Local 349, Int'l Brotherhood of Electrical Workers

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union-Petitioner's representative did indicate that it would continue to negotiate jointly with the other Unions, it is undenied that the meeting was convened solely for the purpose of discussing a griev- ance which had arisen under the existing agreement, and that no joint bargaining for the new contract took place at the meeting. Further, the June 7 meeting was between the Unions and the em- ployees in the unit in order to ascertain the wishes of employees re- specting the new contract. In this meeting, too, there were no ne- gotiations between the Employer and the Unions. In view of these facts, we find that no joint bargaining had taken place and therefore, apart from any other consideration, that Union-Petitioner was not estopped from filing the instant petitions - 4. The parties otherwise agree, and we find, that the following employees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. All production and maintenance employees of the Employer at its plant in Glendale, California, including shipping and receiving em- ployees and truckdrivers, but excluding office clerical employees, pro- fessional employees, guards, and supervisors, as defined by the Acts [Text of Direction of Election omitted from publication.] 5 For this same reason we find Hollingsworth & 1Vh tney Division of Scott Paper Com- pany, 115 NLRB 15, inapposite. 6 Since Union-Petitioner has indicated that it no longer desires to represent employees jointly with Joint Intervenors, we shall not place Union-Petitioner on the ballot together with the Joint Intervenors. We shall rather give employees an opportunity to decide whether they wish to be represented by Joint Intervenors, by Union-Petitioner, or by no union. Local 349, International Brotherhood of Electrical Workers, AFL-CIO and Dade Sound and Controls . Case No. 12-CC-258. November 4, 1964 DECISION AND ORDER On August 21, 1963, Trial Examiner Ramey Donovan issued his Intermediate Report 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 Interme- diate, Report. Thereafter, Respondent filed exceptions to the Inter- mediate Report and a supporting brief: The Board has reviewed the rulings made by the Trial--Examiner at the hearing and finds that no prejudicial error was committed. 149 NLRB No. 46. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 431 The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner except as modified herein. Background The Charging Party, hereinafter referred to as Dade, a contractor for the installation of sound amplification equipment, performs work in Miami, Florida, and vicinity. In December 1961 Dade signed a collective-bargaining agreement with Local 3107, Communications Workers of America (hereinafter referred to as CWA). Its two employees, MacMillan and Oliveira, were members of that union. The installation work performed by Dade is also within the claimed work jurisdiction of Respondent (sometimes referred to herein as IBEW). The record shows that the assignment of such work has been the subject of a dispute between IBEW and CWA, from a time antedating the incidents which gave rise to the charges in the present case. Thus, sometime in May 1962, while Dade was installing sound equipment at a site where members of Respondent were also em- ployed, Apte, a business agent of Respondent, spoke to Finn, the di- rector of Local 3107, CWA, about CWA personnel working alongside the IBEW members. Apte advised Finn that if Finn did not re- move the CWA members, his (Apte's) men "would be walking." About the same time, Dade filed a charge against Respondent ac- cusing it of violating Section 8(b) (4) (i) and (ii) (B) of the Act. A complaint based on that charge issued on June 22, 1962 (Case No. 12-CC-223), and it alleged, inter alia, that Respondent, through its business agent, Apte, and others, had threatened the Miller Electric Company at its Miami University Library building project, and had also induced employees of Miller to strike, in order to force Miller to cease doing business with Dade. On August 9, 1962, all parties en- tered into a settlement stipulation in that case providing for a cease- and-desist order based on the violations alleged. The stipulation was approved by the Board and a decree was entered by the Fifth Circuit Court of Appeals on October 17, 1962, enforcing the Board's Order. I The Respondent excepted to a, number of the Trial Examiner's findings as to the credi- bility of witnesses However, it is well established that the Board will not overrule a Trial Examiner's resolutions of credibility unless a clear preponderance of all the relevant evidence convinces the Board that such resolution was incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3). As no such conclusion is warranted in this case , we adopt the Trial Examiner's credibility findings Respondent further contends that the Board should refuse to uphold the Trial Examiner's findings herein on the ground that in' making findings of credibility, in drawing inferences and evaluating the evidence , lie showed bias against Respondent Upon careful examina- tion of the entire record and the Intermediate Report, we are satisfied that the contentions of the Respondent in this regard are without merit. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint in the present case alleges that Respondent, con- fronting Dade at five different construction sites in the vicinity of Miami, Florida, between September 1962 and March 1963, violated Section 8(b) (4) (i) and (ii) (B) of the Act by inducing employees of various employers to strike, and by threatening these employers, in each instance with an object of forcing them to cease doing busi- ness with each other or with Dade. The Trial Examiner, on the basis of statements by Respondent's business agent, Apte, in May 1962, and other factors, found that Re- spondent was committed to a course of conduct to protect its work jurisdiction from any encroachment by Dade's CWA employees. He further found that at those sites involved herein at which Respond- ent's stewards were present, stewards, acting as Respondent's agents, threatened the employers or induced their employees to strike with an object of forcing them to cease doing business with Dade. He also found that at the same sites, as well as at others at which Re- spondent had no steward or other agent, Respondent variously en- gaged in strikes or refusals to work, or induced its members to engage in strikes or refusals to work, with the same "cease doing business" objective, by "acquiescing in, tolerating, failing to take effective measures to prevent- and ratifying a code of conduct by its members not to work with people [Dade's CWA crew] regarded as nonunion." Based on these findings, the Trial Examiner concluded that Re- spondent violated Section 8(b) (4) (i) and (ii) (B) at all five sites. Respondent contends that it is not responsible for the actions of its stewards or members at any of these sites because the stewards and members were acting as individuals and not on behalf of Respondent. It further contends that it has not ratified such conduct. Although we agree with certain of the Trial Examiner's ultimate findings of violation of the Act, we do not, as a basis for our findings, adopt or rely upon his reasoning which imputes responsibility to Respondent on the theory that Respondent "acquiesced in, tolerated, failed to take effective measures to prevent, and ratified a code of conduct by its members not to work with people regarded as non- union." The grounds on which we rest our findings, as related to each jobsite, are set out below: 1. The Village Green Crown Lanes job During the summer of 1962, Village Green Crown Lanes contracted for the construction of a number of bowling alleys and hired J. M. Coker, Inc., to install the internal communications. Coker subcon- tracted some of this work to Dade. Burns & Yaeger (herein called Burns) was the electrical subcontractor for the same job, and its electricians were members of Respondent. C LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 433 Statcavage (also called,Stack), Coker's representative, and Mac- Millan, Dade's employee, went out to the site on July 27, 1962.2 They were eventually confronted by Respondent's steward, McLain, and Logan, the - Burns foreman. McLain, on learning that MacMillan was a CWA member, advised Stack that MacMillan "just can't work out." At Stack's request 'to check the matter further, McLain went to a telephone, apparently made a call, hung up, and returned. Stack asked McLain what the "scoop was," to which McLain replied, "You'll find out." Shortly afterward, McLain, Logan, and all the electricians, members of Respondent, walked off the job. McLain admitted at the hearing that his action in quitting work resulted from the fact that the IBEW crew employed by Burns had not been assigned the sound installation work, which was to be done by Dade. McLain also admitted that he had met MacMillan at the aforemen- tioned Miami library project the previous spring and had walked off that site when he learned that MacMillan was a CWA member per- forming work in Respondent's jurisdiction. On July 28, McLain continued to stay away from the Village Green project and instead went down to Respondent's hall. There he was told his continued absence from the job might result in his replacement. He thereupon decided to return to work. On his way back to Village Green, he passed a restaurant where four or five of the electricians were eating. On learning that he was returning to the project, they also decided to return. Because of the difficulty caused by this walkoff, Stack took away Dade's work and reassigned it to Burns. In early August, McLain again spoke to Stack and said that walking off a job rather than work with "nonunion" employees 3 was a personal matter with him but that if he did, the other men would follow suit. Burns performed part of the work originally assigned to Dade but clue to the resulting higher costs, Stack reassigned the job to Dade in September. Shortly before noon, on September 13, 1962, Stack and the Dade employees, MacMillan and Oliveira, came on the site. Stack told Burns' foreman, Logan, that. the Dade employees were about to work. After lunch, all of the electricians, members of Re- spondent, including steward McLain and Foreman Logan, walked off the site and remained away for the balance of the day and all of the next. Burns, the employer of the electricians, did not authorize their absence from work at this time or on July 27 and 28. 2 As the events which occurred in July and August of 1962 took place prior to the 6-month limitation period set by Section 10(b) of the Act, we do not hereinafter make any findings of unfair labor practices based on these events. We set them forth here, however , because of the background light they shed upon the meaning and significance of the incidents which occurred at this site on September 13 and 14, 1962 , well within the 10 ( b) period, and par- ticularly upon the Union's part in , and responsibility for, those incidents. Local Lodge No. 1424, International Association of Machinists , AFL-CIO, et al. v. N.L.R B. (Bryan Manufacturing Co ), 362 U S. 411, 416. 2 McLain considered CWA members to be "nonunion " employees. 770-076-65-vol. 149-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that McLain was Respondent's agent at the site, and we so find.4 We reject Respondent's contention that McLain acted as an individual. McLain's admonition to Stack in August that other elec-, tricians would join him in a walkoff to protest ,the presence of "non- union" employees at the site was a thinly disguised threat that he, as Respondent's agent, could act as an instrument of Respondent's power to bring ,about a strike if the need arose. The prior events of July demonstrating the adherence of Respondent's members to McLain's leadership made it clear that this threat was not an idle one. Thus, after McLain had objected to the presence of a CWA member at the site and had himself walked off on July 27, the rest of the IBEW electricians quickly followed suit. Seeing McLain return the next day, they likewise returned without question. These facts also indi- cate in our opinion, contrary to other contentions of Respondent, that at pertinent-times herein its members at this site acted in response to the leadership of the union representative.5 Although there is no direct evidence that McLain requested the employees to strike on September 13, the sequence of events on that day followed the same pattern as the incident of July 27. When Dade's CWA employees came on the site, they were immediately con- fronted by Logan, who inquired if they were going to perform sound work. Hearing an affirmative answer, he left the site with Respond- ent's other members, including McLain. When these circumstances are considered against the background of McLain's threat to Stack in August, the incidents of July 27 and 28 and the prior history of Respondent's opposition to the performance by Dade's CWA em- ployees of work in Respondent's claimed jurisdiction, we believe the inference is inescapable that Respondent, through its agent, McLain, caused the strike of its members at the Village Green site when Dade showed up to perform sound work on that job. These same factors reflect that the object of the strike was to bring indirect pressure on Coker, through Burns and Village Green Crown Lanes, to force and require Coker to cease doing business with Dade. Accordingly, we * McLain possessed the title of job steward , was appointed as such by the Respondent, was required under its bylaws to report any encroachment upon its claimed jurisdiction, and, as admitted by Respondent 's counsel at the hearing , was obliged under its constitu- tion and bylaws to enforce compliance with its work rules. All Respondent's stewards, as admitted by Business Agents Apte and Albury at, the hearing, are required to straighten out all "problems" on the job on their own initiative. As more fully set forth in the Inter- mediate Report, the record indicates that McLain was looked upon by management and employees alike as Respondent's representative at that project. Local -Union 825, Inter• national Union of Operating Engineers, AFL-CIO ( Nichols Electric Company), 138 NLRB 540, 542-543, enforcement denied on other grounds, 326 F. 2d 21 '8 (C.A. 3) ; Mach Lumber Company, 126 NLRB 297, 304. . 5In rejecting Respondent's contention that McLain was acting only as an individual, and not in his capacity as job steward , we deem it significant that he made no effort to advise Respondent's members at the site that he was acting as an individual , nor is there any showing that he gave them permission to stay or leave as each of them might have seen fit. . . % - - LOCAL 349, INT'L,BROTHERHOOD ELECTRICAL WORKERS 435 conclude that, on, September 13 and 14, 1962, Respondent, through its agent, McLain, violated Section 8(b) (4) (i) and (ii) (B) of the Act at the Village Green jobsite.6 2. The Miami Laundry job During September, a building was being constructed or renovated for the Miami Laundry and 'Dry' Cleaning 'Co. Coker received a sound contract from Miami Laundry, and Coker subcontracted the labor for this work to Dade.-'R. L. O'Donovan was the electrical sub- contractor at the site and his employees were members of Respondent. In late September, Stack and MacMillan came on the site and spoke to Diaz, who was O'Donovan's foreman, and to Disney, Re- spondent's steward. After checking the union card of MacMillan and establishing that the latter was a CWA member, Disney advised Stack in the presence of Diaz that he, Disney, could not work with Dade. He also told Stack at this time that Respondent had its own people who did sound -work, and that if MacMillan came on the job, there would be a work stoppage. Later that day Stack reassigned Dade's sound installation work to O'Donovan. We conclude that Disney Was- Respondent's agent.' Respondent does not deny his status of agent, but urges that in speaking to Stack, as recounted above, he was acting as an individual and not in his ap- pointed role of union steward. We reject this contention. While Disney's comment that he would not work with Dade may have re- flected his own purely personal feelings in the matter, his further statement about a work stoppage went beyond any individual con- siderations. That statement was, in our opinion, a clear threat to use his authority as steward to lead a strike of Respondent's members at the site, if Dade performed the sound work. Based on his other comment that Respondent had members of its own who performed this work, it is clear that Disney's purpose in making this threat was to force Coker to cease doing business with Dade and reassign the sound work to a firm employing Respondent's members. Moreover, the threat succeeded in this objective. Accordingly, we conclude' that Respondent, by the threat of its agent, Disney, violated Section 8 (b) (4) (ii) (B) of the Act." 3. The Publix warehouse job Publix Markets, Inc., was having a warehouse built in February 1963. Publix assigned its sound and communication work to Coker, 8 Local 3, International Brotherhood of Electrical Workers (New York Telephone Com- pany), 140 NLRB 729, 740, enfd. 325 F. 2d 561 (CA. 2) ; Local Union 825, International Union of Operating Engineers ( Carleton Brothers Compan y), 131 NLRB 452, 455. 4 See footnote 4, Supra. s Local 28, International Stereotypers' and Electrotypers' Union of North America, AFL-CIO (Capital Electrotype Company, Inc.), 140 NLRB 480, 484. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which subcontracted certain installation work to Dade. Kammer & Wood, which employed members of Respondent, was the electrical contractor. Stack, Dade's MacMillan, and Oliveira went to the jobsite on Feb- ruary 4. Stamp, Respondent's shop steward for Kammer & Wood, approached them and asked to see the union cards of MacMillan and Oliveira. After seeing that their cards had been issued by CWA, Stamp walked away and sought out Goldsmith, the Publix construc- tion superintendent. Stamp told Goldsmith that CWA men were doing the sound work on the job, that he thought the sound work should be done by IBEW members, and that he would not work with CWA men. In a later conversation on the same day in the presence of Stack and Oliveira, Stamp repeated that if the CWA men came on the job, he would have to leave. Stack, MacMillan, Stamp, and Goldsmith then went to find Newsom, the chief Publix official at the jobsite. Stamp told Newsom that Respondent had unemployed mem- bers who could and should do the work. He said his feelings were personal and that he could not work with anyone not referred through the hall. Goldsmith then observed, "If that man [goes] all the other electricians will go, they will get sick, they will start drop- ping like flies and then leave." Newsom then turned to Stamp and asked him if Goldsmith was right, to which Stamp replied, "That's right, as far as I know it probably is, but I don't know exactly what taken away and given instead to Dick Williams Sound, Inc., which they will do." Thereafter, Dade's assignment at the Publix job was employed Respondent's members. We conclude that Stamp was an agent of Respondent at the site.9 We further conclude, under all the circumstances, that his several statements that he would not work with CWA personnel were an un- disguised threat to lead a walkoff of Respondent's members from the site. Goldsmith so understood them, and Stamp specifically con- firmed that understanding. For these same reasons, we reject Re- spondent's contention that Stamp spoke as an individual rather than as a job steward. We also find, on the basis of the other comments by Stamp in the presence of representatives of the various employers at the site, that the purpose of his threats was to force and require Coker to cease doing business with Dade. Moreover, these threats succeeded in that objective. Accordingly, we find that by the aforesaid conduct, Respondent through its agent, Stamp, violated Section 8(b) (4) (ii) (B) on Feb- ruary 4, 1963, by threatening and coercing the employers at the site, particularly Coker, with an object of forcing these employers to 9 See footnote 4, supra. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 437 cease doing business with Dade.10 We likewise conclude that Re- spondent, by the refusal of its agent, Stamp, to perform services, has also thereby violated Section 8(b) (4) (i) (B) of the Act. 4. The Pan American Hospital job In the early part of 1963 the Pan American Hospital was being constructed. The electrical subcontractor was Kammer & Wood, Inc. (herein called Kammer), which employed members of Respondent. Pan American gave the sound and communication work to Coker and Coker, in turn, reassigned certain installation work to Dade. Dade's MacMillan and Oliveira came to the site on February 6, 1963. Taylor, a journeyman electrician and a member of Respond- ent, promptly confronted them and asked to see their union cards 11 in the same manner as Respondent's members or stewards had done at other project sites. Learning that MacMillan and Oliveira were CWA men, Taylor sought out Harrison, the Kammer foreman, who was also a member of Respondent. Harrison was speaking with Coker's Stack When Taylor found him. Taylor told Harrison, in Stack's presence, that "they" were on the job, that "we" do not recog- nize their jurisdiction and that "we" had better check. Harrison left Stack and called the Respondent's hall. He returned and stated he was unable to reach anyone. Harrison checked the card of either Oliveira or MacMillan on this occasion. Everyone then went to lunch. After lunch, all of the electricians, including Harrison, left. They remained away from the job for the next 21/2 days. Harrison and two or three others went to Respondent's hall on February 7 and told Business Agent Albury what had transpired the previous day. Albury, according to Harrison, told them only to go back to work. There is no evidence, however, that they returned to work until the following Monday, February 11. MacMillan and Oliveira returned to this job on February 19, and again Respondent's electrician members walked off. Thereafter, for a time, an arrangement was made among Stack, Brush, Kammer's work superintendent (also a member of Respondent), and Sullivan, an electrical engineer, that MacMillan and Oliveira would work only evenings and the electricians would work during the day. However, on March 4, MacMillan and Oliveira came to work dur- ing the day and worked most of that week. All of Respondent's electrician members, including Harrison, again walked off, working 10 Local 28, International Stereotypers' and Electrotypers' Union of North America, AFL- CIO (Capital Electrotype Company, Inc ), supra; Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters District Council, etc ., ( The Berti Company ), 143 NLRB 872. 11 We correct the Trial Examiner's finding that Taylor only checked cards of Dade's CWA employees at this site . The record reflects that Taylor also checked the CWA cards of RCA employees doing work on this project. 438 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD only 10 hours during the entire week-7 hours on Marcli 4 and 3 hours on March 5. They remained away from the job all day, on March 6, 7,. and 8, 1963, even though work -remained to be done by Kammer at the site. Kammer did not authorize Respondent's mem- bers to be away from the site any of those days. Charges having been filed by Dade, a Section- 10 (1) injunction hearing was held in the U.S. District Court on March 7, and an in- junction was issued on March 8. On March 11, a new crew of elec- tricians was sent by Respondent and,commenced work on the,job. Members of the; previous crew were sent by Kammer to another job. While the record does not disclose that any steward or other agent of Respondent actually led or participated in the various stoppages by its members at the Pan American job in February and March 1963, we conclude, nonetheless, that Respondent induced and encour- aged its members to take such action. It is well established that inducement may take many forms,12 and it- is not limited to such obvious acts as direct orders, threats, or promises of benefit by union officials to the rank and file. An appeal by a union to its members to protect its work jurisdiction is also a form of inducement.13 Although there is no evidence that Respond- ent made a direct appeal in this regard to its members at this site, the often-voiced opposition of its agents to, and the example of its stewards and members striking in protest of, Dade's performance of sound work at other, sites had the same effect.14 Thus, as recounted above, on some four or five occasions at various construction jobs prior to the first incident at the Pan American site, Respondent's stewards or its business agent made it clear that they strenuously ob- jected to Dade's CWA employees performing work in Respondent's claimed jurisdiction and that work stoppages by Respondent would result if such work were not taken away from Dade and its CWA personnel. On at least three prior occasions during this same period, stoppages in fact resulted over this same dispute. From the fre- quency of these incidents, we think it manifest that all of Respond- ent's members were well aware of their union's feelings as to Dade's CWA crew and the interest in protecting Respondent's work juris- diction which underlay such feelings 15 The, incidents at the Pan American site further bear out this conclusion. Thus, Taylor, a rank-and-file member, promptly confronted Dade's MacMillan -and - 12 International Brotherhood of Electrical Workers, Local 501, et al. v. N.L R.B. ( Samuel Langer), 341 U.S. 694, 701-702. 13 See Local 598, Plumbers and Steamfitters (Kennewick ) et al. (McDonald-Scott & Asso- =ciates ), 131 NLRB 787; Local 3, International Brotherhood of Electrical Workers (West- ern Electric Company, Incorporated), 141 NLRB 888, 893. 14 Local 28 , International Stereotypers' and Electrotypers' Union of North America (Capitol Electrotype Company, Inc.), supra; Local 756, International Brotherhood of Electrical Workers et al. (The Martin Company), 131 NLRB 1010, 1017. 15 Id LOCAL 349,'INT'L BROTHERHOOD ELECTRICAL WORKERS 439 Oliveira when they-first came to the Pali American site in February and asked to see their union cards.' Learning that they were 'CWA members, he quickly informed Harrison of their' presence and ad- vised Harrison of his own understanding that Respondent did not recognize CWA's jurisdiction. - Harrison checked the card of Mac- Millan or Oliveira and tried to call Respondent's hall., Even though he was unable to reach anyone there and even though it appears that no other member present did so he and all the other members walked off the site shortly thereafter: On at least two -subsequent occasions at this site Respondent's members, confronted by Dade's CWA per- sonnel coming'onto the site, repeated this performance:" When asked to explain their actions at the hearing, Taylor and Harrison testified that they had sought to protect Respondent's work jurisdiction, viz, they would not work alongside CWA employees who were doing work in Respondent's claimed jurisdiction, particularly at a time when Respondent's members were out of work.1e On the basis'of all the foregoing, particularly when considered against the background of Respondent agents' conduct in 'connection with the related work stoppages over this same dispute between Respondent and Dade, we conclude that Respondent is also responsible for the strike. at the Pan American site. We conclude, therefore, in the circumstances of this case, that Re- spondent was responsible for the work stoppages at this site 17 and that an objective of such stoppages was to force and require Coker to cease doing business with Dade."' Accordingly, we find that Re- spondent thereby violated Section 8(b) (4) (i) and (ii) (B) of the Act. 5. The Lincoln National Life job The Lincoln National Life project involved the construction of an office building. Lincoln awarded the sound and communication work to Electronic Wholesalers, Inc., which in turn contracted certain of the sound installation work to Dade. The electrical subcontractor was Kammer & Wood who assigned an electrician named Laschower and occasionally a helper to perform its work at the site. 11 Harrison further testified that Naiman , another rank-and-file member at the Pan American site, gave the same reason when he walked off on one occasion. 17 Members Fanning and Jenkins dissent from this finding. They cannot agree that Re- spondent must be held accountable for the conduct of its members solely on the ground that the evidence establishes that authorized agents of Respondent induced work stoppages at other locations. The inference that Respondent, in fact, caused a work stoppage at the Pan American Hospital job is equally warranted with respect to the incident at Lincoln National Life, which involved the same dispute between Respondent and Dade. There, however, the Board majority finds that Respondent is not responsible for the threats of one of its members even though these threats are against the background of other threats of Respondent's agents at other locations. 'B See Local 598, Plumbers and Steamftters (Kennewick ) et al (McDonald-Scott & Associates ), supra; Local 3, International Brotherhood of Electrical Workers (Western Electric Company, Incorporated ), supra. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged that Respondent by its officers and agents, including Laschower, informing various employers at the Lincoln project that Respondent would not work with Dade at that site, threatened, coerced, and restrained these employers with an object of forcing them to cease doing business with Dade. On January 17 and again on January 21, 1963, Laschower, when confronted by the Dade CWA personnel coming on the site, threat- ened officials of other employers that he would leave the site, stating that he could not work with the Dade employees because he con- sidered them to be nonunion."' Laschower's statements resulted in the removal of the Dade employees from the site on both occasions. The Trial Examiner concluded that Laschower was a steward and that Respondent, by the foregoing threats of Laschower, violated Section 8(b) (4) (B) of the Act. Respondent excepted to these find- ings, and we find merit in these exceptions. Contrary to the Trial Examiner, we do not believe that the evi- dence supports the conclusion that Laschower was a steward. Las- chower testified that he had never been appointed to that position and his testimony was not rebutted nor was it discredited by the Trial Examiner. While it appears that Respondent's constitution and by- laws provided for automatic appointment of the senior journeyman at the site as steward, in the event the Union made no formal ap- pointment of one, Apte gave unrebutted testimony that the automatic appointment system had not been followed for a number of years. We find, therefore, that Laschower was not a steward and that Re- spondent is not responsible on such basis for his several threats to walk off the site. Accordingly, we shall dismiss that part of the complaint which alleges that Respondent violated Section 8(b) (4) (B) of the Act at the Lincoln National Life project. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Re- spondent, Local 349, International Brotherhood of Electrical Work- ers, AFL-CIO, its officers, agents, representatives, successors, and as- signs, shall : 1. Cease and desist from : (a) Engaging in or inducing or encouraging any individual em- ployed by Burns & Yaeger, Kammer & Wood, Inc., R. L. O'Donovan, 'Olt does not appear that Laschower ever carried out any of his threats to leave the Lincoln site. His only recollection of any absence from this job was when he was sent by Kammer to another project for about a day shortly after the incident of January 17. The testimony of other witnesses did not contradict Laschower 's recollection on this point. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 441 or by any other employer, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services, where an object thereof is to force or require J. M. Coker, Inc., or any other person engaged in com- merce or in an industry affecting commerce, to cease doing business with Dade Sound and Controls. (b) Threatening, restraining, or coercing Burns & Yaeger, Kam- mer & Wood, R. L. O'Donovan, Richard S. Flink, Inc., J. M. Coker, Inc., Village Green Crown Lanes, Inc., Miami Laundry and Dry Cleaning Co., Publix Super Markets, Inc., Carl Kovens Construction Corporation, Pan American Hospital, Fryd Construction Corpora- tion, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require J. M. Coker, Inc., any of the aforesaid employers, or any other per- son, to cease doing business with Dade Sound and Controls. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in Respondent's business offices and meeting halls in Miami, Florida, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 12, shall, after being signed by Respondent's authorized rep- resentative, be posted by Respondent immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to each of the employers named above for their information, and, if any or all of them are willing, for posting by each of the said employers, at all locations where no- tices to their respective employees are customarily posted. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith.20 IT IS HEREBY FURTHER ORDERED that the complaint be, and is hereby is, dismissed insofar as it alleges that Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act by the activities of its members at the Lincoln National Life Insurance project. 20 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 349-, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in or induce or encourage any individuals employed by Burns & Yaeger, Kammer & Wood, Inc., R. L. O'Donovan, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal to work in the course of his employment, to use, manufacture, proc- ess, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, and WE WILL NOT threaten, restrain, or coerce J. M. Coker, Inc., Burns & Yaeger, Kammer & Wood, Inc., Richard S. Flink, Inc., Village Green Crown Lanes, Inc., R. L. O'Donovan, Miami Laundry and Dry Cleaning Co., Publix Super Markets, Inc., Carl Kovens Construction Corporation, Pan American Hospital, Fryd Construction Corporation, or any other person engaged in commerce or in any industry affecting commerce, WHERE, in either of the foregoing instances, an object is to force or require any of the aforesaid employers or persons or any other person engaged in commerce or in an industry affecting commerce to cease doing business with Dade Sound and Controls. LOCAL 349, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,' AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees, may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa, Florida, Tele- phone No.,223-4623, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE On February 7, 1963, ,Dade Sound and Controls , herein called Dade, filed a charge alleging violations of Section 8(b) (4) (i ) and (ii) (B) against Local 349, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Un- ion. On March 15, * 1963, and at various succeeding dates the General Counsel issued a complaint and a series of amendments to the complaint alleging violations of Section 8(b) (4) (i) and (ii) (B) of the Act. Respondent has denied the com- mission of the unfair labor practices alleged. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 443 The case was heard before Trial Examiner Ramey Donovan on April 29 and 30 and May 1, 1963, in Miami; Florida. The General Counsel and the Respondent were represented by counsel and participated fully in the hearing. Briefs were received on June 13, 1963. FINDINGS AND CONCLUSIONARY FINDINGS 1. THE BUSINESS OF THE COMPANIES INVOLVED Dade is a small firm that installs sound and speaker equipment that is used in intrabuilding communication, for instance, a nurses' call system in a hospital. As far as appears, the officers and employees of Dade are limited to two men, Oliveira and MacMillan. Both of these individuals are technically skilled in their type of work. They are members of the Communications Workers of America, AFL-CIO, herein called CWA. The complaint refers to five construction jobs at which the alleged unfair labor practices occurred. All these jobs are in the general Miami area. There is the Village Green Crown Lanes job (Village) which involves the construction of bowling alleys. Richard S. Flink, Inc., was the general contractor for the con- struction of the bowling alleys. The electrical subcontractor was Burns & Yeager. Village contracted certain sound and communication work to J. M. Coker, Inc., and Coker awarded the installation work on its contract to Dade. The Miami Laundry and Dry Cleaning Co. job involves the renovation and construction of a laundry building. M. R. Harrison Construction Co. was the general contrac- tor. The -electrical subcontractor was R. L. O'Donovan. Miami Laundry gave the sound and communication work to Coker and the latter gave the installation work on its ,contract to Dade. The Lincoln National Life building project entailed the construction of an office building. Arkin Construction Co., Inc., was the general contractor. The electrical subcontractor was Kammer & Wood, Inc. Lin- coln National awarded the sound and communication work to Electronic Whole- salers, Inc., which in turn awarded certain installation work in its contract to Dade. The fourth job was the construction of a warehouse for Publix Markets, Inc. Carl Kovens Construction Corporation is the general contractor on the Publix job. Kammer & Wood is the electrical contractor on the job and the sound and communication work was given to Coker by -Publix. Coker in turn gave certain installation work on its contract to Dade. The last of the projects that concern us is the construction of a hospital building for Pan American Hospital. Fryd Con- struction Corporation was the general contractor. The electrical subcontractor was Kammer & Wood. Pan American gave the sound and communication work to Coker which in turn gave the installation work on the sound and communication equipment to Dade. - The General Counsel in his brief bases jurisdiction upon a total of the inflow of the secondary employers at the five aforementioned construction projects.' The total inflow, as found in the record, is: Dade-$1,600; O'Donovan-$10,310; Kammer & Wood-$14,935; Electronic Wholesalers-$1,512; Coker-$24,527, for a total of $52,884. The Madison case, cited by the General Counsel, supports the proposition that the operations of secondary employers on separate projects warrant the assertion of jurisdiction when the combined total of all such operations exceeds $50,000.2 - There are over 25 contractors and subcontractors named in the complaint. In addition to his basic jurisdictional position aforedescribed, the General Counsel adduced evidence from some of these employers that in some instances offered additional grounds for asserting jurisdiction. On the Village bowling alley job, according to General Contractor Flink, the pinsetters were secured from Brunswick in Michigan and were 60 in number, costing "half a million dollars a piece." 3 1 The Respondent contests jurisdiction. 2 Madison Building & Construction Trades Council et al (Wallace-Hildebrandt & John Kiefer, d/b/a H & K Lathing Co.), 134 NLRB 517. The true antecedent of Madison appears to be Commission House Drivers, -etc. (Euclid Foods, Incorporated, d/b/a Bondi's Mother Hubbard Market), 118 NLRB 130, although not cited in the Madison case See International Brotherhood of Teamsters, etc. (McAllister Transfer, Inc.), 110 NLRB 1769. Cf. Truck Drivers Local Union No. 649, international Brotherhood of Teamsters, etc. (Jamestown Builders Exchange, Inc.), 93 NLRB 386. 3 The transcript of testimony so reads. Since $30 million appears to be a very high figure for pinsetters It is possible that there was an error in transcription. However, even if the figure is reduced to $50,000 per pinsetter, the total for 60 would be $3 million. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheffield Steel Products secured steel plates, joists, and beams in an amount of $200,000 from outside the State for the Publix job. Fuel Oil Equipment Company furnished $9,936 worth of materials from outside the State to the Pan American job. McDonald Air Conditioning furnished equipment and materials totaling ap- proximately $47,829 from outside the State to the Lincoln National job. Virginia Steel Division of Bethlehem Steel Corporation furnished steel products from outside the State totaling $4,756 to the Lincoln National job and $3,525 to the Miami Laundry job. On all the evidence and on the authority of the cases cited, it is found that the combined indirect inflow of the four secondary employers (O'Donovan, Kammer, Electronic, and Coker) exceeds $50,000 and thus meets the Board's jurisdictional standard.4 If. THE LABOR ORGANIZATIONS INVOLVED The Respondent and CWA are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The General Counsel introduced into evidence a prior Board Decision and Order against Respondent, dated September 5, 1962, and a decree by the Court of Ap- peals, Fifth Circuit, enforcing such order, dated October 17, 1962.5 This Decision and Order and decree were entered into pursuant to a settlement agreement with the Respondent. The Trial Examiner has been requested to take administrative notice of this prior proceeding. It is pointed out by the General Counsel that in the prior case "Respondent solemnly undertook to cease and desist from secondary conduct for the purpose of destroying Dade Sound in the future. The record evidence in this proceeding [the instant case] shows that this solemn undertaking by Respondent has not been fulfilled." In view of the terms and scope of the outstanding court decree enforcing the Board's order, and the proximity of time, the question arises why the General Counsel did not proceed against Respondent in contempt if the evidence presented in the instant case shows, as the General Coun- sel contends, that Respondent had not ceasd its illegal "secondary conduct for the purpose of destroying Dade Sound ..." The General Counsel, in effect, is saying that Respondent by the conduct described in the instant complaint is violating the order of the Board and the decree of the court but that the matter is being dealt with by issuing the instant complaint and hopefully securing another Board order and court decree. I have some trouble in following this approach. If the allega- tions of the instant complaint are sustained by the record, it is difficult to under- stand why the prior Board order and court decree are not being violated and the General Counsel has, indeed, stated that this is the fact.6 At some point, the time-consuming processes of the Board should be brought to a head and if viola- tion of a Board Order and court decree is not the appropriate circumstance then we are simply engaged in an endless and futile series of issuing complaints, conduct- ing hearings, and issuing reports, decisions, orders, and securing decrees. The General Counsel states that "the Board's prior Decision and Order against this Respondent must be evaluated by this Trial Examiner as the agent of an administrative agency experienced in labor relations problems." Other than the evaluation previously expressed I find little to evaluate. The Decision and Order were made pursuant to a settlement agreement. Additionally, the Decision con- 4 The business of Dade when added to the total would increase the amount. 5 The order directs Respondent to cease and desist from : In any manner or by any means engaging In, or inducing or encouraging any in dividual employed by M. R. Harrison Construction Corporation, Miller Electric Co., J. M. Coker [-Harrison and Coker are also involved in the instant case as contractors] or by any other person engaged in commerce . . . to engage in a strike or a re- fusal . . . to use, manufacture, process, transport, or otherwise handle or work on any goods, materials, or commodities, or to perform any services, or in any manner or by any means threatening, coercing or restraining [Harrison, Miller, Coker] or any other person engaged in commerce . . . where in either case an object is to force or require [Harrison, Miller, Coker] or any other person engaged in com- merce . . . to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Dade Sound and Controls e By the same token, if there has been no violation of the decree, the basis for the issuance of the complaint presents itself. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 445 tains no findings of fact other than on jurisdiction and on the fact that the Respond- ent is a labor organization. The Decision then concludes with an order, pre- viously described. More helpful background is furnished by witness Finn, director of Local 3107, CWA. He testified that his union had signed a contract with Dade in December 1961 and that MacMillan and Oliveira of Dade were dues-paying members of CWA. Sometime in 1962, MacMillan had informed Finn that he was having trouble with Respondent about MacMillan working on a job. At a later date, apparently in 1962 also, a conversation took place between Finn and Apte, a business agent for Local 349, IBEW.? Apte asked Finn what he was "going to do with the sound men, was I [Finn] going to pull them off the job." 8 Finn replied that he would not pull the CWA men off the job and that they had the right to work on the job. Apte then said that if Finn did not remove the CWA men, "his [Apte's] men would be walking" (walking off the job and not work- ing). Finn adhered to his position. Apte accused CWA of raiding IBEW and Finn denied that. On direct examination by Respondent's counsel, Apte was asked in general and without reference to any dealings with Finn, "Does the union or has the union [Local 349, IBEW] ever taken any position about the men working or not work- ing with MacMillan. A. No, Sir." Following this examination, Apte was asked whether any position had been taken about the men working or not working with Dade Sound. He again replied, no. Upon further questioning, the witness ad- mitted that when Dade was working on the Miami laundry job he spoke to Mathes, president of Local 3107, CWA. Apte, when asked whether Mathes had not re- ferred him to Finn, said that Mathes did refer him to another man whose name he could not recall. Apte said that he spoke to this other man. Q. And didn't you tell him the work that was being done by Don MacMil- lan was under IBEW jurisdiction? A. I am very sorry, but I don't recall that conversation at all. The witness said that the reason he spoke to Mathes and the other man was because "there was some problems on the job, at that time, and the [IBEW] men were trying to walk off the job ..." and Apte had never heard of Dade Sound but Mathes of CWA had been mentioned and that Apte's call "had to do with the [IBEW] men wanting to leave ...." Apte said that after speaking to Mathes he told the men to return to work and they did. He was then asked: Q. Was this before or after the charge was filed, that they should go back to work? A. That was right at that time.9 The evidence persuades me that around May 1962, Apte spoke to Finn as des- cribed by the latter in his testimony. As an agent of the Union, Apte expressed strong opposition to CWA men, Dade Sound, performing sound and communica- tion work on a construction job, and accused the CWA of encroaching upon and raiding work claimed by Local 349, IBEW, to be within its jurisdiction. Apte informed Finn that if the CWA men were not removed the Local 349 men would not work. On this particular job in that period and subsequent to Apte's state- ments to Finn aforedescribed, the Local 349 men continued to work. According to Apte, 349 men continued to work because he told them to do so and apparently this is the fact. Implicit in this aspect , is a manifestation of Local 349's control over its members. The members worked when so advised or directed by the business agent and, presumably, the opposite is true, they will not work if so directed. As to why Apte advised the members to work on that occasion, there is some indication that the filing of the prior charge "at that time" may have been a 7 Apte had spoken to Mathes, president of Local 3107, before speaking to Finn. 8In the context of the record in this case where Dade was generally referred to by witnesses as Dade Sound and where workers, such as MacMillan, Oliveira, and men in the IBEW who were skilled in sound and communication work, were referred to as "sound" men, I find that Apte in his conversation with Finn was referring to MacMillan or Oliveira or both when he spoke to him about the "sound men." 0 The charge in the prior case, previously referred to, was filed in May 1962. Finn, in the instant case, testified, on May 1, 1963, that the conversation with Apte, aforedescribed, occurred about a year ago. Apte testified, on the same date, May 1, 1963, that his con- versation with Mathes and another man, to whom Mathes referred him on the matter of Dade Sound, took place about a year ago. One of the reasons Apte gave for not recalling a conversation with Finn was, "Well, that's been approximately one year ago, hasn't it." 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factor. But whatever the motivation for not implementing, at that time, the state- ment previously made by Apte to Finn, Apte never repudiated, to Finn, Apte's position regarding the Dade CWA men nor his warning about the Local 349 men not working.10 B. The Village Green Crown Lanes job Village gave Coker a contract to install a paging system and an intercommuni- cation system on its bowling alley construction job. Coker contracted with Dade for the latter to perform some of the installation work on the aforementioned systems. Bums & Yaeger was the electrical subcontractor on the job." Burns employed Local 349, IBEW, electricians and Burns and Yaeger, personally and as individuals, were members of the same union. Statcavage, a representative and employee of Coker, testified that he went to the Village jobsite on July 27, 1962, with MacMillan of Dade for the purpose of making certain work estimates regarding the Coker and Dade work.12 This was the first time that Statcavage came on the job with someone from Dade. Statca- vage was acquainted with Logan, who was the electrical foreman on that job for Burns.13 In a conversation between Statcavage and Logan on this occasion, Stat- cavage introduced MacMillan to Logan. The latter asked if MacMillan was the man who was going to do the installation work. Statcavage said, yes. Logan asked if MacMillan was a 349 man and MacMillan replied, no, but he was a CWA -cardholder. Logan said that there might be "some difficulty" and "I don't know 10 Evidence of disposition and motivation still exists and merits consideration in the following circumstances: A says to B, I am going to beat you unless you do so-and-so. B does not do so-and-so. A does nothing at the time although he sees B on several sub- sequent occasions. Perhaps A did not mean what he had said or perhaps there were too many people around when he saw B or perhaps the local authorities were conducting an investigation of various other alleged breaches of the peace during the period in question. Some months later, B Is found in a battered condition. No witness saw the battery. A's guilt or innocence would be properly considered in the light of his prior statement, together with all other evidence in the case. n Fhnk was the general contractor. 12 Events in July 1962, like those in May 1962, are considered as background since they occurred more than 6 months prior to the filing of the charge. is Logan was a member of 349. He was appointed as foreman by Burns on the Village job. Logan, like the other journeymen members of 349, worked for various employers as work was available. On one job the 349 man might simply work as a journeyman elec- trician; on the next job he might be the foreman; on some jobs where the journeyman was working he might also be the union steward. The journeyman, whether designated as foreman or not, performed journeyman's work and as foreman was a working foreman. The foreman is hourly paid and his rate, like that of the journeyman, is fixed con- tractually in the union agreement as the result of negotiation carried on by the Union on behalf of all its members. The foreman's hourly rate is higher than that of a journey- man, perhaps about 25 cents an hour higher in most instances. When acting as foreman the electrician sees to it that the other electricians perform their work; he signs for electrical supplies and equipment delivered to the electrical segment of the construction work ; he reads and consults blueprints in order that the work may be done accordingly, he possesses disciplinary power over the electricians working under him and he generally is responsible for the satisfactory performance of the work that the electrical contractor has undertaken to perform. These working foremen have a dual loyalty, part to the immediate employer for whom they are working on a particular job, and part to their union. As far as the foreman and the other members of the Union are concerned, the Union is the source of their jobs. They may work for an employer for a few days, weeks, or longer, either as a foreman or as a journeyman. They obtain their jobs through the Union. When one job is completed, it is the Union that refers them to another job. The Union is not only the source of jobs but it negotiates the wages for the foreman and the others. As the record in this case shows, the foreman acts like any other union member on matters of union work jurisdiction and in such circumstances his responses as a union member and his conduct as a union member outweigh any obligation to the employer. On none of the jobs did the foreman (or any of the electricians for that matter) have any dispute with his own employer, the electrical contractor. However, the foreman walked off the job as readily as any other members of the Union and in no instance did he remon- strate with the strikers or seek to keep them working for their employer, who was also employing him as a foreman. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 447 if this is going to work out." Logan then went over to McLain,14 the Local 349 job steward, who was working nearby. Logan and McLain came back to Statca- vage and Macmillan. When McLain was apprised that MacMillan was the man Statcavage had selected to perform the Coker work, McLain said, "he [MacMillan] just can't work out." Statcavage asked if anything could be done about checking the matter further. McLain walked away and went to the tele- phone which was in sight but out of earshot. When, after a time, Statcavage observed McLain hang up the telephone, he asked him what the "scoop" was or what the story was. McLain replied, "You'll find out" and walked away. Statca- vage and MacMillan went about their work of checking locations of outlet boxes and conduits and estimating regarding the installation of the sound equipment, which of course necessitated a consideration of the location of other electrical connections. In the course of doing this work, Statcavage and MacMillan were talking with Adams, the job superintendent, about the location of a closed circuit television camera.15 Logan came up and said the electricians were walking off the job, "we have to leave" and he turned around and left; or, Logan said, the electricians were leaving the job and that he had to go also and he walked away.16 Burns, of Burns & Yaeger, testified that he had 10 electricians working on July 27, 1962, and that they were supposed to work a full day. Of the 10, however, all worked only 5 hours, with the exception of an individual named Reeves who worked 51/2 hours. Statcavage testified that as a representative of Coker he subsequently awarded the installation work to Burns & Yaeger (instead of Dade) as a result of the aforementioned difficulty. In the first part of August 1962, Statcavage testified that he asked McLain why he would not work with the Dade people. McLain said that whatever he did, if he felt like walking off a job, it was personal and "if I feel like walking off the job I'll walk off the job and the other men will just follow suit." After Statcavage had given the work to Burns, that firm performed a portion of the work. Later, because costs were moving higher than anticipated, Statcavage again awarded the work to Dade 17 On September 13, 1962, Statcavage, MacMil- lan, and Oliveira came to the job shortly before noon. Logan came up to Statca- vage and asked if "they," MacMillan and Oliveira, were coming on the job. Stat- cavage said they were. Logan said, "Well, I will have to leave because I have two strikes against me now and I can't afford anything like this." A few minutes later at noon, Statcavage, MacMillan, and Oliveira ate lunch on the jobsite. No electri- cians worked the balance of the day or the next day which was Friday, September 14.18 Logan was not called as a witness at the hearing. Albury, one of Local 349's business agents,'° testified that he considered "sound" installation (the type of work performed by the Dade people)20 part of 349's jurisdiction. The witness stated that he was familiar with a 349 bylaw which provides that one of the duties of 14 Thus spelled in the transcript of hearing. Since both the General Counsel and Re- spondent's counsel in their briefs spell the name as "McClain," the latter may be the cor- rect spelling but in the absence of a correction the transcript spellink will be followed. 15 Statcavage described Adams as job superintendent. MacMillan referred to him as superintendent of construction . The record does not show by whom Adams was employed. The three possibilities, in view of his title, appear- to be that he worked for Village or Funk or possibly Burns. I believe it more likely that Adams was employed by either Flink, the general contractor, or by Village, the owner of the project. 10 Both Statcavage and MacMillan testified regarding the Village job incidents and their testimony is substantially mutually corroborative. 17 Statcavage himself provided personal general supervision of the work when per- formed either by the Burns people or the Dade people. 1B Burns was asked regarding September 13, 1962, "Were you supposed to have em- ployees on the job on that day? A. Yes, sir, I will say this, that there was work there for them " He also said that "there would have been work there for them" on Septem- ber 14 but no one worked . Burns' records indicated that Logan had been on the job on September 13 but the hearing record does not show how many hours Logan worked. Statcavage testified that the electricians left the job after lunch on September 13. He said that he did not see Logan actually leave "but I know they weren't there the rest of the day." MacMillan testified that after lunch on the 13th he saw no electricians working on the job nor did he see any on the 14th. 19 Callahan is the bead business agent or business manager. Apte and Albury are also business agents or assistant business agents. 'Local 349 has some members who are also qualified ' to perform this type of work. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a steward was to report any encroachment upon the jurisdiction of the Local. Al- bury stated that he had had one telephone conversation with Steward McLain regarding the bowling alley job (Village). The steward called him one morn- ing, shortly after 8 o'clock, sometime around the end of the year. Albury knew ,that McLain was the job steward and that he was working for Burns. When McLain telephoned he simply said, according to Albury, that there were some non-union men working and he wanted another job. Albury states that he told McLain that the "best thing" was for him to go out on the job and that, if he did not, he, Albury, would have to replace him. Because McLain did not come to the Local's office, Albury testified that he concluded that McLain went back to work. Albury also said that he was unaware of any work stoppage since McLain told him of none and the contractor did not report one. Other than as stated above, Albury asserts that he had no information about the job and he did not ask McLain who the nonunion men were or what type of work they were doing. With respect to a question whether he was familiar with a 349 bylaw that provides that "in the case of any trouble on the job its shop steward shall immediately notify the business manager," Albury stated that, because a man wants to quit a job or because there is a Work stoppage, this was not trouble, "not as far as I am concerned." He also stated that 349 had no rule or policy with reference to working with nonunion people or with CWA or Dade. McLain testified that when he was employed on the Village job in the period July-September 1962, his employer, Burns & Yeager, had initially indicated that they had the "sound" as well as the other electrical work. At McLain's sugges- tion, Burns, who apparently had a "sound" man elsewhere in their employ, ar- ranged to send that man to the Village job. McLain himself then, "I asked one of the others [another employer] to send me one [a "sound" man] and [so that] when the sound work came up [when the electrical and other work had reached a point at Village where it was appropriate to begin making the installing of the sound equipment] I'd have several sound men to do the job ...." The taking of the foregoing steps by McLain is reasonably attributed to the fact that as steward he was an important man on the electrical phase 'of the job and he took the steps calculated to protect the Union's jurisdiction over all work that it claimed.21 As steward, McLain was the representative of 349 on the job and his testimony, above, that he did thus and so in order that "I'd have several sound men to do the job" is to be understood as descriptive of his representative function. The witness also testified that as steward he kept the payroll time of the electricians on the job. This, of course, is a key factor in the pay of the men working on the job, including right to overtime pay and so forth.22 Although McLain was not precise as to dates, he recalled the incident which, from evidence previously described herein, occurred on July 27, 1962, at the Vil- lage job. He recalled that Logan had come over to him and had brought him back to where MacMillan and the others were; he also said that when MacMillan asked about his attitude toward MacMillan working, he told him, "You will find out" and he left the job shortly after that. McLain admitted that he knew who MacMillan was when he saw him on July 27. This was because McLain, as well as other 349 men, had, according to McLain, walked off a prior job where they were working for Miller Electric. This prior walkout was due to MacMillan's presence on that job. McLain said that there was some kind of a court proceeding in that matter and that he went back to work about a week later when the trouble had been "ironed out." 23 On that job, McLain at no time worked while MacMillan was on the job. After leaving the Village job on July 27, McLain states that he called the hall for the first time on the following morning. He spoke to Albury whom he knew personally and whom he described as a good friend of his. The witness states that the only information he gave Albury was that there were some nonunion men on the job and that he wanted another job. Albury asked him to go back to the 21 McLain had never worked for Burns & Yaeger before and his assumption of responsi- bility on the matter of sound personnel cannot be attributed to any personal relationship with the contractor. 22 McLain said that Logan, the foreman, also kept the time "but I keep the time pri- marily." According to the' witness, it is through his time records that "the hall" (the union officials, the union office) can "find out when a man was present or not present [on the job]." 23 Miller Electric is one of the employers referred to in the complaint in the prior case and in the Board's Decision and Order. There were legal proceedings in that case and t assume, from the circumstances, that the "ironing out" referred to these. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 449 job. As he was driving to the job after talking to Albury, McLain states that he passed a restaurant. There were four or five of the Burns 349 electricans there. Albury could not recall whether Logan was in the group. The men asked McLain where he was going or what he was doing. He said that he was going back to work and later on, on that day, these other 349 men returned to work.24 In the period after the return to work at Village in July 1962, McLain admitted that he might have said something to Statcavage but he could not recall what it was. When asked specifically, he said that he did not recall telling him that if he, McLain, left the job the other men would also leave. He said he had told Burns that if "these people" (MacMillan and Oliveira) worked on the job he would leave as he had done "the other day" (July 27) "and the other [349] men, I don't know for sure ... . McLain recalled that there was another occasion when he again walked off the Village job because of MacMillan's return to work. The witness on direct examin- ation referred to a second call he made to Albury, asking for another assignment and Albury said, "Well, I will have to replace you." On cross-examination McLain thought that there was only one occasion when he spoke to Albury. The latter also had testified to only one such call and his testimony on this aspect is credited. Again, on cross-examination, McLain stated that when he left the job the second time he could not recall whether anybody instructed him to go back or not. A careful consideration of the witnesses and their testimony persuades me that the description of events by Statcavage and MacMillan, heretofore set forth, is accurate and credible and I so find. Further conclusions are set forth in a later section of this report under that heading. C. The Miami Laundry job As we have seen, O'Donovan was the electrical subcontractor on the laundry job and Coker had received the sound contract directly from Miami Laundry. Coker, in turn, subcontracted the labor on its contract to Dade. In the last part of September 1962, Statcavage, of Coker, came to the jobsite with MacMil- lan.2i Statcavage spoke to Diaz, a 349 member, who was working on the job as O'Donovan's foreman. Statcavage said he would like to have Dade perform the installation of his sound equipment on that job. Diaz said that the electricians would discuss this among themselves and in a few days would let Statcavage know whether Dade could make the installation. About a week later there was another conversation on the jobsite. Present were Statcavage, MacMillan, Diaz, and Dis- ney, the 349 job steward. Statcavage asked what the decision was. Disney re- plied that he could not work with Dade "and that they [Local 349] had their own people and if Dade . came on the job that there would be a work stoppage." 26 MacMillian said that he held a CWA card and pointed out that 349 men did not object to working with the telephone people who were CWA. Disney said there were 349 men who could do the sound work. During this conversation, a 349 journeyman named Fonda, who had experience on sound installations, came up to report to Diaz that he had arrived on the job and that another sound man was on his way from the union hall. Statcavage asked Disney if there would be a work stoppage if the Dade men came on the job and Disney said there would be. Thereupon, on the same day, Statcavage gave the sound installation work to O'Donovan.21 Diaz testified that he recalled that Statcavage and MacMillan came on the job, asked him some questions regarding locations of various electrical outlets, and he showed them the locations. Statcavage told Diaz on this occasion that Diaz did not have to worry about MacMillan because MacMillan had a "ticket" (union card). Diaz testified that he, Dias, laughed "because I thought he was pulling my leg and I just said, `fine' " and that was the extent of the conversation. Three or four weeks later, according to Diaz, Statcavage and MacMillan came to the job with Hoskenitch, vice president of Miami Laundry. Hoskenitch asked Diaz if he would work with Statcavage's men on' this job and Diaz said, yes, and that Diaz 24 McLain testified that he had not told any of the men to leave the job on July 27. He stated that he left the job because it was one of his principles not to work with a non- union, non-AFL-CIO cardholder In his testimony he used these terms interchangeably and equated them. He testified that he placed MacMillan, who lie knew held a CWA card, in the aforedescribed category 25The testimony of Statcavage and MacMillan is in substantial agreement. 2O Disney's testimony indicates that he had checked the union card of MacMillan 27 O'Donovan employed Local 349 electricians. 7 70-0 7 G-G 5-v o f 14 9-3 0 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that he had a responsibility to Hoskenitch to see that his job was comple- ted. Statcavage asked if the other electricians felt the same way and Diaz said that he could not answer for the other men and Statcavage would have to ask them. Diaz states that he also told Statcavage that Diaz' men could not "walk off the job because of the Union." Diaz states that there was an electrician working in the area and he asked Hoskenitch if he would like to ask that man about the matter. Hoskenitch said he would. A little later that day Diaz encountered Hos- kenitch again and the latter said that he "would rather not take a chance ... " and asked Diaz to have O'Donovan put in a bid for the sound work. Statcavage affirmed at that point, according to Diaz, that he also wanted O'Donovan to bid for the sound work. Disney testified that in September some men came on the job to do the sound work. This was Disney's first "knowledge" of these men but he said that they had spoken to the foreman earlier that morning. Disney states that the aforemen- tioned men, with Hoskenitch, came over to him and asked if Disney would work with them and Disney then asked MacMillan for his union card. MacMillan showed him his CWA card. Disney said he would not work with them. In his testimony, Disney asserts that he had no discussion on this matter with other employees. He states that his employer, O'Donovan, eventually performed the sound work on the job. Disney testified that he checked the union card of the 349 man who came to the job to perform the sound work. He did not know who requested this sound man. The witnesses in this matter are all interested witnesses and this factor has been taken into account. Respondent's counsel asked Statcavage about the contents of an affidavit which apparently made no reference to conversations to which the witness testified. The Trial Examiner did not see the affidavit and it is not in evidence, so it is not easy to evaluate the apparent variation. However, I have given consideration to the aforementioned circumstances adduced by Respondent. A consideration of the testimony of the witnesses above mentioned persuades me that the description of two conversations, approximately a week apart, as given by Statcavage and MacMillan, is accurate. The initial effort by Statcavage and Mac- Millan to secure the consent of the foreman on the jobsite, as well as the effort made with respect to the steward, are consistent with what was done on the other jobs. The problem was, in the first instance, and primarily, one that Statcavage and Dade would seek to work out.28 If Hoskenitch entered the picture, it was, I believe, after the second conversation, although on the same day. It probably represented a last-ditch effort to enable Dade to perform its contract. It is likely that what ensued was that Diaz referred Hoskenitch to one of the electricians on the job, most probably Disney, the steward. In any event, , it is clear that what Hoskenitch learned confirmed the necessity of having the sound work performed by 349 electricians rather than by Dade if trouble in the form of a stoppage was to be avoided. D. The Lincoln National Life job Arkin was the general contractor on the Lincoln National job and Kammer & Wood was the electrical subcontractor. Lincoln National had awarded a contract for the installation of an automatic telephone switchboard to Electronic Wholesalers who in turn subcontracted the installation work to Dade. Herold, a salesman and contact man for Electronic, went to the jobsite around December 11, 1962. He testified that he spoke to Laschower, a 349 electrican who had been appointed electrical foreman on that job by Kammer. Herold told Laschower that Electronic felt that their telephone equipment should be installed by CWA men since they were skilled in that type of work. He asked Laschower if this was satisfactory and the latter said it was. About January 17, 1963, Mahieu and Herold of Electornic went to the jobsite.29 With them were Timmerman, an engineer of Tele-Norm, the company that had supplied the telephone equipment to Electronic, and Oliveira of Dade. They had the switchboard with them. This group found Laschower working at the jobsite. When Laschower saw them he said to Herold, "Hey, Buddy, you just threw a f- into me." 30 When asked what he meant, and when reminded that the matter had previously been cleared with him, Laschower said, "We are supposed to do this work." Laschower said that he had talked with a 23 Diaz admittedly laughed and evidently thought that it was funny when Statcavage told him that he, Diaz, would have no problem about working with MacMillan because the latter had a union card. 2D Mahieu was Herold's superior. 30 Both Mahieu's and Herold's testimony relates to this episode. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 451 349 electrician and had learned that the'349 men had performed this type of work on other jobs. The foreman also stated that Herold had not told him that it was the Dade people who were going to do the work. He said that he could not work with them because they were nonunion. Laschower's testimony is that prior to January he admittedly had a conversation with Herold about- the installation of the automatic switchboard. Laschower tes- tified, "I asked him if there were men who were going to be qualified to do it, union men, and he said, yes." When the Mahieu, Herold, Oliveira group came to the job in January, Laschower said he was introduced to them and they wanted to unload the switchboard equipment.31 Laschower states that he then said that he thought that he should do the unloading. Respondent's counsel thereafter asked the witness whether, after his earlier conversation with Herold, prior to the Janu- ary 17 incidents, he had learned "anything about these men [Oliveira]." A. Later, that they were CWA men. Q. Before you spoke to them, before you wanted to unload the entire board [the switchboard on January 17], did you learn anything about them? A. Nothing. Just when or exactly what Laschower claims to have learned about Dade or about CWA men or Oliveira is not clear. But it is fairly clear that Laschower objected to Oliveira performing the work when he and the others came to the job on January 17. A careful consideration of the witnesses and their testimony persuades me that the versions of Mahieu and Herold, heretofore set forth, are substantially credible. It also appears that Laschower had had no earlier problem about working on the job with or claiming the work of CWA telephone men installing a switch- board.32 I believe that the foregoing is the reason why, when Herold told Laschower in December that he was going to use CWA men to install his equip- ment, that Laschower agreed that this would be satisfactory. The jurisdictional distinction between CWA men installing a telephone switchboard and other CWA men installing an automatic Tele-Norm telephone switchboard might not be immediately apparent to •a 349 electrician and cause him to object on January 17, and reverse a prior acquiescence, unless there was a controlling intervening factor. That factor, the same as in the other jobs in this case, was that Laschower as a Local 349 member regarded Dade as nonunion. Returning now to January 17, we have seen the initial colloquy between Mahieu, Herold, and Laschower. The latter made it clear that he was not going to work with the Dade people and he himself testified that he said that he was going to leave. At this point there is some conflict as to whether Laschower suggested that 11 It is not clear how Laschower was introduced to the group or what he claims was said on this score. However, it is reasonable to assume that Oliveira was introduced either by name alone, or he was referred to as Dade, or as a CWA man, or as the man who was going to install the equipment, or as the union man who was going to install the equipment. 82 By Respondent's counsel: Q. . . . January 1963 .. do you recall any incidents when CWA men came to the job? A. Yes. Q. Men you learned were,CWA men? A. Right Q. . . . what kind of work were they doing? A. When they first came there? Q. Yes. A They were putting a telephone switchboard in. Q. Was this the sound men who later came to the job or just the CWA men or was this the telephone company men? A. The CWA men were there first, the telephone men were on the job first [putting in a switchboard as aforementioned]. • s e • f s s Q. Did you ever speak to any [telephone] lineman who had checked their cards? A. Before they came on the job, or after they got on the job? Q. After they got on the job3 A. The telephone men check in. [Checked them.] Q. And what did they tell you about that? A. That they belonged to CWA. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he call his union hall or whether Mahieu and Herold suggested this action. I believe that the latter is the fact and that Laschower agreed to call the hall and did so. Laschower and Apte both testified that the former called the hall and spoke to Apte. According to Apte, Laschower told him that there were people on the job doing his work and that he was not going to stay and work with them. Apte said that he had no objection to Laschower not working with the men referred to but that if he left the job and Kammer wanted replacements, Apte would be required to send them. Laschower's testimony is substantially the same. Mahieu encountered Laschower a few minutes after the latter had called Apte.33 Laschower said, "I'm sorry, I can't work." Mahieu asked him if he had called the hall. Laschower said that it had nothing to do with the ball, "it's up to me as to who I want to work with; maybe I will go fishing." Mahieu said that he did not want to cause any labor trouble and that he would lock up the switchboard in the building, take the Dade people off the job at that time, and would call Callahan, the head business agent of Local 349. Mahieu called Callahan, ex- plained the whole situation and problem to him, and said that all he was asking was that, from the engineering standpoint, he wanted the people of his choice to install his equipment. Callahan said that he was meeting with Kammer that afternoon and would talk to him about it. Later that afternoon Mahieu again called Callahan. The latter said that Kammer knew nothing about the matter. Mahieu telephoned Kammer and succeeded in reaching Brush, Kammer's superin- tendent or general foreman. Upon being told of the problem, Brush asked Ma- hieu if he could wait a few days since Brush thought that Laschower might complete his (Laschower's) work on the job in a few days. Mahieu expressed concern about the switchboard sitting around. Brush then said that he would pull Laschower off the job for a short period so that "you can send your man out there to install the switchboard then and then we will work something else out after that." A day or two later Brush sent Laschower to another job in order that the switchboard could be installed by Electronic and Dade.34 On January 21, 1963, MacMillan testified credibly that he came on the job, apparently to do some work in relation to the switchboard. Laschower asked him who he was an MacMillan said he was with Dade. Laschower said okay, and left. About 15 minutes later, Laschower returned and said that "Bob [Herold?] said you have some papers that would let you work on this job." MacMillan said yes, and Laschower asked to see the papers. MacMillan showed him the Board order and the district court injunction or the court of appeals decree in the prior case against Local 349. Laschower remarked, "They are kind of outdated, aren't they?" MacMillan said that this was not so. In the foregoing connection, the credible testimony of Stanley Arkin, the gener- al contractor on the job, is pertinent. Arkin states that in the latter half of January 1963 he was in a room on the jobsite when Laschower made a telephone call. Las- chower spoke to someone on the telephone about the installation work of Electronic, for whom MacMillan was working. Laschower asked if the man's (MacMil- lan's) "papers" were sufficient for him to continue to work on the job. Laschower then left the room, returned, and made another call. The next thing that occurred was that, in the presence of Arkin and MacMillan, Laschower said that he would be leaving the job. Arkin asked why. Laschower said, in substance, "because he couldn't work with Don [MacMillan] being on the job and it was not because they couldn't recognize [MacMillan's] union but that he [Laschower] just couldn't work while he was on the job." Arkin testified that as general contractor he was working under a completion penalty clause and that, if Laschower left, the air-conditioning work would not be completed in time. Laschower was the only electrician on the job at the time and his work was nearly completed but if he left it would hold up the air-condition- ing.. Laschower "was completely familiar wth the job . and was the only person . . . who has his finger on the sequence of events." A new electrician 33 The following testimony of Mahieu is credited It is substantially uncontroverted 34 Laschower testified that, after January 17, ". . . one day I had to go over to Douglas Gardens on a rush job . . . the shop [Kammer & Wood] called me and told me they needed help over there . . . but I went back [to the Lincoln job] the next day." Laschower had a 349 helper with him at National and this man had also gone with him to Douglas Gardens. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 453 would have to familiarize himself with the blueprints and the work and delay would be entailed. Arkin testified that he therefore asked Electronic (Herold) to remove MacMillan from the job.35 Laschower testified that he worked on the Lincoln National job with the excep- tion of the 1 day that he had been assigned to work at Douglas Gardens, above mentioned. The witness said that he worked on the job while Oliveira was work- ing. Apparently to explain this later willingness to work with Oliveira (Dade), as contrasted with the Oliveira episode on January. 17, and the MacMillan incident on January 21, both of which Laschower had evidently attributed to his personal principles about working with CWA or "nonunion" people, Laschower gave the following explanation: Arkin, the general contractor; Herold of Electronic; and Otte, a representative of Lincoln National, with the position of expediter of build- ing construction, "they told me they [Dade] would work on nights and weekends and I would work during the day and I would do it [and I had agreed that I would do it]." 36 Oliveira testified that the time he worked at Lincoln National while Laschower was also working was about 3 weeks after January 17, that is, in February 1963. Oliveira states that he worked during the day on that job, that it was 1 full day and part of another that he worked, and that Laschower was on the job also. Her- old testified that in early February 1963, when the Lincoln building was nearing completion, there was a conversation in a small office of that building Present were Arkin, Otte, Herold, and Laschower. Those present asked Laschower to stay on the job and not walk off while Oliveira or MacMillian completed the telephone system installation work. Laschower said that he could not take a chance on being fined by the Union. Otte or Arkin or both said that if he was fined,37 they would pay the fine. After some more conversation along this line, Laschower agreed not to leave the job and to continue with his work.38 A careful consideration of the witnesses, their testimony, and the evidence as a whole, persuades me that Oliveira and Herold testified credibly regarding the above matters. I am satisfied that the findings made heretofore regarding the January 17 and 21 events are correct and that the only time that Laschower worked with the Dade people was in February 1963. In view of Laschower's firm position about not working, prior to February, it is evident that for some reason he changed his position in February and did work with Oliveira. Laschower's explan- ation for the change did not impress me as convincing in the light of the credited testimony of Oliveira and Herold regarding the true state of affairs. E.' The Publix Warehouse job On the Publix job, Kammer & Wood was the electrical contractor. Publix gave Coker the installation of a public address system and Coker in turn awarded the installation work to Dade. Statcavage, of Coker, and MacMillan and Oliveira, of Dade, went to the jobsite on February 4, 1963, to check locations of equipment and perform initial tasks . Stamp, the Local 349 job steward, came up and asked to see the union cards of MacMillan and Oliveira. They produced their CWA cards and after looking at them Stamp walked away. Stamp testified that after looking at the cards he had gone to Goldsmith, construction superintendent 35 Laschower testified, "I think Stanley [Arkin] told me or told Mr. Herold to tell his men to get out or off the job . . . . 3e The implication or meaning of this testimony is that Laschower, consistent with his principles, only worked because the Dade people were not present and working when Laschower worked. 37 The transcript reads: ". . . [they] said that if he were finished they would pay the fine." Read in context, the word "finished" should be "fined" and the record is hereby so corrected ^ Laschower was asked at the hearing whether, in a conversation with Arkin, Otte, and Herold, they had not offered to pay any fines inflicted upon Laschower if he continued to work. A I don't think they did Q. Can you remember? A. No, I don't think they did. Q Did Mr. Otte say anything like that? A. Not to my recollection. The witness said he had never been threatened with a fine and that he had never heard of anyone being fined for working with Dade or CWVA. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Publix.39 Browning, the electrical foreman for Kammer on the job, who was a 349 member, was with Goldsmith at the time. Stamp states that he informed Goldsmith that there were CWA men doing the sound work on the job; that "we" were lead to believe that "we" would get the work , and that he, Stamp, would not work with the CWA men . Goldsmith said that he would talk the matter over with Statcavage40 Goldsmith, Stamp, and Browning then proceeded to find Statca- vage. The two groups met; Statcavage, Oliveira, MacMillan, Goldsmith, Stamp, and Browning. Goldsmith said to Statcavege that he wanted him to hear what Stamp and Browning had to say. Stamp asked Oliveira and MacMillan if they were CWA. They said they were. Stamp said that he could not work with them and if they came on the job he would have to leave . Browning said that he would also leave. After a brief conversation , Statcavage, MacMillan , Stamp, and Gold- smith went to find Newsom.41 Statcavage explained the situation to New- som. The latter asked Stamp why he would not work with the CWA men. Stamp said they, 349, had fellow members out of work who were qualified to do the sound work and they should do the work . Stamp said it was a personal thing and that he could not work with anyone who was not cleared through the Local 349 hall. According to Stamp, Newsom then asked him what the -other electricians on the job would do.42 Stamp said he did not know and that he had not talked to them . Stamp testified that Goldsmith who, in Stamp 's words, "had apparently been on other construction jobs," observed , ". . . if that man goes probably all the other electricians will go, they will get sick, they will start dropping like flies and then leave. Mr. Newsom said , is that so ? and I [Stamp] said, that's right, as far as I know it probably is, but I don't know exactly what they will do." - As a result of all the foregoing , Dade was not allowed to perform the sound work on the job. According to Stamp , Dick Williams Sound, Inc., who used Local 349 men, performed the sound work. F. The Pan American Hospital job Coker received from Pan American a contract for installing a nurses' call system and related sound work in the Pan American Hospital. Coker gave the labor on its contract to Dade. Kammer & Wood was the electrical subcontractor on the job. Sullivan, an electrical engineer, who had done the electrical engineering for the job, testified that in the course of his work he was on the jobsite from time to time and that general supervision was part of his work . While on the jobsite, sometime in January 1963, according to Sullivan , he had a conversation with Harrison , the electrical foreman on the job who was employed by Kammer and who was a member of Local 349. What prompted this particular conversation was the fact that Sullivan had become aware that Dade was going to perform the sound work on the job . Sullivan spoke to Harrison about this and asked him whether or not he was going to walk off the job when the CWA men came on. A careful appraisal of Sullivan as a witness and of his testimony , including the other. evidence in the record, persuades me that , on the whole, he was a credible wit- ness. I find that Harrison replied to Sullivan , on the aforementioned occasion, in words or in substance, that he had been told not to work with them 43 8D Stamp had been on the Publix job about a month. He said that Goldsmith knew him. However, Stamp testified that he did not think that Goldsmith knew that he was the job steward. The Trial Examiner is inclined to believe otherwise since Apte testified that the business agent appointed the steward , sent a letter and card to that effect to the steward, and also sent a letter "to the job informing the job who the steward will be on the job " Other circumstances, hereinafter described , would also tend to indicate that Goldsmith was aware of the status of Stamp. 40 Statcavage was also known as Stack. 41 Newsom was the highest official of Publix on the jobsite. He was in general charge of -the project for Publix. 42 At the time, there were 22 Local 349 journeymen on the job and 8 apprentices 43 At the instant hearing Sullivan testified that the answer that Harrison gave him was that he had been instructed by the business agent to walk off the job when the CWA men came on, but that Harrison did not name the business agent . On cross-examination by Respondent , Sullivan was asked whether, in the Federal district court injunction pro- ceeding in this case (March 7, 1963), he had testified that Harrison stated that the busi- LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 455 MacMillan and Oliveira first came to the job on February 6, 1963. Statcavage was also present, having come to go over some matters with Sullivan relating to the nurse call system. When MacMillan and Oliveira started to work in a section of the building, one of the electricians, Taylor, a Local 349 member, came to them and asked to see their union cards . There were produced and examined .44 Taylor testified that he believed that he, as a journeyman electrician , had a responsibility to check the cards in order to find out who 'the two men were . This is not too convincing since at the time he reported , to Harrison about Dade, Taylor testified, he did not know anyone else on the job but hechecked only the Dade cards. Meanwhile, in another area on the job, Harrison spoke to Statcavage who was with Sullivan. Harrison asked when Statcavage was going to have the wire pulled into the job. The latter replied that the men were on the job at that moment. At this juncture, Taylor, who had just left MacMillan and Oliveira after checking their cards, came up. Taylor said to Harrison, according to Statcavage, substantially the following, that "they are on this job now and we do not recognize their jurisdiction, we had better check." 