Local 38, Electrical Wkrs.

National Labor Relations Board - Board Decisions

Jun 24, 1971

191 N.L.R.B. 558 (N.L.R.B. 1971)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 38, International Brotherhood of Electrical
Workers, AFL-CIO and Bernard E. Rubin, Sanford
Wakser, Ben Wakser and David Wakser, Co-Part-
ners, d/b/a International Wire. Case 8-CC-442
June 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On March 9, 1971, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The Re-
spondent filed cross-exceptions to certain portions of
the Trial Examiner's Decision and a supporting brief.
The Respondent also filed an answering brief in opposi-
tion to the briefs of the General Counsel and the Charg-
ing Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, cross-exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
' The Trial Examiner characterized as "window dressing" the Respond-
ent's comments about Mineral Insulated Cable's unworkmanlike appear-
ance and foreign manufacture No matter how described it is clear from the
record that these considerations were not the reasons for Respondent's
objection to the use of the material, and we find, in agreement with the Trial
Examiner, that the Respondent's conduct was motivated solely by its con-
cern for work preservation
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: This case was tried
in Cleveland, Ohio, on November 17, 18, and 19, 1970,' on
a complaint issued on July 6 (and amended on July 17 and
November 17) pursuant to a charge filed on May 25 by Inter-
national Wire, a partnership, against Local 38, International
Brotherhood of Electrical Workers, AFL-CIO. At the hear-
ing, the General Counsel, Respondent, and Charging Party
were represented by counsel. All parties were afforded full
opportunity to be heard, to present oral and written evidence,
and to examine and cross-examine witnesses. All parties
waived oral argument and briefs were subsequently filed on
behalf of the General Counsel, Charging Party, and Respond-
ent.
Upon the entire record,' observation of the witnesses, and
consideration of the briefs, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. The Companies Involved 3
The Electrolite Company, Inc. (Electrolite), an Ohio cor-
poration with its principal place of business in Cleveland,
Ohio, is a general electrical contractor in the the building and
construction industry. During the calendar year 1970, Elec-
trolite received in Ohio products valued in excess of $50,000
directly from points outside Ohio.
Electrolite is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.'
International Wire, a partnership' with its main office and
place of business in University Heights, Ohio, is engaged in
the sale and distribution of materials. During the calendar
year 1970, International Wire received in Ohio goods valued
in excess of $50,000 directly from points outside Ohio.
International Wire is, and has been at all times material
herein, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.'
B. The Labor Organization Involved
Respondent Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
Except where otherwise stated, all dates herein are in 1970.
z As corrected by stipulation of the parties which was filed on January 18,
1971, and is hereby approved
At the hearing, Respondent declined to concede that the Board's juris-
dictional standards are met in this case. However, in its brief Respondent
does not contest jurisdiction.
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec 151 et seq.)
5 Consisting of Bernard E. Rubin, Sanford Wakser, Ben Wakser, and
David Wakser.
At the time of the hearing, International Wire was in the process of
becoming a division of American Diversified Developments, Inc. (ADDI),
an Ohio corporation. The complaint alleges and the evidence establishes
that ADDI also is engaged in commerce within the Board's jurisdictional
standards.
191 NLRB No. 109
LOCAL 38, ELECTRICAL WKRS. 559
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is the collective bargaining representative of
the electricians employed by Electrolite. In performance of a
contract for the electrical wiring of Acacia-on-the-Green, a
high-rise apartment project in Lyndhurst, Cuyahoga County,
Ohio, Electrolite chose to use Mineral Insulation Cable
(MIC) rather than thin-wall conduit (or "pipe") and wire, the
conventional materials. The Union successfully brought pres-
sure on Electrolite and the employees on the job to discon-
tinue the use of MIC on or about April 8, after less than 1
of the 131 apartments in the first of two buildings had been
wired. Toward the end of May, believing that a recent amend-
ment to the collective-bargaining agreement authorized the
use of MIC, Electrolite again made inquiry of the Union. The
Union, however, adhered to its opposition. Accordingly,
Electrolite did not resume the use of MIC.' The General
Counsel maintains that this conduct by the Union was viola-
tive of Section 8(b)(4)(i) and (ii)(B) of the Act because an
object thereof was to compel Electrolite not to do business
with or use products of International Wire, the United States
distributor of MIC, which is produced by British Insulated
Callender's Cables Limited (BICC}, a British company.
