Local 271, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Mar 20, 1964

146 N.L.R.B. 397 (N.L.R.B. 1964)

LOCAL 271, INT'L BROTHERHOOD ELECTRICAL WORKERS 397
for absenteeism at both Barnett and Barberton , that he would not have continued
to have charged absences from work to his vacation pay I do not believe he is
equitably entitled to this further credit .6
5. Absenteeism
James L. Phillips , plant superintendent at I. A. Barnett Co ., was called as a
witness by Respondent and testified that Hetrick was employed by Barnett from
May 14, 1962 , until March 8, 1963 . His gross interim earnings for that period were
$2,930.96, a figure not disputed . Phillips also testified that during this employment
Hetrick was absent a total of 21 days, days which the Respondent claims should be
disallowed in computing Hetrick's estimated earnings had he been employed at
Barberton . However, although Respondent 's Exhibit No. 5 supports this estimate
of absenteeism , Respondent's Exhibit No. 7, a summary of Hetrick's work record
and the reasons for his discharge by Barnett , indicates only 10 days of absence for
work. In view of this discrepancy I shall accept the General Counsel 's allowance
for absenteeism in his computation (2.84 hours per week ) as a reasonable estimate
in a conjectural situation . Of necessity only a rule of thumb can provide the guide
to computation in a situation such as this and the computation suggested by the
General Counsel , except for vacation pay, I find essentially equitable.
6. Computation of backpay
On the basis of the foregoing I find Hetrick should be made whole for the loss
of earnings as follows:
Weekly rate
(based on 38.25
hours)
Number of weeks
Gross
backpay
Interim
earnings
Net
backpay
$86.06-------------- 9 (1st quarter) --------------------------------- $774.54 $647.16 $127 38
13 (2d quarter) --------------------------------- 1,118 78 981.88 136 90
1316 (3d quarter) ------------------------------ 1,135 99 717 67 418 42
12% (4th quarter) ----------------------------- 1,101 57 574 45 627.12
13 (5th quarter) ------------------------------- 1,118 78 0 1,118.78
8 (6th quarter) ------------------------------- 516 36 0 516.36
Total-------- --°°------------------------------------------ ------------ ------------ 2,844.96
RECOMMENDED SUPPLEMENTAL ORDER
Upon the foregoing findings and conclusions it is recommended that the Board
order the Respondent , Barberton Plastics Products, Inc., of Barberton , Ohio, its
officers, agents, successors , and assigns to pay Paul T. Hetrick the sum of $2,844.96
with interest at the rate of 6 percent per annum on each of the quarterly sums
found due above from the end of each calendar quarter . Isis Plumbing & Heating
Co., 138 NLRB 716.
6 Of. Hill Transportation Company and MacKenzie Coach Lines, Inc., 102 NLRB
1015, 1023.
Local 271, International Brotherhood of Electrical Workers,
AFL-CIO [The Philco Corporation and/or J & G Electric Co.,
Inc.] and Burt W. Stemmons . Case No. 17-CB-363. March 20,
1964
DECISION AND ORDER
On October 22, 1963, Trial Examiner Sydney S. Asher Jr., issued
his Decision in the above-entitled proceeding,, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
146 NLRB No. 53.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and- recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the General
Counsel filed an answering brief to the Respondent's exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
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 briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
1 No exceptions were filed to the Trial Examiner 's conclusion that the matter of an
independent violation of Section 8(b) (1) (A) was not properly before him for disposition
nor to his acceptance of J & G alone as Stemmons ' employer as contended by Respondent,
and we adopt those holdings pro forma.
In adopting the Trial Examiner 's conclusion that the Respondent "caused" Stemmons'
loss of employment within the meaning of Section 8(b)(2), we note the existence of the
collective-bargaining agreement between the Respondent and J & G, which required the
latter to rely upon the Respondent exclusively for its source of employees.
In adopting the Trial Examiner 's recommendation that backpay run to July 9, 1963, we
note that the record does not establish that the Union, at any earlier date, unequivocally
withdrew its objection to the reemployment of Stemmons and requested such reemployment
byJ&G.
