Craft Electric Co.

National Labor Relations Board - Board Decisions

May 17, 1989

293 N.L.R.B. 1074 (N.L.R.B. 1989)

1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Craft Electric Co and Local 136, International
Brotherhood of Electrical Workers , AFL-CIO
Case 10-CA-22811
May 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 22, 1988, Administrative Law Judge
Philip P McLeod issued the attached decision The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief
and limited exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
' We adopt in the absence of exceptions the judge s dismissal of the
independent 8(a)(1) allegations
The Respondent filed limited exceptions to the judge s failure to con
sider its affirmative defense that it had no obligation to use the referral
system because the Union operated it in a discriminatory manner We
find it unnecessary to consider the meet or lack of merit of these excep
tions as we are dismissing the complaint on other grounds
J Howard Trimble Esq for the General Counsel
C V Stelzenmuller Esq (Burr & Forman) of Birming
ham Alabama, for the Respondent
Robert H Stropp Jr Esq of Birmingham Alabama for
the Charging Party
DECISION
STATEMENT OF THE CASE
PHILIP P MCLEOD Administrative Law Judge I
heard this case on 13 and 14 January 1988 in Birming
ham, Alabama The charge which gave rise to the case
was filed on 28 August and amended on 16 October
1987 A complaint and notice of hearing issued on 26
October 1987 which alleges, inter alia that Craft Electric
Co (Respondent) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act) by interrogating
employees concerning their union activities threatening
employees that it would not bargain with the Union if
they chose it to represent them for purposes of collective
bargaining , threatening employees with discharge if they
joined or engaged in activities on behalf of the Union
threatening employees that it would be futile for them to
support the Union threatening employees to withhold
benefits from them if they supported the Union and by
unilaterally discontinuing use of the Union s referralhir
ing hall procedure and subcontracting bargaining unit
work
In its answer to the complaint, Respondent admitted
certain allegations including the filing and serving of the
charge, its status as an employer within the meaning of
the Act, the status of Local 136, International Brother
hood of Electrical Workers, AFL-CIO as a labor organs
zation within the meaning of the Act, and the status of
certain individuals as supervisors and agents of Respond
ent within the meaning of Section 2(11) of the Act Re
spondent denied having engaged in any conduct which
would constitute an unfair labor practice within the
meaning of the Act
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross exam
me witnesses, and to introduce evidence Following the
close of the trial, all parties filed timely briefs with me
which have been duly considered i
On the entire record in this case and from my observa
tion of the witnesses, I make the following
FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS
I JURISDICTION
Craft Electric Co is an Alabama corporation with an
office and place of business in Birmingham, Alabama,
where it is engaged in business as an electrical contrac
tor In the course and conduct of its business operations
Respondent annually purchases materials and supplies
valued in excess of $50 000 from distributors in Alabama
who, in turn purchase and receive materials and supplies
directly from suppliers located outside the State of Ala
bama
Respondent is and has been at all times material an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
II LABOR ORGANIZATION
Local 136 International Brotherhood of Electrical
Workers AFL-CIO is and has been at all times materi
al a labor organization within the meaning of Section
2(5) of the Act
' Prior to the trial the Charging Party served a subpoena on Respond
ent seeking certain payroll information Respondent had that information
available to it but did not have the information at the hearing primarily
because of the volume of material subpoenaed Rather than delay the
hearing I directed Respondent to supply the Charging Party with the
material within a matter of days after the close of the hearing
For reasons which are not altogether clear Respondent sent a copy of
this material to me at the same time it supplied the material to the Charg
ing Party The Charging Party now asks that the record be reopened to
receive this material into the record
I have considered the Charging Party s motion and after reviewing the
material in camera I deny the Charging Party s motion to reopen the
record simply to receive this material The material is contained in two
boxes representing several hundred pages Without a witness to explain
the material it adds little to this proceeding Further my review of this
material indicates that it does not add any substantive evidence to the
record which has already been produced by the parties It appears that
the receipt of this voluminous evidence would only serve to burden the
record Accordingly the Charging Party s motion is denied
293 NLRB No 133
CRAFT ELECTRIC CO 1075
III THE UNFAIR LABOR PRACTICES
A Background
Respondent began operations in 1981 In June of that
year Respondent signed a letter of assent making the
Birmingham chapter of the National Electrical Contrac
