National Labor Relations Board v. Local 269, International Brotherhood of Electrical Workers
National Labor Relations Board v. Local 269, International Brotherhood of Electrical Workers
Opinion of the Court
The National Labor Relations Board has filed petitions for enforcement of its orders issued against Local 269, International Brotherhood of Electrical Workers, AFL-CIO (“Local 269”) and Mercer County Division, New Jersey Chapter, National Electrical Contractors Association (“Association”). The latter, on behalf of its members who are electrical contractors in the building and construction industry, has, since October 1, 1959, entered into collective bargaining agreements with Local 269. The Board found that Local 269 had committed unfair labor practices in violation of § 8(b) (2) and (1) (A) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (2) and (1) (A), by giving unlawful preference to its own members in referring them to the Association for employment from the middle of 1960, until the end of April, 1962, and by thereafter maintaining in effect certain provisions of a collective bargaining agreement between Local 269 and the Association which had become effective on May 1, 1962, for the purpose of perpetuating the illegal preference previously accorded to members of Local 269. The Board also found that the Association had committed unfair labor practices in violation of § 8(a)(3) and (1) of the Act by giving effect to the 1962 modifications of the collective bar
The first written collective bargaining agreement between Local 269 and the Association, effective October 1, 1959, to September 30,1961, provided that though the members of the Association reserved the right to reject any applicant for employment, the Local shall be the exclusive source of referrals of applicants for employment. The Local maintained a register for employment applicants at its office in Trenton, New Jersey. Each applicant was placed in one of the four groups for which he qualified, as set forth in the agreement.
On or about December 20, 1960, one Arthur Hazeltine, who was not a member of Local 269 and who had not passed a journeyman’s examination, filed an application for referral at the Local’s place of registration in Trenton. He was not referred. On December 30,1960, he filed a charge with the Board complaining that the Local was discriminating against him by refusing to permit him to take a journeyman’s examination because he was not a member of .the Local, and thereby was denying him the opportunity to qualify for a higher priority classification for referral to employment. The Regional Director issued a complaint.
On March 30, 1961, Local 269, not conceding any violation of the Act, entered into a formal settlement agreement, approved by the Regional Director, that it would not “perform, maintain or otherwise give effect to any employment agreement, arrangement, practice or understanding with the [Association] which, in an unlawful manner, conditioned employment * * * upon clearance or approval by Local 269.” It further agreed that it would not require membership “as a condition of taking the journeyman examination required to qualify for priority grouping in referral.” The Local paid Hazeltine $300 in lost wages.
In August of 1961, a new collective bargaining agreement was entered into by Local 269 and the Association to continue through September 1963. No change was made in the pre-existing referral procedure and priority group requirements.
On October 27, 1961, one Frank Keor-kle filed an unfair labor practice charge against Local 269. His complaint was that although he qualified as an applicant under the first priority group, he was not referred for employment, and others who applied later were referred because they were members. Keorkle had passed a journeyman’s examination given by another local of I.B.E.W. and qualified for Group I priority.
Effective May 1, 1962, Local 269 and the Association modified the priority group qualifications. A new group was inserted between the old first and second, making five in all, and the old Groups I and II were modified. Group I requires that applicants have five years’ experience in the trade, be a resident of the geographical area constituting the normal construction labor market, have passed a journeyman’s examination given by Local 269, and have been employed for a period of at least five years under a collective bargaining agreement between the parties to the agreement. Group II is the same as Group I except that it requires that the applicant have passed a journeyman’s examination given by any local of I.B.E.W. Group III contains just the first and third requirements of Group II; it is similar to old Group II but requires five instead of four years’ experience at the trade. Groups IV and V are the same, respectively, as old Groups III and IV.
Under the more stringent priority requirements of the new agreement, Keor-kle, previously in old Group I, was reclassified and placed in new Group III. He did not qualify for the New Group I for two reasons: the journeyman’s examination which he passed was not held under the auspices of Local 269, and he has not been employed for a period of at least five years under a collective bargaining agreement between the parties ■to the agreement. The latter reason also prevented him from qualifying under new Group II.
Keorkle’s case was formally settled on May 21,1962. The settlement agreement provides (1) that Local 269 would not “operate our hiring hall by unlawfully basing referral upon membership” in the Local; (2) that it would not “discriminate against Frank Keorkle or any other individual in the operation of our hiring hall because he or they are not members of the Local”; and (3) that it would not “in any like or related manner restrain or coerce employees or applicants” in the exercise of their rights under § 7 of the Act. As part of the settlement, the Local paid Keorkle over $2,500 as lost wages.
Despite the fact that the Local had not, since the settlement agreement of May 21, 1962, refused to refer him to an available work assignment when he registered, Keorkle, on January 4, 1963, filed his second charge against Local 269, and also one against the Association. On July 16, 1963, the Regional Director issued a consolidated complaint against the Local and the Association, and set aside the settlement agreement of both Hazeltine and Keorkle — -even though the former was not making a complaint — based on the new and two earlier charges. A hearing before the Board was held in October of 1963. At this hearing no evidence was produced to show that the applicants were not referred to job assignments when they filed applications with the Local or that the employers turned them down when they reported in the six-month period immediately before the date of Keorkle’s second charge. After the hearing, the Trial Examiner concluded that Local 269 had violated the settle
Both Respondents argue that Keorkle’s second charge is barred by the six-month statute of limitations of § 10(b) of the Act,
A union may encourage membership in a labor organization by use of the exclusive hiring-hall procedure. Local 100, United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 695, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963). However, § 8(b) (2) of the Act declares it to be an unfair labor practice for the union to do so by causing or attempting to cause an employer to discriminate against an employee in violation of § 8(a) (3) of the Act. Local 357 Intern. Broth. of Teamsters, etc. v. N.L.R.B., 365 U.S. 667, 674, 676, 81 S.Ct. 835, 839, 6 L.Ed.2d 11 (1961).
“It is the ‘true purpose’ or ‘real motive’ in hiring or firing that constitutes the test. Id. [Radio Officers’, etc. v. National Labor Relations Board, 347 U.S. 17], 43 [74 S.Ct. 323, 98 L.Ed. 455]. Some conduct may by its very nature contain the implications of the required intent; the natural foreseeable consequences of certain actions may warrant the inference. Id., 45 [74 S.Ct. 323]. And see Republic Aviation Corp. v. Labor Board, 324 U.S. 793 [65 S.Ct. 982, 89 L.Ed. 1372]. The existence of discrimination may at times be inferred by the Board, for ‘it is permissible to draw on experience in factual inquiries.’ Radio Officers [etc.] v. Labor Board, supra, at 49 [74 S.Ct., at 340].”
The incorporation of a provision in a collective bargaining agreement affording to union members preference in job referrals by the union violates § 8(b) (2) and (1) (A) of the Act. N. L. R. B. v. Philadelphia Iron Works, 211 F.2d 937, 940 (C.A. 3, 1954); N. L. R. B. v. Gottfried Baking Co., 210 F.2d 772, 779-780 (C.A. 2, 1954). And a union violates the same subsections of the Act when, under an exclusive hiring-hall agreement with an employer, it accords its own members preference in job referrals over nonmembers using its hiring facilities. N. L. R. B. v. Local 1566, I.L.A., 278 F.2d 883 (C.A. 3, 1960), cert. denied 364 U.S. 890, 81 S.Ct. 223, 5 L.Ed.2d 187, 366 U.S. 909, 81 S.Ct. 1083, 6 L.Ed. 2d 234; Local 138, International Union of Operating Engineers v. N. L. R. B., 321 F.2d 130 (C.A. 2, 1963).
Minus the history of Local 269’s referral practices, the contract provisions regarding qualifications for referral priority are not necessarily evidence of discrimination.
The Board found that it was evident that in the years preceding the adoption of the 1962 changes, members of Local 269 had been favored in work referrals “for no reason other than their union membership.”, and that the “inevitable” consequences of the adoption of the 1962 priority group standards by the Respondents “was to give Local 269 members continued .preference in referral.”
The Board did not specifically find that Local 269, by its discriminatory action, intended to encourage membership. It was not necessary for it to have done so. Melville Confections, Inc. v. N. L. R. B., 327 F.2d 689 (C.A. 7, 1964), cert. denied 377 U.S. 933, 84 S.Ct. 1337, 12 L.Ed.2d 297. The effect of the contract was as if it had expressly conditioned referral upon union membership. The foreseeable result or the natural consequences of such a contract is the encouragement of membership. It follows that the charge filed by Keorkle on January 4, 1962, against .the Local has been substantiated by proof of an unlawful action within the limitation period, for the maintenance of the contract by the Local within that period is violative of § 8(b) (2) and (1) (A) of the Act.
The Board was acting within its authority in setting aside the informal agreements. Wallace Corp. v. N. L. R. B., 323 U.S. 248, 253-255, 65 S.Ct. 238, 89 L.Ed. 216 (1944); International Brotherhood of Teamsters, etc., Local No. 554, AFL-CIO v. N. L. R. B., 104 U.S.App. D.C 359, 262 F.2d 456, 459-461 (1958).
As for the Association, there was substantial evidence on the record as a whole that it violated § 8(a) (3) and (1) of the Act within the statutory period. The Association is a party to the collective bargaining agreement. Under that agreement it made Local 269 its agent for referring applicants to employer members for employment. We need not go so far in this case to hold the As
The Local contends that the contract provisions found to be discriminatory by the Board are permitted by § 8(f) (4) of the Act, which makes a concession to the building and construction industry. This subsection removes from the unfair labor practice area provisions in collective bargaining within such industry which specify “minimum training or experience qualifications for employment or provide for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area.” The short answer to this contention is that the subsection does not sanction the use of seemingly objective criteria as a guise for-achieving illegal discrimination. Preconditioning the hiring of employees upon union membership is an unfair labor practice in all industries, including the building and construction industry. As the Senate Committee which recommended passage of § 8(f) stated:
“The section permits an agreement providing for an exclusive referral system based upon objective criteria for referral; such a referral system must be conducted without discrimination in regard to union membership (as now provided by law) but the order of referral may be governed by objective standards such as those set forth in the section.”7 (Italics ours.)
The Local also claims that the order of the Board denied it the right guaranteed by § 8(f) of the Act to enter into an agreement with the Association wherein priority in referral is based upon past employment under contracts with the Association. This claim stands on no firmer footing than its prior contention. As to its objection that the proscription of the order is without limitation as to time, we need but quote the Trial Examiner, whose recommendation in this regard was accepted by the Board. “This proscription (against use of prior employment under earlier contracts between the Union and the Association as a criterion for preferential referral) shall remain in effect for such time as that criterion would have the effect of perpetuating the illegal preferences accorded members of Local 269 in the past.” In the circumstances of this case, the Board was justified in prohibiting the use of the prior employment requirement until the advantages from unlawful referral disappear. See Atlantic Refining Company v. F. T. C., 381 U.S. 357, 372-373, 85 S.Ct. 1498, 14 L.Ed.2d 443 (1965).
The Board affirmed, on the ground that no prejudicial error was committed, twenty-eight rulings by the Trial Examiner to which exceptions had been taken by the Respondents. The Local would have us review each of them. In the view we take of the Board’s Decision and Order, we deem it unnecessary to rule upon or discuss them.
The Order of. the Board will be enforced.
. The agreement provided that ^examinations for journeyman should take place once every six months, and that the applicant shaE be eligible for the examination if he has five years experience “at the trade”.
. This section 29 U.S.C.A. § 160(b), provides: “[No] complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof against whom such charge is made * *
. The Board in its decision states that “a literal reading of the amended contract does not reveal-its intrinsic discriminatory nature, except to those members of Bocal 269 and nonmembers who had
. See for example, Local 138, International Union of Operating Engineers v. N.L.R.B., 321 F.2d 130, 134 (C.A.2, 1963).
. In his Decision, the Trial Examiner states: “Considering the evidence in its entirety, the assertion that the revised standards were established to improve the quality of electricians referred from the hiring hall is not supported by the proof.”
. See S.Rep. No. 187 on S. 1555, 86th Cong., 1st Sess. 58, U.S.Code Congressional and Administrative News 1959, p. 2373, I Leg.Hist. of the Labor-Management Reporting and Disclosure Act of 1959, p. 452 (GPO 1959).
Reference
- Full Case Name
- NATIONAL LABOR RELATIONS BOARD v. LOCAL 269, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, and Mercer County Division, New Jersey Chapter, National Electrical Contractors Association
- Cited By
- 1 case
- Status
- Published