International Brotherhood of Electrical Workers, Local 309

National Labor Relations Board - Board Decisions

Jul 10, 1974

212 N.L.R.B. 409 (N.L.R.B. 1974)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 309 409
International Brotherhood of Electrical Workers, Lo-
cal 309, AFL-CIO-CLC (R. Dron Electrical Co.,
Inc.) and Clayton H. Williams and John T. Gurga-
nus. Cases 14-CB-2687-1 and 14-CB-2687-2
July 10, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
employees "because of their lack of membership in Respon-
dent."
All parties appeared and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence. Briefs were filed by General Counsel
and Respondent. Upon the entire record I and my observa-
tion of the testimonial demeanor of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION , LABOR ORGANIZATION INVOLVED
On March 28, 1974, Administrative Law Judge
Samuel M. Singer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the ex-
ceptions and briefs and has decided to affirm the
Administrative Law Judge's rulings, findings,' and
conclusions and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , International Brother-
hood of Electrical Workers, Local 309 , AFL-CIO-
CLC, its officers , agents, and representatives, shall
take the action set forth in the said recommended
Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the
record and find no basis for reversing his findings
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This case
was tried before me in St. Louis, Missouri, on December 17,
1973, and January 14-15, 1974, based upon charges filed
September 26 and complaint issued November 13, 1973.
The issue litigated was whether Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the National Labor Relations Act
by threatening to assault and inflicting physical abuse on
two employees; and by causing or attempting to cause R.
Dron Electrical Co., Inc. ("Dron") to discharge the two
Dron , a Delaware corporation with its place of business
in Granite City, Illinois, distributes and installs electrical
equipment and related products . It annually purchases and
receives goods valued in excess of $50,000 directly from
points outside Illinois. I find that at all material times Dron
has been and is an employer engaged in commerce within
the meaning of the Act, and that assertion of jurisdiction
here is proper.
Respondent ("Local 309") is a labor organization within
the meaning of Section 2(5) of the Act.
11 ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background; contractual relations and hiring practices
Dron, member of an Employer Association,' had for
many years been a party to collective agreements between
Respondent (Local 309) and the Association. The agree-
ment in effect during the period here involved provides that
the Union "shall be the sole and exclusive source of referrals
of applicants for employment." However, Association
members retain "the right to reject any applicant" and are
"free to secure applicants" directly if the Union is unable
to make referrals within 48 hours after the employer's re-
quest. All referrals are to be made "without discrimination
... by reason of membership or nonmembership in the
union" in accordance with an established system of priority.
Among applicants referred for employment are "travel-
ers," who are members of locals other than Local 309, affili-
ated with the International ("IBEW"), who seek em-
ployment within the area of Local 309's jurisdiction. A
traveler pays his regular dues to his "home" local and his
"working dues" to Local 309. Travelers must report to Local
309's union hall on the third Tuesday of each month to have
their introductory cards or "work permits" "validated" and
to enable Local 309 to check on their dues status in their
home locals. A traveler may work out of Local 309's juris-
diction indefinitely. Thus, Gurganus, a journeyman line-
man and Local 846 (IBEW) member, has worked for
contractors in Local 309's area since 1968; and Yenny, a
Local 51 member, has worked for the same contractor in the
Local 309 area (Dron) for 4 or 5 years
Transcript corrected by my order on notice dated March 13, 1974
i American Line Builders Chapter , National Electrical Contractors
("N ECA")
212 NLRB No. 59
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's dispute with Donovan Construction Co.;
its problems in filling Donovan's manpower needs
Union Business Agent Faust testified that Local 309 has
"continually" had serious problems in implementing its col-
lective agreement with Donovan Construction Company,
which was constructing a 20-mile 345,000 volt transmission
line for Illinois Power Company. The major dispute in-
volved Donovan's practice of assigning certain tasks to
journeymen-linemen , groundmen, and others in alleged vio-
lation of the collective agreement. In a notice to employees
dated October 14, 1972, the Union instructed its members
to see to it that the contractual provisions covering job
classificstions were not being "abuse[d]." The differences
between Donovan and the Union were ultimately processed
as a grievance under the contract grievance-arbitration pro-
cedure.3 Claiming that Donovan was not abiding by the
resolution of the grievance, rendered by the Industrial Rela-
tions Council (supra, fn. 3) on February 19, 1973 (as the
Union construed the Council decision), members continued
to refuse to perform certain work at Donovan-until the
latter obtained a temporary restraining court order and a
settlement was worked out by Donovan and the Union.
On May 24, 1973, before finalization of the settlement
agreement, the Union held a meeting at which Assistant
Business Manager Turpin reported at length on the Dono-
van dispute-including the grievance discussions, the tem-
porary restraining order, and the pending settlement.
Charging Party Williams, who attended the meeting, ques-
tioned Turpin about changes Donovan was allegedly mak-
ing in the contract classifications of groundmen and
linemen , accusing Donovan of dictating to the Union "how
they [the Union] was going to run theirjob." When Williams
asked "what was going to happen" to groundmen and
others whose classifications Donovan changed, Turpin's su-
perior, Business Agent Faust, jumped up, called Williams a
"flap mouth," and told him that if he "didn't like what the
hell was going on in this jurisdiction to get the hell out of
the hall and out of the jurisdiction and to stay out."4 Faust,
like Turpin before, reviewed the background of the Union's
dispute with Donovan-including the Council decision and
the settlement worked out by the parties.'
