Burmar Electrical Corp.

National Labor Relations Board - Board Decisions

May 31, 1977

229 N.L.R.B. 1028 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 3, International Brotherhood of Electrical
Workers, AFLCIO (Burnnar Electrical Corp.) and
McLawlin Brathwaite. Case 29-CB-2547
May 31, 1977
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 14, 1976, Administrative Law Judge
Melvin J. Welles of the National Labor Relations
Board issued his Decision in the above-entitled
proceeding, and on the same date the proceeding was
transferred to and continued before the Board in
Washington, D.C. The Administrative Law Judge
found that the Respondent had not engaged in
certain alleged unfair labor practices, and recom-
mended that the complaint be dismissed in its
entirety. The complaint alleged, inter alia, that Local
3, International Brotherhood of Electrical Workers,
AFL-CIO, violated Section 8(b)(l)(A) of the Act by
failing and refusing to represent McLawlin Brath-
waite in the processing of his grievance concerning
his discharge because of Brathwaite's alleged failure
to participate in a union-sponsored letter-writing
campaign and because Brathwaite allegedly failed
and refused to assist and support Respondent. The
Administrative Law Judge made no credibility
findings. Thereafter, on January 7, 1977, the General
Counsel filed exceptions to the Decision of the
Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board, having duly considered the matter,
issues the following:
It is hereby ordered that the above-captioned
proceeding be, and it hereby is, remanded to
Administrative Law Judge Melvin J. Welles to make
credibility findings and conclusions with respect to
the unfair labor practices alleged in the complaint,
including, but not limited to, the issue of whether
Respondent violated Section 8(b)(1)(A) by failing
and refusing to represent Brathwaite prior to his
discharge.
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision, setting forth the resolution
of such credibility issues, and findings and conclu-
Respondent apparently runs an organization called the "Kingsboro
Club." The above-purported references to "the club" and "letters" were to
this club and Respondent's campaign to have all its members write letters to
Senators, Congressmen, etc., apparently designed to obtain additional jobs
229 NLRB No. 149
sions with respect to the unfair labor practices
alleged in the complaint. Copies of such Supplemen-
tal Decision shall be served on all the parties, after
which the provisions of Section 102.46 of the Board's
Rules and Regulations, Series 8, as amended, shall be
applicable.
MEMBER MURPHY, dissenting in part:
For the reasons set forth by the Administrative
Law Judge, as amplified below, I would dismiss the
complaint in its entirety.
The difference between my colleagues and myself
concerning this case stems from the failure of the
Administrative Law Judge to resolve the conflict in
testimony between Herb Ackerman, the steward for
Respondent on the job, and McLawlin Brathwaite,
the employee who charges that Respondent unlaw-
fully failed to represent him when, inter alia,
Ackerman did not intercede on his behalf just prior
to Brathwaite's discharge on February 25. 1976.
Brathwaite testified that, after being told to go see
General Foreman Vischio, Ackerman passed by and
the following conversation ensued. Brathwaite said,
"Herbie, I have a feeling something is wrong around
here today." Ackerman allegedly responded, "I will
not back you. You do not come to the club when
you're supposed to." Brathwaite replied, "Herbie, I
went to the club. I wrote letters...." Ackerman's
purported response was, "I did not see that. In my
book. ... You did nothing." 1
Ackerman denied that he spoke to Brathwaite at all
on February 25. He testified that the first time he saw
Brathwaite in connection with that employee's firing
was at noon the next day, at a bar, when Brathwaite
informed him of his discharge. He further testified
that Brathwaite did not ask Ackerman to get the
former's job back, and that nothing then was said
about Brathwaite's failure to write letters in further-
ance of the Union's job campaign or to go to the
union hall. Brathwaite's version of their postdis-
charge conversation in the bar was that Ackerman
asked him how he was doing, to which Brathwaite
replied, "I am doing good, Herbie, I wrote letters,
and got letters in return." Ackerman told him,
"Forget it, you're off the job. You will get another
job." Ackerman allegedly added that he would not
back Brathwaite, causing the latter to state, "Herbie,
you did not understand me, I told you I was on
furlough."
