Electric Workers Local 309

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 889 (N.L.R.B. 1978)

ELECTRICAI WORKERS. LOCAL 309
International Brotherhood of Electrical Workers, Lo-
cal Union No. 309, AFL-CIO (Rite Electric Com-
pany) and Raymond A. Hoffman. Case 14-CB-3250
September 29, 1978
PROPOSED DECISION AND ORDER
BY CtlAIRMAN FANNING( ANI) MEMBIERS JENKINS
AN) TRUIESDALL
On the basis of a charge filed by Raymond A. Hoff-
man, on May 21, 1976. and amended on July 8. 1976,
the General Counsel for the National Labor Rela-
tions Board. by the Acting Regional Director for Re-
gion 14, issued a complaint against International
Brotherhood of Electrical Workers, Local Union No.
309, hereinafter the Respondent, on July 13. 1976.
The complaint alleges that the Respondent violated
Section 8(b)(1)(A) of the Act when its business man-
ager, Robert Faust, and assistant business manager,
Lynn Turpin, threatened the Charging Party with
physical harm if he did not participate in a strike
against his employer. Rite Electric Company. and
when its picket captain. David Sorge, similarly
threatened the Charging Party if he did not perform
picket duty. The complaint further alleges that, after
conclusion of the strike. the Respondent violated Sec-
tion 8(b)(1)(A) and (2) by failing, for discriminatory
reasons, to refer the Charging Party back to Rite
Electric Company. On July 16, 1976, the Respondent
filed an answer to the complaint in which it admitted
certain allegations but denied others, including the
commission of any unfair labor practice.
On September 13, 1976, this case was heard before
Administrative Law Judge WVellington A. Gillis. Re-
grettably. Administrative Law Judge Gillis died be-
fore he could issue his decision. Thereafter, upon
agreement of the parties. this case was transferred to
the Board, pursuant to Section 102.36 of the Board's
Rules and Regulations, for the issuance of a proposed
Decision and Order on the record as made.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the record, including the
briefs submitted by the General Counsel and the Re-
spondent to the late Administrative law Judge Gillis,
and makes the following findings of fact and conclu-
sions of law.
1. li t BI 'SINiSS O()F I l1i I M I()YliR
Rite Electric Compan., herein Rite, is an electrical
contracting firm with a principal place of business in
Granite City, Illinois. 'he complaint alleges that in
the year preceding December 31. 1975, a representa-
tive period. Rite performed services valued in excess
of $50,000, of which services valued in excess of
$50,000 were performed in, and for various enter-
prises located in, States other than the State of Illi-
nois. At the hearing, the Respondent stipulated that
Rite is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. We there-
fore find that Rite is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. IHE LABOR OR(iANIZAII()N IN\\()I \ I)
International Brotherhood of Electrical W orkers,
Local Union No. 309, AFL CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. IlHE t'NFAIR I.AB()R PRA ( ii( IS
A. Ficrtx
Rite is a member of the National Electrical ('on-
tractors Association, herein NECA, as well as the
American Line Builders Chapter of the NECA.
through which it has been signatory to two separate
collective-bargaining agreements with the Respon-
dent. One agreement is termed the "Wiremen's"
agreement and generally covers electrical work per-
formed inside a building. The other, termed the
"'Linemen's" agreement, generally covers electrical
work performed outdoors. Both agreements contain
an exclusive hiring hall provision through which Rite
obtains all journeyman wiremen and linemen.
Raymond Hoffman. the Charging Party and a
member of the Respondent since 1963, was classified
as a lineman. His last employment with Rite began
on May 22. 1972. Although he was classified as a
lineman and referred through the Respondent's hiring
hall under the Linemen's agreement, Hoffman. as did
other linemen working for Rite, performed work cov-
ered by the Wiremen's agreement as well.
In November 1975 the Linemen's agreement ex-
pired and a strike of the Respondent's linemen mem-
bers commenced on December I 1, 1975.1 At that time
Hoffman, who was installing traffic signals for Rite,2
continued to report for work.
On December 12. the Respondent's Business \Man-
ager Robert Faust and Assistant Business Manager
Lynn Turpin visited Hoffman at his jobsite. a traffic
itersection in Belleville. Illinois. Faust asked to
I All dates reier to 1975 unless otherwise indicated
: Because oT the skills required. such work, .lthough perftrnmed outdnoor.
was covered h, the "Wlrelen's" agreement
238 NLRB No. 122
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speak to Hoffman alone, but Hoffman requested that
Joe Garrett, an apprentice lineman with whom he
was working, witness the conversation. Faust, how-
ever, insisted, and the two men retreated 10 to 12 feet
from Turpin and Garrett. Hoffman testified that
Faust informed him of the strike, whereupon he re-
plied he was unaware of any strike? was not working
under the "Linemen's" agreement, and preferred to
remain working. He also testified that he told Faust
he would gladly picket. According to Hoffman, Faust
responded that Hoffman would be "rapped" if he did
not leave the jobsite. Hoffman testified that he replied
that he was happy where he was, but wanted to "get
along," and inquired whether it would be all right if
he just stayed home until the strike was over. To this
request Faust allegedly replied,
By God, you're going to quit. I don't give a
damn who you are or what the hell you think.