The record shows that in addition to problems relating to
the work of linemen and groundmen, the Union encoun-
tered difficulties in filling Donovan's requests for help. Al-
though the terms of the Association contract (supra, sec. A,
3 Under Article 2 of the collective agreement a grievance is initially han-
dled by a Labor-Management Committee consisting equally of union and
employer representatives In case of disagreement, the dispute is referred to
the Council on industrial Relations for the Electrical Contracting Industry
for "final and binding" resolution
4 Williams, a lineman and member of Local 649, has worked in Local 309's
geographical area as a "traveler" from time to time since 1958-for Dron
continuously from March 1972
5 The foregoing findings are based primarily on the composite and mutual-
ly corroborative testimony of Williams and employee Richardson The latter.
ajourneyman-lineman and Local 309 member for 13 years, impressed me as
highly credible and trustworthy, he was a disinterested witness with no
personal stake in the outcome of this proceeding Faust admitted leveling "a
few slang expressions" at Williams and ordering him "to get out of our local,
get the hell out of our jurisdiction," but claimed that this was prompted by
Williams' unfair comment that the Union had been making "under the table"
deals and by the assertion that "Donovan Company was running the local."
1) were applicable to Donovan as well as to contractors like
Dron-so that job classifications and wage rates were iden-
tical-credited evidence establishes that the Donovan job
was regarded by employees as less desirable than the Dron
job .6 In any event, as Business Agent Faust testified, "there
was a great deal of turnover of personnel" at Donovan and
it was difficult to fill its needs. Faust and his assistant Tur-
pin further testified that in addition to seeking to man the
job with Local 309 members and travelers, they tried to
procure men through other locals.' Donovan itself was per-
mitted to hire directly-outside the union hall-and even
brought in Canadian workers because Local 309 was unable
to meet its manpower needs.8 On September 17, Faust, Tur-
pin, and International (I BEW) representatives met with Don-
ovan officials in the International's Chicago office to resolve
the manpower problem. The Union promised to do "ev-
erything possible" to man the Donovan job.
3. The Union's September 18 requests of six Dron em-
ployees ("travelers") to quit Dron and work for Donovan
The next day (September 18, the third Tuesday of the
month, when travelers working out of Local 309's jurisdic-
tion came to stamp or validate their permits), Assistant
Business Agent Turpin asked the six travelers working for
Dron 9 whether they "wanted .. . to quit" Dron to work for
Donovan. Turpfn testified that he approached these men
because Dron had laid off employees in recent weeks and
had "indicated there were going to be more layoffs."10 Dron
employee Craft testified credibly that Turpin asked him "to
quit because he needed the [Dron] job for some local hands
he had." Craft said "O.K.," but when Turpin revealed that
he would be referred to Donovan he "didn't want to work
there" and quit Dron that afternoon. Yenny testified credi-
bly that when Turpin asked whether he "would quit" Turpin
informed him that he was "going to ask all the [Dron] travel-
ers to leave"; Yenny agreed to quit, but was told to finish
out the week.
Gurganus testified credibly that Turpin told him that he
"needed some jobs" because he had "some men on the
bench" (i.e., laid-off members). Gurganus said he would
leave at once, but Turpin said that he might as well finish
out the day. According to employee Williams, when Turprn
asked him to leave, Turpin indicated that he needed the
Dron jobs "to make room" for laid-off Local 309 members.
Turpin told him that if he left, he would send him to Dono-
van. Williams refused, stating that Local 309 members were
available for referral to Donovan. He agreed to leave, how-
ever, if all Dron travelers left, including Yenny who was to
quit at the end of the week. Williams said, "Well good, if
he'll leave Friday, then I'll leave Monday." Turpin asked
6 While the Donovanjob involved a good deal of steel construction, Dron's
involved only wood pole construction
7 According to Turpin, 8 of the 25 men on the Donovan payroll during
September were Local 309 members
Those hired directly were "cleared" through Local 309, securing " intro-
ductory" cards or permits like travelers
9Craft, Yenny, Gurganus, Williams, McCord, and England.
10 According to Superintendent Hitt, a week or two before September 18
he informed Turpin that he laid off three men (two truckdrivers and a
lineman) because they were "nonproductive " He also said that "one more
man" was going to be released
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 309
him not to tell Dron that he had been asked to leave; and,
as in the case of all Dron travelers to whom he spoke that
day, Turpin stamped (validated) Williams' permit.
The two other Dron travelers, England and McCord,
agreed to quit and were referred to the Donovan project on
September 20.
The record shows that it is an established practice for an
IBEW Local to request travelers working in another Local's
jurisdiction to quit to go to another job or just not work.
According to Yenny, this was the situation while he worked
out of Local 2 and Local 193, as well as Local 309, in each
case the decision to quit being up to the traveler. Gurganus,
who testified in similar vein, stated that a traveler would be
asked to leave a job to make room for a member "on the
bench" when "no other jobs [were] available [for the mem-
ber] in the jurisdiction." According to Dron Superintendent
Hitt, who at one time was a Local 309 member as well as
traveler, members (as well as travelers) have been asked to
quit one job to man another project. Union Officials Turpin
and Faust testified that they have requested both travelers
and members to go from job to job for a variety of reasons,
including the need for a skilled craftsman or because of a
special need to man a project.
