Electrical Workers Ibew Local 46 (Pac, Inc.)

National Labor Relations Board - Board Decisions

Jan 10, 1985

273 N.L.R.B. 1357 (N.L.R.B. 1985)

ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC.) 1357
International Brotherhood of Electrical Workers
Local Union #46, affiliated with the Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO (PAC, Inc.) and Robert Witty. Case 19-
CB-4917
10 January 1985
' DECISION AND ORDER
HY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 June 1984 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the Charging Party filed an answering brief, and
the General Counsel filed a brief in support of the
judge's decision.
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,2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Brotherhood of Electrical Workers Local Union
#46, affiliated with the International Brotherhood
of Electrical Workers, AFL-CIO, Seattle, Wash-
ington, its officers, agents, and representatives,
shall take the action set forth in the Order.
We agree with the judge's conclusion that the Respondent's disci-
pline of PAC President Robert Witty, then a member of the Union, vio-
lated Sec. 8(b)(1)(B) of the Act because it had the foreseeable effect of
interfering with Witty's duties as PAC's representative, and thereby
tended to coerce PAC in the selection of its representatives for the pur-
poses of collective bargaming or the adjustment of grievances. We also
agree with the judge's ruling excluding evidence of an alleged alter ego
relationship between PAC, Inc. and CEC, Inc. and we deny the Re-
spondent's request for a remand.
The Respondent, inter alia, contends the excluded evidence is relevant
to its argument that Witty is an "employer" at PAC rather than an "em-
ployer representative" within the meaning of Sec. 8(bX1XB). By asserting
Witty did not deny owning an interest in CEC, the Respondent implies
that Witty may hold a financial interest in CEC, and consequently may
be the "employer" at PAC if PAC is CEC's alter ego. The Respondent,
however, never sought to lay this foundation for the excluded evidence
at trial. Having failed to make an offer of proof that Witty held a finan-
cial interest in CEC, the Respondent cannot now claim prejudicial error
if it is asserting evidence of such an interest exists. We further observe
that the Respondent does not on brief claim there is any such evidence,
newly discovered or in the record.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
DECISION
' STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge. The
original unfair labor practice charge in this case was filed
on September 16, 1983, by Robert Witty. The amended
unfair labor practice charge in this case was filed on Oc-
tober 4, 1983, by Witty.
The General Counsel's complaint was issued on Octo-
ber 11, 1983. The General Counsel amended the com-
plaint at the trial. The General Counsel's complaint al-
leges that International Brotherhood of Electrical Work-
ers Local Union #46, affiliated with the International
Brotherhood of Electrical Workers, AFL-CIO, has en-
gaged in unfair labor practices within the meaning of
Section 8(b)(1)(B) of the Act. As amended at the trial,
the General Counsel's complaint alleges in paragraph six
the following:
(a) On or about July 20, 1983, Respondent, acting
through its Executive Board and Michael L. Dil-
worth, at Seattle, Washington, voted to process in-
ternal union charges against Witty because Witty
was and is employed by PAC, which does not have
a collective-bargaining agreement with Respondent.
(b) On or about August 2, 1983, Respondent, acting
through its Executive Board and Michael L. Dil-
worth, at Seattle, Washington, had a trial in Seattle,
Washington regarding the charges referred to above
in paragraph 6(a).
(c) On or about August 3, 1983, Respondent, acting
through its Executive Board and Michael L. Dil-
worth, at its Seattle, Washington location, fined
Witty because he performed supervisory functions
for PAC, which operates without a collective-bar-
gaining agreement with Respondent.
In the answer to the General Counsel's complaint, the
Respondent denies that it had committed the alleged
unfair labor practices.
The trial in this proceeding was held on March 29 and
30, 1984, at Seattle, Washington. The time for the filing
of posttrial briefs was extended to May 11, 1984. A
motion to Stay, or in the alternative, a motion to reopen
hearing, was received on May 10, 1984, from the Re-
spondent. An order to show cause was issued on that
same, date whereby the other parties to the proceeding
were given the opportunity to show cause, if any, by
May 24, 1984, why the Respondent's motions should not
be granted. Furthermore, the Respondent was afforded
an opportunity to file a response to those oppositions by
June 1, 1984. The positions of the parties have been con-
sidered and will be discussed in sections 3 and 10 of this
decision.
FINDINGS OF FACT
I. JURISDICTION
The jurisdiction of the Board over the business oper-
ations of the employer' is an issue in this proceeding.
PAC, Inc. is an electrical contractor incorporated in the
273 NLRB No. 167
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State of Washington. Its place of business is located in
Seattle, Washington. PAC provides services for general
contractors, but PAC does not provide services for indi-
vidual members of the public. During the period from
May 1983 to the date of the trial in this proceeding on
May 29 and 30, 1984, PAC's gross revenue was approxi-
mately $1.3 million.
At the trial, the General Counsel made a request that
judicial notice be taken that certain entities were en-
gaged in interstate commerce. (Tr. 79-90.)
Under Rule 201 of the Federal Rules of Evidence, ju-
dicial notice has been taken of the fact that the oper-
ations of the State of Washington annually have exceed-
ed the Board's $50,000 direct inflow and direct outflow
jurisdictional standards. That fact, in my view, comes
within the requirement of Rule 201(b) of the Federal
Rules of Evidence that, "A judicially noticed fact must
be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdic-
tion of the trial court. . . ." While the State of Washing-
ton is exempt from the Board's jurisdiction under Section
2(2) of the Act, the value of PAC's services performed
for the State of Washington may be considered for juris-
dictional purposes. In its decision in Southern Alleghenies
Disposals Services, 256 NLRB 852 (1981), the Board held:
It is well established that the Board will assert ju-
risdiction over a nonretail enterprise which has an
annual outflow or inflow, direct or indirect, across
state lines of at least $50,000. Siemons Mailing Serv-
ice, 122 NLRB 81, 85 (1958). As enunciated by the
Board in Siemons, indirect outflow refers to sales of
goods or services within the State to "users" meet-
ing any standard except solely an indirect inflow or
indirect outflow standard. Further, the Board stated
that it would continue to define as "users" enter-
prises which themselves were exempted from the
Board's jurisdiction but whose operations were of a
magnitude that the Board would assert jurisdiction
if they were nonexempt.
