IBEW, Local No. 43

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 621 (N.L.R.B. 1968)

IBEW , LOCAL NO. 43 621
International Brotherhood of Electrical Workers,
Local Union No. 43 , AFL-CIO and Executone of
Syracuse , Inc. Case 3-CC-427
June 27, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
member of its executive board, in refusing to work
on a construction project while an employee of the
Charging Party, herein called, Executone, was em-
ployed there. Upon the entire record in the case,
including my observation of the witnesses, and after
due consideration of the briefs filed by General
Counsel and the IBEW, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS AND THE LABOR ORGANIZATION
INVOLVED
On May 10, 1968, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding , finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety , as set forth in the at-
tached Trial Examiner 's Decision . Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief.
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
powers in connection with this case 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 and brief,
and the entire record in the case, 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 Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This
proceeding, heard at Syracuse, New York, on
March 21, 1968,' pursuant to a charge filed the
preceding January 22 and a complaint issued
February 23, presents questions as to whether
Respondent, herein called the IBEW, violated Sec-
tion 8 (b)(4)(i) and ( ii)(B) of the National Labor
Relations Act, as amended, by certain conduct of
its members, and particularly of Edward Murphy, a-
All dates herein refer to the year 1968
Executone, a New York corporation, engaged at
Syracuse in the sale and installation of intercommu-
nications and sound systems , held at all times rele-
vant here a contract with Syracuse Wholesale Fur-
niture Corp., herein called Wholesale, a New York
corporation, under which Executone was to install
a communications system in a warehouse and
showroom which Wholesale was constructing. The
general contractor on the job, valued in excess of
$475,000, was Arkay Construction Corporation,
herein called Arkay, a New York corporation, and
the contract for the electrical wiring was held by
another New York corporation, Kay-R Electric
Corporation, herein called Kay-R. Executone an-
nually handles goods and materials of extrastate
origin valued in excess of $50,000. The complaint
alleges, the answer admits, and I find that
Wholesale, Executone, Arkay, and Kay-R are each
persons and employers engaged in commerce
within the meaning of Sections 2(1), (6), and (7),
and 8(b)(4) of the Act, and that the IBEW is a
labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events of January 18
On January 18, one Dan Galuppo, an employee
of Executone, was at work on the Wholesale con-
struction project. About 12:30 that afternoon, as
Galuppo was setting up equipment preparatory to
pulling cables, he was approached by a man later
identified as Edward Murphy, who was a member
of the executive board of the IBEW, and was em-
ployed on that job by Kay-R as an electrician.
Murphy, upon ascertaining that Galuppo was
pulling wires for his intercom and was a member of
the Communications Workers of America
(hereinafter referred to as CWA), told the other
electricians who were standing nearby to "hold up
a minute ," and then said to Galuppo, "Either
you're going to have to go or we are going to have
to go." Murphy then left, stating that he had to
make a telephone call. Returning a few minutes
later, Murphy told Galuppo he had "better make a
phone call," adding that the general contractor did
17 2 NLRB No. 79
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not want Galuppo on the job and that either Galup-
po would leave or "we would," apparently referring
to the electricians.' Galuppo telephoned the Execu-
tone office, learned that Curtis Cooper, the com-
pany president, was not in, and waited for further
instructions . A few minutes later Cooper
telephoned him and instructed him to resume work,
which Galuppo did. On his way back to work from
his telephone conversation with Cooper, Galuppo
encountered Murphy and another man who Galuppo
believed to be the general contractor. On this occa-
sion Galuppo told this individual that he, Galuppo,
was a union member. When this information was
relayed to Murphy, he stated: "We don't recognize
his Union."