Turpin indicated that although some Local 309 members
were requested to man the Donovan job around September
18, none were willing to do so, except for men who had
worked for contractors that had laid off, or were about to
lay off, members. Both he and Faust admitted that some
members were "on the bench" (unemployed) and could
have been sent to the Donovan job. 11
4. Dron's objections to the Union's requests of its travel-
ers to quit their jobs
Company Superintendent Hitt testified that he got "the
first inkling" of what was happening when Craft, one of his
travelers, left word that he was "quitting." When he called
Craft that night (September 18), Craft said "the Union told
him they needed his job and that he was leaving." Hitt also
called Yenny who said he had been "asked to leave" and
that he will "quit" at the end of the week.12 Hitt then re-
ceived a call from Williams who reported that, although
requested to quit, he "wasn't going to leave the job until all
the other [Drop] travelers had left."
Business Agent Faust testified that the next morning
(September 19), Dron President Lomax telephoned him and
said that "three or four" people, including Williams, com-
plained that Business Agent Turpin "would not stamp"
their permits and had requested them "to leave their jobs."
Faust answered that he was "trying to man [the] Donovan
job" and that Turpin "was only following [Faust's] orders"
to "inquire if any [Dron travelers] would go to the Donovan
"Although Turpin claimed that one unemployed member ("Charles")
could not perform the Donovan work because he was "up in the years and
physically can't do the job" and that another (Bangle) found it inconvenient
to travel to the Donovan site because of a seriously ill wife, he advanced no
reason why other unemployed members (Roper, Eccles, Grotecke, Mell
Craft) were not asked to go to Donovan According to Turpin, one member
(Zuber) had previously "tried the Donovan job" and quit
12 Hitt also quoted Yenny as saying that he was told "not to say anything
more" and Hitt accordingly "didn't pressure" him further
411
job." He also stated that Dron Superintendent Hitt had
previously indicated that Dron was "going to have another
layoff." It was agreed to get together the next day to
"straighten" out the situation.13
After his telephone conversation with Lomax, Faust
asked Turpin if he had talked to Dron's employees about
manning the Donovan job. When Turpin replied he had,
Faust said, "I want you to go with me . .. we are going to
go for a ride."
5. The September 19 Faust-Williams incident
a.
Faust and Turpin drove up to the Dron's New Baden,
Illinois, jobsite (where Williams was working) around 2 p.m.
Faust walked over to Williams, displayed his union card,
and asked to see Williams'. After showing each other's
cards, Faust said, "You phoney son-of-a-bitch. What the
hell did you tell Dron Electric last night"-accusing Wil-
liams of telling Dron President Lomax that the Union was
"pulling the travelers from Dron." Williams denied talking
to Lomax, insisting that he spoke only to Superintendent
Hitt who "already heard about it.- 14 Faust uttered another
obscenity and Williams returned in kind. Faust then said
that he "wanted [Williams] off the job," but Williams insist-
ed that he "wasn't going to go until he saw all of the other
travelers had left"-asserting that he "had been coopera-
tive" on other occasions when he left jobs before other
travelers were asked to leave.
At this point Faust beckoned Richardson, foreman of the
crew who had overheard part of the exchange between
Faust and Williams. Faust told Richardson that Williams
had "solicited" his job instead of going through the hiring
hall procedure. Richardson said that he "didn't believe it."
Faust continued demanding that Williams "get off the job,"
accusing him of not being a "good union man" and a "good
lineman." Williams retorted, "I am as good a lineman as
you are a business agent and at least I don't make deals
under the table." Faust then "shoved" Williams onto the
trailer by which he was standing with "a small push," and
some bumping and "foot scuffing" ensued. Faust asked
Williams "what time [the men] got off work" and when
"show-up was," i.e., where the trucks were parked for the
night. After Williams gave him the information, Faust said,
"I will see you then."
At 4 p.m. quitting time, Faust and Turpin showed up at
the truck park-a service station. As Williams approached
them, Faust "waved away" the rest of the crew which left
for the back of the service station. To Williams' inquiry
whether he wanted "to talk some more," Faust responded,
"You're Goddam right I want to talk some more, and that's
not all I want to do." Faust then asked Williams to "get in
13 Also, according to Faust, Lomax quoted Williams as saying that Turpin
"better stamp his permit or else," to which he (Faust) responded "I am not
particularly fond of anybody making threats against one of my representa-
tives " It is hard to believe that Lomax made the quoted statement. Williams
freely testified that despite his objections to quitting and going to the Dono-
van job, Turpin validated his card
14 It will be recalled that Hitt had telephoned employees Craft and Yenny
on the preceding night to ascertain why they were quitting Hitt received
Williams' call later that evening. (See supra, sec A, 4 )
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the car and take a ride out in the country," but Williams
refused and suggested that Faust do whatever he intended
to do right there. Faust said, "I'm not going to do nothing
here because there's too many witnesses and I don't want
to go tojail," and thereupon invited Williams to accompany
him to the union hall. When Williams said he would see him
there the "next report date" (i.e., the third Tuesday in Octo-
ber), Faust said, "You're not going to be around long
enough for the next report date, because I'm going to get
you." Williams turned around to leave for home.
At this point Faust approached Richardson, who was
preparing to leave, and asked him which car was Williams'.
Richardson said that Williams had already left and asked
"what was going on." Faust answered, "Don't act dumb,"
and got into his car.
The next morning (September 20), Trybinshi, a truckdriver
on another Dron crew, told Williams that Faust and Turpin
"had pulled" him over "along [the] side of the road" and
asked him where Williams resided. Trybinshi also reported
the incident to Richardson, Williams' crew foreman.