tors Association (NECA) its bargaining agent and agree
ing to be bound by the collective bargaining agreement
in effect between the Union and NECA All parties ac
knowledge that this was a prehire contract of the type
permitted by Section 8(f) of the Act This agreement
does not specifically describe the bargaining unit repre
sented by the Union, but hourly wage rates are specified
for apprentice wiremen journeymen wiremen, foremen
area foremen , and general foremen The agreement was
effective by its terms until 31 August 1983
In bargaining for a new contract, NECA and the
Union were unable to reach agreement The collective
bargaining agreement referred to above provided that its
terms would remain in effect even though a 60 day
notice of termination had been given until a final 10 day
notice of termination was given by either party On 22
September 1983 representatives of NECA and the Union
signed a Memorandum which defined a formula for es
tablishing new wage rates for the various contractual job
categories That Memorandum concluded by provid
ing
It is understood and agreed that all other issues in
volving the 1983 negotiations remain unresolved
and that no agreement will be signed until the par
ties have mutually resolved all differences on all
issues to these negotiations This wage formula con
tamed in the present agreement provides for the
manner and way of disposing of wages only with
out strike
On the failure of NECA and the Union to reach agree
ment on the terms of a new contract NECA gave the
Union the required 10 day notice to terminate the con
tract by letter dated 23 November 1983 The collective
bargaining agreement was therefore terminated effective
on or about 3 December 1983 After the collective bar
gaining agreement was terminated negotiations between
NECA and the Union floundered All parties agree that
on a date which is not specifically set forth in the record,
the Birmingham chapter of NECA completely dissolved
On 15 January 1985 Respondent and the Union indi
vidually entered into a written Memorandum which
provided in part
On September 22, 1983, an agreement was reached
concerning the wage package to be paid by employ
ers of Local 136, IBEW This agreement is now
amended in the following sections
The Memorandum' then set forth an hourly wage rate
of $1475 per hour to be paid journeymen wiremen, a
formula for determining the rate to be paid apprentices
and foremen , and various rates to be paid as fringe bene
fits The Memorandum" does not specify a termination
date Counsel for the General Counsel argues that in this
individual Memorandum Respondent agreed to con
tinue to be bound by the terms of the expired collective
bargaining agreement but nowhere does this Memoran
dum make such a provision Moreover I note that the
Memorandum of 22 September incorporated by refer
ence in the Memorandum' of 15 January specifically
provided that all other issues remain unresolved
Between January 1985 and February 1987, various in
dividual contractors including Respondent continued to
recognize the Union as the bargaining agent of at least
certain employees , including journeymen wiremen and
foremen Since the expiration of the NECA agreement,
the Union and NECA members have been engaged in
protracted litigation concerning the operation and admin
istration of the apprenticeship program and on a date
which is unspecified in the record, the parties ceased op
eration of the apprenticeship program altogether There
after, individual employers, with the consent of the
Union, began to use helpers which have not been rep
resented by the Union, are not furnished through the
Union s hiring hall and work at wage rates set unilater
ally by the employer Use of helpers is the real issue un
derlying the alleged unilateral changes, and is discussed
in detail below
B Petition Election and Certification
On 27 April 1987, the Union filed a petition for an
election with the Board seeking to represen* Respond
ent s employees in a bargaining unit including construe
tion and maintenance employees and excluding, inter
alia supervisors as defined in the Act Following an
election held on 15 May 1987, the Union was certified as
the exclusive bargaining representative of employees in
this unit
C The Alleged Violations of Section 8(a)(1)
Kenneth J Adams worked for Respondent from De
cember 1984 to June 1987 Adams testified that on
Monday or Tuesday 11 or 12 May 1987 Respondent
President Rusty Craft told him and employee Greg
Marlin that if it went yes to stay union that he
wouldn t have to negotiate with the hall, he could just sit
across the table from them and just listen and not do
anything about it Although he did not openly display
hostility or bias against Respondent Adams did not im
press me as an altogether disinterested witness Although
Marlin was called as a witness by counsel for the Gener
al Counsel he was not asked about this alleged conversa
tion Adams own testimony makes it abundantly clear
that at the time of the alleged conversation with Craft
Adams was running i e , supervising Respondents job at
the Substance Abuse Treatment Center, where the con
versation is alleged to have taken place On this project,
Adams assigned and directed the work of other employ
ees using his own independent judgment I find that
Adams was a supervisor within the meaning of the Act
Because Marlin testified concerning several incidents and
