Local 9, Int'l Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Aug 24, 1960

128 N.L.R.B. 899 (N.L.R.B. 1960)

LOCAL 9 INT'L BROTHERHOOD ELECTRICAL WORKERS 899
an invalid contract, even where employees were coerced to join a labor organization.
Alco-Gravure, supra; see also . Member Jenkins' dissent in Dixie Bedding Manu-
facturing Company, 121 NLRB 189, 198-199. Here, although the Companies as-
sisted the Union in obtaining its majority status, there was no " requirement; in the
oral contract nor was there other Compulsion that employees join the Union. The
dues were deducted from. the earnings of such employees as had signed 'authori-
zations, and, as we have seen, Jolog told the employees by printed notice that they
were not required to join the Union, Farber told them so orally, and Kehrer also
told them so when he addressed them. Under the circumstances, I'do not believe
that it would effectuate the policies of the Act to require that the Coinpanies..reim-
burse the employees for dues deductions.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By contributing assistance and support to the Union, the Companies have en-
gaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(2) of the Act.
3. By interfering with, restraining, and coercing Jolog's employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Companies have engaged in
and are engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Companies have not engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (4) of the Act, and the Union has not engaged in unfair
labor practices within the meaning of Section 8(b) (1) (A) thereof.
[Recommendations omitted from publication.]
Local Union No. 9, International Brotherhood of Electrical
Workers, .AFL-CIO, and Its Agents, Frank Benner and Robert
Fitzgerald and G. A. Rafel and Co., Inc. Cases Nos. 13-CD-64
and 13-CD-77. August 24, 1960
DECISION AND ORDER
This proceeding arises under Section 10 (k) of the National Labor
Relations Act, which provides that :
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph 4(D) of section
8 (b), the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen.
On April 24, and December 2, 1959, G. A. Rafel and Co., Inc., herein
called Rafel, filed charges with the Regional Director for the
Thirteenth Region alleging that Local Union.No. 9, International
Brotherhood of Electrical Workers, -AFL-CIO, herein" called Local
9, and its agents, Frank Benner and Robert Fitzgerald, herein called
Benner and Fitzgerald, respectively, had engaged in and .were en-
gaging in certain unfair labor practices within the meaning of Section
128 NLRB No. 100.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (4) (D) of the Act. It was charged in substance that Local 9,
Benner, and Fitzgerald had induced and encouraged employees of
Rafel to engage in a strike or concerted refusal to perform services in
the course of their employment with an object of forcing Rafel to
assign particular work to members of, or employees who have been
approved or cleared by, Local 9.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charge in Case No. 13-CD-64 and
provided for an appropriate hearing upon due notice. The hearing
was held before Allan B. Haas, hearing officer, on July 6, 13, and
21, 1959, and before Herbert Borovsky, hearing officer, on various days
between July 27 and December 3, 1959, at which time the hearing
was recessed. On December 29, 1959, the Regional Director, having
investigated the charge in Case No. 13-CD-77, consolidated the two
cases and provided for appropriate hearing thereof upon reconvening
of the recessed hearing. Thereafter, the consolidated hearing was
held before the said Herbert Borovsky on January 11, 12, and 13, 1960.
Rafel, Local 9, Benner, and Fitzgerald appeared at the hearing and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues.' The
rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed.'
3 During the hearing, Rafel applied for special leave to appeal from certain rulings of
the hearing officer. Because a determination would have required a review of the entire
record , permission was denied without prejudice to Rafel 's right to renew its application
after the close of the hearing. Thereafter Rafel requested special leave to appeal, inter
aloe, from the hearing officer' s (1) refusal to permit Rafel to adduce the testimony of
four additional witnesses concerning Case No. 13-CD-64, ( 2) refusal to recess or adjourn
the hearing in Case No 13-CD-64, (3) permitting Local 9's attorney to testify in the
absence of Rafel and its attorney , (4 ) denial or Rafel 's motion for a recess after the
close of Case No. 13-CD-64 and before starting the hearing on Case No . 13-CD-77 in
order to allow Rafel additional time to bring in its witnesses , and (5 ) summarily closing
Rafel 's case in Case No. 13-CD-77 without the testimony of such witnesses . Even though
the hearing was convened on 26 different days over a 6-month period during which this
entire -matter was at issue , Rafel failed, as more fully set forth hereinafter , to elicit
testimony in support of its position that the object of Local's 9's conduct was unlawful.
