Electrical Workers Local 278 (Kelinske Electrfic Co.)

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1044 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers
Union, Local No. 278 and Felix Kelinske d/b/a
Kelinske Electric Company. Case 23-CC-673
October 11 , 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS ANI) PENELLO
On July 5, 1977, Administrative Law Judge Henry
L. Jalette issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HENRY L. JALErrTTE, Administrative Law Judge: This case
involves an allegation that the Respondent, International
Brotherhood of Electrical Workers Union, Local No. 278,
violated Section 8(b)(4)(ii)(B) of the Act by an oral threat
to picket an employer to force him to cease doing business
with the Charging Party. The case was initiated by a charge
filed on December 2, 1976,1 pursuant to which complaint
issued on April 5, 1977. On May 26, 1977, hearing was held
in Corpus Christi, Texas.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs of the
parties, I hereby make the following:
FINDINGS OF FACT
I. THE FACTS
Tucker Properties is a sole proprietorship of Henry
Tucker engaged in the building and development of
apartment complexes, one of which is the Anchor Apart-
I Unless indicated all dates hereinafter are 1976.
2 Jurisdiction is not in issue. Respondent stipulated that Kelinske meets
the Board's indirect inflow standard for the assertion of jurisdiction and that
232 NLRB No. 160
ment project in Corpus Christi, Texas. On November 1,
Tucker contracted with Felix Kelinske to perform certain
electrical work on the Anchor Apartment project.2
On or about November 9, Robert Shake, assistant
business manager of Respondent telephoned Tucker.
Shake testified that after identifying himself he told Tucker
of his understanding that Tucker was undertaking an
apartment construction project (Shake did not then know
the name of the project) and that Tucker was subcontract-
ing the electrical work to Kelinske. Shake told Tucker that
Kelinske was a substandard contractor and that, if Tucker
proceeded to use Kelinske, the Union would use all legal
means necessary to protest his doing so. Tucker asked him
what he planned to do and Shake repeated that they would
use all legal means necessary to protest Kelinske's being
awarded the contract. Tucker asked Shake what he meant
and Shake asked him to hold a minute, conferred briefly
with Business Agent Lynn Tate, and then told Tucker to
talk to Roy Lay (who had completed an apartment project
with Kelinske and whose apartments had been handbilled
by Respondent). Tucker asked Shake if the Respondent
planned to picket and Shake said, "If it's legal picketing,
we're-it's a possibility that we may do that." Tucker asked
if Shake was threatening him and Shake disclaimed any
threat.
Tucker's version of the conversation was very brief.
According to him, Shake (or Tate, he was not certain who
called) said if he used a nonunion contractor "we'll picket
your job." Shake also said "Remember the Roy Lay
incident." Tucker denied that Shake used the phrase
"lawful means."
As a result of Shake's call, Tucker cancelled Kelinske's
contract and contracted the electrical work with a union
contractor.
1I. ANALYSIS AND CONCLUSIONS
The parties appear to be in agreement that not all threats
by a union to picket a neutral employer are violative of
Section 8(bX4)(iiXB) and there is case authority to such
effect. General Drivers, Chauffeurs and Helpers, Local Union
No. 886 (The Stephens Company), 133 NLRB 1393 (1961);
District Council of Painters No. 48, etc. (Hamilton Materials,
Inc.), 144 NLRB 1523, 1525 (1963); Amalgamated Packing-
house, Leather and Allied Food Workers of Wisconsin
(Packerland Packing Company, Inc.), 218 NLRB 853 (1975).
The test is whether under the circumstances of the case the
threat is to picket neutrals or to engage in lawful primary
activity. Charging Party and the General Counsel contend
that the threat by Shake in the instant case was a threat to
picket Tucker, the neutral employer. I do not agree.
A threshold question to be answered is what did Shake
say to Tucker. As to this, I credit Shake's version of the
conversation. Tucker did not convey an impression of
candor and his recollection of the conversation appeared to
me to be very poor and to omit significant details.
Considering the matter from Shake's credited testimony,
I find that his statements to Tucker fall within the
Tucker meets the Board's direct inflow standard for shipment of goods to
the Anchor Apartment jobsite.
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ELECTRICAL WORKERS, LOCAL NO. 278
intendment of the cases cited above and did not constitute
unlawful threats.3 In making this finding, I note that if
there was any ambiguity about the nature of Respondent's
proposed conduct it was removed where Shake referred
Tucker to contractor Roy Lay, at whose project a handbill
had been distributed by Respondent. Tucker was admitted-
ly familiar with the handbilling of Lay and there is no
contention such handbilling was unlawful. Accordingly, I
shall dismiss the complaint.
CONCLUSIONS OF LAW
1. Felix Kelinske d/b/a Kelinske Electric Company
and Tucker Properties, and each of them, are persons
within the meaning of Section 2(1) of the Act and
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
a It is evident that Respondent's object in calling Tucker was to cause
him to cease doing business with Kelinske; however, the object of the case
only becomes relevant where a threat has been made.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
2. International Brotherhood of Electrical Workers
Union, Local No. 278, is a labor organization within the
meaning of Section 2(5) of the Act.
3. General Counsel has not established by a preponder-
ance of the evidence that Respondent threatened, re-
strained, or coerced Tucker Properties within the meaning
of Section 8(b)(4)(ii)(B) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
The complaint is dismissed in its entirety.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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