Local 873, AFL-CIO

National Labor Relations Board - Board Decisions

Jul 24, 1980

250 N.L.R.B. 928 (N.L.R.B. 1980)

F. C'ISI)ONS ()F NATIONAL IABfOR RELATI'IONS BOARD)
Local 873, International Brotherhood of Electrical
Workers, AFL-CIO and Steven C. Jones and
Komomo-Marian Division, Central Indiana
Chapter, National Electrical Contractors Asso-
ciation, Inc., Party to the Contract. Case 25-
CB-3682
July 24. 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 5, 1980, Administrative Law Judge
Phil W. Saunders issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in answer to the General
Counsel's exceptions. The International Brother-
hood of Electrical Workers, AFL-CIO, the Na-
tional Electrical Contractors Association, and the
National Joint Apprenticeship and Training Com-
mittee, an organization affiliated with the electrical
industry, moved to file a brief as amici curiae. The
motion is granted and the brief accepted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusionsa of the Administrative Law
Judge and to adopt his recommended Order.
In the absence of opposition thereto, we hereby grant the General
Counsel's motion to correct the record
2 The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the B oard's
established
policy not to overrule an administrative law judge's resolutions
with re-
spect to credibility unless the clear preponderance of all
of the relevant
evidence convinces us that the resolutions are incorrect
Sluandard Dry
Wall Productrr Inc. 91 Nl RB 544 (1950). elnfd 188 F 2d 362 i3d Cir
1951) We have carefully examined the record and find
no basis for re-
versing his findings
: In adopting the Administrative Law Judge's recommendation
that
the complaint he dismissed, we do not rely on his finding
in sec III, par
18. of his Decision that the failure of Respondent to refer
the Charging
Party, Jones. for employment did inot encourage uniirl
mnembership In
International Union oJ Operating Engineers. Local 18, .4t .-( /0
(Ohir,
Contractorr .4sn.), 204 NL RB 681 (1973). the BRoard fiund that "[w]lhen
a
union prevents an employee from being hired or causes
an employee's
discharge. it has demonstrated its influence ovser the employee
aiid its
power to affect his livelihood in so dramatic a way that
sve will infer
or, if you please. adopt a presumption that-the effect
of its action is to
encourage union membership on the part of all employees
who haie per-
ceived that exercise of power. But the inference may be
overcome. oir the
presumption rebutted in instances where thile facts
shrow that the
union action was lnecessary tI) the effective performlalnc
Ift i function r It'
representing its conrstituency " Althoughl tie Adminintratlse
1 l as Judge
stated a proposlitinl i contrary to the above principle,
he vwcntll i i t, alna-
lyze the case in terms of Respondelt's justificatillns
fIr rclusirg to refer
Jones He fiund that the classificatiinrrs enumerated in the collectie-biar-
gaining agreement applied to journerenlc oily Iand that
when Jones was
terminated from the apprenticeship pr gram, the
cntmraclt wv uld not
allor. him to he referrerl by Resplonldenlt is a Ilourlleynllan
in the ilterests
250 NLRB No. 113
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
(if prcsering the apprenticeship t raining program and the collectise-bar-
gaining agreement itself. Respondenl', action in refusing to
refer Jones
'was indeed "necessary to the effective performance of its functiorn of rep-
resenting its constituency." We therefore find that Respondent has rebut-
led the presumption and that no i olatioun of Sec 8(sb)( )(A) and (b)(2)
occurred
In adopting the Administrative l.aw Judge's Decision, Member Jenkins
finds it unnecessary to cinsider the ramifications of Groups I and II
as
described in the collectise-bargairitng agreement.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDI RS, Administrative Law Judge: Based
on a charge filed on March 12, 1979, by Steven Jones,
herein Jones or the Charging Party, a complaint was
issued on April 12, 1979, against Local 873, International
Brotherhood of Electrical Workers, AFL-CIO, herein
called Respondent, Respondent Union, or Local 873, al-
leging violations of Section 8(b)(l)(A) and (b)(2) of the
National Labor Relations Act, as amended. Respondent
filed an answer to the complaint denying it had engaged
in the alleged matter, and both the General Counsel and
Respondent filed briefs in this matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Robbins Electric Company, Inc., herein called Rob-
bins, is a corporation organized and existing by virtue of
the laws of Indiana and, at all times material herein, has
maintained its principal office and place of business at In-
dianapolis, Indiana, with various other facilities located
in the State of Indiana including a facility located at
Kokomo, Indiana, herein called the facility, and is, and
has been at all times material herein, continuously en-
gaged at said facilities in the electrical construction busi-
ness.
During the past year, a representative period, Robbins,
in the course and conduct of its business operations, per-
formed services valued in excess of $50,000 in States
other than Indiana wherein Robbins is located.
