Local 38, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Aug 31, 1964

148 N.L.R.B. 757 (N.L.R.B. 1964)

LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 757
Local 38, International Brotherhood of Electrical Workers, AFL-
CIO and Edwin A. Wells, d.b.a. E. Wells Electrical Construc-
tion Company . Case No. 8-CC-181. August 31, 1964
DECISION AND ORDER
On April 27, 1964, Trial Examiner James A. Shaw issued his De-
cision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging 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 De-
cision. Thereafter, Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, 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 made by the Trial Examiner
at the hearing and finds that -no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and finds merit in the exceptions of Respondent. We,
therefore, adopt the Trial Examiner's findings and conclusions only
to the extent consistent with this Decision and Order.
The basic facts, set out more fully in the Trial Examiner's De-
cision, are as follows : Beginning in January 1962, Herb Jones Con-
struction Co., herein referred to as Herb Jones, was engaged in the
building of residential homes at Millwood Estates in Broadview
Heights, Ohio. Among the subcontractors working on the Millwood
Estates project were Wells Electrical Construction Company, the
electrical contractor, herein referred' to as Wells; Michael Galan, the
carpentry contractor, herein referred to as Galan; and Charles T.
Jones Construction Co., the bricklaying contractor, herein referred
to as Charles Jones. With the exception of Wells, the Charging
Party, all contractors working at Millwood Estates were union con-
tractors. In March 1962, and on two occasions thereafter, Herb
Jones was approached by Charles Becka, a business agent of Local
38, IBEW, AFL-CIO, the Respondent herein, and requested to "get
rid" of Wells. Herb Jones refused. These incidents are not alleged
to be unfair labor practices, but were introduced as background only.
No retaliatory action resulted from the denial of these requests.
On May 7, 1963, at a meeting of the Building Trades Council
of Cleveland,, Ohio, an unidentified member of Respondent informed
representatives of the attending unions that a nonunion electrical con-
148 NLRB No. 79.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor was working at Millwood Estates. At the meeting, Louis
Fusile, a business agent of the Carpenters' District Council, which
was bargaining representative for the carpenters employed by Galan,
and Martin Graham, a business agent of the Bricklayers Union, which
was bargaining representative for the bricklayers employed by Charles
Jones, agreed to aid Respondent in its efforts to have Wells replaced
by a union contractor. Thereafter, on May 7, 8, and 9, Becka, Fusile,
and Graham engaged in certain conduct, described more fully below,
which the complaint alleges violated Section 8(b) (4) (i) and (ii) (B)
of the Act.
The Trial Examiner initially found that, since Fusile and Graham
had, agreed at the Council meeting to aid Respondent in its efforts to
remove Wells from the Millwood Estates job, Fusile and Graham
acted as agents of Respondent in taking action in implementation of
that agreement. The Trial Examiner further found with respect to
the alleged 8(b) (4) (i) conduct that: (a) On May 8, 1963, Business
Agent Fusile told Alex Carnauch, an employee of Galan, that Car-
nauch was to join Galan's crew which was working that day at an-
other jobsite and that the job at Millwood Estates was "stopped."
(b) On May 9, Business Agent Graham told Charles Jones that the
job would have to be stopped and, "Do you want to tell them [Charles
Jones' employees] or should I tell them?" Charles Jones replied that
he would tell his employees and did so. The Respondent excepted
to the Trial Examiner's conclusion that the above conduct constituted
inducement and encouragement of employees within the meaning of
subsection (i) of Section 8(b) (4) of the Act. We find merit in these
exceptions.' As to (a), the record indicates that, although Galan's
carpenters had been working at Millwood Estates on May 7, he had
moved his crew to a different job on May 8 because there was insuf-
ficient material at Millwood Estates, and that Carnauch had come to
the Millwood area on May 8 by mistake. Thus, Fusile's statement to
Carnauch that the job was "stopped" was, insofar as it applied to
Galan's carpentry work at Millwood Estates on May 8, in fact true,
and his further advice to Carnauch that he report to Galan at the
other site was directed toward causing Carnauch to return to work,
rather than, as the Trial Examiner concluded, an attempt to induce
Carnauch to cease work. As to (b), the Trial Examiner found that
Charles Jones, by relaying Graham's instructions to his employees,
was acting as Graham's agent; and, therefore, that Jones' statement
to his employees that they were not to work at Millwood Estates con-
stituted on inducement by Respondent of Charles Jones' employees
to refuse'to work in violation of 8(b) (4) (i). We do not agree. In
'We shall assume for purposes of this decision that, as found by the Trial Examiner,
Fusile and Graham were acting as agents of Respondent in engaging in the conduct
described herein
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 759
the first place, Graham's statement to Jones in itself did not constitute
an inducement of Jones not to perform services within the meaning
of 8(b) (4) (i) since the record establishes that Charles Jones was the
employer and such an appeal would be for an exercise of Jones' man-
agerial discretion? Nor would the fact that Charles Jones, at the
instance of Graham, told his employees that the job would have to be
stopped constitute an inducement by Graham of Charles Jones' em-
ployees to stop work under Section 8(b) (4) (1). The above facts
establish, we believe, that Jones decided in his managerial capacity to
withdraw his employees from the job and that he told his employees
of this decision. In disagreement with the Trial Examiner, we find
that in so doing, Charles Jones was not acting as an agent of Respond-
ent, and, accordingly, that such statement did not constitute induce-
ment of these employees by Respondent within the meaning of
subsection (i).1
The Trial Examiner found that by the following conduct Respond-
ent violated Section 8(b) (4) (ii) (B) :
(1) On May 7, 1963, Becka, Respondent's business agent, asked
Herb Jones to replace Wells with a union contractor. Jones refused.
Later in the conversation, Jones asked Becka what would happen if
he continued to refuse to replace Wells. Becka replied, according to
the credited account of Jones, "I would have to find out for myself."
When Jones repeated his question, Becka answered, "Just don't act
like a school kid. You know what I'm talking about."
(2) As described above, on May 8, 1963, Galan, the carpentry con=
tractor, left the Millwood Estates site because there was insufficient
material to continue working. Fusile, the Carpenters' business agent,
then went to the other jobsite and told Galan that "... we should stay
here, not to go on the Millwood Estates until everything is settled, the
job is stopped there."
(3) On May 9, 1963, Graham, business agent for the Bricklayers,
spoke to Charles Jones at the jobsite, and said, " . . . we are going to
2 N L.R B v. Servette , Inc., 375 U S 892
S The Trial Examiner relied on the Board 's decision in Local 1976, United Brotherhood
of Carpenters and Joiners of America, AFL, et al. ( Sand Door and Plywood Co ), 113
NLRB 1210, 1213 , to support his finding that Respondent was responsible for Charles
Jones' statement to his employees . There, the Board held that where a supervisor told
employees under his supervision to stop work pursuant to instructions he received from
the respondent union's business agent, the supervisor was acting as agent for the union
and the union therefore induced employees to engage in a strike within the meaning of
former Section 8(b) (4) (A) of the Act In our opinion , the Sand Door decision is factu-
ally distinguishable from the present case In Sand Door, the Board found that the
supervisor involved was a member of the union , that he was vested with authority and
responsibility to enforce the union ' s rules , and that the union representative spoke to
the supervisor in the latter's capacity "not as representative of management but as an
instrumentality of the Respondents [ unions ] . . In the present case , however,
Charles Jones was the employer and, while he was a member of the Union , there is no
evidence that lie was vested with authority or responsibility to enforce the Union' s rules,
or that he was spoken to in his capacity as an instrumentality of the Union
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to stop the job." Graham asked Jones if he had some other place
where the men could work. Jones answered in the affirmative.
Graham then suggested, "Well, why don't you take them over there
and then they won't lose any time?-,... Do you want to tell them or
should I tell them?" Jones replied that he would tell his men.
We disagree with the Trial Examiner's finding that by the foregoing
conduct Respondent violated Section 8(b) (4) (ii) (B). We do not be-
lieve that these statements reach the level of threats, coercion, or re-
straint prohibited by Section 8(b) (4) (ii).' Becka's reply to Herb
Jones, elicited in response to questioning by the latter, is, on its face,
ambiguous. Fusile's statement to Galan is not a threat; it is as sus-
ceptible of interpretation as a suggestion or request to Galan not to
resume work at the Millwood Estates project. Similarly, Graham's
statement to Charles Jones considered in context may be interpreted
as a request or a statement of fact and not as a threat to Jones. More-
over, even if Graham's statement should be considered coercive; we
do not believe that a remedial order based on this single statement is
justified. Accordingly,we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER LEEDOM, concurring in part and dissenting in part :
I agree with the majority that Respondent did not violate Section
8(b) (4) (i) (B) of the Act. However, unlike the majority, I would
affirm the Trial Examiner's finding that Respondent violated Sec-
tion 8(b) (4) (ii) (B).
The basic facts are that on May 7, 1963, in response to a request made
by a representative of Respondent at a meeting of the Building Trades
Council of Cleveland, Ohio, Fusile and Graham, business agents of the
Carpenters and Bricklayers, respectively, offered their services to help
Respondent in its efforts to remove a nonunion subcontractor from the
Millwood Estates construction job. As the Trial Examiner found,
they thereafter acted as agents of Respondent in engaging in conduct
directed at removing Wells from the construction site. Also on May 7,
Becka, business agent of Respondent, told Herb Jones, the general
contractor at Millwood Estates, that Respondent could no longer
tolerate Wells' presence on the job and that if Wells was not removed,
Jones would "have to find out for [him] self" what would happen.
Becka also said, "... Don't act like a school kid. You know what
I'm talking about." The, only reasonable interpretation of Becka's
statements is that if Wells' subcontract was not canceled, Respondent
6 General Teamsters Local No. 162, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independent (B. P. John
Furniture Corporation), 144 NLRB 536; Electrical Workers Union Local 38, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO (Hoertz Electrical Maintenance
Co ), 138 NLRB 160.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 761
would take strike or other coercive action to pressure Herb Jones into
complying with Respondent's demands. This conduct, I would find,
clearly constituted threats, restraint, and coercion within the meaning
of subsection (ii) of 8 (b) (4). 1
On May 8, 1963, Fusile told Galan, the carpentry subcontractor, that
Galan was "not to go on the Millwood Estates until everything is
settled, the job is stopped there"; and on May 9, Graham told Charles
Jones, the bricklaying subcontractor, "We are going to have to stop
the job," and asked whether Jones had "some other place for the men
to work." The Trial Examiner found, and I agree, that these state-
ments also constituted threats, restraint, and coercion. Unlike my col-
leagues, I do not believe that these statements, particularly when
viewed in light of Becka's threat to Herb Jones on May 7, were merely
"notification" to Galan and Charles Jones that the construction job had
been declared unfair and an appeal to. them to remove their employees
from the job. Moreover, the conclusion that these statements con-
stituted threats is supported by Graham's' further statement to Jones,
"Do you want to tell them [Charles Jones' employees] or should I
tell them [that the job was stopped] ?" In my opinion, Graham thereby
threatened Jones that if Jones refused to order his employees to quit
work, Graham, as.business agent for the Carpenters Union, would do
so. While the threats here may not have been explicit, their import
was plain. It .should be understood that even the less skillful business
agents could coerce with caution and courtesy.'
I would therefore affirm the Trial Examiner's finding that Re-
spondent threatened, restrained, and coerced secondary persons for
proscribed objects, in violation of Section, 8(b) (4) (ii) (B) of the Act.
5 See my dissent in Construction, Building Mateiial and Miscellaneous Drivers Local
Union No 83, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
(Helpers of America, Ind. (Marshall & Haas ), 133 NLRB 1144.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented and participating , was heard before
Trial Examiner James A. Shaw in Cleveland, Ohio, on September 4, 16, 17, 18, 19,
and 20, 1963. Upon a, complaint as amended at the hearing herein by the General
Counsel, it is alleged that Local 38, International Brotherhood of Electrical Work-
ers, AFL-CIO, herein called the Respondent or Respondent Union , had engaged
in conduct violative of Section 8(b)(4)(i ) and (ii)(B) and Section 2(6) and (7)
of the Act.' Opportunity was afforded the parties to argue orally on the record
and to file briefs . Well considered briefs were filed with me by the General Counsel
and the Respondent on or about October 24, 1963. ' -
At the close of the hearing counsel for the Respondent moved to dismiss the com-
plaint in its entirety . I reserved ruling thereon. It is hereby denied for reasons
that will be apparent below.
Upon the entire record in the case, and from my observation of the witnesses,
particularly their demeanor while they were testifying at the hearing herein, I make
the following:
1 See infra for additional comment regarding the pleadings and the position of the
parties involved herein. -
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
One of the most important issues that we are concerned with herein is whether or
not the Board should assert jurisdiction pursuant to its $50,000 indirect inflow
standard. The disposal of this issue is dependent not upon the inflow of material
and the like to the primary employer, Edwin A. Wells, d.b.a. E. Wells Electrical Con-
struction Company, but to the general contractor at the jobsite, Herb Jones Con-
struction Company, as well. For that reason I feel that a brief resume of the con-
struction job that we are concerned with herein should of necessity be inserted at
this point so that all concerned will have a picture, so to speak, of the job, and
the role of the parties involved therein that led up to the filing of the charges. With
that in mind I will set forth below my interpretation of the record in this regard.
We are primarily concerned with a construction project in Broadview Heights,
Cuyahoga County, Ohio, known as the Millwood Estates, which will eventually
contain 260 homes. At times material herein approximately 20 homes had been
constructed, including 2 model homes, which were located near the entrance to
the project. The preparation of the ground upon which the houses were to be
constructed had progressed to the point where it was feasible to start the building
of 45 homes sometime in the early part of 1962, at which time the streets had been
paved and sewage , water, and gas facilities completed and ready for connection.
The general contractor for the Millwood Estates project was Herb Jones Construc-
tion Company, an Ohio corporation with its principal office and place of business
in Parma, Ohio. Its principal business is the construction of residential homes
and Herb Jones, Jr., is vice president of the corporation.
According to the credible testimony of Herb Jones, he started construction on
the project in January 1962. In order to carry on the construction he retained the
services of several subcontractors to do the work in their respective trades, such as
carpentry, electrical , masonry, plumbing, painting , and plastering . We are only
concerned herein with the carpentry, electrical, and masonry contractors. This is
due to the fact that, at times material herein, they were the only trades whose serv-
ices were needed on the houses then under construction. The subcontractors re-
tained by Herb Jones to do the work on the project were as follows: Charles Jones
(brother of Herb Jones, Jr.) to do the masonry and bricklaying work; Mike Galan,
the carpenter work; and Edwin A. Wells, d.b.a. E. Wells Electrical Construction
Company, the primary employer, herein referred to as Wells.
