Electrical Wkrs. Local 71

National Labor Relations Board - Board Decisions

Jan 19, 1971

187 N.L.R.B. 899 (N.L.R.B. 1971)

ELECTRICAL WKRS . LOCAL 71
International Brotherhood of Electrical Workers,
Local Union No. 71, AFL-CIO (The
Wagner-Smith Company) and Morris Chambers
and Ruben M. Chambers , Jr. Cases 9-CB-1752-1
and 9-CB-1752-2
January 19, 1971
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On August 24, 1970, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices and recommended that the
complaint be dismissed as to them. Thereafter, the
Respondent and the General Counsel filed limited
exceptions to the Trial Examiner's Decision, and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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 Trial Examiner and hereby orders that
the Respondent , International Brotherhood of Elec-
trical Workers , Local Union No. 71, AFL-CIO,
Dayton, Ohio , its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order.'
i In footnote 21 of the Trial Examiner ' s Decision , substitute "20" for
"10" days Substitute the attached notice for the notice attached to the
Trial Examiner ' s Decision marked "Appendix "
APPENDIX
899
NOTICE TO
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL notify The Wagner-Smith Company
that we do not object to the employment of Morris
Chambers as a foreman , working foreman, or
subforeman , or otherwise in charge , of a crew.
WE WILL make Morris Chambers whole for any
loss of earnings he may have suffered as a result of
our causing The Wagner -Smith Company not to
permit him to be in charge of a crew.
WE WILL NOT cause The Wagner-Smith Compa-
ny to refuse to place Morris Chambers or any
other employee in charge of a crew , or otherwise to
discriminate against employees in violation of
Section 8(a)(3) of the Act , because they or
members of their families file intraunion charges
against our officers or officials , or because they
engage in other concerted activities.
WE WILL NOT in any like or related manner
restrain or coerce employees of The Wagner-Smith
Company in the exercise of rights guaranteed them
in Section 7 of the National Labor Relations Act.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL UNION No. 71,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 2407, Federal Office Building, 500
Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon charges filed by
Morris Chambers ("Moms") in Case 9-CB-1752-1, and by
Ruben M. Chambers, Jr. ("Ruben"), in Case 9-CB-1752-2,
on February 6 and 26, 1970, respectively, and served on
February 10 and 26, 1970, respectively, on International
187 NLRB No. 119
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, Local Union No. 71,
AFL-CIO ("Respondent"), the General Counsel of the
National Labor Relations Board ("the Board"), through the
Regional Director for Region 9, on March 29, 1970, issued
a complaint and notice of hearing against Respondent in
Case 9-CB-1752-1, and on April 2, 1970, issued a
complaint and notice of hearing against Respondent in
Case 9-CB-1752-2. On April 2, 1970, the Regional
Director issued an order consolidating cases and notice of
hearing in both cases. The Complaints, the Order
Consolidating Cases, and the Notices of Hearing were
served upon Respondent and upon The Wagner-Smith
Company ("Wagner-Smith" and, at times, "the Compa-
ny"). Respondent filed its answer to both complaints in
which it denied all allegations of unfair labor practices. The
hearing was held at Dayton, Ohio, on June 10 and 11, 1970,
before the Trial Examiner named above. The General
Counsel, Respondent, and Wagner-Smith were represented
at the hearing by their respective counsel, the Charging
Parties by themselves. The General Counsel and Respon-
dent have submitted briefs to the Trial Examiner.
Upon the entire record and from his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF WAGNER-SMITH
The Wagner-Smith Company is an Ohio corporation
having its principal place of business in Dayton, Ohio,
where it is engaged as an electrical contractor in the
building and construction industry. In the course and
conduct of its operations Wagner-Smith annually purchas-
es goods and materials valued at in excess of $50,000 which
are transported to its said place of business or to various
construction sites located in the State of Ohio directly from
sources located in States of the United States other than the
State of Ohio. It is found that Wagner-Smith is an employer
engaged primarily in the construction industry and engaged
in commerce within the meaning of Sections 2(2), (6), and
(7) of the National Labor Relations Act, as amended ("the
Act").
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union No. 71, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The issues litigated at the hearing were:
(a) Whether Respondent refused to "clear" Ruben
Chambers for an available Job with Wagner-Smith because
of economic considerations affecting the operation of its
exclusive hiring hall or because he and/or members of his
i As found below, the job was that of working foreman, although it was
referred to as foreman , and the Trial Examiner has at times followed that
usage . Respondent has made no contention that the job was supervisory In
his brief the General Counsel apparently contends that Respondent's veto
family preferred intraunion charges against officers and
officials of Respondent; and
(b) Whether Respondent vetoed Morris Chambers'
appointment as working foreman because Respondent
considered him unqualified for the job under the terms of
the prevailing contract or policy, or because of the filing of
said charges.'
Respondent was one of a number of locals of the
International Brotherhood of Electrical Workers,
AFL-CIO ("the IBEW International" and, at times, "the
IBEW"), which, along with the IBEW International, were
under contract with American Line Builders Chapter of the
National Electrical Contractors Association ("NECA").
The contract covered outside electrical construction work
for electrical utilities and rural electrification projects. On
May 6, 1969, Billy Chambers, a brother of the two Charging
Parties, was electrocuted in the course of performing work
for Day and Zimmerman, an employer party to the NECA
contract. The three Chambers brothers, as well as their
father, were all members of Respondent.