Kokomo-Marian Division, Central Indiana Chapter,
National Electrical Contractors Association, herein
called the Association, is a group of employers whose
function and purpose is to represent its member employ-
ers in collective bargaining with various labor organiza-
tions, and to enter into collective-bargaining agreements
with labor organizations where agreements are reached
between the parties, and to service agreements entered
928
LOCAL 873, AFL-CIO
into with these labor organizations. The employers of the
Association, herein collectively referred to as Member
Employers, are, and have been at all times herein, en-
gaged in business as electrical contractors.
During the past year, each of the Member Employers,
in the course and conduct of its business operations, pur-
chased, transferred, and delivered to its Indiana facilities
goods and materials valued in excess of $50,000 which
were transported to said facilities directly from States
other than the State of Indiana.
Robbins, the Association, and Member Employers are
now, and have been at all times material herein, each in-
dividually and all collectively, an employer within the
meaning of Section 2(6) and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVFD
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR tABOR PRACTICES
The main issue in this case is whether or not Local
873 unlawfully refused to refer the Charging Party out
for employment because he was removed or terminated
from the apprenticeship training program.
It appears that on or about March 2, 1978, Respondent
Union entered into a collective-bargaining agreement
with the Association effective from March 1, 1978, to,
and including February 29, 1980, and which provides in
article III as follows:
Section 3.02:The Union shall be the sole and exclu-
sive source of referral of applicants for employment.
* * * *
Section 3.07: If the registration list is exhausted and
the Local Union is unable to refer applicants for
employment to the employer within forty-eight (48)
hours from the time of receiving the employer's re-
quest, Saturdays, Sundays and Holidays excepted,
the Employer shall be free to secure applicants
without using the Referral Procedure, but such ap-
plicants, if hired, shall have the status of "tempo-
rary employees."
The referral procedure of article III of the above-men-
tioned collective-bargaining agreement also provides for
four groups of classification of applicants, and it is al-
leged in the complaint that on or about September 13,
1978, Respondent Union refused to allow the Charging
Party to register his name in any of the four classifica-
tions in the referral book, notwithstanding the fact that
Jones met the qualifications for registration for certain
classifications.
Steven Jones began his indenture as an apprentice with
the Marian-Kokomo Joint Apprenticeship and Training
Committee, hereinafter referred to as the Committee or
JATC, on August 6, 1973, and in accordance therewith
Jones was referred out, as an apprentice electrician,
under the auspices of the JATC, to Employer Members
of the Association. It appears that the apprentice referral
book is maintained by the only secretary for Respondent
Union, Alice Wenger, and it further appears that Wenger
is also the secretary to the JATC and that the referral
books, I-IV, are maintained at the office of Respondent
Union which is also the office of the JATC.1
Jones remained in the apprentice program until Sep-
tember 12, 1978, when his indenture was canceled by the
JATC. At the time of cancellation Jones had completed
his Related Instructional Training (classwork), but not
his on-the-job training, and had 730-1/4 hours of on-the-
job training remaining when he was terminated from the
apprenticeship program. Admittedly, Jones had never at-
tained the status of a journeyman electrician. 2 In 1975,
after completion of a probationary period, Jones became
a member of Respondent Union and has remained a
member at all times material herein.
Jones was employed by Robbins from July 12, 1978. to
August 21, 1978. 3 Oliver Barker, then branch manager
for Robbins, testified, for background purposes, that in
about mid-August 1978, he was contacted by Robbins'
Field Superintendent Fred Helton with the communica-
tion that Jones was going to be discharged for sleeping
on the job, but after further considerations, and since
Jones was an apprentice, it was decided to give him an-
other chance. However, during the following week, he
did not show up for about 3 days so it was then decided
to terminate Jones for absenteeism.4 Barker testified that
Jones was not discharged because of any garnishment of
his wages, but on cross-examination Barker admitted that
on or about August 10, 1978, Robbins had received an
attorney's written interrogatory and relative to Jones
being the subject of a garnishment action by Royal Or-
leans Apartments. The interrogatory asked if the Defend-
ant (Jones) was an employee of Robbins, and Barker an-
swered, "not if we have to garnish his wages."5 Barker
testified that he himself also used to live at Royal Or-
leans Apartments and from this experience he could well
visualize that Jones had good reason not to pay his rent,
and this is why he put the above information on the in-
terrogatory letter "as it tells nothing." and then gave the
letter to Superintendent Fred Helton with instructions to
tell Jones that somebody was trying to garnish his wages
for some reason or another, but that he (Barker) would
try to discourage it in any way he could.
