always obtained employees by contacting the Respondent. If appli-
cants were to come directly to him, he would refer them to the Respondent and would
not hire them unless they obtained its clearance. He has hired six or seven employees
since the 1960 contract became effective and 'all were referred to him by the Respond-
ent. He has not been told by the Respondent that employees could be hired by him
without clearance. He asserted that even if he knew definitely that clearance of
applicants was not required by the Respondent, he would still not hire them directly
because he expects that persons who are referred to him by the Respondent will be
qualified for their jobs. He relies upon the Respondent to send him employees
because, in his words, "it's a business-like way of doing it in getting employees. We
don't have to start looking around to see where we are going to get them. We call
this central office and they are supplied to us." This procedure, O'Shea related, came
into being 30 years ago by mutual agreement with the Respondent. He is aware of
no agreement to compel an employer to abide by this procedure, and understands
he does not have to follow it.
Frank H. McEnaney is president of the firm which gears his name. He has
instructed his superintendent, who does the hiring for the firm, to contact the Re-
spondent whenever he needs men. He would not employ persons applying directly
for jobs. This firm has hired about 12 employees by referral from the Respondent
since the 1960 contract became effective. The Respondent has not told him its
clearance was unnecessary before these persons could be hired.
According to Sorenson, apart from the period covered by the 1958 contract and
its addendum, the Respondent has never in all the years of his association with it
as business manager had any arrangement, by contract or otherwise, with the elec-
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1625
trical firms in its jurisdiction whereby these firms were required to employ only those
persons referred or cleared for employment by the Respondent . With the exception
noted, the practice in all these years has been and is now for the firm to call for
personnel and for the Respondent to refer to them the unemployed electricians
whose names are maintained by Sorenson on a list which includes members of the
Respondent and nonmembers alike in a priority order in which the person longest
out of work is listed ahead of others. When the names of available persons are
thus made known , the requesting firm chooses from them those desired for particular
work. Usually it selects the better-qualified and younger men despite Sorenson's
interest as a matter of fairness in securing employment first for those longest out
of work. Moreover , Sorenson maintained , since the effective date of the 1960 con-
tract, there have been several instances when the electrical firms hired electricians
directly and thereafter notified him they were being sent to him for his "O.K." In
these circumstances he in effect told the employing firms that having already hired
these employees it was not necessary to have his "O.K." He claimed such hires were
made by William Heady of his two brothers and of Ronald Hicks .2 He related that
William Snell had asked his permission to hire his son-in-law as an apprentice and
when he replied that the apprentice rolls were not then open , Snell nevertheless put
his son-in-law to work performing apprentice duties 3 He claimed there were
cases "numbering tens and twenties" when John P. O'Shea hired Poughkeepsie firemen
and "floaters " going through the area without calling him. He recalled the names
of four persons who he says were put to work by O'Shea without notice to him. When
he learned of their employment he did nothing.4
C. Evidence relative to the Respondent's alleged refusal to refer DePaolo
for employment
DePaolo is and has been a resident of the Poughkeepsie area for many years. He
appears to be a journeyman electrician capable of performing satisfactorily the
electrical duties of the firms hereinabove mentioned. He is not a member of the
Respondent although he twice applied for membership, once in 1947 and again in
1960. Despite his denial of membership, he had on several occasions before
December 28, 1960, been referred by the Respondent to employment with the elec-
trical firms in its jursidiction. The alleged misconduct in this case consists of the
Respondent's failure to refer him to jobs with these firms after that date. Because
the history of DePaolo's relations with the Respondent is helpful to an understanding
of the events during the critical period, it will be related from the beginning.
DePaolo had worked for several years prior to 1947 for his brother who is a
nonunion electrical contractor in the Poughkeepsie area. In 1947 he applied to the
Respondent for membership and was assured he would automatically become a
member after he secured employment through it as an electrician. Subsequently
he was referred by the Respondent to a job at the Hudson River State Hospital.
After working a half-day he left the job because, in his opinion, the work was too
laborious and not the sort performed by an electrician. He recalled that a couple
of weeks later he was told by Sorenson, "You had your chance, now there is
nothing I can do, you are all washed up." Thereafter and until 1950 he worked
part-time for his brother.
