Electrical Workers IBEW Local 58 (National Electrical Contractors)

National Labor Relations Board - Board Decisions

Jan 31, 1992

306 N.L.R.B. 252 (N.L.R.B. 1992)

252
306 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Charging Party’s name appears as amended at the hearing.
2 Unless otherwise indicated, all dates are between October 1,
1989, and March 15, 1990.
Local Union No. 58, International Brotherhood of
Electrical Workers, AFL–CIO (Southeastern
Michigan Chapter, National Electrical Contrac-
tors Association, Inc.) and John Hopkins. Case
7–CB–8174
January 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 7, 1991, Administrative Law Judge
David L. Evans issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order dis-
missing the complaint.
The General Counsel excepts to the judge’s failure
to address the complaint allegation that the Respond-
ent’s conduct in denying Charging Party Hopkins nec-
essary application forms prevented him from invoking
his appeal rights provided in the Supplemental Unem-
ployment Benefit (SUB) Plan and that the denial thus
violated Section 8(b)(1)(A). We agree with the General
Counsel that he is entitled to a resolution of this issue.
On the merits, however, we find that the allegation
should be dismissed.
The SUB Plan summary states that the Plan is ad-
ministered by a joint board of trustees and that each
employee has the right to appeal any denial of his
claim, in whole or in part, by writing to the board of
trustees. The Plan summary also, however, states:
One word of caution—no one has the authority to
speak for the trustees in explaining the eligibility
rules or benefits of the Fund, except the full
Board of Trustees or the Fund’s Administrator to
whom such authority has been delegated.
Hopkins was thus on notice that he was not obli-
gated to accept the Respondent’s explanation for not
permitting him to apply for unemployment benefits. He
further knew that he had direct recourse to the Trustees
to the extent he viewed the Respondent’s actions as
denying him a claim under the Plan. We conclude
therefore that the Respondent’s failure to honor Hop-
kins’ request for benefit application forms did not de-
prive him of any appeal rights under the SUB Plan.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Mary Beth Onachi, Esq., for the General Counsel.
Chris Legghio, Esq. (Miller, Cohen, Martens & Ice, P.C.), of
Southfield, Michigan, for the Respondent.
DECISION
DAVID L. EVANS, Administrative Law Judge. This matter
was tried in Detroit, Michigan, on February 1, 1991. The
charge was filed by John Hopkins,1 against Local Union No.
58, International Brotherhood of Electrical Workers, AFL–
CIO (the Union or the Respondent) on January 24, 1990, and
a complaint and notice of hearing (the complaint) was issued
by General Counsel on March 15, 1990.2 The complaint, al-
leges that by certain acts and conduct the Union has violated,
and is violating, Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) by coercing and restraining employ-
ees who are employed by members of Southeastern Michigan
Chapter, National Electrical Contractors Association, Inc.
(NECA) in the exercise of rights guaranteed to those employ-
ees by Section 7 of the Act.
The alleged violative acts by the Union involve its rela-
tionship with the Supplemental Unemployment Benefit Plan
of the Electrical Industry, Detroit, Michigan (the SUB Plan
or the Plan), a trust created by the Union and NECA. The
complaint names the SUB Plan as a party in interest to this
proceeding; however, the SUB Plan was not served with the
charge or the complaint. Counsel for the General Counsel
makes no reference to the SUB Plan as a party in interest
to this proceeding in her brief; the caption of the brief, con-
trary to the usual practice of the office of the General Coun-
sel, differs from the caption of the complaint in that, while
the caption of the complaint names the SUB Plan as a party
in interest, the caption of General Counsel’s brief does not.
(Moreover, counsel for the General Counsel does not show
service of her brief to the SUB Plan.) Under the cir-
cumstances, it must be concluded that the SUB Plan has
been amended out as a party in interest to this proceeding,
a factor to be considered if my ultimate recommendation is
not adopted.
Respondent filed an answer to the complaint and, as
amended at trial, the answer admits jurisdiction but denies
the commission of any unfair labor practices.
I have considered the briefs filed by the parties and, on
consideration of the arguments made on brief, the record
made at trial, and my observations of the demeanor of the
witnesses, I issue the following
FINDINGS OF FACT
I. JURISDICTION
NECA has been and is now an organization composed of
employers engaged in the electrical construction industry,
and which exists for the purpose, inter alia, of representing
253ELECTRICAL WORKERS IBEW LOCAL 58 (NECA)
3 Transcript references to ‘‘Arisa’’ are corrected to read:
‘‘ERISA.’’