Here, although the city of Johnstown is exempt
from the Board's jurisdiction under Section 2(2) of
the Act, the magnitude of its operations would
clearly warrant our assertion of jurisdiction over it
if it were nonexempt. Accordingly, because Re-
spondent's sales of services to the city of Johnstown
are in excess of $50,000, the indirect outflow stand-
ard has been met. 4 We therefore find that it will ef-
fectuate the purpose of the Act to assert jurisdiction
herein.5
4 We thus find it unnecessary to address the General Counsel's
alternative argument for assertion of jurisdiction over Respondent
based on Respondent's services to other enterprises which are di-
rectly engaged in interstate commerce
5 We expressly disavow the Administrative Law Judge's char-
acterization of Respondent's operation as a purely local function
which does not affect interstate commerce See Carroll-Naslund
Disposal, Inc , 152 NLRB 861 (1965), Nichols Sanitation, Inc, 230
NLRB 834 (1977)
During the period of time from May 1983 to the time
of the trial on March 29 and 30, 1984, PAC performed
services for the Department of General Administration
of the State of Washington in the amounts of $228,000
for a relighting project and $17,000 for an underground
conduit. Based on the value of the services performed
for the State of Washington by PAC, I conclude that
PAC's business operations meet the Board's indirect out-
flow jurisdictional standard. Siemons Mailing Service, 122
NLRB 81 (1958). Accordingly, I further conclude that
the Board has jurisdiction in this proceeding.
In addition to the foregoing, PAC also has performed
services during the period from May 1983 to the time of
the trial for the following entities in the amounts indicat-
ed: Berkley Structures, $60,000 for the renovation of the
Eddy Power Building, which was a time and material
contract, and an unspecified amount for the renovation
of the Old Western Farmer Building, which was another
time and material contract and it was still in progress at
the time of the trial; Bourgault Construction, $126,000
for an urban and planning building; Leo Finnegan Con-
struction, $400,000 for the Rainier School, and $148,000
for the Graham Safeway; Jones & Roberts, $509,000 for
the Lewis County Jail; Keta Construction, $113,000 for a
Safeway Store; Lease-Crutcher, $286,000 for the Boeing
Space Center, Building 1841; Pease & Sons, $88,000 for
the Kenmore Pump Station; Puget Power and Kitsap
Regional Library, $72,000 for relighting the library; and
Turnkey Construction, $738,000 for the Leavenworth
High School.
II. LABOR ORGANIZATION
The status of the Respondent as being a labor organi-
zation within the meaning of Section 2(5) of the Act is
not an issue. Such status was admitted in the pleadings.
III. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Only two persons appeared as witnesses during the
trial of this proceeding. They are: Robert Witty, who is
the Charging Party in this case, and Michael L. Dil-
worth. Compared to the testimony given by Witty, the
testimony of Dilworth was relatively brief. (Tr. 294-
299.)
In considering the credibility of Witty's testimony, I
have read the Respondent's motion to stay, or in the al-
ternative, motion to reopen hearing, and the supporting
documents, as well as the oppositions filed by the Gener-
al Counsel and the Charging Party to the Respondent's
motions and the Respondent's reply. In support of its
posttrial motions, the Respondent submitted a copy of a
letter dated April 24, 1984, from the Respondent's attor-
ney to the Regional Director for Region 19 of the
Board, and a copy of an unfair labor practice charge
filed by the Respondent against Commercial Electrical
Contractors, Inc. (CEC) and Power Authority Construc-
tion, Inc. (PAC). The Respondent alleges in the letter to
the Regional Director that there are contradictions be-
tween certain matters related by Witty in his testimony
at the trial in this proceeding and certain matters previ-
ously represented in December 1983 by CEC's attorney,
which had led to a settlement of an earlier unfair labor
practice charge filed by the Union in Case 19-CA-15831.
The matters on which a settlement of the earlier unfair
labor practice charge allegedly were based, and which
ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC ) 1359
are alleged by the Respondent to be in contradiction of
Witty's testimony, were not made a part of the record
during the trial in this proceeding. Those earlier matters
cannot be considered at this stage of this proceeding to
be newly discovered evidence or evidence which was
previously unavailable to the Respondent at the time of
the trial on March 29 and 30, 1984. Accordingly, I con-
clude that a basis has not been shown for reopening the
record in this proceeding to consider matters which
were within the knowledge of the Respondent at the
time of the trial, but which were not offered into evi-
dence at that time. Respondent had the opportunity at
the trial to introduce matters affecting the credibility of
Witty and to cross-examine Witty with regard to the tes-
timony given by Witty at the trial, which the Respond-
ent urges is inconsistent with the earlier matters. While
the Respondent's affirmative defense of an alter ego rela-
tionship between CEC and PAC was found at the trial
not to be a defense to the General Counsel's complaint
allegations, the Respondent had 1 he opportunity to cross-
examine Witty with regard to the other matters covered
during the direct examination of Witty and matters
which affected the credibility of the witness For con-
venience at the trial, matters regarding the credibility of
Witty were referred by the shorthand reference of being
issue number one, while the altei ego affirmative defense
was referred to as issue number two
Both the General Counsel and the attorney for the
Charging Party made objections to questions posed by
the attorney for the Respondent during his cross-exami-
nation of Witty. Both at the trial and in his posttrial
brief, the attorney for the Respondent urges that the ob-
jections made by his opponents and their arguments with
regard to those objections to questions during his cross-
examination of Witty prevented him from effectively
cross-examining Witty, and therefore, denied due process
to the Respondent. In considering the argument raised
by the Respondent, I note initially that the General
Counsel and the attorney for the Charging Party differed
with the attorney for the Respondent with regard to the
legal issues in this case, and in particular the Respond-
ent's affirmative defense that CEC and PAC are alter
egos. Understandably, all of the parties wanted to pre-
serve on the record their legal positions and arguments
in support of their legal positions, not only on the alter
ego issue, but with regard to other matters as well. In
some forums, the failure of an attorney to raise a timely
objection at the point in time at which evidence is of-
fered at the trial may be deemed to be a waiver of the
party's right to object to such ev idence at a later point in
time. (Fed. R. Evid. 103.) Witty was asked on five differ-
ent occasions during the course of his testimony to step
down from the witness stand and leave the hearing room
so that the attorneys could argue more freely outside of
his presence. (Tr. 105-111, 118-126, 133-149; 196-213;
and 241-247)
After reviewing the record, I conclude that the Re-
spondent did have an opportunity to cross-examine Witty
with regard to the subject matters of his direct examina-
tion and with regard to matters affecting the credibility
of the witness. (See Fed. R Evid. 611(b) )
At the trial, Witty acknowledged that certain portions
of his pretrial affidavit had been deleted from his state-
ment at the time he gave that statement to the General
Counsel. For example, a portion of his statement which
had read, "Sabey is the majority stockholder of PAC,
Inc.," had been lined out of his pretrial statement. (Tr
247.) Witty explained at the trial that the reason for the
deletion of that sentence was, "Because I don't know
that for a fact" Witty also said that it "didn't seem rele-
vant, and I wasn't . . . an authority on it. I mean, I
didn't . . see the paper, or the documents, or anything
like that." (Tr 248) However, Witty stated at the trial
that Sabey had told him that Sabey was the owner of
PAC, and Witty had no reasonable basis at the time that
he gave his statement to the NLRB agent for disbeliev-
ing Sabey's claim. When Witty was questioned at the
trial as to whether anyone had told him anything differ-
ently, Witty said that he had heard rumors. (Tr. 248.)
