Local 369, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board Decisions

Aug 9, 1963

143 N.L.R.B. 1297 (N.L.R.B. 1963)

LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1297
WE WILL NOT ask employees about their interest in or activities on behalf
of any labor organization.
WE WILL NOT spy on employees' union activities.
WE WILL NOT threaten employees that their signing union cards or that the
coming in of a union might result in a plant shutdown, loss of employment,
lowered working conditions, trouble, or serious harm.
WE WILL NOT promise employees benefits to work against a union.
WE WILL NOT in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to organize; to form, join, or assist a
labor organization; to bargain collectively through a bargaining agent chosen
by themselves; to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; or to refrain from any such
activities.
WE WILL offer Magnolia Odom her former or substantially equivalent job
(without prejudice to seniority or other employment rights and privileges)
and pay her for any loss suffered because of our discrimination against her.
All of our employees are free to become or remain members of any labor
organization.
SOFT WATER LAUNDRY, INC.,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, 33602, Telephone No. 223-4623,
if they have any question concerning this notice or compliance with its provisions.
Local Union No. 369 of the International Brotherhood of Elec-
trical Workers , AFL-CIO and George F. Wode , its agent and
Robert N. Moore and Charles A. Bentley, d/b/a Bentley Elec-
tric Company, Intervenor . Case No. 9-CB-1038. August 9,1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel, the Charging Party, and
the Intervenor filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
1 We find without merit the contention of the Charging Party and the Intervenor that
the Trial Examiner showed bias against them at the hearing and in his Intermediate
Report A consideration of the entire record shows no basis whatever for a finding of
bias. Wix Corporation, 140 NLRB 924.
143 NLRB No. 116.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and, as it finds merit in some of the exceptions made by
the General Counsel, the Charging Party, and the Intervenor, hereby
adopts the findings 2 of the Trial Examiner only to the extent con-
sist herewith.
The Trial Examiner found that the Respondent did not attempt
to cause Charles A. Bentley, d/b/a Bentley Electric Company, to dis-
criminate against his employee, Robert N. Moore, in violation of Sec-
tion 8(a) (3) of the Act. Therefore, he concluded that the Respond-
ent did not violate Section S (b) (2) and (1) (A) of the Act. We
do not agree.
Moore had been working in the electrical industry since 1952. He
had sought to join the Union on a number of occasions but had been
rejected on the ground that he had failed entrance examinations
given by the Union to qualify applicants for membership. Neverthe-
less, it was established that Moore had been employed as a journey-
man electrician for a number of years and was highly regarded both
by Bentley and a former employer for his journeyman skills.
The record shows that Bentley was a member of an association of
employers, the Louisville Electrical Guild, which had a collective-
bargaining agreement with the Respondent Union. The contract,
which was in effect from May 1, 1960, until April 30, 1962, contained
the following provision in article III, section 1, paragraph 3:
The employer . . . agrees to notify the Union when additional
or replacement employees are needed. The Union agrees to fur-
nish applicants to perform the necessary work when so notified,
upon a nondiscriminatory basis, within forty-eight (48) hours
after receiving the request from the employer. The decision with
regard to the hire and tenure of all employees shall be made by
the employer . .. .
On June 13, 1961, Bentley hired Moore without first notifying the
Union that he needed an employee. Respondent Local's business
manager and agent, George F. Wode, learned of Moore's hire soon
after it occurred. The next day Bentley was advised by the Respond-
ent's assistant business manager, Jess Brown, that he had breached
his contract by not attempting to fill the vacancy through the union
hiring hall before hiring Moore. Wode thereafter demanded that
2 Paragraph 5 of the complaint alleges that the Respondents attempted to cause Bentley
to discharge Moore in mid-January 1961. At the close of the case-in-chief, the General
Counsel moved to amend this date on the basis that the date was an obvious typographical
error and should have read mid-January 1962. The Trial Examiner denied the motion.
Since the issue was fully litigated at the hearing on direct and cross-examination of the
witnesses on the basis of the January 1962 date, we find merit in the General Counsel's
position. Therefore, we find that paragraph 5 of the complaint should be amended so as
to change the date of "January 1961" mentioned therein to "January 1962." Thompson
Manufacturing Co., Inc., 132 NLRB 1464.
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1299
Bentley "get rid of" Moore because, as Bentley testified without con-
tradiction, Moore was a "freeloader" and not a member of the Union.
Bentley refused, and on June 15, 1961, Wode ordered the union men
working for Bentley to walk off the job. At a meeting of Bentley's
employees held at the union hall, Wode told the employees that Bentley
was in violation of the contract for hiring Moore "off the street, a
non-Union man."
On June 19, 1961, Wode also called a meeting of the employer-
union Joint Conference Committee to consider his complaint that
Bentley had breached the Guild contract. Under article III thereof
the Committee hears grievances which the Union or employers choose
to bring before it. The Committee found Bentley guilty of violat-
ing article III, section 1, paragraph 3, of the agreement. In accord-
ance with its custom, it recommended no remedy for the breach.' It
is undisputed that, in the course of his remarks to the Committee,
Wode stated that Bentley could not hire Moore because Moore was a
"freeloader" and not a union member.