2 The Recommended Order is hereby amended by substituting for the first paragraph
thereof the following paragraph:
Upon the entire record in this case , and pursuant to Section 10^(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that the Respondent, Local 271, International Brotherhood of Electrical Workers,
AFL-CIO, its officers, agents, representatives , successors, and assigns , shall:
TRIAL EXAMINER'S DECISION
On May 7, 1963 , Burt W . Stemmons filed charges against Local 271, International
Brotherhood of Electrical Workers, AFL-CIO, Wichita, Kansas, herein called the
Respondent . The General Counsel' issued a complaint on July 30, 1963, alleging
that on or about April 22, 1963, the Respondent caused or attempted to cause The
Philco Corporation , herein called Philco , and/or J & G Electric Co., Inc ., herein
called J & G, to discharge Stemmons because he was not a member of the Respond-
ent. It is alleged that such conduct violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended (61 Stat . 136), herein called the Act.
Thereafter the Respondent filed an answer denying the material allegations of the
complaint , and alleging that Stemmons was an employee of J & G "and voluntarily
left said employment."
1 The term "General Counsel" refers to the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing.
LOCAL 271, INT'L BROTHERHOOD ELECTRICAL WORKERS 399
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on August 22, 1963, at Wichita, Kansas. All parties were represented and par-
ticipated fully in the hearing. After the close of the hearing briefs were filed by
the General Counsel and the Respondent. They have been duly considered.
Upon the entire record m this case,2 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that (1) Philco and
J & G are, and at all material times have been, engaged in commerce as defined in
the Act; 3 (2) the Respondent is, and at all material times has been, a labor organiza-
tion within the meaning of the Act, and (3) Jack Vaughn is, and at all material
times has been , a business representative of the Respondent , acting on its behalf, and
its agent within the meaning of the Act.
A. Background facts
Philco is, and at all material times has been , the prime contractor for the instal-
lation of certain electronics equipment at a missile site development of the United
States Government at Wichita , Kansas, herein called the project . Philco subcon-
tracted certain of the work to States Constructor , Inc., herein , called States. In ad-
dition , States contracted to furnish journeymen electricians to Philco as Philco
required . States in turn orally subcontracted some of these functions to J & G. At
all material times there was in effect between the Respondent and J & G a collective-
bargaining contract containing , among others , the following provisions:
ARTICLE V
REFERRAL PROCEDURE
1. The Union shall be the sole and exclusive source of referrals of applicants
for employment.
2. The Employer shall have the right to reject any applicant for employment.
3. The Union shall select and refer applicants for employment without dis-
crimination against such applicants by reason of membership or non-membership
in the Union.... All such selection and referral shall be in accordance with
the following procedure.
4. The Union shall maintain a register of applicants for employment estab-
lished on the basis of the groups listed below. Each applicant for employment
shall be registered in the highest priority Group for which he qualifies.
There follows a description of the qualifications for four groups, group I being the
highest priority group.
B. Stemmons' hire
For 21 years Burt W. Stemmons has been a member in good standing of Local 11
of the Respondent's parent International, located in Los Angeles, California. For
the past 10 years he has been a resident of Wichita, Kansas. On several occasions,
the last time in 1960, Stemmons attempted to transfer his membership from Local 11
to the Respondent, but his efforts to do so were unsuccessful. Over the years, the
Respondent has referred Stemmons to jobs in rand around Wichita through its
referral system, and he has paid to the Respondent the assessments required of
nonmembers. At all material times, he has been qualified in group I-the highest
priority group-and had signed the group I register.
On or about April 11,4 Philco needed two electricians to work on the project.
On that day John Gwartney, the president of J & G, telephoned the Respondent and
asked to have two electricians report to Arthur L. Smith, manager of the Philco
2 The transcript was corrected in certain respects on October 18, 1963.
s Philco is engaged in the manufacture and installation of electrical equipment. Its
home office is in Philadelphia , Pennsylvania. It sells products and renders services
throughout the United States and in foreign countries valued at more than $1,000,000
annually Its contract at the Wichita, Kansas, project described herein is valued at more
than $250,000. J & G holds a contract under a subcontractor of Philco on the said
project valued at more than $50,000. Its home office is in Roswell, New Mexico.