B. The Intraunion Charges-Respondent's Animus
1. On June 5, 1969, the two surviving Chambers
brothers sent a letter, drafted by their attorney, to
Respondent's executive board. The letter listed four
respects in which Randy Woods and T. J. Evans, foreman
and superintendent, respectively, for Day and Zimmerman,
had failed to comply with the NECA contract, and charged
that those two supervisors, both members of Respondent,
were therefore guilty of 3 of the 23 offenses listed in article
XXVII of the IBEW constitution. The letter related the
various contract violations to the accident involving "Billy
Franklin Chambers on the 6th day of May 1969 when he
received a lethal dosage of electrical shock while working
from a pole on a 3-phase circuit." It also stated that certain
other designated contractual provisions relating to supervi-
sion and safety were disregarded, not only in connection
with that accident, "but also as a matter of policy for crews
that are employed by Day and Zimmerman." The letter
closed as follows:
It is, therefore, respectfully requested that the "E"
Board review the above violations of the Constitution
and contract, and the failure on behalf of the Union to
institute proper grievance proceedings resulting from
the flagrant disregard of the lives of the union members
while employed in this dangerous occupation.
[emphasis supplied.]
In listing the three offenses described in article XXVII the
letter quoted the language of the IBEW constitution
verbatim and in full. However, it referred to the quoted
provisions as "Sections 3, 4 and 10 of Article XXVII,"
whereas in fact they were Subsections 3, 4 and 10 of Section
1 of that Article. On July 14, 1969, the Executive Board
was violative of the Act on the assumption that the job was supervisory
However, Respondent at no time raised that issue and the record contains
no evidence establishing that the job was supervisory within the meaning of
the Act
ELECTRICAL WKRS LOCAL 71 901
summarily dismissed the charges without a trial on the
ground that "the charges were not properly stated' 2 The
letter pointed out, "Article XXVII, Section (3)(4)(10) of the
Constitution has to do with the way charges are to be filed
Also, you failed to furnish the dates and places where
the violations occurred" as required by the constitution
2 On August 6, 1969, Ruben and Morris wrote a letter3
to District 4 of the IBEW, which included Respondent,
about their brother Billy's death and the dismissed charges,
complaining, "it took over thirty days for them to decide to
throw it out because `time and place not mentioned ' "
They stated that they believed that Woodell, whose
assistance they had sought, had failed to act in his capacity
of business manager as required by the IBEW constitution
The letter further alleged that Woodell had improperly
issued 'a journeyman's ticket" to Billy Chambers when he
had not passed the required journeyman's examination and
was not qualified, and it stated, "we believe there should be
a hearing in this matter " On August 15 the IBEW vice
president for District 4, Blankenship, notified Ruben by
letter that the matter was being investigated Woodell
admitted having been aware of the letter to Blankenship
3 Meanwhile, at a membership meeting of Respondent
held on July 2, 1969, when accidents to employees were
under discussion, Ruben remarked to Raymond Florian, an
assistant business manager of Respondent, ` if some damn
body don't do something about it, there is going to be more
guys get hurt and killed " As testified by Ruben, "it led to
certain things," and Florian filed charges with the
Executive Board against Ruben, who, on July 28, 1969,
filed a countercharge with District 4 against Florian On
August 8 the charge against Ruben was tried, but
Respondent's Executive Board refused to hear his witnesses
on the ground that "they didn't have the union ticket "
Respondent's bylaws provided, with respect to hearings on
charges, "No person not a member of the IBEW may be
present at such hearing, except as a witness " On August 28
Respondent notified Ruben that he had been found guilty
of disturbing a local union meeting and that he was
reprimanded Ruben withdrew his countercharge against
Florian on October 1 On September 2, 1969, Ruben filed a
charge with District 4 against members of Respondent's
executive board alleging that on August 8 they had been
drinking intoxicants before they met On September 9 Vice
President Blankenship dismissed that charge on the ground
that there was no allegation that any executive board
member had been intoxicated at the meeting
Concluding Findings as to Respondent's Animus
Respondent contends that the letter dated June 5, 1969,
contained no ' mtra-union charges against officers and
officials of the union," as alleged in the complaint, but
specifically related to, and was limited to the alleged
improper conduct of Randy Woods and of T J Evans,
neither of whom was an officer or official of Respondent
However, the letter expressly requested that Respondent's
executive board review not only the cited violations of the
contract and the violations of the constitution by Woods
and Evans, but also "the failure on behalf of the union to
institute proper grievance procedures resulting from the
flagrant disregard of the lives of the union members "
As was noted at the hearing, parties are entitled to have
their pleadings construed liberally It is found that in their
June 5, 1969, letter the two Charging Parties "preferred
antra-union charges against officers and officials of
Respondent" within the embrace of the allegations of the
complaints
The first reason given by the members of the executive
board for dismissal of the June 5 charges was hypertechni-
cal and picayunish in the extreme The charges quoted the
language of the various offenses correctly and even
numbered them correctly 4 It is not credible that the mere
fact that the quoted provisions were denominated
"sections" of the Article rather than "subsections of Section
1" of the Article led the executive board members to think
that the two men "were quite mixed up when the charges
were written," or that it left them in the dark as to what the
complaints were about As the matter was subjected to
"considerable discussion" by the executive board, it must