Unquestionably one of the most important issues we are faced with is "whether
the Board may assert jurisdiction over the activities of Herb Jones, Wells, Galan,
and Charles Jones at the Millwood Estates project, as persons engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, pursuant to its $50,000,
inflow standard." 2 The General Counsel maintains that it should; the Respondent
2 At this point I feel impelled to insert this footnote, primarily because of the condi-
tion of the record herein, mechanical and otherwise I have reference in particular to
the many errors in the transcript of the record, which even a casual perusal thereof
should be obvious to all concerned herein. Consequently in the absence of motions to
correct the record from any of the parties Involved, the summarization thereof has been
a most difficult task Even so, I desire to point out to all concerned that my findings
therefrom have been made after long and careful consideration in the circumstances de-
scribed above and in the light of the record considered as a whole
In the light of my observation of the conduct and deportment at the hearing of all
the persons who testified herein, and after a very careful scrutiny of the entire record,
all of which has been carefully' read and reread and rechecked several times, and being
mindful of the contentions of the parties wtih respect to the credibility problems here
involved, of the fact that in many instances testimony was given regarding events which
took place months prior to the hearing, and of the fact that very strong feelings have
been generated by the circumstances of this case, coupled with the fact that it would
unnecessarily protract this report to summarize all the testimony or to spell out fully the
oonfueion and inconsistencoes therein, the following is a composite picture of all the
factual issues involved and the conclusions based thereon The parties may be assured
that in reaching all resolutions, findings, and conclusions herein, the record as a whole
has been carefully considered ; relevant cases have been studied ; and each contention
advanced has been weighed, even though not specifically discussed.
I wish to advise the parties at this point that the issuance of my Decision in this case
has been unavoidably delayed due to illness during the past several months.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 763
Union takes a contrary position and at the hearing and in its brief vigorously opposed
the General Counsel's theory in this regard.3
The General Counsel contends "that indirect inflow to the lobsite exceeded
$50,000, during 'she two 12-month periods preceding the filing of the charge ..."
herein by Edwin A. Wells on May 13, 1963.4 In support of his position in this
regard he offered the testimony of the following representatives of three suppliers
of materials for Herb Jones in his construction of residential homes at Millwood
Estates. They were as follows: Glenn Preslan , assistant manager and purchasing
agent for the Cleveland, Ohio, branch of the Rock Island Lumber Co.; Frank Carson
Roper, Jr., vice president of Foldoor & Surfaces, Inc., Cleveland, Ohio; and John
H. Ross, president of the Seaway Window & Door Company, Cleveland, Ohio. Their
testimony regarding their business relations with Herb Jones will be discussed below .5
It is to be noted at this point that the two 12-month periods referred to above
refer to the purchases by Herb Jones Construction Company for use in construction
at the Millwood Estates project during the periods in question, which were manu-
factured outside the State of Ohio and delivered to Jones at the Millwood project,
without change in form by the suppliers named above.
Preslan , Roper , and Ross testified regarding the relations of their respective com-
panies with Herb Jones at the Millwood Estates project. A resume of their testi-
mony follows below.
According to the credible testimony of Frank Roper, Jr., vice president of the
Foldoor & Surfaces Company, an Ohio corporation, engaged in the distribution of
flooring materials , both as a manufacturers ' representative and as a wholesale dis-
tributor, his company sold and delivered to Herb Jones at its Millwood Estates
project during the calendar year 1962, materials totaling $1,552.97, all of which
were purchased and manufactured outside the State of Ohio, particularly in Tennes-
see, were not changed in form, but delivered in the condition they were received
direct to the jobsite in question.6 He further testified that the amount of sales to
Herb Jones during his "fiscal year" was $1,369.47.
John H. Ross testified credibly that his company sold and delivered to Herb Jones
at the Millwood Estates project during the calendar year 1962, materials totaling
$12,408.36, and during the "fiscal year" of Herb Jones, a price of $12,256.72. Ross'
testimony in this regard was supported by documentary evidence consisting of a
summation of the Company's business records which I admitted in evidence at the
hearing?
We now come to the testimony of Glenn Preslan. According to Preslan, Rock Is-
land's main office and place of business is located in St. Paul, Minnesota , and the
branch we are concerned with herein is located at 14550 Lorain Avenue, Cleveland,
Ohio.8 The record clearly shows that Preslan was not only familiar with Rock Island's
business affairs, but a conscientious and patient witness, as is clearly evidenced by his
testimony concerning Rock Island 's relations with Herb Jones during its activities
at the Millwood Estates project, and in particular as to General Counsel's Exhibits
Nos. 4 and 5, which were admitted in evidence at the hearing herein. From his
credited testimony and the exhibits received in evidence at the hearing, I find that
Rock Island sold and delivered to Herb Jones at the Millwood Estates project mate-
rials for the calendar year January 1, 1962, valued at $36.966 43; that it sold and
delivered to Herb Jones, during his "fiscal year," materials valued at $42,528.54;
that all of said materials were purchased outside the State of Ohio and delivered to
Herb Jones at its Millwood Estates project during the periods noted above; and
that said materials originated outside the State of Ohio, but were sold and delivered
to Herb Jones by Rock Island's Cleveland, Ohio. branch, who as indicated above
received said materials from outside the State of Ohio.
In all the circumstances discussed and described above, I am convinced and find
that the total amount of indirect inflow to the Millwood Estates jobsite during the two
9 Quotes from the General Counsel's brief
4 See infra in re " . the two 12-month periods "
5 See infra regarding the purchases of the primary employer, E. Wells Electrical Con-
struction Companv, and their effect upon commerce
O See General Counsel's Exhibit No 2 for both the year 1962 and Herb Jones' "fiscal
year." April 1, 1962, to March 31 1963
7 See General Counsel's Exhibit No 3
B Though the record is none too clear as to what State Rock Island was incorporated
in, I am convinced that it was Minnesota and I so find.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"12-month" or "1-year periods" was as set forth below in a summation of their
sales to Jones during the periods referred to above:
Supplier 1962 4/1/62 to 3/31/63
Rock Island Lumber Co---------------- $40,886.68 $43,053.22
Seaway Window & Door________________ 12, 400. 36 12, 856.72
Foldoor & Surfaces____________________ 1, 552.97 1,369.47
Total --------------------------- $54,847.81 $57,279.41
From all of the foregoing, I find that the indirect inflow to Herb Jones' Millwood
Estates project exceeded $50,000 during the two 12-month periods preceding the
filing of the charges herein and exceeds the $50,000 standard of indirect inflow as
set forth in the Stemons Mailing Service, 122 NLRB 81, 85.
While it is true that the above finding pertains to Herb Jones Construction Com-
pany, the general contractor for the Millwood Estates project, and not to the primary
employer herein, E. Wells Electrical Construction Company (referred to herein as
Wells), whose indirect inflow was less than $10,000, for the periods set forth above,
the Board will nevertheless for jurisdictional purposes consider the indirect inflow
not only of the operations of the primary employer but also the operations of the
secondary employers at the location affected by the conduct alleged in the complaint
as violative of the Act, particularly in the construction industry.
As indicated above Edwin A. Wells, the primary employer herein, had an indirect
inflow of less than $10,000. The record shows, and I find, that he had an indirect
inflow of materials from H. Leff Electric Company and other suppliers of $7,099.87
in 1962, and in the Herb Jones fiscal year of $8,904.07. Obviously in such cir-
cumstances Wells' purchases, standing alone, during the periods we are concerned with
herein, do not meet the Board's jurisdictional standards. Even so, the Board has been
faced with similar situations in the past and for jurisdictional purposes considered
the entire operation, including not only the primary employer but the entire operations
of other employers at the construction project. For example, in the Madison Build-
ing & Construction Trades Council, et al. (H & K Lathing Co.), 134 NLRB 517, 518,
which is in many respects similar to the situation we are faced with herein insofar
as the jurisdictional question is concerned, the Board held, inter alia, as follows:
In reaching these results, the Trial Examiner apparently concluded that he
must, in each instance, find a violation before he could consider, for jurisdictional
purposes, the commerce figures of the secondary employers. We do not agree.
Under the rules of Jamestown 3 and McAllister 4 cases, where, as here, the pri-
mary employer does not meet the Board's jurisdictional standard, the Board will
take into consideration for jurisdictional purposes not only the operations of the
primary employer, but also the entire operations of the secondary employers at
the locations affected by the alleged conduct involved.5 The requirement that
secondary employers be affected by the conduct involved does not mean that a
violation must first be found. It is sufficient that conduct occurred that involved
the secondary employer, which conduct must be considered and ruled upon as
alleged violations. Moreover, the conduct involving one secondary employer
may not, as an isolated incident, be ruled upon as to whether it constitutes a
violation, as the Trial Examiner did. unless jurisdiction is first asserted in the
proceeding under the Board's applicable standards.
In these circumstances, as the combined indirect inflow of .the four secondary
employers at the locations affected is $53,067.63, an amount exceeding the re-
quired $50,000, we find that such combined indirect inflow meets the Board's
jurisdictional standard.6 Accordingly, we find that, for the purpose of this
proceeding, the four secondary employers herein involved are engaging in
commerce, or in operations affecting commerce, within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction in this
proceedine and to resolve the substantive issues raised by the complaint We
shall therefore remand this proceeding to the Trial Examiner.
8 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange,
Inc), 93 NLRB 336
4International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Drivers and Helpers Local No 554, and Chauffeurs, Teamsters
and Helpers Local No 608, AFL (McAllister Transfer, Inc.), 110 NLRB 1769.
51d., pp. 1769-1772
9 United Slate, Tile and Composition Roofers, Damp and Waterproof Workers
Association, AFL-CIO, Local Union No 57 ' (Atlas Roofing Co., Inc ), 131 NLRB
1267, footnote 2.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 765
Another factor which we must take into consideration' in cases of this nature is
that a general contractor in the building and construction industry is in an industry
affecting commerce within the meaning of- Section 8(b) (4) of the Act .9
Conclusion
In the circumstances discussed and described above, I find that Herb Jones Con-
struction Company and Edwin A. Wells, d.b.a. E. Wells Electrical Construction
Company, have been engaged, respectively, as a general contractor for the construc-
tion of residential homes at a housing development known as Millwood Estates at
Broadview Heights, Ohio, and (Wells) as an electrical contractor in the building
and construction industry at the same project; that during the year 1962, goods, sup-
plies, and materials valued in excess of $50,000, and originating outside the State
of Ohio were received at Millwood Estates to be used in the construction of residential
homes; that in March 1963, Herb Jones subcontracted certain work at Millwood
Estates to other contractors in the building and construction industry, including the
carpentry work to Michael Galan of Parma, Ohio (herein called Galan), masonry
work to C. Jones Construction Company of Strongsville; Ohio (herein called C.
Jones), and the electrical work to Wells; that Herb Jones, Galan, C. Jones, and Wells
have been at all times material herein , and are now, persons engaged in commerce
or in an industry affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
In all the circumstances, I am convinced that the Board should assert jurisdiction
over the employer's,- i.e., the general contractor, Herb Jones, operations at the Mill-
wood Estates project ". . with respect to labor disputes cognizable under Sec-
tions 8, 9 and 10 of the Act." 10
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union, Local 38, International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
No proper understanding of the issues herein could be had without a summation
of what transpired at the Millwood Estates project prior to the dates set forth in the
complaint that the alleged unfair labor practices occurred, "May 7 to May 9, 1963,
" and thereafter. Let us first consider the following excerpt from the complaint
which will be helpful to all concerned.
10. In furtherance of its aforesaid labor dispute with Wells, Respondent
Union, since on or about May 7, 1963, by its officers, agents and representa-
tives, instructed , requested and appealed to employees of Galan , C. Jones, and
employees of other employers, to cease working for their respective employers,
and from on or about May 7, 1963 to on or about May 9, 1963, did engage in a
strike or work stoppage, and by said acts induced and encouraged individuals
employed by Galan, C. Jones, and other persons engaged in commerce or in
an industry affecting commerce, to engage in a strike or work stoppage.
11. In furtherance and support of its labor dispute with Wells, referred to
in Paragraph 8 above, Respondent Union, by its officers; agents and representa-
tives, from on or about May 7, 1963, to date, threatened, coerced and re-
strained, and is threatening, coercing and restraining Herb Jones, Galan and
C. Jones, which are persons engaged in commerce or in an industry affecting
commerce, by threatening to engage in a strike or work stoppage.
12. An object of the acts and conduct engaged in by Respondent Union, as
set forth in Paragraphs 10 and 11 above, is and has been to force or require
Galan and C. Jones, which are persons engaged in commerce or in an industry
affecting commerce , and other persons so engaged , to cease using, selling,
handling, transporting or otherwise dealing in the products of, or to cease
doing business with, Herb Jones in order to force or require Herb Jones and
other persons engaged in commerce or in an industry affecting commerce to
cease using, selling , handling, transporting , or otherwise dealing in the products
of, or to cease doing business with, Wells.
0 See Sheet Metal Workers International Association, Local Union No. 299, AFL-CIO,
at al (S M. Kisner and Sons), 131 NLRB 1196, and Local 20, Sheet Metal Workers
International Association, AFL-CIO (Beyer Drug Company, Inc.), 132 NLRB 73, 76.
10 See Marcel La fond d/b/a Marcel Lafond Construction Company, 142 NLRB 430.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13. By the acts described in Paragraph 10 above , and by each of said acts,
for the objects described in Paragraph 12 above, Respondent Union did engage
in, and is engaging in, unfair labor practices within the meaning of Section
8(b)(4)(i ) and (ii )(B) of the Act.
14. By the acts described in Paragraph 11 above , and by each of said acts,
for the objects described in Paragraph 12 above , Respondent Union did engage
in, and is engaging in, unfair labor practices within the meaning of Section
8 (b) (4) (ii ) (B) of the Act.
The Respondent Union in its answer specifically denied that it had engaged in any
of the unfair labor practices set forth in the complaint.
As indicated above the Millwood Estates project in Broadview Heights, Ohio,
was started by Herb Jones , the general contractor , at an unspecified date in the early
part of 1962 . Sometime in March 1962 , Jones subcontracted to other contractors
specializing in the construction industry , particularly in the building of residential
homes, such as carpentry , masonry, electrical work , particularly the wiring of
houses,ll painting , roofing, excavating , concrete work, plastering, heating, and dry-
wall application . Herb Jones had no written agreements with any of the subcon-
tractors , except Wells, the electrical contractor, primarily because his price was so
much a home, and by such an agreement he would ". . . get a better price when
you got more homes." The reason he had no written agreements with the other
subcontractors is best told in the following excerpt from his testimony:
A. No, not written , because those prices go according to homes. In other
words, we don't have a written contract with a carpenter contractor or a
complete project because each home is different in construction costs ... .