Jones testified that when he was contacted about this
matter, Helton informed him that people who do not pay
their bills are not wanted by Robbins. Jones further
stated that somewhat later, on August 21, 1978, when
'1 he collective-bargaining agreement. G( C Exh 2, contains an exclu-
si.c hiring hall prosvison with job referrals acc mplished through a ecpa-
rate referral hook In August 1973 the Bureau of Apprenticeship and
lralnnlilg of the United States Department of Labhr. by its Area Repre-
selitatis Arthur C, Harker. also registered Jones as an apprentice
tAfer he was terminated from the apprenticeship training program.
Junes did no1t work for an' electrical employer under contract in Local
873's lurlsdlciion. and whether Jones even requested to be referred Iti
employ, mcit is also the sulbjectl f some dispute, as will be detailed later
herein
Robbins Is a sIgnalors member of the Association
It alppea;rs Ihat Jonles celded up wilh Iwo lermination slips Barker tes-
tified iha bohth the foreman nI the lob and the union steward make out
terminaltii t lips with one going to Respondent Union and one going
with the final check
s See Ci C E xh 9
929
I)1tCISIONS OF NATIONAL LABOR RELATIONS BOARD
ttelton told him he was discharged from Robbins as he
did not show up every day, he replied that he had not
been excessively absent and that he was being fired be-
cause his wages were subject to garnishment. Further-
more, that during the last weeks of August 1978, he also
had a conversation with Manager Barker, and on this oc-
casio!n informed Barker that he knew he was being dis-
charged because of the garnishment action against him,
and that he then tried to persuade Barker to write his
termination slip to reflect reduction-in-force and thus
enable him to remain eligible to sign an out-of-work re-
ferral book, and also stated that while in Barker's office
he heard Barker speaking on the phone to someone
about the rules and regulations of the apprenticeship pro-
gram, but Barker did not write the termination slip as he
had requested, and the termination slip from Robbins
given to Jones was not signed by Barker, notwithstand-
ing that Barker gave final approval for the termination of
Jones.
Counsel for the General Counsel argues that the fail-
ure to sign Jones' termination slip manifests a reluctance
to take responsibility for Jones' discharge, and that the
reason for Barker's reluctance to do so was because Rob-
bins terminated Jones due to the garnishment action -
and that this is readily apparent in view of Barker's testi-
mony that a different termination slip, bearing the signa-
ture of a foreman and union steward, was forwarded to
Respondent.
Jones testified that on September 13, 1978, he went to
the office of Respondent Union with the intention of
signing an out-of-work referral list or book, and asked
Alice Wenger if he could sign the book, but Wenger, ac-
cording to Jones, then informed him that he could not
sign the book because he had been dropped from the ap-
prentice program and she was typing a letter to so notify
him and showed Jones a copy of the letter.6 The letter
informed Jones that the JATC had met on the previous
evening and based on his past terminations from other
employers due to absenteeism, and as he had been previ-
ously placed on probation for the duration of his appren-
ticeship, but had again been terminated for the same
reason-he was being dropped from the apprenticeship
program. 7 Jones said that after asking Wenger a few
other questions, he then made out 4 months' dues and
then left the office.
Jones testified that about a week later into September
1978 he had a conversation with Respondent Business
Manager George Klein, and on this occasion asked Klein
what he could do to help him, and further testified:
Then he [Klein] said there was nothing he could
really do at this point because I had been dropped
from the apprenticeship program and my classifica-
tion was none and my standing was none.
I asked him then whether I could be sent out
through another book or through another classifica-
tion, and I said that I would be willing to take any
6 Wenger testified that Jones did come inlo Ihe offrice on the date in
question, hut in doing so merely Inquired whether the JAT C had met the
night before, and did noi t ask to( sign i he referral hook
7 See (i C Exh. 7
exam at that point, and he said it just doesn't work
that way.
I said well - he said that he could not do any-
thing for me because there was a three day limita-
tion for filing a grievance and to that I said I didn't
know anything about a three day limitation....
Klein also told him, according to Jones, that he could
keep his dues current to remain a participant in the union
pension plan, "but he gave me [Jones] the impression
that that was all it was going to be worth to me."
Thereafter, Jones retained an attorney who wrote a
letter on behalf of Jones to the JATC requesting that it
reconsider its original decision, and to permit Jones to
appear before them, and during the first week of October
1978, Jones appeared before the JATC to request recon-
sideration of its decision. Jones testified that at this time
he also showed the JATC a copy of the garnishment in-
terrogatory, as aforestated, but the JATC refused to alter
or change its decision in this matter. Jones was not rep-
resented before the JATC by anyone for the Respondent
Union.H
In late October 1978, Jones had a telephone conversa-
tion with Klein and wherein Klein advised Jones that he
would contact a local union business agent in Indianapo-
lis (approximately 52 miles south of Kokomo) on Jones'
behalf. About a week later Jones again called Klein and
was advised that there was work in Indianapolis, that
Jones should check the want ads in the Indianapolis Star,
but to keep Local 873 out of it. Jones then found work
through the want ads and at journeyman's wages.