45 Statcavage said to Harrison, "If there are going to be any problems, let us check into it." More conversation took place and Harrison left to call the union hall. He returned and said that he had been unable to reach anyone. Harrison also had gone down and personally checked the union card of MacMillan or Oliveira. The lunch period then occurred and every- one went to lunch. ness agent had told him that they were not to -work. Sullivan answered affirmatively and said that such was his best recollection of his prior testimony. Respondent's counsel then stated that he intended to introduce, before the close of the hearing, the prior testimony of the witness which, counsel stated, was different from his instant testimony. Counsel did not have the testimony in the prior hearing at that point. The Trial Examiner ex- pressed his receptiveness to this proposal. The General Counsel expressed no position. The following day at the close of his case, Respondent Introduced Sullivan's testimony in the district court. The General Counsel objected on the ground that if there was a dis- crepancy between Sullivan's testimony in the two proceedings, Sullivan "is not available now to explain it." The General Counsel renewed his objection to Respondent's Exhibit No. 1, Sullivan's district court testimony, in his brief. The Trial Examiner received the exhibit and has considered its contents. Although Sullivan was not shown the prior transcript excerpt at the instant hearing, the matter of the content of his prior testimony was called to his attention and he recalled no inconsistency. The prior testimony was referred to on the preceding day and was available to the General Counsel as well as to Respondent and could have been procured and the witness could have been recalled or a continuance requested for such purpose In the district court, Sullivan testified that Harrison "said he had been told not to work with them [Dade]. He did not relate to me who told him." I have considered the matter fully and do not regard Sullivan as a witness whose entire credibility has been destroyed. Apte testified that the Union had appointed no steward for the Pan American job. 'g Sullivan testified that Taylor said, "We know they are on the job and we are not sup- posed to work with them," and Harrison said, "I know it " Taylor and Harrison state that Taylor simply came up to Harrison and said, "There are men down there working on the wire, pulling the wire or cable." In my opinion, the minimum import of what Taylor said to Harrison was that, as anticipated or as expected, the non-Local 349 men or the CWA men were working on the job and this was not to be ignored. Unless at least the foregoing was conveyed, there is no reason why Taylor would think it important to tell Harrison that there were men pulling wire on the job. Electricians commonly and customarily pull wire on a job so there would. be no reason to report if 349 men were pulling wire ; and if strangers, completely out of the blue, appeared and pulled wire, Harrison would not have known, as he quite apparently did, what Taylor was talking about, at least without some further conversation. The context of events and prior con- versations make it clear that both Taylor and Harrison knew that they were not referring to a completely new and unexpected situation. I am also satisfied that the subject of the reaction by Harrison and Taylor and possibly the other electricians came up by reason of what Taylor said in reporting to Harrison and that Taylor did say something about not recognizing the jurisdiction of or working with the men whose cards he had checked. Thus, Harrison testified that in the ensuing conversation after Taylor's report, Statcavage said there was no reason why "we" could not work with them because the two men were AFL-CIO "just like yourselves" (Local 349), and Harrison himself then went down to check the cards of the two men. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harrison testified that the sound men (Dade) did not return immediately after lunch "and I figured maybe they were pulled off the job or something" but "around 2 o'clock they did come back." Harrison went over some blueprints with MacMillan regarding some changes that had been made in electrical locations.46 Harrison testified that there "was a general unrest amongst the men and I figured what was coming up and one of the men came up to me and told me he was very unhappy about the situation and that he was leaving and I told him okay, so he put his tools away and left . . . and then from then on until all of the men left it was just a course of one after another coming to me and telling me that they were leaving and giving various reasons." Harrison states that he left about 2:30 after the men had departed. February 6, 1963, the day on which the above events took place, was a Wednes- day. Payroll records of Kammer show that all the electricians worked only 6 hours on that day and none of them worked on that job the balance of the week. Harrison testified that Brush, after the February 6 walkout, sent him to another job where he worked for a few days.47 Harrison testified that when the men walked off the job the first time, February 6, he and two or three others went to the union hall on February 7 and talked to Business Agent Albury. According to the witness, all that transpired was that "we told him that we had left the job and about the only thing he had to say about it was to advise us to go back to work." 48 Harrison testified at this point that "we" went back to work the next day. However, at another point in his testimony he stated that he worked on another job (and he named the job specifically) for several days after the February 6 walkout. The payroll, as previously mentioned, shows that no electricians worked at Pan American for the balance of the week after February 6. Taylor states that they went back on the following Monday, which would be February 11. The testimony of MacMillan and Oliveira is that, after February 6, they (Dade) did not appear again on the Pan American job until February 19. On February 19 MacMillan and Oliveira came on the job in the afternoon. The electricians again walked out and did not put in their 8 hours' work although on the preceding day, February 18, and on the following day, they worked 8 hours, plus an additional electrician who was hired on February 20 and worked 4 hours on February 20. Thereafter, Statcavage and Sullivan made an arrangement, appar- ently with Brush, that MacMillan and Oliveira would work evenings and week- ends and the electricians would be working days. The Dade people then returned to work on the evening of February 21 or 22. On March 4, 1963, MacMillan and 48 At one point in his examination, Harrison was asked, "Do you have any personal ob- jection to working with Mr MacMillan 7--JA. No" 47 As previously noted, Brush was referred to by various witnesses as Kammer & Wood's superintendent. This is probably an accurate enough description but it may be noted that Brush appears on the Kammer payroll for the various jobs as "GF," general foreman, at $4 75 per hour, together with the foreman, "F," at $4.25, and journeyman, "J," at $4. Brush is a member of Local 349. Presumed expertise in this field and a measure of official notice of contracts and related evidence in other Board cases warrants the conclusion that, commonly, in the building construction industry, .the unions negotiate the wage rates of general foremen, foremen, and journeymen, and such rates are set forth in the contracts with the employers. The foregoing categories commonly obtain employment through the referral system operated by the Union and, depending upon circumstances, a general fore- man may on occasion achieve a relatively high degree of regular and stable employment with a particular contractor. Usually a large contractor, for instance a national general contractor, will have at least several salaried superintendents and will employ, if the work is not subcontracted, general foremen, foremen, and journeymen in a particular craft at the job location. If subcontractors are involved they will have their own personnel setup, depending on their size, volume of business, and .other factors. Wage rates and other matters covered by union contract will be prescribed 48 Without fixing the date, Albury states that one day Harrison came to the hall and said that there were some nonunion men on the job and he would like another job. Albury told him to go back to work because if he left the job Albury would have to send a replacement. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 457 Oliveira came to work during the day 49 and worked all that week with the- excep- tion of 1 day. All the electricians, seven in number, worked a total of only 10 hours each that week, 7 hours on March 4, 3 hours on March 5, and none for the balance of the week.50 The injunction hearing in the Federal District Court was held on March 7 and the injunction issued on March 8 . On Monday, March 11, a new group of Local 349 electricans went to work on the job, Kammer, appar- ently acting through Brush , having sent the former group of electricians to another of its jobs. There have been no further work stoppages. Summary and Conclusions Business Agent Apte of Respondent had, in May 1962, made it clear to Finn, the CWA representative, that Local 349 regarded the Dade CWA personnel as inter- lopers on Local 349's work. Local 349 regarded all the sound installation work performed or sought to be performed by Dade as Local 349's work. This is borne out by Business Agent Albury's testimony on the point, as well as by the aforemen- tioned evidence regarding Apte;-•and the evidence with respect to all members, including stewards, who came in contact with the Dade situation. Despite the foregoing, Respondent, in the instant case, has sought to convey the impression that it had no connection with any of the conduct previously described in this report and that it in no way was responsible for the activity directed against the Dade people. Respondent, in effect, is saying that despite what it considered to be the Dade encroachment on its jurisdiction, it did nothing to protect Local 349's jurisdiction and that any activity in this record that protected Local 349's jurisdiction by removing Dade from a job and that resulted in the work being assigned to members of Respondent, was not attributable to Respondent. Indeed, Respondent's business agents -professed, in their testimony, to have practically no knowledge of or interest in the activity or presence of Dade personnel on various jobs. This lack of interest and activity to protect what it considers to be its jurisdiction is certainly not typical of the unions in the building and construction industry. It is probably accurate to say that a substantial part of the secondary boycott cases and jurisdictional dispute cases since 1947 have involved situations where building trades unions had taken action to protect what they considered to be their work against nonunion contractors employing nonunion labor or employ- ing union labor affiliated with a competing union. Nor is Local 349's professed ignorance of and indifference to both the matter of Dade's alleged jurisdictional encroachment and the walkout activity of Local 349 members in response thereto consistent with various constitutional and bylaw provisions. Article XV of the 1962 constitution of the International Brotherhood of Electrical Workers imposes upon its local unions the duty of protecting their jurisdiction.51 One of the Local 349 bylaws provides that it is the duty of the job steward to report to the Local any encroachment upon the jurisdiction of the Local. On the Village job McLain was the Local 349 steward. I find Respondent's efforts to minimize the role of Steward McLain and of the stewards on the other jobs to be unconvincing. The stewards were appointed by the business agent and 49 MacMillan testified that they could no longer afford to work nights. 69 Harrison testified that lie believed that, beginning on February 6, he had walked off the Pan American job on about four occasions. The dates would be February 6 and 19 and March 4 and 5 si "Article XV, Sec 4. When a L.U. [Local Union] does not-in the judgment of the I.P. [International President] -organize or protect the jurisdiction or territory awarded it, then its charter may be suspended or revoked by the I.P. and a new L U. established on the jurisdiction or territory awarded to another L U. or L.U.'s." One of the'documents that a labor organization is obliged to file and which is publicly available under the Labor-Management Reporting and Disclosure Act of 1959 is the constitution. I have taken official notice of the aforementioned constitution. But quite apart from and inde- pendent of the existence of such a constitutional provision, it is a reasonable inference to assume that Local 349 would be alert to protecting its work jurisdiction which is the crux of its existence. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they functioned, as this offical normally does- in the union movement, as on-the-job representative and agent of the Union.52 McLain and the other Local 349 members had walked -off the Miller Electric, job because MacMillan was working, around May 1962.53 There is no evidence that Respondent disciplined any of its members because of their walkout or warned them about a repetition or did anything else but continue to treat them as members in good standing. Since McLain and the other men had not worked on the job for several days as a result of their walkout they were not paid. The situation as to pay was, of course, no different than if they had not worked because they wished to spend some time at home or engage in some other activity. McLain, for instance, came back to Miller Electric job after 6 days and by the time when MacMillan was no longer working. The Miller Electric matter was involved in the prior Board and court cases and for this reason alone Respondent was aware of its members' activities. The bylaws' of the Local provide' that the steward' is to report any encroachment upon the jurisdiction of the Local (such as MacMillan working) and it is also provided that the steward shall immediately notify the 'business agent of any trouble on the job. Business Agent Albury's testimony that he did not regard a work stoppage as trouble is, in my opinion, implausible. The crux of the union's activity was to supply labor to a job that would complete it competently and without interruption and to secure for its members' maximum steady employment. However, if' Albury actually did not regard a work stoppage as trouble it could be because, generally, or under certain circumstances, he regarded such activity as normal and acceptable practice. Without repeating the details of the July 27, 1962, incident, heretofore described, the evidence is that McLain, the steward, walked off the job because MacMillan was 'not a member of Local 349. All the other electricians, members of Local 349, including the working foreman, Logan, also left. Coker thereafter awarded the sound work to Burns, the contractor who was the employer of McLalin, Logan, and the other Local 349 men. The day after the walkout on July 27, McLain and Albury state that the former simply told Albury that there were some nonunion men on the job and that he wanted another job. Albury told McLain that the best thing for McLain to do was to go back to work or Albury would have to replace him. The testimony is that this was the extent of the conversation. Although, in addition to being steward on the job, McLain was a good friend of Albury, nothing was asked and nothing said about the attitude or action of the other Local 349 men on the job; nothing was said about who the nonunion -men were or what type of work they were doing. As far as the testimony would indicate, Albury was indifferent to whether the nonunion men were the gatekeepers on the jobsite, or employees who came to fill a soft-drink machine, or nonunion electricians who were performing the electrical wiring for lights and fixtures on the job and thus doing the very work that Burns' contract with Local 349 covered. The foregoing factors raise considerable doubt as to exactly what the two men said to each other but I believe that at least part of the conversation was as testified to and that Albury did tell McLain that which has been described above. ' McLain went back to the job after his talk with Albury. While on his way, a group of the Local 349 men, who had walked off the job on the preceding day when McLain had left, stopped, McLain and asked him where he was going. Mc- 52 "The steward is to the union what the foreman is to the company-the key man in its whole collective bargaining setup. Just as the foreman is the company to the average worker, so the steward is the union " . U.S. Department of Labor, Division of Labor Standards, Bulletin No. 60, G P 0 1944, p 32 ; "In AFL-CIO Unions, stewards are the first line leadership . . .. ' AFL-CIO Manual for Shop Stewards, AFL-CIO Publication No 75 ; the positions of "stewards . . . in the union are certainly comparable to that of the foremen on a factory floor." N.L.R B. v. Brewery & Beer distributor Drivers, etc., Local 830, International Brotherhood of Teamsters, etc (Delaware Valley Beer Distributor Assn ), 281 F. 2d 319, 322 (C.A. 3). "One of the typical functions that he [the steward] performs is to serve as a channel of communication between the union and its members." Local 1016, United Brotherhood of Carpenters, etc., AFL-CIO (Booher Lumber Co., Inc.), 117 NLRB 1739, 1746. 13 The record does not show the exact date of the incident but the Miller Electric affair was part of the prior case in which a Board order and court decree issued Since the charge in that case was filed in May 1962, it is reasonable to assume that the Miller Electric affair occurred around that period. With respect to Miller Electric, McLain was not the steward. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL -WORKERS 459 Lain said he was going back to work . He gave no explanation ' why and-no explanation was aked for. These other men returned to work that same day. In my opinion, the only valid explanation is that it was sufficient that the steward was returning to work. The other men would follow, just as when A he steward had walked off, the-others had also walked off. On September 13, 1962, MacMillan and- Oliveira came to the Village job shortly before noon. The testimony is uncontroverted that Logan asked them if they were going to work on the job.. Upon being told that this was the fact, Logan said that he had to leave because he had two strikes against him. The-evidence per- suades me that neither Logan nor other-Local 349 electricians worked on the afternoon of September 13 or on September 14 although there was work for them to do. McLain's testimony indicates that he was a participant in the, failure, to work on September 13 and 14. The record shows two work stoppages on the Village job, one on July 27 and the other on September 13-14, 1962. Sometime after his return to work on July 28,' McLain admittedly warned his employer, Bums, that if MacMillan and Oliveira worked on the job'he would leave as he had done "the other day" [July 27].54 Such was- the prediction and the warning. Mc- Lain had told Statcavage in August that if he walked off the job the others would follow. Without recalling the exact date, McLain testified that there was a second time when he walked off the Village job because of the presence of MacMil- lan. He believed-that this occurred around noon. As previously mentioned, we have seen that the second walkout on the Village job occurred on the afternoon of 'September 13. Later, in the same month of September 1962, on the Miami Laundry job, the steward on the job, Disney, in a conversation at which Statcavage and Coker, MacMillan, and Working Foreman Diaz were present, said that he would not work on the job if MacMillan came on and that if MacMillan did come to work there would be a work stoppage. Although the sound contract had been originally awarded to Dade, someone who was apparently aware of what was to occur and who was confident of the outcome had arranged for two Local 349 sound journey- men to report to the job on the very day when Dade arrived to perform its contract. One of the Local 349 sound men arrived on the job at the time of the above Disney pronouncement and he advised that the other journeyman was on his way from the hall. The Local 349 men would, of course, be on the payroll of the electrical subcontractor, O'Donovan, who was already employing Disney, Diaz, and other electricians. But the interesting aspect is that the Local 349 sound meh had been dispatched to the job, and one had arrived, before the Dade contract was canceled and before the sound work was awarded to O'Donovan. 'There is no evidence or reasonable basis for believing that either Miami Laundry, Coker, or O'Donovan had the foreknowledge to arrange for Local 349 sound journeymen to come to the job when they did. It would appear that only Disney, the steward, and possibly the union hall, would have known what was going to happen when Dade arrived to perform its contract. Disney would threaten a walkout and, if necessary, precipitate a walkout of himself and the other electricians. This would, quite predictably, remove Dade from the picture and it would be appropriate and oppor- tune to be ready with Local 349 sound men.55 In any event, after Dinsey made his pronouncement above mentioned, Coker did cancel its contract with Dade and awarded the work to O'Donovan who employed Local 349 men. On the Publix job, on February 4, 1963, Stamp, ,the steward, informed Gold- smith, the Publix construction superintendent, that he would not work with Dade CWA people. A short time later, in the presence of Goldsmith, Statcavage, and Dade, Stamp repeated his statement. Browning, the working foreman of the Local 349 electricians, who was present, said the same thing. The problem was taken up with the top Publix official, Newsom. The latter asked what the other electricians would do. Goldsmith, experienced in the construction industry, said that if Stamp walked out all the others would walk out. Stamp affirmed Gold- "This would indicate that the Dade people were not working on July 28 when McLain and the others returned and that the Dade people did not work at Village after the July 27 walkout until they returned on September 13. 550n the Village job, the steward, McLain, had taken the initiative to arrange for Local 349 sound men to come to the job because, McLain said, he was led to believe that the union contractor, Burns, had the sound contract. In fact Coker had given the sound contract to Dade but as the result of Local 349 men refusing to work with Dade, the sound contract was taken from Dade and given to Burns. - 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD smith's prediction, ". . . that's right, as far as I know it probably is" but he said that he did not know "exactly." The sound contract was then given to a contrac- tor who employed Local 349 men. Business Agent Apte testified that Respondent appointed no steward on the Pan American job.56 He also said that a Local 349 bylaw that provided, in the event that a steward was not appointed, that the first journeyman on the job is to be the steward, had not been used in years. The foregoing is rather surprising since the job was a reasonably substantial one, employing about 6 or 7 Local 349 electri- cians. Either Respondent was not interested in having anyone protect the union interests and work jurisdiction, a matter vital to the existence of Respondent and one of its prime obligations as a local; or some member or members were entrusted with the duties but not the designation of steward; or, from experience as to how its members would act, Respondent was content to be without a steward. Harrison had previously advised Sullivan that he had been told not to work with the Dade CWA people. This response was given in reply to question as to wheth- er Harrison would work with Dade. It thus appeared that whoever had so instructed Harrison was someone in authority, whose instructions he regarded as binding. There is no indication that such an instruction came from Harrison's employer or any other employer. Under the circumstances, the reasonable inference is that the instruction came from Respondent. Taylor undertook to check the union cards of the Dade people when they came on the job. This is a function normally performed by a steward as many Board cases will show and as is shown in the instant record on other jobs where the steward checked the status of the Dade people. In reporting the matter to Harrison, Taylor said that "they are on the job now and we do not recognize their jurisdiction." The language of Taylor and the circumstances, previously detailed in this report, warrant the conclusion that the advent of Dade was not unanticipated. Harrison then checked the union cards of Dade. All those immediately involved, Sullivan, Statcavage, Dade, Harrison, and Taylor, recognized that the presence of the Dade people on the job had created a crisis. It was clear that the Local 349 men were not going to work with Dade. Harrison had previously said as much and Taylor's remarks had also indicated this. That the removal of Dade was essential and was expected is confirmed by Harrison's remark, when Dade did not return immediately after lunch, that he figured that they had been pulled off the job. However, when Dade returned on that same afternoon, all the Local 349 electricians walked off the job giving various reasons to Harrison. Harrison also left. The next day Harrison and some of the other Local 349 men talked to Business Agent Albury. According to Harrison, "We told him that we had left the job and about the only thing he had to say about it was to advise us to go back to work." This is another cryptic conversation where no information was given or asked for concerning the details of the trouble, the identity of the nonunion men, or anything else. However, neither Harrison nor any other Local 349 men went to work at Pan American between February 6 and 11. Harrison worked on anoth- er Local 349 job of Kammer during the interval. On February 19 the Dade people returned to the Pan American job. All the electricians walked out. The next time that the Dade people came on the job when the Local 349 men were working was on March 4, 1963, and Dade worked the balance of that week. The electricians walked out on March 4 and 5 and did not work the balance of the week. On the Lincoln National job Laschower was the working foreman and received foreman's wages. There were no other electricians on the job except a helper, who worked a few hours on 1 or 2 days. Without repeating the details, it can be said that Laschower stated on January 17 that Dade was nonunion and that he could not work with them on the job. Laschower called Apte on that same day and told him there were men doing his work and that he was not going to work with them. Apte said that he had no objection to Laschower not working with the men (unidentified and the circumstances were not described) but that if Laschower left the job, Apte would be obliged to send a replacement if so requested by the contractor. After the call, Apte told Mahieu that he could not work and the next day he worked on another Local 349 job. Following the conversations with Laschower on January 17, Mahieu on the same day called Callahan, Local 349 head business agent or business manager. Mahieu told Callahan about the entire problem that had arisen by reason of Laschower's statements that he would not work with Dade. Callahan said that he was meeting 66 Dade had been given the sound contract at Pan American. LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 461 with Kammer that afternoon and would mention the matter to him. Later that day Callahan told Mahieu that Kammer knew nothing about the matter. Thereafter MacMillan was removed from the job. MacMillan came to work at Lincoln National on January 21, 1963, and Las- chower again walked off. In February, Laschower did work on the job while Oliveira was working but only after being assured that Lincoln National or the general contractor, Arkin, would pay any fine that Laschower might incur from his union. The evidence in the record which has been described in this report shows a uniform pattern of conduct from May 1962 to about the second week in March 1963. This conduct ceased at the latter date because of the issuance of an injunc- tion by a Federal District Court and quite evidently because the Respondent took effective steps, -pursuant to the injunction, to stop the aforementioned pattern of conduct. The pattern of conduct was the fact that, over many months, on a variety of different construction projects, all Respondent's members working on these jobs uniformly refused to work when Dade CWA men performed or sought to perform sound installation work pursuant to contract with contractors who had awarded such work to Dade. Respondent's position, based on the testimony of its business agents and mem- bers, is that the aforementioned actions of its members were the result of principles espoused by each individual. The individuals assertedly had a standard that pre- vented them from working with nonunion men and they so regarded the Dade CWA people, and, further, they regarded the Dade people as interlopers who were performing work that belonged to Local 349 and that unemployed Local 349 men should perform. The foregoing position, however, does not change the fact that there was a uniform pattern of conduct by the members. What Respondent is contending is, in effect, that the factual pattern of conduct was due to a coinci- dence, the coinciding of a substantial number of individual but uniform standards of conduct or belief, and, in any event, that Respondent was not responsible for this conduct. In denying responsibility, Respondent adduced testimony that it had no rules, law, or policy that enjoined members from working with nonmembers and the fact that there was no evidence of a business agent or other agent telling the members to stop working on the various jobs when the Dade people appeared. Respondent's contentions about lack of bylaw and constitutional provisions requiring members not to work with nonmembers are no doubt addressed to the fact that in many of the Board's secondary boycott cases the defense was that the strikes and refusals to work were attributed to the employees as individuals who did not wish to work with nonunion employees. The defense is therefore by no means novel but it commonly ran into difficulty because either the Union, through the business agent, called the employees out on strike or because a bylaw or constitu- tional provision forbade working with nonunion men.57 In the instant case, Re- spondent presents "the individual philosophy of individual members" defense but without the contemporaneous existence of union rules requiring, in effect, that such individual philosophies be held and be implemented. The individual standard of not working with the nonunion men is the same in the instant case as in cases where the individual philosophy was nurtured and existed by reason of union rules. Since it is not like a birthmark and people are not born with a philosophy of not working with nonuniom men, this standard of conduct must be acquired. It is not acquired by simply being an employee because of 70 million persons in the American work force relatively few have such standards. This is true even among the approximately 18 million organized employees, many of whom work with nonunion employees or with members of competing unions. Judging by the evi-• dence and findings in many cases, the aforementioned standard of conduct is characteristic of the members of certain unions in certain industries. However, our concern in the instant case is limited to Respondent and we need not concern ourselves beyond Respondent. The.evidence regarding a series of jobs over many months with a fair cross section of members establishes that, without exception, the members involved refused to work on jobs where Dade CWA people were em- ployed. Indeed, this is Respondent's defense. Respondent -asserts that its members would not work with Dade and that Respondent neither told them not to work nor did it "trigger" or cause its members to activate their respective individual stand- ards of not working. 51A recent case on this is Local 3, 'International Brotherhood of Electrical Workers, AFL-CIO ( New York Telephone Company), 140 NLRB 729. 462 , "DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prescinding from the question of whether Respondent inspired or imposed the standard of not working with nonunion people or whether it "triggered" the implementation of such a standard, however originally acquired, let us consider the matter from another aspect. As previously stated, Respondent's members, on a series of jobs over many months, were refusing to work with Dade because the Dade people were nonunion, i.e.,• non-Local 349. The evidence leaves no doubt in my mind that Respondent was aware of what was going on. First of all, the number of jobsites involved and the period of time encompassed were'such that the business agents would have to have been completely insensate to be unaware of the situation . They were none of these, particularly since, as we have seen, the protection of its work jurisdiction was one of the prime responsibilities of the Local and of its officials. Dade was a genuine challenge on the score -of work jurisdiction and Respondent recognized that fact. Work performed by Dade was that much less work for Local 349. Sec- ond, a charge had been filed against Respondent in May 1962. Pursuant to a settlement there was a Board order and a court decree. This focused attention on the activities of Dade. Respondent posted notices in its hall and offices as required by the order and decree. The notices referred to the proscribed conduct and Dade and the employers involved were specifically mentioned. Local 349,does not have a Board order and a court of appeals decree every day in the week. Third, Business Agent Apte, in May 1962, was fully aware of what was going on. In effect, he gave Finn, of the CWA, an ultimatum and predicted that the Local 349 men would be walking off their jobs if Finn did not remove the CWA men. With the Board proceeding against Local 349, Apte thereafter conducted himself with some care but I am not persuaded that he banished the Dade threat to the Local's work jurisdiction from his mind. It is more likely that he followed the matter with greater attention thereafter. Fourth, Local 349 was running a hiring hall which necessitated that it be fully informed and aware of which members were working, where they were working, and when they were working. The steward, appointed by the Union, kept the time records of the men on the job and this was for the use of the Union since the foreman kept the time for the employer. Fifth, Mahieu, a representative of Electronic, appealed to Callahan, the head business agent, and told him that the working foreman on the Lincoln National job, Laschower, a Local 349 member, was refusing to work if Dade worked. Callahan, of course, knew that a working foreman was as subject to Local 349 discipline as any other member and that was quite clearly why Mahieu had called Callahan. The latter, however, did nothing but report that the contractor, Kammer, knew nothing about the matter. This, of course, was fairly obvious since it was Kammer's work that Laschower was threatening not to perform if Dade went to work and this is undoubtedly why Mahieu called Callahan in the first place. Sixth, the instant charge was filed on February 7, 1963, and the conduct that is the subject of this case took place both before and after that date. Seventh, the union stewards on jobs to which they were assigned were representatives and agents of Local 349. Eighth, the series of work stoppages required the consent of Local 349 and, as testimony of various members reveals, they regarded themselves as good union members and their refusal to work with nonunion people was a demonstration of their own union loyalty. No penalty was imposed for any work stoppages in the instant case and stewards were participants in the work stoppages.58 Respondent's awareness of what was taking place on the various jobs over a substantial period of time and its inaction and acquiescense in the conduct does not jibe with Respondent's assertion in its brief that whenever higher union officials "were brought into contact with events" they disavowed what was taking place or accomplished "at least a withdrawal" of the Union from responsibility for the conduct. McLain had been a journeyman on the Miller Electric job - around May 1962. He had participated in a walkout with other Local 349 members on that job because of the presence of Dade. Although McLain had absented himself from the Miller job for 6 days and a court proceeding had evidently taken place (of which Respondent was of course aware ) Respondent took no disciplinary action 58 Cited in the case of Local 3,. International Brotherhood of Electrical Workers, AFL- CIO (New York Telephone Company), supra, is IBEW constitution, article XXVII, sec- tion 