There is no indication that any additional witnesses would have offered testimony which
could alter our conclusions based on the undisputed facts of these cases. With regard
to the testimony by Local 9' s attorney , the record reveals that Rafel and its counsel
voluntarily left the hearing in anger and thus waived the right to be present and cross-
examine the witness. In any event , the testimony adduced is irrelevant to the issues
to be resolved in this proceeding and has been disregarded in reaching our conclusion.
Accordingly, Rafel's application for special leave to appeal from these rulings is denied.
See Fisherman's Cooperative Association, et at., 128 NLRB 62, footnote 14; Kiekhaefer
Corporation , 127 NLRB 1381; Houston Sash & Door Company, Inc., 127 NLRB 1089.
2 See footnote 1, supra. In addition, Rafel sought special permission to appeal from
the hearing officer's refusal to disqualify himself because of bias, prejudice , and animus
against Rafel , as well as improper conduct. The application is also denied as to this
ruling In support of its contention , Rafel points to similar charges made on the
record by counsel for Local 9. We find it difficult to understand how the hearing officer
could have displayed such bias , prejudice , and animus against both parties in the same
proceeding . Moreover, we note that both attorneys indulged in much abuse of the
hearing officer, frequently disregarded his rulings and instructions , and often goaded him
LOCAL 9, INT' L BROTHERHOOD ELECTRICAL WORKERS 901
Upon the entire record in these cases , the Board 3 makes the
following findings:
1. Rafel is an Illinois corporation with its principal office and place
of business in Chicago, Illinois, where it is engaged in "inside" and
"outside" electrical 4 contracting and engineering work. During the
period from May 1958 to early 1959, Rafel performed services (in-
stalled highway lighting, underground cable trenching, conduit, con-
trol cabinets, etc.) for the Illinois Toll Road Commission valued at
over $400,000. During the same period, Rafel also performed similar
services for other interstate and State highway systems valued at
over $375,000. Accordingly, we find that Rafel is engaged in commerce
within the meaning of the Act.5
2. Local Union No. 9, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the meaning of
the Act.
3. The dispute :
A. The facts
Since 1946, Rafel has been engaged in "inside" electrical work in
and about the Chicago area. Although not a party to any collective-
bargaining agreement, Rafel has customarily employed members of
Local 134, International Brotherhood of Electrical Workers, AFL-
CIO, for this work. Beginning in late 1957 or early 1958, Rafel bid
on and was awarded a number of contracts to perform various jobs
which fall within the definition of "outside" electrical work. Local
9 claims jurisdiction over the latter work in the Chicago area, whereas
Local 134 claims jurisdiction over the "inside" work.
In April 1958, shortly after Rafel began its first "outside" job, the
two Locals discussed their jurisdictional claims with Rafel's general
superintendent, Robert Teets, and another supervisor, and all agreed
that the work "belonged to" Local 9. Beginning at least on or about
May 12, 1958,8 Rafel made frequent requests to Local 9 to supply
workers to perform the "outside" work, but Local 9 has consistently
refused to do so, and these positions were reiterated during the
hearing. Because of this refusal, Rafel has continued to employ
workmen who are members of IBEW locals other than Local 9 but
into losing his patience . While we do not agree with some of his rulings, we find the
errors nonprejudicial since in no instance could a contrary ruling affect our conclusion
herein.
B Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in this case to a three-member panel [ Chairman Leedom and Members Bean and
Jenkins].
6 "Inside" electrical work is work done within private property lines, either on vacant
land or within the confines of or on a building . "Outside" electrical work is done in
public areas, such as streets , parks, etc . ( for example , the installation of traffic signals).
5 J. W. Saltsman doing busxnes8 a8 Saltsman Construction Company, 123 NLRB 1176,
1179; Siemons Mailing Service , 122 NLRB 81.
e This is the date of Rafel 's first letter to Local 9 making the request in writing.
577684-61-vol. 128-58
'902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has consistently stated to Local 9 that it would replace its present
employees with members of that Local if Local 9 would refer its
members for employment. Rafel on one occasion also attempted to
,secure "clearance" from Local 9 for some of its employees. All of
Rafel's "outside" jobs have been completed without difficulty or are
in progress,' except the first, which Rafel subcontracted to another
firm for completion.'
