Ajax Electric Co.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 162 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 112, AFLCIO (Ajax Electric Company)
and Donald E. Singleton and Dennis M. Wiggins.
Case 19-CB-2710
August 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 2, 1977, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, Respondent Union filed
exceptions and a supporting brief, and the General
Counsel filed a motion to correct error in the
Administrative Law Judge's recommended Order
and notice to employees and members.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified below. 2
The complaint alleges, in substance, that Respon-
dent violated Section 8(b)(l)(A) and (2) of the Act by
attempting to cause the discharge of employees
Dennis Wiggins and Donald Singleton for reasons
other than nonpayment of dues and initiation fees
and for filing a charge against Respondent with the
Board.
As set forth more fully in the Administrative Law
Judge's Decision, the record reveals that, in April
1976, the Employer hired employee Wiggins for work
at the Pendleton, Oregon, jobsite and then terminat-
ed journeyman Couch because of dissatisfaction with
his performance. Employer's foreman, Bennett,
credibly testified that Respondent's assistant busi-
ness manager, Williams, came to the jobsite on the
following day and told Bennett "that if anybody was
to be laid off it should have been Dennis Wiggins,
because he was a traveler and the man I laid off was
a local man."
In June 1976, Bennett terminated the employment
of apprentice Carrier because he was doing the least
amount of work. According to Bennett's credited
testimony, Williams again came to the Pendleton
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
231 NLRB No. 28
jobsite and told Bennett that Carrier should not have
been fired, "that this was the only local man I had on
the job and I should have laid off the travelers I had
before I laid off the local men." After refusing to
reinstate Carrier, Williams told Bennett that he was
going to pull everybody off the crew and that he was
going to talk to the men during the lunch hour and
ask them to quit as a personal favor to him.
With regard to the Kennewick, Washington,
project, Bennett credibly testified that Respondent's
business manager, Elgin, requested that Bennett lay
off the travelers because of the number of local men
out of work. Following his conversation with Elgin,
Bennett informed Singleton and Wiggins, the only
persons working at that time on the Kennewick job,
that Respondent's business manager wanted him to
lay them off because they were travelers. As a result
of this conversation with Bennett, Singleton and
Wiggins filed the unfair labor practice charge.
Shortly thereafter, Elgin called Bennett into his
office. Bennett credibly testified:
. . . he wasn't happy that I had gone and told
Don [Singleton] and Dennis [Wiggins]. He said
that the Labor Relations Board had had a filing
against them.
He said he assumed it would be confidential
between him and myself and he didn't expect me
to go over and tell them. He said, "Now we are
going to have to go to court." That he wasn't sure
if he could find anybody that would work on a
job because the other men in the union would
know that their dues were going to have to go for
a lawyer to fight the case.
He did say it was kind of a touchy situation
that we are going through. I said yes, I knew. I
told him I thought it was against the law and he
said it was. And he asked me if I would lay Don
Singleton off.
Bennett then informed Singleton and Wiggins
that Elgin had asked him to fire them because
they had filed a charge with the Board.
On these facts the Administrative Law Judge
found, and we agree, that Respondent violated
Section 8(b)(l)(A) and (2) of the Act by attempting
2 The General Counsel requests that the Board correct an inadvertent
error in the Administrative Law Judge's recommended Order and notice to
employees and members by substituting the words. "in any other manner"
for "in any like or related manner." The General Counsel's motion is hereby
granted. We shall herein correct the error by including the broad cease-and-
desist order appropriate in these circumstances. See Wright-Schuchart-
Harbor, 227 NLRB 1007, fn. 2 (1977).
162
INTL. BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 112
at various times to cause the Employer to discharge
employees Dennis Wiggins and Donald Singleton
because they were travelers instead of members of
Respondent, and because they had filed an unfair
labor practice charge under the Act against Respon-
dent. Specifically, in addition to the requests to lay
off the travelers, Respondent threatened to cause a
work stoppage among the employees at the Pendle-
ton jobsite because of Bennett's refusal to discharge
Wiggins. Respondent also warned Bennett that
union members would not work for the Employer at
the Kennewick project unless the Employer complied
with Respondent's request to discharge the persons
who had filed the charge against the Union. In short,
the Administrative Law Judge correctly observed
that Respondent was not merely relaying informa-
tion to the Employer about a personality clash
among the employees but was actively seeking their
termination. Accordingly, we shall adopt the Admin-
istrative Law Judge's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, International Brotherhood of Electrical Work-
ers, Local 112, AFL-CIO, Kennewick, Washington,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order as so
modified:
1. Substitute the following for paragraph l(b):
"(b) In any other manner restraining or coercing
employees in the exercise of their rights under
Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN FANNING, dissenting:
This is a case alleging attempts by the Union to
cause the discharge of journeyman electricians
Singleton and Wiggins. The Employer is an electrical
contractor in the construction industry. The alleged
attempts occurred at jobsites in Pendleton, Oregon,
and Kennewick, Washington. The Administrative
Law Judge credited the testimony of Employer's
foreman, Bennett, whose testimony is uncontrovert-
ed as to the Pendleton job, but is disputed by Union
:' Bennett agreed there had been "some rather significant conflict" over
whether Carrier was to take orders from him as foreman or from one of the
journeymen, the latter policy being consistent with the Union's traditional
method of handling apprentices, a policy Bennett said he now understood.