Witty also acknowledged at the trial that the following
portion of his pretrial statement had been lined out at
Witty's direction at the time he gave his pretrial state-
ment. "I felt the problem arose out of employment with
him. He said to collect all the relevant papers. . " (Tr.
238-239 and see sec 7 herein regarding the intraunion
charges against Witty.) Witty explained at the trial. "At
the time, I was trying to recall what exactly happened
and it had been some months before, and I was going
through my papers, anyway, as I had recalled it, and as
she had written it down, and I went back over it again,
that was not exactly what—that was not what had hap-
pened." (Tr. 239) In contrast, Witty explained at the
trial the reason why another part of his pretrial statement
had been left in his statement and not lined out. The sen-
tence was, "I knew he had attorneys who were knowl-
edgeable concerning labor disputes" (Tr. 252.) Witty ex-
plained that the statement was true based on conversa-
tions Witty had with other persons, but not with Sabey
himself. Witty said that while he was working as an elec-
trician for CEC, he got that information from CEC's op-
erations manager and from Berkley's general superin-
tendent Danny Recard
Another portion of his pretrial statement, which had
been lined out at the time he gave his statement, was "I
gathered my papers (the copy of the withdrawal and
union correspondence) and took it to George Sigalas, the
President of Commercial Electric on August 9th at about
10 a.m." (Tr. 249.) At the trial Witty explained that the
reason for lining out that sentence in his pretrial state-
ment was, "I had gotten that confused with another situ-
ation." (Tr. 249.) Witty said the earlier situation had oc-
curred while Witty was working for CEC and that
matter pertained to a lien problem.
At the trial, Witty also explained a sentence in his pre-
trial statement which he had given in September 1983,
and which reads, "I am presently a member of IBEW
Local 46." (Tr. 263) Witty stated at the trial that he did
not consider himself to be a member of the union at that
in time, because he had submitted a resignation, but
Witty made that statement in his pretrial affidavit, "Be-
cause I had received a letter from the Union saying that
I couldn't resign." (Tr. 263) Witty further explained at
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the trial, "I believe the Local 46 considers me a member,
even though I've tried to resign." (Tr. 265.) Witty ac-
knowledged at the trial, "I would say, recalling nght
now, the word 'presently' would have been inaccurate in
my own mind." (Tr. 269.)
Finally, with regard to his pretrial statement, Witty ac-
knowledged the following during his cross-examination
at transcript 270:
By Mr. Hafer:
Q. Were you confused about anything when you
gave your statement?
A. Yes.
Q. What were you confused about when you
gave your statement?
A. This is the first time I had ever been through
anything of this nature.
Q. First time you had ever had any dealings with
lawyers and legal affairs and so on?
A. No. It's the first time I had ever had anything
to do with the NLRB and the first time that I had
ever been personally involved with it.
Q. Okay. But, in terms of the particulars of this
statement, you reviewed it three times in the last 30
days, I believe you told us. You have looked at por-
tions of it today, certainly when you gave the state-
ment. Was there anything you were confused about
insofar as the points—
A. Not that I recall.
Q. You don't feel now, looking back on that,
that—that there was any confusion in your mind
about what you were telling Miss Cottrell and what
she was writing; correct?
A. Correct.
It was disclosed at the trial that Witty was in error
during his direct examination when he referred to PAC
employee Gene Pullen as being an apprentice. During his
cross-examination, Witty corrected himself to state that
Pullen was an electrical trainee. I consider the foregoing
to be merely a minor inaccuracy in his testimony on
direct examination.
I have reviewed Witty's testimony regarding a tele-
phone conversation about 2 weeks before the trial be-
tween Witty and a person who identified himself to
Witty as being an IBEW local union business agent in
Wenatchee, Washington. However, Witty had not
spoken previously with that person; did not recognize
the person's voice; and had no other contact with the
person who telephoned him on that occasion. Under
these circumstances, I find that Witty's account of the
telephone conversation lacks genuine probative value for
the purpose for which the testimony was offered. The
testimony was not offered to prove the truth of the
matter asserted by the out-of-court declarant, yet the
true identity of the caller in these circumstances depends
upon accepting as truthful the caller's assertions regard-
ing his name and union position. As discussed at the trial,
this is unlike a situation where a witness describes on the
stand a telephone call the witness made to a certain
number. (Tr. 284-293 and Fed.R.Evid. 901.)
After considering all of the foregoing—the demeanor
of the witnesses, established facts, inherent probabilities,
and documentary evidence—I have decided to credit the
testimony given by Witty, as well as the testimony given
by Dilworth. Accordingly, I will rely on portions of the
testimony from both witnesses in making the findings of
fact to be set forth herein.
IV. THE EVENTS IN APRIL 1983
Witty had become a member of the Respondent Union
in 1980. Introduced into evidence as General Counsel's
Exhibit 2 was a copy of a request by Witty for a "par-
ticipating" withdrawal of his membership in the Re-
spondent Union. The document shows that his request
was made on April 15, 1983, and it appears that the re-
quest was approved by the executive board on Apnl 17
or 19, 1983. In his request, Witty indicated that he would
be employed as office operations manager by Commer-
cial Electrical Contractors. Witty also indicated on his
withdrawal request that he would not be working with
tools.
Also on April 15, 1983, Witty informed George Siga-
las that Witty intended to resign from CEC effective
May 14, 1983.
V. THE EVENTS IN MAY 1983
As far as Witty knew, Dave Sabey owned PAC. (Tr.
235) According to Witty, Sabey also owned CEC and
Berkley Structures. It was Witty's understanding that
George Sigalas ran CEC for Sabey. (Tr. 163.) According
to Witty, Mike Dunn runs Berkley Structures in its day-
to-day operations
Witty discussed with Dave Sabey his going to work
for PAC. It was Witty's idea to go to work for PAC,
rather than Sabey's idea. Witty stated: "I simply offered
to work at PAC for him." (Tr. 167.)
Witty began his employment with PAC on May 15,
1983. Witty is the president of PAC, and he also holds
the title of operations manager/administrator. Witty does
not own any portion of PAC, and Witty does not share
in any of PAC's profits. With regard to his duties, Witty
testified at transcript 24:
Q. What are your duties as President and oper-
ations manager?
A. I oversee the office, or operations, the project
managers. I'm also a project manager myself. I
handle the majority of the hiring and firing and em-
ployment transferring If there is any problems in
the field, adjusting wages, or if there's complaints,
things like that, I generally handle that.
Q. Complaints from who and concerning what?
A. Oh, for example, if there's differences between
a foreman and an electrician, or foreman and an ap-
prentice, they can't handle it themselves, then I'm
usually the one that has to take care of it.
Witty receives a salary from PAC. Witty stated, "I
told Dave Sabey how much I wanted to make." (Tr.
256.) Sabey told Witty that was fine. Witty's salary has
remained the same during the entire time of his employ-
ment by PAC. Witty stated, "Essentially, I was to run
the company for him." (Tr. 168.)
ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC ) 1361
During the time of his employment by PAC, Witty
has possessed the authority to negotiate a collective-bar-
gaining agreement on behalf of PAC with a labor organi-
zation. Witty has also possessed the authority to sign
such a collective-bargaining agreement on behalf of
PAC.
Since Witty has been the president of PAC, Witty: (1)
has established the labor relations at PAC; (2) has set the
wage rates paid by PAC; (3) has determined the hours of
employment of employees of PAC; (4) has determined
the benefits to be given to employees of PAC; and (5)
has addressed problems on behalf of PAC concerning
wage claims or discrimination claims.
With regard to the hiring of employees at PAC, Witty
makes that decision. Witty explained: "In part, it's on re-
ferral. Electricians know other electricians, and we'll
interview them. Usually, I'll interview the electricians.
Also we'll receive resumes, we'll solicit resumes." (Tr.
281.)
With regard to determining which employees are to be
laid off from work at PAC, Witty said, "It pretty much
comes as a consensus among the three of us, my two
project managers and myself, but if there—I generally
have the last word." (Tr. 280-281.)
Witty gave the following description of PAC's griev-
ance procedure at transcript 28:
A. If any employee on the job has a problem or a
complaint, he directs that to the immediate foreman.
If he is dissatisfied with that, then each job has an
assigned project manager, and he can direct his
complaint to the project manager. If he is unsatis-
fied with that, then he can direct his complaint to
me, and I'd be the final.
At the time of the trial, PAC had three project manag-
ers and one field superintendent.
With regard to his weekly staff meetings, Witty testi-
fied at transcript 279 and 280:
A. The Monday morning staff meetings, my two
project managers, George Rutherford and Don
Robertson, are present; and Tony Pena, my estima-
tor; and then, usually we leave the door open so
that the receptionist can hear what's going on, or
we can get ahold of her pretty easily. And, essen-
tially what we do is we review the—the job
progress on each job. We determine what the finan-
cial status is, whether it's making money, or losing
money, whether we can readjust our budget, our
projected budget for the job. Also, we determine
what direction we want to take with the company.
For example, last week we decided that we wanted
to go into—pursue more service work that would
involve the purchase of another truck. And also, we
discuss manpower requirements. At this time, it
gives us a chance to brainstorm and see if there is
any way that there can be some overlap of material,
transfers, and we also look for suggestions as to
ways the jobs can be better run. Sometimes one
manager from one area has a good idea that might
apply to another job. So, that's the reason for the
meeting.
Witty is in charge of the day-to-day operations of
PAC. Witty is listed as the administrator for PAC. He
stated at transcript 281:
It's—in the State of Washington, every contractor
has to have a State-recognized administrator who is
legally responsible for the installations on that job.
So, I am legally responsible, or held accountable for
the proper installation on every job that's per-
formed by PAC.
Witty's name also is listed on PAC's business licenses
to operate in the city of Seattle.
After Witty was employed by PAC, Witty set up
PAC's lines of credit with PAC's suppliers. Dave
Sabey's name appears on the credit applications as the
principal owner of PAC. However, Witty's signature ap-
pears on the credit applications. With regard to an ar-
rangement whereby PAC could borrow money from a
bank for business purposes, Witty acknowledged at the
trial, "I don't know all of the details of that particular
aspect of the business." (Tr. 187.)
When Witty began working for PAC, he did not know
what the dollar value of the assets of PAC was. At that
time, an accountant was putting information regarding
that into a computer. Witty testified at transcript 216, "I
worked with him as far as setting up what went into the
computer and what I wanted out." It was about 2
months before Witty first saw the computer printouts.
He acknowledged at the trial that during those first 2
months he had no idea of what PAC was worth or what
its assets were because Witty did not have access to the
company's books. According to Witty, "the computer
was located in Redmond with the bookkeeping pool that
also handled Berkley Structure's books." (Tr. 214.)
Bills were received at Witty's office at PAC. Witty
"vouchered them" and then sent the vouchers "to ac-
counts payable, which is part of the bookkeeping pool."
(Tr. 217.) PAC pays for the services performed by the
bookkeepers Witty had talked with Sabey with regard
to using Berkley Structures bookkeeping pool to perform
bookkeeping work for PAC. Witty explained at tran-
script 220, ". . . I checked with a couple other account-
ing, bookkeeping firms who would do the same thing
and Berkely's price was quite a bit cheaper. So, that was
one of the big determining factors." In addition, Witty
previously had met the accountant at Berkley structures
while Witty was working for CEC, which was doing
work for Berkley at that time. The other reason given by
Witty for selecting Berkley Structures was, "[I]t was
more a matter of convenience. That was the most con-
venient." (Tr. 220.) While Witty said that Sabey owned
Berkley Structures, and that Sabey did have the author-
ity to fire Witty from PAC, Witty said at the trial that
he did not feel pressured to use Berkley's bookkeeping
pool to perform the computer work for PAC. (Tr. 221-
223.)
Witty performed the task of preparing bids for con-
tracts on behalf of PAC. Sabey did not establish any
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guidelines or limitations for Witty to follow in bidding
work for PAC. Prior to making a bid, Witty did not con-
sult with Sabey with regard to the price to be used on
the bid for the work to be performed. However, Witty
did discuss the price for time and materials work that
PAC was going to perform for Berkley Structures. Witty
suggested the price to Sabey. Witty testified, "[H]e was
hesitant, but he accepted." (Tr. 186.) In addition, Witty
talked with Sabey about every 2 or 3 weeks after Witty
began working for PAC. Sometimes their conversations
were on the telephone, and sometimes they met in
person at Sabey's office at Berkley Structures. At his
meetings with Sabey, Witty said that the topics discussed
were. "essentially the financial situation of the company
and the progress of the jobs, our billing, job status,
whether they're making a profit or losing money, and
overhead." (Tr. 223.) Sometimes Sabey has asked Witty
how much manpower Witty had on a job. Witty testi-
fied, "[H]e relies on my judgment for what we need to
do, to get a job done." (Tr. 225.)
On May 20, 1983, Witty had a conversation with Re-
spondent's business agent, Leonard Chernoff. An electri-
cian, who was identified only by his first name of Alex,
also was present. Witty testified at transcript 35 and 37:
A. Leonard—Leonard had arrived at the site. At
the time, I had just started working for PAC and
had previously been working for CEC, and I was
still—I had a library and a few personal effects that
I had, so I was there, taking them out and that's
when Leonard and Alex arrived, and Leonard said
that he had heard that I had been working for
PAC, and he just wanted to come by and see what
was going on. So, I took him over to the PAC of-
fices, which were in the building adjacent, across
the parking lot, showed him where we were at, and
I explained to him that I was working for PAC and
that I had taken a withdrawal so that I could
work—well, at the time, it wasn't to work for PAC,
but I had taken a withdrawal and when I had
spoken to the—to the secretary, her stipulation was
that the terms of the withdrawal were that I-
A. Anyway, this was all in the conversation with
Leonard, that I had understood that as long as I
had made the withdrawal and that I was not work-
ing with tools, that there was no problem, and he
nodded affirmatively At that time, the conversation
kind of lightened up. We went back over to where
his car was parked and there was a discussion about
the pros and cons of Union workers and things like
that, and then one of his pass—one of his parting re-
marks was that he just kind of stared off; he says,
"Yeah, I just might leave the Union myself and
start my own business and avoid all the hassles."