4 The Charging Party is not a member of Respondent. The com-
plaint equates members and employees. This is an obvious oversight;
General Counsel would not contend that any order he sought herein
would protect only employees who are members of Respondent.
5 Complaint pars. 10 and 11 are quoted as amended at the hearing.
6 All of these requirements are contained in the trust fund instru-
ments that were received in evidence. General Counsel does not con-
test the existence, or the validity, of any of these requirements.
its employer-members in negotiating and administering col-
lective-bargaining agreements with various labor organiza-
tions, including Respondent. During 1989, NECA, in the
course and conduct of its members’ business operations, had
gross revenues in excess of $1 million and purchased and
caused to be transported and delivered to various construc-
tion jobsites within Michigan goods and materials valued in
excess of $50,000 directly from suppliers located at points
outside Michigan. Therefore, NECA is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts and Allegations
1. Allegations of the complaint
As alleged and admitted, Respondent and NECA estab-
lished the SUB Plan by joint action in 1972. As stated in the
Plan’s summary plan description, a simplified description of
the SUB Plan that is required by the Employee Retirement
Income Security Act, 29 U.S.C. § 1001, et seq. (ERISA),3 the
purpose of the SUB Plan is:
to provide some measure of income security during pe-
riods of lay-off, illness, injury or jury duty to employ-
ees in the electrical contracting industry who work
under the jurisdiction of Local Union #58, International
Brotherhood of Electrical Workers.
This case involves the distributions of benefits for periods of
unemployment occasioned only by periods of layoff, not in-
jury, illness, or jury duty.
The complaint alleges:
10. Since on or about October 17, 1989, by virtue
of the provisions of the Supplemental Unemployment
Benefit Plan, the Charging Party, and other members4
have become, and are currently, eligible to receive ben-
efits prescribed in the [SUB] Plan.
11. Since on or about October 17, 1989, and con-
tinuing to date, Respondent, through its agent, Thomas
Butler, has prevented the Charging Party and other
members from receiving benefits by either establishing
arbitrary and artificial eligibility dates not provided for
in the provisions of the Supplemental Unemployment
Benefit Plan, and/or refusing to provide the Charging
Party and/or other members with application forms that
are required to be filed with the Supplemental Unem-
ployment Benefit Plan.5
12. By denying the Charging Party and other mem-
bers the necessary application forms, Respondent,
through its agent Thomas Butler, has also prevented the
Charging Party and other members [from invoking]
their appeal rights as provided in the SUB Plan for
claims that have been denied in whole or in part.
13. Respondent engaged in the conduct described
above in paragraphs [11 and 12] for discriminatory, in-
vidious, irrelevant and arbitrary reasons.
2. Operation of the SUB Plan and contentions
The application forms referred to in the complaint are used
by employees to apply for SUB Plan benefits when they are
unemployed because of layoff. The Union maintains the
forms and distributes them on behalf of the SUB Plan. The
Union then transfers the applications to the trustees for fur-
ther processing. The SUB Plan does not distribute benefits
to all qualifying employee electricians during all parts of the
year; it distributes benefits only during periods of general un-
employment.
What constitutes a period of general unemployment, with
one exception, has historically been determined by the
Union. William Dellapa, administrator of the SUB Plan since
1976 (and assistant administrator before then), testified that
he receives telephone calls from agents of Respondent when
there is a period of time in which the fund should be paying
benefits because there is an insufficient amount of work
available in the area. Dellapa testified that the trustees are
not bound to accept the Union’s determination of when there
are no jobs available in the area, and they may make their
own inquiry, but he could point only to one occasion when
the fund did not accept the Union’s determination that there
were no jobs available in the area. (That was an occasion
where there was a strike; naturally, the employer-appointed
trustees of the SUB Plan took the position that jobs were
available, and they would not affix their necessary signatures
on checks for unemployment benefits.)