All dates hereafter refer to the year 1963 , unless otherwise indicated.
744-670-6 5-vol. 146-27
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment installation , at the project . Accordingly, on April 12 , the Respondent
gave written referrals to Stemmons and Lewis Hauser to fill the two vacancies. As
instructed by the Respondent , they went to the project that mormng and presented
their referral slips to Smith. Smith put them to work under the immediate supervi-
sion of Zabkie , field engineer for Philco.
While working at the project Stemmons and Hauser were carried on J & G's
payroll, and J & G paid their wages. However, J & G had no representative present
at the project site to direct them; their work was supervised entirely by Smith and
Zabkie.
C. Stemmons' separation
On the evening of April 22, while he was at home, Stemmons received a telephone
call from Vaughn. Vaughn requested Stemmons to quit his job voluntarily, "in
favor of some local members [who were] out of work." Stemmons replied that he
was qualified in group I and therefore had as good a right to the job as anyone.
Vaughn responded that he had not realized this, and that he would "check into it"
and would see Stemmons on the jobsite the next day.5
On April 23 Stemmons went to work as usual . Stemmons told Hauser (partly
in Zabkie's presence) that Vaughn had called him the night before "and it looked
like it was going to be our last day," and that "we was going to get laid off so
that the local men could replace [us]." About 8 a.m. that day Gwartney went to
the Respondent's office. Vaughn informed Gwartney that " the local union wanted
to replace the two men" (Stemmons and Hauser ) who J & G had working for
Philco -at the project . According to Gwartney 's undenied and credited testimony,
the conversation proceeded as follows:
We talked a little about it, I asked him [Vaughn] the question if there was
any trouble involved , he said he didn't think so, and he could take care of it.
So I left it like that , he could replace them. [Emphasis supplied.]
About noon Gwartney returned to the Respondent 's office and delivered to Vaughn
checks of J & G in full payment of the wages of Stemmons and Hauser to the end
of that day . Also about noon Vaughn telephoned Smith and told Smith "he wished
to replace these two men [ Stemmons and Hauser] with two other electricians."
Smith remarked that their work was satisfactory . Vaughn responded that these
two men "were drifters and he had unemployment among his local members and
he felt obligated to make the shift." 6 Smith then proceeded to the place of work
of Hauser and Stemmons , where Zabkie informed him "we are losing our two
electricians , they are being replaced ." Smith replied that that was what he under-
stood? Smith then told Hauser and Stemmons that they were being terminated
at the request of the Respondent and were being replaced "by two local members."
When Hauser asked why, Smith answered that "it was a union action" and that their
work had been satisfactory . Hauser asked about their termination slips and pay;
Smith replied that these were problems "under the jurisdiction of their employer,
J & G Electric" and promised to contact J & G and get this information for them.
About 2 hours later Smith informed Gwartney that he had been told by the Re-
spondent that "they were replacing the two electricians that were working under
our supervision" and the men wanted information regarding their paychecks and
termination slips. Gwartney asked Smith to tell the two electricians that these
matters would be handled at the union hall that evening after work . Smith relayed
this message to Hauser and Stemmons , who completed their day's work.
On the following morning, two other electricians referred by the Respondent
reported to the project and were put to work in place of Stemmons and Hauser.
On the same morning Stemmons went to the Respondent 's office where he was given
the paycheck Gwartney had made up and delivered to the Respondent at noon the
previous day. Stemmons never received any termination slips
B The findings of fact regarding this telephone conversation are based upon a synthesis
of the testimony of Stemmons and Vaughn.
°The findings of fact regarding this telephone conversation are based upon Smith's un-
denied testimony , corroborated in part by Vaughn's admission that "I did indicate [to
Smith ] that I would like to replace the two men he presently had 'With two other
electricians "
7 The findings of fact regarding this conversation are based upon Smith 's undenled
testimony . Zabkie did not testify.