I'm running this damn Local and I'm going to
see to it that you are going to quit and you're
going to the hall and you're going to sign a refer-
ral card or you're going to get your damn head
beat in.
Faust denied threatening Hoffman. He testified
that he and Turpin visited the job after learning that
Hoffman was still working, where he informed Hoff-
man of the strike and the strike rules which had been
adopted. According to Faust, he explained to Hoff-
man that, although Hoffman was performing wire-
men's work, he was still a lineman and therefore re-
quired to strike. Faust further testified that at the end
of their talk Hoffman introduced him to a state in-
spector and the three men had a short, friendly con-
versation.
Neither Turpin nor Garrett, who were standing 10
to 12 feet away, heard any part of Hoffman's and
Faust's conversation. Turpin testified to saying hello
to Hoffman and to the fact that Hoffman and Faust
"shot the bull" with the state inspector.4 Garrett gave
similar testimony, adding that Hoffman did not men-
tion any threat after Faust and Turpin left.
Hoffman worked the remainder of December 12,
but did not return thereafter, testifying that his reason
therefore was Faust's alleged threat. However, he also
testified that on December 12 his wife received a seri-
ous injury which required that he have a car available
at their home in the event the need arose to take her
to the hospital. Later in December Hoffman was con-
tacted by Mark Foster, one of the Respondent's
picket captains, who requested him to picket. Accord-
ing to Hoffman, he explained to Foster that because
of his wife's condition he could picket only on the
3 At the hearing lHoffman admitted receiving notices )t the linemen's
strike meetings.
4 Hoffman did not testify to any alleged threat hi Turpin
days he could arrange to have a car available, and
that Foster agreed.
The record reveals that Hoffman walked picket on
December 24 and January 6, 1976. He signed a line-
man's referral card on December 29 and thereby ter-
minated his employment with Rite.
On January 29, 1976, Hoffman allegedly received a
phone call from David Sorge, another of the Respon-
dent's picket captains, who requested that he again
picket. According to Hoffman, he informed Sorge
that he could only picket when he could arrange to
have a car available for his wife, whereupon Sorge
allegedly stated that such an arrangement was unsat-
isfactory and that if Hoffman did not picket someone
would get his "damn head beat in."
Sorge specifically denied threatening Hoffman. He
admitted calling Hoffman to ask him to picket, but
placed the call in late December or early January.
The day following Sorge's alleged threat. Hoffman
visited the Respondent's offices and requested a "par-
ticipating withdrawal card" from Faust. According to
Hoffman, he informed Faust that he no longer
wanted to be associated with the Respondent and was
seeking a janitorial job. The card, which was issued
shortly thereafter, relieved Hoffman of his duties as a
member of the Respondent.' On February 6. Hoff-
man began advertising in local newspapers as an elec-
trician.
On March 31, 1976, tentative agreement was
reached on a new Linemen's agreement. In addition,
the parties on the last day of negotiations entered into
a verbal agreement regarding the referral of striking
employees to the positions they had held before the
strike. Wesley Lomax, one of the negotiators for the
NECA, testified that this agreement was that the
striking employees would be referred to their former
jobs "insofar as practical and possible," since some
jobs had been completed during the strike and some
"travelers" were no longer in the area. However, Lo-
max also testified that the agreement was general, and
that no discussion took place on how it was to be put
into effect.
The striking linemen returned to work on April 5,
1976. At that time Hoffman was neither referred to
nor requested for referral by Rite. The Respondent
did, however, refer three linemen to Rite between
April 5 and 19, 1976, two of whom were requested by
name. Unlike Hoffman, who had failed to reregister
on the Respondent's out-of-work list every 30 days,
as required under the referral system, all three line-
men had current referral cards on file. The Respon-
There is also evidence. corroborated by Hoffman, that earlier in January
Hoffman discussed with George Corbin. an assistant business manager of the
Respondent, his intent to enter the electrical contracting business by himself
and the possibility of signing a contract with the Respondent
890
ELECTRICAL WORKERS, LOCAL 309
dent also did not refer James Stoker, a former Rite
lineman employee who failed to reregister.
B. Analvsis and Conclusions
The General Counsel contends that Faust illegally
threatened Hoffman on December 12, 1975, that
Sorge illegally threatened Hoffman on January 29,
1976, and that the Respondent refused, for discrimi-
natory reasons, to refer Hoffman to Rite at the end of
the strike. The Respondent contends that Hoffman
was not threatened by either Faust or Sorge and that
its failure to refer Hoffman after the strike was due to
his failure to maintain a current referral card on file.
A finding of whether the two threats occurred as
alleged turns solely on whether Faust's and Sorge's
denials thereof are to be rejected in favor of Hoff-
man's version of his conversation with each man.