We are concerned only with the activities of the following subcontractors: Mike
Galan , carpentry, Charles Jones, masonry, and Wells, the electrical work , primarily
because they were the only subcontractors on the job at times material herein.
, All of the subcontractors on the Millwood job were union contractors except
Wells. Shortly after the job started in March 1962 , the business agents of several
of the craft unions called at the Millwood Estates project . They first went over
the project and "checked" up on the workers who were on the job, and then called
on Jones in his office, which at the time was located in a "model home " that he
had constructed , "on the corner of the development ." according to the record, they
entered Jones ' office, introduced themselves , and discussed the project with him
regarding matters that were of mutual concern. Among those present was Charles
J. Becka, one of the-business agents for Respondent Local No . 38. According to
Herb Jones' credible testimony , Becka said to him during the course of the meeting
"that all of the employees you have are union except the electrical workers, and of
course we want to see you get rid of this electrical contractor and hire a union con-
tractor." Becka admitted that he had the above conversation with Jones , but denied
that he told him that he would have to get "rid" of Wells. His version of the con-
versation was that "I stated I would want him to get an electrical union contractor.
How he did or what he did with Wells, that wasn 't my job ." Though there is little
variance between their separate versions as to what was said at the time in question,
for reasons which will be apparent below , I credit Jones' version in its entirety and
find that Becka , in essence , used the language attributed to him by Jones in the
conversation in question . Suffice it to say at this point that it is a matter of common
and notorious knowledge that union business agents as well as others in the con-
struction industry use a "language " or "lingo" of their own and that I am thoroughly
convinced that the language used by Becka in his conversation with Herb Jones
on the date in question was interpreted by Jones to mean exactly what the record
shows in the above excerpt from his testimony . Further support for my comment
in this regard is what actually transpired thereafter , on May 9, 1963.
That Wells' presence on the job as the electrical contractor was perturbing to
the business agents of the other trade unions whose members were working at times
material, will be shown below. I have particular reference to the activities of
Martin Graham , business agent for the Bricklayers Union , and Lewis Fusile, a
representative of the Carpenter 's District Council who , as I interpret the record,
acted in the capacity of a business agent at all times material herein at the Mill-
wood Estates project.12
11 See infra, in re importance of this particular work
12 As district representative of the Carpenter ' s District Council, Fusile had jurisdiction
over the business agent of the locals in the district, which included the locals in Cuyahoga,
Lake, Geauga , and Ashtabula Counties in Ohio.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 767
As indicated above Wells, operating under the trade name of and sole owner of
E. Wells Electrical Construction Company, North Royalton, Ohio, had a written
contract with Herb Jones Construction Company at the Millwood Estates project.
Neither Wells nor any of his employees were members of either the Electrical Work-
ers Union or any other labor organization. It was for this reason, as will be dis-
cussed in more detail below, that he was the object of the alleged illegal conduct of
the Respondent, Local 38, and as such is the primary employer in this proceeding.
Wells had been operating as the E. Wells Electrical Construction Company for
approximately 14 years. As such he is and has been engaged primarily in the wir-
ing of new single dwellings, repair work, and some. commercial and industrial repair
work. As indicated above, he was not a member of the Respondent Union, and in
fact never had been. The only time that he had ever belonged to a labor,organiza-
tion was when he was working in a building supply yard while he was a college
student. At that time he was a member of the Teamsters Union. - Even though he
was not a member of the Respondent Union at times material herein, he had tried
on several occasions over the years to be recognized by-it either as an electrical con-
tractor or as a card-carrying member. According to his credible testimony he had
tried at least seven times to be recognized by it, but had been rejected each time for
the same reasons, "not recommended at this time." Though he tried on several
occasions to have the executive board give him more detailed information for its
actions in this regard , his requests were consistently ' rejected. The circumstances
surrounding certain of his applications for recognition at times material herein,
which I deem pertinent to the issues we are confronted with , will be discussed in
more detail below.
At this point I feel that it should be brought to the attention of all concerned
that Herb Jones and Wells had had contractual relations before they entered into
their contract pertaining to the electrical work at the Millwood Estates project.
That their relations had been amicable *and satisfactory to both is best told in the
following excerpt from Herb Jones' credited testimony.
THE WITNESS: Mr. Wells had worked for me at least four years. As a sub-
contractor I was very pleased with his work. Now, it is not too often that
you get a subcontractor that you are happy with 100 percent. When we would
have a house ready Mr. Wells always came in and wired it. There was never
any trouble with, or friction between Mr. Wells and any home owner. We
never had a bad complaint about him . He got the work done on time and got
it done correctly.
Now, as long as I am happy with a subcontractor and he was loyal to me
for a number of years, I couldn 't see no ' reason of letting him go and getting
another man in there, another subcontractor and start from scratch . If there
was some reason why Mr . Wells didn 't do his work correctly, or some other
reason , I would have gotten rid of him . But as long as I have a subcontractor
like that , and we have other ones we have had for years, we will keep him.
We have other contractors we have changed many times that we haven't been
happy with . So I think in answering his question that we weren 't 100 percent
union because we were happy with the contractor that we had.
Here we have a situation where the general contractor, Herb Jones , is faced with a
difficult situation . On the one hand he is confronted with a construction job of some
magnitude, the building of around 260 homes at the Millwood Estates project,
which will require the service of skilled craftsmen, such as carpenters, bricklayers,
electricians , and of other trades. In order to secure such craftsmen , he of necessity in
this day and age must look to the union representing the various craft for capable
and experienced workers. ' This likewise is a 'matter of common and notorious
knowledge and requires no extensive comment by me. Suffice it to say that it is
axiomatic "that what we know as men, we cannot ignore as trier of the facts."
In the circumstances, a contractor or builder such as Herb Jones must of necessity
not only rely on the building trade unions as a source of supply for skilled workers,
but must maintain amicable relations with those selected by them to handle their
day-to-day problems such as the business agent. Jones was well aware of this problem
when he entered into contractual relations with Wells to do the electrical work at
the project. On the other hand he had a legal right to enter into contractual rela-
tions with Wells, or with any other person he had confidence in, to do certain work
at the project in question. It was in the light of this "atmospheric condition" that the
issues herein arose.
According to Wells, he wired the first house in the Millwood Estates project some-
time in September 1962. According to the record, Wells worked at the project with-
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out any serious interruption until sometime in November 1962, at which time he met
and had his first conversation with Becka regarding his presence on the Millwood
Estates job. Since I deem this'incident of major importance in,my ultimate disposal
of the issues herein, I feel that it would be helpful to all concerned to relate at this
point what had transpired before Wells and Becka met and had their first conversa-
tion on the date in question . I have particular reference to Wells' efforts to secure
recognition by the Union's executive board as a union contractor.
Becka called on Herb Jones at the Millwood Estates project sometime in May 1962.
According to Herb Jones' credible testimony, Becka again requested him to get a
union electrical contractor and to "get rid of Wells." At this point Jones asked
Becka in substance what would have to be done "to get Mr. Wells in the Union" and
Becka told him that the only way was for Wells "to go to the Executive Board of the
Union" and secure its approval. He called Wells that evening and asked him to go
down to the executive board and ask for (recognition as a union contractor. Wells
told him in the course of their conversation that he had made application to the
executive board on several occasions in the past and had been refused each time.
Nevertheless, as a result of their conversation Wells went before the executive board
again and asked for recognition. During the course of the session Wells told the
board that ". . . at this particular time that I was willing to let my men go and hire
their men." Despite his concession in this regard, the executive board again denied
him recognition and refused to give him any reason for its action, except by the now
shop-worn phrase, "Not recommended at this time." 13 The records shows that he
made other attempts to be recognized by the executive board in either the latter
part of 1962 or early in 1963 and in April 1963.
Wells' account of what transpired at the meeting with Becka in November 1962
is of importance, not only as background regarding the relations of the parties
prior to the May 7, 8, and 9, 1963, incidents which are the predicate for the allega-
tions in the complaint, but also as evidence- that has been most persuasive to me in
my ultimate resolution of the issue regarding Becka's credibility as a witness In the
circumstances, an excerpt from Wells' testimony in this regard follows below:
A. Mr. Becka approached me, introduced himself. I introduced myself
and he asked me if I was a union contractor or if I carried a card and I said,
"no." Mr. Becka explained to me that. he would have to see to it that I was
thrown off the job or cease doing any more electrical work at Millwood Estates.
I told Mr. Becka that I felt that it was up to Mr. Jones to make any decision of
that sort as to whether I could continue working there or discontinue working.
In that conversation I asked Mr. Becka how it was possible to obtain union
recognition or how I would go about it. I explained to him that I had been
before the Board previously and had been turned down.
He suggested that I go before the Board again which I did at the next
scheduled meeting. I believe these meetings are twice a month, and if my
memory serves me correctly, it's the first and third Monday.
Becka, in the course of his testimony on direct examination, testified that he did
not recall meeting with Wells in November 1962. Wells testified to the effect that he
would ". . . see to it that I was thrown off the job or cease doing any more electrical
work at the Millwood Estates " 14 His testimony in this regard is best told in the
following excerpt therefrom which follows below:
Q. He said then that you said that you would have to throw him off the job.
Did you make any such statement-in November 1962, to him.
A. Compared to his size I don't think I could have thrown Mr. Wells
anywhere.
Q. Regardless, did you or did you not, say that to him?
A. No, I did not.
Q. In any, period of time around-November 1962, three months give or take?
A. Not to my knowledge.
Here we have an example of the difficulties that have plagued me throughout the
abstraction of the testimony of the witnesses who testified at the hearing. I have
reference to the above excerpt from testimony of Becka as to Wells' testimony that
13 Though the record is none too clear as to the date Wells went before the executive
board , I am convinced and find that it was "some two weeks or so" after he and Becker
met at the Millwood Estates project in November 1962.
14 See excerpt from Wells' testimony , supra.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 769
he and Becka met for the first time at the Millwood Estates project sometime in
November 1962. On direct examination, counsel for the Respondent interrogated
Becka regarding this incident. A pertinent excerpt therefrom follows below:
Q. He states, that in November 1962, that you met him at the Millwood
Estates, and introduced yourself and asked if he had a union card or carried
a union card, if he was a union contractor or carried a union card. Do-you
recall that?
A. No, I do not.
Q. Did you ever ask him to your knowledge?
A. No I did not.
On cross-examination by counsel for the Charging Party he testified as follows
regarding this same incident:
TRIAL EXAMINER: Do you have any questions Mr. Metzner?
Mr METZNER: I have a couple of questions.
Q. (By Mr. METZNER.) Mr. Becka, I understand you said that you never
talked with Mr. Wells until this morning of May 9th?
A. I didn't say that. I didn't say that. -
Q. When had you talked with him before?
Mr. SMOOT: This is going through all of his direct testimony.
TRIAL EXAMINER: I don't think so.
Mr. SMOOT: Yes, it is. He is repeating everything that came before.
TRIAL EXAMINER. He only asked one question.
Mr. SMOOT: That was a,question repeating every conversation.
TRIAL EXAMINER: I will overrule it. Go ahead. Get going. This is cross
examination.
A. There was no other time when I had to go out on the job, and I believe
Mr. Jones in his testimony had testified that his wife was out there at the time.
I happened to see him in the house and, incidentally, there was another agent
that happened to come out there that same time. It happened to be a plumb-
ing agent, and Wells came in there, and that was the first time that I had
met Mr. Wells.
Q. You had not talked with him back in November of '52?
TRIAL EXAMINER: 1952?
Mr. METZNER: 1962.
A. To my recollection, I did not.
Q. Or at any other previous time?
A. To the best of my knowledge, no.
Q. And did you have a lengthy conversation with him the time that you just
mentioned meeting him in the house?
A. I wouldn't say a lengthy conversation. I would say-
Q. What was your conversation?
A. The same as it always has been with Jones, "Why don't you go down
and get yourself recognized by the electrical workers 'and go down before
the Executive Board?"
The foregoing is illustrative of the pestiferous state of the record herein, and the
difficulties I have been faced with in my efforts to interpret it honestly and fairly in
resolving the issues herein.
Quite frankly Becka did not impress me as an honest and forthright witness. The
foregoing is indicative of the evasiveness of much of his testimony as elicited from
him by counsel. Further examples of his tendency in this regard will be pointed out
below. Suffice it to say at this point that his testimony regarding certain incidents on
May 7 and 9, 1963, will or should be of added significance to all concerned in their
understanding of my reasoning in this regard. In all the circumstances, I credit
Wells' version of the incident in question and"find that Becka met with Wells on the
date in question and that he made statements to the effect attributed to him by Wells
as set forth in the excerpt from his above-stated-testimony.ls
According to Herb Jones' credible testimony, Becka called on him again at the job-
site sometime in December 1962. The gist of his testimony in this regard was that
Becka told him "he would have to get rid of -Mr. Wells," and that ". . . we had to be
union altogether; that nonunion and union men could, not work together." 16 Jones
's See infra, in re the language attributed to Becka by other witnesses such as Herb
Jones
1e Quotes from Herb Jones' credible testimony.
760-577-65-vol. 148-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Becka again about Wells' joining the Union; and he replied that ". Wells
had been fined by the Union at one time and expelled from the Electrical Union."
At this point Jones informed Becka that Wells had told him that this was not true
because he had never even seen a member of either Local 38 or. its parent organiza-
tion, IBEW.17 Though the record shows that Becka's statement to Jones was false,
there is no evidence in this record that he ever advised either Herb Jones or any other
person that he had been in error in labeling Wells as an expelled member of either
Local 38, the Respondent Union herein, or any other local of IBEW.
Here again Becka testified that "At no time was I saying he must get rid of Wells
Since the phrase `Get rid of Wells" appears on several occasions in the record
as descriptive of the language Becka and others used in their conversations with other
members of Local 38, or other labor organizations , such as the Carpenters and
Bricklayers Unions, it has caused me considerable concern , primarily because Becka
throughout his testimony "pin-points ," so to speak, the phrase, and consistently denied
that he used the phrase at any time in his conversations concerning Wells. After long
and careful consideration, I am convinced and find that he did, on the occasions we
are concerned with, use the phrase as emphasized above and on other occasions
words and phrases that conveyed the same message to the listeners. A persuasive
factor in arriving at my conclusion and finding in this regard was that others who
testified at the hearing herein impressed me as honest and forthright witnesses, such
as Herb Jones for example, while on the other hand Becka did not so impress me
for reasons heretofore stated 'and that will be further discussed below.18
According to the record, Becka did not contact Herb Jones again until sometime
around the middle of April 1963. Since I am convinced that the meeting was like-
wise of considerable importance, primarily because it was the last between Becka and
Herb Jones, personally, before the May 7, 8, and 9, 1963, incidents with which we are
concerned herein, I feel' that what transpired at that time is best told in the language
of Herb Jones himself. 'Consequently an excerpt therefrom follows below:
Q. All right, I call your attention to the month of April 1963, and ask whether
you had occasion to speak to Mr. Becka during that month?