8 Gwartney testified : "Mr. Vaughn wanted me to fill out a termination [ slip] and I
couldn't find anything on it to mark it why I was laying the man off . . . so I couldn't
fill out the termination slips."
LOCAL 271, INT'L BROTHERHOOD ELECTRICAL WORKERS 401
Stemmons applied to the employment security division of the Labor Department
of the State of Kansas for unemployment benefits. The examiner denied the claim;
Stemmons appealed, and a hearing was held. The referee reversed the examiner's
determination and held Stemmons entitled to benefits. On July 9, after Stemmons
had filed the instant charges, the Respondent referred him again to J & G. There-
after Stemmons worked for J & G on the project approximately 4 weeks until the
job was completed.
D. Contentions of the parties
The General Counsel contends that Stemmons was employed jointly by Philco
and J & G. He further maintains that "Stemmons was discharged solely because of
the insistent demands made by Vaughn to Gwartney and to Smith." Finally, the
General Counsel urges that, as Stemmons was a satisfactory employee, his dis-
charge was actually caused by Vaughn's "direct pressure [on] both J & G and
Philco representatives." The General Counsel does not question the validity of
any of the provisions of the collective-bargaining agreement between the Respondent
and J & G.
The Respondent contends that Stemmons was an employee "of I & G Electric
only." It does not appear to argue that there was any irregularity in Stemmons'
original referral to J & G on April 12, or that he had no valid claim to the job
on April 23 .9 Its principal defense is that it did not cause or attempt to cause
Stemmons' discharge, but that on the contrary "Burt Stemmons terminated his
employment of his own free will." This, in turn, is based upon the assertion that,
in his telephone conversation with Vaughn on April 22, Stemmons "agreed to
terminate" and that on April 23, before Smith spoke to Stemmons, Stemmons had
already told his "boss," Zabkie, that it would be his last day on the job.
E. Conclusions
The record does not support the Respondent's contention that, in telephone con-
versation between Stemmons and Vaughn on April 22, Stemmons promised Vaughn
that he (Stemmons) would quit his job at the project. On the contrary, Stemmons
was noncommital. Indeed, the conduct of both Stemmons and Vaughn on April 23
was completely inconsistent with any prior promise by Stemmons to quit. More-
over assuming, contrary to what has just been said, that the facts were as the
Respondent claims, the Respondent would not be aided; for there is a deep and
fundamental difference between a promise to quit, especially when made to some-
one other than the promisor's employer, and the actual quitting of employment
itself. Insofar as the Respondent contends that Stemmons told Zabkie on April 23
that he had decided to quit, this too lacks support in the record. All that Stem-
mons did on April 23 was merely to express to Hauser his fear that Vaughn might
force Stemmons' employer to discharge him by the end of that day. Although
Zabkie probably overheard, there was no rational basis for Zabkie or anyone
else to interpret this as the equivalent of "I quit ." 10 In sum, I find no probative
evidence that Stemmons intended to quit or that he in fact ever voluntarily ter-
minated his employment. This conclusion is further bolstered by the finding of the
referee of the employment security division that Stemmons "was terminated by a
local employer in favor of a local 271 member," and the award of unemployment
benefits to Stemmons.
This brings us to the question of who was Stemmons' employer. I deem it un-
necessary to decide this issue. For the purpose of this Decision, it will be assumed,
as the Respondent contends, that Stemmons was an employee of J & G only. As
Stemmons did not quit, the inquiry remains: When, through whom, and under what
circumstances did J & G discharge Stemmons? In my opinion, the answer is found
in the activities of Vaughn and Gwartney on the morning of April 23. It will be
recalled that about 8 a.m. that day, Vaughn demanded that Stemmons, a nonmember
of the Respondent, be replaced by a member. Gwartney acquiesced. Thereafter,
about noon, Gwartney effectuated the dismissal by preparing Stemmons' final pay-
check and handing it to Vaughn for delivery to Stemmons. For reasons of his
own, Gwartney chose not to communicate the fact of discharge personally. That
task he entrusted to Vaughn who in turn told Smith, who finally delivered the
9 The Respondent's brief states: "The respondent Local 271 has not raised the defense
that Stemmons was in Group II "
10I note in passing that, as Zabkie was employed only by Philco , the Respondent's
reference in its brief to Zabkle as Stemmons' "boss" seems somewhat inconsistent with the
claim in the same brief that Stemmons was an employee "of J & G Electric only." [Em-
phasis supplied.]