Despite Sorenson's 1947 admonition, DePaolo was referred by him from 1950
to 1958 to other jobs with electrical firms in the Respondent's jurisdiction. He also
was employed by his brother for whom he last worked in 1956. While so employed
the Respondent picketed one of his brother's jobs. DePaolo crossed the picket line
to work for his brother and did so while Sorenson was himself carrying a picket
sign . DePaolo testified that about 6 weeks later he went to Sorenson to request
employment and that Sorenson then said, "I have nothing for you. You're all
washed up in this area." He maintained he was thereafter unable to see Sorenson.
2 Heady could not remember his conversation with Sorenson about Hicks, but testified
that he had cleared him before he was employed Raymond Heady's testimony concern-
ing his discussion with Sorenson at the time of his employment by his brother has been
reported above.
3 Snell denied Sorenson's version of their discussion pertaining to his son-in-law He
testified that he had wanted his college-educated son-in-law in his business to learn the
practical end of it so he could do estimating. When he spoke of this to Sorenson the
latter stated he had no objection to the young man being around the job and doing "little
odds and ends" but not working with the tools Snell testified that he agreed to this
'O'Shea testified that he did not hire Poughkeepsie firemen to work for him He con-
ceded having hired one fireman, Charles Miller, but with Sorenson's consent As above
related, he denied hiring anyone without clearance from the Respondent
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, it appears that DePaolo did again secure the Respondent's referral to
further employment for, as he acknowledged, he worked for W. J. Snell, Inc., from
early in 1959 to mid-January 1960, when he was laid off. Thereupon he went back
to Sorenson to ask for work and was told there was none available. He saw Soren-
son several times thereafter and was informed that there was nothing for him. He
asked to be referred to "out of town" work, presumably to jobs outside the Respond-
ents's territorial jurisdiction, but Sorenson stated he could not do this. He added
that DePaolo could do as he pleased, but that he should not mention his name any-
where. DePaolo then obtained work in Yonkers, New York, from an electrical
company in the jurisdiction of one of the Respondent's sister locals and worked
there until he was laid off on December 28, 1960.
In October 1960, while still employed at Yonkers, DePaolo applied to the Respond-
ent for membership and was required by the Respondent to appear before its execu-
tive board. At the time of his appearance, he asked Sorenson about his chances for
membership. He testified that Sorenson replied it did not look good and advised him
to "stay down there," meaning thereby to continue his employment at Yonkers.
The day following his layoff at Yonkers on December 28, 1960, DePaolo went to
Sorenson to request employment. He was told there was none available Repeated
visits produced the same response. Sorenson, according to DePaolo, had to take
care of his boys first. Failing to secure a job referral, DePaolo wrote to the Re-
spondent's parent organization, the IBEW, and complained that he had paid the
Respondent $300 in "assessments" and still could obtain neither membership nor
work. In reply he was advised that the matter had been referred to IBEW Vice
President Liggett in Albany. Subsequently DePaolo visited Sorenson and asked for
employment. He stated his willingness to take "out of town" work as he had done
before. Sorenson said he wanted to wait until disposition of the matter of DePaolo's
letter to the IBEW, a copy of which he had. After this incident DePaolo com-
municated with Vice President Liggett and then conferred with him on about
April 19 at Albany. Upon his return to Poughkeepsie, DePaolo went directly to
Sorenson's office and related that Liggett had said he should be placed on the
Respondent's referral list. Sorenson declared he did not have to comply with
Liggett's requirements and refused to put DePaolo's name on the referral list. The
next day DePaolo picketed the Respondent's premises with a sign declaring that the
Respondent was unfair, and that it had accepted $300 in assessments while denying
him membership and employment. The following day he called upon Sorenson at
his office. He asked whether there was anything they could discuss. Sorenson said,
"There is not. You had your day, now get out of here " DePaolo sought to
prolong the discussion, but when Sorenson accused him of making a threat, he
left This ended his personal contact with Sorenson. Subsequently he sent the
Respondent a letter requesting an examination in order to secure membership.