Sometime during the confrontation between Williams
and Faust, the latter threatened to file internal union
charges against Williams with the Union's executive board;
Faust later filed such charges.15 Williams, in turn, filed
union charges against Faust and Turpin; he filed the unfair
labor charges against the Union here on September 26.
to comply with Turpin's request that Williams "quit" Dron
and move to the Donovan project in order to make room
for a Local 309 member. Nor do I credit Faust's explanation
that he went to the jobsite in the first place solely to check
whether Turpin had refused to stamp (validate) Williams'
permit as claimed by Dron President Lomax. The fact is
that Faust checked on this matter with his assistant (Turpin)
before going to the jobsite and that Turpin assured him that
he had stamped Williams' as well as other travelers' cards.
Turpin's surmise that Faust wanted to check out "two dif-
ferent versions"-Turpin's and Lomax'-appears to be an
afterthought to supply a legitimate rational motive for
Faust's initial move against Williams. Turpin's other testi-
mony on the Faust-Williams episode-he admittedly did
not hear or witness all of their conversations-is transpar-
ently biased. Turpin colored and exaggerated his account of
Williams' "under-the-table" remark even more than Faust;
he minimized the physical contact between Faust and Wil-
liams as a mere "reflex push." Turpin impressed me as a
witness openly devoted to promotion of his supervisor's
(Faust's) wishes and interests.
As between Williams and Richardson on the one hand
and Faust and Turpin on the other, I credit the version of
the first two-on the basis of testimonial content and qual-
ity as well as comparative demeanor.
b.
The above findings are based almost entirely on the com-
posite and mutually corroborative testimony, of Williams
and Richardson. As already noted (supra fn. 5), the latter
was a highly credible witness who has no personal interest
in the outcome of this litigation. Faust adrrutted much of the
conduct attributed to him by Williams and Richardson-
including the use of vulgarities; accusations that Williams
was a "phoney," that he "solicited" his job and that he was
..not a good union man"; that he (Faust) "did touch Wil-
liams on his shoulder," but claimed it was done "very light-
ly" without intent to harm; that he "invited" Williams for
a ride in the country and, when Williams refused, to the
union hall; and that he then tried to follow Williams to get
his license number and stopped Trybinshi on the road-but
claimed he did all this only to determine Williams' mailing
address so that he could file and serve union charges against
him. Yet, Faust also testified that when he asked Richard-
son "what kind of car" Williams had and Richardson asked
"what is going on here," he (Faust) told him "not be so
naive." At a later point, Faust admitted that he was wrong
in asking Williams to ride out to the country, adding, "thank
God now I didn't do it to him."
I do not credit Faust's explanation that the whole chain
of events (his threats and the altercation) were but a "per-
sonal matter" and the result of Williams' accusation that
Faust had made "under the table" deals with contrac-
tors-a matter totally unconnected with Williams' refusal
15 According to Faust, he decided to file the charges against Williams
before the latter's "under-the-table" remarks-on the ground that Williams
was "creating dissension on the job and telling the employer his ticket was
not stamped "
6. The Dron-Union September 20 meeting on the
Union's quitting requests and on the Faust-Williams al-
tercation
After receiving a report of the Williams-Faust episode
from its crew, Dron arranged to meet with the Union on the
next day, September 20. At the meeting held in the af-
ternoon of that day, the Union was represented by Faust
and Dron by Company President Lomax and Superintend-
ent Hitt.16 The parties discussed the Faust-Williams con-
frontation and the Union's prior solicitation and request of
the six Dron travelers to quit Dron. Lomax stated that he
could not understand why the Union "would want to pull
[his] travelers [when] there was plenty of work in the territo-
ry." Faust stressed that he was "making every endeavor to
man the Donovanjob"; that since Dron had previously laid
off people and "had indicated . . . they were going to lay
off some more, so we asked [Dron's] people to leave"; and
that all six Dron travelers "volunteered to go there."
Hitt stressed the previous day's incident, stating that he
was "highly perturbed that [Faust and Turpin] had been out
on the jobs harassing [his] men"; and that his crew had
reported that Faust "had kicked rocks at Williams and had
tried to provoke him into a fight. Faust replied that "nothing
like that happen[ed]" and that the "whole crew ... must be
hard of hearing"-adding that if it were up to him, he
(Faust) "would fire the whole crew" because it had left early
on a previous occasion. Faust characterized Williams and
Gurganus as "phonies"; and said that "Dron would have
trouble with Mike Faust as long as [Dron] had Clay Wil-
16 Hitt arrived after the meeting started
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 309
hams on the payroll."17 Hitt stressed that Williams "was one
of the best linemen [he] had."18
The meeting broke up with Faust's statement that he
would see what he could do after speaking with his assistant,
Turpin. Lomax and Hitt stressed that they "would like to
have all the men back," especially Craft. When Faust called
back later that day, he told Hitt, "I can't do a bit of good."
The next day (September 21) Dron initiated the pro-
cessing of a grievance charging that the Union violated the
contract referral system by requesting its travelers to quit
Dron's employment. As required by the contract (supra, fn.
3), the grievance was considered by a labor-management
committee consisting of representatives of the Employer
and Union (including Assistant Business Agent Tur-
pin)~the initial step in the grievance procedure. At the
conclusion of the grievance session held on October 11, it
was unanimously agreed that "the referral procedure was
not violated based upon the evidence presented," including
the positions advanced by Company Representatives Lo-
max and Hitt and by Union Representatives Turpin and
Faust. Lomax testified that he did not appeal the decision
to the next step (Industrial Relations Council, supra, fn. 3)
because he was persuaded that "the referral procedure, as
written, did not necessarily apply to the case of the men
being asked to quit."