A. Yes. Mr. Becka again came to the job site and again informed me we
would have to get rid of Mr. Wells. At that time I told Mr. Becka, I said, "Here
is an electrical contractor that would like to join the Union, and you say he has
been fined and expelled, and he says that he has never belonged to the Union,
never been fined or expelled from the Electrical Workers Union." And I said,
"I don't know who to believe. I would like to find out for myself."
So Mr. Becka suggested I contact the Electrical Workers Union, which I went
down with Mr. Wells during that month to the union hall. We-
Q. Do you recall the date on which you went down to the union hall?
A. No, it would be toward the end of April, or possibly the beginning of May,
but it was in that general vicinity. So I went down, hoping to find out who is
right and who is wrong.
I think if a man wants to join a union he ought to be able to, unless there is a
reason . I went down with Mr. Wells to find out why he couldn't joint the Union.
We arrived there about 8:00 o'clock. Shortly after 11:00, we got into the meet-
ing room . We both went in, and Mr. Wells stated who he was, and I stated who
I was, and somebody at the table, I don't know who, said that I was not allowed
to stay, a third party is never allowed at the meeting. So I had to leave the
meeting. I sat in the lobby until Mr. Wells got through. Then they called
me back in the meeting. I asked them about Mr. Wells, and the only answer
I got was that union and nonunion men are not allowed to work together. They
gave me no reason why Mr. Wells was not accepted.
Becka admitted that he had a conversation with Herb Jones sometime in April 1963,
but that he did not tell him that he would have to get rid of Wells. His testimony
in this regard was as follows:
Q. Mr. Brown again said in April 1963, you were on the job and you said
to him that he would have to get rid of Wells. Did you say that to him at that
time? 19
A. That phrase, "Get rid of Wells," I still don't know how I could get rid of
Wells. For almost a year we were trying to get him to sign an agreement in
Local 38.
17 See supra, in re Wells' past union affiliation
Is See infra. in re Becka's testimony regarding his presence at the Millwood Estates
project on the morning of May 9, 1963
Is The records reads "Mr. Brown" In the above quote This is obviously a typographical
error. In the circumstance, I hereby correct the record to read "Mr. Jones."
' LOCAL 38, 1ItNT'L BROT-riTERHOOD ELECTRICAL 'WORKERS 771
Q. You were trying in April 1963?
A. I was trying all the time.
TRIAL EXAMINER: You mean, to get Jones to sign?
The WITNESS: No, Mr. Wells. Mr. Jones was the general contractor who
hired Mr. Wells. -
TRIAL EXAMINER: And you were trying to get Wells to sign the agreement?
The WITNESS: So the entire job would be a 100% union, yes, sir. [Em-
phasis supplied.]
As indicated above, one of the primary purposes for Herb Jones' and Wells' trip
-to the union hall in April 1963 was to meet with the executive board regarding an-
other application filed by Wells, at Herb Jones' request, for recognition as an elec-
trical contractor.
As also indicated above, Jones was not permitted to attend the meeting of the
'board. Wells' account of what transpired at the meeting is of importance, primarily
because he told the board in substance that he was withdrawing his offer, made at
-their last meeting, to replace regular employees with members of Local 38. The
-following excerpt from his testimony in this regard is set forth below: -
A. After Mr. Jones left.I asked the Board for recognition and at that time
I explained to them that I was not going to leave my men go. I felt that they
had been faithful to me for many years and that if I was to get union recognition
they would have to take my men in the Union also.
At the time Wells had two employees, one of whom was his nephew. In addi-
tion, he worked along with them in wiring the houses on the project, which practice
-was prohibited by the Union. Under union rules and regulations, an electrical
contractor is forbidden to handle the tools of the trade, presumably to make more
Jobs for rank-and-file members of the Union.
During the course of this meeting Wells requested the board to give him a written
copy of their decision on his application for recognition as an electrical contractor.
He was informed that ". . . this was not possible and that I would receive my answer
by calling the union hall the next day." He did so and was informed by one of
the secretaries in the office that the decision of the board was, "Not recommended
-at this time."
As indicated above, my resume of what had transpired before May 7, 8, and 9,
1963, was primarily for background purposes that would give us all a picture of the
.events that led up to the filing of the charge and the issuance of the complaint herein.
Let us first consider what transpired on May 7, 1963. The first incident of im-
portance on that date occurred at a meeting of the Cleveland Building Trades Coun-
cil, which consists of representatives of all the building trade unions in the Cleve-
land, Ohio, area. They meet every Tuesday morning at 10 a.m. and discuss their
problems. Insofar as we are concerned herein, representatives of the trades that
were working at the time at the Millwood Estates project were as follows: Martin
Graham, business representative or agent for the Bricklayers Union, and Louis Fusile,
'business representative of the Carpenters' Union District Council which included
Cuyahoga County, or the Cleveland, Ohio, area, and the adjacent counties of Geauga,
Lake, and Ashtabula. In addition there were representatives of Local 38 of the
-IBEW at the meeting, who they were is none too clear in the record. Though there
is some indication in the record that Becka was at the meeting in question, it is so
-vague in this regard, particularly in the testimony of Becka himself which is of
such a nature that no trier of the facts could honestly reach a definite conclusion or
finding without indulging in pure speculation. Though I am convinced that Becka
was present at the meeting in question, I feel- that I should not make a definite find-
ing in this regard for reasons commented upon above. However, I am convinced
and find that Local 38 had one or more representatives at the meeting on the morn-
ing of May 7, 1963.
The importance of the meeting in question is that one of the business agents who
were present brought to the attention of those. present that there was a nonunion
electrical contractor working at the Millwood Estates project. During the course
of the discussion that followed in this regard, Louis Fusile, the business representa-
tive of the Carpenters' District Council, "took the floor" and volunteered his serv-
ices to assist in correcting the situation. The record clearly shows and I find that
-what transpired and was discussed at the meeting was the motivation for the meeting
-of Becka, Graham, and Fusile at the entrance to the Millwood Estates project on the
morning -of May 9, 1963. Fusile's testimony on direct examination was a most
7,72 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
persuasive factor to me in reaching my conclusions and findings regarding this im-
portant issue. In the circumstances, I feel that the following excerpt from his testi-
mony in this regard should be inserted herein. It follows below:
Q. Why did you go to the job site at that particular time on May 9, 1963?
A. May 9, May 9-
TRIAL EXAMINER: That was a Thursday.
The WITNESS: That's right, Thursday morning.
Q. Do you recall Mr. Graham testifying that the reason he was there was
because it was said at the meeting on May 7th-why were you there on May 9th
if what was said at the meeting on May 7th was not the reason?
A. Oh, I would have to retract that statement. I was there-I misunder-
stood what you are saying. That was the same stop I made in the morning,
I was on that job because of the employment there.
Q. Because of the statements made at the meeting on May 7th?
A. Because of the discussion made, the discussion at the Building Trades
meeting, yes, sir.
Q. What was discussed at the Building Trades meeting on May 7th?
A. Well, we do have between 40 and 50 agents there, and many jobs are
discussed, and where some of the trades have problems the job problems are
discussed on the floor. It- happened that this job was discussed and that was
the reason they were there 2° -
Q. What was discussed about this job, what was the problem there?
A. The particular job was not, in a sense in our thinking , a union job.
Q. Why was it not a union job?
A. Because one of the trades was not a union member. -
Q. Which trade was not a union member? -
A. The electrician on this job, but I have been involved in other cases where
other members of other organizations were not-so it followed a pattern of the
problems that we usually have.
Q. Now, who, how was it arranged that you would be at the job site on
the morning of May 9th? In other words, who made the appointment definite?
A. There was no definite appointment made. The job was merely discussed,
and I suggested that I would go there after I hit the other job.
Q. Who suggested that?
A. I suggested it on the floor . I made no direct suggestion to anyone. See,
the job was discussed on the floor, and the Chairman of the meeting brought
it-so the members of all the trades were involved.
Mr. MoTIL: Nothing further.
A further persuasive factor was the testimony of Martin Graham, the business
agent for the Bricklayers Union, who was also present at the meeting we are now
concerned with. I have reference to his testimony- regarding the reason he was at
the jobsite on the morning of May 9, 1963. His testimony on cross-examination
was to the effect that it was because of what was said at the meeting in question,
regarding the presence of a nonunion electrical contractor at the Millwood Estates
project, and that "It is the policy of all the Building Trades. The reason for the
meetings on Tuesdays is that if anybody runs across a situation such as this, it is
reported to the Building Trades at that meeting and appropriate action was taken." 21
Further evidence that the building trade unions do work together in situations
similar to that with- which we are concerned with herein is found in the following
excerpt from the testimony of Becka himself:
Q. Let me ask it this way: I will put it to you as an electrician. After being
told at the Building Trades meeting that there is a nonunion bricklayer con-
tractor on the job; do you go out as part of the Electricians Union to try to
see if the general contractor will get rid of the bricklayer contractors so the
job will be entirely union? 22
Mr. MOTIL: Objection.
TRIAL EXAMINER: Overruled.
The WITNESS: We go out and try to encourage their contractor as possibly
that agent who is involved, to help him to get the union contractor.
20 Jones' job. -
21 Quotes from Graham's credited testimony.
22 It is to be noted that counsel for the Respondent used the word "rid" in his interro
gation of Becka. -
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 773
TRIAL ExAMINEit: Recalling Fusile's testimony is the reason I permitted it.
It is part of the picture. I take it this is common practice, isn't it Mr. Witness?
The WITNESS: We always do. [Emphasis supplied.]
From all of the above, I am convinced and find that, in situations such as we are
faced with herein, the business agents for the Building Trade Unions, such as Graham,
for the Bricklayers Union, and Fusile, for the Carpenters Union, act in behalf and
for the benefit of the union involved in the controversy, such as Local 38 is in the
case at hand, to cause the general contractor to replace the nonunion contractor with
a union contractor, which is, in the final analysis, exactly what we are faced with
herein, to wit: to "encourage" Herb Jones Construction Company to cancel its con-
tract with Edwin A. Wells, d.b.a. E. Wells Electrical Construction Company, a
"nonunion" electrical contractor, and replace said Wells with a contractor that is
satisfactory to and approved by Local 38 to do the electrical work at the Millwood
Estates project. I further conclude and find from Fusile's and Graham's testimony
that the business agents for other building trade unions whose members are working
at the jobsite, specifically, Martin Graham for the Bricklayers and Louis Fusile
for the' Carpenters Union, acted for and in the interest, and at the "suggestion," of
George Becka, the business agent for Local 38 of the IBEW Union, at all times
material herein. Martin Graham testified that the role of the business agent for
the union that has the dispute with the employer involved, such as Local 38's dispute
with Wells, is to make the arrangements for meetings of business agents for other
trade unions on the project, such as the meeting at Breckswood Oval on the morning
of May 9, 1963, of Fusile, Graham and Becka, and that ". . . such arrangements
were made just like they are always made that a trade involved that sets a time and
all other trades that can be there at that particular time go out." This testimony has
been most persuasive to me in arriving at this conclusion. Since some may consider
the above quote from Graham's testimony as a "lifting out of context" approach
to my conclusions and findings herein, I feel that his testimony as a whole on this
particular issue should be inserted herein. Consequently it follows below: 23
Q. Did you make an arrangement with anyone to meet at the Millwood
Estates the following Thursday?
A. That is always made at those meetings. It is common procedure.
Q. Whom did you make your arrangements with?
A. The arrangmeents were made just like they are always made, that a
trade involved that sets a time and all other trades that can be there at that
particular time go out.
Q. Do I understand you correctly when you said Local 38, IBEW sets the
time to arrive?
A. I didn't saythat Local 38 set the time.
Q. You said the trade involved.
A. I said the trade involved plus the other trades, and this time it could be
set by the President of the Building Trades or some other trade other than the
Electricians could.
Q. Who set the time of this occasion?
A. I haven't the slighest idea. There are 20 jobs like this.
Q. Do you know who else was supposed to be there?
A. No, sir.
Q. All you know is you were supposed to be there?
A. All I know is I said I would be there and I was.
Q. When you got there the only trades represented were Local 38, and that
is by Mr. Becka, and the Carpenters District Council, and that is by Mr. Fusile,
is that correct? -
A. Yes, sir.
At this point I desire to point out to all concerned that the testimony of Becka him-
self, which has been inserted above in an excerpt therefrom, in regard to this particular
custom or practice of the Building Trades Union, was likewise persuasive in reaching
my conclusions and findings regarding this phase of the case at hand. In addition
there were other factors in this regard which will be discussed below. I have refer-
ence to the testimony of Becka that the meeting of Graham, Fusile, and himself at
Breckswood Oval on the morning of May 9, 1963, happened by mere chance, and to
the further effect that he had no knowledge of any prearranged plan that they were
all to meet at the Oval on the morning of May 9, 1963. His testimony in this regard
was considered in the light of record as a whole, particularly the testimony of Graham.
23 Regarding "liftinc* out of context," see The Hunkin-Conkey Construction Company,
95 NLRB 453, 100 NLRB 955
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fusile, and that of Herb Jones, particularly as to the time he saw Becka's car parked
alone near the Oval early on the morning of May 9, 1963, before any of the
others referred to above had arrived.
At this point I desire to point out to all concerned that I have referred to the above
incident primarily for informational purposes regarding certain' credibility findings
that will be apparent below in my disposition of other aspects of the case at hand as
regards the testimony of certain" witnesses as to events that transpired after the
meeting of the Building Trades Council on May 7, 1963, particularly at the Millwood-
Estates project , and in the area near the entrance thereto at the Breckswood Oval.
According to the credible testimony of Herb Jones, he was driving back to the-
jobsite on Tuesday morning, May 7, 1963, and when he arrived at the entranceway,
at the junction of Millwood Road and Millwood Drive, he was stopped by Becka,
and Fusile , whose cars were parked nearby . Since Herb Jones ' testimony regarding
what transpired at the time in question is one of the most important issues we are
confronted with herein, I am convinced that the incident in question is best told in,
the following excerpt from his testimony. Consequently it follows below:
Q. Tell us exactly what transpired from the time you arrived at this inter-
section. Word for word or nearly as you can recall it.