By letter dated June 15, 1961, DePaolo was informed by the Respondent that
because of his rejection for membership by the Respondent on October 4, 1960, it
would not act on his request for an examination. DePaolo took the matter to
NECA and was informed by it in a letter from LaRocca, dated July 8, 1961, that
the matter of examinations and admission to membership in the Respondent was
an internal union affair concerning which NECA took no position. The letter
further advised that provision for the examination sought by DePaolo was included
in the "Referral Procedure" contained in the addendum to the 1958 and 1960 con-
tracts with the Respondent.
Concerning his relations with DePaolo during the crucial period of this case
Sorenson related that the former had come to him in December 1960 5 seeking
employment. He informed DePaolo that in the preceding week 25 of the Respond-
ent's members had become unemployed because of a strike at a plant where they
had worked in Westchester County. He told DePaolo he would place his name
on the out-of-work list, but indicated that his chances for securing employment were
dim as there was general unemployment in the area of the Respondent's jurisdiction
with 40 percent of its members unemployed. DePaolo, Sorenson testified, re-
turned *n a week, and then came back at a later time in the latter part of February
1961. At this time the unemployment situation had worsened. The strike in West-
chester County was still in progress and total unemployment had risen above 40
percent. After February the situation improved. With the termination of the strike
and the return to work of the men who had been idled by it there remained un-
emnloved only those who lived and worked locally. Sorenson claimed he explained
to DePaolo in April that these persons had been out of work for 3 or 4 months
B At one point in the transcript of testimony Sorenson inadvertently stated that this
date was December 1959
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1627
and had been unemployed before his initial request for work in December 1960.
They consequently were entitled to priority over him in securing referrals to jobs.
According to Sorenson, DePaolo regarded this as a bad-faith explanation of his
failure to obtain referral and as a result resorted to the aforementioned picketing
of the Respondent's premises. Sorenson testified that on the afternoon of this inci-
dent, after DePaolo concluded his picketing, the latter came to him and asked,
"How do you like what I done today?" Sorenson replied, "I have no comment as
to what you done." DePaolo then put his fist under Sorenson's nose and explained,
"I'll fix you and the executive board, you bastard." Sorenson ordered him to leave
his office. He claimed he was told subsequently by someone that DePaolo had
later entered his office and had searched his files and desk drawers for a "referral
sheet."
Sorenson maintained he has not seen DePaolo since the last-described incident in
his office and has had no inquiry from him concerning employment. He testified
that by the middle of May 1961 unemployment in the area had ended and there
was work for anyone seeking it. Had DePaolo come to him for a job referral
he assertedly would have complied with his request despite the picketing incident,
and would do so now if DePaolo were to seek referral. He denied that he had ever
refused to refer him to available employment, or that he had refused to refer him
because he had worked for his brother. He denied ever telling DePaolo he was
"washed up" in the Poughkeepsie area, or that he had to take care of "his boys" first,
meaning thereby that he meant to refer the Respondent's members to jobs ahead of
DePaolo because the latter was not a member of the Respondent. He declared he
would not object if DePaolo was hired directly by any of the Employers herein
involved without first obtaining the Respondent's referral.
Findings
The record does not permit a finding that NECA's 1960 contract with the Re-
spondent contains the referral procedures of the addendum to the 1958 contract
between the Respondent and NECA's predecessor. A labor contract like any other
acquires binding effect only through the assent mutually given by the contracting
parties to be bound. I am satisfied there was no mutual assent by the parties to be
bound to the terms of any referral procedure. I credit Moran's and Sorenson's
testimony that, consistent with the official resolution of the Respondent's member-
ship, they were required to exclude a referral procedure from a new contract and
took such position at the negotiations. Sorenson's comment about the strike against
Heady Electric Company did not warrant LaRocca's conclusion that he was thereby
requesting retention of the 1958 addendum in the new agreement. This comment,
as recalled by LaRocca, is too vague and uncertain to justify his construction of it.