It is undisputed that Charging Parties herein were neither
notified of nor invited to participate in the grievance discus-
sions; and that neither the September 19 altercation be-
tween Williams and Faust, nor the altercation between
Gurganus and Turpin presently discussed (sec. A, 7), were
covered in the grievance meeting.
7. The September 24 Turpin-Gurganus incident
At the end of the day (4:30 p.m.) on Monday, September
24, Assistant Business Agent Turpin went to the service
station where the Dron employees parked their trucks. He
first approached Yenny and asked "how come [he] didn't
quit yet "19 Yenny answered that he had "understood" Tur-
pin to say that all travelers were going to leave. As Gurganus
walked by, Turpin told Gurganus that he wanted to talk to
him.
Turpin began the conversation with Gurganus by saying,
"Don't give me no bull s-," indicating that Gurganus had
violated Turpin's previous instruction that he tell Dron
nothing about the Union's request that he quit. Gurganus
said that he was not giving him any "bull s-" and that
Turpin had not instructed him .not to tell Dron any-
thing."20 At this point, Turpin grabbed Gurganus by the
17 Although Hitt indicated that Faust "said the same thing," (about having
"trouble" with Faust) in regard to Gurganus, he was vague on this point,
admitting that Faust "was referring especially to Clay Williams ." On the
other hand, 'Lomax did not recall Faust making this threat about Gurganus,
expressly stating that Faust said "Nothing other than the fact that he called
him a phoney and not much of a lineman." It should be noted that the
incident involving Gurganus presently described (sec A , 7)-m which Assis-
tant Business Agent Turpin demonstrated his hostility to Gurganus-did not
occur until 4 days after the September 20 meeting.
18 The above findings are based on the testimony of Lomax, Hitt, and
Faust-to the extent credited . Faust admitted stating that Dron would be
having trouble as long as it employed a worker like Williams , but calimed
that he "was referring" to Williams' poor performance , to his soliciting his
own job, and to his circulating rumors.
19 It will be recalled (supra, sec. A, 3) that Yenny earlier agreed to quit at
the end of the week , on Friday.
413
shoulders and swung him beside one of the trucks, ripping
his shirt on his right shoulder in the process. Turpin then
grabbed Gurganus by the collar under his chin as the latter
called to other employees to witness the incident. Turpin
said that Gurganus "best not be there [at the jobsite] the
next day" and that he "could pack [his] tools and leave the
State of Illinois." When Turpin went on to ask where he was
"going to be tomorrow" and Gurganus replied at home,
Turpin said "You damn sure better not be here.""
Later that night employee Yenny reported the September
24 incident to Superintendent Hitt and said he was "quit-
ting" Dron because he did not "want to be around this
harassment"; Hitt asked him not to leave until he heard
from him further. He then telephoned Gurganus and told
him that he heard about the incident and asked Gurganus
to meet him in his office the next morning, "to see if [he] can
straighten it out." He also called other Dron travelers, in-
cluding Craft.
At the 2-hour meeting held in Hitt's office in the morning
(September 25), Hitt tried to prevail on the employees pre-
sent (Yenny, Craft, and Gurganus) not to quit. Yenny said
that he would "rather leave" than have -"trouble." Craft said
he would like to remain. Gurganus asserted that he would
not go back until "something is settled." Hitt then tele-
phoned an International representative in Chicago (Elliott),
apprised him of Local 309's requests to his men to quit,
complained about the "harrassment" the Local had resorted
to, and said he was "going to the Labor Board" to get the
situation "straightened out." Elliott promised to look into
the matter, but then called back and said that Faust "denied
everything." However, he advised Hitt to tell his men "to
stay on the job, not to quit," adding that the travelers need
not fear that their permits would not be validated in the
future. Hitt relayed Elliott's assurances to the men.
Gurganus testified that he remained away from work for
3 days (September 26-28) because he feared for the safety
of his family' He returned on Monday, October 1, after
Hitt reassured him that he had "nothing to worry about."
Gurganus testified that he never did quit Dron. Yenny testi-
fied that although he quit on September 25 (after the Tur-
pin-Gurganus altercation), he returned to, work the next
day. Craft, who had quit on September 18, returned to Dron
a week later on a referral by the Union.23 Williams never
20 Gurganus did in fact report to Superintendent Hitt what Turpin had told
him when his card was validated on September 18 (supra, sec. A, 3), i.e., that
Turpin "needed some jobs" because he had some men "on the bench."
21 The above findings on the Turpin-Gurganus confrontation are based on
Gurganus' credited testimony, in part corroborated by employees witnessing
some of it-including Zagar and Gates, members of Local 309. Turpin
admitted questioning Gurganus about "carrying tales to Dron." He also
admitted grabbing him by the collar and shoulders, but claimed he did this
only to get him to "cool off" and "had no way of knowing" if he upped his
shirt in the process. I do not credit his testimony that the altercation started
when, in response to his "carrying tales" interrogation, Gurganus retorted that
it was "none of [Turpm's] business" and Gurganus "more or less indicated
I was crooked [and] after some kind of dealings ... " Equally incredible
is his testimony that at the end of the heated fracas he asked Gurganus
(ostensibly in matter-of-fact fashion) whether he had decided on going to
the Donovan job; and that when told "no," Turpm said, "Well, that's good
enough, that's the answer I came down here for." I have previously ex-
pressed my reservations concerning Turpin's reliability as a witness (supra,
sec A, 5).
