International Brotherhood Of Electrical Workers Union, Local 1547 (Alaska Chapter, National Electrical Contractors Association, Inc.)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers Union, Local 1547 (Alaska Chapter, National Electrical Contractors Association, Inc.) and Jack A. Carpenter. Case 19-CB-5432 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 4 September 1985 Administrative Law Judge David G. Heilbrun issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions, and to adopt the recommended Order. We find, in agreement with the judge, that the Respondent did not violate Section 8(b)(1)(A) by statements of its members directed at travelers. The Union, not its rank-and-file members, is the Re- spondent in this unfair labor practice proceeding, and there is no basis to conclude that the Respond- ent's agents acted improperly. The judge found no evidence contradicting the fact that Merrill (Mitzi) Hakala, though a union of- ficer, was expressing only his personal opinion when he linked declining jobs and travelers at a 5 February 1985 general union meeting. Traveler James Spence conceded in his testimony that Hakala had made a personal statement and had not intimated that action was contemplated against travelers. As to the emotional antitraveler statements at the regular union meeting on 11 March 1985, more than a month after Hakala's statements, the record shows that Dan McLean, Jerry Newton, Pat Har- rington, and Dick Stevens (who made the state- ments) were rank-and-file members at the time of the meeting. Moreover, the judge credited the Re- spondent's witnesses, Union Officers Hakala, Ben- nett, and Stuart, in their denial of having stood in unison with rank-and-file members or having ap- plauded Stevens' remarks at the meeting. Finally, we find, in agreement with the judge, that the Respondent's officers had little choice but to permit McLean, who also directed his remarks to union officers, the same opportunity to "sound off' as other rank-and-file members concerning the ' We disavow the judge's characterizations of Alaska society in fn 4 of his decision problem of the number of travelers in the face of the declining number of jobs in the area. There is no credible evidence that the Respondent invited those remarks, encouraged them, or endorsed spreading fear among travelers. Accordingly, we adopt the judge's decision and dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I find that the Re- spondent violated Section 8(b)(1)(A) by discourag- ing nonmember travelers from availing themselves of the Respondent's referral system and by condon- ing threats against the travelers. The facts are not in dispute. At a regular mem- bership meeting on 5 February 19851 the Respond- ent's unit president Mitzi Hakala, who was presid- ing over the meeting, appointed another person to chair the meeting and then stated to all those present: "I'm making a personal statement . . . our jurisdiction is low on work . . . . [I]'d appreciate it if all the travelers2 would leave the [Fairbanks, Alaska] jurisdiction." At the next membership meeting on 11 March, with Hakala presiding and 15 to 20 travelers in at- tendance, the main topic of discussion concerned the travelers obtaining work at the expense of the members. Danny McLean, a former business agent of the Respondent, stood up and stated that changes in the hiring hall procedures had given travelers an advantage over local members. He said that the travelers should "pack their tools and leave" the jurisdiction and that because travelers were taking work away from local people, "some- body was going to be killed." McLean then singled out Andy McPhearson, a traveler who was present at the meeting, called him a "wormy son-of-a- bitch," and stated that he did not deserve a job in this jurisdiction. About 10 or 15 minutes later McLean stated that "somebody right here in this room will be shot." After McLean's remarks, member Gerald Newton stood up and, looking directly at McPhearson, stated that the only way McPhearson would get a job in this local was "over my dead body." Newton said that although he had a gun, he 1 All dates are in 1985 2 Travelers are members of sister IBEW locals who, on registration with the Respondent, are entitled to use the Respondent's exclusive job- referral system and are dispatched to jobs by the Respondent along with the Respondent's members 280 NLRB No. 97 ELECTRICAL WORKERS IBEW LOCAL 1547 (ALASKA CHAPTER NECA) did not want to get in trouble "with the law," but that he had "plenty of ax handles." There was gen- eral applause after Newton's comments. At that point member Pat Harrington made a motion that the Respondent contact the business agents of the locals to which the travelers be- longed, inform them that work was slow and the travelers were absorbing jobs from the Respond- ent's members, and request that the business agents ask the travelers to leave. The motion passed. Dick Stevens, a former shop steward, then stood up and said that it was the local member's responsibility on the job "to run off" the travelers before they ever got their tools out of the toolbox. Stevens' remarks prompted a standing ovation from the membership. Neither Hakala nor any other official of the Re- spondent voiced any opposition to or attempted to curtail any of the remarks directed against the trav- elers. The judge viewed each of these meetings and each speaker's comments in isolation. He found Ha- kala's remarks at the 5 February meeting to be merely a "personal statement of opinion" and he excused the remarks made by