In any event, LaRocca did not regard Sorenson's word as a final disposition of the
matter for he understood that the question of a referral procedure was to be dis-
cussed by the negotiators and had consequently prepared a model agreement for
consideration. However, as he conceded, the matter became obscured and the
parties never did get around to its consideration. When in the end LaRocca assem-
bled a completed contract which he assumed embodied the entire agreement he did
not incorporate or attach the addendum Sorenson thus was not even presented
with a document purporting to a be a complete contract which contained any refer,
ence in any form to a referral procedure. In these circumstances I cannot find there
was ever a meeting of the minds between the parties concerning the inclusion of a
referral procedure in their contract which resulted in a binding agreement regarding
this subject.
I am, however, convinced that the Respondent had a noncontractual arrangement
with the electrical firms herein involved whereby referral and clearance by the
Respondent was required as a condition of employment of electricians by these firms.
I believe the testimony of the officials and owners of these firms that in the many
years in which they relied upon the Respondent as a source of qualified electricians
that they refused to employ applicants who come to them directly and hired only
those who had been referred and cleared by the Respondent. Even if there were
the several exceptions to this practice which Sorenson was able to recall from his
more than 20 years' experience as the Respondent's business manager they were so
few that they would not disprove the general practice of the employing firms Of
course, the fact that the Employers would hire only persons referred by the Re-
snondent does not by itself mean that this was by arrangement with the Respondent.
There must, as the Board has stated, be proof of "joint and consistent action" 6 or
6 Snvthrastern Plate Glass Company, 129 NLRB 412, 413, Charles S Wood and Co,
121 NLRB 543, 546.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"collaboration" 7 by both the Employers and the Respondent to establish such ar-
rangement . Despite Sorenson 's denials, I believe the Respondent did jointly engage
in and collaborate in this practice . I infer that the consistent practice over a period
of years by the Employers of sending applicants to the Respondent for referrals
before employment by them could not have escaped Sorenson 's notice. It does
not appear that Sorenson ever advised the Employers that this procedure was un-
necessary and that they could hire without referral applicants who came directly
to them. His failure to repudiate this practice amounted , at least, to tacit acceptance
of it as a condition just as effective as if it had been established by express agreement.
I am furthermore convinced , in accord with John P. O'Shea's testimony , that the
practice as described by him and the other Employers came into being many years
ago by mutual agreement with the Respondent and has been followed ever since.
That officials of some firms mistakenly believed that they are obligated to maintain
this practice by contract , or that one , Haines, does so simply because this had been
his firm 's method of personnel procurement before he became its owner , does not
disturb my finding that the exclusive referral arrangement exists. Nor does the fact
that this is a nonbinding arrangement which may be dissolved at will by either
party require a different finding The controlling fact is that such hiring practice
was operative at times material to this case and not what may have been its real
origin.
Concerning the Respondent 's alleged refusal for unlawful reasons to refer DePaolo
to employment on and after December 28, 1960, the General Counsel asserts that
Sorenson had before then refused to refer him to jobs because of his past employ-
ment for his brother and particularly because he had crossed the Respondent 's picket
line to work for his brother . The General Counsel maintains that this was the mo-
tivation for the Respondent 's refusal on and after December 28, 1960, to refer
DePaolo. The letter which he wrote to the IBEW complaining about the Respondent
and his subsequent picketing of the Respondent were factors which the General
Counsel claims later intensified the Respondent 's determination not to refer him
I have no doubt that the Respondent was displeased by DePaolo 's connection with
his brother sand particularly his failure to honor the Respondent 's picket line at his
brother's job. However , while this may explain the Respondent 's denial of member-
ship to DePaolo, it did not deter the Respondent from referring him to jobs. Al-
though the Respondent 's hostility was manifested in October 1960 when it again
rejected DePaolo's application for membership , I am not convinced, in view of the
history of past referrals , that this was the reason for his failure on December 28,
1960, and for some time thereafter to obtain referral . I believe that Sorenson testi-
fied truthfully that there were many unemployed members who were already on
his out-of-work list when DePaolo came to him in December 1960. In the light of
this fact , undisputed on the record , I interpret Sorenson 's remark about taking care
of "his boys " first as meaning not that he would prefer members to DePaolo but that
be would refer them ahead of him in accordance with his nondiscriminatory policy
of referring those first who were longest unemployed . I find further , in accord with
Sorenson 's credited testimony , that the unemployment situation continued until
sometime in May 1961 and that when he told DePaolo on succeeding occasions
that there was no work available for him, he was truthfully revealing to him that
others who preceded him on the out-of-work list were entitled to referral ahead of
him.
