Communications Workers of America, Local 1104

National Labor Relations Board - Board Decisions

May 12, 1964

146 N.L.R.B. 1564 (N.L.R.B. 1964)

1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, I find no substantial basis in the evidence for inferring
that the Respondent seized upon the theft problem as a pretext for ridding itself
of members of the Union , as the General Counsel argues. The most that can be
said for the General Counsel 's case is that the Respondent 's asserted reason is not
beyond . suspicion . But suspicion is not an adequate substitute for evidence. More-
over, whether or not the discharges were merited or unmerited or just or unjust
are not matters on which the Trial Examiner may pass judgment , and I therefore do
not determine whether any of the discharged employees were guilty of any of the
asserted offenses. It is axiomatic that an employer may discharge an employee for
cause or even no cause at all provided it is not for union membership or activity.
As the General Counsel has failed to sustain his burden of proving , by a pre-
ponderance of the evidence , that an antiunion purpose motivated the discharges, I
recommend that the allegations of discrimination set forth in the amended complaint
be dismissed.
2. With respect to interference , restraint , and coercion of employees
I have heretofore found that Handsman , the Brooklyn warehouse supervisor, bad
questioned Jones in private concerning his union membership and that of other
-employees , and in the same conversation voiced the opinion that there would be
trouble if or when the Respondent 's President Frankel learned of the employees'
union membership . Although conduct of this type necessarily has a restraining
effect upon an employee 's exercise of his statutory rights and violates Section 8 (a) (1)
of the Act , irrespective of good faith such as that exhibited by Handsman , I never-
theless find that, under . all the facts and circumstances herein , it would serve no
useful purpose to issue a cease and desist order to remedy this isolated violation.
Accordingly , I recommend the dismissal of the Section 8 ( a)(1) allegations of the
amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and upon the entire record in the case,
I recommend that the amended complaint issued herein against Frankel Associates,
Inc., be dismissed.
Communications Workers of America Local 1104 , AFL-CIO and
Frederick Bond d/b/a Bond Electric Company. Case No.
2-CC-817. May 12, 1964
DECISION AND ORDER
On February 20, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above case, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, both General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision
and the entire record in this-case, including the exceptions and briefs,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
146 NLRB No. 180.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 1565
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial "Examiner Frederick U. Reel at New York, New
York, on November 29, 1963,1 pursuant to a charge filed August 8 and a complaint
issued September 26, presents the question whether Respondent violated Section 8(b)
(4) (ii) (B) of the Act by threatening not to service certain telephones being installed
in the Nassau County courthouse unless the installation work was performed by
members of Respondent employed by the New York Telephone Company rather than
by employees of the Charging Party. Upon the entire record, including my ob-
servation of the witnesses, and after due consideration of the unusually helpful briefs
filed February 10, 1964, by the General Counsel and by Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESSES AND UNIONS INVOLVED
At all times material herein, Respondent's parent organization, Communications
Workers of America, AFL-CIO, hereinafter referred to as CWA, represented the
employees in the plant department of New York Telephone Company, herein called
Telephone. The members of Local 1104, herein called Respondent, are employed in
Telephone's plant department in Nassau and Suffolk Counties, in the State of New
York. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
The Charging Party, Frederick Bond, is an individual proprietor doing business
as Bond Electric Company, herein called Bond. Bond is engaged in the performance
of electrical installations and related services in the building and construction indus-
try. During the year 1962, which period is representative of its annual operations
generally, Bond performed services valued in excess of $50,000 for Telephone.
Bond is a person and an employer engaged in commerce and in an industry affecting
commerce within the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4) of
the Act. Bond's employees are represented by Local 25, International Brotherhood
of Electrical Workers, AFL-CIO, herein called Local 25, a labor organization within
the meaning of Section 2(5) of the Act.
Telephone in the course of its business operations of providing local and long-
distance communications and related services as part of a nationwide telephone sys-
tem during the year 1962, which period is representative of its annual operations gen-
erally, derived gross revenues in excess of $1,000,000, for communication services
between the State of New York and other States. Telephone is a person and an
employer engaged in commerce and in an industry affecting commerce within the
meaning of Sections 2(1), (2), (6), and (7) and 8(b) (4) of the Act.