The General Counsel points out and argues that
Klein's testimony, along with the testimony of Wenger,
establishes that Respondent Union unlawfully refused to
refer Jones and, in fact, has and is maintaining a referral
system in violation of the Act-that Klein evasively tes-
tified he could not recall a specific request from Jones to
sign any of the four referral books, stated he was un-
aware that Jones had not been permitted to sign them,
and then testified that after Jones was removed from the
apprenticeship program by JATC, his referral classifica-
tion was "none." Next, Klein testified that Respondent
Union maintains only two referral classifications-ap-
prentices and journeymen-and that Jones was unable to
sign books one and two because he was not a journey-
man and had not passed the requisite examination. Klein
further stated that the normal group of people permitted
to sign book three are union members from locals other
than Respondent, and then later during the hearing Klein
evasively testified that Jones in no way indicated to him
he desired to be referred out for employment after he
was expelled by the JATC from the apprenticeship pro-
gram. Moreover, that Alice Wenger testified that the re-
S With respect to the Respondent Union investigating the reasons for
Jones,' termination from Robbin,, Klein testified:
. I'm getting out of the realm of whose jurisdiction we're-it'% not
my jobh or the union officer's job to become involved in the termina-
tioni of that apprentice. That's solely ito he handled by the appren-
licehip committee I don't have jurisdiction in it In office coinversa-
lion I may wsell have been iswarc of the fact that the man had been
terminated, hut I didn't stick my nose in it.
9.30)
I.()CAI. X73, AFI.-CIO
ferral book one was for "our own" members when they
came in.
The General Counsel further maintains that Respond-
ent's position-to the effect that because of Jones' re-
moval from the apprenticeship program he could not be
referred out for employment-is clearly in violation of
the collective-bargaining agreement; that according to
the agreement in question Jones was entitled to sign
books three and four and to be referred out should there
be work available, but the testimony of Klein shows that
Respondent Union utilized only two referral classifica-
tions - journeymen and apprentices. Moreover, argues
the General Counsel, an individual is not required to
have achieved journeyman status to be eligible under
books three or four, and that section 3.15 of the bargain-
ing agreement, which limits exceptions in the referral
order to two situations, is not applicable here.
The General Counsel also goes further in his conten-
tions and states that, even assuming, for the moment, that
Jones was properly removed from the apprenticeship
program, Respondent Union offered no legitimate reason
why it did not refer him under books three or four,9 and
to testify, as Klein did, that there are only two classifica-
tions is to admit that Respondent Union did not even
consider Jones for referral out pursuant to the contract,
and the argument by Respondent Union that it should
not be required to continue to refer Jones out after he
had been terminated by one other Member Employer,
must also fail as this line of thinking assumes that because
Jones had an absentee problem in the past, he would
continue to have absentee problems with all employers.
Moreover, this argument also ignores section 3.03 of the
bargaining contract which states: "The employer shall
have the right to reject any applicant for employment,"
and therefore, the General Counsel maintains, it is not
for Respondent Union to decide whether an employer of
the Association shall have this or that person for em-
ployment-Respondent Union has a duty to refer quali-
fied applicants, and the employer may reject an unsuit-
able applicant. Furthermore, argues the General Counsel,
the assertion by Respondent Union that the JATC had
sole control over the apprentice program and thus could
remove Jones from the program, is indefensible as the
contract states "apprentices shall be hired and transferred
in accordance with the apprenticeship provisions of the
Agreement between the parties." (G.C. Exh. 2 ), and the
contract does not permit the Respondent Union to sur-
render total control over apprentices to JATC, and,
indeed, the Act prohibits such an abdication of a union's
duties and responsibilities. In addition, the refusal to refer
Jones out pursuant to the contract, after he was removed
from the apprenticeship program, could also result in the
9 Sec 305 of the bargaining contract implements the referral proce-
dures into four groups. Group or hook three provides:
All applicants for employment who have two or more years' experi-
ence in that trade, are residents of the geographical area constituting
the normal construction labor market and who have been employed
for at least six months in the last three years in the trade under a
collective bargaining agreement between the parties to this Agrce-
ment.
Group or book four provides
All applicants for employment who have vsorked at the trade for
more than one year
wholesale desertion of the program by other "demoral-
ized" apprentices who thereafter would seek work in the
industry as journeymen, and thus invalidate the appren-
ticeship program.