conversations but was conspicuously not asked about
this conversation by counsel for the General Counsel, I
have serious doubt whether Marlin was actually present
during any such conversation, and I find that he was not
I find that this conversation was solely between Craft
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Adams a statutory supervisor Accordingly even if
Craft made the statement attributed to him by Adams it
does not constitute a violation of Section 8(a)(1) of the
Act
Gary F Hadder worked for Respondent from Decem
ber 1985 until he quit on 20 July 1987 Hadder testified
that on the evening before the Board conducted election,
he received a telephone call from Superintendent James
McCutchen Hadder testified that McCutchen asked him
how he was going to vote Hadder replied, You know
how I in going to vote McCutchen then asked why he
would do that Hadder replied that if he did not vote for
the Union he could be brought before the Union and
fined for working for a nonunion company McCutchen
replied that such a fine would not mean anything be
cause the International Union would reduce the fine
Hadder replied that he did not want to pay a fine of any
kind McCutchen then told Hadder that it really did not
matter how the vote went that Craft would keep
Hadder no matter how the vote went According to
Hadder he and McCutchen talked for a long time but
Hadder could not remember any other specific state
ments made during this conversation
McCutchen admitted having this conversation with
Hadder McCutchen testified that at the time of the con
versation, Hadder was both a union member and the
union shop steward McCutchen denied asking 'Hadder
how he was going to vote McCutchen testified that in
stead, I told him how we wanted him to vote Ac
cording to McCutchen I asked him as a favor to Rusty
(Craft) to vote no, and that no matter how the vote went
that he would have a job with us I find that even
if McCutchen asked Hadder how he was going to vote
the inquiry did not constitute unlawful interrogation
which violates the Act McCutchen testified without
contradiction that at the time of this conversation
Hadder was not only a union member , but the union
steward Hadder was therefore clearly a known union
supporter Such questioning of a known union supporter
is not considered a violation of Section 8(a)(1) of the
Act Moreover it is clear in the circumstances of this
conversation that McCutchen s question assuming it was
asked, was not intended to intimidate and was not the
type of question which likely would intimidate, Hadder
Rather the question was simply a way for McCuthen to
begin the conversation in which he wanted to ask and
did ask, Hadder to vote against the Union Such a re
quest not accompanied by other threats or promises of
benefits, is in itself not unlawful Moreover the context
of this entire conversation between Hadder and McCut
chen shows that McCutchen s statements were neither
intended nor received as intimidating or threatening
Hadder testified that McCutchen stated that Respondent
would continue to employ Hadder no matter which way
the vote went For all these reasons, I find that McCut
chen s conversation with Hadder, even assuming it took
place as Hadder testified, did not violate Section 8(a)(1)
of the Act Rossmore House 269 NLRB 1176 (1984),
Dieckbrader Express 168 NLRB 867, 869 (1967)
Jeffery M Garrett worked for Respondent as a jour
neyman wireman from September 1986 until he was laid
off on 19 June 1987 Garrett testified that within a week
or two after the Board conducted election, he and Super
intendent McCutchen had a conversation concerning the
Union Garrett did not testify whether he or McCutchen
initiated this conversation but according to Garrett
McCutchen stated that if Respondent was his company
He would not have fooled with this local [H]e
wouldn t have nothing to do with the local
Counsel for the General Counsel contends that be
cause McCutchen was second in command at Respond
ent, McCutchen s alleged statement to Garrett constitut
ed an unlawful threat of futility to employees to be rep
resented by the Union I find that this statement even if
made does not rise to a violation of Section 8(a)(1) of
the Act Clearly, Garrett knew that it was not McCut
chen s company, and McCutchen s statement reflects
this McCutchen did not make any unlawful threat that
Respondent was not actually going to deal with the
Union Moreover it must be remembered that for v„ars
it had been an 8(f) relationship between Respondent and
the Union At the time this statement was made, which
was prior to the Board decision in John Deklewa & Sons,
282 NLRB 1375 (1987) Respondent would have been
free to lawfully repudiate both the 8(f) relationship and
any collective bargaining agreement that might have ex
fisted between Respondent and the Union McCutchen s
statement that he would not have fooled with this
local is entirely lawful Even considered in the light
most favorable to counsel for the General Counsel,
McCutchen s alleged remark was simply a hypothetical
opinion with no threat of reprisal, and I find that it did
not in any way violate Section 8(a)(1) of the Act
Ronald W Jones worked for Respondent as a journey
man electrician and an estimator Although it is not clear
how the practice began Jones testified that during the
year preceding the election Respondent allowed Jones