The county of Nassau, hereinafter called Nassau County, a political subdivision
of the State of New York, purchased and caused to be transported and delivered to
it during the past year, which period is representative of its annual operations gen-
erally, materials, goods, and supplies valued in excess of $50,000 directly from States
other than the State of New York. Nassau County is a person engaged in com-
merce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-the controversy between Respondent and Local 25
In early April, Telephone received an order from Nassau County for the installa-
tion of 48 telephones on 3 floors in the west wing building of the Nassau County
courthouse, which was then undergoing a major alteration. On April 17 New
York Telephone Company employees, Churchill Edwards and Michael Mazzeo, be-
gan work in connection with installing the telephones, pulling cable through ducts on
the third floor.
On April 22, one Budin, an employee of the electrical contractor engaged in the
electric work at the site, saw Edwards and Mazzeo pulling cables and told them "It's
Local 25's work." He then called Local 25 and advised it of the situation. There-
after Mark Costello, a business representative of Local 25, called Herman Haeger,
Telephone's supervisor of contract labor (through whom outside contractors are
hired) and demanded that the cable work be done by members of Local 25. A day
or two later Edwards told Budin that "If Local 25 pulls in the wires, CWA wouldn't
connect the telephones." Mazzeo, who was present at the time, nodded in agree-
I All dates herein are to the year 1963 unless otherwise specified.
1566 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment . Edwards and Mazzeo continued to work up to and including part of. April 24,
when Andrew Pantino, a Telephone service supervisor for installation, instructed
William Preiss, the job foreman under his supervision, to suspend telephone instal-
lation work at the west wing building. Edwards and Mazzeo were immediately as-
signed to work at other Nassau County buildings.
On April 25 Telephone decided to hire a contractor to perform the work that
Local 25 claimed and ordered Bond, one of the contractors whom Telephone em-
ploys, to perform the inside wire and cable work. Respondent's representatives
vigorously protested to Telephone this resolution of the dispute. As a result, al-
though two employees of Bond, members, of Local 25, commenced work on April 29,
they were called off the job that same morning and the job was temporarily discon-
tinued because of the jurisdictional dispute.
Between April 29 and May 7 installation work was suspended. During this period,
on May 1, a conference between Telephone's representatives and Respondent took
place at the office of George Loomis, Telephone's division plant superintendent.
Charles King, James O'Connor, and Peter Theobald, Respondent's president, secre-
tary, and treasurer, respectively, were present on behalf of Respondent. During the
conversation that ensued, O'Connor told Loomis "that if Local 25 pulled the cable,
the CWA would refuse to connect telephone service and would refuse to service the
job altogether."
On May 7 the work was again resumed by employees of Telephone. That same
day, however, Local 25 advised Telephone that Local 25 and all other building crafts
then at work at the project would stop work if Telephone employees continued to
do the work in question. That same day Nassau County cancelled its order for the
installation of telephones.
On May 20, as the result of mediation efforts by Robert MacGregor, Nassau
County director of public relations, whose position had been established for the pur-
pose of mediating industrial controversies in Nassau County, Nassau County re-
instated its order for telephones and the work was resumed by Telephone employees,
who completed it on May 31. As the alleged unfair labor practices in this matter
consist of statements made by Respondent's representatives to MacGregor in the
course of his successful efforts to mediate, it is necessary to discuss in further detail
MacGregor's position and his activity in connection with this dispute.
B. MacGregor's activities
Robert MacGregor, the director of labor relations for Nassau County,. is an ap-
pointed officer whose primary function is to prevent industrial conflicts in Nassau
County by initiating mediation services for disputing parties. He serves as a media-
tor in disputes which do not, as did the instant matter, directly involve. Nassau
County. In non -Nassau County matters of that nature, threats of secondary pres-
sure which one of the disputants made to him, as mediator, would not ordinarily be
evidence of a violation of Section 8(b)(4)(ii)(B). The basic issue in this case is
whether such statements to him constitute violations of that section because he is
not only a mediator, but also a representative of Nassau County,- which is the in-
nocent neutral adversely affected by the dispute.