In the final analysis, it is the position of the General
Counsel that a strong prima facie case was presented that
Respondent Union violated Section 8(b)(1)(a) and (2) of
the Act as alleged in the complaint. The record shows
Respondent Union permitted its agents, the JATC, to
remove Jones from the apprenticeship program without
affording him a reasonable opportunity to appear and
speak on his own behalf. Even if Jones had been afford-
ed the opportunity to appear, his removal from the ap-
prenticeship program was improper since the testimony
of Oliver Barker clearly shows Jones was terminated be-
cause of a garnishment action against him and not be-
cause of absenteeism. Respondent Union did not investi-
gate the circumstances of Jones' discharge, and in Octo-
ber, when Jones was allowed to appear before the
JATC, they refused to reconsider their original decision
even though Jones showed the Committee the interroga-
tory bearing the comment of his former employer (Rob-
bins) that if they had to garnish Jones' wages he would
not remain employed.
First of all, it should be noted that Jones was a
member of Respondent Union at all times material
herein, and a critical element in deciding 8(b)(l)(A) and
(b)(2) cases is discrimination on the basis of union mem-
bership, or lack of it. In the instant case, as pointed out,
no logical argument can be made that the failure of Re-
spondent Union to refer Jones out for employment in
any way encouraged membership, since his membership
in the Respondent Union obviously gave him no protec-
tion or special consideration-he was not referred out
despite his membership in Respondent Union.
The collective-bargaining agreement here in question
provides for referral of two classifications of employ-
ees-the first is that of journeyman wireman/journeyman
technician-and within this classification four orders or
groups of priority for referral are provided, and each
level of priority is given a group number, ranging from
one to four, and criteria are specified for assignment to
each of the respective priority groups. °0 However,
unlike the referral procedures for journeymen, the con-
tract here in question provides for no particular order of
priority for referring apprentices. The contract estab-
lishes and sets up the eight-member JATC, and provides
that they shall supervise all matters involving apprentice-
ship training and "shall have full authority to transfer ap-
prentices from one job or employer to another. All trans-
fers and assignments for work shall be issued by the
Committee through the referral office."" Consistent
with these contract provisions, Klein testified that there
are only two classifications of employees for referral pur-
poses, journeymen and apprentices, and explained that
because there are only those two classifications, any
"' Groups one and two are applicants who have 4 or more sears' ex-
pericnee and who have passed a journey man's examination, or who have
been certified as Journeymen Jones neser reached the status of a jour-
neyman.
" See G C Fxh 2
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person referred out, other than apprentices, and regard-
less of the priority group for which he qualified, may be
used as a journeyman, should be able to function as a
journeyman, and must be paid journeyman's wages.
As pointed out, the collective-bargaining agreement
provides that Respondent Union may not discriminate in
its administration of the referral procedure against non-
members, and Klein testified that he had never refused to
allow any nonmembers, who met the criteria for group
one, in the referral procedure, to register for referral in
book one, nor had he refused to register a nonmember,
who met the criteria, for any of the referral books. The
General Counsel did not introduce a single instance to
contradict this testimony.
When asked about referral group three, Klein denied
that someone who was not a union member would be
prevented from registering. 2 Klein testified that the
"normal group" of workers who sign book three are
people from other locals out of classification. Klein also
explained that most of the people signing book three are
already known to him because they have worked previ-
ously in Local 873's jurisdiction.
In regards to group or book four, Klein testified that it
is used primarily for "people with only one year's experi-
ence," as provided in the contract itself, and that most of
the people who can only meet this criterion are not
members of any local union.
Respondent Union denies that Alice Wenger is their
agent. However, the General Counsel maintains that
Wenger is an agent of both the JATC and Respondent
Union, and that her unlawful refusal to permit Jones to
sign the apprentice or journeyman out-of-work books on
September 13 is chargeable to the Respondent Union.
Wenger, like situations in other cases, gave the impres-
sion that she was capable of conducting union business
and the relationship of the JATC vis-a-vis Respondent
Union was fully litigated, and this record shows that
JATC is Respondent's agent with respect to virtually all
aspects of the apprenticeship program.
Respondent Union argues that Wenger has no authori-
ty whatsoever over the referral books for journeymen,
that she handled only the apprenticeship referral book,
but all other referral books were kept by Klein in his
office, and Wenger has handled only books or groups
one and two, and then "very seldom," and only on those
rare occasions would she let people sign in under explicit
instructions left by Klein. On the other hand, if Klein
knew someone was coming in, but that no work would
be available in Local 873's jurisdiction in the foreseeable
future, he would then leave instructions for Wenger to
so inform the applicant. Moreover, when Klein went on
vacation he did not leave the referral procedure in
Wenger's hands, but rather in the hands of the president
of Respondent Union.