Even during periods of general unemployment, the fund
does not distribute unemployment benefits to any applicant
who applies for them. An employee-applicant must meet cer-
tain qualifications, including: the employee-applicant must
have accumulated a certain number of credits that are earned
by working for NECA employers; he must have been out of
work for at least 1 full week; his current unemployment situ-
ation must have resulted from his being laid off while work-
ing in the Union’s geographic jurisdiction; he must not have
refused more than one job opportunity during the period of
unemployment for which he seeks benefits; and he must not
have left the area after he applies.6
General Counsel contends that Charging Party Hopkins
was a qualified laid-off electrician who was twice unlawfully
denied forms on which he could have applied for benefits
from the SUB Plan; and General Counsel further contends
that, on a third occasion when Hopkins asked for such a
form, he was given one, and he was allowed to complete it
and return it to the Union, but the Union unlawfully refused
to process it. General Counsel alleges that these actions, and
Respondent’s practice of establishing when any benefits will
be paid by the SUB Plan, deprived the Charging Party, and
other employees, of SUB Plan benefits to which they were
entitled.
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 General Counsel does not contest the existence or validity of this
historical interpretation; Hopkins testified that he was aware of this
interpretation.
8 There are other referral books, but they are not relevant here.
9 Throughout the transcript, ‘‘supp pay’’ is corrected to read:
‘‘SUB pay.’’
10 Although one Thomas Butler is the only agent of Respondent
named in the complaint, Nino Como is the only person proved to
have acted as Respondent’s agent in this case.
11 Tr. 80, LL. 18–19, is corrected to read: ‘‘Judge Evans: What
does that mean? ‘Usually’ every day or . . . .’’
Respondent admits that Hopkins sought SUB benefits
three times. It further admits that, on the first two occasions,
its agent refused to give Hopkins the necessary application
forms, and it further admits refusing to process his completed
application on the third occasion. Respondent defends its ac-
tions on the ground that, regardless of how it was determined
during what period of time that SUB Plan was to be distrib-
uted to qualified employees, Hopkins was never a qualified
employee when he applied, or sought to apply. Therefore,
Respondent argues, it would have been futile to accept, or
process, Hopkins’ applications.
3. Effect of Respondent’s referral procedures
As noted, an employee must not have refused more than
one job offer during a period of employment to become or
remain qualified to receive SUB Plan benefits. Declining an
offer of employment from Respondent’s exclusive hiring hall
constitutes a refusal of employment under the Plan, as the
parties have interpreted the Plan’s rules of individual eligi-
bility.7 An issue in this case is whether Hopkins refused two
jobs that were offered to him at the hiring hall; therefore, a
certain knowledge of the operation of Respondent’s hiring
hall is necessary.
In the operation of its hiring hall, the Union (by the dis-
patcher or someone acting in his stead) maintains registration
books. Book 1 is the registration book in which applicants
for employment register if they have sufficient local experi-
ence. Book 2 is Respondent’s registration book that is re-
served for ‘‘travelers,’’ or those employee-applicants who do
not have such experience.8
Hopkins is a member of the IBEW, but not a member of
Respondent; Hopkins is a member of Local 446, Monroe,
Louisiana, and has for several years worked as a traveler in
various areas of the United States, including Respondent’s
geographic jurisdiction. (There is no contention that Re-
spondent has taken any action against Hopkins because of his
membership in another local union, or his race, or anything
else about him.)
Each day that jobs are available, the Union conducts roll-
calls, by classifications or ‘‘books,’’ of all applicants. At 8
a.m., the dispatcher calls the roll of the job applicants who
are registered in book 1. Registered local applicants who are
present take the jobs that are offered at that time. At 1 p.m.,
if the book 1 rollcall has not filled all of the requests for em-
ployees that the Union has received, the dispatcher calls the
roll of job applicants who are registered in book 2. Reg-
istered travelers who are present take the jobs that are of-
fered at that time.
An employee must be present at rollcall to receive a refer-
ral.
Each evening, the dispatcher creates a telephonic recorded
message that: (1) lists the jobs that the dispatcher then knows
will be available the next day, and (2) the volume-page-line
placement of the 20th name on the out-of-work lists in book
1 and book 2. (Names are not mentioned; each employee
who is seeking work through the referral procedures keeps
track of his last registration’s volume, page, and line.) By
calling in for the recorded message, a registered employee-
applicant can form an idea about whether it would be worth
his while to appear for rollcall the next day.