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
message to Stemmons. But regardless of the conduits used, the decision to dis-
charge Stemmons undoubtedly came from Gwartney." On the record before me
I am convinced, and find, that Gwartney discharged Stemmons on April 23 as the
direct result of Vaughn's demand upon Gwartney that morning, which stemmed
from Stemmons' lack of membership in the Respondent. Accordingly, it is found
that by making such a demand for such a reason, thereby causing I & G to dis-
criminate against Stemmons (an employee with respect to whom membership in the
Respondent had been denied on a ground other than _ failure to tender the periodic
dues and initiation fees uniformly required), the Respondent violated Section
8(b)(1)(A) and (2) of theAct.12
F. Matters not covered in the complaint
The General Counsel produced evidence indicating that on or about May 14
Perry Baker, an official of the Respondent, warned Stemmons that if he did not drop
the instant charges he would never again work "out of his jurisdiction." At the
hearing and in his brief the General Counsel urges that the issue whether such
conduct constituted an independent violation of Section 8(b)(1)(A) of the Act
must be decided. However, the complaint alleges no such incident. The Board
has held that "when an issue relating to the subject matter of a complaint is fully
litigated at a hearing, the Trial Examiner and the Board are expected to pass upon
it even though it is not specifically alleged to be an unfair labor practice in the
complaint." 13 Does the issue of an independent violation of Section 8(b) (1) (A) by
Baker on May 14 "relate to the subject matter of the complaint?" In answering this,
it must be recalled that the complaint deals exclusively with Vaughn's conduct on
April 23 of causing Stemmons' employer to discharge him. No date beyond April 23
is mentioned, Baker's name does not appear, and there is no allegation that any
threat was made to any employee or any independent coercion engaged in. Under
all the circumstances, I am of the opinion that the issue here raised is not related
to the subject matter of the complaint, or at most is related only remotely.
But, urges the General Counsel's brief, the matter "[has] been fully litigated."
Let us examine the record. After Stemmons testified about Vaughn's threat on
examination-in-chief, he was cross-examined on the subject by the Respondent's
attorney. Later in the hearing Baker, as part of the Respondent's case, gave his
version of the May 14 incident and was cross-examined by the General Counsel.
After all parties had rested the General Counsel moved to amend the complaint
by adding an allegation to cover the May 14 incident. The motion was denied as
untimely. After the close of the hearing, the General Counsel renewed his motion
to amend the complaint. The Respondent filed an opposition. The General Coun-
sel's second motion was denied as untimely and repetitious. The Respondent in
its brief specifically declined to cover the "collateral issue" of the conversation of
May 14, "because it does not relate to the allegations of paragraph VI." In short,
the Respondent was not willing to enlarge the issues without an amendment to the
complaint. In view of the Respondent's decision not to brief the matter, indicating
its belief that the issue would not be decided, I find that the matter was not fully
litigated.
"In making this finding, I am aware , as the Respondent's brief points out, that
Gwartney testified : "I didn't feel I was laying them [ Hauser and Stemmons ] off" and
that Clyde Thurman, vice president of J & G, testified that, to his knowledge J & G did
not "remove these men from the job." However , this testimony is, in my opinion, in-
sufficient to overcome the clear and convincing evidence that Gwartney did, in fact,
discharge Stemmons
12Internattional Brotherhood of Electrical Workers, Local 861, AFL-CIO ( Ace Electric
Company), 135 NLRB 498; and Consolidated Ventilation and Duct Co , Inc., 144 NLRB
324. Brunswick Corporation, 131 NLRB 1338, cited by the Respondent , is distinguishable
on its facts.
