IBEW, Local No. 43

IBEW, LOCAL NO. 43 621 International Brotherhood of Electrical Workers, Local Union No. 43, AFL-CIO and Executone of Syracuse, Inc. Case 3-CC-427 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN member of its executive board, in refusing to work on a construction project while an employee of the Charging Party, herein called, Executone, was em- ployed there. Upon the entire record in the case, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and the IBEW, I make the following: FINDINGS OF FACT 1. THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED On May 10, 1968, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding , finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety , as set forth in the at- tached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer 's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Syracuse, New York, on March 21, 1968,' pursuant to a charge filed the preceding January 22 and a complaint issued February 23, presents questions as to whether Respondent, herein called the IBEW, violated Sec- tion 8(b)(4)(i) and ( ii)(B) of the National Labor Relations Act, as amended, by certain conduct of its members, and particularly of Edward Murphy, a- All dates herein refer to the year 1968 Executone, a New York corporation, engaged at Syracuse in the sale and installation of intercommu- nications and sound systems , held at all times rele- vant here a contract with Syracuse Wholesale Fur- niture Corp., herein called Wholesale, a New York corporation, under which Executone was to install a communications system in a warehouse and showroom which Wholesale was constructing. The general contractor on the job, valued in excess of $475,000, was Arkay Construction Corporation, herein called Arkay, a New York corporation, and the contract for the electrical wiring was held by another New York corporation, Kay-R Electric Corporation, herein called Kay-R. Executone an- nually handles goods and materials of extrastate origin valued in excess of $50,000. The complaint alleges, the answer admits, and I find that Wholesale, Executone, Arkay, and Kay-R are each persons and employers engaged in commerce within the meaning of Sections 2(1), (6), and (7), and 8(b)(4) of the Act, and that the IBEW is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events of January 18 On January 18, one Dan Galuppo, an employee of Executone, was at work on the Wholesale con- struction project. About 12:30 that afternoon, as Galuppo was setting up equipment preparatory to pulling cables, he was approached by a man later identified as Edward Murphy, who was a member of the executive board of the IBEW, and was em- ployed on that job by Kay-R as an electrician. Murphy, upon ascertaining that Galuppo was pulling wires for his intercom and was a member of the Communications Workers of America (hereinafter referred to as CWA), told the other electricians who were standing nearby to "hold up a minute ," and then said to Galuppo, "Either you're going to have to go or we are going to have to go." Murphy then left, stating that he had to make a telephone call. Returning a few minutes later, Murphy told Galuppo he had "better make a phone call," adding that the general contractor did 17 2 NLRB No. 79 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not want Galuppo on the job and that either Galup- po would leave or "we would," apparently referring to the electricians.' Galuppo telephoned the Execu- tone office, learned that Curtis Cooper, the com- pany president, was not in, and waited for further instructions . A few minutes later Cooper telephoned him and instructed him to resume work, which Galuppo did. On his way back to work from his telephone conversation with Cooper, Galuppo encountered Murphy and another man who Galuppo believed to be the general contractor. On this occa- sion Galuppo told this individual that he, Galuppo, was a union member. When this information was relayed to Murphy, he stated: "We don't recognize his Union." Cooper, after his telephone conversation with Galuppo, drove to the jobsite where he encoun- tered Michael Kosoff, the representative of Arkay, the general contractor. Kosoff told Cooper that "one of the electricians indicated that he won't work with [Cooper 's] men ," and he introduced Cooper to Murphy. Cooper's testimony continues: I said, "Are you speaking for yourself or all these fellows here?" He says, "I'm speaking for myself." And I said, "Well, are you a Union Steward?" And he says, "No, I am not," but he says, "I am on the Official Board" or "Execu- tive Board"-I don't recall exactly which-but he said he was either on the Official Board or the Executive Board. And so with that Mr. Kosoff said, "Let's talk this over," and led me away from that group of people. Kosoff testified to the same effect as to what Murphy told Cooper. Asked whether any other electricians were present , he testified as follows: A. Well, they were in the area . I don't recall them being right there face to face with me, but they were in that immediate area. Q. Okay, I am asking you to state what was said and who said it during this conversation. TRIAL EXAMINER : Just a minute . When you say, "Electricians were in the area," do you mean they were able to overhear this conversa- tion or not, or don't you know? THE WITNESS: I would say they could probably overhear it, yes. TRIAL EXAMINER: Well, did they overhear it; do you know? THE WITNESS: I assume they did. I mean- MR. BLITMAN: I move to strike out what he assumes. TRIAL EXAMINER: Well, how far away were the electricians at the time of this conversation with Murphy and you and- THE WITNESS: Oh , twenty, thirty feet away. TRIAL EXAMINER: Were they working? THE WITNESS: I think they were listening; let me say that. But again I say I am thinking, because