Of course, some of the earlier registered employees may
not appear, or some of them may decline jobs. Then the dis-
patcher will go to the names of those who are successively
registered and offer to those applicants the jobs that are
available. If this occurs, a registered employee who does not
appear because he did not think the rollcall would get to him
(or for any other reason) runs the risk of being passed over.
If that happens, the nonappearing, passed over, employee is
charged with a refusal under the rules of the SUB Plan (just
as if he had been present and refused an offered job).
As noted, if an applicant for SUB Plan benefits has re-
fused two job offers, he is rendered ineligible to receive SUB
Plan benefits.
4. Hopkins’ applications
Hopkins worked for 2 years in the area of Respondent’s
geographic jurisdiction, 1988 and 1989, taking job referrals
from the Respondent’s hiring hall. On October 17, he was
laid off by an area employer and went that day to sign the
referral book. On the same day, Hopkins also asked Re-
spondent’s dispatcher, Nino Como, for the form with which
out-of-work applicants apply for SUB Plan benefits, or
‘‘SUB pay.’’9 Como refused to give Hopkins a form, stating
that SUB pay was not being paid at that time.10
On direct examination Hopkins testified that he attended
the 1 p.m. rollcall that Respondent conducts for travelers for
‘‘a couple of weeks’’ after October 17. He further testified
that on October 18, or the day after he registered for referrals
with Respondent, he registered for referrals with IBEW
Local 252 in Ann Arbor. Ann Arbor is not in Respondent’s
geographic jurisdiction.
After being blatantly led by General Counsel to state that
he attended the Respondent’s 1 p.m. rollcall every day be-
tween October 18 and November 6, Hopkins admitted, in an
examination by me, that he attended the 1 p.m. rollcall only
‘‘usually’’ every day.11 Hopkins then testified that he did not
attend the rollcalls if the prior evening’s recorded telephone
message indicated that there were ’’no jobs available. ‘‘On
cross-examination, Hopkins again acknowledged that it was
possible that he may have missed referrals because ‘‘there
were days’’ that he did not go to the union hall between Oc-
tober 17 and November 6.
Respondent produced business records which plainly dem-
onstrate that, on October 23 and 24, Hopkins was passed
over, and jobs that he could have taken, had he appeared and
responded to the rollcall, went to applicants who were reg-
istered below him on the out-of-work lists.
I find incredible Hopkins’ testimony that, between October
17 and November 6, he failed to go to the hall only if the
previous evening’s telephone message had indicated that
there was no work the next day. Hopkins appeared to be
255ELECTRICAL WORKERS IBEW LOCAL 58 (NECA)
12 Local 252 conducts its rollcall(s) at 8 a.m. each day.
13 Both times that Hopkins took an Ann Arbor job, he notified Re-
spondent’s hall so that he was not registered with Respondent while
he was working in Ann Arbor.
14 The form had been destroyed, but Como’s remark shows that
Hopkins had (truthfully) listed an Ann Arbor job as his last employ-
ment.
15 By first alleging, in par. 10 of the complaint, that Hopkins and
others are entitled to SUB Plan benefits, General Counsel necessarily
acknowledges that the Charging Party was required to meet the
fund’s requirements that are not challenged by the complaint.
coming up with an afterthought, after General Counsel’s
leading had obviously failed. Moreover, on October 24, the
Union exhausted books 1 and 2, and it is unlikely to the
point of disbelief that the recorded message for October 23
had indicated that there was no work available on October
24. (Even if Hopkins was telling the truth on the matter, the
Respondent could have received more requests for employees
after the telephone message was created on October 23, but
before the 1 p.m. rollcall on October 24. The result would
have been the same.)
Hopkins took a job in Ann Arbor on November 6. That
job lasted until December 1 when Hopkins was laid off.
Hopkins testified that he immediately registered at both Re-
spondent’s hall and at Local 252’s hall. Hopkins further testi-
fied that he attended both Respondent’s and Local 252’s roll-
calls12 each day thereafter until he got a job, again through
Local 252, again in Ann Arbor, on December 20. Hopkins’
second Ann Arbor job lasted until December 31 when Hop-
kins was again laid off. On January 2, Hopkins again signed
the travelers’ referral books in both Ann Arbor and Detroit.13
On January 2, when he registered for referral in Respond-
ent’s book for travelers, Hopkins again asked dispatcher
Como for a form with which he could apply for benefits
under the SUB Plan. Como told Hopkins that he could not
have a form because benefits under the SUB Plan were not
being paid at the time.