Cooper, after his telephone conversation with
Galuppo, drove to the jobsite where he encoun-
tered Michael Kosoff, the representative of Arkay,
the general contractor. Kosoff told Cooper that
"one of the electricians indicated that he won't
work with [Cooper 's] men ," and he introduced
Cooper to Murphy. Cooper's testimony continues:
I said, "Are you speaking for yourself or all
these fellows here?" He says, "I'm speaking for
myself." And I said, "Well, are you a Union
Steward?" And he says, "No, I am not," but he
says, "I am on the Official Board" or "Execu-
tive Board"-I don't recall exactly which-but
he said he was either on the Official Board or
the Executive Board. And so with that Mr.
Kosoff said, "Let's talk this over," and led me
away from that group of people.
Kosoff testified to the same effect as to what
Murphy told Cooper. Asked whether any other
electricians were present , he testified as follows:
A. Well, they were in the area . I don't recall
them being right there face to face with me,
but they were in that immediate area.
Q. Okay, I am asking you to state what was
said and who said it during this conversation.
TRIAL EXAMINER : Just a minute . When you
say, "Electricians were in the area," do you
mean they were able to overhear this conversa-
tion or not, or don't you know?
THE WITNESS: I would say they could
probably overhear it, yes.
TRIAL EXAMINER: Well, did they overhear it;
do you know?
THE WITNESS: I assume they did . I mean-
MR. BLITMAN: I move to strike out what he
assumes.
TRIAL EXAMINER: Well, how far away were
the electricians at the time of this conversation
with Murphy and you and-
THE WITNESS: Oh , twenty, thirty feet away.
TRIAL EXAMINER: Were they working?
THE WITNESS: I think they were listening; let
me say that . But again I say I am thinking,
because I can't attest to it.
Kosoff and Cooper, together with Edward Rose,
an officer of Kay-R, the electrical contractor, went
to the trailer which served as a business office on
the jobsite .3 In their discussion there, all three men
in their fruitless effort to resolve the situation acted
and spoke on the assumption that all three electri-
cians on the job," and not just Murphy, would
refuse to work with Galuppo. Thus, Rose and
Cooper discussed the fact that the choice lay
between paying three of Rose's employees or one
of Cooper's for not working that afternoon, and
Kosoff finally said, "Well, obviously if the electri-
cians aren't going to work here, if they're going to
walk off the job, I will have to call the owner."
Kosoff did call the owner, a Mr. Lieberman, and
told him, "The electricians are walking off the
job. "s
When Kosoff told Cooper, during the course of
Kosoff's telephone conversation with the owner,
that Cooper's employee would have to leave the
job, Cooper took the telephone and verified that
this was indeed the owner's direction. While
Cooper was on the telephone, Murphy entered the
trailer, said that he had "had it" and was going
home for the day, and commenced to remove his
work clothes. When Murphy heard that Cooper was
removing his man, Murphy put his work clothes
back on. Cooper asked him, "Why is it that you will
let the Telephone Company CWA employees in the
At first Galuppo quoted Murphy as saying on this occasion that either
Galuppo would leave, or he , Murphy. would Later , however. Galuppo cor-
rected his testimony and insisted that Murphy had said "we "
'Curiously enough . Rose, Kosoff, and Cooper presented differing ver-
sions of when Rose joined the others According to Cooper, Rose joined
them in the trailer , and according to Kosoff , Rose joined them on their way
to the trailer Rose , however, testified that he joined the group while they
were talking to Murphy I credit Rose 's version as he seemed to recall the
circumstances very clearly Indeed , Rose testified that he asked Murphy,
"Is this something you're doing . Muph , or is it Union business or what,"
and that Murphy replied "This is my own personal action I'm doing this
on my own
Cooper put the number at four, but I accept Rose 's version
' The following colloquy occurred at the conclusion of Kosoff's
testimony
TRIAL EXAMINER Now, on the first episode on January I8th, you
also called Mr Lieberman and you told him something about the elec-
tricians going out, is that right's
THE WITNESS Yes, Sir
TRIAL EXAMINER What was the source of your information on
January 18th , Mr Cooper"
THE WITNESS January the 18th , when I knew they were walking off
the Job"
TRIAL EXAMINER . Well, what you said to Mr Lieberman when they
were walking off the Job?