Respondent does not now deny that it caused Electrolite to
abandon the use of MIC through pressure exerted on the
company' and its employees.' The Union maintains, however,
that its conduct was directed solely against Electrolite, as the
primary employer and was designed for the lawful purpose of
preserving work for the electricians employed by Electrolite
and represented by Respondent.
Paul A. Tiber, Electrolite President at the time here in-
volved, conceded that under the construction contract he had
unrestricted freedom of choice as to materials. Thus there is
no question that he was in a position to satisfy the Union's
demands within the purview of the Board's "right-of-con-
trol" test for primary activity. Local 636, Plumbers (Mechani-
cal Contractors Assn. of Detroit), 177 NLRB 189.1°
The traditional, conventional method of wiring apartment
buildings has been to install metal conduit (also called "pipe"
or "thinwall") between the power source and the outlet boxes
and then pull the wire conductors through. MIC, on the other
hand, consists of copper conductors and ground permanently
embedded in magnesium oxide, a dense insulation, enclosed
within a round seamless copper sheath. MIC is cut to desired
lengths and then "terminated" by having a threaded appli-
ance (generally referred to as a "pot") attached to each end.
"Pots" are easily attached after the sheath and insulation are
removed from a few inches of the conductors by use of a
special hand tool. The pieces of MIC thus "terminated" are
' The Board's Regional Director subsequently instituted an injunction
proceeding under Section 10(1) of the Act. Pursuant to a stipulation made
in that proceeding on July 14, six additional apartments were later wired
with MIC.
8 In addition to using persuasive powers with Paul A Tiber, Electrolite's
president, Richard D. Acton, Respondent's business manager, threatened to
remove Jack B. Grubbs, Electrolite's field superintendent, from the job.
Since Grubbs, although a member of the Union, was a management repre-
sentative, Acton's threat of action against him as a member of the Umon
constituted coercion against Electrolite within the meaning of Section
8(b)(4)(ii)(B). Cf. N.L.R.B. v ,Servette, Inc, 377 U.S. 46, 54
' Acton threatened Don Fortenbaugh with Union disciplinary action if
he continued to install MIC. Although Don Fortenbaugh was job foreman,
he was doing the actual work of installation. Thus, threats to him would fall
within the terms of Section 8(b)(4)(i)(B). Sheet Metal Workers International
Assn., Local 99 (Associated Pipe and Fitting Mfrs.), 175 NLRB 738.
1' Reversed, 430 F 2d 906 (C.A.D.C.). It is unnecessary in the present
case to analyze the current viability of the right-of-control test. Cf. Painters
District Council No. 20 of Westchester and Putnam Counties (Uni-Spray
. Painting, Inc.), 185 NLRB No. 136, fn. 6.
then installed by threading the pots into the power and outlet
boxes.
The evidence establishes various respects in which the use
of MIC requires less skill and time than does conventional
installation of conduit and wire. In a high-rise apartment
building, one sample of each type of suite can be measured
and then, off the premises, the necessary MIC can be cut and
terminated for all similar apartments. Because MIC is quite
flexible and already contains the conductors and ground, it
need not be precisely cut; if it is cut too long, the excess, or
slack, can be taken up by loops or kinks, which can simply
be left loose and are then hidden by the wallboard or other
finishing skin. Bends and loops in MIC can be made readily
by hand, without any equipment. Conduit, on the other hand,
is and must be rigid and securely fastened throughout so that
wires may thereafter be pulled through it. Thus, each piece
of conduit must be precisely cut to measure on the site. Fur-
ther, it cannot be "looped" but rather must be bent. To bend
conduit requires the use of special equipment by experienced
and skilled workmen and takes considerable time. To attach
either conduit or MIC to a power or outlet box frequently
requires gouging or channeling of masonry with hammer and
chisel. Because MIC is much smaller in diameter than con-
duit, less channeling is required in the use of MIC.
Tiber testified that he had chosen to use MIC for the
Acacia project for the purpose of "controlling" costs. He
maintained that the Union, through its hiring hall, had for
some time been unable to provide sufficient experienced,
skilled electricians for his needs, and therefore he used MIC
because it could be installed by the less proficient workers he
was getting. On cross-examination, however, he acknowl-
edged that the time required for any such work varies in-
versely with the degree of the workers' competence. He tes-
tified, in part, as follows:
We weren't using MI cable to save man-hours. We
were using MI cable to guarantee that our labor costs
would not run away, and that is what I mean when I say
we were using it to control our labor costs.