Benner and Fitzgerald appeared at least once at each of Rafel's
."outside" jobsites. Usually they requested the employees to show
their union membership cards, but on a number of occasions they in-
formed rank-and-file employees, either individually or in groups,' that
they were working within Local 9's jurisdiction and recommended
that they leave the jurisdiction in order to avoid serious difficulties
with the union.10 Admittedly, Benner and Fitzgerald communicated
with the business agents of various locals throughout the country and
requested their assistance in getting their members to leave Rafel's
-employ. Moreover, a number of persons were summoned to appear
before Local 9's executive board to answer charges of violating Local
"9's jurisdiction. While some of these were supervisors, a number of
them were admittedly rank-and-file employees.
B. Contentions of the parties
Rafel contends that by the above-described conduct Local 9 and its
agents, Benner and Fitzgerald, violated Section 8('b) (4) (D) of the
Act. Local 9 and its agents deny such violation. They assert, inter
,alia, that there is no proof that they sought to compel Rafel to assign
work to Local 9's members rather than to any other persons, relying on
the fact that Rafel wanted to employ Local 9 men but could not be-
cause of the Local's refusal to supply them 11 and citing the Board's
decision in the General Refrigeration Service Company case.ia
I There is no dispute as to any of these facts, and all matters concerning Rafel's
requests and Local 9's refusals are substantiated by copies of the correspondence in
,evidence.
8 Rafel contended that this job was subcontracted because of Local 9's claim to the
work, whereas Local 9 asserts that Rafel subcontracted it for business reasons. It is
unnecessary to resolve this conflict, inasmuch as these incidents took place more than 6
months before the filing of the charge in Case No. 13-CD-64. Certain other jobs were
-also subcontracted. Teets testified this occurred because Local 9 refused to supply men
or because the job had to be completed under Rafel's performance bond or the company
would "lose out " There is no evidence that Local 9 was involved in any way in the
decision to subcontract those jobs.
9 Under the circumstances of these cases, statements to individuals, whether supervisors
,or employees, were almost certain to be communicated to other employees.
10 Benner and Fitzgerald denied that they did anything more than ask to see the
employees' membership cards. However, this seems unlikely in view of the pattern of
their conduct, particularly the serving of summonses to appear before the executive board
and the requests for assistance of business agents or other locals.
11 Local 9, Benner, and Fitzgerald moved for dismissal on several other grounds. In
view of our conclusion, we find it unnecessary to dispose of those contentions.
12 Local 562, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO (General Refrigeration
.Service Company), 124 NLRB 1001.
WATCHMANITORS, INC. 903
C. The nature of the dispute; applicability of the statute-
Before the Board may proceed with a determination of a dispute
pursuant to Section 10 (k) of the Act, it must be satisfied that there is
reasonable cause to believe that Section 8 (b) (4) (D) has been violated.
In order to conclude that reasonable cause exists, the Board must
find some evidence in the record showing that: (a) A strike or a
concerted refusal, or an inducement or encouragement of employees to
engage in a strike or concerted refusal to perform services for any
employer occurred; and (b) any such action was for the purpose of
forcing or requiring any employer to assign particular work to em-
ployees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization
,or in another trade, craft, or class.
The evidence is clear that Rafel at all times has desired and wanted
to employ Local 9 men, and it was only because of Local 9's persistent
refusal to refer men that Rafel resorted to other sources for needed
help. At no time has Local 9 indicated that if Rafel discharged its
employees it would furnish replacements, although Rafel has clearly
indicated its willingness to take such action. Under these circum-
stances, it can hardly be said that Local 9 sought to force Rafel to
assign work to its members or employees approved or cleared by Local
9 rather than to other persons. Rather, Local 9 asserts various reasons
for its refusal, which relate primarily to the alleged character of
Rafel and its alleged failure to meet the Local's working standards.
Under these circumstances, we conclude that the dispute in this
case is not over the assignment of work within the meaning of Section
8(b) (4) (D). It is therefore not a dispute within the meaning of
Section 10(k). Accordingly, we shall quash the notices of hearing.
[The Board quashed the notices of hearing.]
Watchmanitors , Inc. and Independent Union of Plant Protection
Employees, Petitioner. Case No. 1-RC-5939. August 24,1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before John R. Coleman, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
128 NLRB No. 98.