THE WITNESS Well, I'd have to say at that time Murphy was.
TRIAL EXAMINER Murphy was walking -Murphy was what?
THE WITNESS . I would have to say at that time Murphy told me he
was going to walk off the Job if Executone worked.
TRIAL EXAMINER . I understand And did you call Mr Lieberman and
say, "Mr. Murphy is walking off the job?"
THE WITNESS No, I didn' t I said , "The electricians are walking off
the Job."
TRIAL EXAMINER Why did you say to Mr . Lieberman , "The electri-
cians," instead of, "Mr Murphy " what was the source of your infor-
mation, or was this simply something-
THE WITNESS. Well, I Just felt that all the electricians would walk off
the job
TRIAL EXAMINER . You just thought SOS
THE WITNESS Yes, Sir
IBEW , LOCAL NO. 43
same Local as our men pull their cables and con-
nect their equipment, but you won't let us? We're
in the same Union, same Local and everything-
come out and pull our cables, come out and con-
nect our equipment?" Murphy replied: "Because
we have a gentlemen 's agreement with the
Telephone Company. That's right."
As Kosoff left the trailer, he observed the other
electricians walking out of the building. Kosoff
testified that he did not know where they were go-
ing. The matter was not pursued at the hearing, and
the record is silent as to what happened after
Murphy put his work clothes back on, but it seems
reasonable to infer that he and the other electri-
cians resumed work. In any event, the electricians
were at work on February 27, when the other
episode here involved occurred.'
B. The Events of February 27
On the morning of February 27 Galuppo
returned to the job. Murphy and two or three other
electricians were also at work there. Shortly after
lunch, Galuppo was at work when the lights went
out, and he noticed that the electricians had left.
He continued to work the rest of the day.
About noon on that day,' Murphy telephoned his
employer, Rose, to state that the Executone em-
ployee was on the job and he, Murphy, was leaving.
That afternoon Murphy and two of the three other
electricians (the exception was one Baxter, who
took the afternoon to make his regular monthly
visit to a doctor) went to work at another job, to
which their employer assigned them.'
When Kosoff, the general contractor, arrived at
the jobsite on February 27, his labor foreman ad-
vised him that an Executone employee had come to
work there and that the electricians had left. Kosoff
advised the owner of this fact. The owner
telephoned Cooper, told him the electricians had
left the job, and directed Cooper not to send his
men back there the next morning.
C. The IBEW 's Official Position
The testimony of Barry, business manager of
IBEW, and of Francis Poole , president of CWA,
establishes that the two labor organizations differed
sharply as to which had the right to have its mem-
bers engage in the cable pulling connected with the
installation of the intercom on the job in question.
Barry further testified that Murphy was not a union
steward on the construction job in question here,
and that the job was too small to warrant Barry to
appoint a steward there.
"The complaint , issued February 13, was amended at the hearing to al-
lege a violation occurring February 27 1 permitted the amendment, over
objection . See Section I0(b) of the Act
I Rose 's testimony put the date as February 28, apparently an inadver-
tent error
" According to Rose , once Murphy , the foreman , had left , the contract
between Kay-R and the IBEW required that the other men stop work until
623
According to Barry, the first mention he heard of
the trouble on that job was from Rose of Kay-R
about January 20. Barry testified that he assured
Rose that he would "take the necessary action to
get the men back on the job." I do not fully un-
derstand what Barry meant in so far as this record
shows Barry's men were still on the job. Barry
further testified that at a union meeting on January
25, he told Murphy that the latter had to work in
accordance with the contract even though Murphy
did not want to work with CWA men. Murphy,
however, insisted in his reply that as an individual
he was free to do as he chose. On February 26, ac-
cording to Barry, counsel for the IBEW instructed
Murphy, in Barry's presence, that Murphy must
continue to work regardless of the appearance of
nonunion men, that his action was "not authorized
by the Union, and that he would be subject to
charges if he engaged in anything like this." The
next day Murphy again refused to work.
