Electrical Workers, Local 71

National Labor Relations Board - Board Decisions

Apr 29, 1976

223 N.L.R.B. 1155 (N.L.R.B. 1976)

ELECTRICAL WORKERS , LOCAL 71 1155
International Brotherhood of Electrical Workers, Lo-
cal 71 , AFL-CIO (The Wagner-Smith Company)
and Clyde Endicott . Case 9-CB-2979
April 29, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On January 26, 1976, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
taining membership in the Respondent and employment
with the Employer. Respondent, by its duly filed answer,
generally admitted the jurisdictional allegations of the
complaint, but denied the commission of any unfair labor
practices?
The hearing was held in Dayton, Ohio, on October 15, in
which all parties participated. Posthearing briefs have been
received from counsel for the General Counsel, and from
counsel for the Respondent, which have been duly consid-
ered?
Upon the entire record in the case, including my obser-
vation of the demeanor of the witnesses,' I make the fol-
lowing:
FINDINGS OF FACT
1. COMMERCE
The complaint alleges, the answer admits, and I find that
at all times material the Company, an Ohio corporation,
with principal offices located at Dayton, Ohio, is engaged
in the business of commercial, electrical, and high line con-
struction. During the past 12 months, a representative peri-
od, the Employer performed services valued in excess of
$50,000 for customers located outside the State of Ohio.
During the same period, gross revenues of the Company
exceeded $500,000.
The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge: Upon an orig-
inal charge filed June 16, 1975,1 (amended July 17), by
Clyde Endicott, an individual, against International Broth-
erhood of Electrical Workers, Local 71, AFL-CIO (herein
the Respondent or Local 71), the General Counsel of the
National Labor Relations Board, through the Regional Di-
rector for Region 9 of the Board, issued his complaint and
notice of hearing dated July 31. The complaint, as amend-
ed at the hearing , alleges , in essence , that the Respondent
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended (herein the Act), by attempting
to cause The Wagner-Smith Company (herein the Compa-
ny or Employer) to unlawfully lay off or discharge the
Charging Party, and to unlawfully reduce his hourly wage
rate for other than his failure to tender to the Respondent
the periodic dues uniformly required as a condition of re-
1 All dates hereinafter refer to the calendar year 1975 unless otherwise
indicated.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
at all times material, International Brotherhood of Electri-
cal Workers, Local 71, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For a period of time prior to the events here in question,
the Employer had been engaged in the construction of a
powerline for the Cincinnati Gas and Electric Company
through the State of Ohio. During the first stages of con-
struction, the work fell within the jurisdiction of Local No.
981, IBEW; however, during the latter stages the work fell
within the jurisdiction of the Respondent.
The Charging Party, a member of Local No. 981, com-
menced working for the Employer on this job in February
2 In its answer, Respondent averred that the Board should stay this action
pending compliance with the grievance procedure established under its con-
tract with the Employer, in accordance with the doctrine set forth in Collyer
Insulated Wire, 192 NLRB 837 (1971). However, at the hearing, the
Respondent's motion to withdraw this affirmative defense was granted.
J Subsequent to the hearing Respondent also filed a motion that I take
official notice of certain records of the National Labor Relations Board
pertaining to a charge filed by the Respondent against the Company on
June 27, in Case 9-CA-9448. Such motion is hereby granted, and official
notice is taken of such documents.
4Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
223 NLRB No. 179
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, at a time when the work was in the jurisdiction of
Local 981. Although the Charging Party was a crane opera-
tor and the rate for that job under the existing collective-
bargaining agreement was $6.76 per hour, he was paid at a
lineman 's rate of $7.70 per hour.5 Endicott was paid his
higher rate because he had the capability of operating a
30-B type crane which was described by the Employer's
line construction superintendent, Elbert B. Lemasters, as a
particularly "tricky crane" to operate over hilly country.
Indeed, Lemasters testified, without contradiction, that En-
dicott was the only employee who could satisfactorily oper-
ate that crane, and that the Company switched Endicott
back and forth from the two jobs they were working at the
time rather than having an operator operate such crane at
each job. Lemasters further testified that at times when
Endicott might not have been present on any particular
occasion at the jobsite, no other employee operated that
crane.
The record shows that when the construction reached
the Respondent's jurisdiction-about the first of the year
1974-Respondent cleared Endicott to work in
Respondent's jurisdiction, and Respondent furnished the
Employer nine other crane operators for employment at
that time .6 The Company continued to pay the Charging
Party the hourly rate of $7.70, but paid the members of
Respondent the operator's rate of $6.76 per hour. Never-
theless , R. L. Wooddell, business manager of Respondent,
testified that he was unaware of this discrepancy since the