In any event for the next few days Wode checked with Bentley
several times to be sure that Moore was no longer in Bentley's em-
ploy. Each time Bentley admitted Moore was still working for him,
but he always said that he would soon discharge him. Wode appar-
ently took Bentley at his word, for he stopped asking about June 23,
1961, whether Moore was still a Bentley employee.
Moore remained at Bentley Electric Company without Wode's
knowing it. On January 11 or 12, 1962, Wode learned that Moore
was still employed at Bentley Electric Company and, moreover, that
Bentley had failed to contribute payments to the Union's health and
welfare fund on Moore's behalf 4 After making this discovery, Wode
renewed his demands that Moore be discharged. On February 1,
1962, the Joint Conference Committee again met at Wode's request
to discuss the situation. At the meeting Wode repeated his charge
that Bentley had violated the agreement by not giving prior notice to
the Union that a vacancy existed. He also remarked that Moore was
a "freeloader" and not a union member and, according to the uncon-
tradicted testimony of Employer Windhorst, that he wanted Moore
replaced with a union man.' Moore, who had been called into the
meeting by Bentley, then offered to join the Union. This angered
Wode, and he ordered Moore to leave. Bentley departed with Moore,
thus leaving the situation as unresolved as it had been at the start of
3 However, article 11, section 3, of the contract states that the Committee has "full
authority to take any action which can be taken for the bodies which it represents in the
enforcement of this Agreement , and, when in agreement , its decision shall be final and
binding."
4 Bentley also failed to report the employment of apprentice Wise and failed to con-
tribute health and welfare payments on his behalf.
6 The Trial Examiner did not advert to Windhorst's testimony
717-672-64-vol. 143-'83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting. On February 5, 1962, Wode threatened to call another
strike of Bentley's men unless Moore was discharged. Wode again
demanded on April 5, 1962, that Bentley "get rid of" Moore. On
April 9, 1962, Moore filed a charge against Wode and the Union. At
the time of the hearing Moore was still working for Bentley, and he
was still not a union member.
The Trial Examiner found that Wode's demand for Moore's dis-
charge was justified since Wode's concern in attempting to secure the
discharge was based solely upon Bentley's failure to give the Union
prior notice of job vacancies and his failure to make the health and
welfare payments on Moore's behalf. We do not agree.
While it is arguable that article III, section 1, paragraph 3, pro-
vided for notice of job vacancies before an employee was hired, we do
not agree with the Trial Examiner that the alleged breach of the agree-
ment was the true cause for Wode's demand that Moore be fired c
On the contrary, we are of the opinion that the Respondent's as-
serted reliance on the contract provision was a mere pretext and that
the true reason for its insistence on Moore's discharge was his non-
union status. Although the Trial Examiner may have been correct
in saying that until June 1961 there was no evidence of union animus
toward nonmembers, it also appears that the Respondent did not
protest when other electricians, members of the Union, were hired di-
rectly by the Employer' Moreover, any earlier absence of animus
loses significance in light of the strong hostility expressed by Wode
toward Moore from June 1961 until the time that the instant charge
was filed. For, as the record shows, a change in Wode's attitude
became evident at the meeting of Bentley employees on June 19. In
attempting to justify his action in calling a strike, he pointed out then
that Bentley had hired Moore "off the street, a nonunion man." His
attitude was also made manifest by subsequent remarks before the
Joint Conference Committee that Moore was a "freeloader" and not
a union member. Since, as noted above, Wode never protested a
breach of the contract when union men were "hired off the street"
without prior notice, it seems clear that his concern on the occasion
of Moore's hire was not with enforcing his interpretation of the con-
tract, but with replacing a nonmember with a union man.'
8 We note that there was a basic difference of opinion between the employers and the
Union as to the meaning of this provision . The Union maintained that the contract
established a first opportunity hiring hall . All of the employers denied this . While the
employers were not in complete agreement as to the contract meaning , all stated that they
frequently hired men without first seeking them at the union hiring hall Since our deci-
sion does not turn on an interpretation of the contract, we express no opinion as to the
meaning of this provision.