I am, however , convinced that a time came when Sorenson did change his attitude
and refused to consider DePaolo's request for referral. This occurred on the
occasion when DePaolo wrote to the IBEW complaining about his failure to secure
membership or work from the Respondent despite his payment to it of $300 in
"assessments " Although there does not appear an exact date in the record to show
when this occurred , I find from a consideration of other circumstances that this
occurred about April 1, 1961. I credit DePaolo's testimony that when he visited
Sorenson after the IBEW replied to the letter and again asked for work, he was told
by Sorenson that he would wait until disposition of the matter raised by the letter.
I further credit DePaolo's testimony that when he returned from his conference
in Albany with IBEW Vice President Liggett on April 19 and related to Sorenson
that Liggett said he should be placed on the Respondent 's referral list. Sorenson
declared he did not have to comply with this requirement . It is established by
Sorenson 's own testimony , which I have credited , that by the middle of May 1961,
unemployment had ended and there was work available for anyone . Nevertheless,
DePaolo was not referred to a job by the Respondent . From these facts , including
71nternational Brotherhood of Teamsters , Chavffenrs . Warehon,semen and Helpers of
America. Local 182, Utica , New York, and Vicinity, AFL (The Lane Construction Co) nora-
tion ), 111 NLRB 952.
LOCAL 215, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1629
Sorenson's resentment toward DePaolo for his picketing of the Respondent's premises
on April 20, I find that Sorenson refused to consider DePaolo for referral to employ-
ment from about April 1, 1961, when he was apprised of DePaolo's letter to the
IBEW and that his determination not to grant such consideration has continued
thereafter with the result that DePaolo was not referred to jobs at times when, absent
Sorenson's discriminatory reasons, he would have received referrals to employment.
In reaching the foregoing conclusions, I have considered Sorenson's June 14, 1961,
letter to the Board's field examiner and am convinced from my analysis of it that
it does not necessarily establish the General Counsel's contention that DePaolo was
denied referral when he first applied in December 1960. It does, as I see it, clearly
evince Sorenson's strong animus toward DePaolo generated by his conduct beginning
with the letter to the IBEW and culminating with the picketing of the Respondent's
premises. Sorenson incorrectly related in his letter that employers in the area are
reluctant to employ DePaolo because of his inability to do their work or because of
his hostility, and I am persuaded by these misstatements that Sorenson was thereby
seeking to cover up his real reasons for refusing to refer DePaolo, which, as I have
found, were his resentment toward him for the letter to the IBEW and the subsequent
picketing.
Sorenson's refusal to consider DePaolo for referral for the reasons I have found
constituted conduct by the Respondent violative of Section 8(b)(2) and (1)(A)
of the Act.8 Contrary to the Respondent's contention in its brief, it is immaterial
to such finding that the General Counsel has not proved that DePaolo sought em-
ployment directly from the electrical firms herein involved, and that he failed to
obtain available employment through some act of commission or omission by the
Respondent because he was not its member. It is sufficient, as I have found, that
in the operation of the exclusive referral arrangement with the several firms, the
Respondent for discriminatory reasons refused to refer DePaolo for employment
with them and did so in circumstances which made clear to DePaolo that his future
request for referral from the Respondent would be futile 9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of NECA and the electrical firms herein involved, as
described in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent on and after about April 1, 1961, engaged in
certain unfair labor practices violative of Section 8(b) (2) and (1) (A) of the Act,
it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act. Having found that
the Respondent discriminatorily refused to place the name of William DePaolo on
its out-of-work lists from which it makes referral of applicants to employment with
the above-mentioned electrical firms on and after about April 1, 1961, I shall further
recommend that the Respondent be required to place DePaolo's name on said lists
and to refer him to employment from them without discrimination, and that Re-
spondent shall make him whole for any loss of earnings suffered by him as a result
of its unlawful conduct by payment to him of a sum of money equal to the amount
he would normally have earned as wages absent the discrimination against him
from on or about April 1, 1961, until such time as his name has been placed on
the out-of-work lists and he is referred to available employment from them. Loss
of earnings shall be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.