So, that's essentially how the conversation went.
VI. THE EVENTS IN JULY 1983
Introduced into evidence as General Counsel's Exhibit
3 was a copy of a letter dated July 20, 1983, from the
Respondent to Witty. There were two attachments to
the Respondent's letter. In part, the letter states:
You are hereby notified to appear before the Trial
Board of Local Union No 46, I B.E.W., meeting at
2700 First Avenue, Seattle, Washington on Tues-
day, August 2, 1983 at 7 . 30 P.M, to answer charges
filed against you by Brother Leonard Chernoff
Card #D382544, for alleged violation of the Local
Union by-laws Article XI, Section 1 and Article
XVII, Sections 7 and 8; the International Constitu-
tion Article XXII, Section 4; Article XXVI, Sec-
tions 2 and 5; Article XXVII, Section 1, Subsec-
tions 1, 2, 4, 5, 6, 10 and 17.
Enclosed is a copy of the original charges filed
against you. You may, if you desire, have an
I.B E.W member act as your counsel. You may
bring witnesses to give evidence in your behalf.
You will be afforded the opportunity at the hearing
to present any relevant evidence and to cross-exam-
ine any witnesses you may desire.
One of the attachments to that letter is a copy of an
intraunion charge dated June 9, 1983, by Respondent's
member, Leonard Chernoff, against Witty. The intraun-
ion charge alleges that certain sections of the Respond-
ent's bylaws and the Respondent's constitution were vio-
lated on Friday, May 20, 1983, at approximately 1 p.m.
at the offices of Commercial Electrical Contractors, Inc.
The intraunion charge further alleges that:
Bro. Witty admitted to being employed by P.A.C.
Inc, as well as being the registered administrator
for this electrical company. P A.C. Inc is not signa-
tory to an agreement with Local 46, I.B.E.W. Bro.
Witty has H. & W. hours reported for April/83 for
C.E.C. Inc., has not been terminated, and apparent-
ly works for both companies. Witty took a partici-
pating withdrawal dated Apr. 15/83.
The other attachment to General Counsel's Exhibit 3
was a copy of the withdrawal request which was intro-
duced into evidence as General Counsel's Exhibit 2.
As a result of the letter and the attachments which
were received into evidence as General Counsel's Exhib-
it 3, Witty obtained copies of the Respondent's bylaws
and the IBEW constitution in order to study them. Intro-
duced into evidence as General Counsel's Exhibits 4(a)
and 4(b) are copies of those documents.
About 2 days before the Respondent Union's trial
board hearing was scheduled to take place, Witty tele-
phoned Chernoff Witty testified at transcript 45.
A. I told him about the charges. He said that
since he was involved, there was nothing he could
say, or—say about them to me. He said I would
have to get hold of Harry Meyers I told him that
Harry Meyers was out of town, who else could I
talk to? And he said he didn't know, and that was
pretty much what happened.
VII. THE EVENTS IN AUGUST 1983
On August 1, 1983, Witty hand delivered a "speed
message" to the Union. Although the document is dated
August 2, 1983, Witty said he delivered the document on
ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC ) 1363
the day before the hearing, which was held on August 2,
1983. (Tr. 45-46.) Introduced into evidence as General
Counsel's Exhibit 5 was a copy of that document It
states:
In preparing my case, I have been unable to contact
anyone who is prepared to discuss it with me.
Harry Meyers is on vacation, and I am unable to
contact anyone else. When I started working for
PAC, Inc. on May 16 I was under the impression
that I was violating no rules of the agreement. I
only recently learned that was not the case. In that
case I apparently am guilty as charged on that issue.
However, I have decided not to appear at the hear-
ing tonight because I do not feel it will be impartial.
This based on prior experiences with the executive
board. Plus I was deceived into believing that my
meeting of May 20 was friendly and informational,
and not with the express intent to file charges. I am
confident that you will inform me of your decision.
Witty did not attend the Trial Board hearing on
August 2, 1983 Witty testified at transcript 55.
A. Since I was unable to conduct anybody from
the Hall that could give me any information regard-
ing the nature of the hearing, the consequences, or
Just any information at all, and since I had met with
the same individuals, not in a similar circumstance,
but I had met with the "E" Board before, I just did
not feel that I would get an impartial hearing.
Introduced into evidence as General Counsel's Exhibit
6 was a copy of a letter dated August 3, 1983, from the
Respondent to Witty. It states:
The Executive Board silting as Trial Board of
Local Union No. 46, I.B.E.W. on August 2, 1983,
after due consideration of the evidence produced,
has acted upon the charges filed against you by
Brother Leonard Chernoff. The trial was held in
absentia.
The charges alleged you violated the Local
Union By-laws, Article XI, Section l, Article XVII,
Section 7 and 8; the International Constitution, Ar-
ticle XXII, Section 4, Article XXVI, Section 2 and
5 and Article XXVII, Section 1, Subsections 1, 2, 4,
5, 6, 10 and 17.
The decision of the Trial Board is as follows:
M/S/C that Brother Witty be found not guilty of
violating the Local Union by-laws Article XVII,
Section 8 and the International Constitution Article
XXVII, Section 1, Subsections 2, 10 and 17.
MSC that Brother Witty be found guilty of vio-
lating the Local Union By-laws Article XI, Section
1, Article XVII, Section 7, the International Consti-
tution Article XXII, Section 4, Article XXVI, Sec-
tion 2 and 5, Article XXVII, Section 1, Subsections
1, 4, 5, and 6. M/S/C that Brother Witty be fined
$2,000 per charge (8) with $1,000 per charge (8)
suspended provided that he sign a contract with
Local 46 within 30 days and his withdrawal be an-
nulled in accordance with the International Consti-
tution Article XXVII, Section 5.
Any member who claims an injustice has been
done him by the Trial Board may appeal. (See Arti-
cle XXVII of the I.B.E.W. Constitution.) Appeals
from the decision of this Trial Board must be di-
rected to International Vice President S. R.
McCann, Twin Oaks South Office Complex, 150
No. Wiget Lane, Suite 100, Walnut Creek, CA
94598
Appeals to the Vice President must state in writ-
ing:
1. Your reasons for claiming an injustice has been
done you by the Trial Board
2. When assessment exceeds $25.00, $20.00 must
be paid directly to this Local Union or mailed with
a postmark date within fifteen (15) days from the
date of the decision rendered. The Local Union re-
ceipt or a copy thereof must accompany the appeal
to the International Vice President
3. In order to keep the appeal active, additional
payments to the Local Union of not less than $20 00
must be paid within each succeeding thirty (30)
days period from date of first payment until the de-
cision is rendered by the International Vice Presi-
dent.