' In the last several years Bentley had hired at least 16 employees without first notify-
ing the Respondent, and no protest had been forthcoming
8 Testimony given by Wode and Brown also should be mentioned in connection with these
remarks. Brown testified that many union men were unemployed in 1961. Wode testified
that his purpose in bringing charges before the Committee was "due to a hundred and fifty
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1301
We are aware, of course, that conduct occurring more than 6 months
prior to the filing and service of a charge cannot form the basis for
finding a violation of the Act.' In the instant case the charge was
filed on April 9, 1962, and served by mail April 11, 1962. Therefore,
violation of the Act cannot be predicated on events occurring before
November 11, 1961. It is settled law, however, that such evidence
may be used for background purposes in evaluating the Respondent's
conduct within the statutory period where substantial evidence of un-
lawful conduct is present within the limitation period.10 In so doing,
it becomes increasingly clear that Wode's persistent demands, within
the limitation period, upon Bentley for Moore's discharge stemmed
from his distaste for Moore's nonunion status. Thus, the record shows
that at the February 1, 1962, Joint Committee meeting Wode again
stressed that Moore was a nonmember and a "freeloader," and that
he wanted him replaced with a union member. And twice in 1962,
Wode again indicated why he was so interested in Moore's discharge
when he told Bentley he was concerned about the unemployed "people"
at the union hall. His further testimony made clear that except for
three apprentices all "people" referred through the Union were union
members.
Since the record persuades us that the Respondent protested the
irregular hiring of Moore only because he was a nonunion employee,
its protest is reasonably to be understood as a manifestation of an un-
lawful discriminatory motive." Recognizing, in effect, the discrim-
inatory nature of the Respondent's conduct, the Trial Examiner
found the Respondent had added reason for seeking Moore's dis-
charge, because, as indicated above, Bentley had failed to make pay
ments to the Union's health and welfare fund on Moore's behalf and
that such failure together with the failure to furnish notice of his hire
justified Moore's discharge. But Wode's actions in this regard only
strengthen our belief that his concern with the alleged violations was
a pretext. Thus, although we agree with the Trial Examiner that
Wode had reason to be disturbed when he discovered that Bentley
had not been making payments to the Union's health and welfare
fund, it would seem that if Wode were so troubled about Bentley's
failure to make these payments, he would have sought to obtain the
money from him. Instead of doing this, however, Wode concentrated
all his efforts on securing Moore's discharge. Wode, in fact, never
people [at the Union hall ] that had been unemployed for a period of a year . .." and that
since he had become business agent the only journeymen obtaining employment through
the hall were union men.
BLocal Lodge No. 1424 , International Association of Machinists , AFL-CIO, and Inter-
national Association of Machinists, AFL-CIO v. NL.R.B. (Bryan Manufacturing Co.),
362 U S. 411, 416-419.
"We also note Wode's testimony that his objectives with respect to securing Moore's
discharge were the same in 1961 as they were in 1962.
"Local Union No. 18, International Union of Operating Engineers, AFL-CIO and its
agent, George E. Miller (Earl D. Creager, Ire), 141 NLRB 512.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criticized Bentley for his failure to make the payments until 6 days
after Bentley had sent the Union a check for all the back payments
he owed. We also note that Wode never demanded the discharge of
Bentley's employee, Wise, after learning that Bentley had made no
payments to the health and welfare fund on Wise's behalf. Since
it was the Union that referred Wise to Bentley, and since Wise's
father is a union member, we find it significant that Wode was not
bothered by this contract violation. Finally, we note that Wode's
initial efforts to cause Moore's discharge occurred within a day of
Moore's hire, before payments could possibly have been due to the
health and welfare fund.
The Trial Examiner was also of the opinion that Wode pressed
for Moore 's discharge because he was attempting to make Bentley
treat the Joint Conference Committee's decision as final and bind-
ing. The short answer to this argument is, as it appears from the
uncontradicted testimony of association employers Nagel, Windhorst,
and Mittel , that in practice the Joint Conference Committee was not
considered to have authority to discharge employees or even to rec-
ommend any such discharge. Since Joint Conference Committee
decisions had never been considered enforceable in the past, it is diffi-
cult for us to believe, within the factual context of this case, that
Wode had a strong interest in enforcing the Committee decision as
such.
Accordingly, we find that on January 11 or 12, February 5, and
April 5, 1962, the Respondents attempted to cause Bentley to dis-
charge Moore in violation of Section 8(a) (3) of the Act and thereby
violated Section 8(b) (2) and (1) (A) of the Act.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices in violation of Section 8(a) (2) and (1) (A) of the Act,, we
shall order them to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
ORDER
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 Union No.
369 of the International Brotherhood of Electrical Workers, AFL-
CIO, its officers, agents, representatives, successors, and assigns, and
Respondent George F. Wode, its agent, shall:
1. Cease and desist from :
(a) Causing, or attempting to cause, Charles A. Bentley, d/b/a
Bentley Electric Company, or any other employer, to discharge
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1303
Robert N. Moore, or any other employee, because such employee is
not a member in the Respondent Local's organization, or in any like
or related manner discriminating against Robert N. Moore, or any
other employee, in violation of Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Notify Charles A. Bentley, d/b/a Bentley Electric Company,
and Robert N. Moore that the Respondents have no objection to the
employment of Robert N. Moore without regard to his membership
or nonmembership in the Respondent labor organization.