be inferred that the unfairness of their actions was
deliberate and not in good faith The second reason given
for dismissing the June 5 charges, namely the failure "to
furnish the dates and places where the violations occurred,"
while not so patently in bad faith as the first, nevertheless
disclosed an unwillingness on the part of the executive
board to look into the accusations Some of the violations
alleged were acts of omission, not lending themselves to
specificity as to "dates and places "6 Moreover the date of
the crucial matter, namely the accident to Billy Chambers,
was stated, and the place was known to Respondent, since
Woodell and Florian had visited the site the following day
Respondent's hostile reaction to the intraunion steps
taken by the two Charging Parties following their brother's
death was further disclosed by the executive board's
conduct of the hearing on Flonan's charges against Ruben
on August 8, arising out of Ruben's remarks to Florian,
which were critical of Respondent Ruben's witnesses were
prevented from giving evidence on the ground that they
were not in good standing Apart from the fact that this was
in violation of Respondent's own bylaws, such disqualifica-
tion of witnesses is so contrary to common concepts of a
trial that it must be inferred that the ruling was made
2 The IBEW constitution required that charges be filed within 30 days
of the time that the charging party reasonably should have been aware of
the acts alleged
3 The copy of the letter in evidence Exh 6 purported to have been
written and signed only by Ruben However he testified that it had been
typewritten by Morns wife and signed by both brothers This testimony
was not contradicted although Woodell did answer affirmatively counsels
question as to whether he had been aware that Mr Ruben Chambers had
sent a letter to Vice President Blankenship wherein the death of Billy was
raised and your [Woodell s] name was mentioned and an investigation was
called for
4 The error made was easily fallen into Section I of article XXVII
consisted of two introductory lines followed by 23 subsections occupying
over 4 printed pages after which section 2 appeared
5 It is noted among other things that the period of limitations for
charges had expired so that the possibility of remedying the alleged defects
was at least clouded
6 The requirement in the constitution read The charges must state the
act or acts considered to be in violation including approximate relevant
dates or places
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of the local executive board's animus towards the
Chambers family arising from their various charges.?
It is found that Respondent was hostile to the Charging
Parties and disposed to retaliate against them because of
intraunion charges which they made against Respondent's
officers and officials. It is further found that such charges
related to terms and conditions of employment of
employees and to concerted activities for the purpose of
collective bargaining and other mutual aid and protection,
within the meaning of Section 7 of the Act.
C. The Refusal To Refer Ruben Chambers
Ruben Chambers started to work for Day and Zimmer-
man in 1965. He quit on May 6, 1969, the day his brother
was killed. Ruben, who was classified as a journeyman-
lineman, was next employed by the City of Hamilton. On
February 19 or 20, 1970, while he was still so employed but
on leave, he visited Respondent's office and filed an
application for referral. On his application he stated that he
was unemployed, and he testified that he told Woodell that
he would take "work of any kind, it didn't matter what it
was-steel, distribution , transmission , or anything." Woo-
dell referred him to a job with Day and Zimmerman at
Elyria, Ohio, located over 250 miles from his home. He
reported there as directed on the following Monday but was
rejected by that employer. He went back and told this to
Woodell, who commented, according to Ruben, "I wonder
if its because of what happened in Cincinnati about your
brother," and pointed out that the Chambers brothers had
"raised a lot of hell about it," and that there was a
possibility that the Chambers family might sue "the
companies."
Ruben testified , further, that he told Woodell that he
knew that Wagner-Smith needed men and that he
requested a referral there; that Woodell replied that
Wagner-Smith would not hire him; that when he insisted,
Woodell became angry and said, "Everytime things cool off
. .. you boys go and do something else to cause some more
trouble"; and that while saying that, Woodell showed him
the charge filed in this proceeding by Morris. Ruben
testified credibly that when he persisted in demanding a
referral to Wagner-Smith, Woodell said "that nobody
wasn't going to tell him where he was going to work"
Woodell had promised Bohn and Snead, an NECA
member which was in danger of losing a contract because
of delays in meeting the completion date, that he would do
everything in his power to procure help on that project. He
told Ruben that Bohn and Snead "was about to get his job
jerked out from under him" if it could not get an urgently
needed man. Ruben then said that it made no difference to
him where the job was, and he accepted the referral and left
the office. However, he did not report to Bohn and Snead, a
fact of which he informed neither that employer or
Woodell. He testified that, as he was driving home, he
recalled that some years before, when he had worked for
Bohn and Snead, he had been furnished a pair of defective
insulating gloves, and he decided not to take the job.
The next day, February 24, Ruben and a friend,
Lawrence Rutherford , who was also a lineman, went to a
Wagner-Smith office and asked Rowland , the foreman, if
he needed a couple of linemen. Woodell testified that
Wagner-Smith had submitted no call for linemen at that
time , but the record establishes that that employer did need
two men , and Rowland so informed Ruben and Ruther-
ford . He asked , however , if they had been "cleared" with
Respondent , and when told no, he suggested that they
telephone Wagner -Smith 's field superintendent, LeMasters,
who, he said , sometimes arranged such clearance . Ruther-
ford did so and reported that LeMasters said that he could
not "clear" them . Thereupon they left.