4 See International Hod Carriers. etc., Local 7 AFL-CIO (Yonkers
Business Manager Elgin concerning some aspects of
discussions about the Kennewick job.
Taking at face value Foreman Bennett's account as
recited by the Administrative Law Judge, I cannot
agree with my colleagues to find 8(b)(l)(A) and
8(b)(2) violations. I would dismiss. I think it fair to
conclude on the credited evidence and the record as
a whole that the Union was performing its obligation
of fairly representing the unit employees-the unit
being one established by contract with the National
Electrical Contractors Association of whose Western
Division the Employer is a member.
At Pendleton, Assistant Business Agent Williams,
who did not testify, came to the job on two occasions
in the spring of 1976: first in an effort to have
journeyman Couch rehired, and several weeks later
to request the rehire of apprentice Carrier. As to the
Couch incident, Bennett quoted Williams as telling
him "that if anybody was to be laid off it should have
been Dennis Wiggins, because he was a traveler and
the man I laid off was a local man." Wiggins, in fact,
had recently been cleared for the job by the Union,
whereupon Bennett let Couch go because of dissatis-
faction not clearly specified. As to the Carrier
incident, materials were then running low, the then
complement of electricians consisted of Bennett,
three travelers who were journeymen (Singleton,
Wiggins, and Mitch), and apprentice Carrier. Ben-
nett let Carrier go because he was doing the least
work.3 Williams came to the job and told Bennett
that, from the Union's standpoint and from the
apprentice's standpoint, Carrier should not have
been discharged and asked Bennett to rehire him.
According to Bennett, Williams "told me again that
this was the only local man I had on the job and I
should have laid off the travelers I had before I laid
off the local man." When Bennett refused, Williams
told Bennett he was going to pull everybody off, talk
to the men at lunch, and ask them to quit as a
personal favor to him. Though Williams was seen
later talking to the men, there is no testimony as to
what he said and no work stoppage occurred.
The upshot of these two incidents was that Couch
was offered his job back but declined; Carrier
accepted a similar offer. In both instances Respon-
dent was seeking the retention of unit members
newly laid off. In my view these were attempts by
Respondent to perform its obligation of representing
the unit employees, not unlawful encouragement of
union membership within the meaning of Section
8(b)(2). 4
Contracting Co., Inc.), 135 NLRB 865 (196%2), where the job steward
recommended the retention of an employee about to be laid off because his
phase of the work was ending, and against the hire of an applicant, also a
union member. The Board said at 866:
(Continued)
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Kennewick the job location was a store being
constructed across the highway from the union hall,
a distance of "probably 2 blocks." Prior to a major
strike that summer the Union had had approximately
500 members and 500 travelers and could place both.
Apparently this strike was ongoing in July when
Bennett called the hall and cleared the matter of
bringing "his crew" up from Pendleton. As Bennett
recalled: "I took Dennis [Wiggins] and Don [Single-
ton] to Kennewick and I was running another job
there [possibly meaning two jobs at Kennewick?]. I
went over to the Union hall to get some termination
slips." While there he was called in to talk with
Business Agent Elgin, who understood that the Local
112 people who had been working for Bennett in
Pendleton did not desire to come to Kennewick, but
that Bennett would bring the other two. On direct,
Bennett testified that Elgin spoke of the strike at
Hanford, the fact that Local 112 had people on the
out-of-work roll due to the strike (Elgin himself
referred to 60 men), and that local men could look
right across to Bennett's jobsite and see travelers
working.5 On cross-examination, Bennett agreed that
Elgin spoke of the strike in greater detail: "[T]he
strike is the Tri-Cities with five, six, seven, or eight
thousand men out of work and it didn't look very
good to have travelers on the job across the street."
In both versions, Elgin asked Bennett's "coopera-
tion" in laying off the travelers in favor of hiring
local men. Bennett said that he would cooperate.
What he did was to return to the jobsite, tell
Singleton and Wiggins that the business manager at
the Local wanted him to lay them off as travelers,
and ask them if they wished to continue on the job.
In view of the scope of the strike and the increased
pressure on the hiring hall, I would not interpret
It is a union's function to attempt to obtain benefits for the employees
it represents. Here the Respondent was performing that function by
inducing the employer to fill desirable new jobs from within the
working force rather than by hiring from outside. Although this might
encourage union membership, it would be the type of encouragement
the Supreme Court was referring to when it stated in Local 357,
Teamsters v. N.L.R.B., (365 U.S. 667, 675-676); "The truth is that the
union is a service agency that probably encourages membership
whenever it does its job well." Finding a violation in this case would
penalize the Respondent for attempting to preserve job opportunities
for the unit employees it represented. . . Clearly, this was an attempt
by the Respondent to perform its obligations of representing the
employees.