(b) Post at Respondent Local No. 369's office, hiring hall, and meet-
ing hall, and at the office or place of business where Respondent Wode
conducts his business on behalf of Respondent Local at Louisville,
Kentucky, copies of the attached notice marked "Appendix." 12
Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being duly signed by an authorized
representative of Respondent Local No. 369 and by Respondent Wode,
be posted by said Respondents immediately upon receipt thereof, and
be maintained by them for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members
and other employees using Respondent Local's hiring hall are cus-
tomarily posted. Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or covered by any
other material.
(c) Mail to the Regional Director for the Ninth Region signed
copies of the attached notice marked "Appendix" for posting by
Charles A. Bentley, d/b/a Bentley Electric Company, if said Com-
pany is willing to do so. Copies of said notice, to be furnished by
the Regional Director, shall, after being duly signed by an authorized
representative of Respondent Local No. 369 and by Respondent Wode,
be forthwith returned to the Regional Director for posting.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps the Respondents
have taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order ," the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 369 OF THE INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO;
AND TO ALL EMPLOYEES OF CHARLES A. BENTLEY, D/B/A BENTLEY
ELECTRIC COMPANY, AND ALL APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Charles A. Bentley,
d/b/a Bentley Electric Company, or any other employer, to dis-
charge Robert N. Moore, or any other employee, because such
employee is not a member in the Respondent Local's organiza-
tion, or in any like or related manner discriminate against Robert
N. Moore, or any other employee, in violation of Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization,
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL notify Charles A. Bentley, d/b/a Bentley Electric
Company, in writing, that we have no objection to the employ-
ment of Robert N. Moore without regard to his membership or
nonmembership in the Respondent labor organization.
LOCAL UNION No. 369 of THE INTER-
NATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
GEORGE F. WODE, AGENT, LOCAL UNION
No. 369 OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORK-
ERs, AFL-CIO,
Individual.
Dated---------------- By-------------------------------------
(GEORGE F. WODE)
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.
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1305
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
45202, Telephone No. DU 1-1420, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
On April 9 , 1962 , Robert N . Moore , an individual , filed charges against Local
Union No. 369 of the International Brotherhood of Electrical Workers, AFL-CIO,
Louisville , Kentucky, herein called the Union , and George F. Wode, its agent. The
charges were served upon the Respondents on April 11 , 1962 . On August 30, 1962,
the General Counsel I issued a complaint alleging that in mid-January 1961 , and on or
about February 1 and April 4 and 5, 1962, the Respondents attempted to cause
Charles A. Bentley, d /b/a Bentley Electric Company, to discharge Moore because
Moore was not a member of the Union . It is alleged that this conduct violated Sec-
tion 8(b)(1)(A ) and (2 ) of the National Labor Relations Act, as amended (61
Stat. 136 ), herein called the Act. Moore , the Respondents , and Bentley were served
with copies of the complaint . Thereafter the Respondents filed a joint answer deny-
ing that they had attempted to cause Bentley to discharge Moore because Moore
was not a member of the Union , and denying that the Respondents had engaged
in any unfair labor practices.
A hearing was held before Trial Examiner Sydney S. Asher , Jr., on October 22,
23, and 30 , 1962 , in Louisville , Kentucky. Bentley moved to intervene ; the motion
was granted . All parties were represented and participated fully in the hearing.
After the close of the hearing all parties filed briefs , which have been duly considered.
Upon the entire record in this case ,2 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE INTERVENOR
Charles A. Bentley, d/b/a Bentley Electric Company, is, and at all material times
has been , an electrical contractor in Louisville , Kentucky , and a member of Louis-
ville Electrical Guild , herein called the Guild , an association of employers . Bentley
has delegated to the Guild authority to act as his representative for the purpose of
negotiating and executing collective-bargaining contracts . During the 12 months
preceding August 30, 1962 , members of the Guild shipped products directly to destina-
tions outside the State of Kentucky and performed services outside of said State
valued in the aggregate at more than $ 50,000. There is no dispute , and it is found,
that at all material times Bentley has been engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the Act for the Board to assert
jurisdiction over his operations.3
II. THE RESPONDENTS
Local Union No. 369 of the International Brotherhood of Electrical Workers,
AFL-CIO, is, and at all material times has been , a labor organization within the
meaning of the Act. George F. Wode is, and at all material times has been, its
business manager and its agent within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background events
1. Facts
Robert N . Moore first went to work as an electrician in Louisville in 1952. At
that time he entered the employ of Theobald Electric Company, an electrical con-
The term "General Counsel" designates the General Counsel of the National Labor
Relations Board and his representatives at the hearing.
2 Page 160, line 13, of the transcript is hereby corrected by striking the words "Hear-
ing Officer" and substituting therefor the words "Mr. Reynolds."
3 Siemons Mailing Service, 122 NLRB 81 , 84; and Marble Polishers , Machine Operators
and Helpers, Local No . 121, AFL-CIO, et at (Miami Marble cE Tile Company ), 132 NLRB
844, footnote 1.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor, as a helper. He obtained this job without the aid of the Union. In 1953
Moore applied to the Union for membership, was given a helper's examination, and
failed. That same year he quit this employment and the Union referred him to
another electrical contractor in the area. He retained this employment for 3 months,
then quit and returned to work for Theobald. When Theobald sold out to another
firm in 1954, Moore went to work for a newly formed company, Bentley and Mittel.