I can't attest to it. Kosoff and Cooper, together with Edward Rose, an officer of Kay-R, the electrical contractor, went to the trailer which served as a business office on the jobsite .3 In their discussion there, all three men in their fruitless effort to resolve the situation acted and spoke on the assumption that all three electri- cians on the job," and not just Murphy, would refuse to work with Galuppo. Thus, Rose and Cooper discussed the fact that the choice lay between paying three of Rose's employees or one of Cooper's for not working that afternoon, and Kosoff finally said, "Well, obviously if the electri- cians aren't going to work here, if they're going to walk off the job, I will have to call the owner." Kosoff did call the owner, a Mr. Lieberman, and told him, "The electricians are walking off the job. "s When Kosoff told Cooper, during the course of Kosoff's telephone conversation with the owner, that Cooper's employee would have to leave the job, Cooper took the telephone and verified that this was indeed the owner's direction. While Cooper was on the telephone, Murphy entered the trailer, said that he had "had it" and was going home for the day, and commenced to remove his work clothes. When Murphy heard that Cooper was removing his man, Murphy put his work clothes back on. Cooper asked him, "Why is it that you will let the Telephone Company CWA employees in the At first Galuppo quoted Murphy as saying on this occasion that either Galuppo would leave, or he , Murphy. would Later , however. Galuppo cor- rected his testimony and insisted that Murphy had said "we " 'Curiously enough . Rose, Kosoff, and Cooper presented differing ver- sions of when Rose joined the others According to Cooper, Rose joined them in the trailer , and according to Kosoff, Rose joined them on their way to the trailer Rose , however, testified that he joined the group while they were talking to Murphy I credit Rose 's version as he seemed to recall the circumstances very clearly Indeed , Rose testified that he asked Murphy, "Is this something you're doing . Muph , or is it Union business or what," and that Murphy replied " This is my own personal action I'm doing this on my own Cooper put the number at four, but I accept Rose 's version ' The following colloquy occurred at the conclusion of Kosoff's testimony TRIAL EXAMINER Now, on the first episode on January I8th, you also called Mr Lieberman and you told him something about the elec- tricians going out, is that right's THE WITNESS Yes, Sir TRIAL EXAMINER What was the source of your information on January 18th , Mr Cooper" THE WITNESS January the 18th , when I knew they were walking off the Job" TRIAL EXAMINER . Well, what you said to Mr Lieberman when they were walking off the Job? THE WITNESS Well, I'd have to say at that time Murphy was. TRIAL EXAMINER Murphy was walking-Murphy was what? THE WITNESS. I would have to say at that time Murphy told me he was going to walk off the Job if Executone worked. TRIAL EXAMINER. I understand And did you call Mr Lieberman and say, "Mr. Murphy is walking off the job?" THE WITNESS No, I didn't I said, "The electricians are walking off the Job." TRIAL EXAMINER Why did you say to Mr. Lieberman , "The electri- cians," instead of, "Mr Murphy " what was the source of your infor- mation, or was this simply something- THE WITNESS. Well, I Just felt that all the electricians would walk off the job TRIAL EXAMINER . You just thought SOS THE WITNESS Yes, Sir IBEW, LOCAL NO. 43 same Local as our men pull their cables and con- nect their equipment, but you won't let us? We're in the same Union, same Local and everything- come out and pull our cables, come out and con- nect our equipment?" Murphy replied: "Because we have a gentlemen 's agreement with the Telephone Company. That's right." As Kosoff left the trailer, he observed the other electricians walking out of the building. Kosoff testified that he did not know where they were go- ing. The matter was not pursued at the hearing, and the record is silent as to what happened after Murphy put his work clothes back on, but it seems reasonable to infer that he and the other electri- cians resumed work. In any event, the electricians were at work on February 27, when the other episode here involved occurred.' B. The Events of February 27 On the morning of February 27 Galuppo returned to the job. Murphy and two or three other electricians were also at work there. Shortly after lunch, Galuppo was at work when the lights went out, and he noticed that the electricians had left. He continued to work the rest of the day. About noon on that day,' Murphy telephoned his employer, Rose, to state that the Executone em- ployee was on the job and he, Murphy, was leaving. That afternoon Murphy and two of the three other electricians (the exception was one Baxter, who took the afternoon to make his regular monthly visit to a doctor) went to work at another job, to which their employer assigned them.' When Kosoff, the general contractor, arrived at the jobsite on February 27, his labor foreman ad- vised him that an Executone employee had come to work there and that the electricians had left. Kosoff advised the owner of this fact. The owner telephoned Cooper, told him the electricians had left the job, and directed Cooper not to send his men back there the next morning. C. The IBEW's Official Position The testimony of Barry, business manager of IBEW, and of Francis Poole , president of CWA, establishes that the two labor organizations differed sharply as to which had the right to have its mem- bers engage in the cable pulling connected with the installation of the intercom on the job in question. Barry further testified that Murphy was not a union steward on the construction job in question here, and that the job was too small to warrant