A. They were parked in their cars as I came in.
Q. Who was?
A. Mr. Fusile, Mr. Becka, and they stopped me as I drove by. Mr. BeckX_
stated that, this business about having Mr. Wells, a non-union electrical worker
on the job working with other union men would have to come to a stop. And
he said if I would give him my word at that time that I would hire a union•
contractor the matter would be ended right then and there.
I told him that it seemed like the matter would have to be ended if I gave
in to his demands that he had been demanding for the past year. If seems,
like we have a labor problem, and we ought to have a neutral party, such
as the Labor Relations Board find out who is right and who is wrong. I believe
that I had done everything possible to find out why Mr. Wells was not accepted
in the Union. And it is not that I disliked the Union, I wanted to find out why
they wouldn't accept him. I would like to be 100 percent union.
Q. Did you explain these facts to Mr. Becka?
A. I did. He said he had been down to the hall and been rejected, and
that was the end of it. And I told him that I couldn't, I wouldn't give him my
promises . [Emphasis supplied.]
Q. You mentioned reference of this problem to a neutral party , like the
National Labor Relations Board?
A. Yes.
Q. When you made that statement what reaction did you get from either
Mr. Becka or Mr. Fusile?
A. Mr. Becka said they couldn't help me in this matter.
According to Jones, Fusile was present throughout his conversation with Becka„
but did not actively participate in the discussion.
Jones further testified that later on in their conversation he asked Becka in•
substance what would happen if he refused to replace Wells with a union contractor
and that Becka said, ". . . I would have to find out for myself. I again asked him
and he said, `Just don't act like a school kid. You know what I am talking about."'
[Emphasis supplied.]
Becka denied that he made the statement attributed to him by Herb Jones at a
meeting on 'May 7, 1963 24 As a matter of fact Becka, insofar as I am concerned,
neither admitted nor denied that there was such a meeting . His testimony was to
the effect, "I wouldn't remember the date." His evasiveness about a meeting with Herb
Jones on the date in question is beyond my comprehension in view of the fact that
shortly after he was queried in this regard, he testified without hesitation that he
was with Fusile when he talked to Mike Galan, the carpenter contractor, at the job
on May 7, 1963. Another facet of the issue at hand that has perturbed me no end as
to the credibility issue I am again faced with in assaying Becka's testimony, is the
fact that Fusile, who according to Herb Jones was with Becka at the time in question.
was not queried in this regard by either counsel for the Respondent or the General
Counsel. In all the circumstances, and for reasons pointed out above as to my
overall appraisal of Becka as a witness, Jones' testimony regarding what transpired
and was said at the meeting in question is fully credited by me and I find that Becka
made the statements attributed to him by Jones at the time and place in question.
24 See supra.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 775
As a result of Becka's remarks and demands as to Wells, Herb Jones called Wells
that evening and told him about his conversation with Becka that morning. His
testimony in this regard is important for the reason that it was in effect, at least
to me, a threat to Herb Jones, that if he did not "get rid of Wells" and hire a union
contractor the job would be shut down . Becka's remarks , though couched in lan-
guage that would be meaningless to most folks, were understandable to Herb Jones,
who had been in the construction industry for many years and as a result of his
dealing with business agents for the building trades unions over the years was familiar
with their "language" and/or "lingo ." I am convinced and find that Herb Jones
knew exactly what Becka had reference to in his remarks about the continued pres-
ence of Wells, a nonunion electrical contractor, on the job. That Becka's remarks
had their intended effect upon Jones is well illustrated in the following excerpt from
Jones' testimony as regards what he told Wells that same evening in a telephone
conversation:
Q. I call your attention to the evening of the same day about which you are
now testifying ; namely, Tuesday, May 7 , 1963, and I ask you whether you had
an occasion to speak to Mr. Wells during the evening . Yes or no?
A. Yes.
Q. Tell me, first of all , how you spoke, was it personal or by telephone?
A. I called him that evening. I.called him that evening and told him that
Mr. Becka was out again , and told him that Mr. Becka demanded that I get
rid of Mr . Wells and that I did not know what was going to happen. I had
no idea what would happen . I expected something , but I didn 't know what,
and I told him if it came to the end to where they would do something , I would
have to get rid of Mr . Wells, because we couldn't afford to have the project shut
down. There was too much confusion there . Mr. Wells mentioned his con-
tract to me and I told him we would just have to see what would happen.
Q. Is that about all you can presently recall of that conversation?
A. That is all, yes. [Emphasis supplied.]
Further evidence of the concerted efforts of Fusile and Becka to attain the real
objective of Respondent Local 38, which as indicated above was to force Galan
and other subcontractors on the project to cease doing business with Herb Jones, the
general contractor, in order to force him to cease doing business with Wells, the
primary employer herein , is found in the testimony of Mike Galan , the carpenter
contractor on the project . His testimony in this regard will be considered below.
According to the testimony of Galan , Becka and Fusile called upon him at the
jobsite early in the afternoon of May 7 , 1963 . Since his testimony at the onset of
his interrogation by counsel for the General Counsel briefly sums up what was said
and transpired at the time in question , I am convinced that the following excerpt
therefrom would be helpful to all concerned.
Q. Tell us from the beginning, slowly, what Mr . Fusile or Mr . Becka told
you, and what you said to them during this conversation.
A. Well, Mr . Fusile and Mr. Becka, they came , well, as you say, and they
said , "Mike , you know on this job there is a non -union electrician , so we want
to talk to Mr . Jones about this." So he should hire a union electrician man.
I said , "I know, because I seen him on the job working over there." They
said they would have to stop the job some day if Mr. Jones doesn 't hire union
electricians. I said , "Well, if you want it stopped , put it that way, I don't have
a choice, I can 't fight the Union . I would cooperate with the Union."
TRIAL EXAMINER : Speak up.
Mr. MOTIL: You will have to speak up.
A. Yes.
Mr. MoTIL : Speak slowly.
TRIAL EXAMINER : Everybody has to hear your testimony.
The WITNESS : Then , they said-
TRIAL EXAMINER : Take it easy.
Mr. SMOOT : Who said?
The WITNESS : Mr. Fusile said , "Well, we are going to talk it over with Mr.
Jones and find out what he is going decide about this and let you know." They
tell me and they left to see Mr . Jones.
Q. Was that all of the conversation . Now, were your men working at the
time they spoke to you?
A. Yes.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fusile in his testimony, tacitly admitted that he told Galan in the course of the
conversation that ". . . it was very possible this job could be stopped" as a con-
sequence of the Wells situation, but that it was merely "a casual suggestion" as to
what might happen at•the project. It is interesting to note that though Fusile testified
that he did not say to Galan that ". I would stop the job. I made no threats
or coercion of any kind," 25 he was silent as to the presence of Becka at the time
in question.
Becka admitted that he was at the jobsite on May 7, 1963, with Fusile, and that
they met and talked to Galan. He denied that he made any statements to Galan
to the effect that the job might have to stop some day. In addition he testified that
he did not recall hearing Fusile make such a statement to Galan.
In all the circumstances, particularly in view of Fusile's indirect admission that
he did make the statements attributed to him by Galan regarding the possibility that
the job might be stopped on account of the "Wells situation," I am convinced and
find that he made the statements attributed to him by Galan as to the possibility
that the job might be shut down because of the presence of Wells, a nonunion elec-
trical contractor, on the job 26
Another incident occurred on Tuesday, May 7, 1963, that I consider of major
importance to the issue herein. I have reference to Galan removing his crew from
the jobsite on the afternoon of May 7, 19,63. According to Galan's testimony, his
crew, which consisted of about five men at the time, had about used up all the
plywood that was on hand at the project. It was then somewhere-between 4 and 4:30
p.m. and near quitting time, which normally was 4:30 p.m. About that time Herb
Jones came to the house they were working on and Galan told him about the situa-
tion. Jones told him that he had ordered a supply of plywood "a couple of days
ago," and was surprised that it had not been delivered. He told Galan that he was
going back to the office and call the lumber company and find out when they would
deliver the plywood. Shortly thereafter he left and returned to his office. As in-
dicated above, it was then near quitting time and Galan and his crew left the jobsite.
At the time Galan was doing the carpentry work for Herb Jones he was also build-
ing a house in Valley Road, which is not far from Broadview Heights, where the
Millwood Estates project was located. Galan told his crew when they left the
Millwood Estates project to report to the Valley Road job the next morning. As
indicated above, he was working on a house there that was nearing completion,
and at the time in question there was some work that had to be done at once, the
removal of a scaffold, so that the windows could be installed in the house, which
according to Galan would take about a day and a half to finish. He further testi-
fied that regardless of what had transpired at the project we are concerned with
herein, he would have had to either split his crew up or take the whole crew over
to the Valley Road job, primarily because the windows had to be put in the house
at once or otherwise might be damaged if left on the ground. All of Galan's crew
were present when he requested them to report to the Valley Road job the next day
except Alex Cornauch, who at the time was doing some work away from the house
they were working on, and Galan either overlooked telling him to report with
the rest of the crew at the Valley Road job or forgot about him. Suffice it to say
that Galan himself admitted that he "missed up" as to Cornauch.27 The importance
of the incident as to Cornauch will be apparent below.
The next day, May 8, 1963, Alex Cornauch reported for work at the Millwood
Estates project around 7:45 a.m. When he arrived at the house that he and the
rest of Galan's crew had been working on, he found no one there. About that
time Fusile came to the jobsite and talked to Cornauch. According to Cornauch's
testimony, Fusile told him that the job had been "stopped," and that the reason
for "stopping it" was because there was a nonunion electrician on the job, and that
his presence on the job was keeping members of the" Electrical Workers Union out
of work.28
2 Obviously it would not be Fusile or the Carpenters Union that would stop the job
but Respondent Local 38, who had the dispute with Wells. This would explain the use
of the pronoun "I" by Fusile-in the above quote from his testimony.
20 See infra, in re Fusile's testimony regarding a conversation with Galan on May 8,
1963
27 Quote from Galan's credible testimony in this regard
29 Cornauch did not speak English very well and his testimony is a bit confusing Even
so I am convinced that it is readable and translatable to all concerned herein , particu-
larly those who heard his testimony at the hearing herein
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 777
Cornauch further testified that Fusile at the onset of their conversation asked
him where Galan and his crew were working, and that he told him in substance that
he thought they were working at the Valley Road job. As I see it Cornauch had
worked on the Valley Road job with Galan before the Millwood Estates job started
and was familiar with its construction problems, insofar as the carpenter work was
concerned. At that point Fusile told him to go over to the Valley Road job and
report to Galan for work, which he did. What transpired when he reported to
Galan at the Valley Road job will be disposed of below.
According to Cornauch's credible testimony he -followed Fusible's instructions
and left the Millwood Estates job and drove over to the Valley Road job. He ar-
rived there about 8:15 a.m., and reported to Galan, who told him to "start to work,
that is all." Shortly thereafter he talked with Galan again about the Millwood
Estates job. His testimony on cross-examination in this regard is, in my opinion, of
importance insofar as the issues herein are concerned. Consequently the following
excerpt therefrom is inserted below:
Q. Did you say anything to Mike Galan that day about anything in the
Millwood Estates?
A. Yes.
Q. What did you say?
A. Well, I tell him this business agent coming and his job stopped. That
is all.
Q. Why did you think the job was stopped at Millwood?
A. All this Mr. Fusile tell me, this owner have the electrician and not in the
Union. The job stopped. I heard six guys electricians on the job. This have
the electrician not in the Union.
Q. He said six electricians were not working?
A. Yes. I heard six guys, electrician men, no work.
Q. Six electricians were not working?
A. Yes, this owner have it.
TRIAL EXAMINER: Please speak up. Keep going.
Q. You said Mr. Fusile told you six electricians were not working?
A. Yes. And this owner have one no union man electrician.
Q. And this owner had a non-union man working?
A. Yes, that is it.
The importance of the above excerpt from Cornauch's testimony is that it is in
some respects similar to that of Galan's regarding what Cornauch told him when
he reported for work at the Valley Road job and as to what k•usile said to him in a
conversation they had at the Valley Road job shortly after Cornauch arrived there
on the morning of May 8, 1963. According to Galan's credible testimony, Fusile
arrived at the Valley Road jobsite shortly after Cornauch did, and that in the course
of a-conversation between them, told him the same thing that ". . he told Mr.
Cornauch," and that ". . . we should stay here, not go to the Millwood Estates
until everything is settled , the job is stopped there."
Fusile denied that he said "anything" to Cornauch concerning the "job" at Mill-
wood Estates. He also denied Galan's testimony as to what he said in their con-
versation at the Valley Road job on May 8, 1963. His testimony in this regard is
most interesting for the following reasons. In the first place the record shows, as
clearly indicated above, that Galan and Becka visited the project on May 7, 1963,
and I have found above that Fusile told Galan that it "was very possible this job
could be stopped," and as indicated above this finding was predicated upon Fusile's
own testimony. Here again we have another credibility problem; it arises from
Cornauch's testimony that Fusile asked him at the Millwood Estates jobsite on the
morning of May 8, 1963, where Galan's crew was working. On the other hand
Fusile testified that "1 told him [Cornauch] that the crew was working on Valley
Road,- and that was the extent of our conversation that morning." In such a state
of the record, I am convinced that the testimony of Galan regarding what was said
in his conversation with Fusile at the Valley Road job on the morning of May 8,
1953, was a true account thereof, not only because I am convinced that it is an
honest account of what was said at the time but also because it throws light on the
role that Fusile and other business agents assume in situations similar to that with
which we are concerned with herein. Consequently the following excerpt from
Galan's testimony in this regard follows below:
Q. (By Mr. MoTIL) Now, you did not work back at the Millwood Estates
job that day on May 8, did you?
A. No.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you have occasion to speak to Mr. Fusile on May 8 at the Valley
Road job?
A. Oh, yes.
Q. What time, first of all?
A. I would call before 9:00 o'clock, oh, 9:00 o'clock, something like this
in the morning.
Q. And tell us from the beginning what he said and what you said, but give
it slowly.
A. Mr. Fusile, he came to me, to Valley Road job, and it was the same
what he told Mr. Cornauch.
Q. Tell us what he said.
A. He said we should stay here, not to go on the Millwood Estates until
everything is settled, the job is stopped there.
TRIAL EXAMINER: All right.
The WITNESS: That is all he told us.
TRIAL EXAMINER: That is what he told you personally?
The WITNESS: Yes, personally.
Q. (By Mr. MOTIL) Did you say anything to Mr. Fusile when he told you
this?