MacGregor entered the picture pursuant to a memorandum dated May 3 from one
Edward Schnitzer, superintendent of buildings for Nassau County. Notifying
MacGregor of the dispute, Schnitzer stated:
We do not think that the County ought to tolerate this being made a "test case"
in order to resolve a long standing feud between the two factions. We would
like to enlist your good offices in this matter and suggest that you arrange for
a meeting with the representatives of the Telephone Company and the Elec-
tricians Union in order to resolve this problem.
On May 3 MacGregor called Telephone, Local 25, and Respondent. That after-
noon MacGregor spoke with CWA's New York area director. Morton Bahr. Bahr
told MacGregor that Respondent had started to pull cable at the courthouse but had
been "stopped on the job" and that they "were intending to pursue it further."
MacGregor arranged a meeting with Respondent for Monday, May 6.
MacGregor notified Schnitzer of the arrangement that had been made to meet the
disputants, as he did throughout the course of events. MacGregor also notified
Schnitzer by memorandum dated May 3 of the strategy he devised and intended
to pursue at the meeting with Respondent's representatives, stating:
I don't believe the county should take sides in this matter. We should, how-
ever, try to have the disputants select some other battleground. My activities
so far and my meeting with CWA representatives is being directed along these
lines.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 1567
Bahr, Charles King, Respondent's president, and James O'Connor, Respondent's
secretary, were present at the May 6 conference with MacGregor. At the outset
MacGregor asked "Why are you picking on me? I'm new in this job. We haven't
gotten under way yet. Why are you picking a county building?" He went on to
say that a Nassau County jobsite was not the proper place to fight out a jurisdic-
tional dispute. He told them there was too much at stake, as far as Nassau
County was concerned, to have that particular site as the battleground for a fight
that had been going on for years, and he told them to fight some place else. The
CWA representatives said that they wanted to get the matter settled if they could,
but wanted to bring it to a head. They said that they would be agreeable to con-
tinuing the fight elsewhere if the Telephone Company would advise them where
another job of a similar nature was going to be done. They said, however, that if
the fight still continued at this particular job and Local 25 men pulled in the cable,
the CWA men would not "hook up" or "connect" the telephones?
On May 7, MacGregor met Edward Klouda, a Local 25 business representative, at
the west wing building pursuant to an arrangement with Klouda. MacGregor had
made no appointment to see any of Respondent's representatives, who, however,
were also present in the building. MacGregor spoke to the disputants separately.
Klouda, during his conversation with MacGregor, told MacGregor that (Klouda)
had been told by the electricians on the job that if they did not get the work, they
were all going to walk off and the other trades were going to walk off with them.
Later, according to MacGregor, some member or representative of CWA who was
there told him that if Local 25 performed the disputed work, CWA men would not
connect up the telephones.
In a memorandum dated May 8, MacGregor related the developments in the
dispute to the personal attention of the county executive and the chairman of the
labor committee of Nassau County's board of supervisors, reporting the fact that
Local 25 threatened a work stoppage at the construction site. He stated in part:
The interest of this department and the Department of Public Works is directed
towards a non-interruption of work on this project and the availability of the
facilities on May 25th for those county employees who are scheduled to move
in at that time.
On other occasions, MacGregor notified other Nassau County officials of develop-
ments in the dispute.
On May 17 MacGregor met with Respondent's representatives and proposed to
them that they complete the entire job, providing they agree not to use the fact that
they had performed the disputed work in this instance as a precedent in future
instances. Respondent, however, declined to agree. Some days later the order for
telephone service was reinstated, after Local 25 agreed to permit members of CWA
to perform the disputed work without agreement by CWA to the proposal not to use
its performance of the work as a future precedent. The installation was then com-
pleted by Telephone's installers without further incident.