On January 24, after having received no referrals from Re-
spondent, Hopkins again asked Como for a form to apply for
benefits under the SUB Plan. SUB Plan benefits were then
being paid, and Como gave Hopkins a form. After reviewing
it, Hopkins, literally, threw it in a wastebasket, telling Hop-
kins that he was doing so because Hopkins did not have ‘‘a
Detroit layoff.’’
Hopkins continued attending the travelers’ rollcalls until
January 31 when, having received no referrals, he left the
area. (There is no contention that any of Hopkins’ failures
to receive referrals were caused by unfair labor practices on
the part of Respondent.)
B. Conclusions
The complaint alleges that Respondent violated Section
8(b)(1)(A) by preventing Hopkins and other employees from
receiving benefits by determining, arbitrarily, the SUB Plan
eligibility dates. The complaint also alleges that Respondent
violated Section 8(b)(1)(A) by preventing Hopkins and other
employees from receiving SUB Plan benefits by refusing to
provide Hopkins ‘‘and/or other [employees]’’ with SUB Plan
application forms. In both cases, the complaint is alleging, as
the predicate for the findings of violations by the Respond-
ent, the prevention of Hopkins or other employees from re-
ceiving SUB Plan benefits.
Couched in the negative: The complaint does not allege
that Respondent has violated Section 8(b)(1)(A) because it
determines, as it does, the periods during which the SUB
Plan pays benefits. Also, the complaint does not allege that
Respondent has violated Section 8(b)(1)(A) by engaging in
the practice of not providing, at all times, forms for applying
for SUB Plan benefits. That is, the complaint does not allege
as per se violations either Respondent’s practice of effec-
tively determining when the SUB Plan will distribute bene-
fits or Respondent’s practice of not distributing SUB Plan
application forms whenever they are requested by employees.
The complaint challenges these practices only where they
have ‘‘prevented the Charging Party and other employees
from receiving benefits.’’
Respondent has shown that, even if SUB Plan benefits had
been paid at all times to all qualifying employees, and even
if Hopkins had been given forms each time that he requested
them, and even if such forms had been duly processed, Hop-
kins would not have received any SUB Plan benefits. That
is, Respondent has ‘‘ prevented ‘‘ Hopkins from receiving
nothing.
Assuming that Hopkins had been allowed to file an appli-
cation on October 17, and further assuming that the SUB
Plan had been paying benefits at that time, he would not
have received SUB Plan benefits pursuant to that application.
The Plan does not allow payment for the initial week of un-
employment; therefore, Hopkins would not have been eligi-
ble for SUB Plan benefits before October 25. However, on
October 24 Hopkins disqualified himself from receiving any
benefits for his unemployment caused by his October 17 lay-
off by not appearing at Respondent’s rollcall and allowing
himself to be passed over for a second job referral. There-
fore, even if he had been given a SUB Plan application form,
and it had been duly delivered to SUB Plan office, he would
not have been entitled to the benefits for which he applied.
After October 24, Hopkins was never again in the position
of having been unemployed by reason of an area layoff; he
was unemployed because of two Ann Arbor layoffs, but Ann
Arbor is not ‘‘under the jurisdiction of Local Union #58,
International Brotherhood of Electrical Workers,’’ as stated
in the summary plan description quoted supra.
If Hopkins had been given an application form on January
2, and he had filled it out, he would have necessarily listed
an Ann Arbor employer as the employer who had laid him
off, which is what he necessarily14 did on January 24. To
have required the Union to accept and process the application
that Hopkins would have filed on January 2 would be to
have required the Union to have done an absolutely futile
act, even if benefits were then being paid to qualified15 ap-
plicants.
To have required the Union to have processed the January
24 application, again, would have been to require an abso-
lutely futile act; benefits were then being paid, but not to un-
qualified applicants such as Hopkins.
Therefore, General Counsel has failed to prove the predi-
cate for the alleged violations; neither Hopkins nor any other
employees have been shown to have been prevented from re-
ceiving SUB Plan benefits because of Respondent’s prac-
tices.
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Accordingly, I find and conclude that Respondent has not
committed any violation of Section 8(b)(1)(A) of the Act, as
alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The complaint is dismissed.