A. Well, I said, "Well, for a while we have to finish this job because I
couldn't just go for one hour on one job and then go on to the next job for an
hour. I would stay here all day today is the longest time for to work for my
men. Then I would like to see this settled, would come sooner, so I wouldn't
have to fight the Union or anybody else. I want to be in the clear."
TRIAL EXAMINER: All right.
Q. Did Mr. Fusile offer any other suggestions , such as employment of your
men?
A. Well, this was, I would say no official conversation, but Mr. Fusile said,
"Well, if you are worried about the work, you don't have enough here," be-
cause I told him I only have roughly a day and a half, I had that work I wanted
to finish and then go back to Millwood." He said, "If you are worried about
your men getting work," So he can give them a job, "Including you, if you
want 'it."
TRIAL EXAMINER: Togo where?
The WITNESS: I mean, another job, if I needed temporarily. He mentioned
that way, including time stopped job over there. "If we don't supply you with
work, then we have to pay you $10 a day."
Q. Was there anything else said by Mr. Fusile to you on that date, on-May 8
at the Valley Road job?
A. Well, I can't recall any more. I don't think so. [Emphasis supplied.]
According to the record, particularly after .long and careful consideration of
Fusile's testimony, Galan's testimony regarding his conversation with Fusile at the
Valley Road job on the morning of May 8, 1963, stands uncontradicted and undenied.
In the circumstances, I credit his testimony in its entirety, not only because of the
state of the record in this regard but also because Galan, in the main , impressed me
as an honest witness who was trying to give a true account of what transpired and
was said in his presence at times material herein 29
At this point I desire to call to the attention of all concerned regarding Fusile's
-statement to Galan, to the effect, that if he had no job to move his crew to during
the period we are concerned with herein, he was to keep them away from the Mill-
wood Estates project, and that his crew would be paid $10 per day while they
were idle, as is clearly evidenced in this pertinent excerpt from Galan's testimony:
... Mr. Fusile said, "Well if you are worried about the work, you don't have
enough here," because I told him I only have roughly a day and a half, I had
that work I wanted to finish and then go back to Millwood. He said, "If you
are worried about your men getting work," So he can give them a job, "includ-
ing you, if you want it."
I mean, another job, if needed temporarily. He mentioned that way, includ-
ing time stopped job over there. "If we don't supply you with work, then we
have to pay you $10.00 a day." 30
2D Galan, like Cornauch , also was somewhat handicapped In expressing himself in
English at the hearing herein, because he too was of foreign extraction
30 Galan and all the members of his crew were members of Local 182 , United Brother-
hood of Carpenters and Joiners of America , AFL-CIO. The business agent in charge of
their affairs was George Blaha
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 779
Galan was very much perturbed by the situation at the Millwood Estates project.
,On the one hand he wanted to take his crew back to the Millwood job as soon as
he could for two reasons: ( 1) He only had about a day's work at the Valley Road
job, and ( 2) he was very anxious to stay on good terms with Herb Jones, the gen-
eral contractor for reasons that are understandable , one of which was that his con-
tracts with Herb Jones were on a house -to-house basis , and there were still more than
200 houses to be built on the project . On the other hand he wanted to cooperate
with the Union and avoid getting into any controversies with either his own union
or with any other unions that were interested in what transpired at the Millwood
Estates project, such as the Respondent Union herein . His concern in this regard
will be amply demonstrated below in his testimony as to his conversations with
Blaha , business agent for Local 182 , on the evening of May 8, 1963, shortly after
Herb Jones had called him about the job we are concerned with herein.
Galan further testified that Herb Jones called him that evening, Wednesday, May 8,
1963 , at his home, and said , "Mike , what happened? You did not show up to work."
He told Jones that it was because they had run out of lumber to work with. Jones
told him that the lumber had been delivered and that he could bring his crew back
and go to work . At this point in their conversation Galan , who by that time was most
perturbed about the situation at the Millwood Estates project , said to Jones, "Well
how about this whole trouble? I am right in the middle , and I have about another
day's work for my men, but I am going to try to be there the next morning , which was
Thursday, on May 9 ... .1 131
Herb Jones ' version of what was said in his conversation with Galan on the evening
of May 8, 1963, was in the main similar to Galan's account thereof which has been
discussed and disposed of above.
In the circumstances , I credit Galan 's account of what was said and transpired on
the evening of May 8, 1963.
Shortly after Galan talked to Herb Jones , he called George Blaha, the business
agent for Local 182, the local to which he and his crew belonged , for advice as to
just what he should do in the circumstances that then prevailed at the Millwood Estates
jobsite. Blaha told him in substance to first find out if any of the other crafts were
working, such as the bricklayers , plumbers, and other crafts , and that if they were,
he should take the crew over to the job and go to work , if they were not working
then he was to keep away from the job until the situation was cleared up. As a
result of Blaha's advice Galan went over to the jobsite the next morning, May 9,
1963, to check up on the situation and in particular to see if any of the other trades
were working there. When he arrives around 8 : 15 a.m . at the entrance to the job-
site, near Breckswood Oval, he saw the police , Becka, Graham , Fusile, Wells, and
some other unidentified persons who were standing away from the group. What
transpired thereafter will be discussed and disposed of below.
We now come to the events that occurred on May 9, 1963, which as indicated
above is of singular importance regarding the issues we are concerned with herein.32
I have made some reference to the May 9 , 1963, incident above in my comments
on Becka's activities , which as indicated were primarily for resolution of questions
concerning the credibility of Becka as a witness for the Respondent . Becka's role
in the events that led up to the meeting of the business agents for the unions that had
members working at the Millwood Estates project at times material herein, and in
particular on the morning in question , May 9, 1963, which has been commented
upon at some length herein , will, in my opinion, be obvious to all concerned , for the
reason that the "Goal" of Local 38 was accomplished . By that observation I have
reference to the fact that as a result of the activities of Becka, for and on behalf of
Local 38, the members of the Bricklayers and Carpenters Unions at the request of
their respective business agents, Graham and Fusile , speaking through their respective
employers , Charles Jones and Mike Galan, ceased doing business with the Herb
Jones Construction Company, and left the jobsite, which caused Herb Jones to cease
doing business with Edwin A. Wells. d b.a. The E. Wells Electrical Construction
'Company, the primary employer , which had been its goal at all times material herein.
According to the credible testimony of Herb Jones, he arrived at the jobsite around
8 a.m. on May 9, 1963. As he drove toward the Millwood Estates project he saw
Becka's car parked off Mill Road on the entrance way to Breckswood Oval. He
=Quotes from Galan's credible testimony.
32 The testimony as to what transpired on the morning of May 9 , 1963 , at the Brecks-
wood Oval is most confusing As I see it this is due to the fart that there were several
persons present , and at times all were talking at the same time . which is clearly evi-
denced in the record In such circumstances , it has been most difficult for me to sum-
marize . Even so I have carefully considered the record as a whole in reaching my con-
clusions and findings as to what was said and transpired on the date in question
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drove on up to the entrance to Millwood Estates project and parked his car. Shortly
thereafter he saw Graham and Fusile drive up. At this point Jones became quite
perturbed , and was concerned over what might happen in view of the tenseness,
of the situation that had become increasingly worse during the past few days, and
turned to Foreman Joseph Chuppa , who,was with him at the time, and told him to call
the Broadview Heights police,33 which he did. The police arrived a few minutes later
and parked their cruisers near the intersection of Millwood Drive and Berckswood
Oval. At the time Herb Jones was about 100 feet away from where the police parked
their cruisers . He could see what was going on at the Oval , but could not hear what
was said by those in the Oval. Shortly after the police arrived he saw Becka, Fusile,
and Graham talking to the police.
Becka's version of what transpired was as follows . He testified that he arrived at
the Oval around ". . . ten minutes to 8:00" on the morning of May 9, 1963.
While he was parked he saw Herb Jones drive by on his way to the project. Shortly
thereafter Martin Graham , business agent for the Bricklayers Union, drove up.
Becka got out of his car and went over and got into Graham 's car. About the same
time a police car drove by and stopped on the Oval near where the road enters the
Oval. What transpired thereafter at the Oval is best told in the following excerpt
from Graham 's testimony:
Q. And Mr. Becka is?
A. Representative of the Electricians . I stopped my,car and talked to Eddy
Becka and Eddy Becka got into my car and left his car parked . And we was
going up to talk to Mr . Herb Jones, and as we started up the road Brother
Fusile come up and he passed us.
Q. He was driving?
A. He was driving his own automobile, and he passed us and just then, an-
other car passed us at a fast rate of speed , and I made the remark to Brother
Becka, "It looks like Brother Fusile is going to get a ticket because that is a
police car following him."
We proceeded up to the Oval and I parked my car approximately behind
Louie Fusile 's car, and before we could get out this sergeant , I believe his name
is O'Conner-
Q. This is the police chief?
A. That 's right, asked us what we were doing there.
Q. That was the Chief of Police there?
A. No.
Q. Still in the car or out?
A. He got out of the car like we was going to do some damage. He flew out
and I asked him what all the excitement was about . At that time he told us
that he had a call that there was going to be trouble, and I told him at no time
would they have trouble with us, and I did not know why they should expect
any trouble . Just then, the police chief drove up.
Q. Was he driving a police car?
A. In another car, a police automobile.
Q. What is his name?
A. Coka , I believe. Now, he is a little fellow, and he got out and he was
under the same impression , and having some conversation and assurance that
there would be no trouble , the subject was dropped , and that was the extent of
the police there, and they left.
It is to be noted at this point that Becka, Graham , and Fusile all arrived at the
Oval between 7:45 a.m . and 8:15 a.m . I have commented at some length regard-
ing Becka 's testimony to the effect that he had no knowledge that Graham and Fusile
were to be at the entrance to the jobsite on the morning of May 9, 1963, and that it
was "coincidental" that for some strange reason they all arrived there within a few
minutes of each other. In other words , mere "happen chance." Insofar as I am con-
cerned Graham and Fusile testified in effect to the contrary and I have so found 34
33 Another factor that led to Jones ' instructions to Chuppa to call the police, was
Becka 's veiled threat to him on May 7, 1963 , to the effect that he would find out what
would happen if he did not replace Wells with an electrical contractor approved by the
executive board of Local 38
34 See supra, my comments on the appraisal of Becka as a witness for the Respondent
at the hearing herein ; and the excerpt from Graham ' s testimony regarding the meeting
at the Oval on May 9 , 1963 ; and his findings thereon as set forth hereinabove
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 781
We now come to another important incident that occurred at the Oval on the
morning of May 9, 1963.' I have reference to the appearance of Charles Jones,
the masonry contractor, at the Oval on the morning in question . According to
Jones' credible testimony, he was driving back to the jobsite with a load of cement
for his crew and when he got to Breckswood Oval he saw the "group" we are con-
cerned with herein, including the police. He parked his truck about 20 feet from
where the group was congregated . Shortly thereafter Martin Graham , the business
agent for the Bricklayers Union, came over and talked to him. What transpired
thereafter is of the utmost importance in my ultimate disposal of the issues herein.
Since there is considerable controversy over Jones ' version of what was said by
Graham in their conversation , and that of Graham , I feel that it would be most
helpful to insert below an excerpt from Jones ' testimony in this regard. Con-
sequently it follows below:
Q. All right. Tell us, from the beginning, slowly, so that the court reporter
can get it , what the conversation was, between you and Mr . Graham.
A. Let's see-we-he come up to me and he says, "I can't remember exactly."
TRIAL EXAMINER: Speak up, please.
The WITNESS : He said , "You know what this is all about , that we are going
to have to stop the job." He asked me, Do I have some . place, some other
place for the men to work, and I told him I had, and he asked me how far,
and I told him it was just a couple of miles. So he says, "Well, why don't you
take them over there and then they won 't lose any time?" So, he says, "Do
you want to tell them or should I tell them?" I told him, "Well I would tell
them to take the men over there ." So then-that is all he said.
TRIAL EXAMINER: I didn't hear you. That was about all that he said?
The WITNESS: Yes.
It is to be noted that in the above excerpt from Graham's testimony Graham
said, "You know what this is all about " or words to that effect. The importance
of the statement attributed to Graham by Jones is that the record clearly shows that
on at least two occasions before the May 9, 1963, incident, Graham had requested
Charles Jones to go to his brother, Herb Jones , the general contractor, and ".. .
talk to my brother and see about getting a union electrician in there. I told him
1 would talk to him and see if I could get him to change over to a union electrician." 35
Charles Jones further testified that he complied with Graham's request and talked
to his brother in this regard. The record shows that his efforts were to no avail.
The assayance of Graham's testimony as to what he said to Charles Jones and
what transpired as a result thereof on the morning of May 9, 1963, at the Oval is to
.paraphrase Thomas Paine, a task "to try men's souls." 36 For example, at the onset
of his testimony he denied for the most part Jones' version thereof, then "all of sud-
den like" he testified as follows in regard to a pertinent portion of Jones' testimony:
Q. Did he say anything about moving his men at that time?
A. To the best I recall the conversation when I asked him if he had another
place for the men to work, he told me, "yes" and I told him that . . . what the
hell did I tell hnn' To be honest I don't recall what I did tell him.
TRIAL EXAMINER: Mr. Witness, your testimony was there just a while ago.
You asked Mr. Jones if he had another place for the men to work. Is that what
you said to Jones?
The WITNESS: Yes, sir, I asked him that, sir. But I don't recall telling him to
remove the men.
In all the circumstances discussed and described above, I credit Charles Jones'
version of what was said in his conversation with Martin Graham on May 9, 1963, at
the Breckswood Oval.
At this point I desire again to point out that Charles Jones in his testimony testi-
fied that his truck was parked about 15 or 20 feet from the group on the Oval. The
primary purpose for referring to his testimony in this regard is to again present a
picture of what I have been faced with in evaluating the testimony of the witnesses,
several of whom testified that Jones' truck was parked at least 40 or 50 feet from
where the group was congregated. For example, both Becka and Graham testified
to the effect that it was "possibly 40 feet or 40 feet to 50 feet" from where they were
standing with the group. A further reason for the above observation will be appar-
ent below in my consideration of the testimony of other witnesses regarding the in-
cident we are now concerned with.
35 Quotes from Charles Jones' credible testimony.
36 See "The American Crisis," December 23, 1776, by Thomas Paine.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the record, Jones got out of his truck for a short period and walked
around and when he got back into it he looked over the group and saw Wells stand-
ing with the group about 15 feet or 20 feet away; and that this was the first time that
he saw Wells on the date in question, May 9, 1963. Even so, Jones admitted, how-
ever, that he did talk to Wells that morning, but could not recall whether or not he
told him about his conversation with Graham. All that he could recall about the
conversation with Wells was "... I know we were talking about this," which I find
was about his conversation with Graham. Further discussion in this regard follows
below.