4. Appeals to the International Vice President
must be postmarked within forty-five (45) days after
our next regular Local Union Meeting which is on
the 10th day of August, 1983.
5. A copy of the appeal sent the Vice President
shall be furnished this Local Union office
6. For further details, see appropriate sections of
the enclosed I.B.E.W. Constitution.
According to Dilworth, Witty was fined, "Because he
was operating an apparent double-breasted, non-union
shop." (Tr. 297)
At the trial, Witty acknowledged that he had obtained
the legal services of Attorney Judd H. Lees following a
conversation between Witty and Sabey Witty went to
see Sabey because Witty felt that he needed an attorney
as a result of the Union's charges being filed against him.
Witty said, "I knew he knew of good attorneys." (Tr.
229.) Witty further said, "I went to him to find an attor-
ney." (Tr. 231.) Witty testified with regard to his conver-
sation with Sabey on that occasion, "I explained about
the union charges and I felt needed legal counsel. This
had been the first opportunity to—that I had needed an
attorney, either as a representative of PAC or personally,
and I asked him who was a good attorney to deal with
something like this." (Tr. 232.) Sabey told Witty that
Sabey was going to contact Attorney Lees. As a result,
Attorney Lees telephoned Witty. According to Witty,
PAC is paying the legal fees owed to Attorney Lees.
In response to General Counsel's Exhibit 6, Witty
stated at the trial that he had not annulled his withdraw-
al request nor had he signed a contract with the Re-
spondent Union.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VIII. SUBSEQUENT EVENTS
Around September 1983, a dispute arose between PAC
Foreman Charles Nelson and PAC electrical trainee
Gene Pullen. The dispute pertained to how a piece of
conduit should be installed. Nelson felt it should be in-
stalled one way, and Pullen felt it should be installed a
different way. As a result, Nelson told Pullen that he did
not want him on the job any more. Both Nelson and
Pullen called Witty regarding this, and the next morning
Witty met with them and PAC Field Superintendent
Don Robertson After a discussion, Witty spoke to
Pullen in the presence of the other two persons. Witty
testified at transcript 26: "I told him that it was really his
responsibility to do what the foreman told him to do,
even if he felt that wasn't the best way to do it. The
foreman is the one responsible for the job and that's
what should be done."
Witty then told Pullen to leave for the moment, and
Witty spoke to Nelson Witty told Nelson that he should
watch his temper, and be more flexible in the way he
handles things. Witty said that Pullen's way of installing
the conduit was probably the best way to do it, but
Nelson was too proud to accept that.
Witty gave reprimands to both Nelson and Pullen.
Witty transferred Pullen to another job, and Witty as-
signed another apprentice to Nelson.
Another PAC apprentice named Michael Pullen asked
Witty for a raise in pay. Witty told Michael Pullen that
he could get a raise when he passed the State of Wash-
ington examination to become a journeyman. Subse-
quently, Michael Pullen took the state exam and he told
Witty that he was almost certain that he had passed the
examination. As a result, Witty gave Micahel Pullen a
$1 50-an-hour increase in pay. However, it later devel-
oped that Michael Pullen had failed the examination, and
Pullen became concerned about losing his wage increase.
Witty decided to let Michael Pullen keep his raise be-
cause Witty felt that he was a good worker; he was sup-
posed to take the exam again in another month or so; it
would not be in Michael Pullen's best interest or the Em-
ployer's best interest to reduce Michael Pullen's wage
rate because Witty felt it would be demoralizing.
At the time of the trial, PAC had approximately 35
employees. Witty had hired about 30 of those 35 employ-
ees. With regard to the other five employees, Witty
stated, "I had told my project managers I was in a hurry.
I told them the criteria that I wanted for electricians and
to hire somebody." (Tr. 282) The employees of PAC
were not represented by any labor organization at the
time of the trial, and PAC was not signatory to any col-
lective-bargaining agreements at the time of the trial.
IX. CONCLUSIONS
Based on the foregoing findings of fact, I conclude
that the evidence establishes that PAC is an employer as
defined in Section 2(2) of the Act. In addition, I con-
clude that PAC is an employer in the ordinary sense of
the word, that is, PAC is engaged in a business which
employs persons to work for wages.
I further conclude that the findings of facts set forth
above show that Witty, as the president, operations man-
ager and administrator of PAC, has possessed the author-
ity to negotiate a collective-bargaining agreement on
behalf of PAC with a labor organization. I further con-
clude that the evidence shows that Witty has had the au-
thority to sign such a collective-bargaining agreement on
behalf of PAC with a labor organization. The evidence
also shows that Witty has established PAC's labor rela-
tions policy, including the wage to be paid to employees
of PAC; the employees' hours of work; and the employ-
ees benefits to be given by PAC. Witty has made the ul-
timate decisions with regard to the hiring and layoff of
the substantial number of persons employed by PAC.
Witty also has the authonty to adjust employee griev-
ances on behalf of PAC.
I also conclude that the findings of fact establish that
Witty does not own any portion of PAC. According to
Witty's understanding, Dave Sabey owned PAC, CEC,
and Berkley Structures. Thus, Witty is not the "employ-
er himself" as described by the Board in its decision in
Painters Local 1621 (Glass Management Assn.), 221
NLRB 509 (1975). In that case the Board held at 512:
The Board has previously interpreted Section
8(b)(1)(B) of the Act as not protecting a supervisor-
member from sanctions against him by his union
under circumstances where he is also the sole
owner of the employer." The legislative history
behind Section 8(b)(1)(B) makes it clear that Con-
gress was only concerned with protecting employ-
ers in the selection of their representatives for the
two purposes provided therein; there is no indica-
tion that Congress intended to protect the employer
himself against such fines and sanctions." There is
no restraint or coercion against the employer in the
selection of his representatives for the prohibited ob-
jects where the employer himself is acting as the
representative for these purposes. This dichotomy in
treatment of union sanctions imposed on an employ-
er's supervisors as opposed to those levied directly
against the employer himself may also be explained
by the fact that it is difficult to envision circum-
stances where the employer would be greatly influ-
enced in the performance of his grievance-adjust-
ment or collective-bargaining functions where any
decision he makes in those respects directly works
to his benefit or detnment depending on how he de-
cides it.
14 See Local 146, Sheet Metal Workers International Association,
AFL-CIO, et al (Robert Dale Jones d/b/a Aarctic Heating and
Cooling Company), 203 NLRB 1090 (1973); Bricklayers, Masons and
Plasterers' Union, Local No 1 (Barr Floors, Inc ), 209 NLRB 820
(1974)
15 This interpretation is also consistent with the Supreme
Court's analysis of the legislative history behind Sec 8(b)(1)(B) in
Florida Power, supra
As pointed out by Administrative Law Judge Jerrold
H. Shapiro in his decision in Operating Engineers Local
501 (Peterson Mfg. Co.), 269 NLRB 685 (1984), a union's
motivation or "good faith" in imposing discipline is im-
material in these circumstances. At 668 footnote 5, Ad-
ministrative Law Judge Shapiro stated, in part:
ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC ) 1365
[I]n determining whether a union violates Sec.