It requires less skill to install MI cable. A lesser skilled
man put on a conduit job will substantially increase your
labor costs, substantially increase your man-hours.
We used MI cable to assure ourselves if at all possible
that our labor costs would not run away.
Q. And to put in traditional thin wall and wire, you
need to be an experienced electrician?
A. You need to have more skill than you need to put
in MI cable, yes.
Q. And it takes a lot longer for an experienced man
to put it in, doesn't it, than to put in MI cable?
A. Yes, experienced men for experienced men that
would be true, or perhaps a better expression would be
skilled man for skilled man, that would probably be
more true.
Tiber also testified that "theoretically" the use of MI cable
"would save a lot of money on labor." In explanation of the
qualifying word "theoretically," he stated that Electrolite had
wired two high-rise apartment houses in the adjoining Lake
County (outside Local 38's geographic jurisdiction) and had
not actually experienced any substantial savings. But he
added that he was still optimistic about MIC's economic
feasibility.
William Terrance Walsh, assistant export sales manager
for BICC, was called by the General Counsel as a rebuttal
witness after Respondent had presented evidence, primarily
through the testimony of Business Agent Mason Edwards, to
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the effect that the use of MIC required substantially less time
than did equivalent installations in conduit and wire. Walsh
testified that because standard American voltages are lower
than those in England, MIC used in the United States is about
twice as large as that used in apartment building construction
in England. Walsh testified that, primarily because of the size
of MIC required by American codes, the amount of labor
necessary to wire a high-rise apartment house in the United
States would not be substantially less than that required to do
the same job in a workmanlike manner with conduit and
wire." Walsh flatly disagreed with Tiber's view that work-
manlike installation of MIC requires less skill than does the
use of conduit and wire. Walsh indicated that he, as a repre-
sentative of the producer, had reluctantly concluded, on the
basis of Electrolite's experience with two apartment buildings
in Lake County, Ohio, that the use of MIC was not economi-
cally feasible for such construction in the United States. In-
deed, Walsh quoted Tiber as having himself expressed doubt
whether Electrolite would use it again since, "because of the
high cost, there was no savings in it at all." Walsh did indi-
cate, however, that careless workmanship, with resultant un-
tidy installations, might produce some labor-cost savings
from the use of MIC.
Cross-examination of Walsh, together with other evidence,
elicited the following economic comparisons of MIC with
conventional installation under American conditions: MIC
cost Electrolite about 30 cents per foot, as contrasted with a
cost of about 9 cents to 11 cents per foot for conduit and wire.
An average two-bedroom suite takes about 700 linear feet of
either type of material. The "pots" used with MIC cost
around 20 cents each, as contrasted with a cost of about 5
cents for couplings and fittings used with.conduit. Since there
are approximately 70 connections in an average two-bedroom
apartment, MIC fittings would cost about $14 per suite, as
against around $3.50 for conduit fittings. The result would be
an average MIC material cost of $224 per apartment as
against $73.50 for conduit and wire. Thus, in a project of 100
apartments, material costs for MIC installation would be
around $15,050 more than for conventional installation. Jack
B. Grubbs, Electrolite's Field Superintendent, testifying on
behalf of the General Counsel, said that the Acacia project
consists of two buildings having 131 apartments each. Thus,
for the entire project, MIC materials costs would exceed
those of conduit and wire by almost $40,000.
As previously noted, International Wire is now (or is in the
process of becoming) a division of ADDI. It has previously
been contemplated that Electrolite would also become a divi-
sion ofADDI.'I To finance the proposed acquisitions, ADDI
issued debentures. Its offering prospectus for these deben-
tures, dated April 17, contained the following statement:
[ADDI] with the help of Electrolite expects to place
special emphasis on promoting the sales of its Interna-
tional Wire Division, which is in the second year of a five
year exclusive license granted by British Insulated Cal-
lender's 'Cables Limited in the United States.... The
mineral sheathed wire is fireproof and waterproof and
replaces the usual conduit and wire insullation effecting
savings in labor cost.