In addition to the testimony of Charles Jones, Wells, and Graham regarding what-
transpired and was said at the Oval on the morning of May 9, 1963, concerning the
activities of Martin Graham, business agent for the Bricklayers Union, we have the-
testimony of Mike Galan.
As pointed out above Galan, acting upon the instructions of Business Agent Blaha,
went to the jobsite on the morning of May 9, 1963, to see if any of the other crafts
were working. He arrived at the entrance to the project, Breckswood Oval, around
8:30 a.m. At the time he arrived there he saw the police,, Becka, Fusile, Graham,
and Wells. They were grouped together and arguing back and forth. According to'
his credible testimony he heard one of the police officers say to the group, "I don't
want any trouble over here. You go back to work and nobody can stop you."
Shortly thereafter the police left the Oval, after they had been assured by Becka and
others who were present that there would be no trouble.
According to Galan's credible testimony he was somewhat perturbed by what he
saw and heard when he arrived at the Oval, and was anxious to find out who was
responsible for the situation. With that in mind he turned to Becka and Wells, who
were standing close by, and asked them, . . whose fault it is." Becka said,
. something like this, `So it is Mr. Wells' fault,' because he is not in the union,
because, he mentioned something, he is working more hours than he should work,
and Saturdays, something like this, and then he did not apply or does not want to
stick with the union rules. He tries to go his own way. He mentioned words like
that." 37 Wells remained silent throughout Galan's interrogation of Becka. Shortly
thereafter the group broke up.
There yet remains for consideration another incident that Galan related in his testi-
mony that I consider important. I have reference to his testimony regarding the con-
versation he had with Charles Jones on May 9, 1963, while the group was congre-
gated on the Oval. According to Galan, Jones was standing a few feet away from the
group and he went over and asked him ". . . if he stopped the job, that if he pulled
off the job," and that Jones replied, "Yes . . . they told me to. `But I do not know
who."' He said, "They told me to stop the job."
Galan's testimony regarding the above incident and what was said by Jones in their
conversation, stands uncontradicted and undenied in the record. In the - circum-
stances, I credit his testimony in this regard in its entirety, not only because it stands
undenied in the record, but also because he impressed me as an honest and forth-
right witness at the hearing 38
After the group meeting on the Oval broke up, Galan went back to the Valley Road
job. Before he left the Oval however, he talked to Herb Jones. Though his testi-
mony in this regard is most confusing, I am convinced that their meeting was casual
and nothing of importance was said or transpired at the time. Shortly thereafter
Galan left the Oval and went back to his other job at Valley Road.
As indicated above Galan impressed me as being a bit upset, so to speak, by what
had transpired at the time we are concerned with herein. This, in my opinion, was
clearly evidenced by what he did when he got back to the Valley Road job. Shortly
thereafter he got in touch with Business Agent Blaha and requested that he come out
to the jobsite and discuss the problems that he was faced with as a result of what had
transpired at the Millwood Estates project. Galan's testimony in this regard is not
only informative as to the issues were are concerned with herein, but sums up the
predicament that subcontractors in the construction industry are likewise faced with
from time to time as is well evidenced by reference to either the Board' s press re-
leases or its daily calendar of cases under consideration.39
37 Quotes from Galan's credible testimony.
89 See supra in this regard.
391 am well aware that the above excerpt from Galan's testimony will add additional
burden to this already lengthy Decision, but on the other hand it might serve a useful
purpose in understanding what we are faced with herein and other cases involving similar
problems
LOCAL 38. INT 'L BROTHERHOOD ELECTRICAL WORKERS 783
Q. So then , Mr. Blaha, at your request , came out to see you at the Valley
Road job that same Thursday, May 9?
A. Yes.
Q. And who opened the conversation?
A. Well, when he came-I called him. I wanted his opinion and actually,
his advice how, what he would say-
Q. His advice?
A. Because I didn't know much about the law, the procedure. I know some-
thing of the Union rules, but I don't know the Federal law. I didn't know ex-
actly who is doing what. I saw everything is mixed up. Nobody said anything
officially: There was not any piece of paper represented to me or to anybody
else on this official demand to pull off or something.
Q. You had not been asked to pull off?
A. No. When I saw the other trades, something like this, why I called George
Blaha and asked his advice on how these things work. I said, "I am standing
right in the middle and I don't want to disobey the Union. I am a member of
the Union. I don't want to hurt another guy, the builder and Mr. Wells and
the Union." I said, "I wanted to clear up this, where I am standing."
When he came he said, "Mike, the only news I got nothing is settled yet. No-
body is working as you said." Because I told him nobody was working there.
And he said, "You don't have a choice, you better stay here and finish up what
you have." And I had only about four hours, a half day at the most I had to
finish the job over there. He said, "If it wouldn't be straightened up, if you need
a job for your men," he give me some address for another builder, because, he
said, "Go see him. He has a couple of basements ready. Maybe he can give
you some job for the crew." That is the only reason I called him.
Q. You were telling him you wanted him to come out, and wanted his advice
on this procedure?
A. Yes.
It is to be again noted at this stage of my Decision that though Galan left the
Millwood Estates project on Tuesday, May 7, 1963, sometime between 4 and
4:30 p.m., it was because his crew had run out of materials, in this instance it was
plywood. The important issue insofar as we are concerned herein is that he was
instructed by not only his own 'business agent to stay away from the Millwood
Estates project until the "situation" was cleared up, but by Fusile himself, the repre-
sentative of the Carpenters District Council in the area. In other words he was to
keep his crew away from the Millwood Estates project until Herb Jones hired a union
electrical contractor satisfactory to Local 38 of the IBEW, the Respondent herein.
To me at least there is little if any difference between "pulling" a crew off a job and
refusing to let it work on the same job, which quite frankly is the position Galan
found himself in, particularly when he was in a position to move his crew from the
Valley Road job back to the Millwood Estates project.
As indicated above, Edwin A. Wells, the Charging Party herein, was also at the
Oval on the morning of May 9, 1963. He arrived there at almost 8:30 a in., parked
his truck nearby, and walked over to the group. When he joined them the following
were present: the police, Graham, Fusile, Becka, Mike Galan, Charles Jones, and
nearby were several people who lived in the neighborhood. As he joined the group
the chief of police of Broadview Heights was talking, and he heard him tell the group
that "... he would not stand for any foolishness or any destruction of property. He
wanted everyone to behave themselves like gentlemen." 40 As indicated above, he
was assured by several in the group that there would be no physical violence Shortly
thereafter the police left the Oval.
Wells' version of what transpired at the Oval after he arrived is in the main the
same as that of Charles Jones and Galan, particularly as to what was said to them by
Graham and Fusile. His testimony regarding where the parties were standing while
they were on the Oval is in many respects different from that of other witnesses who
testified in this regard. His version was that they were much closer to each other
than the estimate of other witnesses, who testified for both the General Counsel and
the Respondent. Even so, the record as a whole clearly shows that there was much
confusion on the Oval at the time and that on occasion all were talking at once. An-
other factor that adds to the confusion regarding what transpired at the time we are
concerned with, is the testimony of the witnesses regarding the location of and the
distance certain persons, such as Herb and Charles Jones, were from the group around
40 Quotes from Wells' credible testimony.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the police cruisers . As indicated above, estimates as to the distance of Charles Jones'
truck from the group range from 40 to 50 feet and from 15 to 20 feet 41 In such a
state of the record, no trier of the facts could or should make a finding in this regard.
For this reason I have and will make my findings as to what was said and transpired
on consideration of the impression the individual witnesses made upon me, particu-
larly their demeanor while testifying and the reasonableness of their testimony.
According to Wells, he overheard the conversation between Charles Jones and
Martin Graham in which Graham told Jones that he would have to remove his brick-
layers from the job.
I have discussed and disposed of the conversation between Graham and Jones that
Wells had reference to and have found in effect that while Graham did not use the
phrase "have to remove his men from the job," that he did say to Charles Jones,
"You know what this is all about , that we are going to have to stop the job." In such
a state of the record , I find that Wells was in error in this regard , and that in reality
his testimony was his interpretation of what Graham said to Jones. That Wells was
informed as to what Graham had reference to in his instructions to Charles Jones is
found in the following excerpt from the testimony of Charles Jones himself:
Q. Did you talk with Wells at all that morning?
A. Yes.
Q. Did you tell him about your conversation with Graham?
A. I don't recall if I did. I know we were talking about this. Exactly what
I said I don't know.
Q. Are you sure Mr. Graham said, "You know what this is all about?" Is
that your testimony?
A. Yes.
Q. And he asked whether your men, whether you had another place for your
men to work?
A. Yes.
Q. Did you have another job going which you were under contract for?
A. Yes.
Q. Where?
A. On Tanager . [ Emphasis supplied.]
In all the circumstances , I am convinced and find that Wells' testimony as to what
Graham said to Charles Jones in their conversation on the morning of May 9, 1963,
was technically in error for reasons set forth herein, and discredit his testimony in
this regard for the same reasons. On the other hand, I credit his testimony regarding
Graham's statement to Charles Jones , ". . . you know what this is all about," and
find that Graham made the remark attributed to him by Wells for reasons that have
been discussed at great length hereinabove.
Wells also testified on direct examination that he overheard a conversation between
Galan and Fusile at the time and place we are now concerned with His testimony
in this regard was to the effect that Fusile told Galan that he could not bring his men
back to the job ". . . until Herb Jones had decided to hire a union electrician."
Galan in his testimony regarding this same incident testified to the same effect, and
I have so found above.
As indicated above Wells testified that when he was with the group on the Oval,
they were all close together , just a few feet apart, and that he talked to several of
them including Galan, Charles Jones, and Becka. His testimony in this regard was
corroborated by Galan in similar language . In addition , Galan also testified that he
talked to Wells and others who were in the group , such as Becka and Fusile. Accord-
ing to Wells , Becka stated to him, as the group was breaking up, ". . . something to
the effect that he was only doing his job. He didn't have anything personal against
me. He was just doing his job." His testimony was corroborated by Becka himself
in his testimony regarding what was said and transpired at the Oval on the morning
of May 9 , 1,963.
In the circumstances discussed , described , and found above, I credit Wells' account
thereof, except as to a "minor interpretation by Wells" regarding certain statements
he attributed to Martin Graham in his conversation with Charles Jones, and find that
in the main it was a true account thereof.
The record shows that the group at the Oval broke up around 10 a.m. and those
who were present left the Millwood Estates area and went their separate ways, except
Wells.
41 See supra.
LOCAL 38, INT'L BROTHERHOOD, ELECTRICAL WORKERS 785
After the group broke up, Charles Jones, the masonry contractor, went over to see
his brother,- Herb Jones, at the jobsite and told him that ". . . he would have to take
his men off the job." 42 Shortly thereafter Charles Jones went back to where his
crew was working and told them that ". . . we couldn't work here because of a non-
union electrician " 43 Shortly thereafter he and his crew left the jobsite.
According to Herb Jones' credible testimony, Lingler, the excavating contractor,
also came over to see him on the afternoon of May 9, 1963, and said ". . . that he
had been informed of the union difficulty, and that his man would work there that
day, Thursday, only because his business agent was not present, but that he was sure
he would call that evening and he would not be able to work any longer." At the
time Lingler had only one employee on the job, who finished out the day, but did not
report for work the next day, Friday, May 10, 1963.44
That Herb Jones anticipated that there would be trouble at the project on account
of his contractual relations with Wells is evidenced by the following excerpt from his
testimony in this regard which I fully credit:
Q. Did you speak to any of the subcontractors that day, other than Mr. Lingler
and your brother, Charles T. Jones?
A. Well, I went back to the office then. Approximately at 11:00 o'clock Mr.
Wells came in, and I told him at that time I had already, by this time it was
9:00 or 10:00 o'clock; called three union electrical contractors and asked them
to come out and bid on the work in our development, and I told him we were
going to give out this work to a union contractor, and he naturally was through.
The two of the contractors came out and submitted bids and I gave it out to
one which was the Forest City Electric, signed a contract with them for the next
house to be wired, which was sub lot No. 40.
Q. How soon after May 9th was this contract with Forest City Electric signed,
was it the next day?
A. No, it was that very night. That very same night I asked contractors to
come out and submit a bid that day. Two came out, and at 7:00 o'clock that
night I signed a contract with the Forest City Electric. [Emphasis supplied.]
After Herb Jones signed the contract with Forest City Electric Company he called
his brother, Charles Jones, and Mike Galan and informed them of his action in this
regard. At the same time he requested each of them to call their respective business
agents and tell them that he had a union contractor. In addition, he requested his
brother, Charles Jones, and Mike Galan to also request their business agents to con-
tact ". . . other business agents that I had signed up with the union contractor so we
could get the men back to work." 45
Both Charles Jones and Mike Galan got in touch with their respective business
agents, Martin Graham and Louis Fusile, and informed them as to Jones' action in
this regard. The upshot of their conversations with both Herb Jones and their busi-
ness agents was that they brought their crews back to the jobsite the next day. Charles
Jones' crew reported for work around 8 a in., and Galan's around 11 a.m.
The record shows that the Forest City Electric Company wired one house for Herb
Jones. He was dissatisfied with their work and resumed his contractual relations
with Wells a few weeks later. At the time of the hearing Wells had wired three
houses at the Millwood Estates project after he resumed his relations with Jones,
sometime in July 1963.
At long last I have arrived at the point where I deem further reference to the record
unnecessary. I honestly feel that I have considered and resolved the evidence as to
the facts pertinent to the issues herein. Having so done, my conclusions and findings
herein follow below.
B. Concluding and overall findings
As indicated above the issues we are concerned with stem from Herb Jones' enter-
ing into contractual relations with Edwin A. Wells, d.b.a. E. Wells Electrical Con-
struction Company, to do the electrical work on houses being built at the Millwood
Estates project in Broadview Heights, Cuyahoga County, Ohio. Wells, at all times
material herein, was a nonunion contractor. It was this factor that eventually led to
the filing of the charges upon which the complaint is predicated.
42 Quotes from Herb Jones' credible testimony.
" Quotes from Charles Jones' credible testimony.
44 See footnote 46, infra.
45 Quotes from Herb Jones' credible testimony.
760-577-65--vol. 148-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to his contract with Wells, Herb Jones, as the general contractor for the
construction of residential homes at the Millwood Estates project, also subcontracted
certain work to other contractors in the building and construction industry, such as
the carpentry work to Mike Galan and the masonry work to Charles Jones. In
addition to Wells, Galan, and Charles Jones, Herb Jones also subcontracted other
work at the project to other subcontractors, to do such work as the plumbing, paint-
ing, lathing, and other specialized work. We are only concerned herein with the
carpentry, masonry, and electrical contractors, primarily because they were the only
trades working at the project at times material herein 46 Galan and Charles Jones
were union contractors, that is they themselves, and members of their crews were
members of their respective trade or craft unions.
