Electrical Workers IBEW Local 103 (Drew Electric)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 591 (N.L.R.B. 1993)

591
312 NLRB No. 100
ELECTRICAL WORKERS IBEW LOCAL 103 (DREW ELECTRIC)
1 On July 28, 1987, the Respondent filed a petition to represent
certain employees of Drew Electric Co. The election was conducted
pursuant to a Stipulated Election Agreement. The tally of ballots
shows 17 for and 10 against the Respondent, with 3 challenged bal-
lots, an insufficient number to affect the results.
2 On April 15, 1992, the Employer withdrew Objections 1 and 4,
which respectively alleged impermissible electioneering and promise
of higher wage rates to apprentice employees in exchange for votes.
3 However, at all material times, all persons performing work
under these agreements were union members.
International Brotherhood of Electrical Workers,
Local Union 103 and Drew Electric Co., Inc.
Cases 1–CB–6704 and 1–RC–18931
September 30, 1993
DECISION AND ORDER AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether Respondent Union
made an unlawful promise of benefits in order to influ-
ence the results of a Board election.
On October 9, 1987, the Employer, Drew Electric
Co., Inc., filed timely objections to an election held on
October 2, 1987.1 In its objections, the Employer al-
leged that, during the preelection period, the Respond-
ent promised employees higher wages and benefits and
jobs with other employers in order to secure their
votes. On October 27, 1987, the Employer filed an un-
fair labor practice charge alleging that, by conduct
identical to the conduct alleged in the objections, the
Respondent violated Section 8(b)(1)(A) of the Act. On
January 11, 1988, the Acting Regional Director issued
a Report on Objections recommending that the objec-
tions be consolidated for hearing with the unfair labor
practice charge. On January 25, 1988, the Regional Di-
rector issued an order consolidating cases, complaint
and notice of hearing.2 Thereafter, the Respondent
filed a timely answer admitting in part and denying in
part the allegations in the complaint.
On December 7, 1992, the Respondent, the General
Counsel, and the Employer filed a stipulation of facts.
The parties agree that the charge, complaint, answer,
and stipulation, with attached exhibits, shall constitute
the entire record in this case and that no oral testimony
is necessary or desired by any of the parties. The par-
ties further agree that they entered into the stipulation
for the purpose of the above-entitled matters only. The
parties waive a hearing before an administrative law
judge, the making of findings of fact and conclusions
of law by an administrative law judge, and agree to
submit this case directly to the Board for findings of
fact, conclusions of law, and the issuance of a Deci-
sion and Order.
On February 5, 1992, the Deputy Executive Sec-
retary, by direction of the Board, issued an order ap-
proving the stipulation, and transferring the proceeding
to the Board. The Respondent, the General Counsel,
and the Employer submitted briefs with the stipulation.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer, Drew Electric Co., Inc., is an elec-
trical subcontractor in the construction industry with a
facility in Dorchester, Massachusetts. During the 12
months preceding the issuance of the complaint, the
Employer, in the course and conduct of its business,
purchased and received at its Dorchester facility prod-
ucts, goods, and materials valued in excess of $50,000
directly from points outside the Commonwealth of
Massachusetts.
Based on the stipulation of the parties, we find that
Drew Electric Co., Inc. is an employer in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. In addition, based on the stipulation, we find that
the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED OBJECTIONABLE CONDUCT AND
UNFAIR LABOR PRACTICE
A. Facts
The Respondent has two standard construction con-
tracts: a construction contract or ‘‘inside agreement’’
and a residential contract. The residential contract pro-
vides wage rates that are substantially lower than those
set forth in the inside agreement. In order to work
under, and be eligible for, the wages and benefits set
forth in the inside agreement, an employee must hold
an ‘‘A’’ card issued by the Respondent and must
apply, through the Respondent’s hiring hall, for work
covered by the inside agreement. In order to work
under the residential contract, an employee must hold
either an ‘‘A’’ card or an ‘‘R’’ card and must apply,
through the hiring hall, for work covered by the resi-
dential contract.
Individuals are eligible for referral through the hir-
ing halls without regard to union or nonunion affili-
ation.3 When a person registers for employment
through the hiring hall, he/she must choose whether to
register under the inside agreement or the residential
contract. An individual cannot be registered on the in-
side agreement referral list if he/she is also registered
for work on the residential contract referral list. Fur-
ther, an individual holding an ‘‘R’’ card cannot apply
for work covered by the inside agreement. At all mate-
rial times, there was no waiting list for positions under
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The stipulation suggests that membership in the Respondent is a
prerequisite for any type of card. However, as noted supra, the stipu-
lation also states that referrals are ‘‘without regard to union or non-
union affiliation.’’ We need not resolve this apparent conflict. The
General Counsel and the Employer do not contend that this case in-
volves ‘‘membership’’ discrimination. They contend only that this
case involves an alleged promise of preferential treatment based on
the votes of unit employees.
5 Berry told employees that those individuals receiving ‘‘R’’ cards
were entitled, after 3 or more years, to apply for an upgrade in clas-
sification to an ‘‘A’’ card.
either contract; individuals, upon appropriate applica-
tion, would be referred within 24 hours.