22 He admitted that no threats were in fact made to his family.
23 Three others (Local 309 members Foster, Bangle and Zuber) were re-
ferred at the same time, but Dron refused to hire one of them (Bangle)
Continued
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit Dron despite his September-19 altercation with Busi-
ness Agent Faust. As previously noted (sec. A, 3), the re-
maining two of Dron's six travelers who were requested to
quit on September 18 (England and McCord), were referred
to Donovan on September 20, after agreeing to work there;
they left Donovan on October 24.
B. Conclusions
1. Alleged violations involving Williams
a.
As found, prior to September 18, the Union (Local 309)
was faced with the problem of meeting the need to man the
Donovan project-lobs regarded as less desirable than the
Dron jobs. On September 18, Assistant Business Agent Tur-
pin requested Dron's six "travelers" (i.e., men working out
of Local 309's jurisdiction who belonged to other IBEW
Locals) to quit Dron for referral to Donovan, although
unemployed Local 309 members were available for referral
to Donovan. It is not unusual for IBEW Locals to ask
travelers working in their areas to make room for members
"on the bench," leaving the decision to comply with the
travelers. Four of the six Dron travelers initially agreed to
"quit" and work for Donovan. A fifth (Craft) did not object
to quitting, but refused to go to Donovan. And the sixth
(Williams) first refused to quit, but then agreed to do so
after all other Dron travelers did. Williams had previously
(at a July 24 union meeting) incurred Business Agent
Faust's wrath by questinging the Union's dealings with Do-
novan-Faust telling Williams that if he "didn't like what
was going on in this jurisdiction to get the hell out of the hail
and of the jurisdiction and stay out."
The next day (September 19), Faust went to the Dron
jobsite (accompanied by Turpin) and accused Williams of
telling Dron President Lomax that the Union was "pulling
the travelers from Dron," contrary to Turpin's previous
instruction that he make no disclosure. Williams denied
talking to Lomax, but conceded speaking to Superintendent
Hitt who, he pointed out, "had already heard about" the
Union's quit requests from other employees. The two then
exchanged vulgarities, Faust exclaiming that he "wanted
[Williams] off thejob" and accusing Williams of "soliciting"
his job without "going through the hiring hall procedure."
Responding to Faust's charges that he was not a "good"
union man and lineman, Williams said that he was "as good
a lineman as you are a business agent . . . at least I don't
make deals under the table." A fracas developed with Faust
shoving Williams onto a nearby trailer. When Faust reap-
peared at the "show-up" at 4 p.m. quitting time , Williams
asked whether he wanted "to talk more"; Faust retorted,
"You're Goddam right . . . And that's not all I want to do."
Reflecting on Williams' refusal to "take a ride out in the
country" with Faust, the latter mused, "I'm not going to do
nothing here because there's too many witnesses and I don't
because it had previously laid him off for being "nonproductive" Another
(Zuber), previously laid off for the same reason and at same time, was not
refused employment
want to go tojail." Williams also spurned Faust's alternative
request to accompany him to the union hall, stating that he
would see Faust on the "next report date" (when he would
have to validate his permit), but Faust said, "You're not
going to be around long enough for the next report date,
because I'm going to get you." After Williams left the job-
site , Faust tried to find out where Williams resided. A Dron
truckdriver, whom he pulled over to the side of the road,
refused to tell him because he feared "trouble."
After receiving a report of the incident Dron officials
Lomax and Hitt met with Faust to discuss the altercation
and the Union's requests to the Dron travelers to quit-
which requests led to the Faust-Williams incident. Hitt stat-
ed that he was "highly perturbed" by Faust's visit to the
jobsite and his "harassing" the men. Faust denied that the
incident occurred as portrayed, called Williams (and also
Gurganus) "phonies," and said that "Dron would have
trouble with Mike Faust as long as [Dron] had Clay Wil-
liams on the payroll."
b.
I find, as alleged in the complaint, that Business Agent
Faust on September 19 "threatened to assault and did inflict
physical abuse" on Williams; and that the Union (through
its agent Faust) thereby restrained and coerced employees
in the exercise of rights guaranteed by Section 7, in violation
of Section 8(b)(1)(A) of the Act-here the right of Williams
and other employees to refrain from assisting the Union in
getting the travelers to leave their jobs in order to provide
employment to Local 309 members. Cf. Edward Kraemer &
Sons, Inc., 203 NLRB 739 (1973); Pacific Maritime Associa-
tion, 192 NLRB 338, 348-349. Such coercion "into following
the union's desired hiring practices deprived [the employ-
ees] of a protected right." (Radio Officers' Union of the Com-
mercial Telegraphers Union [A. H. Bull Steamship Company]
v. N.L.R.B., 347 U.S. 17, 42). "The natural and foreseeable
consequence of [Faust's conduct] was to impel [Williams]
and others to respect the position and accept the authority
of Union officials, and [Faust] must be deemed to have
intended that result." (Lummus Company v. N.L.R.B., 339
F.2d 728, 734 (C.A.D.C., 1964).)
1 reject Respondent's suggestion (br. p. 46), that the
Faust-Williams incident was no more than a "personality
clash . . . in which both persons have filed charges against
each other under the IBEW International Constitution."
The record establishes, and I find, that the root cause of the
threats and assault against Williams stemmed not from Wil-
liams' charge that Faust had made "under the table" deals
with contractors, but from Faust's belief that Williams had
reported to his employer that the Union was "pulling the
travelers" and from Faust's resentment against Williams
(who once earlier protested the manner in which the Union
operated) for not fully cooperating with the Union's request
that he (and other travelers) quit the Dron job to work at
the less desirable Donovan job. In any event , it is unrea-
sonable to assume that the employees could distinguish
[Faust's] personal feud with [Williams]" from his insistence
that Williams comply with the Union's quitting request.