My colleagues would remand this matter to the
Administrative Law Judge to have him resolve the
above credibility conflict between Ackerman and
in the construction industry. Brathwaite testified that his name was on a
union list to go to the club the third week in January 1976 but he was on
"furlough" and unable to do so. He further testified that he had told
Ackerman this fact on February I, 1976, when he returned from furlough.
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LOCAL 3, IBEW
Brathwaite, and then make appropriate findings and
conclusions of law based thereon. While the majority
agrees with me that the Respondent did not
unlawfully refuse to process Brathwaite's grievance
over his discharge for cause, it apparently believes
that a violation of Section 8(b)(l)(A) would lie if
Brathwaite is credited to the effect that Ackerman
told him he would not intercede on his behalf
because Brathwaite failed to go to Respondent's club
and write letters to Congressmen urging creation of
additional construction industry jobs. I disagree and
therefore see no need for the remand or further
findings on this issue.
Assuming the incident to have happened as
Brathwaite claims, we have here what amounts to a
casual fleeting conversation occurring between Ack-
erman and Brathwaite prior to the latter's discharge.
Brathwaite merely stated that he had "a feeling
something is wrong around here today," and Acker-
man responded he would not back him because
Brathwaite did not go to the club when he was
supposed to. I do not view Brathwaite's cryptic and
enigmatic statement as a request for Ackerman's
help. Nor do I believe that Brathwaite made clear to
Ackerman what the nature of "the wrong" was.
Although Ackerman's reply suggests he anticipated
that Brathwaite was referring to a problem he had
with management, I am unwilling to construe his
response as an outright refusal to act on Brathwaite's
behalf concerning that employee's employment
status. To do so reads into what appears to be a
spontaneous passing, albeit provocative, remark,
much more than is warranted by the ambiguous
circumstances attending their brief conversation. 2
Indeed, the fact that the Administrative Law Judge
interprets Ackerman's comment as suggesting a
threat of future inaction, that I view it as being
nothing more than a mere expression of pique, and
that the General Counsel sees it as evidencing an
unlawful motive points up the ambiguity of this
incident and its deficiency as proof of a violation.
In addition, I do not believe that the General
Counsel has sustained his burden of proof because
the evidence fails to establish that Ackerman in fact
possessed the authority to intercede with manage-
ment on Brathwaite's behalf in advance of his
termination. To the contrary, the limitations of
Ackerman's authority were made quite apparent to
Brathwaite by Besise of Local 3's grievance commit-
tee, when the latter told the former that Ackerman
did not make decisions for the Respondent in
grievance matters. That he had on occasion in the
past spoken in Brathwaite's behalf concerning other
problems that employee had at work does not
establish that Ackerman had the actual or apparent
authority so to act.
Accordingly, to hold Respondent responsible for
Ackerman's remarks in light of the foregoing
circumstances and reasons-especially since we all
agree that the Union did not unlawfully refuse to
grieve Brathwaite's discharge-would strain the
application of the Act. Therefore, I would affirm the
Administrative Law Judge and dismiss the complaint
in its entirety.