13 Monroe Feed Store, 112 NLRB 1336, 1337 ; Ford Radio & Mica Corporation, 115
NLRB 1046, 1074, remanded on another point 258 F. 2d 457 (C.A. 2), supplemental order
122 NLRB 34; Texas Natural Gasoline Corporation, 116 NLRB 405, 411, enforcement
denied on another point 253 F. 2d 322 (C.A . 5) ; Mid-South Manufacturing Company,
Inc., 120 NLRB 230, 247; and Wellington Mill Division West Point Manufacturing Com-
pany, 141 NLRB 819. Courts seem to differ on this matter. Compare N.L.R B. v. I.B.S.
Mfg. Co. at al., 210 F. 2d 634, 637 (C.A. 5), and N.L.R.B. v. E. & B. Brewing Company,
Inc., et al., 276 F. 2d 594, 598-599 (C.A. 6), cert. denied 366 U S. 908, with N.L.R.B. v.
Puerto Raco Rayon Mills , Inc., 293 F. 2d 941 , 947 (C.A. 1). See also N.L.R B. v.
H. E. Fletcher Co., 298 F. 2d 594, 600 (IC.A. 1) ; and N.L .R.B. v. Fred H . Johnson d/b/a
Atlas Linen and Industrial Supply, 322 F. 2d 216 (C.A. 6).
LOCAL 271, INT'L BROTHERHOOD ELECTRICAL WORKERS 403
• I conclude that the May 14 conversation, not being covered in the complaint, was
not related to the matters contained in the complaint. Moreover, even if it were
so related, it was not fully litigated. For either or both of these reasons, I find that
the issue is not properly before me for disposition.
THE REMEDY
The finding that the Respondent unlawfully caused the discharge of Stemmons
requires that it be enjoined from such conduct in the future, and that it be di-
rected to take affirmative remedial measures to redress the injury done. In these
circumstances , a union is normally directed to send the employer and the discharged
employee proper notification that there will be no further discrimination. Here,
however, the Respondent referred Stemmons to J & G on July 9, and he worked
for J & G thereafter. Accordingly, the General Counsel does not seek the usual
notification.
The amount of backpay to which Stemmons is entitled depends upon the legal
effect of the events of May 15. On that date Vaughn (in the presence of Clyde
Thurman, president of States and vice president of J & G) told Smith that the Re-
spondent felt that Stemmons should be put back to work and that this had been
"cleared" with Gwartney. When Smith asked if someone had "re-employed"
Stemmons , Vaughn replied that he was "sending" Stemmons "back" to Smith for
work in his former job under Zabkie. Smith responded that he was budgeted for two
electricians only and was not authorized to take on an additional man, making it
three. Vaughn then remarked: "We'll find another solution," or words to that
effect.i4
The General Counsel contended at the hearing, and contends in his brief, that
Stemmons should be awarded backpay to July 9, when he was actually reemployed
by J & G. He argues that "a valid clearance for Stemmons' reemployment was
not in any way effectuated" on May 15. The Board has required that under such
circumstances, in order to toll the running of backpay, the union must notify the
employer that it has no objection to the employee's employment and formally request
the employer to offer him immediate and full reinstatement . 15 Moreover, such noti-
fication must be in writing, and a copy must be served upon the individual employee
as well .16 Here, the notification was verbal, not in writing. Even more important,
Stemmons was not informed of the Respondent's change of heart toward him. There-
fore, in agreement with the General Counsel, I conclude that the conversation of
May 15, described above, did not toll the running of backpay.17 Accordingly it
will be recommended that the Respondent make Stemmons whole for any loss of
earnings suffered by him as the result of the Respondent's unlawful conduct toward
him by payment to him of a sum of money equal to that which he would normally
have earned from April 23, 1963, the date of the discrimination against him, to
July 9, 1963, when he was reemployed by 7 & G, less his net earnings during the
said period. Loss of earnings shall be computed on a quarterly basis in the manner
established by the Board, and interest at the rate of 6 percent per annum shall be
added.iS It will also be recommended that the Respondent post appropriate notices
at its business offices, meeting halls, and hiring halls. As J & G's work on the project
has been completed, and as J & G apparently has no office in the Wichita area, it
will not be recommended that notices be posted at the project site or at J & G's
office.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. J & G Electric Co., Inc.,, is, and at all material times has been, an employer
within the meaning of Section 2(2) of the Act.