Barry to appoint a steward there. "The complaint , issued February 13, was amended at the hearing to al- lege a violation occurring February 27 1 permitted the amendment, over objection . See Section I0(b) of the Act I Rose 's testimony put the date as February 28, apparently an inadver- tent error " According to Rose , once Murphy, the foreman , had left, the contract between Kay-R and the IBEW required that the other men stop work until 623 According to Barry, the first mention he heard of the trouble on that job was from Rose of Kay-R about January 20. Barry testified that he assured Rose that he would "take the necessary action to get the men back on the job." I do not fully un- derstand what Barry meant in so far as this record shows Barry's men were still on the job. Barry further testified that at a union meeting on January 25, he told Murphy that the latter had to work in accordance with the contract even though Murphy did not want to work with CWA men. Murphy, however, insisted in his reply that as an individual he was free to do as he chose. On February 26, ac- cording to Barry, counsel for the IBEW instructed Murphy, in Barry's presence, that Murphy must continue to work regardless of the appearance of nonunion men, that his action was "not authorized by the Union, and that he would be subject to charges if he engaged in anything like this." The next day Murphy again refused to work. Barry did not learn of the February 27 episode until some days after it occurred, at which time he learned it from counsel for the IBEW. Barry testified that after the January 18 episode he discussed with the president of the IBEW the matter of disciplining Murphy, and the president stated, "We will wait the outcome of the hearing before we proceed." According to Barry, if a nonunion man engaged in work which the IBEW believed to be within its jurisdiction, it would picket; but if a member of another union did such work, "there's nothing [the IBEW] can do about it." As one of the seven mem- bers of the executive board Murphy had no authori- ty to create or cause a work stoppage. I note that the IBEW bylaws provide that stewards shall "report any encroachment upon the jurisdiction" of the IBEW, but "shall in no case cause a stoppage of work." The executive board's powers and duties, prescribed in the constitution of the IBEW's Inter- national, include the power "to take any action which the L[ocal] U[nion] can take, and which should be taken prior to the next regular meeting of the L[ocal] U[nion]" and to hear charges and to try members for violations of IBEW rules. The local IBEW bylaws add to the duties of the executive board that of passing on applications for member- ship, and investigating and passing upon traveling cards. D. Concluding Findings If the IBEW, acting through Murphy as its agent, is responsible for work stoppages on the part of the electricians on January 18 or February 27, the a foreman is on the job The testimony of John Barry , business manager of the IBEW , differs from that of Rose, for in Barry's view the men could have continued to work in Murphy's absence The contract between the IBEW and the employer provides in part "When three (3) or more journeymen are employed on one job, a Foreman shall be designated " It further pro- vides that, "On jobs having a Foreman workmen are not to take directions or orders . . from anyone except their respective Foremen " 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(4)(i ) and (ii)( B) would seem clear, for the conduct was for the ultimate purpose of compelling Wholesale to stop doing business with Executone . But on this record, I find that General Counsel has not carried his burden of proving that the IBEW was responsible for the ac- tion of Murphy and the other electricians. With respect to the January 18 episode Murphy expressly acted on his own rather than as a union representa- tive . The record does not indicate to whom Murphy made his telephone call when he first learned that Galuppo was a member of CWA, but Barry denied that the call was to him. The circumstances of the electricians ' walkout on February 27, are less clear, but there is no evidence that they acted in response to any union directive . Murphy was a member of the executive board , but this fact vested no authori- ty in him to speak for the IBEW on these occasions. The record does show that Murphy , who acted as foreman , told the other electricians to "hold up a minute " when he first talked with Galuppo , but this is insufficient basis for holding the IBEW liable on the theory that Murphy was its agent. In short, all that appears here is that Murphy de- cided that he would not work with a CWA man. The record does not disclose why the other electri- cians stopped work and left the premises , and even General Counsel suggests that they may have done so because with Murphy gone they had no foreman. Murphy's refusal to work stemmed , of course, from the IBEW's position in its dispute with CWA. The mere fact, however, that union members further their union 's cause and engaged in a work stoppage in protest over the assignment of nonmembers to work they deem within their union's jurisdiction does not establish that their union is legally respon- sible for their conduct. See Building and Construc- tion Trades Council of Tampa and Vicinity, 132 NLRB 1564; Local 375 , International Brotherhood of Teamsters, 146 NLRB 1319; Nassau and Suffolk Building Construction Trade Council, 162 NLRB 180, fn. 4. CONCLUSIONS OF LAW 1. Executone , Wholesale , Arkay, and Kay-R are engaged in activities affecting commerce within the meaning of the Act. 2. The IBEW is a labor organization within the meaning of the Act. 3. The IBEW has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint herein should be, and hereby is, dismissed.