2 Nor do I believe that Brathwaite's version of their conversation in a bar
the next day, even if accepted as true, casts any light on this incident. If
anything, their later meeting was even more informal and ambiguous when
considered as a whole.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Brooklyn, New York, on October 7, 1976,
based on charges filed June 21, 1976, and a complaint
issued July 29, 1976, alleging that Respondent Union
violated Section 8(b)( I)(A) of the Act.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Burmar Electrical Corp. is a New York corporation,
engaged in the business of providing electrical contracting
services and related services. During the 12 months prior to
the issuance of the complaint herein, it purchased goods
and materials, which were delivered to its place of business
in New York City, valued in excess of $50,000, which were
shipped directly to it from points outside the State of New
York. I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
The General Counsel alleged that Respondent Union
failed to represent the Charging Party, McLawlin Brath-
waite, concerning his discharge by the Employer, because
Brathwaite failed to participate in a union-sponsored letter-
writing campaign, thus refusing to assist and support the
Union. The General Counsel presented a single witness,
Brathwaite, who testified that the morning of his last day of
work, February 25, 1976, he was told by his subforeman,
Teddy Zielinski, to go see General Foreman Marty
Vischio. Just about then, Shop Steward Herb Ackerman
came by and the following conversation ensued. Brath-
waite said, "Herbie, I have a feeling something is wrong
around here today." Ackerman responded, "I will not back
you. You do not come to the club when you're supposed
to." Brathwaite said, "Herbie, I went to the club. I wrote
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters I got letters in return." Ackerman replied, "I did not
see that. In my book it is not that. You did nothing."
The next day, about noon, Brathwaite met Ackerman at
a bar. Ackerman asked him, "How are you doing?" to
which Brathwaite replied, "I am doing good, Herbie, I
wrote letters, and got letters in return." Ackerman then
said, "Forget it, you're off the job. You will get another
job." He told Brathwaite again that he is not backing him,
and Brathwaite replied, "Herbie you did not understand
me, I told you I was on furlough."
The reference to "letters" concerns a union campaign to
have all its members write letters to Senators, Congress-
men, etc., apparently designed to obtain additional jobs in
the construction industry. In pursuance of this campaign,
the Union posts lists, at various jobs where its members
work, of those whom it wants to come to the "Kingsboro
Club" (apparently run by Local 3) to write such letters at
particular times. According to Brathwaite, his name was on
such a list for the third week in January, but he was on
"furlough" and could not go to Kingsboro Club. He
testified that he told Ackerman this about February 1 when
he returned from furlough, and he repeated this explana-
tion on February 25 and 26. Brathwaite had earlier written
such letters and received answers.
Brathwaite was discharged by Vischio, who told him
"Teddy gave me a bad report on you," when he went to see
him pursuant to Zielinski's instructions following his
conversation with Ackerman on February 25. Brathwaite
subsequently (he did not remember the date) went to see
Sol Besisie, of Local 3's grievance committee, at the
Union's offices, and told Besisie the story. Besisie said that
Ackerman had nothing to do with whether the Union was
going to back him, stating, in Brathwaite's words, "Herb
don't make decisions around here. Herb has nothing to do
with whether the grievance is going to be processed."
Besisie then added that the Union would not process the
grievance because Brathwaite had many bad termination
reports from otherjobs.
Ackerman testified that he did not talk to Brathwaite at
all on February 25, that the first time he saw Brathwaite in
connection with the latter's discharge was at noon on
February 26, at a bar, when Brathwaite told Ackerman he
had been fired. He also testified that he at that time told
Brathwaite that he had been "on thin ice for a long time,"
that he (Ackerman) had talked to Frank Cristallo (Burmar
general foreman) for him a number of times about his
problems at work, and that Brathwaite did not ask
Ackerman to help him get his job back. Ackerman also
testified that he did not tell Brathwaite that the latter had
not written letters in connection with the Union's cam-
paign, nor did Brathwaite tell Ackerman anything to that
effect. He also testified that he pays no attention to the
names on the "list" to go to the union hall.' Ackerman
added that not more than about half the people on any list
actually go to write letters, and that the men who do not go
I At this project, there were about 80 employees, and about 20 would
have been on each list.