C. The various proceedings before the Board
The facts summarized above gave rise to three proceedings before the Board. On
July 31, Bond filed a charge against the Respondent herein, alleging a violation of
Section 8(b)(4)(ii)(D). That case , Case No. 2-CD-276 [146 NLRB 3881,
went to hearing in October pursuant to Section 10(k) of the Act, and is now pending
before the Board, which will presumably determine whether employees represented
by Respondent or by Local 25 are entitled to the work. On July 22, Telephone filed
2 Respondent contends that MacGregor misconstrued the statements made to him at that
meeting, and that the threat quoted in the above text was not made. MacGregor's testi-
mony, on which the quoted threat rests, leaves a good deal to be desired. On cross-
examination he admitted that he would construe the statement "unless the work is
allowed to continue, the phones could not be connected" as tantamount to a "threat" on
the part of CWA not to hook up the telephones unless its men continued the work. Also,
he was rather vague as to which of the CWA representatives uttered the threat and
which expression ("hook up" or "connect") was used. Nevertheless. I credit MacGregor's
disinterested testimony which ascribes to the C\VA men a threat similar to that they had
recently made to Telephone.
744-670-65-vol. 146 100
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a charge against Local 25, alleging violations of Section 8(b) (4) (i) (ii) (B), Case
No. 2-CC-813, and on August 8, Bond filed the charge in the instant case. Com-
plaints having issued pursuant to the charge in Case No. 2-CC-813 and the charge in
this case, the two proceedings were consolidated; but a settlement was reached in
Case No. 2-CC-813, and the proceedings were severed. The record of the 10(k)
hearing in Case No. 2-CD-276 was introduced as an exhibit in the instant case. In
that proceeding MacGregor gave testimony substantially similar to that which he
gave before me.
D. Concluding findings
Although the complaint alleges that Respondent violated the Act by demands it
made on Telephone as well as by threats to Nassau County, General Counsel in his
extensive brief relies solely on the statements to MacGregor, refers to Telephone as
"the primary employer," and has apparently abandoned the contention that the
threats to Telephone violated the Act. I therefore pretermit extended discussion of
that issue, and merely note that particularly in the light of the recent Board decision
in Milk Wagon Drivers and Dairy Employees Union Local 603, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Drive-Thru
Dairy, Inc.), 145 NLRB 445, Respondent's threats to Telephone, concerning work
which Telephone had originally assigned Respondent and which Telephone withdrew
only because of what appears to have been unlawful secondary pressure exerted by
Local 25, were not violative of the Act.
With respect to the threats to MacGregor, Respondent contends, first, that no
threats were uttered; second, that the sole testimony to the contrary, MacGregor's,
was erroneously admitted into evidence as he was a mediator and statements to
him were confidential and privileged; and, third, that even if properly in evidence, the
statements to MacGregor were made to him as a mediator and did not constitute
threats to Nassau County as the neutral in this case.
The first two defenses I reject under the circumstances of this case. As already
noted, I credit MacGregor's testimony which attributes to Respondent threats similar
to those Respondent had made to Telephone. Although I would ordinarily regard
statements to a mediator as privileged, and would not permit him to testify thereto
over objection, MacGregor had already testified to the identical matters in Case No.
2-CD-276, without objection, and the privileged character of the communication to
him was thereby waived. See 8 Wigmore, Evidence, Sec. 2328, 2389(4) (McNaugh-
ton rev. 1961); see also Note, 79 ALR 171, 176, if.
I find merit, however, in Respondent's position that statements made to MacGregor
in the course of his attempts to mediate are not threats to Nassau County. Mac-
Gregor testified that his work as a mediator frequently involves disputes in which
Nassau County has no direct concern. Within the 5 weeks preceding the hearing
he had mediated a dispute between a local bus company and its employees, and two
disputes between certain stores and their employees. In those situations his func-
tion, according to his testimony, was exactly the same as his function in the instant
case. In this case he conducted himself as a mediator throughout, called the parties
in separately, and obtained their respective positions separately. MacGregor testi-
fied that when he mediated a labor dispute it was his understanding that whatever
was said to him by both parties he was to keep in confidence. He further testified
that he regarded the statements of CWA representatives to him on which General
Counsel relies in this case as having been made in confidence. Morton Bahr, who
at the time of the events in question was area director of New York for CWA, and
who participated in the May 6 conference at which the allegedly illegal threat was
made, testified that the CWA would not have made any disclosures of its position
to MacGregor but for the fact that it regarded him as a mediator to whom statements
were made in confidence. Bahr further testified that he assumed any statement he
made to MacGregor at the conference would be held in confidence as "an automatic
procedure" "because he was a mediator."