McLean and Newton at the 11 March meeting as "rambunctiousness . . . hardly suprising with this organization or indeed in the image of self-reliant, somewhat arduous, reali- tites of the Alaska society." And as for McLean's statements, the judge concluded that the Respond- ent's officials "had little choice but to permit a venting by McLean, and absent any credible evi- dence that they invited his remarks, encouraged them, or endorsed the spreading of fear among travelers," there was no violation of Section 8(b)(1)(A). The judge's narrow focus obscures the plain intent of the Respondent's conduct, which was to drive the travelers out of Alaska and leave all available jobs for the Respondent's members. The threats made at the 11 March meeting had no less impact because they were made by members and not by officials of the Respondent. In fact, contrary to the judge's conclusion, the Respondent's officials clearly encouraged, endorsed, and condoned these threats. By his antitraveler statements at the 5 February meeting President Hakala set the stage for the viru- lent attack on the travelers at the next meeting. Having openly declared his sentiments, Hakala's si- lence while others echoed his sentiments can only be viewed as an endorsement of the members' later threats. Under these circumstances, without any at- tempt by Hakala or any other official of the Re- spondent to cut off or disavow the threats made by the members at the 11 March meeting or the motion that was passed, I find that the Respondent 833 violated Section 8(b)(1)(A). Sachs Electric Co., 248 NLRB 669 (1980), enfd. sub nom. NLRB v. Electri- cal Workers IBEW Local 453, 668 F.2d 991 (8th Cir. 1982); Iron Workers Local 111 (Northern States Steel), 274 NLRB 742 (1985). Further buttressing this finding is the fact, ac- knowledged but ignored by the judge, that the Re- spondent has a long history of threatening and dis- criminating against travelers. In Electrical Workers IBEW Local 1547 (M & M Electric), 225 NLRB 331 (1976), the Board found that the Respondent violated Section 8(b)(1)(A) through, inter alia, seri- ous threats to harm and even kill travelers, at- tempting to run travelers down by car, and actual assaults on travelers. Much of this conduct was en- gaged in by then Assistant Business Agent Danny McLean, who also played a prominent role in the 11 March meeting. In addition, in the spring of 1984 McLean physically attacked traveler Jack Carpenter at the union hall as Carpenter was being dispatched to a job, and in 1983 the Respondent agreed, after the filing of an unfair labor practice charge, to modify its referral system and to uni- formly apply it to nonmember travelers as well as members. The Respondent's conduct in this case is but a continuation of its prior unlawful treatment of trav- elers, and I would find the violations alleged by the General Counsel. Accordingly, I dissent. Ronald J. Knox, Esq., for the General Counsel. William K. Jermain, Esq., of Anchorage, Alaska, for the Respondent DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was tried at Fairbanks, Alaska, 27 June 1985.1 The charge was filed by Jack A. Carpenter 14 March and the complaint was issued 30 April. The primary issues are whether International Brotherhood of Electrical Work- ers Union Local 1547 (Respondent or IBEW) (a) dis- couraged nonmember travelers from availing themselves of the Respondent's referral system as modified by infor- mal settlement agreement in Case 19-CB-4804, and (b) whether the Respondent's officers and agents condoned verbal threats against travelers , with both instances asser- tedly in violation of Section 8(b)(1)(A) of the National Labor Relations Act. On the entire record,2 including my observation of the demeanor of the witnesses, and after consideration of briefs filed by the General Counsel and the Respondent, I make the following I All dates are in 1985 unless indicated otherwise 2 Certain errors in the transcript are noted and corrected 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION At all times material, Alaska Chapter, National Elec- trical Contractors Association, Inc. (NECA) has been an organization composed of employers engaged in electri- cal contracting in the State of Alaska, and which exists for a purpose of representing its employer -members in negotiating and administering collective-bargaining agreements with various labor organizations including the Respondent. In the course of such business oper- ations, combined NECA members have annually pur- chased goods and materials valued in excess of $50,000 which originated from points outside Alaska. II. LABOR ORGANIZATION The Respondent is now, and has at all times material, a labor organization as statutorily defined, with offices and separate hiring halls responsible for various geo- graphic regions located at Alaska cities including Fair- banks. III. ALLEGED UNFAIR LABOR PRACTICES A. Basis ofAnalysis On 5 February and 11 March regular monthly mem- bership meetings of the Respondent's Fairbanks unit were held. Those in attendance were principally regular members; however, IBEW travelers of home locals else- where entitled to be present and did attend in much smaller proportion . The only evidence relevant to allega- tions of the complaint respecting the earlier meeting is testimony of James Spence, a maintenance electrician traveler who attended on that date , to the effect that the unit president and meeting chairman Merrill (Mitzi) Hakala had remarked he would appreciate it if traveler journeymen would leave the Fairbanks jurisdiction. Thomas