He obtained this employment without help from the Union. In 1956 Bentley and
Mittel dissolved their partnership and Moore-again without the Union's assistance-
took employment with Mittel Electric Company. During the period from 1953 to
1956, Moore worked under permits issued by the Union, at first classified as appren-
tice and later classified as journeyman. These permits were stamped "NON-
MEMBER," and were paid for by Moore. In 1956 the Union informed Moore that
it had stopped issuing permits, and that there would no longer be any charge. Since
then Moore has not paid any fees to the Union. About 1956 Moore again applied
for union membership, took another helper's examination, and again failed.
On June 6, 1960, the Guild, on behalf of its members including Bentley, entered
into a collective-bargaining contract with the Union? This agreement, effective
from May 1, 1960, was to remain in force until April 30, 1962, and from year to year
thereafter, subject to change. In addition to a 31-day union-security clause, it con-
tained the following provision in article III, section 1, paragraph 3:
The employer . . . agrees to notify the Union when addtional or replace-
ment employees are needed. The Union agrees to furnish applicants to per-
form the necessary work when so notified, upon a nondiscriminatory basis,
within forty-eight (48) hours after receiving the request from the employer.
The decision with regard to the hire and tenure of all employees shall be made
by the employer .... `
About June 7, 1961, Moore quit his job with Mittel Electric Company. On
June 13, 1961, he was hired by Bentley. On the next day, June 14, 1961, Wode
learned that Bentley had hired Moore: he telephoned Bentley but, as Bentley was
out, left word for Bentley to return the call. Bentley did so, and spoke to Jess
Brown, the Union's assistant business manager. Brown asked if Bentley had hired
Moore, and Bentley replied that he had. Brown then stated that it was a breach
of contract to do so without notifying the Union that he needed additional em-
ployees. Bentley repiled that some of the men the Union had sent him in the past
had been incompetent. Later that day Bentley had a telephone conversation with
Wode in which Wode demanded that Bentley discharge Moore, and Bentley refused
to do so, repeating to Wode the substance of what he had previously told Brown
regarding the quality of workers referred to him by the Union. On June 15, 1961,
Wode called a strike of Bentley's employees. Bentley then sent Wode a telegram
protesting the strike and warning that legal action would be taken if it continued.6
But Bentley's men did not return to work for several more days.
The contract of June 6, 1960, referred to above, set up a Joint Conference Com-
mittee, herein called the Committee, composed of an equal number of representa-
tives of the Union and the employers. It provided in article II:
SEC. 2. All questions of disputes which are not adjusted between the Union
and the Employer shall be referred to this Committee.
SEC. 3. This Committee shall have full authority to take any action which
can be taken for the bodies which it represents, in the enforcement of this
Agreement, and when in agreement, its decision shall be final and binding.
After the strike of Bentley's employees began, Wode, who was then secretary of
the Committee, called a special meeting of the Committee for June 19, 1961, to con-
sider the dispute between the Union and Bentley, and notified Bentley to be present.
Bentley appeared at the meeting with his attorney, but the attorney was not allowed
to remain. At the meeting Wode accused Bentley of violating article III, section 1,
paragraph 3, of the contract by hiring Moore without having first notified the Union
that a vacancy existed. Bentley defended by pointing out that some of the employees
referred to him by the Union had been unsatisfactory. The Committee then held
unanimously that Bentley was quilty of violating the contract as charged, but, in
accordance with its custom, made no recommendation as to how the breach of con-
tract should be remedied.
4 Louisville Electrical Contractors Ass'n (Louisville Chapter N.E C.A ), another employer
association in the area, also signed the contract on behalf of its members.
s Bentley apparently took the position that this strike constituted a breach of contract
by the Union. I deem it unncessary to pass upon this contention.
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1307
On June 20, 1961, Bentley and Wode conferred in a tavern. Bentley asked what
he would have to do to end the strike and Wode replied that he should discharge
Moore. Bentley promised to do so in a few days, but, in his own words while
testifying: "it was strictly a stall." On June 21, 1961, Wode sent Bentley a tele-
gram informing him of the Committee's decision,6 and Bentley's employees re-
turned to work. A few days later in a telephone conversation Wode asked Bentley
if he had "got rid of Moore" and Bentley replied that he would be able to let Moore
go "in a few more days."
In July 1961, Moore appeared before the Union's executive committee and orally
applied for "an electrician card." He was told that he would be notified when to
take the examination, but heard nothing further. In August 1961 Bentley took
Moore to see Wode, and Moore filed a written application for membership in the
Union. Moore was not advised as to what action, if any, was taken by the Union
.on this application?