8(b)(1)(B) of the Act, the union's good faith or mo-
tivation in imposing discipline is immaterial See
NLRB v. Sheet Metal Workers, 477 F.2d 675, 677
(5th Cir. 1973). (In finding that the union violated
Sec 8(b)(1)(B), the court held that the union's
"good faith" in imposing discipline 'was immaterial)
and Carpenters (Skippy Enterprises), 211 NLRB 222,
227 (1974) ("Respondent's good faith is not in-
volved, for the test of restraint and coercion under
Section 8(b)(1)(B) turns not on the union's motive,
but on whether the union engaged in conduct
which . . tends to restrain or coerce employers
within the intent of that section").
The United States Court of Appeals for the 11th Cir-
cuit has held that placing the emphasis on the effect of
the union's actions, rather than the union's intent, is more
consistent with the purpose of Section 8(b)(1)(B) of the
Act. In its opinion in NLRB v. Electrical Workers IBEW
Local 323, 703 F.2d 501 (11th Cir. 1983), the court held
at 507:
Placing the emphasis on the effect caused by the
union's actions, rather than its intent, is more con-
sistent with the fundamental purpose of the statute.
Congress' overriding concern in enacting §
8(b)(1)(B) was to insulate an employer's section of
his collective bargaining or grievance adjustment
representative from union influence or interference.
See, e.g., Florida Power & Light, 417 U.S. at 803, 94
S.Ct. at 2744, 41 L.Ed.2d at 487. An attempt to
force a member-supervisor to cease working for a
nonunion company demonstrably infringes on the
employer's right to choose that person as its repre-
sentative. See A.S. Homer, 177 NLRB at 502. In
view of that inevitable result, even a union endeav-
oring only to enforce an internal regulation, and not
primarily motivated to influence an employer's se-
lection, can deprive the employer of the protection
afforded by the statute.
The Board's decision in Typographical Union Local 6
(Clark & Fritts, Inc.), 236 NLRB 317 (1978), involved
different issues and different facts than are present in the
instant proceeding. Administrative Law Judge Julius
Cohn stated the issue at 319 as follows:
The issue is whether Respondent, by engaging in
work stoppages in January 1976 and February 1977,
forced and coerced the Company to comply with a
collective-bargaining agreement it did not execute
and further coerced the Company to designate a
representative other than of its own choosing for
the purposes of collective bargaining Determinative
of these issues is the response to the question
whether the Company is bound to the collective-
bargaining agreement between Respondent and the
League dated October 4, 1975. In the circumstances
described above, I find the Company to be so
bound.
The judge in that case found at 320:
I find that the Company was bound by its agree-
ment of 1964 to all modifications, extensions, or re-
newals of the then existing contract; that since that
time it has adopted and abided by the successive
collective-bargaining agreements between the
League and Respondent; that it failed to respond to
the letter of Respondent advising it of the negotia-
tions to be conducted with the League; that despite
the protestations of the Company that it is being
forced to adhere to the terms of League contracts
with Respondent in perpetuity, it could have with-
drawn from its arrangement with the Union by
timely notice either before or after receipt of the
June 20, 1975 letter and by request that the Union
bargain separately with it; that, during the course of
the 1975 negotiations, the Company's only commu-
nication which might barely be considered a protest
was made to the League rather than to the Union.
Accordingly, the judge in that case recommended dis-
missal of the 8(b)(1)(B) and (3) allegations of the General
Counsel's complaint. There were also some other
8(b)(1)(A) allegations in that case, but those are not perti-
nent here.
In adopting the judge's dismissal of the 8(b)(1)(B) and
(3) allegations, the Board held at page 317, footnote 1:
In affirming the Administrative Law Judge's dis-
missal of those allegations of the complaint alleging
that Respondent violated Sec. 8(b)(1)(B) and (3) of
the Act, we rely on, in addition to Resilient Floor
and Decorative Covering Local Union No. 1247 of
Brotherhood of Painters and Allied Trades, AFL—CIO
(Linoleum Studio, Inc.), 233 NLRB 980 (1977), cited
by the Administrative Law Judge, our Decisions in
Phoenix Air Conditioning, Inc., 231 NLRB 341
(1977), and Ted Hicks and Associates, Inc., 232
NLRB 717 (1977). In each of the latter two cases,
as in this case, the Board found that an employer,
who was not a member of a multiemployer bargain-
ing unit, had signed a memorandum agreement
which bound it, absent timely notice to the con-
trary, to future contracts negotiated by the union
and the multiemployer association. We find the ra-
tionales set forth in Phoenix Air Conditioning and
Ted Hicks and Associates, Inc., to be controlling in
the case before us
The Resilient Floor case cited above in New York Typo-
graphical Union involves different facts and issues than
are present in the instant proceeding. That case pertained
to a strike by the respondent union therein allegedly to
compel various employers to sign contracts whereby
those employers agreed to abide by the terms of the
master labor agreement to be negotiated by the union
and four multiemployer associations. In that case the
Board stated at page 981.
The question presented for our consideration
herein is whether Respondent engaged in conduct
proscribed by Section 8(b)(1)(B) and (3) of the Act
by (1) directing a strike against the Employers
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein notwithstanding their request to bargain on
an association or individual basis and/or (2) by its
continuing offer to execute interim contracts where-
by the Employers agreed to abide by the terms of
the master contract negotiated by Respondent and
four multiemployer Associations to which none of
the Employers belonged.
In that case, the Board held at pages 982 and 983.
In sum, we find that Respondent's August 2
strike action against the Employers herein was law-
fully instituted following timely offers to bargain
with all Employers and negotiation to impasse with
the Associations. We further find that the Employ-
ers' sole bargaining proposal was lawfully rejected
by Respondent and, in the absence of any further
request to bargain, Respondent's continuing offer to
execute interim contracts constituted neither a refus-
al to bargain within the meaning of Section 8(b)(3)
nor an attempt to unlawfully coerce the Employers
in the selection of their bargaining representative in
violation of Section 8(b)(1)(B). Accordingly, we
shall dismiss the complaint in its entirety.
The Phoenix Air Conditioning case refered to above in
New York Typographical Union involved allegations of
Section 8(a)(1) and (5) issues, which are different than
the issues and facts in the instant proceeding. The Board
held in that case at page 342.
As mentioned above, Respondent attempted to
terminate its agreements with the Union by letter
sent on July 24. The Union's business agent, Wil-
liam Miller, received the letter on July 28 and
called Bob Brooks, an officer of Respondent, on the
same day. Miller stated to Brooks that his notice
was untimely and that the Union and Respondent
still had a valid agreement between them. Brooks
replied that the notice was effective and, therefore,
all agreements were terminated. In these circum-
stances, where the notice was clearly untimely, Re-
spondent violated Section 8(a)(5) of the Act by its
conduct of attempting to terminate the memoran-
dum and collective-bargaining agreements and
thereafter repudiating and refusing to honor said
agreement following the Union's demand for con-
tinued compliance therewith.