As found above the construction of homes on the project got underway sometime
in the early part of 1962. Shortly thereafter the business agent for several of the
unions that represent the building trades craft in the construction industry called
upon Herb Jones at his office on the Millwood Estates project. Among those present.
was Becka, the business agent for Local 38, IBEW. At that time Becka reminded
Herb Jones that all of the work on the project had been subcontracted to union em-
ployers except the electrical work which, as indicated above, had been subcontracted
to Wells, a nonunion contractor. In the course of their conversation Becka told
Jones in substance that ". . . we want to see you get rid of this electrical contractor
and hire a union contractor." Becka of course had reference to Wells. Thereafter
on several occasions Becka repeated his requests to Jones to "get rid of Wells" from
time to time , but to no avail.. As time went by Becka became more emphatic and
demanding in his requests to Jones to replace Wells with a union contractor. I have
found above as to the time and place of Becka's demands in this regard. That
Becka's demands and attitude toward the retention of Wells as the electrical con-
tractor on the project had its effect on Jones is well illustrated by Jones' requests to
Wells to seek recognition and approval of the Union's executive board as an electrical
contractor which, if accomplished, would settle the "Wells problem." At Jones' in-
sistence Wells made application to the Union's executive board for approval as an
electrical contractor on at least three or four occasions at times material herein47
Though he was rejected each time by the board, he was never given any specific rea-
son for its action in this regard other than "Not recommended at this time " The
situation finally came to a head, so to speak, on May 7, 1963. What transpired on
that date and thereafter has been discussed at great length above. For this reason I
see no reason to reemphasize it in this section of the Decision. Suffice it to say that
as a result thereof Jones canceled his contract with Wells and retained the services
of the Forest City Electric Company, an electrical contractor that was acceptable to
the Union, i.e., Local 38.
I have found above that Respondent Local 38 solicited and accepted the aid of
Martin Graham, business agent for the Masonry and Bricklayers Union at all times
material herein, to assist it in its goal to have Herb Jones "get rid of" or to remove
Wells as the electrical contractor and replace him with a union contractor. My find-
ing in this regard was not only predicated on the credible testimony of Charles
Jones, the masonry contractor, but directly and indirectly by the testimony of Martin
Graham himself. A resume of my findings in this regard follows below.
At this point I desire to point out again that the incident that led to the ultimate
goal of Respondent Local 38, to have Jones replace Wells wtih a union subcontractor,
occurred on the morning of May 7, 1963, at a meeting of the Building Trades Council
of Cleveland, Ohio. The Council is made up of the business agents and other officials
of the unions representing the building trades in the Cleveland, Ohio, area, including
those who are officers of district councils, such as Louis Fusile of the Carpenters
District Council. They meet every Tuesday and discuss their problems with each
other. It was in accordance with this custom that a representative of the Respondent
Union, not specifically identified in the record herein, told those present of the situa-
tion at the Millwood Estates project regarding the presence of Edwin A. Wells, a non-
union electrical contractor, on the job. At this same meeting Fusile, the representa-
tive of the Carpenters District Council, told those present in substance that he would
assist Local 38 in its efforts to cause Herb Jones to replace Wells with a union elec-
trical contractor. In addition Fusile testified that one of the reasons that he went to
4e In addition to Gahan, Charles Jones , and Wells , there was one other subcontractor on
the job at times material herein, Lingler, the excavating contractor The record contains
little if any evidence as to him that are germane to the issues herein
4' As I have pointed out above, the record herein is none too clear in this regard See
supra.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 787
Breckswood Oval on May 7 and 9, 1963, was because he had "volunteered" his
services in this regard at the Building Trades meeting on May 7, 1963. In addition
to Fusile's admission that he had "volunteered" his services to Local 38 to help cor-
rect the "situation," we have the testimony of Graham, who readily admitted and in
fact testified at some length regarding the duties of the representatives of the Building
Trades Unions to work together to see that a job such as the Millwood Estates project
was 100 percent union, and that this was the reason that he reported to the Oval on
the morning of May 7, 1963. As a result of their testimony, and on consideration of
the whole record, I again find that Fusile and Graham met with Becka at Breckswood
Oval on the mornings of May 7 and 9, 1963, as a result of what was said at the
Building Trades Council meeting on the morning of May 7, 1963. That it was com-
mon practice for business agents for unions in the building trades to assist and/or
aid others in situations such as we are faced with herein, is clearly evidenced by the
testimony of Graham himself set forth and discussed hereinabove.
I am convinced and find upon all of the above that the events of May 7, 8, and 9,
1963, were instigated by Becka, the business agent for Respondent Local 38. More-
over, I am also convinced and find that the incidents we are concerned with herein
did not "happen by chance" as Becka suggested in his testimony, but were the result
of discussions between Becka, Graham, and Fusile at times before the dates we are
primarily concerned with herein. There is evidenced by the fact that Graham, at the
request of Becka, went to Charles Jones, the masonry contractor, and a brother of
Herb Jones, the general contractor, on at least two occasions before May 7, 1963,
and requested him to talk to his brother about replacing Wells with a union electrical
contractor. Further evidence in this regard, and most persuasive to me, was Becka's
presence with Fusile at the time they called on Mike Galan, the carpentry sub-
contractor, on May 7, 1963; and the further fact that it was on this occasion that
Fusile told Galan that it was possible that the job would be shut down unless Herb
Jones got rid of Wells, the nonunion electrical contractor. Further evidence that
Fusile's statements to Galan was more than prophetic is the fact that one of Galan's
employees, Alex Cornauch, who reported for work at the usual time at the Millwood
Estates project, without knowledge of the fact that Galan had taken his crew over to
another job the evening before, was told by Fusile that "... the job is stopped."
That Galan's contractual relations with Herb Jones were subjected to the whims
and caprices of Local 38's dispute with Wells, is clearly evidenced in his testimony
that has been likewise discussed and assayed above, from which I have found that he
was ordered by both Fusile and his own business agent, Blaha, to keep his crew
away from the Millwood Estates project until the situation as to Wells had been
corrected. Clearly, here is ample evidence. of violation of Section 8(b)(4)(ii)(B),
as alleged in paragraph 11 of the complaint herein 48
The facts as to the role of Graham in support of Local 38's demands upon Herb
Jones in its dispute with Edwin A. Wells have likewise been discussed, assayed, and
disposed of above. Graham's role in the alleged violations of Section 8(b)(4)(i)
and (ii) (B) of the Act is found in his conversation with Charles Jones, the masonry
contractor, wherein he asked Jones, in substance, at the time he told him that ". . . we
are going to have to stop the job" on the morning of May 9, 1963, whether he
(Graham) should tell the men in the crew that the job is stopped, or if he (Jones)
"should tell them?" As also indicated above, Charles Jones chose to notify the em-
ployees himself, which he did shortly thereafter when he called them together and
told them ". . . that it was just stopping the job, that we couldn't work here because
of a nonunion electrician ." 49
From all of the foregoing, I again conclude and find that Charles Jones, by relay-
ing Graham's instructions to his crew, was attributable to Graham, the business agent
for Local 5 of the Bricklayers Union. In other words Charles Jones acted as an
emissary for Graham to the members of Local 5 in his crew. In such circumstances,
the fact that Graham was not present when Charles Jones delivered his message to
the employees is of no moment in view of the Board's position in the Sand Door
case, where it held in essence that if a union business agent or representative directs
a "supervisor" (here Charles Jones was the employer), unaccompanied by the union
business agent, to tell his employees, and the supervisor immediately proceeds to do
so, the supervisor's conduct is attributable to the Union's business agent 50
'S See supra, for pertinent excerpts from the complaint
'B Quotes from Charles Jones' credible testimony. See supra, in re my comment in re-
gard to this particular incident, particularly regarding the credibility issue.
co See Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL,
et at (Sand Door and Plywood Co.), 113 NLRB 1210, 1213.
788 DECISIONS OF,-NATIONAL LABOR RELATIONS BOARD
In addition to the foregoing findings as to the role played by the Carpenters Union
and its agent, Fusile, I have also found above that Fusile at the time told Galan to
keep his crew away from the Millwood Estates project until the situation as to the
nonunion electrical contractor was settled, and that in case he did not have a job to
move them to, they would be paid $10 per day by the Union during their periods of
unemployment. As I see it, this gesture by Fusile to Galan and the-members of his
crew clearly evidenced the support and cooperation that Fusile and the Carpenters
Union rendered to Local 38, through Business Agent Becka, at all times material
herein, in its efforts to force Herb Jones, the general contractor, to cease doing busi-
ness with Edwin Wells, the primary employer.
Another facet of the case at hand that has been most persuasive to me in reaching
my ultimate decision herein, is the fact that the business agents for both the Car-
penters and Bricklayers Union, Fusile and Graham, notified their subcontractors,
Galan and Charles Jones, that they could bring their crews back to the Millwood
Estates project shortly after they were notified that Herb Jones had finally acquiesced
to Local 38's demands and replaced Wells with a union-approved electrical con-
tractor, Forest City Electric Company.
Upon all of the foregoing, I find that the General Counsel has maintained the
burden of proof in the case at hand and that by the activities discussed, described,
and found above, the Respondent Union engaged in conduct violative of Section
8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act.
In passing, I desire to point out at this stage of my Decision that I have duly con-
sidered the position of the Respondent herein, as stated by its counsel to the record
at the hearing herein and in his brief, and, for reasons which should be obvious to
all concerned herein, have rejected his contentions in this regard for reasons set
forth below.
The major defenses of Respondent Local 38, in addition to the jurisdictional ques-
tion regarding commerce, is (1) that there is no evidence that representatives of the
Respondent ever threatened the employees of either Galan or Charles Jones at any
time material herein, and (2) that neither the employees of the subcontractor at the
Millwood Estates project nor the contractors themselves lost any time from work
and that the incidents involved herein had no effect upon either the business opera-
tions of Herb Jones or any of the subcontractors at the Millwood Estates project.
I have considered the questions raised by the Respondent and have arrived at an
ultimate disposal of the issues after long and careful consideration. As I see it, the
following excerpt from the decision of the Third Circuit Court of Appeals in the
Local 542, International Union of Operating Engineers, AFL-CIO (Giles & Ransome,
Inc.) v. N.L.R.B., 328 F. 2d 850, sums up my reasoning in this regard: 51
The Union contends that the evidence was insufficient to support the ultimate
determination that it had been guilty of an unfair labor practice within the
meaning of the statute. It is argued that the episodes upon which the determina-
tion rests were so minor and isolated that they cannot be regarded as coercive.
We cannot agree. The argument seems to overlook the setting in which the in-
cidents occurred. It is significant that the incidents occurred in the early days
of the strike and within the relatively short period of eleven days when the
Union was most active in its organizational effort; they were not spread over
the 10 weeks of the strike, as the Union here contends. It is clear from the evi-
dence that the conduct of the offenders created an atmosphere of coercion and
intimidation.
The Union urges in support of its argument that the episodes "had no effect
upon the operation of the employer's business, and they coerced or intimidated
no one." That no one was in fact coerced or intimidated is of no relevance.
The test of coercion and intimidation is not whether the misconduct proves effec-
tive. The test is whether the misconduct is such that, under the circumstances
existing, it may reasonably tend to coerce or intimidate employees in the exer-
cise of rights protected under the Act. Highway Truck Drivers & Helpers Local
107 v. N.L.R.B., 273 F. 2d 815, 45 LRRM 2318 (D.C. Cir. 1959); Time-O-
Matic, Inc. v. N.L.R.B., 264 F. 2d 96, 99, 43 LRRM 2661 (7th Cir. 1959); Pro-
gressive Mine Workers v. N.L.R.B., 187 F. 2d 298, 301, 27 LRRM 2334 (7th
Cir. 1951); N.L.R.B. v. Ford, 170 F. 2d 735, 738, 23 LRRM 2088 (6th Cir.
1948). The misconduct of the Union in this case met this test.
511 am well aware of the fact that the case from which the above excerpt is taken in-
volved a different set of facts, nevertheless the reasoning of the court is applicable to the
issues in the case at hand. In other words, I adopt the reasoning of the court as my
own and find it applicable to the facts herein.
M & S STEEL COMPANY, INC. 789
Upon all of the foregoing, I conclude and find that Respondent Local 38 induced
employees of Mike Galan and Charles Jones to refuse to perform services for their
employers, with an object of forcing Galan and Jones to cease doing business with
Herb Jones Construction Company and to force Herb Jones Construction Company
to cease doing business with Edwin A. Wells d.b.a. E. Wells Electrical Construction
Company, and thereby engaged in conduct violative of Section 8(b) (4) (i) and
(ii) (B) of the Act.52
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth above, occurring in connection with the
operations of the E. Wells Electrical Construction Company as set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, it will
be recommended that the Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Herb Jones Construction Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Michael Galan, Charles Jones Construction Company, and Edwin A. Wells,
d.b.a. E. Wells Electrical Construction Company, are engaged in commerce or in an
industry affecting commerce within the meaning of Section 8(b) (4) of the Act.
3. Local 38, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
4. By inducing and encouraging individuals employed by Galan and Charles Jones
to engage in a strike or a refusal in the course of their employment to perform serv-
ices, and thereby coercing and restraining the foregoing employers, with an object
of (1) forcing or requiring them to cease doing business with Herb Jones Construc-
tion Company, and (2) forcing Herb Jones Construction Company to cease doing
business with Edwin A. Wells, d.b.a. E. Wells Electrical Construction Company, the
Respondent has violated Section 8(b) (4) (i) and (ii) (B) of the Act.
5. By threatening Michael Galan and Charles Jones Construction Company with
a strike of its members with an object of forcing Galan and Jones to cease doing
business with Herb Jones, and Herb Jones to cease doing business with Edwin A.
Wells, d.b.a. E. Wells Electrical Construction Company, the Respondent has violated
Section 8(b) (4) (ii) (B) of the Act.
[Recommended Order omitted from publication.]
e2 See Local 38, International Brotherhood of Electrical Workers, AFL-CIO (S. Simon
Construction Company), 141 NLRB 983.
M & S Steel Company , Inc. and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO , Local 583. Case No. 10-CA-5489. Septem-
ber 1, 1964
DECISION AND ORDER
On June 12, 1964, Trial Examiner Robert E. Mullin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
148 NLRB No. 84.