General Truck Drivers, Chauffeurs, Warehousemen, and
Helpers of America, Local No. 5 [Union Tank Car Co.] v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 309 415
N.L.R.B., 410 F.2d 1344, 1347 (C.A. 5, 1969). See also Pacif-
ic Maritime Association, 192 NLRB 338, 352.
C.
I further find that the Union, in violation of Section
8(b)(2) of the Act, attempted to cause Dron to discharge
Williams because of his failure to cooperate and comply
with the Union's efforts to get the Dron employees to quit
and because of its business agent's (Faust's) belief that Wil-
hams was obstructing and impeding such efforts by report-
ing his decision to "pull" all Dron travelers.24 It will be
recalled that on September 20, the day after Business Agent
Faust threatened and assaulted Williams, Dron officials
protested Faust's conduct. In addition to characterizing
Williams (and also Gurganus) as a "phoney," Williams stat-
ed that "Dron would have trouble with Mike Faust as long
as [Dron] had Clay Williams on the payroll." Implicit in this
statement, in the light of its timing and context, is the threat
that Dron would have no industrial peace unless it got rid
of Williams. "This ... establishes the requisite causation
under Section 8(b)(2)." (N.L.R.B. v. Local 50, American
Bakery & Confectionery Workers Union, AFL-CIO [Ward
Baking Co.], 339 F.2d 324, 329 (C.A. 2, 1964).) The law is
settled that "if the Union's action, directed to an employer,
was intended to discipline an individual . . . for violation
of union rules, or to encourage individuals to accept the
authority of union officers ... such action constitutes an
unfair labor practice." Lummus Company v. N.L.R.B., 339
F.2d 728, 733-734 (C.A.D.C., 1964). See also N.L.R.B. v.
Local 490, International Hod Carriers [Dickmann-Pickens-
Bond Construction Co.], 300 F.2d 328, 332 (C.A. 8, 1962).
Accordingly, I conclude that Respondent violated Sec-
tion 8(b)(2) as well as Section 8(b)(I)(A) of the Act insofar
as its conduct affected employee Williams.25
2. Alleged violations involving Gurganus
As in the case of Williams, Assistant Business Agent
Turpin's September 24 altercation with Gurganus originat-
ed in an accusation that Gurganus, contrary to. instructions,
had reported to his employer the Union's request that he
quit his job. As shown (supra, sec. A, 7), Turpin physically
attacked Gurganus (ripping his shirt in the process) and
warned that he "best not be there [at the jobsite] the next
day," advising him to leave Illinois. Apprised of the inci-
dent, Superintendent Hitt met with several travelers (includ-
ing Gurganus) the next morning and sought to prevail upon
them not to quit. Hitt telephoned International Representa-
24 Respondent correctly points out that the complaint does not allege as
a violation the Union 's general practice (also followed by other IBEW Lo-
cals) of requesting travelers to quit to go to other jobs (or just stop work) in
order to make room for Local 309 members, where the travelers' compliance
with such request is purely voluntary. The issues litigated and resolved here
are whether the Union, through threats and assaults, attempted to coerce two
employees (Williams and Gurganus ) to quit their employer ; and then at-
tempted to cause the employer to discharge them for failing to comply with
and obstructing the Union 's decision to get the Dron employees to leave their
jobs.
251 find no merit in Respondent 's contention (br. pp 40-42) that the
instant proceeding was unnecessary and superfulous because the issue wheth-
er or not the Union violated the contractual referral system (by requesting
tive Elliott in Chicago, threatening "to call the Labor
Board" unless the situation was "straightened out." He then
relayed to them Elliott's assurances that they need not quit
and should "stay on the job." Still fearing for the safety of
his family, Gurganus remained home 3 working days until
Hitt reassured him that he had "nothing to worry about."
I find that Turpin's threats and physical abuse toward
Gurganus had the purpose and effect of restraining and
coercing employees in the exercise of their statutory right to
refrain from assisting the Union in getting the Dron travel-
ers to quit their jobs in order to make room for Local 309
members. Like his superior's (Faust's) conduct toward Wil-
liams, Turpin's actions were violative of Section 8(b)(1)(A)
of the Act. Contrary to Respondent's contention (br. p. 46),
the two incidents-involving two of six travelers, were by
no means "isolated." In any event, even if "few in number"
the incidents were "positive and purposeful" justifying is-
suance of a cease-and-desist order. (N.L.R.B. v. Essex Wire
Corporation, d/b/a Essex Corporation of California, 245 F.2d
589, 594 (C.A. 9, 1957).) See also N.L.R.B. v. Local 140,
United Furniture Workers of America [Brooklyn Spring
Corp.], 233 F.2d 539, 540, (C.A. 2, 1956). Moreover, the
"assault on [each of the two employees] was an object lesson
to any of the spectators who in the future might follow the
two employees' [footsteps.]" Pacific Maritime Association,
192 NLRB 338, 348.
However, I reject General Counsel's contention that
Respondent's conduct vis-a-vis Gurganus also constituted
an 8(b)(2) violation. The gravamen of such violation lies in
a union's causing or attempting to cause an employer to
discriminate against an employee. See N.L.R.B. v. Jarka
Corporation, 198 F.2d 618, 621 (C.A. 3); American Guild of
Variety Artists, AFL-CIO, 163 NLRB 457, 458. A request
to discharge or otherwise discriminate, if not explicit, must
be implied. There is no substantial credible evidence that
Respondent had asked for Gurganus' discharge even by
implication. Business Agent Faust's mere statement to
Dron's representatives that Gurganus (as well as Williams)
was a "phoney" is insufficient to establish the requisite
showing of causation. Moreover, this statement was made
before the September 24 incident-in the September 20
conference between Faust and Dron following the Faust-
Williams altercation. As found (supra, fn. 17) while the cred-
ited evidence supports a finding that Faust had threatened
Dron with "trouble" as long as it retained Williams, no such
statement (or like statement) was made in regard to Gurga-
nus.