5 Wiggins testified that he did not consider himself a traveler because he
had moved to the area about 2 years before, was book 2 the first year, and
after that, book I resident. "I get tired of being called a traveler because I
don't have a membership in this local." Membership takes "three or four,
years." He defined a traveler as he understood it:
Well, a traveler to me means someone, a Book 2 man, who travels,
moves his trailer in here, works on Hanford, picks up in eight or nine
months and goes to Reno to work, goes to San Francisco, follows the
jobs more or less. That to me is what a traveler is, although everyone is
a traveler who isn't a local member .... "
Elgin's request for cooperation as a specific request
for the discharge of Singleton and Wiggins. Elgin's
explanation is consistent with Bennett's testimony:
"I just made him aware of the problem it is for us,
and that was it." The proximity of the union hall to
the job created an obvious problem when local men
in large numbers were looking for work. Plausibly
Bennett, who had worked steadily for Ajax for 14
years and the last 7 as a foreman, might have
cooperated by keeping his eye out for another job for
the two, less strategically located. Hiring additional
men locally would also help and Bennett sought to
do that several weeks later. The impact of a major
strike on the operation of a hiring hall is a problem
that deserves more consideration by this Board.6
According to Bennett, he allowed Singleton and
Wiggins to decide the issue themselves as he wanted
to be sure he had people on the job and to know
whether these two wanted to stay. In any event, they
were not discharged. As I would not find Elgin's
remarks, as reported by Bennett, to have been a
specific request to discharge Singleton and Wiggins,
and as employment in July 1976 was aggravated by
the strike situation in a manner that fully explains
Elgin's solicitation of cooperation in hiring local
men-and/or laying off those who had come to the
job as travelers7--I would not find a violation of
Section 8(b)(2) with respect to the above incident.
Singleton and Wiggins then jointly filed the charge
here. According to Wiggins he did this because of
what he had been told by Bennett. Singleton had
filed a charge not too long before the one filed here.
The record shows little concerning it except that
Board personnel went over the Union's records and
it was dismissed.
Wiggins' original local was 48 at Portland; he also pays dues to Local 112.
He stated that nobody had discriminated against him with respect to getting
jobs off book I.
Singleton did not testify. He was asked. after Wiggins testified, if he
wished to, and said, "Not presently."
6 See my dissent in International Union of Operating Engineers, Local No.
450, AFL-CIO (Holloway Sand and Gravel Co., Inc.), 222 NLRB 1213
(1976).
7 Asked to define "traveler" Elgin said: "Of course a traveler is a
member of the 1.B.E.W., or the brotherhood. When a traveler comes in from
out of the jurisdiction, we have certain requirements to assigning him to our
referral procedure. Book I and Book 2 are forjourneymen wiremen. Book 2
is what the traveler signs when he comes in. Prior to signing it he fills out a
work application, shows proof from his honme local of having passed the
journeyman wireman examination. He works on Book 2 for one year and
then he is on Book I. He benefits from all of our fringe benefits, attends our
meetings, has a voice in the meeting, but he has no vote in the meeting. And
this is the only difference." As to the policy of Local 112 concerning a
distinction between locals and travelers, he said: "Well, this is not a policy
of any local union. It is understood by a traveler, and myself in traveling
around the country that I have done, that when work does slow down the
local people are the ones to stay on the job. But there is nothing in the
collective bargaining agreement or the by-laws or constitution that says this
is an item you enforce. It is understood in the brotherhood, is all." Elgin
agreed that it was sort of an unwritten understanding that has developed
over the years.
164
INTL. BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 112
At the end of July, Bennett went to the union hall
for the second time, this time with the purpose to
request two more men. He talked with Elgin.
According to Bennett's cross-examination, Elgin
"advised" him to lay off Singleton as a known
troublemaker. Bennett was closely questioned con-
cerning his use of the word "advised" and responded
that, in fact, it was Elgin's word and that he, Bennett,
"took" Elgin's comments as advice and chose not to
follow it. In this postcharge conversation there was
no reference to Wiggins by Elgin.8 Thus "advice"
was the posture and it related to Singleton alone,
though the Administrative Law Judge interpreted it
as referring to both men simply because both had
signed the charge. Such advice with regard to
Singleton being a troublemaker referred at least in
part to the earlier charge that was dismissed as
lacking in merit.