In view of the fact that Wenger was employed by
both Respondent Union and JATC, occupied a joint
office, and spoke for Klein and in certain situations ac-
cepted names when he was absent, it is quite obvious
that Wenger gave the impression and held out to the
public that she was capable of handling business for Re-
' Group three are applicants with 2 or more years' experience and are
residents of the geographical area, as aforestated
spondent Union, and therefore I find her to be an agent
of Respondent Union. However, Wenger testified in a
consistent, competent, and straightforward manner, as
did Klein,' 3 and therefore I credit their testimony to the
effect that on September 13 Jones did not request or
come into the office to sign a referral book, but came in
and inquired if the JATC had met on the previous eve-
ning, and it was then that Wenger informed Jones that
he had been dropped from the apprenticeship program,
as aforestated. Klein had been instructed by the JATC
not to refer out any apprentice who had been terminated
by their employer, other than by a reduction in force,
until there had been a review of the matter by the
JATC.
Under certain circumstances the Board has found it il-
legal for a labor organization to refuse to refer an indi-
vidual for employment through an exclusive hiring hall
where it was shown that the union was hostile towards
the individual for questioning the operation of the hiring
hall, or for filing charges, or in situations where it re-
fused to refer out an individual who had threatened to
work for the election defeat of the incumbent union offi-
cers. However, in the instant case, as indicated, there is a
dearth of evidence suggesting that Respondent Union
had any ulterior motive in refusing to refer Jones for em-
ployment, and no evidence that Respondent Union, or
the JATC for that matter, harbored any hostility toward
Jones. Instead, there is considerable evidence that the
Respondent Union went out of its way to help Jones. In
June 1978, Business Manager Klein referred Jones out
for employment to Ermco Electric, even though referral
was in violation of the instructions Klein had received
from the JATC. Jones had been terminated from his pre-
vious employer and according to the rules of the JATC
could not be referred out for further employment until
he had appeared before the JATC to discuss why his
employment had been terminated. Nevertheless, Klein
knew that Jones "was in need of employment, he needed
money and he was hurting for a job," and so Klein
helped him out by making the referral, but because of
this Klein was then reprimanded by Wilbur Yentes, an
electrical contractor and a chairman of the JATC. More-
over, when Jones did appear before the JATC in July
1978 he was put on probation for the rest of his time in
the apprenticeship training program, but was allowed to
sign the available for work list. After Jones was put on
probation, Klein also arranged for Jones to come into his
office to talk about his probationary status. Klein told
Jones that he was concerned about the possibility of
Jones being terminated with so little time left in his ap-
prenticeship, and counseled Jones to straighten out his
personal problems. Jones agreed that it was a serious
" The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with
due regard for the logic of probability, the demeanor of the witnesses and
the teaching of N.L.R.B. v. Walton Manufacturing Companyd Loganville
Pants Co., 369 U.S. 404 (1962). As to those witnesses testifying in contra-
diction of the findings herein, their testimony has heen discredited, either
as having been in conflict with the testimony of credible witnesses or be-
cause it was in and of itself incredible and unworthy of belief. All testi-
mony has been reviewed and weighed in the light of the entire record
932
LOCAL 873, AFL CIO
problem and that he would attempt to rectify it. Then,
after Jones was terminated from the apprenticeship train-
ing program in September, Klein went out of his way to
devise a method by which Jones could get employment
in Indianapolis, as aforestated. I am in agreement that if
Respondent had any special attitudes towards Jones, it
was obviously favorable and helpful. Jones did not deny
any of the assistance he had received from Klein, nor did
he even intimate that Klein was at all hostile towards
him. It is obvious that Respondent Union in this case
was not trying to serve any retaliatory hostile or ulterior
purpose in its actions towards Jones.
As pointed out, in properly analyzing the conduct of
Local 873 in this case it is also important to understand
that the Member Employers in the Association who
were covered by the collective-bargaining agreement
with Respondent Union are all one employer, legally and
practically, for hiring purposes. Local 873 has only one
collective-bargaining agreement to which all of the
unionized contractors in its jurisdiction are signatory,
and the referral procedure provided in article 3 of the
agreement is applicable to all of the contractors. Thus, in
the instant case, we must start with the proposition that
the unionized electrical contracting industry in the area
of Kokomo, Indiana, has a common pool of employees,
and who are referred to the various signatory contrac-
tors through a common referral procedure.