Unknown to Wode or other officials of the Union, Moore continued to work
for Bentley. Bentley was able to keep the Union unaware of this arrangement
by a combination of two devices. First, he worked Moore at the office, or alone
on a project, where no union steward was present. Second, for a period of about
,6 months after Moore was hired, Bentley deliberately refrained from making health
and welfare payments on Moore's behalf,8 and omitted Moore's name from the
periodic reports he submitted to the trustees of the health and welfare fund. Bent-
ley explained in his testimony that he practiced this deception because he was con-
vinced that if the Union knew he was employing Moore, the Union would "pull my
shop, put me out of business"; while on the other hand if he gave in to the Union's
demand and discharged Moore, he feared that he might be found in contempt of
a consent decree entered against him in 1957 by the United States Court of Appeals
for the Sixth Circuit .9
2. Conclusions
All parties apparently agree that the contract was binding on Bentley and all
parties seem to concede the validity of article III, section 1, paragraph 3. There is
disagreement, however, as to its meaning and effect. The Respondents contend that
this paragraph sets up an exclusive first opportunity hiring hall and that the em-
ployers are forbidden by its terms to hire applicants from other sources in the first
instance . The General Counsel, the Charging Party, and the Intervenor conversely
maintain that no such exclusive hiring hall was established by the paragraph, but
"each contractor [retains] the absolute right to obtain his employees by whatever
means he sees fit." I do not deem it necessary to interpret the paragraph so as to
-settle this disagreement. It is enough for the purposes of this proceeding to find, as I
do, that at the least article III, section 1, paragraph 3, obligates the employers to
advise the Union, in advance, that hiring is about to take place. To hold otherwise
would be to render virtually nugatory the first sentence of the paragraph in question.
Furthermore, it seems apparent to me that, as so interpreted, the sentence is of sub-
stantial interest to the Union, for it gives the Union an opportunity to send out
qualified applicants to compete for an existing vacancy before the competition has
been foreclosed by filling the job. In short, notice after employing men .is much less
valuable to the Union, as it confronts the Union with a fait accompli.
Let us now turn to the question of what effect should be given to the decision of
the Committee on June 19, 1961, regarding Bentley's violation of the contract.
-Where, as here, all parties have agreed in advance upon a binding method of deter-
mining disputes, and such method has been pursued to a final decision, the Board
a Bentley apparently contends that, as this was a private act of Wode. Bentley never
received official notice from the Committee of its decision I deem it sufficient to find that
on June 21, 1961, Wode advised Bentley of the Committee 's action
7 A possible explanation may be found in Brown's testimony that Moore failed to sign
the application.
8 Article XII of the contract requires payment into the health and welfare fund of
10 cents for each hour worked by each employee after November 1, 1960.
B V L.R B v. Ben tley, of al., No. 13,368 (C.A. 6). The consent decree enjoined Bentley
and the Guild from maintaining any contract with the Union requiring union membership
as a condition of employment, except as permitted in Section 8(a) (3) of the Act, and from
requiring job applications to clear through the Union as a condition of employment, in
violation of Section 8(a) (3) of the Act. It also enjoined the Union from enforcing any
agreement with Bentley which requires union membership as a condition of employment,
except as permitted in Section 8(a) (3) of the Act, and from causing Bentley to require
job applicants to clear through the Union as a condition of employment , in violation of
Section 8(a) (3) of the Act.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the interest of promoting voluntary settlements and stabilizing industrial relations
has usually refused to look behind such determinations. But there are limitations,
one of which is that the proceedings must adequately protect the rights of the ag-
grieved party and must have been conducted in a fair and regular manner. Here
Bentley was deprived by the Committee of a time-honored and fundamental right-
the right to be represented by counsel. I therefore conclude in agreement with the
General Counsel that, under the circumstances here present, the Committee's decision
is not binding upon the Board and should be disregarded.io
There remains the issue whether Bentley violated the contract. There can be no
question on the record here-including admissions in the joint brief of the Charging
Party and the Intervenor-that Bentley did not notify the Union of the existence of
the vacancy before he filled it by hiring Moore on June 13, 1961. It is accordingly
found, contrary to the General Counsel's position, that Bentley thereby failed to live
up to the obligation imposed upon him by article III, section 1, paragraph 3. In
addition, his failure to make prompt payments into the health and welfare fund on
Moore's behalf and his omission of Moore's name from the reports to the health
and welfare fund trustees for about 6 months after Moore's hire constituted a further
violation of the contract. I am convinced, and find, that these contract violations
were regarded by the Union as substantial.
