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National Labor Relations Board v. Local 542

decided: September 20, 1973.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
LOCAL 542, 542-A AND 542-B, INTERNATIONAL UNION OF OPERATING ENGINEERS, AND WILLIAM E. CIAVAGLIA, ITS BUSINESS AGENT, RESPONDENTS



APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Hunter and Weis, Circuit Judges; and Scalera, District Judge.

Author: Scalera

Opinion OF THE COURT

SCALERA, District Judge.

JURISDICTIONAL STATEMENT

This matter comes before the court on application of the National Labor Relations Board (hereinafter Board), pursuant to § 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151, et seq.), for enforcement of its order issued March 31, 1972 against Local 542, 542-A and 542-B, International Union of Operating Engineers and William Ciavaglia, Business Manager of the various locals (hereinafter collectively the Union).

The issues are properly before this court, as the labor practices complained of took place in Philadelphia, Pennsylvania.

FACTS

The Union acts as the bargaining and business agent for the operating engineer craft in Eastern Pennsylvania and Delaware. As business agent the Union has provided and continues to provide an exclusive hiring hall service whereby it refers people on its hiring list to various job openings.

Prior to 1965, access to the Union and/or its hiring list was relatively unrestricted. Unskilled individuals (not operating engineers) who sought placement on the Union's hiring hall referral list and did not join the Union were placed on the hiring list and were given "green books." These non-skilled, non-union personnel were classified as "oilers" and were referred to as "A-registrants." Upon joining the Union, oilers were given an "A book" to replace the "green book" and were referred to as "A branch" members. Other persons with sufficient engineer operating skills seeking placement on the hiring hall referral list but declining to join the Union were placed on the referral list as "B-registrants." "B-registrants" joining the Union became "B branch" members.

In 1965 and 1966, methods of gaining access to the Union and/or its referral list were greatly altered as a result of a registered apprenticeship training program instituted by the Union and its contracting employers. The program had several major objectives. It sought to raise the quality and proficiency of the operating engineers in its jurisdiction, to open the Union and the craft to minorities, and to phase oilers out of the referral group through retirement and other consensual forms of attrition. To accomplish this last goal, the Union stopped placing new "oilers" on the Union roster or the hiring list. At this point oilers were eligible for placement on the Union roster and/or hiring hall list only if they were established employees of contracting companies recently organized by the Union. Oilers who were already on the referral list or who were members of the Union, however, were retained with complete job referral rights. After the program began, people with enough experience and skill to satisfy the Union's standards for an operating engineer could still register on the hiring list as "B-registrants." Upon joining the Union, if they chose to do so, these operators became "B branch" members. Unskilled candidates, however, could gain final acceptance into the Union and/or its hiring list only by satisfying the apprentice program's entrance requirements and by actively pursuing the program's course of study. Upon successful completion of the apprentice program, the candidate emerged as an operating engineer with the right to remain as a permanent member of the Union and/or its job referral group. According to rules published August 11, 1970, if a candidate washed out of the training program, he forfeited his place with the Union and/or the job referral group. No prior published rule mandated such forfeitures.

Initially, the apprentice training program sought apprentices among those who were already Union oilers. At a later date, candidates were solicited among the non-union oilers who were members of the job referral group. Finally, the program began to seek apprentices from outside the established job referral group. These new apprentices were subject to the conditional acceptance discussed above.*fn1

The Union has always referred members of its hiring list (both union and non-union) under a seniority system -- the workers with the most work experience are called first. The labor agreement which controlled the Union's referral practices at all times relevant to this dispute (dated May 1, 1968) provided that job referrals be made without regard for the applicant's union or non-union status. The relevant agreement indicates that referrals should be made on the basis of seniority and establishes the following referral priority groups:

Group I -- All registered apprentices and those who had completed the registered apprentice training program and all other work applicants with 5,000 hours of work in the preceding eight ...


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