Electrical Workers Local Union 453

384 ELECTRICAL WORKERS LOCAL UNION 453 Electrical Workers Local Union 453, AFL-CIO (Southern Sun Electric Corporation) and Con- gress of Independent Union. Case 17-CC-778 May 7, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 28, 1979, Administrative Law Judge James T. Rasbury issued the attached Deci- sion in this proceeding. Thereafter, the Employer filed exceptions and a supporting brief, and Re- spondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i In adopting the conclusion of the Administrative Law Judge to dis- miss the complaint, we do so for reasons contrary to those in his analysis. We find that the Administrative Law Judge credited the testimony of Tucker and Reser and while finding that Hensley "parroted" their testi- mony, he did not discredit Hensley Thus, in affirming the Administrative Law Judge, we rely on the total absence of any evidence in the record to establish the alleged violation Accordingly, we need not pass on Re- spondent's cross-exceptions. 'The Employer filed a motion to reopen the record which had previ- ously been denied by the Administrative Law Judge. The motion seeks to introduce evidence of events occurring subsequent to the hearing of this matter which are not relevant to the issues herein litigated. The Employ- er's motion is hereby denied DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard before me in Springfield, Missouri, on August 24, 1979.' The complaint was issued by the Re- gional Director for Region 17 on July 24, based on a charge filed by the Congress of Independent Unions (hereinafter the Charging Party) on July 2 and amended on July 16. The complaint charges Electrical Workers I All dates hereinafter shall refer to the year 1979 unless otherwise in- dicated. 249 NLRB No. 64 Local Union 453, AFL-CIO (hereinafter Respondent) with a violation of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, by threatening Empire Bank, a neutral employer, with picketing at the facilities of the bank if employees of Southern Sun Electrical Cor- poration (hereinafter Southern Sun) continued to per- form work for the bank. 2 Respondent filed a timely answer in which it admitted certain jurisdictional data, but denied the commission of any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses and after giving due con- sideration to the briefs filed by the General Counsel, the Charging Party, and Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION Southern Sun, a Missouri Corporation, is engaged in the business of electrical contracting and maintains an office at 2835 East Division, Springfield, Missouri. In the course and conduct of its business operations within the State of Missouri, Southern Sun annually purchases goods and services valued in excess of $50,000 directly from suppliers located outside the State of Missouri. On the basis of this information, I herewith find Southern Sun Electric Corporation to be, and at all times material herein to have been, an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Empire Bank is a Missouri corporation engaged in the operation of a bank at 1800 South Glenstone, Spring- field, Missouri. Ronnie's Remodeling Center, a corpora- tion with an office located at 1342 South Barnes, Spring- field, Missouri, at all times material herein has been under contract with the Empire Bank to perform certain remodeling work at a drive-in facility of the Empire Bank. Southern Sun, Empire Bank, and Ronnie's Remod- eling Center are, and at all times material herein have been, persons engaged in commerce or in an industry af- fecting commerce within the meaning of Section 8(b)(4)(ii)(B) of the Act. II1. THE LABOR ORGANIZATION Respondent, Electrical Workers Local Union 453, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Facts On June 21 and 22, Southern Sun was engaged in per- forming electrical work at a drive-in facility of the Empire Bank in Springfield, Missouri. Southern Sun is an electrical contractor and was performing the work at z The relevant portions of Sec. 8(hb)(4)(ii)(B) of the Act reads as fol- lows: (b) It shall be an unfair labor practice for a labor organization or its agents- ELECTRICAL WORKERS LOCAL UNION 453 385 Empire Bank pursuant to a subcontract with the general contractor, Ronnie's Remodeling of Springfield. The em- ployees of Southern Sun are represented by the Congress of Independent Unions (CIU), the Charging Party herein, and Southern Sun and the CIU are parties to a currently effective collective-bargaining agreement. B. The Evidence J. A. Nelson, vice president and assistant treasurer of Southern Sun, testified that his Company had been em- ployed by the general contractor, Ronnie's Remodeling, to perform certain electrical work at an Empire Bank lo- cation in Springfield, Missouri. He testifield that the work was being