To be sure, Gurganus suffered loss of wages as a re-
sult of the assault upon him. As noted, he stayed home
3 days in fear for the safety of his family. The Board has
recently reaffirmed the principle that no remedial order
travelers to leave Dron's employment) was decided in its favor by the labor-
management committee in the grievance proceeding Dron had instituted
(supra, sec A, 6). It is clear that the Board will not defer to a grievance award
which, as here, was made by a bipartite (union-employer) committee , includ-
ing officials of a labor organization whose interests are diametrically opposed
to those of the affected union members or employees See Kansas Meat
Packers, 198 NLRB No. 2 (80 LRRM 1743, 1746); Fleet Carriers Corp., 201
NLRB 227, 3, (1973); United Industrial Workers of North America of the
Seafarers\International (Sea-Land Serzvce), 207 NLRB No. 150. Indeed, here
one of the Union's representatives on the committee (Turpin) was directly
involved in one of the two incidents here under consideration (supra,
sec. A, 7).
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compensating for such losses is warranted-in even more
violent union unfair labor practices than here involved. See
Pacific Maritime Association, 192 NLRB 338, 352.
Accordingly, I conclude that while Respondent violated
Section 8(b)(1)(A), it did not breach Section 8(b)(2) of the
Act, insofar as its actions involved Gurganus.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(b)(1)(A) of the Act by
threatening bodily harm and physically abusing employees
because they refrained from assisting the Union in getting
Dron's travelers to leave their jobs in order to provide em-
ployment to Local 309 members.
2. Respondent also violated Section 8(b)(2) of the Act by
attempting to cause Dron to discharge Williams because of
his failure to cooperate and comply with the Union's efforts
to get Dron employees to leave their jobs and because of its
belief that Williams impeded such efforts by reporting its
decision to "pull" all Dron travelers.
3. Respondent did not violate Section 8(b)(2) by causing
or attempting to cause the discharge of Gurganus.
4. The unfair labor practices described in above para-
graphs I and 2 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it should be ordered to cease and desist
therefrom and to take certain affirmative action to effectu-
ate the policies of the Act. Respondent should also make
Clayton H. Williams whole for loss of earnings, if any, by
reason of the discrimination against him 26-backpay to be
computed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1963).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:27
ORDER
Respondent, International Brotherhood of Electrical
Workers, Local 309, AFL-CIO-CLC, its officers, agents,
and representatives, shall:
I. Cease and desist from:
(a) Restraining and coercing nonmembers of said Local
309, by threatening bodily harm or physically abusing them
because they fail or refuse to quit or assist Respondent in
encouraging others to quit employment in order to provide
jobs to members of Local 309.
(b) Causing or attempting to cause R. Dron Electrical
Co., Inc., or any other employer, to discharge or otherwise
discriminate against nonmembers in violation of Section
8(a)(3) of the Act, for refusing to quit employment, in order
to provide jobs to Local 309 members.
(c) In any like or related manner, restraining or coercing
employees in the exercise of any right guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make whole Clayton H. Williams for any loss of pay
he may have suffered because of the action and discrimina-
tion against him, in the manner set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords relevant and necessary to comply with above para-
graph (a).
(c) Post at its business office, hiring halls, and meeting
places copies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Respondent's official representative, be posted by it imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Mail or deliver to said Regional Director signed cop-
ies of the attached notice marked "Appendix," for posting
by R. Dron Electrical Co., Inc., in places where notices to
employees are customarily posted.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps Respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that, except as found herein, all
allegations in the complaint of violations of the Act be
dismissed.
26 Although Williams did not "quit" and is still employed at Dion (supra,
sec A, 7), it is not clear whether he had abstained from the Job for any period
of time because of the threats and physical abuse against him
27 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,
conclusions, recommendations , and recommended Order which follow here-
in 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 objec-
tions thereto shall be deemed waived for all purposes
28 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 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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before an Administrative Law Judge, at which
all sides gave evidence, it has been decided that we have
violated the National Labor Relations Act, and we have
been ordered to post this notice.
We give you the following assurances:
WE WILL NOT threaten bodily harm, physically abuse,
or 'otherwise corece nonmembers (including travelers)
to quit their jobs, or to assist us in encouraging others
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 309
to quit their jobs, in order to provide employment to
our members.
WE WILL NOT cause or attempt to cause R. Dron Elec-
trical Co., Inc., or any other employer , to discharge or
otherwise discriminate against nonmembers , in viola-
tion of Section 8(a)(3) of the Act, for refusing to quit
or assisting us in encouraging others to quit employ-
ment in order to provide jobs to our members.
WE WILL NOT, in any like or related manner , restrain
or coerce nonmembers in the exercise of any right guar-
anteed in Section 7 of the Act.
WE WILL make whole Clayton H. Wilhams for any
loss of pay suffered by reason of the discrimination
against him.
Dated By
417
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, Lo-
CAL 309 , AFL-CIO-CLC
(Labor Organization),
(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 direct-
ed to the Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone 314-622-4361.