Ruben later telephoned Woodell and said that he wanted
to go to work for Wagner-Smith . Woodell asked about the
Bohn and Snead referral and Ruben told him that he would
not work for that firm in view of the defective gloves they
had once furnished. He told Woodell that he had
ascertained that Wagner-Smith needed linemen and that
Woodell had better give him a referral there if he wanted to
avoid trouble . Woodell said that he would call him back at
1 o'clock , but he did not do so; and Ruben thereafter was
unable to reach Woodell . On February 26, 1970, he filed the
charge in this case. Ruben was still employed by the City of
Hamilton at the time of the hearing.
The NECA contract provided that the various locals were
to be the "sole and exclusive source of referral of applicants
for employment" in their respective "labor markets," but
the employers had the right to reject any applicants; the
locals were to refer applicants without discrimination based
on union considerations ; each local was to maintain a
register of applicants and a chronological "out of work list"
from which a name was to be removed after 30 days if the
application was not renewed ; a tripartite appeals commit-
tee was to consider complaints of applicants arising out of
the local's administration of the referral procedures; and a
designated employer representative was to be permitted to
inspect the employment-procedure records at any time
during normal business hours.
Concluding Findings with Respect to Ruben
Chambers
Woodell promptly referred Ruben to two jobs, those with
Day and Zimmerman and with Bohn and Snead. The
General Counsel has offered no evidence tending to prove
that Woodell considered those other than satisfactory
placements. Respondent adduced evidence of two reasons
for not consenting to send him to Wagner-Smith both of
which were mentioned to Ruben at the time: First, while
Wagner-Smith needed linemen, it had not requisitioned
them from Respondent. In the absence of evidence of a
practice allowing applicants to choosejobs, to the potential
disadvantage of other applicants and other employers, it
was not unreasonable for Woodell not to permit Wagner-
Smith to evade its contractual obligation to use the
exclusive referral procedure. There is no evidence that
Woodell's action in this particular case was not in the
ordinary course. Second, Bohn and Snead were in dire need
of a man. The General Counsel has not demonstrated that
r This conclusion is reached without regard to the question of whether,
in his altercation with Florian , Ruben was in the wrong
ELECTRICAL WKRS LOCAL 71 903
Respondent acted differently in such circumstances where
applicants other than the Chambers brothers were involved.
Respondent 's insistence on sending Ruben to meet that
need would therefore appear to have resulted from
Respondent's recognition of the responsibility it bore as
Bohn and Snead's sole source of labor. The clause in the
contract allowing an employer representative to inspect the
referral records indicated that the employers, including
Bohn and Snead , had a substantial interest in the operation
of the hiring procedure.
There remains for consideration Ruben's testimony that
on the occasion when Woodell denied him clearance for the
Wagner-Smith job, he held up a copy of the charge that
Morris had filed with the Board and commented,
"Everytime things cool off ... you boys go and do
something else to cause some more trouble." It is
unnecessary to resolve the conflict between that testimony
and Woodell's denial. The Trial Examiner does not doubt
that Respondent's animus towards the Charging Parties,
already found, was still vital. However, it is by no means
self-evident that Woodell's handling of Ruben's application
was different from the handling of other applications or in
any way out of the ordinary, and the General Counsel
made no attempt to prove this. The record establishes two
facts, each of which explains Woodell's actions at least as
convincingly as the fact of Respondent's hostility. It is
therefore found that the General Counsel has failed to
prove by a preponderance of the evidence that Respondent
refused to refer Ruben for employment because he and/or
members of his family had preferred intraunion charges
against officers and officials of the Respondent, or that
Respondent had attempted in any other way to cause
Wagner-Smith to discriminate against him in violation of
Section 8(a)(3) of the Act.
D. Vetoing Morris Chambers' Foremanship
Morris Chambers was employed by Wagner-Smith for
approximately 3-1/2 years. A substantial part of the time he
was a foreman or working foreman, but there was no
evidence that he ever acted in a capacity that was
supervisory within the meaning of the Act. Morris was
classified as an operator and never attained the status of
journeyman lineman . During the week prior to August 1,
1969, he filled in on various crews as needed. On Friday,
August 1, together with Adrian Hinze, he was engaged in
hauling large reels of wire from a steelyard at Wilmington,
Ohio, to various locations on the right-of-way where
Wagner-Smith was erecting a new power line not as yet
energized. On that day Respondent' s business manager,
Woodell, accompanied by Harry Daugherty, an assistant
business manager , visited the steelyard. To haul the reels of
wire Hinze and Morris were using a piece of equipment,
called a telecrane , which was a truck equipped with a crane
and other devices, and was capable not only of lifting the
8 Woodell testified that this incident occurred on Monday, August 4,
but Morris' testimony that it occurred on Friday, August 1, or possibly
prior to that, was corroborated by Daugherty, who testified that it was "on
or about August I "
9 The contract did not require Respondent's "clearance " However,
Woodell and LeMasters ' testimony about their mid-June conference at
Woodell ' s house , described below , discloses that Wagner-Smith was
heavy reels on and off the vehicle, but also of pulling guard
poles, setting arms, and various otherjobs often performed
round energized lines. When Woodell ascertained that the
two men were hauling the wire without a foreman, he told
them that they would have a foreman the following
Monday or not go out.8 Woodell spoke to Goldsberry, a
general foreman of Wagner-Smith, and subsequently that
day Goldsberry told Morris and Hinze, "You guys are
going to have a foreman come Monday."