to use Respondent s name to obtain construction permits
for work which Jones was actually doing on his own
During evening hours and on weekends, Jones built
swimming pools, work totally unrelated to Respondent s
business Jones was not qualified to obtain such permits
on his own and as a favor to Jones Respondent allowed
Jones to use its name to obtain permits for such work
Respondent also allowed Jones to charge materials and
supplies needed to do this work, and then to pay Re
spondent for these supplies when Respondent was billed
Jones testified that on the Friday before the Board
conducted election Craft asked Jones to vote no in
the election On the Monday following the election
Jones asked Craft if Jones could use Respondents name
to obtain a construction permit for a particular pool
which Jones wanted to build According to Jones, Craft
asked Jones how he had voted in the election Jones ad
mitted he had voted for the Union Jones testimony is
somewhat inconsistent At one point Jones testified
Craft stated it made Craft angry that he asked Jones to
do something and Jones did not do it, but then Jones
turned right around and asked Craft to do something for
Jones At another point in his testimony Jones testified,
And he didn t answer so I knew he must be upset Ac
cording to that testimony Craft then simply said he
would get Jones the permit Jones admits that Craft in
CRAFT ELECTRIC CO
fact proceeded to get the permit for Jones Jones testi
feed, however, that approximately 2 weeks later when
Jones was in Craft s office, Craft told him If you will
don t ask me to get any more permits for you Jones
testified Craft also told him not to buy any more material
through Craft Electric Counsel for the General Counsel
argues that this later conversation constituted an unlaw
ful threat to withhold benefits from Jones because he
voted in favor of the Union
The record is clear that Respondent's practice of al
lowing Jones to obtain swimming pool construction per
mits and charge materials to Respondent was not related
to the work which Jones performed for Respondent nor
the business in which Respondent itself was engaged
Neither did Respondent benefit in any way from this
work which Jones did on his own time while not em
ployed by Respondent Although I specifically requested
counsel for the General Counsel to provide authority for
his argument that Respondents practice of allowing
Jones to permit such work and charge material to it was
a working condition such that its threatened withdrawal
might be unlawful counsel for the General Counsel of
fered none I find Craft s directive to Jones that he stop
permitting work through Respondent and stop charging
materials to Respondents accounts not to be unlawful
The circumstances under which Craft asked Jones not to
permit any more work using Respondents name and not
to charge materials to Respondents account are some
what ambiguous and it is not altogether clear that
Craft's request resulted from Jones union activity I
note, for example, that immediately after the election
Jones requested and was given permission to obtain a
permit through Respondent although Jones told Craft he
had voted for the Union Second I note that Jones use
of Respondents name to obtain permits and charge mate
rials in no way benefited Respondent either directly or
indirectly Respondents practice was simply the exten
sion of a personal favor which was in no way related to
Jones wages, hours or working conditions Respond
ent s practice in fact exposed it to liability for which it
received no benefit, either direct or indirect Under these
circumstances, I find that Respondents withdrawal of
this favor even if it was precipitated by Jones union ac
tivities not to be unlawful
Shop Steward Gary Hadder testified that after the
Board conducted election There were all kinds of
rumors floating around Hadder testified that on one oc
casion several weeks after the election, McCutchen ap
proached him and asked Hadder if he had heard any
rumors, stating he wanted to clear them up According
to Hadder, he told McCutchen he had heard that every
one who voted in favor of the Union would be gone in 6
weeks According to Hadder McCutchen responded,
No, that s not correct Let s dust say, you know about
10 months According to Hadder, McCutchen stated
that sooner or later Hadder was going to have to make a
decision to either stay with Craft or keep on staying
with the Union McCutchen denies making the statement
as described by Haddet
According to McCutchen, who I credit McCutchen
simply told Hadder that he did not think the Union
could last at the rate they were going Hadder s testimo
1077
ny suggests that McCutchen approached him specifically
to dispel rumors which Hadder himself admits were
rampant yet turned right around in the ensuing conver
sation and exacerbated such rumors Hadder's testimony
is incongruous and improbable Further McCutchen im
pressed me as totally candid and straightforward
McCutchen s version is particularly believable in the cir
cumstances of the Union s relations with employers in
the Birmingham area at this particular time The Union
and NECA had failed to arrive at a new contract
NECA had dissolved and the number of employers with
whom the Union had collective bargaining agreements
had therefore diminished significatly Based not only on
inherent probabilities but also on my observation of the
witnesses I credit McCutchen and find that he stated to