Barry did not learn of the February 27 episode
until some days after it occurred, at which time he
learned it from counsel for the IBEW. Barry
testified that after the January 18 episode he
discussed with the president of the IBEW the
matter of disciplining Murphy, and the president
stated, "We will wait the outcome of the hearing
before we proceed."
According to Barry, if a nonunion man engaged
in work which the IBEW believed to be within its
jurisdiction, it would picket; but if a member of
another union did such work, "there's nothing [the
IBEW] can do about it." As one of the seven mem-
bers of the executive board Murphy had no authori-
ty to create or cause a work stoppage. I note that
the IBEW bylaws provide that stewards shall
"report any encroachment upon the jurisdiction" of
the IBEW, but "shall in no case cause a stoppage of
work." The executive board's powers and duties,
prescribed in the constitution of the IBEW's Inter-
national, include the power "to take any action
which the L[ocal] U[nion] can take, and which
should be taken prior to the next regular meeting of
the L[ocal] U[nion]" and to hear charges and to
try members for violations of IBEW rules. The local
IBEW bylaws add to the duties of the executive
board that of passing on applications for member-
ship, and investigating and passing upon traveling
cards.
D. Concluding Findings
If the IBEW, acting through Murphy as its agent,
is responsible for work stoppages on the part of the
electricians on January 18 or February 27, the
a foreman is on the job The testimony of John Barry , business manager of
the IBEW , differs from that of Rose, for in Barry 's view the men could have
continued to work in Murphy's absence The contract between the IBEW
and the employer provides in part "When three (3) or more journeymen
are employed on one job, a Foreman shall be designated " It further pro-
vides that, "On jobs having a Foreman workmen are not to take directions
or orders . . from anyone except their respective Foremen "
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(4)(i ) and (ii )( B) would
seem clear , for the conduct was for the ultimate
purpose of compelling Wholesale to stop doing
business with Executone . But on this record, I find
that General Counsel has not carried his burden of
proving that the IBEW was responsible for the ac-
tion of Murphy and the other electricians. With
respect to the January 18 episode Murphy expressly
acted on his own rather than as a union representa-
tive . The record does not indicate to whom Murphy
made his telephone call when he first learned that
Galuppo was a member of CWA, but Barry denied
that the call was to him. The circumstances of the
electricians ' walkout on February 27, are less clear,
but there is no evidence that they acted in response
to any union directive . Murphy was a member of
the executive board , but this fact vested no authori-
ty in him to speak for the IBEW on these occasions.
The record does show that Murphy , who acted as
foreman , told the other electricians to "hold up a
minute " when he first talked with Galuppo , but this
is insufficient basis for holding the IBEW liable on
the theory that Murphy was its agent.
In short , all that appears here is that Murphy de-
cided that he would not work with a CWA man.
The record does not disclose why the other electri-
cians stopped work and left the premises , and even
General Counsel suggests that they may have done
so because with Murphy gone they had no foreman.
Murphy's refusal to work stemmed , of course, from
the IBEW's position in its dispute with CWA. The
mere fact , however, that union members further
their union 's cause and engaged in a work stoppage
in protest over the assignment of nonmembers to
work they deem within their union's jurisdiction
does not establish that their union is legally respon-
sible for their conduct. See Building and Construc-
tion Trades Council of Tampa and Vicinity, 132
NLRB 1564; Local 375 , International Brotherhood
of Teamsters, 146 NLRB 1319; Nassau and Suffolk
Building Construction Trade Council, 162 NLRB
180, fn. 4.
CONCLUSIONS OF LAW
1. Executone , Wholesale , Arkay, and Kay-R are
engaged in activities affecting commerce within the
meaning of the Act.
2. The IBEW is a labor organization within the
meaning of the Act.
3. The IBEW has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
The complaint herein should be, and hereby is,
dismissed.