Respondent asserted as a defense its inability to
secure the performance bond required by the con-
tract. However, the Board has consistently held that
financial hardship is no justification for repudiation
or modification of a collective-bargaining agreement
or a term thereof. [Footnotes omitted.]
The Ted Hicks case referred to above in New York Ty-
pographical Union also involved allegations of 8(a)(1) and
(5) issues, which are different than the issues and facts in
the instant proceeding. The Board held in that case at
page 714:
Here, as we found earlier, Respondent, in its memo-
randum agreement, agreed to be bound by the re-
sults of a continuing collective-bargaining relation-
ship between the Union and the AGC. The Union's
notice to the AGC did not constitute an end to this
relationship. Rather, it merely signaled the termina-
tion of the terms set forth in the 1974 contract and
the desire to negotiate new terms for the next 2-
year period. In these circumstances, Respondent
either continued to be bound by the results of the
negotiations between the Union and the AGC, or
was obligated to give proper notice to the Union
that it no longer intended to be so bound. Having
falied to give any notice to the Union that it desired
to cease giving effect to the memorandum agree-
ment, Respondent is estopped from now asserting
that it is not bound by the 1976 agreement.
Accordingly, we find that by unilaterally failing
and refusing to implement the existing collective-
bargaining agreement between the Union and the
AGC, Respondent refused to bargain with the
Union in violation of Section 8(a)(1) and (5) of the
Act [Footnotes omitted.]
The ruling that the Respondent's alter ego theory did
not constitute a valid affirmative defense to the General
Counsel's complaint in this case was not predicated on
the fact that an earlier unfair labor practice charge alleg-
ing a violation of Section 8(a)(1) and (5) of the Act on an
alter ego theory had been filed and withdrawn by the
union. (See the discussion at Tr. 133-149 and especially
my comments at Tr. 141 and 142.) Thus, the Respond-
ent's alter ego theory as an affirmative defense was not
rejected because of administrative action by the Regional
Director for Region 19 of the Board in some other case.
Therefore, in my view, the ruling at the trial in this case
was consistent with the Board's decision in Hotel & Res-
taurant Employees Local 274 (Warwick Caterers), 269
NLRB 482 (1984), because the alter ego affirmative de-
fense was not rejected because of the administrative
action in an earlier unfair labor practice case. However,
the unfair labor practice allegations in the Hotel & Res-
taurant Employees case involved Section 8(b)(7)(C) of the
Act, and, thus, a remand was necessary in that case in
view of the holding that, if the defense had been consid-
ered and found to have merit, " . . all elements of the
8(b)(7)(C) violation would not have been satisfied" Here
the General Counsel's allegations involve Section
8(b)(1)(B) of the Act, and, as indicated at the trial and
herein, the alter ego theory would not establish an af-
firmative defense in these circumstances where PAC
itself is an employer and Witty possesses authority for
the purposes of collective bargaining and the adjustment
of grievances on behalf of PAC.
General Counsel's Exhibit 3 and the testimony of Dil-
worth at the trial revealed that the intraunion charge
against Witty, and the fine levied on Witty, was done be-
cause Witty was employed by a nonunion employer
General Counsel's Exhibit 6 shows the link, or connec-
tion, between the Respondent Union's fine and the col-
lective-bargaining authonty of Witty. General Counsel's
Exhibit 6 shows that the $16,000 fine levied by the
Union against Witty would be reduced to $8000—"pro-
ELECTRICAL WORKERS IBEW LOCAL 46 (PAC, INC ) 1367
vided that he sign a contract with Local 46 within the 30
days and his withdrawal be annulled in accordance with
the International Constitution Article XXVII, Section
5." Considering the link between the substantial reduc-
tion in the amount of the fine against Witty, and Witty's
exercising his collective-bargaining authority to sign a
contract with the Union, I conclude that I he evidence es-
tablishes that the Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
With regard to the Respondent's posttrial motion to
stay, or in the alternative, motion to reopen hearing, I
conclude that those motions lack merit because the Re-
spondent has not shown a basis for staying this proceed-
ing, nor has the Respondent shown that there is newly
discovered evidence, or evidence previously unavailable
to the Respondent which would be admissible in this
proceeding and which would warrant the reopening of
the trial.
CONCLUSIONS OF LAW
1. PAC, Inc. is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is, and has been at all times materi-
al herein, a labor organization within the meaning of
Section 2(5) of the Act.
3 Robert Witty is, and has been at all times material
herein, a representative of an employer, PAC, Inc., for
the purposes of collective bargaining and the adjustment
of grievances.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(1)(B) of the Act
by restraining and coercing an ernployer in the selection
of his representatives for the purposes of collective bar-
gaining and the adjustment of grievances by processing
internal union charges against Robert Witty; by holding
a trial before the Union's executive board on such
charges against Robert Witty; and levying a fine against
Robert Witty.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act
THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act, I shall recommend to the Board
that the Respondent be ordered to cease and desist from
engaging in such unfair labor practices. I shall also rec-
ommend to the Board that the Respondent be ordered to
take certain affirmative action in order to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
1 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
ORDER
The Respondent, International Brother of Electrical
Workers Local Union No. 46, affiliated with the Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
Seattle, Washington, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Restraining and coercing an employer, PAC, Inc.
in the selection of PAC, Inc.'s representatives for the
purposes of collective bargaining and the adjustment of
grievances by processing internal union charges against
Robert Witty; by holding a trial before the Union's exec-
utive board on such charges against Robert Witty; and
by levying a fine against Robert Witty
(b) In any like or related manner restraining or coerc-
ing PAC, Inc in the selection of representatives for the
purposes of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the fine levied against Robert Witty and
expunge from the Union's records all the documents re-
lating to the internal union charge, trial, and fine of
Robert Witty.
(b) Notify in writing both PAC, Inc. and Robert Witty
that the Union has taken the foregoing action.
(c) Post at its office in Seattle, Washington, copies of
the attached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain and coerce an employer, PAC,
Inc. in the selection of PAC, Inc.'s representatives for
the purposes of collective bargaining and the adjustment
of grievances by processing internal union charges
against Robert Witty; by holding a trial before the
Union's executive board on such charges against Robert
Witty; and by levying a fine against Robert Witty.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or
coerce PAC, Inc. in the selection of representatives for
the purposes of collective bargaining or the adjustment
of grievances.
WE WILL rescind the fine levied against Robert Witty,
and WE WILL expunge from the Union's records all doc-
uments relating to the internal union charge, trial, and
fine of Robert Witty.
WE WILL notify in writing both PAC, Inc. and Robert
Witty that we have taken the foregoing action.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS LOCAL UNION No. 46,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO