Petition for Review On Application for Enforcement of an Order National Labor Relations Board, Board Docket No. 4-CB-4309.
Higginbotham, Mansmann, and Rosenn, Circuit Judges.
These consolidated matters come before us following a decision and order by the National Labor Relations Board ("NLRB" or "the Board"). The petitioner -- Local 211, International Brotherhood of Electrical Workers ("the union") -- appeals pursuant to 29 U.S.C. -- 160(f) (1982) from the Board's order and the Board, as cross-petitioner, applies for enforcement of its order as provided in 29 U.S.C. § 160(e) (1982). We find that the NLRB properly concluded that the Union's repeated failure to refer jobs to the complainants, Robert Campbell and James Walker, according to established hiring hall procedure violated § 8(b)(1)(A) and 8(b)(2) of the National labor Relations Act ("the Act").*fn1 We, therefore, will enforce the NLRB's order in full.
The Union is an inside wiremen's local of the International Brotherhood of Electrical Workers ("IBEW"), which represents electricians employed by companies in the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association ("the Association"). The Union and the Association were parties to numerous collective bargaining agreements over several years. The pertinent contract covering commercial construction ("the Commercial Agreement") permits the Union to run an exclusive hiring hall for the Associate's employer-members.
The Commercial Agreement provides in relevant part:
5.4 The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies.
GROUP I -- All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constituted Local Union of the IBEW and who have been employed for a period of at least one year in the last four years under a collective bargaining Agreement between the parties to this Agreement.
GROUP II -- All applicants for employment who have four or more years' experience in the trade and who have passed [a] journeyman's examination given by a duly constituted Local Union of the IBEW.
GROUP III -- All applicants for employment who have two or more years experience in the 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 Agreement.
GROUP IV -- All applicants for employment who have worked at the trade for more than one year.
The Commercial Agreement directs the Union to keep an "Out of Work List" of "the applicants within each group in chronological order of the dates they register their availability for employment." The Agreement also obligates the Union to "refer applicants . . . by first referring applicants in Group I in the order of their places on the Out of Work List and then referring applicants in the same manner successively from the Out of Work List in Group II, then Group III, and then Group IV."
The Union required that first-time applicants complete a personal registration card. This "Registration for Referral Group" asked registrants to identify themselves as "journeyman wireman," "journeyman lineman," "residential wireman," "welder," or "other." The card also inquired whether the applicant had passed a journeyman examination or had completed an IBEW-certified apprenticeship program, and how long he had labored under a Union/Association collective agreement in the preceding four years. Beyond the collective bargaining agreement, the Union further required each applicant to sign a daily ledger at least once a week in order to maintain his place on the Union referral list. Only electricians actually present in the hiring hall, however could receive referrals. The name of an applicant who declined job was transferred to the bottom of the referral list for his group.
The charging parties, Campbell and Walker, are non-Union electricians. On May 1, 1980, they complained to the Union business manager, George Stockinger, about a present lack of work. When Stockinger failed to explain the absence of referrals, Campbell asked how to become a Union member. Stockinger responded that the Union had an apprenticeship program and that Campbell and Walker could apply for membership the following week. During this conversation, Stockinger also threw a copy of the IBEW's by-laws on his desk and said "show me in here where I've got to send you to work." On May 6, 1980, Campbell and Walker applied for Union membership. They reapplied on October 10, 1980 and submitted resumes of their experience.
Under the commercial Agreement, electricians with four years "experience in the trade" may take the journeyman examination. In November of 1980, the Union offered to give the residential wireman exam, but not the journeyman test, to Campbell and Walker. Union officials apparently based their decision upon the applicant's allegedly preponderant experience in the residential (rather than the commercial) field. However, Campbell's and Walker's resumes showed otherwise and, in any event, the Commercial Agreement nowhere distinguished commercial work as requisite to the journeyman ...