There is also Elgin's doubt expressed in this
conversation that he could find Bennett "anybody
that would work on a job because the other men in
the Union would know that their dues were going to
have to go for a lawyer to fight the case." Respon-
dent urges as controlling the case of George Williams
Sheet Metal Co., 201 NLRB 1050 (1973), where
employees struck spontaneously in disapproval of a
fellow employee, and the union acted-albeit before
a charge was filed-as a conduit in informing the
employer of employee sentiments. The information
supplied by the union was to the effect that the
employee would have to be removed before his
fellow employees would return to work. Here we
have a business manager's request for cooperation
during a strike, a rather logical request that went
awry. In all the circumstances, I am inclined to
conclude that the Union was functioning as a
conduit to relay employee reaction to the whole
episode. To say that a union may do so with
impunity in circumstances such as these, where a
charge has been filed, is a fine line to draw, perhaps,
but this is a case with very little substance.
I Elgin testified that he bore no ill will to the Channg Parties and recalled
that Wiggins originally came to the LaGrande-Kennewick area with the
idea of going into business as an electrical contractor and the Union at the
time waived the contract requirement of employing "a person full time."
However. Wiggins eventually went to work as a journeyman and, after a
year's residence, was put on book I. So far as Elgin knows. Wiggins has
never been treated any differently from anyone else on book 1.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT attempt to cause Ajax Electric
Company to terminate Donald E. Singleton and
Dennis M. Wiggins either because they are
travelers, or because they filed an unfair labor
practice charge under the Act against us.
WE WILL notify Ajax Electric Company that we
do not object to the employment of Singleton and
Wiggins by that Company.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL 112, AFL-CIO
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
charge in this case was filed on June 22, 1976, by Donald E.
Singleton and Dennis M. Wiggins. The complaint was
issued on September 8, 1976, on behalf of the General
Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director for Region 19.
The complaint alleges that International Brotherhood of
Electrical Workers, Local 112, AFL-CIO, herein called the
Respondent, has engaged in unfair labor practices within
the meaning of Section 8(b)(IXA) and (2) of the National
Labor Relations Act, herein called the Act. The Respon-
dent filed an answer to the complaint and denied the
commission of the alleged unfair labor practices.
The hearing was held before me on January 4, 1977, at
Richland, Washington. Briefs were timely filed before the
due date, February 1, 1977, by the General Counsel and by
the Respondent and have been duly considered.
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Ajax Electric Company, herein called the Employer, has
been at all times material herein an Oregon corporation
with an office and place of business located at Portland,
Oregon. The Employer is engaged in the construction
industry as an electrical contractor.
During the 12 months preceding the issuance of the
complaint, which period was representative of all times
material herein, the Employer in the course and conduct of
its business operations performed services valued in excess
of $50,000 for customers located outside the State of
Oregon.
Based upon the foregoing stipulated facts, I find that the
Employer has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated that the Respondent has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act. Based upon that
stipulation and the record, I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The parties stipulated to the following facts for the
purposes of this proceeding.
At all times material herein, the Employer was a member
of the Western Division, Inland Empire Chapter of the
National Electrical Contractors Association, which is an
organization of employers existing for the purpose of
dealing with labor organizations representing employees
and its employer-members concerning wages, hours, and
other terms and conditions of employment.
By virtue of its membership in the National Electrical
Contractors Association, the Employer has been at all
times material herein a party to a collective-bargaining
agreement with the Respondent which designated the
Respondent as the exclusive bargaining representative of
certain employees, including, inter alia, journeyman electri-
cians.
The Respondent has been at all times material herein the
duly recognized exclusive collective-bargaining representa-
tive within the meaning of Section 9(a) and (c)(l) of the Act
of the employees of the Employer referred to above, and
those employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Singleton was employed by the Employer as a journey-
man electrician on or about May 30, 1976, and Wiggins
was employed by the Employer as a journeyman electrician
during the month of April 1976. During their employment
and at all times material herein, Singleton and Wiggins
were employed pursuant to the terms of the contract
between the Employer and the Respondent in the appro-
priate collective-bargaining unit described above.
George Elgin has been business manager and Don
Williams has been the assistant business manager of the
Respondent at all times material herein and they have been
agents of the Respondent acting on its behalf within the
meaning of Section 2(13) of the Act.
B. The Events in Pendleton, Oregon
1. The first conversation between Bennett and
Williams
Richard Bennett has worked for the Employer about 14
years and has been a foreman electrician for the Employer
for about the past 7 years. As a foreman electrician,
Bennett possessed the authority to hire and fire employees.
Bennett had his initial contact with Business Manager
Elgin and Assistant' Business Manager Williams about 4
years ago in Yakima, Washington. However, his contacts
with Elgin during the ensuing time were infrequent since he
estimated that he had seen Elgin only two or three times
during the 4-year period.
At a jobsite in Pendleton, Oregon, Bennett had a
journeyman named Couch who had worked only about 27
hours there and who, in Bennett's opinion, was not
showing up on the job as he should be.