On Monday, August 4, Bill Hill , an operator and not a
journeyman lineman , returned to work after an absence of
3 months because of an injury. Daugherty was present that
day, and it is inferred that one of his functions on that visit
was to ensure that the Company complied with Woodell's
ultimatum the previous Friday that the men were not to go
out without a foreman . Rowland, who was a general
foreman for Wagner-Smith and who testified for the
General Counsel with reluctance, stated that on August 4
he or Goldsberry "cleared" Hill to hold a foreman's job.
Daugherty denied that he consented to Bill Hill being a
foreman, but the Trial Examiner has credited Rowland and
finds that Daugherty did consent to the appointments Hill
took charge of the wire-hauling crew on which Moms had
worked the previous Friday, but after only 1 day as such
refused to continue. The finding that Hill was in charge of
the crew that one day is based on the testimony of Morris
and of Rowland, which has been credited over Hill's denial.
Goldsberry did not testify.10 On August 5 Wagner-Smith
placed Morris in charge of that crew , classifying him
as working foreman. Daugherty testified that sometime
later Respondent's job steward notified him that "one
of the Chambers" was running a crew, and that he, in
turn notified Woodell. At a time not clearly stated in
the record Woodell telephoned LeMasters, protesting
Morris' appointment, and LeMasters ordered general
foreman Goldsberry to remove him as soon as
possible. This was done on August 20 or 22. Morris
immediately telephoned LeMasters and asked why he had
been removed. LeMasters replied, "Moms, the only thing I
can tell you is you've got to be taken off. The operators
have got to get back to doing the operating, and the
lineman have to get back to doing the lineman work." Not
satisfied with this explanation, Morris telephoned LeMas-
ters that evening at his home . He asked, ". . . what this is
all about," and he told LeMasters, "I believe that Mr.
Woodell is behind this." LeMasters replied, "Well, sir, until
you find out for sure you'll just have to blame me."
On January 15, 1970, Rowland sent Morris out with
another man to "spot" poles, i.e., pick them up and place
them at designated locations along the highway in
preparation for their erection at those locations . Rowland
put Morris in charge. Rowland received a report from a
truckdriver as a result of which he replaced Morris with Bill
Slaggle, an operator who worked regularly as foreman. A
day or two thereafter Woodell telephoned Rowland to ask
zealous to cooperate with Respondent in avoiding appointments to which
Respondent might object
IU The contract provided for wage rates for foreman , subforeman, and
working foreman While witnesses referred to the Job as that of "foreman,"
the uncontradicted evidence established that the Company's field
superintendent informed Morris, who was appointed to the job the next
day, that he had been classified as a working foreman
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Morris was running a crew, and he told Rowland
that he did not want him doing that. Thereafter Morris was
never placed in charge of the crew. However, Ted
Dunavant and Pat Brandon, both operators, worked as
foremen of "line crews" working in and round energized
primary equipment after Morris' removal. Dunavant's most
recent appointment as foreman had been in about 1968.
Brandon was foreman of a hole-digging crew.
In its Answer Respondent alleged as its justification for
causing Morris' removal the following provision, which had
been introduced into the contract in 1953:
FOREMAN
Section 7.15 When men are working on energized
primary equipment, they shall be supervised by a
foreman. Only a qualified journeyman lineman shall be
a foreman of a line crew, except that equipment
operator may be hole digging foreman. Management
shall have the right to select their own foremen.
Employees working in their own Local Union jurisdic-
tion shall be given consideration.
Clark, an IBEW International representative, testified that
during the negotiations both sides stated, with reference to
section 7.15 of the contract, that a line crew ". . . was any
crew that performed outside line construction under the
terms of this agreement ." Woodell testified: "The intent at
the time it was negotiated, regardless of the type of work,
the foreman must be a journeyman over a line crew with the
exception of a hole-digging crew, and he could be an
operator." He also agreed: "So secondary is used for
distribution lines as opposed to transmission lines ... .
And primary is used for transmission plus the actual
production of power."
Woodell testified ". . . on certain type crews, on steel
high line construction work we turned our heads if a
contractor made an operator a foreman. I won't deny that."
However, he testified, on April 6, 1969, the day following
the accidental electrocution of Billy Chambers, a Wagner-
Smith employee, when he learned that Chambers and
others had been working without a foreman, he told
Goldsberry, Wagner-Smith's general foreman, that that was
a violation of the agreement, and that he "insisted that they
make a foreman over that type of crew," and that such
foreman be a journeyman lineman . Woodell also testified
that on June 13 Respondent's executive board, when
considering the Chambers brothers' charges, instructed him
not to be lax as in the past, and to "take every possible step"
to correct the situation of men working "out of their
classifications." Respondent's counsel referred to this
action as "this policy of strictly enforcing the contract so
far as people working in other classifications." Woodell
testified, further, that on June 17 or 18, 1969, he met with
LeMasters, Wagner-Smith's field superintendent, and
Dennis Ward, another Wagner-Smith official, who dis-
cussed crew and supervision problems arising from the fact
that the Company had been awarded contracts for certain
work. Woodell and LeMasters both testified that they went
over the names of certain persons whom Wagner-Smith
proposed to promote or transfer to various designated
assignments as superintendents and general foremen, and
also discussed increasing the number of crews. Among
those named was Ted Dunavant, an operator.[[ LeMasters
testified that Woodell "... told us we would use
journeyman lineman, which we agreed to, because it was in
the contract this way, and we try to live by the contract as
close as possible." Woodell testified:
And they wanted my approval of all of these transfers
and promotions. And I said .. .: "It's immaterial to
me who you make foreman and general foreman as long
as the people are qualified journeyman linemen." And I
think-anyway it surprised the two men and they
wanted to know what brought about the sudden change.
Woodell testified that he replied that there had been two
recent fatal accidents and that Respondent was "real
concerned" because of rumors that the family of the victim
of the second accident12 might sue the Union and the
employer ". . . because the family of this member felt like
he was working out of his classification."
Concluding Findings With Respect to Morris
Chambers
The record establishes that Wagner-Smith removed
Morris on August 20 as a result of Woodell's call to
LeMasters. As to Morris' demotion on January 15, 1970,
the record does not show intervention by Respondent
immediately prior thereto. Rowland testified only that he
replaced Moms following a report he received that the men
on a job visited by Morris and his crew had "got to talking
it over." Irrespective of whether the report referred to the
policy established by the Respondent in August and
accepted by Wagner-Smith, that Morris was not to be in
charge of any crew, it is reasonable to infer from the entire
course of events that Rowland replaced Morris because of
that policy. Woodell's call to Rowland several days later
inquiring whether Morris was running a crew, and warning
Rowland to carry out that policy strengthens this inference.
Moreover, Woodell's call ensured that Wagner-Smith
would not again place Morris in charge of any crew
whatsoever. As Morris had often been in charge of crews
for Wagner-Smith, it must be inferred that in the normal
course of events he would have had more such employment
after August 20 were it not for Woodell's calls in August
1969 and January 1970. It is found that on August 20, 1969,
and at all times thereafter, Respondent caused Wagner-
Smith to deny Morris Chambers employment in charge of
any crew.
Respondent's brief does not expound its defense with any
degree of precision. In its Answer Respondent alleged
unequivocally that section 7.15 of the current collective
agreement was "the sole reason for its objection" to Morris
being "a line foreman." However, its brief contains no
analysis of the contract to support that allegation; on the
contrary, the collective agreement is barely mentioned.
Without expressly abandoning the contract theory, Res-
pondent's brief stresses two other things: First, it claims
that at its Executive Board meeting on June 13, when it
11 Dunavant was to be made general foreman over steel erection.
12 The second accident was the one involving Billy Chambers
ELECTRICAL WKRS . LOCAL 71 905
considered the Chambers brothers' charges, it adopted a
policy of "strict enforcement," in contrast to its prior
laxness in having tolerated the assignment of employees to
work "outside their classifications"; and, second, it claims
that several days later, pursuant to the above policy,
Woodell made an "agreement" with LeMasters and Ward
"that they would only appoint journeyman linemen as
foremen over line crews." 13 The General Counsel, without
conceding that Morris' removal was required by the
contract, contends that, whatever the contract provided,
Respondent did in practice permit operators to act as
foremen, as demonstrated in the cases of Hill, Dunavant,
Slaggle and Brandon. In addition, the General Counsel
contends that even under Respondent's interpretation of
the contract Morris was eligible to be foreman of a hole-
digging or a footer crew, but these, too, came within
Woodell's veto.
Respondent has not made clear why a material crew
should be deemed to be a line crew within the meaning of
Section 7.15 of the contract. Clark's definition of a line crew
was one ". . . that performed outside line construction
under the terms of this agreement." The most probable
interpretation of Clark's definition would exclude a crew
which merely hauled wires, poles, or other materials to and
from new construction sites. and had no participation in line
construction. The use of the term line crew in the contract
and its frequent use by Respondent's witnesses are strongly
persuasive that there were crews which were not line crews.
Woodell and Daugherty, in their testimony, did assimilate
material crews with line crews, but neither impressed the
Trial Examiner favorably as to credibility. It is found that
the crews Morris was in charge of in August 1969 and
January 1970 were not line crews within the meaning of
section 7.15 of the contract. In addition, the contract
distinguished between foreman, working foreman, and
subforeman. The uncontradicted evidence establishes that
Wagner-Smith classified Morris as a working foreman. It is
found that Morris Chambers was not a foreman within the
meaning of section 7.15 of the contract. It is further found
that the contract did not require that only a journeyman
lineman occupy the position from which Respondent
caused Wagner-Smith to remove Morris Chambers.
The foregoing considerations apply equally to Respon-
dent's claim of some sort of "agreement" with LeMasters
and Ward on June 17 or 18, 1969, that only journeyman
linemen would be foremen of "line crews." LeMasters did
not support Woodell's testimony that he and Ward were
surprised at the request. He testified, "Well, he told us we
would use journeyman linemen, which we agreed to,
because it was in the contract this way, and we try to live by
the contract as close as possible." As the positions which
LeMasters and Ward discussed with Woodell on that
occasion were those of general foreman and superintend-
ent, LeMasters' "agreement" to use only journeyman
13 The brief also refers to testimony by Woodell that, already in April
1969, following the death of Billy Chambers, he had cautioned Wagner-
Smith not to allow "that type of crew" to work without a foreman who,
moreover, would have to be a journeyman lineman . The work involved in
that incident was at an energized primary line.
14 In its brief Respondent says: "It is ironic that Morris Chambers is
now complaining because of action which he asked the Local Union to
take , namely, don't let people work out of their classifications."
linemen is not persuasive, or even evidence, that the same
agreement was made as to who could be in charge of a two-
or three-man crew hauling wire to new construction not yet
electrified.
Respondent has not made clear, either, how a policy of
not permitting men to work out of their classifications-the
policy allegedly adopted at the June 13 executive board
meeting-required that only a journeyman lineman be in
charge of a material crew whose work brought it nowhere
near energized power lines. "Foreman" and "working
foreman" were not "classifications" recognized by the
collective agreement. That instrument provided for three
classifications or groups of classifications, namely, classifi-
cation A -journeyman lineman; classification
B-operator, equipment repairman, equipment service
man, and classification C-truckdriver, ground man, line
clearance man. Morris' work between August 5 and 20 and
on January 15 was that of an operator, not a lineman; and
none of the men with him did lineman's work. Woodell's
testimony, that at his meeting with LeMasters and Ward on
June 17 or 18 he told them that the Chambers family felt
that Billy Chambers had been "working out of his
classification" at the time of his death, was apparently
given in order to support the theory that Morris was
considered to be working out of classification.14 This
testimony has not been credited. The only communication
from the Chambers family which Respondent had received
at that time was the June 5 letter, which complained, among
other things, of lack of competent supervision over Billy
Chambers, but neither said nor implied anything to the
effect that Billy Chambers or anyone else had been working
out of classification.15
With respect to its consent that Dunavant and Slaggle,
both operators and not journeyman linemen , work as
foremen, Respondent relies on what was referred to at the
hearing as "the grandfather clause." 16 That clause was the
following language, which was originally included in the
part of the NECA agreement corresponding to the second
sentence of section 7.15: 17
except that no employee, as of June 1, 1953, shall be
demoted by reason of this section and.. . .
LeMasters, a witness for Respondent, testified that to
qualify under that exception a person had to have been a
foreman prior to the 1953 date Woodell testified that in
1962, since everybody thoroughly understood the excep-
tion, the parties felt that it was no longer needed in the
contract and therefore the above language was taken out,
with the understanding, however, that it would continue in
effect. As a matter of contract law, that provision was not in
the current contract, since Woodell's testimony that the
parties intended to retain it when they deleted it plainly
varied a written instrument. Moreover, even apart from the
parole evidence rule, the logic of deleting language while
retaining its effect is not easily accepted. As Woodell was
15 Respondent did not hear of the Chambers brothers' complaint that
Billy Chambers had allegedly been improperly classified as journeyman
lineman until it learned of the August 6 letter to District 4.
16 As to Hill, Respondent denied that it consented, but its denial has
not been credited . As to Brandon, it is undisputed that he was a
holedigging foreman, a category expressly excepted from section 7.15.
17 In the 1961 agreement the provision was numbered section 15 of
article IV; in a revision it was section 16.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an interested witness, and not especially reliable, the Trial
Examiner is not convinced that there was any such intent or
agreement, or that Woodell and LeMasters or other
Wagner-Smith officials thought so. Moreover even if it
were to be assumed that the provision had been retained or,
perhaps, informally revived, the record establishes that
while it would have saved Slaggle, who became a foreman
in 1952, it could not have saved Hill or Dunavant. No claim
is made that Hill came under "the grandfather clause." As
to Dunavant, he had been hired by Wagner-Smith in 1965
or 1966 as an operator; his most recent appointment as
foreman was only 2 years before the hearing. A provision
saving foremen from "demotion" would not authorize a
promotion to foreman. Moreover there is no evidence at all
that he had been a foreman, or even employed in the
industry, prior to June 1, 1953, the specified qualification
date in "the grandfather clause."
The foregoing considerations are strongly persuasive that
Respondent's defense is pretextual and has been advanced
in order to conceal its discriminatory motive. LeMasters'
statement to Morris on August 20, namely, "The operators
have got to get back to doing the operating, and the linemen
have to get back to doing the lineman work," does not
negate Respondent's discriminatory motive in causing
Morris' removal. The reason stated by LeMasters was
invalid, since Moms performed only "operating" when in
charge of the wire-hauling crew. Moreover, when Morris,
struck by the obviousness of LeMasters' pretextual
explanation, suggested that Woodell had caused the
demotion, LeMasters, cooperating with Respondent,
concealed that fact from Morris and took the blame upon
himself.
Two additional facts lend further support to the inference
that Respondent's defense was pretextual. First, Respon-
dent's action to remove Morris in August was initiated by
its job steward, who reported to Daugherty that "one of the
Chambers" 18 was running a crew. This report discloses that
what Respondent's agents were looking out for was a
Chambers in charge of a crew; presumably the same report
would have been made if it had been Ruben, a journeyman
lineman , who had been involved. Second, and more
important, Woodell's prohibition applied to any crew, and
even under Respondent's theory Morris was eligible to be
in charge of some crews.
It is found that Respondent caused Wagner-Smith to
remove Morris Chambers as working foreman, and not to
appoint him as such or to place him in charge of any crew,
because he and Ruben Chambers filed intraunion charges
against officers and officials of Respondent. By such action
Respondent plainly caused Wagner-Smith to discriminate
against Morris Chambers in violation of Section 8(a)(3) of
the Act and restrained and coerced employees in the
exercise of their rights under Section 7 of the Act It is
found that Respondent thereby violated Section 8(b)(1)(A)
and 8(b)(2) of the Act.19
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set forth
above in section III, occurring in connection with the
operations of the Wagner-Smith Company described above
in section I, 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.