It seems clear that if threats similar to those uttered here had been made to Mac-
Gregor in connection with the disputes he had recently mediated not involving Nassau
County buildings, or-to put it another way-if the Telephone installation in this
case had concerned a privately owned building, the threats to the mediator would not
violate Section 8(b)(4)(ii)(B), even if the mediator were thereafter to betray
the confidential character of his role and repeat them to the neutral affected by the
dispute, in this case the building owner. In this case, moreover, the record is
devoid of direct evidence that MacGregor reported CWA's threats to any Nassau
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1104 1569
County official; at most, the record in Case No. 2-CD-276 suggests that he may
have told Schnitzer of the May 7 statements in the west wing made by some uniden-
tified CWA man. General Counsel contends, however, that a threat uttered to
MacGregor in this case is a threat to Nassau County because MacGregor is a Nassau
County employee and acted as a Nassau County representative.
In support of the contention that MacGregor was representing Nassau County's
interests as building owner rather than merely serving its general interest in industrial
peace, General Counsel notes that the Company officials who enlisted MacGregor's
intervention in the matter, and also MacGregor himself, repeatedly emphasized the
public interest in completing the work in this public building. MacGregor on various
occasions asked the disputants to select some other, nonpublic, job at which to
wage their jurisdictional contest, and concentrated his efforts on that, rather
than on an attempt to resolve the merits of the quarrel between Respondent and
Local 25. But MacGregor's awareness of the public importance of the work in
progress, and his efforts to permit it to continue, are not inconsistent with his role
as mediator and do'not compel a finding that he was representing Nassau County in
its role as the neutral builder. If, for example, the Federal conciliation service had
been called in, the conciliator might well have sought to persuade all the parties
that out of consideration for the public importance of the work, they should press
their dispute at some job involving less far-reaching interests.
General Counsel also relies on MacGregor's memorandum of May 8 to the county
executive, which states that "The interests of this department [MacGregor's depart-
ment of labor relation] and the Department of Public Works is directed towards a
noninterruption of work on this project and the availability of the facilities on
May 25th for those county employees who are scheduled to move in at that time."
This, according to General Counsel, shows that MacGregor linked the interest of
his department with that of the contracting department. It could as well be argued
that the memorandum preserved the dichotomy between the two Nassau County
interests involved in this matter (that of preserving industrial peace and of complet-
ing the Nassau County building) by pointing out that two distinct departments of
Nassau County had a common objective. All the memorandum establishes is what
all parties freely concede, namely, that MacGregor was doing his utmost to mediate
the dispute. If the dispute had involved a Federal building and a Federal conciliator,
the latter might well write such a memorandum to his chief and in due course the
matter could even be relayed to the White House. But statements made to such a
conciliator could not be equated to threats to the United States or to the contracting
agency under whose auspices the construction contracts were let.
Finally, General Counsel points out that MacGregor made repeated reports of
his progress in mediating the dispute to Nassau County officials concerned with the
construction project, but that he made no such reports to such Nassau County officials
when mediating other disputes. But, once again, the fact that MacGregor reported
his progress to the neutral building owner falls far short of establishing that threats
made to him constituted threats to that neutral. Whether MacGregor- would or
would not report his progress in a similar case to a private neutral is a matter on
which the record is silent, and which in any event is immaterial. What is controlling
here, in my view, is that both the CWA representatives and MacGregor regarded his
role in this case as that of a typical mediator to whom statements were made in
confidence. In those circumstances, I cannot regard the statements to MacGregor
as a threat to Nassau County. Indeed, a contrary result would seriously impair the
use of such services in cases involving county buildings, and on a larger scale would
impair the usefulness of Federal or State mediation services where Federal or State
buildings were involved, for representatives of labor organizations could not speak
freely to mediators if their statements could be construed as threats to the Govern-
ment agency which was, at one and the same time, a neutral affected by the dispute
and the employer of the mediator.
CONCLUSION OF LAW
Respondent has engaged in no conduct violative of Section 8(b) (4) (ii) (B).
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.