During the period from July 28, 1987, until October
2, 1987, the Respondent held approximately five meet-
ings with Drew employees at the union hall. Between
12 and 20 employees attended each meeting. During
the meetings, the Respondent’s business agent, Donn
Berry, told the employees that the Union had two re-
ferral classifications in construction work: ‘‘A’’ card
holders who are eligible for referral under the inside
agreement, and ‘‘R’’ card holders who are eligible for
referral under the residential contract. Berry told the
Drew employees that Drew performed work of the
kind covered by the inside agreement and that, if the
Respondent won the election, the employees in the
bargaining unit would immediately receive ‘‘A’’ cards,
rather than ‘‘R’’ cards. Berry also told the employees
that if the Respondent won the election, the Respond-
ent would want them to stay with Drew until after col-
lective-bargaining negotiations were completed. Berry
stated that if Drew agreed to the inside agreement, the
Respondent wanted the employees to stay with Drew
at least long enough to finish jobs contracted for prior
to the date of the Employer’s execution of the inside
agreement. Berry then told employees that nothing in
the Respondent’s rules and regulations prevented a
holder of an ‘‘A’’ card from utilizing the Respondent’s
hiring hall for referrals to obtain employment with
over 200 companies which were similar to Drew and
which were signatories to the inside agreement. Be-
cause there were so many signatory employers, Berry
told employees, there were many jobs for electricians
in the Boston area, and ‘‘A’’ card holders were being
sent to jobs covered by the inside agreement within 24
hours of registering with the hiring hall. Finally, Berry
told employees that individuals who came in ‘‘off the
street’’ and applied for work would be given ‘‘A’’
cards or ‘‘R’’ cards based on their work experience,
qualifications, and job availability.4 According to
Berry, only those individuals with superior qualifica-
tions and work experience received ‘‘A’’ cards; other-
wise they received ‘‘R’’ cards.5
After the election, the Respondent offered ‘‘A’’
cards to all bargaining unit employees. Of the 30 em-
ployees offered such status, 29 accepted the offer and
they received ‘‘A’’ cards. Berry asked those 29 em-
ployees to continue working for Drew until after the
objections to the election were resolved. However, he
also told them that they were free to use the Respond-
ent’s hiring hall.
B. Contentions of the Parties
The General Counsel contends that the Respondent’s
promise of immediate ‘‘A’’ cards to the unit employ-
ees was an unlawful inducement to employees to sup-
port it in a Board election, in violation of Section
8(b)(1)(A) of the Act. It is also contended that this
conduct warrants setting aside the election. The Gen-
eral Counsel argues that immediate receipt of an ‘‘A’’
card was a special benefit offered to these unit em-
ployees, providing them with entitlement to high pay-
ing jobs. According to the General Counsel, there was
no test of qualifications, no requirement of experience,
and no waiting period. The Employer, citing the
Board’s decision in Alyeska Pipeline Service Co., 261
NLRB 125 (1982), argues that the Respondent had the
power to effectuate its promise of a special benefit and
that its promise had a tendency to influence the elec-
tion results.
The Respondent argues that Berry was merely in-
forming Drew employees of what their rights would be
under the Respondent’s referral procedure and that the
determination that employees in the bargaining unit
would receive ‘‘A’’ cards was based on the fact that
the type of work performed by Drew was covered by
the inside agreement. The Respondent further argues
that receipt of an ‘‘A’’ card was not contingent upon
an individual employee’s promise to support the Re-
spondent. Finally, the Respondent argues that, in
Alyeska, unlike the present case, the union told em-
ployees that they would be given favorable treatment
in referral and the union controlled all of the construc-
tion work in the area.
C. Discussion and Conclusion
In essence, the General Counsel and the Employer
are contending that the employees were promised a
benefit to which they were not otherwise entitled,
namely ‘‘A’’ cards, if they voted for the Respondent.
To establish this violation, the General Counsel must
establish that the Employer’s employees were not oth-
erwise qualified to receive ‘‘A’’ cards. The record here
fails to establish this necessary element. Indeed, the
record affirmatively suggests the contrary. The parties
stipulated that the Employer performs the type of work
covered under the inside agreement. It is reasonable to
infer that the Employer’s employees have the nec-
essary skills to qualify for ‘‘A’’ cards.
Nor would the employees reasonably understand that
a vote for Respondent was necessary to secure the
‘‘A’’ card. As Berry explained to the employees, a
person ‘‘off the street,’’ with comparable experience
593ELECTRICAL WORKERS IBEW LOCAL 103 (DREW ELECTRIC)
6 Alyeska, supra, cited by the Employer, is inapposite. That case
involved a union’s promise that members would be preferred over
nonmembers. As discussed above, the instant case involves no such
allegation.
and qualifications, could secure an ‘‘A’’ card. Under
these circumstances, we find that the General Counsel
failed to establish that the promise of immediate ‘‘A’’
cards to unit employees either violated Section
8(b)(1)(A) or constituted objectionable conduct which
warranted setting aside the election.6 Accordingly, we
dismiss the complaint and certify the Respondent as
the employees’ bargaining representative.
ORDER
The complaint is dismissed.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Brotherhood of Elec-
trical Workers, Local Union 103, and that it is the ex-
clusive collective-bargaining representative of the unit
employees.