Hadder on this occasion simply that he did not think the
Union could last at the rate they were going McCut
chen s statement is simply an expression of opinion
which does not in any way carry a threat of discharge or
other reprisal toward Respondents employees I find
that McCutchen s statement did not violate Section
8(a)(1) of the Act
Employee Gregory Marlin testified that on some occa
sion between 15 July and 29 July, he had occasion to
speak to McCutchen about the Union apprenticeship pro
gram According to Marlin, McCutchen told me
that I wouldn t ever be a union electrician, that he didn t
think that Craft would be union anymore mainly be
cause he didn t think the Union was going to be around
much longer He said he didn t think it would survive
much longer According to Marlin, McCutchen also
told me there was a NECA school available that I
could go to that they would send me to Counsel for
the General Counsel and the charging party argue that
McCutchen s statements constitute an unlawful threat of
loss of benefit that Marlin would not become a journey
man electrician and an unlawful threat of futility in being
represented by the Union
McCutchen s testimony is similar to Marlin s, but
McCutchen sheds greater light on the context in which
his statements were made and to the extent there is any
difference between the testimony of Marlin and McCut
chen, I credit McCutchen testified Marlin stated that he
was thinking of quitting and going to work for another
employer in order to get into a union apprenticeship pro
gram As is discussed in greater detail below soon after
NECA dissolved the union apprenticeship program dis
solved as well, and for some time immediately prior to
this conversation between McCutchen and Marlin, there
had been no union apprenticeship program McCutchen
testified that in order to dissuade Marlin from quitting
McCutchen told Marlin that he did not think Marlin
would ever have one again McCutchen does not deny
telling Marlin that he would try to get Marlin into an ap
prenticeship or training program available to Respondent
elsewhere I find that McCutchen's statements do not
constitute a threat of loss of benefits or a threat of futili
ty in being represented by Respondent Although they
are not alleged as such I also find that McCutchen s
statements do not constitute an unlawful promise of ben
efit Rather, McCutchen's statements clearly represented
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
simply his own personal opinion that the Union would
never again resurrect its former apprenticeship program
McCutchen s statements were made not to dissuade
Marlin from being represented by the Union but rather
to dissuade Marlin from quitting in order to go to work
elsewhere I find that McCutchen s statements did not
violate Section 8(a)(1) of the Act
D The Alleged Unilateral Changes
At the time of the Board conducted election on 15
May, Respondent was performing electrical work on a
project known as the Shelby County Substance Abuse
Treatment Center On 20 July 1987, Kenneth Adams,
who was supervising the project, and Gary F Hadder, a
journeymen electrician and union steward, quit On 22
July, journeyman Ronald Jones also quit Rather than
calling the union hiring hall for replacements for these
three, Respondent manned the job with employees of an
other contractor, D & G Electrical Contractors The
complaint alleges and counsel for the General Counsel
contends that Respondent unilaterally subcontracted
work to D & G and unilaterally discontinued using the
hiring hall in violation of Section 8(a)(5) of the Act
Respondents contract for electrical work at the Sub
stance Abuse Treatment Center had a 150 day comple
tion date, and work commenced 30 days late due to bad
weather In July, the architect began to push for comple
tion of the job, and Respondent took steps to assign em
ployees overtime necessary to complete the job It was
then that Adams, Hadder, and Jones quit Respondent
argues counsel for the General Counsel does not deny,
and the facts clearly establish that Adams Hadder, and
Jones were all given immediate referrals by the Union to
a job which paid at least $2 more per hour than they
were making from Respondent Respondent acknowl
edges that it did not seek referral of additional journey
men from the Union Craft and McCutchen discussed
whether they needed employees with journeymen skill
level or whether they could do the job with lesser
trained men I credit Craft and McCutchen that they dis
cussed the situation and noted in particular that most of
the difficult wiring had been done The remaining work
was relatively simple , and involved the installation of
light fixtures light switches, and plugs to wiring which
had already been installed by journeymen Craft and
McCutchen concluded that the remaining work could be
done with less skilled and lower paid helpers rather than
journeymen Craft and McCutchen also discussed the
fact that Adams, Hadder, and Jones all received immedi
ate referrals to higher paying jobs and concluded that
they probably could not get any help from the union
hall For all these reasons Respondent contacted the
owner of D & G Electrical Contractors, a former
member of NECA with whom Respondent maintained
friendly relations and who Respondent knew to be seek
ing work
It is uncontroverted that Respondent had subcontract
ed work on special occasions in the past and subcon
tracting was permitted pursuant to the expired collective
bargaining agreement between NECA and the Union
provided it was to a person firm or corporation which
recognizes the Union as the collective bargaining repre
sentative of its employees 2
Respondent did not enter a formula subcontract with
D & G D & G suggested sending needed employees
to help Respondent who would remain on the payroll of
D & G to simplify maintaining health insurance cover
age D & G agreed to bill Respondent at the actual cost
of wages, payroll taxes and insurance
Pursuant to this arrangement, D & G sent Respondent
three helpers These employees, however, worked under
the direct supervision and control of McCutchen Re
spondent kept their time, and paid D & G on purchase
orders and invoices Thereafter, until the completion of
the job, McCutchen was the only individual working as
a journeyman full time Other journeymen employed by
Respondent worked on the job but only occasionally
Any work which was more complicated than installing
fixtures switches, and plugs was performed by McCut
chen, assisted as possible by helpers
During the week ending 22 July 1987, D & G sup
plied Respondent with three helpers During the weeks
ending 29 July and 5 August, it supplied Respondent
with five helpers During the week ending 12 August
Respondent hired two of the five helpers which previ
ously had been supplied by D & G, and it ceased using
the other three Work was complete 3 weeks later during
the week ending 9 September
E Past Practice of Using Helpers
As has been referred to above after the collective bar
gaining agreement between NECA and the Union ex
pired the parties were unable to reach agreement on the
terms of a new contract Thereafter NECA dissolved
The Union and individual NECA members became in
volved in protracted litigation concerning the operation
and administration of the apprenticeship program As a
result the apprenticeship program ceased as well One of
the main areas of concern to employer members of
NECA even before the expiration of the collective bar
gaining agreement, and continuing ever since has been
the fact that the contractual wage rate was $14 76 per
hour while nonunion employers in the Birmingham area
pay their journeyman in the neighborhood of $8 to $10
per hour NECA employers therefore found it difficult
to compete in bidding on jobs against nonunion employ
ers In order to recapture the commencal market which
had been largely lost to nonunion competition the Union
began making informal, oral concessions to many em
ployers Although the Union continued to get the $14 76
per hour contractual rate on captive jobs where the
owner would not permit nonunion competition, all com
petitive jobs were given the informal designation target
jobs and concessions were given by the Union to
reduce the journeyman rate, first to $12 17 per hour
sometime in 1983 and then to $12 per hour in 1984 This
2 Prior to NECA dissolving D & G was a member of NECA After
NECA dissolved the Union demanded recognition from D & G which
responded by agreeing to sit down and pursue negotiations with the
Union Following this response however the Union did not pursue ne
gotiations with D & G and there was no collective bargaining agreement
in effect between D & G and the Union in July 1987
CRAFT ELECTRIC CO
wage reduction was never reduced to writing between
the parties Rather, in the space provided for the rate of
pay on referral slips from the union hiring hall, the
Union simply entered the reduced wage rates It is quite
clear from Union Business Manager Bill Roberson s own
testimony that after he became assistant business agent in
mid 1984, Roberson began to enter into so many infor
trial verbal arrangements with employers that they
became commonly known as Bill s Deals Roberson
himself had no trouble recognizing the term when ques
tioned about it on cross examination
Of particular significance to this case are the informal
arrangements which the Union made with NECA em
ployers concerning the use of Helpers `Helpers is a
classification which is not even mentioned in the most
recent collective bargaining agreement between the
Union and NECA Rather, that agreement provided for
only two nonsupervisory job classifications, journeymen
wiremen and apprentice wiremen Apprentice wiremen
were paid a percentage of the journeymen rate ranging
from 45 to 80 percent, depending on the individuals
tenure The number of apprentices which an employer
was permitted to hire depended on the number of jour
neymen employed If the employer had one to three
journeymen, he was permitted only one apprentice If
the employer employed four to six journeymen, he was
permitted two apprentices and so forth
Union Business Manager Roberson testified that help
ers were used in place of apprentices beginning sometime
in 1985 when the apprenticeship program was no longer
functioning Roberson also testified that informal ar
rangements were made with employers concerning the
use of helpers whereby the employer was first to seek an
informal referral of helpers from the union hiring hall If
none were available, the employer was then free to hire
helpers off the street, but was still required to maintain
the apprentice journeymen ratio I credit no part of this
testimony by Roberson
Respondents evidence is overwhelming and altogether
credible that the use of helpers was agreed to and began