Meanwhile, Wiggins stopped by the jobsite and informed
Bennett that he was going to sign up with the Respondent
in Kennewick. Thereafter, Bennett telephoned the Respon-
dent and requested the referral of Wiggins to the jobsite.
He was told that would be "no problem," and the
Respondent did refer Wiggins to work for the Employer at
Pendleton; whereupon Bennett laid off or discharged
journeyman Couch.
The next day Assistant Business Manager Williams came
to the jobsite. Bennett testified that Williams "told me that
if anybody was to be laid off it should have been Dennis
Wiggins, because he was a traveler and the man I laid off
was a local man." Bennett told Williams that he did not
want any hassles, and that he would take Couch back to
work if Williams "would have a talk with him and
straighten him out." According to Bennett, however,
Couch would not return to work there. Wiggins continued
his employment with the Employer.
The foregoing findings of fact are based upon the
uncontradicted testimony of Bennett. Williams did not
testify.
The General Counsel's complaint alleges that this
incident took place on or about March 26, 1976. Bennett
also placed this event as occurring in March 1976. The
stipulation of the parties was that Wiggins was employed
by the Employer during the month of April 1976. That fact
was also alleged in the General Counsel's complaint and
stipulated to by the parties at the hearing. Bearing in mind
that Bennett was testifying in January 1977 as to the time
of an incident which had occurred in the spring of 1976,
and further bearing in mind the complaint allegation and
stipulation of the parties that Wiggins was employed
during the month of April 1976 as a journeyman electrician
by the Employer, I find that this first conversation between
Bennett and Williams took place in April 1976. Neverthe-
less, that is only a slight variation between the complaint
allegation and the proof at the hearing as to the timing of
the event.
2. The second conversation between Bennett and
Williams
Several weeks later Bennett was running low on material
at the Pendleton jobsite. At that point in time there were
five persons working for the Employer on that job. They
were Bennett, Singleton, Wiggins, an employee identified
only as Mitch, and an apprentice named Carrier. Singleton,
Wiggins, and Mitch were "travelers."
In Bennett's view, Carrier was the one who was doing the
least amount of work, so he laid off or discharged Carrier.
Bennett acknowledged at the hearing that there had been
some conflict between Carrier and him as to whether
Carrier was to take orders from Bennett, who was his
foreman, or from one of the journeyman employees on the
job.
Once again, Assistant Business Manager Williams came
to the Pendleton jobsite. Williams told Bennett that, from
the Respondent's point of view and from the apprentice's
166
INTL. BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 112
point of view, Bennett should not have fired Carrier.
Bennett testified that Williams "told me again that this was
the only local man I had on the job and I should have laid
off the travelers I had before I laid off the local men."
Williams asked Bennett to hire back Carrier, and Bennett
refused to do so. Williams told Bennett that he was going
to pull everybody off the crew and that he was going to talk
to the men during the lunch hour and ask them to quit as a
personal favor to him. Bennett observed Williams go to the
men during the lunch hour, but he did not overhear any of
the conversations. No work stoppages occurred.
The Employer rehired Carrier, who remained working on
the job.
The foregoing findings of fact are based upon the
uncontradicted testimony given by Bennett. As noted
earlier, Williams did not testify in this proceeding.
As to the timing of the second conversation between
Bennett and Williams, Bennett placed this event as
happening 2 to 3 weeks, or a month, after the first
conversation. The General Counsel's complaint alleges that
the incident took place during the month of June 1976. The
complaint also alleged and the parties stipulated at the
hearing that Singleton was employed by the Employer as a
journeyman electrician on or about May 30, 1976. Bearing
in mind the stipulated facts and bearing in mind that
Bennett was attempting in January 1977 to recall the time
of an event in late spring or early summer of 1976, 1 find
that the second conversation took place during the month
of June 1976 as alleged in the complaint.
C. The Events in Kennewick, Washington
1. The first and second conversations between
Bennett and Elgin
The first conversation pertinent to this proceeding
between Foreman Bennett and Business Manager Elgin
took place on the telephone. Bennett called Elgin and
asked him if he could transfer his crew from the Pendleton
job to a job in Kennewick, Washington. Elgin said "yes."
In July 1976, Bennett was in the Respondent Union's
hall when Williams asked Bennett to talk with Elgin.
Bennett related the following conversation with Elgin:
I went into his office and he told me that we had
kind of a touchy situation here, there was a strike at
Hanford and there was [sic] men out of work and the
local men could look right across the street and see that
I had travelers on the job and they didn't like it. He
asked for my cooperation, if I would lay them off, so we
could put the local men on the job.
I told him he would have my cooperation and I left.