The signatory contractors have also agreed on a
common means by which to add qualified individuals to
the pool of available employees. Article 7 of the collec-
tive-bargaining agreement here in question provides for
the establishment of a Joint Apprenticeship and Training
Committee, herein JATC, and confers upon the JATC
full authority of all matters involving apprenticeship
training, including the right to assign apprentices, to
transfer them from one employer to another, and this ar-
ticle also specifically provides that all transfers and as-
signments for work shall be issued by the JATC through
the referral office. The apprenticeship program is also
the primary source of new permanent employees to con-
tractors signatory to the contract. None of the signatory
employers maintain their own program to train inside
wiremen. Moreover, all of the signatories to the collec-
tive-bargaining agreement use apprentices supplied by
the JATC, and it also appears that the purpose of the ap-
prenticeship training program is to have a continuing
flow of good, dependable, and qualified employees to the
electrical industry in the Kokomo area.
Counsel for Respondent Union argues, with consider-
able plausibility, that the General Counsel in this case
seems inclined to treat each contractor as a separate em-
ployer, and that such an approach obscures the fact that
the JATC is the initial hiring and training department for
the industry, and therefore is entitled to take into ac-
count an apprentice's entire record in determining
whether he should be passed into the regular work force.
But here the General Counsel would have each and
every electrical contractor in the Marian-Kokomo area
"try out" an apprentice who had already been found de-
ficient by other contractors, and the inevitable effect of
this position would be to force upon the electrical con-
tracting industry a situation in which an unsatisfactory
employee could push his way past the industry's employ-
ee selection and training arm, the JATC, and into the
permanent work force. Moreover, as further argued, the
overall purpose of the apprenticeship training program
would be defeated if individuals who had shown them-
selves to be unskilled or undependable were given a
right to enter the permanent work force over the opposi-
tion of the JATC, thus depriving the JATC of its ability
to screen out such people. Furthermore, if apprentices
could behave so badly as to cause themselves to be ter-
minated, or simply quit from the apprenticeship training
program, and retain the legal right to be referred out in a
higher paying classification or group, then the incentive
to complete the apprenticeship training program would
be largely destroyed.
The above argument by Respondent Union is also duly
supported by the testimony of Wilbur Yentes, an electri-
cal contractor and chairman of the JATC, and was also
supported by the testimony of Andrew Phillips, Director
of the National Joint Apprenticeship and Training Com-
mittee for the Electrical Construction Industry. Phillips
testified that the procedure adopted in Local 873's juris-
diction, that of not referring out a person who has been
dropped from the apprenticeship program, is also the
same throughout the entire electrical contracting indus-
try, and that such a practice is not confined merely to
the electrical contracting industry. Moreover, Arthur
Harker, area representative of the Department of Labor,
Bureau of Apprenticeship Training, also testified that the
same rules respecting terminated apprentices from train-
ing programs are followed throughout the construction
industry in the area with which he is familiar. Harker
further testified that in the view of the Bureau of Ap-
prenticeship Training, this practice of not referring out
terminated apprentices is consistent with the goals for
which the Bureau was established.
As indicated, Klein never wavered in this consistent
interpretation of the collective-bargaining agreement-
which was that any person dropped by the JATC was
not eligible for referral in any capacity, as he had no
classification. Yentes, an electrical contractor signatory
to the agreement and chairman of the JATC, as afores-
tated, testified that the collective-bargaining agreement
does not permit the referral of apprentices whose inden-
ture has been terminated, and that this has been the
actual practice or policy as long as he has been on the
JATC. Moreover, it appears that the referral language in
the agreement here in question is standardized national-
ly. 4
The Genelal Counsel makes a reference in his argu-
ments to the effect that Jones was removed from the ap-
prenticeship program without affording him or Local
873 a reasonable opportunity to appear and speak on his
own behalf. However, this record shows that by letter
dated August 29, 1978, the JATC attempted to notify
Jones that his presence was requested at their meeting on
September 12 at 7:30 p.m. to discuss his termination from
Robbins. '
'4 See Rcsp Exh 1i)
': See Reap Exh 8-M h i appcare th.li his lItler a .,,sent lo the last
killow n stlrcf a.ddres of Jone,, hut thelt rCtLlrncd ti Jt T(C oI t the hsis, of
('otlff,'/atd
DECISIONS OF NATIONAL LABO()R RELATIONS BOARD
It also appears to me, under the circumstances here,
that there was no duty imposed on the Respondent
Union to represent Jones before the JATC, and specifi-
cally since Local 873 had no advance knowledge that
Jones was going to be dropped by the JATC. There is
no evidence that anyone from Respondent Union had
any prior conversations with any of the members of the
JATC about Jones and his termination.' 6 It is also noted
that that thereafter, Jones had his attorney write a letter
to the JATC, and on this basis Jones did have the oppor-
tunity in October 1978 to appear before the JATC and to
argue for reconsideration of their decision, as aforestated.