as early as 1983 when Roberson himself was employed
by Respondent in a supervisory position As has already
been referred to above, helpers are nonunion employees
whose wage rates are set by the employer and who do
not receive contractual benefits The record is clear that
the use of helpers began not only in part because of a
shortage of apprentices but also and even primarily to
allow NECA employers to reduce overall payroll ex
penses and thereby be in a position to bid and compete
against nonunion employers After Respondents practice
of hiring nonunion helpers began in 1983 under Rober
son s own supervision, Roberson even had cone union
members volunteer' to work for Respondent without
pay in order to allow Respondent to compete effectively
in bidding again nonunion employers
I credit Craft that there has never been any agreement
on hiring helpers through the union hiring hall and that
Respondent has never done so The record evidence is
quite clear that Respondent has employed helpers and
hired them directly without use of the union hiring hall
ever since December 1983 It is also clear that Respond
ent has employed these helpers without regard to the ap
1079
prentice journeymen ratio set forth in the expired collec
tive bargaining agreement between the Union and
NECA It is undisputed that Respondent has had about
100 jobs in the past 3 years All but one of these was a
target job in which Respondent paid journeymen less
than the contractual wage rate and freely used nonunion
helpers who Respondent hired at its unilaterally estab
lashed rate of pay Although the Union claimed there
was some understanding that the helpers were to be
paid between $4 and $5 an hour the Union was aware
that Respondent gave helpers various raises and paid
some of them more than $5 per hour Roberson admits in
1986 or earlier Further, Respondents records reflect
that during 1984 through 1986 it was common for Re
spondent to have twice and even three times as many
helpers as journeymen These records reflect that Re
spondent never maintained the ratio of helpers to jour
neymen as was provided for apprentice to journeymen in
the expired collective bargaining agreement
The record is quite clear that the Union entered into
similar arrangements with other employers Richard
Reeve, owner of Reeve Electric, testified credibly that
he was continuing to pay journeymen the wage rate pro
vided for in the expired collective bargaining agreement
long after it was common acknowledge that the Union
was granting concessions on wages and the use of help
ers to competitors Reeve testified credibly that James
Mullinax then a union business agent , came to Reeve s
shop in February 1985 and agreed to reduce the journey
men wage rate to $12 per hour and to allow Reeve after
exhausting available apprentices, to hire as many helpers
off the street as Reeve pleased Thereafter Reeve fre
quently hired nonunion helpers Reeve testified credibly
that it was not uncommon to have more helpers than
journeymen
The record is equally clear that journeymen appren
tice, and helpers frequently did the same type of work
Respondent testified credibly and without contradiction
that for years, helpers and journeymen have done the
same tasks The expired collective bargaining agreement
between the Union and NECA provided that all on site
electrical work had to be done by journeymen and ap
prentices The only limitation placed on apprentices was
in terms of supervision rather than the type of work per
formed When helpers began to be hired in 1983 they
immediately began doing work which was within the
range of journeymen work as defined by the collective
bargaining agreement This is entirely consistent with the
fact that part of the reason for hiring nonunion helpers in
the first place was to reduce labor costs I credit Re
spondent and find that although journeymen might need
more supervision, the fact remains that journeymen ap
prentices, and helpers commonly performed the same
tasks
F Analysis and Conclusions Regarding Alleged
Unilateral Changes
Until the Union filed its petition on 27 April 1987 for
an election among Respondents employees the bargain
ing relationship between the Union and Respondent was
one founded solely on Section 8(f) of the Act Since the
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board Decision in John Deklewa & Sons supra it is clear
that once the collective bargaining agreement between
the Union and NECA expired Respondent was free to
unilaterally abrogate or alter terms and conditions of em
ployment which had been set by that agreement My
reading of John Deklewa & Sons, therefore leads me to
the conclusion that so long as the practice of hiring help
ers was established either bilaterally during the term of
the collective bargaining agreement between NECA and
the Union or unilaterally after the agreement expired but
prior to the Union filing its petition for an election on 27
April Respondent did not engage in an unfair labor
practice by continuing that practice after the petition
was filed
The record establishes that the Union long ago aban
doned any requirement in the expired collective bargain
ing agreement with NECA concerning Respondent s
need to use journeymen electricians to perform specific
kinds of work Beginning in 1983, and continuing there
after, the Union consented to, and perhaps even initiated,