The foregoing findings of fact are based upon the
testimony of Bennett. The recollection of Business Manag-
er Elgin varied from the version given by Bennett -
particularly in the absence of any mention of a request by
Elgin that Bennett lay off the two travelers, Singleton and
Wiggins. Elgin gave this version:
Bennett did contact me and stated for me that our
local people that were working for them in Pendleton
did not desire to come to Kennewick and he did tell me
that he was going to bring the other two people who
were working for him at that time. The gist of the
conversation was that I could tell him that we had
approximately 60 people, due to the strike, on the out-
of-work roll. This new store is right across the street
from the union hall office and I was sure there was
going to be a problem for me, for my local people to be
in there looking for a job, and seeing travelers across
the street. That was the gist of it.
George Elgin has worked in the electrical industry for 36
years. He progressed from an apprentice electrician to a
journeyman and then to a foreman and a general foreman.
He has been associated with the International Brotherhood
of Electrical Workers, AFL-CIO, during this time and for
the past 17 years he has been associated with Local 112. He
has held local union offices, and for the past 6 years he has
held his present position of business manager. Elgin said
that in his position he has acquired some familiarity with
the prohibitions of the National Labor Relations Act. Elgin
pointed out that prior to the strike in the summer of 1976
the number of local members and the number of travelers
was approximately the same, around 500 in each category.
Elgin asserted that there had been no discrimination
against the travelers.
The Board has given guidance in resolving credibility
conflicts in its decision in Northridge Knitting Mills, Inc.,
223 NLRB 230 (1976). In that case, the Board discussed
various criteria other than the factor of the demeanor of
the witnesses. The Board stated (at 235):
Nonetheless, it is abundantly clear that the ultimate
choice between conflicting testimony also rests on the
weight of the evidence, established or admitted facts,
inherent probabilities, reasonable inferences drawn
from the record, and, in sum, all of the other variant
factors which the trier of fact must consider in resolving
credibility. See, e.g., Retail, Wholesale and Department
Store Union, AFL-CIO [Coca-Cola Bottling Works,
Inc.] v. N.L.R.B., 466 F.2d 380, 386-387 (C.A.D.C.,
1972).
With the foregoing criteria enunciated by the Board in
mind and, in addition, based upon the demeanor of the
witnesses, I have found the testimony given by Bennett to
be the complete and accurate account of these events. I
have given consideration to the fact that the Respondent
Union's agents protested Bennett's actions in terminating
Couch and Carrier. Bennett readily acknowledged at the
hearing that he thought that he was correct in taking those
actions, but he said that he bore no ill will against the
Respondent.
It can be argued that the latter statement is self-serving
and should be examined closely. That is what I have done.
I am persuaded that the record in this proceeding does not
reveal such bias on the part of Bennett as would cause him
to fabricate his versions of these events. Accordingly, for
all of the foregoing reasons, and notwithstanding the fact
that Elgin is an experienced union official who is aware of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act's prohibitions, I have credited Bennett's testimony
throughout this proceeding. I have based the findings of
fact in this section on his version.
2. The conversation among Bennett, Singleton,
and Wiggins
Following his conversation with Elgin, Bennett spoke
with Singleton and Wiggins, who were the only persons
working on the Kennewick job at that time.
Bennett told them that the business manager of the
Respondent Union wanted him to lay them off from work
because they were travelers. Bennett asked them what they
wanted to do and whether they wanted to stay on the job.
They said that they did not want to be laid off.
Bennett did not lay off either Singleton or Wiggins, and
the Respondent did not take any action.
As noted earlier, Singleton and Wiggins filed the unfair
labor practice charge in this case on July 22, 1976. Wiggins
testified that he based the charge on what he had been told
by Bennett, and that he did not speak with Elgin or
Williams prior to filing the charge. Singleton did not testify
in this proceeding.
The foregoing findings of fact are based upon the
testimony given by Bennett and by Wiggins who are
credited.
3. The third conversation between Bennett and
Elgin
About the end of July 1976, Bennett had still another
conversation with Elgin. Bennett had gone to the Respon-
dent Union's hall to make a request for two additional
men. Elgin called Bennett into his office. Bennett testified:
. . . he wasn't happy that I had gone and told Don
and Dennis. He said that the Labor Relations Board
had had a filing against them.
* *
He said he assumed it would be confidential between
him and myself and he didn't expect me to go over and
tell them. He said, "Now we are going to have to go to
court." That he wasn't sure if he could find me anybody
that would work on a job because the other men in the
union would know that their dues were going to have to
go for a lawyer to fight the case.
He did say it was kind of a touchy situation that we
were going through. I said yes, I knew. I told him I
thought it was against the law and he said it was. And
he asked me if I would lay Don Singleton off.
Bennett said that he did not respond to the last question
and that he left.
At a later point in his testimony, Bennett related that
Elgin "told me that Don Singleton was a known trouble-
maker and he would advise me to let him go." Bennett
acknowledged that Elgin used the word "advised" in their
conversation and that he took it as advice which he chose
to disregard. Bennett stated that nothing happened as a
result of his disregarding such advice.
Bennett said that he told Singleton and Wiggins that
Elgin had asked him to fire them because they had filed a
charge with the Board.