2(19). This article is of course binding on Local 349. It provides for enforcement- by ,penalty-against any member who violates the following provision:." Causing a stoppage of work because of any alleged grievance or dispute without having consent of the L U: [Local Union ] or its proper officers." LOCAL 349, INT'L,BROTHERHOOD ELECTRICAL WORKERS 463 against McLain- or- anyone else although, in addition to the original work stop- page, there was no return to work until after Dade was no longer on the job. There- after, in fact, Respondent appointed McLain as its steward on the Village job and the electricians walked out on- that job on July 27, 1962. The following morning McLain advised Business Agent Albury that there were some nonunion men on the job and that he wanted another job. Albury advised McLain that the "best thing" to do was to go to work and that if he did not Albury would have to replace him. McLain went back to the job. By this time Dade was no longer there and the walkout had apparently accomplished its purpose. The work was assigned to Local 349 men by Burns who had replaced Dade on the sound work. When Dade once more received a contract and appeared on the job, there was a second walkout, including McLain, on September 13 and 14, 1962. On February 6, 1963, a Wednesday, all the electricians walked off the Pan American job because of the presence of Dade. The next day Harrison, the fore- man, and some of the others who walked off spoke to Albury who advised them to return because Albury would have to send replacements. The men did not return to work until the following Monday, February 11, 1962, but no replacements had been sent in the meantime, and no disciplinary action was taken. There was another walkout on February 18 for the same reason and also the week of March 4. When a district court injunction issued, Respondent, which had never taken any disciplinary action against its members who • had engaged in the aforementioned walkouts, did not take any action regarding these men but simply sent them to or cleared them for another job. Another group of electricians was sent to the Pan American job, apparently with meaningful instructions that there was to be no walkout. In January 1962, with reference to Lincoln National, Laschower told Apte that there were men doing his work and he was not going to continue on the job. Apte said that he had no objection to Laschower not working with the men but if Laschower left and Kammer, the electrical contractor, asked for replacements Apte would be required to send them. Laschower had already told Mahieu and Herold of Electronics that he would not work with Dade and what Apte told him did not brother him in the least and he thereafter reiterated his original position. Dade was able to install the switchboard, not because Laschower was disciplined or replaced, but because the latter was temporarily transferred by the contractor to another job, Douglas Gardens, in order that the switchboard could be installed. On January 21, Laschower again refused to work with Dade and the latter was removed as a consequence. Head Business Agent Calahan's indifference and fail- ure to take action regarding the Lincoln National situation has previously been described. There are certain aspects of the foregoing incidents involving Apte, Albury, and Callahan that should be noted. The stoppages of work or the threat had already occurred when the Local 349 men spoke to the business agent. Apte said he did not care about the member's refusal to work but he would have to send a replacement if it was asked for by Kammer. Callahan ignored the situation. On none of the jobs in this record did Respondent send replacements although the walkouts and refusals to work were for varied periods of time. In no instance did the electrical contractors, all of whom were union contractors in contractual rela- tions with Local 349, ask for replacements.59 In addition, individual contractors, like Kammer, as well as Burns, were members of Local 349. Brush, the superin- tendent or general foreman for Kammer, was a Local 349 member. All the contractors were experienced in their industry. There was no reason why anyone would conclude that other members of Local 349 would behave any differently from these who were refusing to work with Dade. Further, the time element in building construction is highly important and replacement took time and would also entail new men acquainting themselves with blueprints and work already underway, with which those on the job were already thoroughly familiar. Arkin's testimony regarding the Lincoln National situation is a good illustration. The evidence persuades me that Apte and Albury were engaging in rather transparent gestures in dealing with the work stoppage. They sought to avoid demonstrable responsibility but their remarks about replacements were unmeaning- ful in view of the circumstances and were not followed" up in any event. Replace- ment is not much of a sanction if it, predictably and actually, never takes place and w After the district court injunction in March 19G3, Brush of Kammer and Apte did decide on replacements. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the instance where it did take place, in March 1963 on Pan American, those who were replaced were simply sent to another job. At no time was disciplinary action even mentioned. By way of analogy with Local 349's conduct, let us consider the case of a general manager of a large manufacturing company. There is evidence of hostil- ity of the company to outside union activity; there have been charges filed against the company; the manager receives regular records of employment matters from subordinates. Over a period of 10 months in six different departments of the plant different employee members of an inside union at various times assault and physi- cally eject employees who have joined an outside union. Several of the members of the inside union who have engaged in this conduct have informed the manager of what they have done. The only thing the manager says is either "I do not care what you do but if someone complains about your conduct I will have to replace you"; or the manager says, "Go back to work or I will have to replace you (if someone brings up the matter)." There can be little doubt that the employer in the illustration would be responsible for the constructive discharges of the outside union members among its employees. Ordinarily, a company is not responsible for conduct of employees or persons who are not agents. An association, fraternal or labor, is not ordinarily respon- sible for conduct of an individual member or for conduct of several members. But under appropriate circumstances, it is proper to impute responsibility. For in- stance, the Fraternal Order of Otters conducts or participates in a series of public functions over a period of many months. At every such function, all the Otters participating refuse to continue and walk out when a member of a particular race or religion appears at the function. Each Otter states that this is a matter of individual principle and that the Fraternal Order has no rules or requirements against participating with those of the particular race or religion. Assuming other circumstances similar to those in the instant case, it would be difficult for the Fraternal Order to say, after taking no effective action, that it did not acquiesce in and tolerate such principles among its members. Individuals may entertain almost any personal standards they wish but, when a fair cross section of members mani- fest and adhere to these standards on a representative number of occasions over a period of many months it is a reasonable basis for concluding that the organiza- tion of which they are members tolerates and accepts such standards. It is a case of, you can believe or do what you wish, but if you are members of an organiza- tion you must conform to the standards of that organization or be disciplined or expelled. If no effective action is taken with respect to your conduct in the very field of activity in which the organization is engaged, it is reasonable to assume, if the instances are frequent and over a period of time, that your conduct is ac- quiesced in and approved by the organization. Indeed, in the instant case it would appear that the principle of not working with nonunion people, or, more specifi- cally, Dade, was part of the mores of Local 349 and its members and was accepted as such. In the light of these circumstances Local 349 must, I believe, bear the responsibility for the various acts described in this report. In addition to the foregoing, there is evidence of Respondent's participation in the various acts of its members. On the Village job, McLain, the steward, partici- pated in and triggered the walkouts. All the electricians left when he left in July. They came back on the occasion when McLain returned, after asking McLain the sole question, where he was going. It was enough that the'steward was returning and the others then returned. Again, in September, McLain and all the others left when Dade came on the job. On the Miami Laundry job, the steward also was the decisive factor in threatening a work stoppage. With the exception of a helper who assisted him from time to time, Laschower was the only electrician, during the relevant period, on the Lincoln National job. Apparently, he was given the title of foreman in order that he might be paid a foreman's hourly wage. This was probably because as the sole craftsman on the job he was performing work requiring substantial competence without immediate supervi- sion . Journeymen are assisted by helpers and are not thereby foremen. Laschow- er was therefore, in effect, a foreman without portfolio. As the first and only Local 349 man on the job, except for a helper on a few occasions, Laschower was his own steward and foreman rolled into one. He refused to work with Dade and neither Apte nor Callahan took any effective steps to alter the situation arising by reason of Laschower's conduct. On the Publix job, the steward again triggered the situation of threatening a walkout, and Goldsmith of Publix, who, according to the steward, was experienced in the construction industry, immediately under- stood the situation and realized that all the electricians would walk out, a fact not disavowed by the steward when asked. With respect to the Pan American job,,, LOCAL 349, INT'L BROTHERHOOD ELECTRICAL WORKERS 465 Foreman Harrison and Taylor were the ones who undertook to check and recheck the Dade union cards. Harrison said previously that he had been told not to work with Dade. It appears that the only logical source of such an instruction was Respondent. Harrison's and Taylor's various acts and statements indicate that they were prepared for the appearance of Dade on the job. Although Taylor testified that he did not know any of the other electricians on the job, he had not checked their cards but confined this activity to Dade. In some unexplained way all the electricians knew that they should and did walk off the job after Harrison and Taylor had checked the Dade cards. Harrison, Taylor, and the other electricians walked off the job on about four occasions because of the presence of Dade. It is therefore found that on September 13 and 14, 1962, Respondent engaged in a strike and a refusal to work on the Village job by acquiescing in, tolerating, failing to take effective measures to prevent, and ratifying, a code of conduct by its members not to work with people regarded as nonunion, and strikes and refus- als to work by its members employed by Burns, notwithstanding similar conduct by its members in May and July 1962; that by the example, participation, and activity of its agent and representative, the steward, McLain, on September 13 and 14, 1962, Respondent induced and encouraged individuals employed by Bums, members of Respondent, to strike and to refuse to work, thereby, by all the forego- ing conduct, threatening, restraining, and coercing, Flink, Coker, Burns, and Village. An object of all the aforementioned conduct was to force or require the aforenamed contractors or persons to cease doing business with Dade. This con- duct was in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. In the last part of September 1962, it is found that, on the Miami Laundry job, Respondent engaged in a refusal to work by acquiescing in, tolerating, failing to take effective measures to prevent, and ratifying, a code of conduct by its members not to work with people regarded as nonunion, and refusals to work by its mem- bers employed by O'Donovan, notwithstanding similar conduct by its members in May and July 1962, and on September 13 and 14, 1962; that by the example, participation, and statements of its agent and representative, the steward, Disney, in the last part of September 1962, Respondent induced and encouraged persons employed by O'Donovan, particularly Diaz, a member of Respondent, to refuse to work, thereby, by all the foregoing conduct, threatening, restraining, and coerc- ing Coker, O'Donovan, and Miami Laundry. An object of all the aforementioned conduct was to force or require the aforementioned contractors or persons to cease doing business with Dade. This conduct was in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. It is found that on January 17 and 21 and early February 1963, at Lincoln National,60 Respondent engaged in a refusal to work by acquiescing in, tolerat- ing, failing to take effective measures to prevent, and ratifying, a code of conduct by its members not to work with people regarded as nonunion and refusals to work by its members employed by Kammer, notwithstanding other similar conduct by its members in May and July 1962, September 13 and 14, 1962, and the last part of September 1962. By the aforesaid conduct Respondent threatened, restrained, and coerced Electronic, Lincoln National, Kammer, and Arkin. An object of all the aforementioned conduct was to force or require the aforesaid contractors of persons to cease doing business with Dade. This conduct was in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. On February 4, 1963; at the Publix job, Respondent engaged, in'a refusal to work by acquiescing in, tolerating, failing to take effective measures to prevent, and ratifying, a code of conduct by its members not to work with people regarded as nonunion and refusals to work by its members employed by Kammer, notwith- standing other similar conduct by its members in May and July 1962, September 13 and 14 and the last part of September 1962, on January 17 and 21 and early February 1963; that by the example, participation, and activity of its agent and representative, the steward, Stamp, on February 4, 1963, Respondent induced and encouraged individuals employed by Kammer, members of Respondent, to strike and to refuse to work. By the aforesaid conduct Respondent threatened, re- strained, and coerced Publix, Coker, and Kammer. An object of all the aforemen- tioned conduct was to force or require the aforesaid contractors or persons to cease doing business with Dade. This conduct was in violation of Section 8(b)(4)(i) and (ii) (B) of the Act. It is found that on February 6 to 11, February 19, and March 4 to 8, 1963, at Pan American, Respondent engaged in a refusal to work by acquiescing in, tolerating, failing to take effective measures to prevent, and ratifying, a code of 60 The Lincoln National events were fully litigated, including Laschower's testimony that there was only 1 day when he did not work at Lincoln. 770-076-65-vol. 149-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct by its members not to work with people regarded as nonunion and refusals to work by its members employed by Kammer, notwithstanding other similar conduct by its members in May and July 1962, September 13 and 14, 1962, the last part of September 1962, January 17 and 21 and early February 1963, February 4, 1963. By the aforesaid conduct, and, by instructions to members, given prior to February 1963, not to work with Dade or to recognize any right of Dade to perform sound work, Respondent induced and encouraged individuals employed by Kammer not to work. By the aforesaid conduct, Respondent threatened, re- strained, and coerced Pan American, Coker, and Kammer. An object of all the aforementioned conduct was to force or require the aforesaid contractors or persons to cease doing business with Dade. This conduct was in violation of Section 8(b) (4) (i) and (ii) (B) of the Act.61 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth above, occurring in connection with the operations described 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in viola- tion of Section 8(b) (4) (i) and (ii) (B) of the Act, it is recommended that it cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and to effectuate the purposes of the Act. The nature of the violations makes a broad order appropriate although, as noted previously, there is an outstanding order of the Board that is a broad order and a court of appeals decree that is equally broad. CONCLUSIONS OF LAW 1. The Employers as described in section I, above, are employers engaged in commerce, and Respondent is a labor organization, all within the meaning of the Act. 2. By the conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. [Recommended Order omitted from publication.] 6 'MacMillan of Dade had been a member of IBEW for about 9 years, principally in White Plains, New York. He had worked out of Local 349 for about a year and then went into business as a contractor. As a contractor he had had a contract with Local 349 for 11/2 or 2 years. A former IBEW cardholder had some kind of a dispute with MacMillan about some money allegedly owed. None of the Local 349 members involved in the in- stant case were parties to the aforesaid dispute and there is no evidence that they were aware of MacMillan's past or were motivated by any feelings in that regard. Subsequent to the close of the hearing, the General Counsel and the Respondent filed separate motions to correct the record. The General Counsel's motion is granted, with the following exception: On item 1 the motion is granted except that the word "didn't," on line 5, page 134, is not changed to "don't." Respondent's motion is granted. S. Klein Department Stores, Inc.' and Local 1390, Retail Clerks Union, AFL-CIO and Retail, Wholesale and Department Store Union, AFL-CIO, Party to the Contract. Case No. 4-CA- 3053. November 5, 1964 DECISION AND ORDER On July 27, 1964, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that the Respondent 1 The name of the Respondent is shown as amended at the hearing. 149 NLRB No. 49.