Stuart, the Respondent's assistant business man- ager in charge at Fairbanks , also testified that Hakala's described remarks of 5 February were made in the ca- pacity of a rank-and-file member, and done after excus- ing himself from the front table of officers and appoint- ing another person to the chair while he spoke out his own opinion. The meeting of 11 March, which this case chiefly con- cerns, opened in generally typical fashion except that a large turnout of about 120 persons filled the room, re- quiring that some of those present had to stand at the rear. Hakala again chaired , with flanking by Stuart, a re- cording secretary, a sergeant at arms appointed for the evening, and Michael Bennett, business representative for dispatching Nominally Robert 's rules of order were to govern proceedings. After preliminary business the agenda reached its fraternally significant subject of "Good of the Union." As a reflection of Hakala's statement the previous month, a worrisome reality within the unit was that of insufficient work opportunities compared to the number of persons seeking employment. With this as an evident motivation member Dan McLean,3 formerly assistant business manager of the unit , spoke ramblingly of his dis- satisfaction with how local affairs were administered, and more pointedly about the detrimental effect resulting from the long-continued presence of travelers within the craft jurisdiction at Fairbanks . Charging Party Carpenter testified that McLean emotionally dominated the floor with remarks structured in a "brotherhood atmosphere," during which he quoted from fundamental IBEW materi- als treating avoidance of harm between members. Car- penter recalled McLean stating that such a worthy ob- jective was failing of achievement in the area because a "backing away from available work" had not manifested. McLean added that people could be killed in terms of his concerns, and in resumed remarks 10 or 15 minutes later McLean conjured up how someone could get shot. Carpenter testified that unit members Jerry Newton, Pat Harrington, and Dick Stevens also spoke up. The first of these was upset that travelers had jobs , observing that although he did not want to go to jail he possessed plenty of ax handles. Newton also berated Andy McPhearson, a traveler present at the meeting, who had verbally defended himself following certain of McLean's earlier accusations . Harrington's contribution was a motion requiring unit officer to correspond with all home locals of the various travelers at Fairbanks and urge their respective business agents in various parts of the country from which they had originated to demand that they leave Alaska. Carpenter testified that Stevens won much attention announcing that he would see to travelers being run off any future jobs on which they ap- peared, a statement not supressed by those running the meeting and one that brought substantial applause from general members. As further background to the situation , Carpenter tes- tified that in the spring of 1984 he had been manhandled at the union hall by McLean as he awaited completion of paperwork for his dispatch to a job . The second phase of this vividly described assault involved McLean propel- ling Carpenter forcibly in a direction that could have led to a second-story fall from the office window or down a staircase. Kenneth Rizer, another traveler registered typically on the Respondent's main referral books, recalled that McLean spoke in the course of a general disturbance as the meeting progressed , while the remarks of Stevens were given a standing ovation that was joined in by all persons at the head table except Stuart . Rizer added that his certainty about officers of the Respondent demon- strating their enthusiasm for what Stevens had said about running travelers off jobs was based on a clear view to the front of the meeting hall down a center aisle separat- ing the arranged chairs. In rebuttal Carpenter also re- membered that from any original wide linkage of chairs the disarray that followed left a "walkable " aisle allow- ing good observation from center back to front of the room. 8 I adopt the spelling of this individual 's name as shown in Electrical Workers Local 1547 (M & M Electric), 225 NLRB 331 (1976) ELECTRICAL WORKERS IBEW LOCAL 1547 (ALASKA CHAPTER NECA) Loren Johnston, a traveler present in Alaska since 1982, testified that 11 March was the time of his first at- tending a unit membership meeting, and he felt personal- ly threatened by what unfolded. He was generally cor- roborative of earlier witnesses for the General Counsel, adding that the atmosphere of commotion in the meeting seemed directed particularly at travelers. The Respondent's witnesses focused on McLean, who in their view was uncontrollably cantankerous in nature, unremittingly critical of local governance, and given to jarring exaggerations of expression . In this context Stuart testified that he as much took McLean's reference to "kill[ing]" to mean that union officials were in jeopardy rather than any other persons or groups. Stuart recalled particularly how McLean debuted the word "eunuch" on this occasion, and constantly repeated it in reference to the Respondent's officers. Stuart conceded that McLean was known for a dislike of travelers, and that his basic recollection had McLean voicing a demand for travelers to leave the area. Stuart did not essentially con- tradict earlier testimony about the Newton and Harring- ton remarks, but he did deny that any union officer stood in unity with Stevens' remarks or