performed but had not yet been com- pleted when they were advised to cease all work. South- ern Sun has not performed and work for the Empire Bank since June 22. Floyd Tucker, a vice president of Empire Bank, testi- fied that on June 22 James Hensley, whom he knew to be business manager of Respondent, was in the bank and they engaged in a conversation. During this conversa- tion, Hensley told Tucker that Hensley had received complaints from his members because there were non- IBEW members performing electrical work on the Empire Bank's drive-in facility. Hensely said he would have to take some action on his members' complaints. Tucker thought the word "pickets" might have been mentioned during the conversation, but said that it could have been his word and not that of Hensley. Tucker testified that he spends a good deal of his time traveling on behalf of the bank and had no knowledge of the work to which Hensley was referring, so he took Hensely to the desk of Billie Reser, a senior vice presi- dent of the bank, in order that the matter might be dis- cussed with him. According to Reser, Hensely told him that Hensley had received complaints from his members about non- IBEW workers performing electrical work at the drive- in facility of the Empire Bank and that he was going to have to look into the complaints. Reser had been out of town on vacation and had no knowledge of the particu- lar work being performed, but deemed Hensely's com- ments to be of sufficient importance that he went imme- diately to see Jefferies-president and chairman of the board of the Empire Bank-to advise him of Hensley's conversation. Reser testified that Jefferies told him they did not want to get involved in any labor trouble and for Reser to tell Cobb, an employee of the bank, to inform the general contractor, Ronnie's Remodeling, that the non-IBEW workers should be taken off the job immedi- ately. Reser said he went back to his desk and made the call to Cobb. Reser testified that during his conversation with Hensley there was some mention of pickets, but that it might have been Reser's own words or his as- sumption. James Hensley, the business manager for Respondent, stated that the Union has its vacation trust fund, health and welfare trust fund, pension trust fund, and a check- ing account with the Empire Bank, and have had said accounts there for a number of years. Hensley testified that he had gone to the Empire Bank on June 22 to check on the vacation trust fund to make sure that all employers had completed their payments to the said fund, because the moneys from this particular vacation trust fund are distributed to the members on July 1. Hensley parrotted the testimony of Tucker and Reser re- garding his informing them of the complaints from his members regarding the non-IBEW employees working on the bank job. He denied making any threats or ever mentioning the words pickets or picketing. Hensley did acknowledge on cross-examination that he told Tucker and/or Reser that he could not ignore the complaints his members were making. Analysis and Conclusions While I personally have little doubt-based on my ob- servation of the reluctant witnesses and some small knowledge of human nature-that Hensley's words and conduct as directed toward Tucker and Reser left little doubt in their (Tucker's and Reser's) minds that, unless the Southern Sun workers were removed from the job being performed on the Empire Bank, serious problems from the Empire Bank would occur, the hard evidence will not support such a finding. While the circumstances surrounding this entire matter cannot help but arouse one's suspicion, "mere suspicion cannot substitute for proof of an unfair labor practice."3 It would be judicially imprudent to infer threats, restraint, or coercion based on such nebulous evidence as is contained in this record. The General Counsel is required to prove his case by a preponderance of the evidence, and this has not been done.4 I shall recommend that this case be dismissed. IV. CONCLUSION OF LAW The evidence will not sustain a finding that Respond- ent, Electrical Workers Local Union 453, AFL-CIO, has violated Section 8(b)(4)(ii)(B) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER5 The complaint is dismissed in its entirety. I Kings Terrace Nursing and Health Related Iacility, 229 NLRB 180) (1977), citing DSL Mfg.. Inc., 202 NLRB 970 (1973) 4 FalraffR rewing Corporation 128 NLRB 294. 295. fn 2 (019)), erifd as modified 301 F 2d 216 (th Cir. 1962). In the event no exceptions are filed as provided h Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings. conclusions, and recommended Order herein shall, as prosided in Sec. 1()248 of the Rules and Regulations, be adopted by the BHlard and become its findings, conclusions and Order, and all objections thereto shall be deemed waised fior all purposes _ _ _