By Shane Mott
In 2007, AUD highlighted the IBEW’s tacit protection of the employers’ arbitrary “right to reject.” At its core, this “right” gives employers an unfettered right to reject or terminate any electrician applying for work, including those dispatched through the hiring hall.
Those electricians who are at most risk of its abuse are those who are concerned with workplace safety and other rules and seek to enforce their contracts. Such committed unionists become vulnerable to being “black-balled” by employers in their chosen industry. Moreover, it enables lazy incumbent union officials in cahoots with employers to retaliate against, and starve insurgents out.
Nonetheless, at the 2001 International convention, a number of local delegations were able to win adoption of a resolution requiring the IBEW leadership to modify the “right to reject” clause by adding to it the words, “only for good cause.” While that resolution was renewed during the 2006 Convention, the IBEW has yet to fulfill its members’ mandate.
Fast forward to today. Edward Bonaldi, a fomer IBEW Local 776 member, has filed suit in federal court in Charleston, SC, challenging what happens when no restrictions are placed on the “right to reject.” He and his attorney have filed suit in federal court alleging a breach of contract against the employer, and a violation of the duty of fair representation against the union. His account follows.
Bonaldi was given a purported clean lay off for “job completed” with “eligibility for rehire” after raising some concerns about safety and other work place rules violations. However, as the job, nor his assignment, was completed, and the employer was still hiring through the hall, Bonaldi alleged that his lay off was actually a termination without proper cause in violation of the contract. Specifically, Bonaldi noted some occupational protocols, for instance while on the job floor if anyone was going to operate a lift it required an inspection and sign off for safety reasons. Also at the workplace there was a data center room and it was classified as a level 3 clean room, so there was to be no un-contained cutting. Coinciding with these clean room requirements was a directive from the general contractor that these procedures were mandatory and that any employees that had attended this training were “expressly instructed” to make their coworkers aware of these requirements which Bonaldi attempted to do.
These protocols came to the fore when Bonaldi was witness to a coworker openly cutting a temporary conduit with an electrical saw within the level 3 clean room without any HEPA equipment a few days prior to turnover to the client. As his training and conscience directed, he explained the requirements to his apprentice coworker running the saw. The apprentice said that “his general foreman had told him to just cut it all up and clean up his mess.” Afterward, Bonaldi asked the apprentice who his foreman and journeyman were, informed the door watch of what was going on, and returned to work.
When Bonaldi returned to his lift soon after, it was missing, along with his tools. He found it being used by another worker and he said “Hey brother…I’m gonna need my lift back.” Bonaldi double checked the inspection sheet to make sure it was his lift, and told his brother he needed to do a lift inspection and sign for it if he wanted to use the lift, neither of which had been completed by the other employee. The other union member began cursing Bonaldi, and as this was happening, Bonaldi was approached by the safety manager, the general foreman who had instructed the apprentice to perform the uncontained cutting in the clean room and two other men. Bonaldi questioned them regarding the need to inspect the lift before using it. Rather than address the employee’s cursing or the safety issue, Bonaldi was immediately questioned as to why he had been in the clean room. Bonaldi was required to go through the clean room in order to tag on/out. The foreman then stated that anyone can use the lift at any time. Bonaldi felt, however, that this was incorrect, but let it go.
A few days later when Bonaldi arrived for work in the morning, and after being given an assignment which should have taken a few weeks, the foreman told him to go see the union steward, who quickly informed Bonaldi that he was laid off. He was handed a notice of termination which indicated “Lay Off due to Job Completed and reduction in Force” and which said that he was eligible for rehire. He was quickly rushed off the lot.
Bonaldi observed some major inconsistencies surrounding his layoff. Most notably the job was not complete and the reduction in force had been confined to just himself when there were over 100 electricians working the project. Most industry standard layoffs occur at the end of day, and he was also not allowed to “tag out his lock box.” Similarly his foreman did not know about the layoff, and the signature on the notice was a superintendent and not his foreman when the contract required the foreman sign it if he was on the site. On the way off site, he asked his union steward if he was the only one being laid off, and his steward told him no. Of course, he was the only one. Becoming suspicious, Bonaldi called his local’s office manager and asked if any calls were left. The same position that he had just been laid off from was available. Another deviation from the norm occurred when Bonaldi asked for that job to be held for him until he came in to accept it. Rather than the typical process of sending a union member directly to the site, the office manager emailed Bonaldi’s credentials to the employer who quickly rejected him under Section 4.03 of the collective bargaining agreement which states “the employer shall have the right to reject any applicant for employment.”
Bonaldi quickly went to his local’s business manager (BM) who summarily failed him on all accounts. The BM did not make any follow up calls or inquiries, and merely stated that the employer had the right to layoff and reject its employees. Completely, ignoring the fact that this was clearly not a normal situation. The BM ignored his request to file a grievance or even contact the employer to see what could be done.
The same day Bonaldi accepted another call with this same employer at a different job through his hall. This time the union did not send out an email letting the employer know he was coming out. Bonaldi was told he was hired and to appear for work that Monday. Immediately upon showing up for work he was asked to step outside and handed another Notice of Termination again stating layoff due to job completed, and eligible for rehire. Again, the slip was signed by the Superintendent, and this time there was no union steward present. When he returned to the hall to attempt to complain again, he was ignored by the office manager and the business manager who failed to return his urgent calls. Bonaldi slowly realized nothing was going to be done and returned home to Texas.
Bonaldi and his attorney forced the union to file a grievance, but Bonaldi claims the union did the bare bones minimum and did not argue this case had merit. Further, Bonaldi alleges the union did nothing to investigate his claims, dragged their feet in filing and only did so after Bonaldi’s counsel got involved, and failed to call any witnesses to support his claims of what had occurred at the site with regard to the safety and rules violations. Bonaldi further alleges the union was conspiring with the employer to prevent members from working by emailing credentials rather than sending the employee out to the site to take a call. Further, investigation has resulted in evidence which shows this employer has shared a list it keeps of men it will not hire and that it has shared this list with other contractors and general contractors. Many of these men were supposedly laid off and were eligible for rehire, yet on a no hire list. There is currently a separate lawsuit pending in Oklahoma brought by many men found to be on this list. Bonaldi contends he is most likely now on a similar list. All of these and more allegations are the basis of Bonaldi’s alleged unfair representation claim against the Union.
Bonaldi and his counsel are contending in court that the layoffs were not layoffs. First, there was no reduction in force because the employer was still hiring, and second, because the job had not been completed as stated in the Notice. Bonaldi contends the real reason he was “laid off” was that he “unwittingly exposed” breaches of the general foreman and that this general foreman wanted to “get rid of him” so that he could not disclose any of this information or violations to the general contractor, “or worse – the owner.” Bonaldi contends the layoffs were not layoffs, but pretexts for termination without proper cause which is in violation of the contract as the employer must have proper cause to terminate an employee. Bonaldi argues that raising safety issues and other work place violations that he is required as a matter of law and his training to address are protected activities, and cannot be proper cause for termination, and therefore, his layoffs, and the subsequent rejections which were merely continuations of the initial wrongful act, are breaches of the contract. The Court appears to agree with Bonaldi in that it has ruled that Bonaldi has stated a claim, and if he can prove what he has alleged, he is entitled to compensation.
Bonaldi’s case is a prime example of what many others are facing under the “right to reject” clause, not to mention the “layoff” clause. In this case we can see clearly how “right to layoff” and “right to reject” led to corruption on the job floor, a failure of representation of Bonaldi by his local officers, and the covering up of safety hazards by an illegal termination and blacklisting, all of which weaken IBEW and union democracy.