Singleton continued to work for the Employer, as did
Wiggins, who took over as foreman of the Kennewick job
for 1-1/2 months while Bennett went to another job.
Singleton and Wiggins were laid off when there was no
further work for them to do.
The foregoing findings of fact are based upon the
credited testimony of Bennett. Elgin recalled the conversa-
tion differently. He testified:
Well, Dick came into the office and I'm not sure
whether the assistant asked him to come back but
anyhow we ended up in my office. I did tell Dick that I
sure didn't appreciate what happened out of our last
discussion and I made him aware, which he was already
aware, that charges had been brought against us,
against the local union, and that was basically it. At no
time did I tell him to lay off Singleton or Wiggins.
* * * * *
The only thing that was possibly said, and I'm not
sure I have got it in the right context, but again this was
our last discussion. Their new store just started there in
Kennewick and I did make him aware that probably
the members of 112 were not going to look too
favorable at working there when they knew they had
people there with charges against Local 112. That was
really basically it.
At the hearing Elgin pointed out that Singleton and
Wiggins have since used the Respondent Union's hiring
hall facilities, and that no directives have been issued to the
Respondent's employees to treat Singleton or Wiggins any
differently from anyone else.
Elgin also stated that an earlier unfair labor practice
charge against the Respondent had been filed by Singleton.
He said that the earlier charge had been dismissed by the
Regional Director for Region 19 for lack of merit. Elgin
indicated an awareness of the prohibitions of the Act
against a union seeking the discharge of a person by an
employer because that person had filed a charge against
the Union.
Elgin claimed that he had no ill will towards Singleton
and Wiggins, and he recalled an event 2-1/2 or 3 years ago
when the Respondent waived one of its requirements to
enable Wiggins to qualify to become an electrical contrac-
tor.
After considering the foregoing and for the reasons
previously indicated, I have credited the testimony of
Bennett and based the findings of fact on his version of the
conversations.
D. Conclusions
Based upon the credited testimony of Bennett, I
conclude that the Respondent did attempt to cause the
Employer to discharge Singleton and Wiggins on the
various dates specified herein - at first because they were
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INTL. BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 112
travelers instead of members of the local union and,
ultimately, because they had filed an unfair labor practice
charge under the Act against the Respondent.
Specifically, I conclude that the evidence shows that: (1)
in April 1976 at the Pendleton jobsite, Assistant Business
Manager Williams attempted to cause Bennett, as the
foreman electrician of the Employer, to terminate Wiggins
because Wiggins was a traveler; (2) in June 1976 at the
Pendleton jobsite, Assistant Business Manager Williams
attempted to cause Bennett to terminate Singleton and
Wiggins because they were travelers and in this connection
Williams told Bennett that he would attempt to cause the
other employees to cease work; (3) in July 1976 at the
Respondent's office in Kennewick, Business Manager
Elgin attempted to cause Bennett to terminate Singleton
and Wiggins because they were travelers; and (4) about the
end of July 1976 at the Respondent's office in Kennewick,
Business Manager Elgin attempted to cause Bennett to
terminate Singleton and Wiggins because they had filed an
unfair labor practice charge under the Act against the
Respondent, and Elgin warned Bennett that members of
the Respondent would not perform work for the Employer
because of the pending unfair labor practice charge if the
Employer continued to employ Singleton and Wiggins.
In George Williams Sheet Metal Co., 201 NLRB 1050,
1055 (1973), the Board adopted the findings and conclu-
sions of the Administrative Law Judge who recommended
dismissal of the complaint alleging 8(a)(l) and (3) viola-
tions by the respondent employer and 8(b)(1)(A) and (2)
violations by the respondent union in that case. The
allegations involved, inter alia, whether the union had
attempted to cause and did cause the employer to
discharge Rodney L. Tweedy. The allegations were
dismissed by the Administrative Law Judge who concluded
that: "The Union functioned as a conduit for relaying the
employees' sentiments by informing the Company that
Tweedy would have to be removed from the Project in
order to induce the men to return to work."
In the Respondent's brief it is urged that a situation
similar to the George Williams case exists here where, in the
Respondent's view, Elgin's comments referred only to the
probable attitude of the individual members of the
Respondent and did not purport to be a demand or
instruction from the Respondent itself. However, in the
George Williams case it was noted that the effort to remove
Tweedy from the project had begun a week before the
filing of the unfair labor practice charge and, additionally,
it was noted that the discharge of Tweedy was not sought
because he was not a union member. Instead, it appears
that certain employees found Tweedy to have an abrasive
personality in their opinion. The Administrative Law Judge
stated at 1053-1054:
What the testimony in this case shows is that the sheet
metal workers found Tweedy's personality abrasive.
They considered Tweedy arrogant, domineering, and
overbearing and found it offensive working with him.
As Tweedy worked at a substantially faster pace than
the other employees undoubtedly this served to aggra-
vate their irritation with him.