B. Events within the 10(b) period
1. Facts
About January I1 or 12, 1962, Wode telephoned Bentley's office and Moore, who
happened to be working there, answered. Later that day, in a telephone conversa-
tion, Wode asked Bentley: "What's he [Moore] doing answering the 'phone? You
should have gotten rid of him." Bentley replied that he was working Moore on
service calls and in the shop estimating. Wode then threatened that Bentley would
"have to get rid of him" or else Wode would "pull the men out." On January 18,
1962, Wode wrote to Bentley as follows:
I made a report to the Joint Conference Committee at a meeting held Janu-
ary 17, 1962 concerning violation by your Company of Article III, Section 1,
Paragraph 3 of the Agreemment between Electrical Contractors of Louisville,
Kentucky and Local Union 369 of the International Brotherhood of Electrical
Workers, by your admission of hiring additional employees. This meeting has
been called for you and the Joint Conference Committee to adjust this violation.
On January 25, 1962, Wode wrote again to Bentley regarding this subject. The
letter concluded:
We ask that you be present at meeting of the Joint Conference Committee to
be held THURSDAY, FEBRUARY 1, 1962, at 8:00 P.M., in the Local Union
office, to adjust this violation.
Bentley attended the regular meeting of the Committee on February 1, 1962, as
requested in Wode's letter. At Bentley's suggestion. Moore came along and waited
outside in an automobile, a blank check in his pocket. At this meeting Wode re-
peated his charge that Bentley had violated the agreement by hiring Moore without
prior notice to the Union that a vacancy existed. Wode stated that he therefore ob-
jected to Bentley continuing to employ Moore. Bentley replied that Wode was
trying to force him to violate Federal law, and that he would not comply with
Wode's demand that he discharge Moore. Bentley then called Moore into the meet-
ing and announced that Moore had a check with him and was prepared to pay his
union initiation fee and any back dues for the months he had worked for Bentley.
Wode rose from his chair and, in a voice louder than normal, said: "Get out. Don't
come back." Moore and Bentley left, and the meeting turned to other matters.li
On February 5, 1962, Wode and Bentley conferred in Bentley's office. Wode
stated that Bentley would have to discharge Moore, and threatened to call a strike
of Bentley's employees to enforce this demand. Bentley replied that Wode should
io Honolulu Star -Bulletin, Ltd, 123 NLRB 395, 408, enforcement denied for other reasons
and remanded 274 F. 2d 567 (C A.D C ), Supplemental Decision and Order , 126 NLRB
1012.
Il Wode testified that he had also intended to raise the matter of Bentley's failure to
make health and welfare payments on Moore's behalf, but that he did not have an oppor-
tunity to mention this.
LOCAL 369, INT'L BROTHERHOOD ELECTRICAL WORKERS 1309
"go ahead and do whatever he felt he had to do." On the following day, February 6,
1962 , Bentley sent to the health and welfare fund an amended report and and a check,
to cover the months during which Moore had worked for him but had been omitted:,
from his reports . On February 12, 1962, Wode filed a complaint against Bentley
with the trustees of the health and welfare fund. This ultimately resulted in an,
audit of Bentley 's books by a representative of the health and welfare fund.
On February 26, 1962, Wode met Moore while Moore was working on a job,
for Bentley . On the following day, February 27, 1962, Wode telephoned Bentley
and requested a list of all jobs on which Moore had worked while employed by
Bentley; Bentley refused.
On April 5, 1962, Wode stated to Bentley in a telephone conversation that Bentley
was still employing Moore but was "supposed to get rid of him." Bentley replied
that Moore was a good worker and he (Bentley ) intended to keep him . Wode re-
torted that Bentley could keep Moore as long as he wanted , because after April 9
Bentley and Moore would be alone.
On April 9, 1962, Moore filed the instant charges . At the time of the hearing
herein , Moore was still employed by Bentley and still had not become a member
of the Union.
2. Conclusions
It is quite clear from the above recited facts that on January 11 or 12, Feb-
ruary 5 and April 5, 1962, Wode threatened reprisals against Bentley unless Bentley
discharged Moore.12 And obtaining Moore's discharge was also one of his ob-
jectives in requesting Bentley to appear at the Committee meeting of February 1,
1962.13 In all these matters Wode was acting as agent of the Union within the scope
of his authority as its business manager. It is accordingly found that , on each of
the dates mentioned above, the Respondents attempted to cause Bentley to discharge
Moore.
In order to prove a violation of Section 8(b) (2) of the Act it is not enough to
show merely that the Respondents attempted to cause Bentley to discharge Moore;
in addition it must be shown that, had Bentley complied , he would have violated
Section 8(a)(3) of the Act. We come then to the remaining-and crucial-issue
in this case : Whether the record supports the allegation of the complaint that on
January 11 or 12, February 1 and 5, and April 5, 1962, the Respondents sought to
have Bentley discharge Moore "because he [Moore] was not a member of Re-
spondent Union." The General Counsel, the Charging Party, and the Intervenor
contend that the record shows that Wode pressured Bentley to discharge Moore be-
cause he considered Moore a nonmember and a "freeloader" and that Bentley's
alleged breaches of contract were mere pretexts to conceal Wode's real motive. In
support of this they rely upon certain statements and conduct of Wode in 1961, in
which he is alleged to have referred to Moore as a "nonmember" and a "freeloader."