The General Counsel also contends that Jones was ter-
minated by Robbins because of the garnishment action
instituted against him, and not because of his absenteeism
and, therefore, when the JATC later considered the
matter, they did not have a "good cause" in terminating
Jones from the apprenticeship training program. Howev-
er, the reliable testimony of Alice Wenger, and who han-
dles the records, documents, and letters of the JATC in
the normal course of its business operations,"7 also re-
veals that within a short period of time Jones had been
fired from Elco Electric, Long Electric, and Robbins
Electric, and each time for absenteeism. In view of this
background and documented evidence, the General
Counsel cannot successfully prevail in his contention that
the JATC did not have good cause to drop Jones from
their program, and especially so in view of his long his-
tory of problems with attendance, and it is also uncontra-
dicted that Jones was fired from Robbins immediately
after he failed to report for work 3 consecutive days,
without calling in, and without providing any explana-
tion for his absence. As pointed out, unless one were to
adopt Jones' attitude toward attendance-that it was no
concern of the employer since the employee is paid only
when present-it must be concluded that Robbins had
good cause for terminating Jones' employment, and since
there had been such problems repeatedly, the JATC had
a good cause for canceling his apprenticeship indenture.
no forwarding address Jones maintains that he had given the JAIC a
post office box number
i" Jones' discharge slip from Robbins went to Alice Wenger as secre-
tary for JATC, but this. of course, was prior to the actual termination of
Jones from the apprenticeship program, and there is no showing that
Wenger had any advance knowledge as to what action the JATC was
going to take at its meeting on September 12, and even on an agency
basis, attributing to Local 873 such knowledge, there still were details
lacking as to what the Committee would do, nor was there any request
for their intervention From this record as a whole, it beiomes quite ap-
parent Jones' protestations to the effect that he was not properly notified
and did not know of the meeting on September 12 cannot be substlntiat-
ed. In fact, Jones admitted that he knew his discharge from Robbins
meant he would not be referred out through the apprenticeship referral
procedures until he had appeared before the JATC at its next meeting.
and also admitted knowing, or 'was quite sure, that the JAT'C usually met
every second Tuesday, and prior hereto Jones had appeared before the
JATC on quite a number of occasions. Moreover, the complaint in this
case contains no allegations that the Respondent Union had any duty to
represent the Charging Party hefitre Robbins or the JATC. The clm-
plaint alleges only a siolation of the Act in the Respondent's refusal to
refer Jones for employment
I7 See Resp. Exhs 7(g). (h). and (i)
In the final analysis, the contract between the Associ-
ation and Local 873, bears the construction placed upon
it by all of the parties. Section 7.05 expressly provides
that: "Such removal by the Committee also cancels his
classification of apprentice and the opportunity to com-
plete his training." Section 7.04 provides, as we have
seen before, that the Committee has the full authority to
assign and transfer an apprentice to work. Section 3.20
provides that the hiring and transfer of apprentices shall
be governed by the apprenticeship provisions of the col-
lective-bargaining agreement. Moreover, the record
shows that Jones was a member of Local 873 at all times
material to this case; that no evidence was presented
showing any hostility towards Jones on the part of Re-
spondent Union, and in fact, the evidence reveals that
Jones received favorable consideration from Local 873's
business manager; that Jones was terminated by the
JATC from its apprenticeship training programs because
of repeated and uncorrected absenteeism in his on-the-
job training; and that Jones never asked the Respondent
Union to represent him either in relation to the several
times his prior employment was terminated by employees
for absenteeism, or in relation to his termination from the
apprenticeship training program.
Under the terms of the contract here in question,
coupled with the particular circumstances involved
herein and with past practices, it must be found that the
JATC had the authority to instruct Local 873 not to
refer out any apprentice who had been discharged by a
signatory employer until his case was reviewed, that the
provisions of the contract specifically enumerated here in
respect to the JATC are controlling in this situation, and
the actions taken by Local 873 in this case were in com-
pliance with such valid instructions.
CONCI.USIONS OF LAW
I. The Association, Member Employers, and Robbins
are employers within the meaning of Section 2(2) of the
Act, and their operations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and
(b)(2) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, I hereby issue the
following recommended:
ORDER t
It is hereby ordered that the complaint herein be, and
it is hereby is, dismissed in its entirety.
5' II the es entl it( exceptions are filed as provided by Sec 102.40 ( of
the Rules and Regulatiotns of the National lIabor Relation,s BoHard, the
findings. oncullusi onls. iand riecon m mlend ed Order hlerein s hlll . as provided
in Sec 102 48 oif the Rules , and Regiulion.,,u he iadopied by the h1 oard a lnd
beconim e ils fidigs,. conclusionis. a111 Order iand all objeth( ions I hereto
shall he deemed ,ali cd for i ll purpl ses.
934