It appears from the foregoing that the George Williams
dispute concerned more of a personality problem than
anything else. The Administrative Law Judge noted that
the union in that case did not endorse or condemn the
threats made by the employees regarding their quitting
work and merely relayed the information to the company.
The work stoppage was a spontaneous action which was
taken without consultation or approval by the union
agents.
After considering the foregoing, I find the George
Williams case to be distinguishable from the facts in the
present proceeding. Here the Respondent's agents were not
merely relaying informatior about a personality clash
among the employees, but instead they were actively
seeking the termination of Singleton and Wiggins. In one
instance the Respondent's agent supported his attempt to
bring about the discharge of Wiggins by stating to Bennett
that he would attempt to cause a work stoppage among the
other employees at the Pendleton jobsite. In another
instance there was the warning that union members would
not work for the Employer unless the Employer complied
with the Union's request to discharge the persons who had
filed the charge against the Union. It is noteworthy that, at
the very time that the warning was made by Elgin, Bennett
had come to the union hall to request that the Union refer
two more persons to work for the Employer at the
Kennewick jobsite.
In light of all the circumstances, I conclude that the
Respondent's actions amounted to more than a "bare
request" and, although the Respondent was not successful,
the Respondent did attempt to cause the discharge of
Singleton and Wiggins. See International Brotherhood of
Carpenters and Joiners, Local 1092 (Walsh Construction
Company), 219 NLRB 372 (1975); see also the Board's note
with regard to a "simple request" which, unlike the instant
case, was an effective request in San Jose Stereotypers' and
Electrotypers' Union No. 120, International Stereotypers' and
Electrotypers' Union of North America, AFL-CIO (Dow
Jones & Company, Inc.), 175 NLRB 1066, fn. 3 (1969).
After considering the foregoing, I conclude that the
Respondent violated Section 8(bXIXA) and (2) of the Act
in attempting to cause the Employer to discharge Singleton
and Wiggins because they were travelers instead of
members of the Local Union.
Turning now to the other basis for the General Counsel's
complaint, it is clear that both Singleton and Wiggins had
the right of access to the use of the Board's processes. As
the Supreme Court stated in N.LR.B. v. Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO
[United States Lines Co.], 391 U.S. 418, 424 (1968): "Any
coercion used to discourage, retard, or defeat that access is
beyond the legitimate interests of a labor organization." In
the instant case, the coercion is found in the Respondent's
attempt to cause the Employer to discharge them after they
had filed an unfair labor practice charge against the
Respondent. That attempt was coupled with the warning
that members of the Union would not work for the
Employer because of the charge having been filed. I am not
unmindful that Elgin's final request was specifically to lay
off Singleton in that particular conversation. However, in
the context of that last conversation, I find that the attempt
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was being made to cause the Employer to terminate both
Singleton and Wiggins since both persons had, in fact,
jointly filed the same charge against the Union. I conclude
that the Respondent thereby violated Section 8(b)(1)(A)
and (2) of the Act.
Finally, the fact that Charging Party Singleton did not
testify in this proceeding would not, by itself, be a basis for
dismissing the allegations of the complaint as to him. Riley
Stoker Corporation, 223 NLRB 1146 (1976); Bechtel Power
Corporation, 223 NLRB 925 (1976), and Satra Belarus, Inc.,
226 NLRB 744 (1976).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers,
Local 112, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Ajax Electric Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By attempting to cause Ajax Electric Company to
terminate Dennis M. Wiggins in April 1976 because he was
a traveler; by attempting to cause the Employer to
terminate Donald E. Singleton and Wiggins in June 1976
because they were travelers; by attempting to cause the
Employer to terminate Singleton and Wiggins in July 1976
because they were travelers; and by attempting to cause the
Employer to terminate Singleton and Wiggins about the
end of July 1976 because they had filed an unfair labor
practice charge under the Act against the Respondent, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(l)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7)of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) and (2) of
the Act, I shall recommend that it be ordered to cease and
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
Because the attempts by the Respondent to cause the
Employer to terminate Singleton and Wiggins were not
successful, and because the record shows that Singleton
and Wiggins did not suffer any loss of wages attributable to
the actions of the Respondent, I shall not recommend the
award of backpay in these circumstances.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '
The Respondent, International Brotherhood of Electrical
Workers, Local 112, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Attempting to cause Ajax Electric Company to
terminate Donald E. Singleton and Dennis M. Wiggins
because they are travelers or because they filed an unfair
labor practice charge under the Act against the Respon-
dent.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Ajax Electric Company that the Respondent
does not object to the employment of Singleton and
Wiggins by the Employer.
(b) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by the Respondent, shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained by the Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members or applicants for
referral are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director for Region 19
signed copies of the aforementioned notice for posting by
Ajax Electric Company, that Employer being willing to do
so, at all locations where notices to its employees are
customarily posted.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
170