But the importance of such remarks is , in my opinion , unduly overemphasized. In
the first place, the Union had over the years issued permits to Moore, and even
referred him to a job, and had twice allowed him to take examinations, all the
while knowing that he was a nonmember . He worked for Mittel for several years
without union objection . And he stopped seeking permits and paying permit fees
only because the Union had ceased issuing them . In short, there was no past
friction growing out of Moore's lack of union membership . In the second place
the Union's past history showed no resistance to the use of nonunion employees in the
area. Thus, Ollie H. Windhorst, a Louisville contractor who was a witness for the
General Counsel , testified that "many" nonunion apprentices had been referred to
him by the Union when he asked for them by name, and that he has for years
employed a nonmember journeyman named Burke, with the knowledge of the
Union, without protest . In the third place what motivated Wode in 1961 , while of
interest as background , does not necessarily furnish the answer to what motivated
him in 1962, for new factors had appeared in the meantime-Bentley's ignoring of
the unanimous Committee decision (by contract "final and binding") and his failure
12 Insofar as the complaint alleges that the Respondents attempted to cause Bentley to
discharge Moore in mid-January 1961 , it lacks merit . Moore was not in Bentley 's employ
on that date . Moreover , events which took place more than 6 months before service of
the charge cannot, under Section 10(b) of the Act, be held to constitute unfair labor prac-
tices The General Counsel's motion to amend this date, made at the close of the case-in-
chief , was denied as untimely.
i' Thus, Wode testified at the hearing that one objective was "to acquaint . . . the mem-
bers of this group [with the fact ] that Bentley did not live up to what he had told me of
laying off Mr. Moore."
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make the contractually required payments to the health and welfare fund on
Moore's behalf. The General Counsel also points to other employees hired by
Bentley without prior notice to the Union , and one other employee, Charles M.
Wise , whose name was omitted from the health and welfare report . He argues
that, as these were all union members , and as the Union did not object in their cases,
this demonstrates discrimination against Moore because he was not a member. But
in Moore's case the two objections coincided : he was hired in violation of the
contract and his name was left off the health and welfare reports. In this respect
his situation is unique and comparison with others has no probative value.
One other piece of evidence should be mentioned . At the hearing Wode exhibited
some pique in testifying : "Mr. Moore when he changed jobs should have notified
the Local Union that he was unemployed and have his name put on the out of work
list like the rest of the members do." But in the large picture , I am convinced, this
factor was de minimus . It is overshadowed by Wode's combined objectives of (1)
insisting that article III, section 1, paragraph 3, of the contract be followed in hiring;
,(2) recognizing that unanimous decisions of the Committee must be treated as final
and binding under article II, section 3, of the contract ; ( 3) guarding against the
sending of deliberately deceptive reports to the health and welfare fund trustees;
and (4 ) demanding compliance with the contract provisions regarding payment to
the health and welfare fund on behalf of all employees .14 This last had added
importance to Wode because the result was that Moore was working , in effect, for
"substandard" wages-a matter historically of grave concern to unions.15
The Board has recently stated:
. an 8(a ) ( 3) or 8 (b) (2) violation does not necessarily flow from conduct
which has the foreseeable result of encouraging union membership , but .. .
given such "foreseeable result" the finding of a violation may turn upon an
evaluation of the disputed conduct "in terms of legitimate employer or union
purposes ." [Emphasis supplied.] 16
Applying this test to the facts at hand, I conclude that Wode 's four combined
reasons for seeking Moore 's ouster, listed above , were "legitimate . . . union pur-
poses." It follows, and I find , that, on the record before me, the General Counsel
has failed to establish that on January 11 or 12, February 1 and 5, or April 5, 1962,
the Respondents attempted to cause Bentley to discharge Moore because Moore was
not a member of the Union.
Upon the basis of the above findings of facts, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Charles A. Bentley, d/b/a Bentley Electric Company, is, and at all material
times has been, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local Union No. 369 of the 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. George F. Wode is, and at all material times has been, its agent within the
meaning of Section 8(b) of the Act.
4. The General Counsel has failed to prove that, within 6 months of the service
of the charge herein, either of the Respondents has committed unfair labor practices
within the meaning of Section 8(b) (1) (A) or (2) of the Act.
RECOMMENDATION
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that the complaint herein be dismissed
in its entirety.
14 According to Wode, one of the reasons he asked Bentley to attend the Committee meet-
ing of February 1, 1962, was: "I wanted to acquaint that body [with the fact] that
Mr. Bentley had failed to pay Into the welfare [fund] and under these conditions he was
working this boy for under skilled wages."
15 Another Indication that Wode was not so much interested in Moore's nonmembership
or failure to sign the out-of-work register as he was deeply concerned with Bentley's
breaches of contract is found in his testimony that he recently told officials of the Guild,
referring to Bentley, that the Union "didn't care to sign an agreement with anyone who
had continually violated our agreement."
16 Miranda Fuel Company, Inc., 140 NLRT' 181.