Because the General Counsel does not contend that the Respondent maintained
any unlawful referral contract or arrangement or committed any misconduct except
that involving DePaolo, I perceive no necessity for remedial action broader than
that above recommended.
CONCLUSIONS OF LAW
1. Local 215, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act
2. Eastern New York State Chapter of the National Electrical Contractors Asso-
ciation and each of the aforementioned member firms is an employer engaged in
s Bechtel Corporation, etc, 120 NLRB 930
9 Tellepsen Construct¢on Company, 122 NLRB 504
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. By refusing to place William DePaolo's name on or about April 1, 1961, and
thereafter, on its out-of-work lists and by failing to refer him thereafter for employ-
ment with the aforementioned firms the Respondent caused these Employers to
discriminate against William DePaolo in violation of Section 8(a)(3) of the Act
and thereby coerced and restrained employees in the exercise of rights guaranteed
by Section 7 of the Act, thereby violating Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Local 215, International Brother-
hood of Electrical Workers, AFL-CIO, its officers, agents, representatives, successors,
and assigns, shall:
1. Cease and desist from causing or attempting to cause Frank H. McEnaney,
Inc., Heady Electric Co., Inc., Spoor and Haines, Inc., W. J. Snell, Inc., and John
P. O'Shea d/b/a O'Shea Electrical Contractor, or any other electrical firm in the
Respondent's territorial jurisdiction for which it is the sole and exclusive source of
referrals to employment, to refuse employment to William DePaolo in violation of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act:
(a) Place William DePaolo's name on its out-of-work lists for referral to em-
ployment with any of the aforementioned firms and refer him therefrom to employ-
ment as it becomes available on a nondiscriminatory basis.
(b) Make whole William DePaolo for any loss of earnings he may have suffered
as a result of the discrimination against him in the manner indicated in the section
of the Intermediate Report entitled "The Remedy."
(c) Post in conspicuous places in the business offices of its premises in Pough-
keepsie, New York, where notices to members are customarily posted, copies of
the notice attached hereto marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after being duly
signed by a responsible official of the Respondent immediately upon receipt thereof,
be maintained by it for a period of 60 consecutive days thereafter in conspicuous
places including all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to make sure that said notice is not
altered, defaced, or covered by any other material.
'(d) Notify the Regional Director for the Third Region, in writing, within 20 days
of the date of the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.ii
10 In the event that these Recommendations be adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States 'Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
"In the event that these Recommendations are adopted by the Board, this provision
shall be modified to read- "Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of receipt of this Order, what steps the Respondent has
taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 215, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that-
WE WILL NOT cause or attempt to cause Frank H. McEnaney, Inc, Heady
Electric Co., Inc., Spoor and Haines, Inc., W. J Snell, Inc., and John P. O'Shea
d/b/a O'Shea Electrical Contractor, or any other electrical contracting firm in
our territorial jurisdiction for whom we are the sole and exclusive source of
ENTERPRISE ASSN. OF STEAM, ETC., LOCAL 638A 1631
referrals to employment, to refuse employment to William DePaolo in violation
of Section 8(a) (3) of the Act.
WE WILL make William DePaolo whole for any loss of earnings he may
have suffered as a result of the discrimination against him.
LOCAL 215, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Enterprise Association of Steam , Hot Water, Hydraulic , Sprin-
kler, Pneumatic Tube, Ice Machine and General Pipefitters
of New York & Vicinity , Local Union No. 638A of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO and All -Boro Air Conditioning Corp . Case No. 2-CC-
639. April 27, .7962
DECISION AND ORDER
On December 19, 1961, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. There-
after Respondent filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modifications of provisions 2 (a) and (c) in accord with foot-
notes 14 and 15 of said Recommendations.1
'The following is to be inserted In the notice: Employees may communicate directly
with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New
York 22, New York, Telephone Number Plaza 1-5500, if they have any questions concern-
ing this notice or compliance with its provisions.
136 NLRB No. 146.