14 The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Smith and Thurman.
15 Pinkerton's National Detective Agency, Inc., 90 NLRB 205; and Roadway Empress,
Inc., 108 NLRB 874.
19 Pinkerton's National Detective Agency, Inc, supra; United Brotherhood of Carpenters
and Joiners of America, Millmen's Local 824, AFL-CIO ( Brunswick -Balke-Callender Com-
pany ), 115 NLRB 518 ; and International Brotherhood of Electrical Workers, Local 861,
AFL-CIO (Ace Electric Company), supra. -
17 Compare Roadway Express , Inc, supra, at 885, footnote 5.
Ss F. W. Woolworth Company, 90 NLRB 289; and Isis Plumbing & Heating Co., 139
NLRB 716.
404 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 271, International Brotherhood of Electrical Workers, AFL-CIO, is, and.
at all material times has been, a labor organization within the meaning of Section
2(5) of the Act.
3. By attempting to cause, and causing, J & G Electric Co., Inc., to discharge em-
ployee Burt W. Stemmons in violation of Section 8(a)(3) of the Act, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (1) (A) and (2) of the Act.
4. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
It is accordingly recommended that Local 271, International Brotherhood of
Electrical Workers, AFL-CIO, Wichita, Kansas, its officers, representatives , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause J & G Electric Co., Inc., its officers, agents,
successors , or assigns , to discharge or otherwise discriminate against any of its
employees in violation of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing employees of the above-named
Employer in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Make whole Burt W. Stemmons for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth herein.
(b) Post at its business offices, meeting halls, and hiring halls in Wichita, Kansas,
copies of the attached notice marked "Appendix ." 19 Copies of this notice, to be
furnished by the Regional Director for the Seventeenth Region, shall , after being
duly signed by the Respondent 's representative , be posted by the Respondent im-
mediately upon receipt thereof , and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered , defaced, or covered by any other material.
(c) Notify the said Regional Director , in writing, within 20 days from the receipt
of this Decision , what steps the Respondent has taken to comply herewith.20
1B If this Recommended Order should be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner." If the Board's Order should be enforced by a decree of a United States Court
of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an
Order" shall be substituted for the words "A Decision and Order."
20 If this Recommended Order should be adopted by the Board, the words "10 days
from the date of this Order" shall be substituted for the words "20 days from the receipt
of this Decision "
APPENDIX
NOTICE TO OUR OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS
AND TO EMPLOYEES OF J & G ELECTRIC CO., INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are notified that:
WE WILL NOT cause or attempt to cause J & G Electric Co., Inc, its officers,
agents, successors, or assigns, to discharge or otherwise discriminate against
any of its employees in violation of Section 8(a) (3) of the National Labor
Relations Act, as amended.
WE WILL NOT in any other manner restrain or coerce employees of the above-
named Employer in the exercise of their right to self-organization, to form, join,
or assist unions, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose' of collective bargain-
ing or other mutual aid and protection, and to refrain from any and all such
activities.
MILLER-CHARLES AND COMPANY 405
WE WILL make whole Burt W. Stemmons for any loss of pay he may have
suffered because of the discrimination against him.
LOCAL 271, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board 's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 2732.
Harold Miller , Herbert Charles and Milton Charles , Co-partners,
d/b/a Miller-Charles and Company and Local 463, Interna-
tional Union of Electrical , Radio and Machine Workers, AFL-
CIO and Employees Committee of Miller-Charles , Party in
Interest . Case No. 2-CA-9436. March 20, 1964
DECISION AND ORDER
On December 2, 1963, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged 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. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 en-
tire record in this case, including the Trial Examiner's Decision, the
exceptions, and the brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions.
We find, in agreement with the Trial Examiner, that the remarks
made by General Manager Stewart on two occasions to groups of
employees assembled in the plant on working time, to the effect that
if the employees chose an outside union to represent them, it would
make excessive demands which would force Respondent to eliminate
overtime and to close the plant within 120 days, followed by Stewart's
146 NLRB No. 39.