2 Local 3's bylaws list the duties of stewards as follows: "(a) To have a
copy of the I.B.E.W. Constitution, these bylaws, and the working agreement
and rules with them at all times. (b) To see that Union membership is
encouraged, and all workmen at their respective shops orjobs have paid-up
dues receipts or valid working cards of the Local Union. (c) To report any
are not treated any differently from those that do write the
letters. Finally, Ackerman testified that it is not the
function of a steward to help a man get his job back after
he is fired, that his recourse is to "write a letter or go to the
Union and ask for a hearing before the Joint Industry
Board." 2 In this latter connection, General Foreman
Frank Cristallo of Burmar testified that no steward had
ever asked that a man be put back to work after he was
terminated, 3 but that Ackerman has interceded to save a
man's job, asking Cristallo to have "compassion," doing
just this on an earlier occasion with respect to Brathwaite.4
Although the merits of Brathwaite's discharge are not at
issue here, testimony was adduced concerning the dis-
charge for the purpose of showing that the failure of the
Union to process any grievance on Brathwaite's part was
not arbitrary and capricious. As noted above, the record
shows a number (8) of "bad terminations" for Brathwaite,
and it demonstrates, at least prima facie, based on the
testimony of Cristallo and Zielinski, that Burmar had
ample reason for terminating Brathwaite.
Assuming the facts in their best posture for the General
Counsel's position, that is, assuming that the conversations
between Brathwaite and Ackerman occurred precisely as
Brathwaite testified on or about February 1, and on
February 25 and 26, I nonetheless do not find that the
Union violated its duty of fair representation to Brath-
waite.
Brathwaite's own testimony establishes that he went to
the union offices, told his story, and was told, in effect, that
Steward Ackerman does not "make decisions around
here," and that he "has nothing to do with whether the
grievance is going to be processed," but that the grievance
would not be processed because of Brathwaite's "bad
termination" reports over the years. As Ackerman's
testimony, supported by the Union's bylaws, indicates that
union stewards had no authority to process or initiate
discharge grievances, it is clear on the above facts that the
Union (as distinct from its steward, Ackerman) did not
refuse to process Brathwaite's grievance because of his
failure to go to Kingsboro Club and write letters on or
about January 15.
Assuming that Ackerman said what Brathwaite testified
he did, the statement might well be viewed as a threat to
Brathwaite that in the future he had better obey the
Union's instructions with respect to letter-writing cam-
paigns or other matters at the risk otherwise of incurring
the displeasure of the steward, and causing the steward not
to assist him in job-related matters. But the theory of this
case is that the Union violated its duty of fair representa-
tion, not that it merely threatened to do so. Perhaps, had
Brathwaite not pursued the matter and proceeded to the
union office, the apparent authority with which a union
steward is clothed, and which makes him, normally, a
union agent, would be sufficient to entail an 8(b)(1)(A)
violation based on Ackerman's presumed remarks. But
encroachment upon the jurisdiction of this Local Union. (d) To report to the
Business Manager any violation of our laws, agreements or rules. (e) To
perform such other duties as may be assigned to them by the Business
Manager."
3 Cristallo has terminated 10 to 15 employees as general foreman.
I Confirming Ackerman's testimony to the same effect.
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LOCAL 3, IBEW
here there is specific evidence, both testimonial and
documentary, that stewards did not possess that kind of
authority. 5 And, based on Brathwaite's own testimony, it is
clear that the ultimate failure to process his grievance had
nothing to do with what Ackerman either thought or said.
Accordingly, I shall dismiss the complaint herein.
I Cf. Local 1016, United Brotherhood of Carpenters d Joiners of America,
AFL--CIO, et a. (Booher Lumber Co., Inc.), 117 NLRB 1739 (1957), where
the Board found that a union steward was an agent of the union with respect
to union members at the site at which the steward operated, stating, "Where,
as in the present case, there is no evidence as to the steward's duties, the
Board infers that he possesses the usual authority of a union steward if its
existence is not expressly disputed. There was no denial in this case that
Stafford performed the normal functions of a union steward." Here, as
noted, the existence of the Union's stewards authority with respect to
For all the foregoing reasons, I conclude that Respon-
dent Union has not violated Section 8(b)(1)(A) of the Act
by refusing to process Brathwaite's grievance, and issue the
following recommended:
ORDER8
The complaint is dismissed in its entirety.
grievances is expressly disputed, and there is a denial, supported by
evidence, that the steward's functions included processing grievances.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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