" In England contractors realize additional savings by having MI cable
cut and fitted with "pots" by the producer. A sales and training manual
prepared by BICC primarily for the British market says. "Low installation
costs, plus fast and easy handling, particularly where prefabricated wiring
units can be used, accounts for the growing popularity of M.I. cable, not only
for specialized applications but in the more competitive wiring'fields as
well." Such prefabrication by the producer is not presently available to
American purchasers.
The plans concerning Electrolite eventually fell through
On the record as a whole, it is clear that, in choosing to use
MIC in order to "control costs,"" Tiber, correctly or incor-
rectly, anticipated substantially lower labor cost than would
have been entailed in installing conduit and wire. Any savings
in labor would, of course, be at the expense of Electrolite's
employees represented by Respondent. With wage rates fixed
by contract, the savings must come through reduction in
manhours.
Conduct designed to preserve work for the employees
would be lawful primary action with National Woodwork
Association v. N.L.R.B., 386 U.S. 612. Contrary to the
Charging Party's contention, the Examiner does not under-
stand National Woodwork as being directed exclusively to
situations in which a union is attempting to prevent an em-
ployer's having customary unit work performed by nonunit
employees. The Examiner understands the Supreme Court's
decision as sustaining a union 's right to take action to pre-
serve its customary work against any form of loss, including
loss through prefabrication and substitution of materials. As
Mr. Justice Harlan said in his concurring memorandum, Na-
tional Woodwork approves as legal union conduct which had
as its "sole objective the protection of union members from
a diminution of work flowing from changes in technology."
(386 U.S. at 648).
The General Counsel apparently concedes that National
Woodwork would exonerate Respondent if the Union's sole
objective were to preserve its customary work of installing
conduit and cable. He contends, however, that, as a matter
of fact, preservation of the Union's traditional work was not
its sole objective. According to the General Counsel:
The chief object of the Union's activity was to protest
Electrolite's use of a product because its installation was
"sloppy" and/or because it was foreign made, and not
because it wished to preserve work for its members.
The General Counsel maintains that if these considerations
played any part in the Union's motivation, its conduct was
unlawful even if the Union might also have been attempting
to preserve work for itself.
Tiber, Grubbs, and Bernard E. Rubin, International Wire's
representative, all credibly testified that Acton did advance
the "sloppiness' and foreign origin of MIC as bases for the
Union's objection to its use. Indeed, as hereafter set forth,
Acton conceded this in his testimony.
The General Counsel, citing I.B.E. W., Local 11 (L. G. Elec-
tric Contractors Assn.), 154 NLRB 766, 767, maintains that
if either of considerations played any part in the Union's
decision, its conduct was unlawful, even if the Union was also
motivated by a lawful attempt to preserve work for its mem-
bers. See, also, e.g., N.L.R.B. v. Wine, Liquor and Distillery
Workers Union, Local 1, 178 F.2d 584 (C.A. 2).
The Examiner rejects the General Counsel's position so far
as it refers to the "sloppiness' of MIC installations. In the
Examiner's opinion, the Union has a sufficiently direct inter-
est in standards of workmanship to warrant its refusal to
permit the use of materials which would of of necessity result
in uncraftsmanlike work. This interest has traditionally been
reflected in the collective -bargaining agreements of many
craft unions. It appears to the Examiner to be' a consideration
similar to that of work preservation and entitled to the same
protection.
" MIC has qualities of heat and water resistance which make it desirable
for specialized applications, such as use in boilerrooms. It has been used in
commercial buildings in Cuyahoga County. However, it does not appear
that MIC's special qualities influenced Tiber's choice of the material for the
Acacia residential project
LOCAL 38, ELECTRICAL WKRS. 561
Further, in the present case , it appears that the "sloppi-
ness" matter is directly related to work preservation . Rubin,
International Wire's representative , testified that, as he had
told Acton, "sloppy" installation is not an inherent attribute
of MIC. Whether an MIC installation is tidy or untidy de-
pends on the installer . Walsh testified that Tiber could have
MIC installed with relatively little skill only if he does it in
the untidy fashion shown in his Lake County jobs. From that
experience , the Union would naturally expect that speed
would be required at Acacia to make MIC economically
feasible.
The Union 's asserted objection to MIC because of its for-
eign origin presents greater difficulty . In Washington -Oregon
Shingle Weaver's Council, 101 NLRB 1159 , 1163, enfd. 211
F.2d 149 (C.A. 9), the Board has held that a Union violated
the Act by refusing to permit the use of nonunion Canadian
shingle. Cf. International Assn. ofHeat and Frost Insulators
(Speed-Line Mfg. Co.), 139 NLRB 688 . The Board has held
that a violation by the union may be found even though the
union has no labor-oriented dispute or disagreement with the
"primary" target of its conduct . Local 1355, I.L.A. (Ocean
Shipping Service, Ltd.), 146 NLRB 723, revd. 332 F.2d 992
(C.A. 4).
Grubbs, Electrolite 's field superintendent and himself a
member of Respondent Local 38, was summoned to the
Union's office along with Don Fortenbaugh, Electrolite's job
foreman , who was doing the MIC installation work in one
apartment of the Acacia project . Testifying on behalf of the
General Counsel , Grubbs credibly quoted Acton as having
expressed strong objection to MIC because it required very
little skill to install and because it was foreign -made. Grubbs'
testimony was:
[Acton] said that the MI cable was very much like
Romex in that it could be installed by less skilled men,
it was sloppy in appearance , and that it was also pro-
duced outside of the United States.
At that point Acton gave Grubbs a copy of the collective-
bargaining agreement and referred specifically to the provi-
sion, in Grubbs ' words, "to the effect that all work that is put
in or produced shall be produced by men working under
Local 38 jurisdiction ."" In turn , Grubbs pointed out that the
MIC used on the Acacia project was "prefabbed by a journey-
man working under Local 38's jurisdiction ."" Acton then
said that, under the Union 's bylaws, the Union could have the
men removed from the job if they persisted in installing MIC.
Acton conceded that he had stated that "the objection was
that the material was made in England outside the Continen-
tal United States and what [he] felt was under wage and hour
standards that are [below16] ours here in the United States."
This evidence , taken at face value, would appear to estab-
lish that the Union 's action was dictated, in part at least, by
its objection to goods produced abroad and/or by others than
I.B.E.W . members. In this event, under the authorities
heretofore cited, a finding of violation would be called for.
11 The provision reads: "The policy of the members of the Local Union
is to promote the use of materials and equipment manufactured , processed,
or repaired under economically sound wage, hour and working conditions
by their fellow members of the International Brotherhood of Electrical
Workers."
11 The suite had been measured and the cable then cut and fitted with
"pots" by Mort Pessell, father of one of the owners of Electrohte. Although
the cutting and terminating were done at Electrolite's shop, which appar-
ently is outside Respondent's territorial jurisdiction, this work was consid-
ered as under the Local 38 contract
16 The transcript is hereby corrected to add the word "below," which,
apparently through inadvertent error, was omitted.
But the Examiner believes that the evidence above referred
to cannot be taken at its face value. Whatever Acton may
have said, the parties were in no doubt that, in line with a
longstanding bone of contention between the Union and
NECA, Acton was actually resisting labor-saving materials.
Tiber, the direct target of the Union's action, testified as
follows:
. Dick [Acton] reiterated his objection mainly at this
time, was to the fact ... that it was a foreign made
product manufactured under conditions of which he
didn't approve. I told him then that the company, the
B.I.C.C., the manufacturer of the cable, was a party to
an agreement where they had some interests, or were
negotiating for some interest in an American cable com-
pany which manufactured cable and that I could arrange
to exchange the foreign made product for an American
product.["]
At that time he said it wouldn't make any difference
that that wasn't the real reason why he was objecting to
it.
Rubin, representative of International Wire, the alleged
"primary," recognized that the Union's real concern was
with the economic effect MIC would have on the employees.
Concerning his efforts to persuade the Union to accept MIC,
Rubin testified.
I had told Mr. Acton very specifically that I felt that
mineral insulated wire could help his members, particu-
larly the disabled people that were handicapped, it might
be of a problem to install pipe and wire but that this
might be an explanation for Mr . Acton for his members
about this.