approved them by hand applause. Hakala testified how he too was preplexed by McLean's statement that people "could get killed," and he similarly denied showing any overt support for Ste- vens' scenario of travelers being physically forced off jobs to which dispatched. Bennett's memory was affixed to how McLean launched a diatribe against incumbent officials with "eunuch" or a variation used often and slurringly. Bennett specifically denied applauding what Stevens had to say, or standing as so many others in the room had done when such remarks were finished. B. Analysis The allegation set forth in paragraph 8 of the com- plaint is without merit. There was no contradicting re- buttal to the fact that Hakala took pains to show how his desire to have travelers generally depart was only the ex- pression of a 30-year craft member of the Fairbanks area. Spence conceded that the episode would reasonably be taken merely as a personal statement of opinion, devoid of any intimation that action was contemplated against travelers. There is no basis from this to conclude that re- straint or coercion of employees was present or apparent from the course of such an utterance. There are few real issues of fact regarding the next meeting of 11 March. Here it is clear that McLean forged an emotional groundswell with curmudgeonly re- marks that plainly whipped up antitraveler feelings in the process One facet of this was the singling out of McPhearson who, although the real truth is neither known nor relevant, was accused of trade union disloyal- ty. This formed a natural backdrop to Newton's personal vignette concerning outsiders obtaining local jobs, and his related disdain for McPhearson having claimed as much as 10 years in the area. In such heightened anima- tion Newton spoke menancingly of a gun and having ax handles; however, he tempered all this with a recogni- 835 tion that law and order were still paramount in his mind.4 On the significant point of whether there is support in the proofs for paragraph 9(c) of the complaint, in which condonation, direct or indirect, of actionable threats is alleged, I credit the Respondent's witness in their denial of having stood in unison or having applauded Stevens' provocative concluding remarks . Stuart, Hakala, and Bennett are each fully persuasive on the point, and al- though I do not disbelieve Rizer that he could see to the front table of officers I am nevertheless convinced that his recollection is faulty thereafter. Hence McLean is the unspoken culprit, and the critical issue is how the Respondent 's agents reacted to his be- havior. I see the situation as one in which they had little choice but to permit a venting by McLean , and absent any credible evidence that they invited his remarks, en- couraged them, or endorsed the spreading of fear among travelers, it should not be said that the episode of 11 March involves coercion or restraint as used and intend- ed in Section 8(b)(1)(A) of the Act. Plainly the ingredi- ents for a bullying majority within this craft unit to an- grily express their view of the traveler situation are present, however, that does not change the fact that for- mally and institutionally the travelers have an indefinite entitlement to stay where they are . What followed from this is opposing perceptional views by regular members, without the amount of work they desired, and travelers who are apprehensive that the mere act of working at their trade will bring retaliation. It is the Union howev- er, as an entity and as manifested by behavior of its agents, that is the Respondent in this statutory proceed- ing, and in that sense I cannot find a basis to conclude that they acted improperly. Certainly McLean's conduct a year earlier suggested the victim had grounds to pros- ecute then, and beyond this the evidence shows that Stuart was sternly admonishing of McLean at the time. Given background of this type, and the precise events of 11 March, I do not find principal paragraph 9 of the complaint to have merit from probative evidence when viewed as a whole. CONCLUSIONS OF LAW 1. NECA, and its various employer-members with whom the Respondent's craft members and travelers become employed, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 4 I do not minimize the spectre of how Newton alluded to weaponry or cudgels, but do observe the evident fact that rambunctiousness is hardly surprising with this organization or indeed in the image of self- reliant, somewhat arduous, realities of the Alaska society Temper of the I I March meeting involved out-of-order behavior as described by various witnesses, and the record contains the not surprising testimony of Stuart that profanity is commonly experienced In further reflection of how fully polite standards need not be strictly applied here, a tabloid of gener- al public circulation recently featured comment on new challenges to Alaska labor unions, quoting Mano Frey, state AFL-CIO president, as saying that collective-bargaining agreements can still be reached without having to "carry axes " New Honsons of Alaska Monthly, June 1985, p 23 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Respondent is, and at all times material has Disposition been, a labor organization within the meaning of Section On these findings of fact and conclusions of law and 2(5) of the Act. on the entire record, I issue the following recommend- 3. Respondent has not committed any of the unfair eda labor practices alleged in this complaint. ORDER The complaint is dismissed. 6 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.