However, the record clearly establishes that the tenor
of Hoffman's and Faust's December 12 conversation
was such that Turpin and Garrett, who were standing
a mere 10 to 12 feet away, neither heard nor were
distracted by it. It is difficult to accept that a threat of
the type described by Hoffman would have been
voiced in such an atmosphere, especially in light of
the facts that, immediately following their discussion,
Faust and Hoffman engaged in a friendly conversa-
tion with a state inspector and Hoffman did not men-
tion any threat to his fellow workers.6 Furthermore,
although Hoffman testified that Faust's alleged threat
was the reason he failed to report for work on Decem-
ber 13 and thereafter, the threat did not prevent him
from completing work on December 12.
Hoffman's later explanation, that he remained at
home with his wife to care for her and have a car
available, is a sufficient independent reason for his
failure to return to work, and his attempt to ascribe
the alleged threat as the reason therefore detracts
from his credibility.7 We therefore reject Hoffman's
version of Faust's statements and find that Faust did
not in fact threaten Hoffman on December 12.8
t We dil not assume, as the General Counsel urges, that Faust's insistence
on speaking to Hoffman privately indicates Faust's intent to threaten Hoff-
man. Hoffmln testified that Faust began their conversation by merely in-
forming him of the strike and thereby corroborating Faust's asserted purpose
for visiting the jobsite Before speaking with Hoffman, Faust had no reason
to anticipate either Hoffman's reluctance to participate in the strike or the
need to threaten him, and it is not even alleged that the Respondent threat-
ened an, other employee during the strike
? It is also entirely plausible that Hoffman failed to return to work after
December 12. and signed a referral card. because he simply intended to
honor the strike or sought to a.oild legitimate union discipline
I The General C ounsel contends that Faust's denial of the alleged threat is
unworthy of belief since the Board, in nin rnational Brrotherhod ot( Electrical
Wlforkers, Local 309, A4F (10 (I.C (R Dron E/le trical (Co Inc , 212
Nl RB 409 (1974), found that Faust had cilnimitted threats and assaults in
violation ot Sec. 8hI )A) and, in doing so. rejected his testimony to the
contrary In this case, Faust's and not Hoffman's version of their conversa-
tion is more consistent with both its tenor and Hloffman's subsequent action.
Our conclusions regarding Faust's credibility in the earlier case does not bar
our accepting his testimony here
Absent Hoffman's testimony regarding the alleged
threats by Faust and Sorge, there is no evidence in
the record of any threats, violence, or other illegal
conduct during the linemen's strike. Absent that same
testimony, the record is also devoid of any evidence
that the Respondent's officials, in their dealings with
Hoffman, have ever conducted themselves in any-
thing other than a legal manner. Hoffman, in fact.
testified that Mark Foster, the picket captain who ini-
tially requested him to picket, readily accepted Hoff-
man's explanation that his need to provide a car tfor
his wife restricted his availability for picket duty.
Therefore, in light of our conclusions regarding the
credibility of Hoffman's testimony about the alleged
threat by Faust, we also reject his version of his con-
versation with Sorge and find that a preponderance of
the evidence does not establish that Sorge threatened
Hoffman.0
Finally, we conclude that the General Counsel has
not established that the Respondent discriminatorily
failed to refer Hoffman to Rite at the conclusion of
the strike. Rite did not request that Hoffman be re-
ferred, and the three linemen referred to Rite at that
time had current referral cards on file. Hoffman. on
the other hand, had failed to reregister for referral,
had requested and received a "participating with-
drawal card" from the Respondent, and had entered
the electrical contracting field on his own. Further-
more, the Respondent likewise did not refer another
striking Rite employee who had failed to reregister
for referral. Since the record is devoid of ans evidence
that, in discussing poststrike referrals, the parties in-
tended that such referrals would take place apart
from normal hiring hall procedures, the preponder-
ance of evidence does not establish that the Respon-
dent's failure to refer Hoffman at the end of the strike
was based on discriminatory rather than legitimate
reasons. Accordingly, we shall dismiss the complaint
in its entirety.
CONCL.USIONS OF LASW
1. Rite Electric Company, Granite City. Illinois, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondent, International Brotherhood of
Electrical Workers, Local Union No. 309, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent has not, as alleged in the com-
plaint, engaged in any unfair labor practices in viola-
tion of Section 8(b)( 1)(A) or (2) of the Act.
I In light of this finding there is noi need to pass on the Respondent's
liability for Sorge's statements.
891
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER in Washington. D.C.. eight copies of a statement setting forth exceptions to
this proposed Decision and Order, together with seven copies of' any brief in
support of its exceptions and, immediately upon filing, shall serve copies on
It is hereby ordered that the complaint herein be. each of the other artiesIn the event no exceptions are filed as provided by Sec. 10246 of the Rules
and it hereby is dismissed in its entirety'. and Regulations of the National L abor Relations Board. the Board's pro-
posed findings. conclusions, and Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, become its findings. conclusions, and
"' Any party may, within 20 days from the date hereof, file with the Board Order. and all objections thereto shall be deemed waived for all purposes.