The ultimate question is whether the Union's conduct was
addressed to Electrolite vis-a-vis its employees its tactical
object was International Wire (and/or BIIC) or benefits to
employees other than Electrolite's. National Woodwork
Manufacturers Assn. v. N.L.R.B., supra, 386 U.S. at 645. In
interpreting and applying the Supreme Court's articulation of
the rule, the Board said in United Assn. of Pipe Fitters Local
455 (D. W. Hickey Co.), 167 NLRB 602, 602-603:
. the circumstances to be considered, in determining
the union's objective, might include the remoteness of
the threat of displacement by the banned product or
services, the history of labor relations between the union
and the employers who would be boycotted, and the
economic personality of the industry.
The evidence establishes that the Union's position concern-
ing MIC was part of its longstanding, traditional resistance to
preassembled products. There was considerable testimony
concerning Romex, another preassembled, labor-saving form
of cable which the Union had long opposed. There is no
suggestion that Romex is either foreign-made or nonunion-
made.
Before purchasing MIC for the Acacia project, Tiber an-
ticipated objection by the Union. Toward the end of 1969, he
discussed the matter with Union representatives, who said
they would give it careful consideration and let him know
their decision. Rubin also was aware of the Union's probable
opposition and also set about to try to win acceptance for
MIC.
During the latter part of 1969 and, the early months of
1970, the Greater Cleveland Chapter of the National Electri-
cal Contractors Association (NECA) and the Union were
negotiating amendments to their collective-bargaining agree-
ment, including provisions governing the choice of materials.
Sometime in December 1969, John E. Carpenter, General
1' Walsh, however, testified that BICC does not have "any factories in the
United States ... making M I cable."
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager of NECA, informed Electrolite that the Union had
"reluctantly" agreed to the use of MIC. However , Carpenter
apparently had been misinformed . Upon consulting Action
directly, Tiber was informed that the Union's opposition to
MIC remained unchanged . Despite the Union 's requests that
Electrolite not proceed with its plans , as previously stated,
Electrolite did start to install MIC in one apartment.
Meanwhile, the Union and NECA has not reached any
understanding concerning the right to choose materials. No
agreement was reached on this matter until around May 4,
when the parties agreed to add to the contract : 11"Nor shall
there be any restrictions in the use of accepted prefabricated
or preassembled components ." Under date of May 15, Car-
penter sent copies of the May 4 contract amendments to
NECA members . Through error, however, the word "ac-
cepted" was omitted from the section just quoted. In the
belief that all prefabricated or preassembled materials were
automatically approved under the amended contract,
Grubbs, on behalf of Electrolite , again called the Union in an
attempt to resume installation of MIC . The Union stated that
MIC had not been "accepted" under the contract provision.
Acting under that contract provision, the Joint Board Con-
ference Committee has "accepted" Romex for use in limited,
clearly specified circumstance . However, at least as of the
time of the present hearing, no "acceptance" had been
granted to MIC under this provision.
Against this background, the Union 's conduct appears
clearly to be part of a continuing resistance to technological
advance. The threat to the electricians ' traditional work of
installing conduit and wire is clear and present.
To be sure , the Union advanced other reasons for its posi-
tion ., It is quite understandable that the Union attempt some
"window dressing." It would hardly advance its bargaining
position in the contract negotiations if it frankly disclosed
that its sole motivation was, in effect, a desire to prevent the
use of cost-saving materials . Tiber understood the Union's
real motivation , just as Tiber's reason for wanting to use MIC
to save manhours was apparent despite his attempted denial.
In the Examiner's opinion , the realities of the situation do not
require that the Union be hoist with its own petard. On all
the evidence, the Examiner finds that the Union compelled
Electrolite to discontinue using MIC for the sole purpose of
preserving the unit employees ' traditional work in installing
conduit and wire. Accordingly , under National Woodwork,
the complaint should be dismissed.19
CONCLUSIONS OF LAW
1. The Electrolite Company, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Wire is a person engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent, Local 38, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
4. Respondent has not engaged in the unfair labor practices
alleged in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact , conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
it is recommended that the complaint be dismissed in its
entirety.
1S At the hearing there was some disagreement as to when (if ever) the 11 Because of this conclusion, it is unnecessary to consider the Union's
amendments dated May 4 had become effective because of the absence of alternative contention that Electrohte and International Wire were allies
formal approval by the International Union's President. The Examiner finds and therefore the Union 's conduct against Electrolite was "primary" even
it unnecessary to decide this question. if intended for its effect on International Wire