V. THE REMEDY
As it has been found that Respondent engaged in certain
unfair labor practices, it is recommended that the Board
issue the Recommended Order set forth below requiring
Respondent to cease and desist from said unfair labor
practices and to take certain affirmative action which will
effectuate the policies of the Act. It is recommended that
Respondent be required to notify Wagner-Smith that it will
not object to the employment of Morris Chambers as
foreman, subforeman, working foreman, or otherwise in
charge, of a crew. The Recommended Order shall not be
deemed to require Respondent to refrain, for nondiscrimi-
natory reasons, from objecting to placing Morris Chambers
in charge of a crew performing actual outside line
construction or working on, or in close proximity to,
energized primary wires or equipment.
It is also recommended that Respondent forthwith make
Morris Chambers whole for any loss of pay he may have
suffered by reason of Wagner-Smith having, because of the
discrimination caused by Respondent, removed him, or
failed to appoint him, as working foreman or in charge of a
crew. The amount paid as backpay shall be a sum of money
equal to what he would have earned in such position were it
not for the discrimination caused by Respondent, less his
net earnings during said period, computed in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent per
annum, to be computed in the manner described in Isis
Plumbing & Heating Co, 138 NLRB 716.
Upon the basis of the foregoing findings of fact and of
the entire record in this case the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Wagner -Smith Company is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2 The Wagner-Smith Company is, and at all times
material has been , an employer within the meaning of
Section 2(2) of the Act.
3. International Brotherhood of Electrical Workers,
Local Union No. 71, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
4. By filing charges and making complaints to Respon-
dent 's executive board and to District 4 of the International
Brotherhood of Electrical Workers , AFL-CIO, Morris
Chambers and Ruben M. Chambers engaged in concerted
Is This was the steward's language, Daugherty, who testified about it, prevented Morris Chambers from being assigned to or from holding had
knew Morris' name. been supervisory See Warrior Constructors, Inc, 168 NLRB No 5
19 The same finding would be made even if the jobs which Respondent
ELECTRICAL WKRS . LOCAL 71 907
activities for the purpose of collective bargaining and other
mutual aid or protection within the meaning of Section 7 of
the Act.
5. By causing The Wagner-Smith Company to remove
Morris Chambers as working foreman and to refrain from
appointing him working foreman or in charge of any crew
because he and/or members of his family had filed
intraunion charges and made intraunion complaints
Respondent restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act and
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
6. By causing The Wagner-Smith Company to discnmi-
nate against Morris Chambers in violation of Section
8(a)(3) of the Act, Respondent engaged in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
7. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent did not, in violation of Section
8(b)(1)(A) or Section 8(b)(2) of the Act, refuse to refer
Ruben M. Chambers for employment or otherwise attempt
to cause The Wagner-Smith Company to discriminate
against him in violation of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , it is hereby ordered that
Respondent , International Brotherhood of Electrical
Workers, Local Union No. 71, AFL-CIO, its officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause The Wagner-Smith
Company to remove or refuse to employ Morris Chambers,
or any other employee , as foreman , working foreman, or
subforeman or otherwise in charge of a crew , or otherwise
to discriminate against employees in violation of Section
8(a)(3) of the Act, because they or members of their families
file intraunion charges, or make complaints , against officers
20 In the event no exceptions are filed by Respondent as provided by
Section 102 46 of the Rules and Regulations of the National Labor
Relations Board , the findings , conclusions , recommendations and
Recommended Order herein shall, as provided in Section 102 48 of the
Rules and Regulations , automatically become the findings , conclusions,
decision , and order of the Board , and all objections thereto shall be
deemed waived for all purposes . 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
or officials of Respondent, or engage in any other activities
protected by Section 7 of the National Labor Relations Act.
(b) In any like or related manner restraining or coercing
employees of The Wagner-Smith Company in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Notify The Wagner-Smith Company that it does not
object to its employment or assignment of Morris
Chambers as a foreman, working foreman, or subforeman,
or otherwise in charge, of a crew.
(b) Make Morris Chambers whole for any loss of
earnings suffered by him as a result of the discrimination
against him in the manner described above in section V of
this Decision, entitled, "The Remedy."
(c) Post at its business offices and meeting places copies
of the attached notice, marked "Appendix." 20 Copies of
said notice, to be furnished by the Regional Director for
Region 9, shall after being duly signed by an official
representative of Respondent, be posted by said Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members of
Respondent are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Furnish to the Regional Director for Region 9, signed
copies of said notice for posting by The Wagner-Smith
Company, if willing, in places where notices to its
employees are customarily posted. Copies of said notice, to
be furnished by the Regional Director, shall, after being
signed by an official representative of Respondent, be
forthwith returned to the Regional Director for disposition
by him.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision and
Recommended Order, what steps Respondent has taken to
comply herewith.21
It is also recommended that the Board dismiss the
complaint in Case 9-CB-1752-2.
RELATIONS BOARD," shall be changed to read, "POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT
OF APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD "
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9, in writing, within 10 days from this Order, what steps the
Respondent has taken to comply herewith "