the hiring of nonunion lower paid helpers in order to
reduce labor costs With the Union s consent, these non
union helpers were hired by Respondent directly and
without referral from the Union, at wage rates estab
lashed unilaterally by Respondent
Of particular significance to this case is the fact that
ever since 1983, Respondent has employed such helpers
without regard to the apprentice journeyman ratio set
forth in the expired collective bargaining agreement be
tween the Union and NECA Simply stated there is
nothing that restricts the number of helpers which Re
spondent is permitted to use
The main point of counsel for the General Counsel s
and Charging Party s argument is that prior to the week
of 22 July 1987, Respondent had never hired so many
helpers as it had on its payroll from the week of 22 July
to the week ending 9 September However, because
there is nothing which in any way restricts the number
of helpers Respondent was and is permitted to use, it can
hardly be said Respondent engaged in any unilateral
change simply by hiring more helpers than it had hired
before When three union journeymen electricians quit
during the week of 22 July, Respondent considered
whether it needed employees with journeyman skills or
whether it could perform the remaining work with lesser
trained men Respondent noted that the difficult wiring
had already been done The remaining work was rela
Lively simple Respondent concluded that the remaining
work could be done with less skilled and lower paid
helpers
There is nothing in this case which suggests that Re
spondent hired helpers in order to discriminate against
union members Indeed the complaint does not allege an
unlawful motive on Respondents part, or that Respond
ent violated Section 8(a)(3) of the Act The complaint
simply alleges an unlawful unilateral change on Respond
ent s part by subcontracting work and by not hiring em
ployees through the union hiring hall The evidence es
tablishes that in fact Respondent did not subcontract
work at all Although employees that were brought in to
do the work technically remained on the payroll of
D & G, they were in reality employees of Respondent
working under Respondents direct supervision and con
trol The focus of the General Counsels case must there
fore be on the fact that Respondent hired helpers to re
place the employees who quit rather than hire journey
men electricians through the Union s hiring hall The
evidence is clear, however, that ever since 1983 the
Union has acquiesced in Respondent hiring nonunion
helpers
When three union journeymen electricians quit during
the week of 22 July, Respondent considered its staffing
needs, the skill level of needed employees and the likely
availability of union journeymen and nonunion helpers
In choosing to hire nonunion helpers Respondent acted
in a reasonable business manner without any showing or
claim by counsel for the General Counsel of an unlawful
motive The evidence establishes Respondent reasonably
concluded that nonunion helpers were capable of per
forming the relatively simply work Respondent needed
to have completed Because there is nothing that restricts
the number of helpers Respondent was and is permitted
to use, it can hardly be said that Respondent engaged in
any unilateral change simply by hiring more helpers than
it had hired before Accordingly I find that Respondent
did not unilaterally subcontract bargaining unit work nor
unilaterally discontinue utilization of the Union s referral
hiring hall procedure as alleged in the complaint, and I
shall dismiss those allegations in the complaint 3
CONCLUSIONS OF LAW
1 Respondent, Craft Electric Co, is an employer en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Local 136, International Brotherhood of Electrical
Workers, AFL-CIO is, and has been at all times maters
al, a labor organization within the meaning of Section
2(5) of the Act
3 Respondent did not unlawfully interrogate employ
ees concerning their union activities threaten employees
that it would not bargain with the Union if they choose
it to represent them for purposes of collective bargain
ing threaten employees with discharge if they joined or
engaged in activities on behalf of the Union, threaten
employees that it would be futile for them to support the
Union or threaten employees to withhold benefits from
them if they supported the Union
4 Respondent did not unilaterally subcontract bargain
ing unit work nor unilaterally discontinue use of the
Union s referral hiring hall procedure in violation of Sec
tion 8(a)(5) of the Act
5 Counsel for the General Counsel has failed to estab
lish that Respondent engaged in any unfair labor practice
in violation of Section 8(a)(1) or (5) of the Act as alleged
in the complaint
s Because I find that Respondent did not act unlawfully in hiring non
union helpers rather than hiring journeymen electricians through the
union hiring hall I also find that by McCutchen telling employee Marlin
on or about 25 July that Respondent was not going to call the hall to
hire journeymen Respondent did not violate Sec 8(a)(1) of the Act as
alleged in the complaint
CRAFT ELECTRIC CO 108 1
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed4
ORDER
It is recommended that the complaint be dismissed in
its entirety
4 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all put
Order shall as provided in Sec 102 48 of the Rules be adopted by the poses