Local 9, Int'l Brotherhood of Electrical Workers

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.