wage information he received from the Company in the
form of computer printouts showed only gross wages and
not rates per hour.
On April 30, Respondent was notified by the Company
that there would be a layoff of some employees effective
May 2. Lemasters testified that he telephoned Wooddell on
April 30 to advise him of the layoff and to tell him the
employees involved. Lemasters further testified that, after
discussing some other matters, Wooddell asked Lemasters
"about sending somebody down as a crane operator in
Clyde Endicott 's place ." Lemasters responded that he did
not want to do that.7
5 The collective -bargaining agreement covering the Employer and both
Locals of the IBEW named herein is entitled "Agreement between Ameri-
can Line Builders Chapter, NECA, and the International Brotherhood of
Electrical Workers (AFL-CIO), and the Local Unions herein designated
covering utility outside power and high tension pipe cable work ." See Joint
Exh. 1, pp. 34-35.
6 During the time of Endicott 's employment within Respondent's jurisdic-
tion, he paid the Respondent 2 percent of his gross wages, and remained a
member of Local 981.
7 Wooddell denied that he had a telephone conversation with Lemasters
on April 30 . He testified that on that date someone from the Company did
notify one of his secretaries that there would be a layoff of approximately 15
employees in May.
The credibility resolution on this aspect of the case has been extremely
difficult. As respects the factors of demeanor on the witness stand and
interest in the outcome of the proceedings , I am inclined to lean more
toward Lemasters ; on the other hand, Lemasters candidly admitted that his
recollection of some of the conversations he had with Wooddell was not
complete , and I am inclined to believe, under all circumstances , that his
testimony may have become somewhat confused . As respects the part of the
alleged April 30 conversation in which Lemasters asserted that Wooddell
said something about replacing Endicott, I note that : ( 1) there is no evi-
dence that , as of that time, there had been any complaint to Wooddell
which would have prompted him to make any such request; (2) Lemasters
On May 12, Wooddell telephoned Lemasters and told
him essentially two things: (1) that the Company was pay-
ing Endicott "too much money" and that they either had to
cut him back to an operator's rate or raise the pay of all
operators to $7.70 per hour; and (2) some laid-off members
of Local 71 had complained that they had been laid off
while a member of Local No. 981 was still employed. How-
ever, as previously noted, Lemasters stated that at no time
during the conversation of May 12 did Wooddell "tell me
to lay off anybody."
Lemasters testified that following the May 12 conversa-
tion, he went down to where Endicott was working and
told him that he would probably have his wages cut back.
Endicott said that he would not work for a crane operator's
wages, but Lemasters asked him to "think about it for a
while."
On May 14 Lemasters and Wooddell had another tele-
phone conversation concerning the matter. There is con-
flict in the record as to which individual initiated the con-
versation, but the thrust of it was that Lemasters advised
Wooddell that if the Company cut back Endicott's wages
the latter would probably quit. Wooddell replied, in es-
sence, that that would be all right with him (Wooddell),
and that if such an event occurred the Respondent would
be happy to supply the Company with another operator.
When Lemasters asked who Wooddell had in mind, Wood-
dell responded with the names of two laid-off members of
Local 71-Sutton and Clark. Lemasters was familiar with
both individuals, and was of the opinion that neither could
satisfactorily operate the 30-B crane.
During the May 14 telephone conversation, Lemasters
acknowledged that Wooddell told him that if the Company
did not cut back Endicott's pay, he (Wooddell) intended to
file a grievance. However Lemasters acknowledged that
Wooddell did not "threaten me regarding the layoff. I
mean , he didn't tell me I had to lay him off, no."
The record shows that on or about June 2 or 9.
Endicott's hourly rate was cut to conform with the
operator's rate, and he thereafter worked for the Company
until August 27 when he was laid off because all the work
had been completed.8 The record further shows that some
time in June the Respondent filed a grievance against the
Company, under. the collective-bargaining agreement, re-
garding the hourly rate paid Endicott. That grievance ran
its normal course and the final decision, which was ren-
dered August 11 against the Respondent stated that "no
violation of Article VIII, Section 8.01 and no additional
wages are due workers named in this dispute." 9
denied that in his subsequent conversations with Wooddell (discussed, in-
fra ), that the latter requested Lemasters to "lay off anybody": and (3) this
aspect of the conversation was, apparently, not initially reported to the
Board's investigator, since the complaint was amended at the hearing to
include the April 30 conversation as an additional violation.
Under all circumstances, were it necessary to determine credibility in
order to decide the case, I would be disinclined to fully credit Lemaster's
testimony on this aspect of the case. However, as indicated infra, such a
determination is not required since, even if credibility cuts the other way,
the result on the ultimate issue of "attempt to cause" would be unaffected.
8 The General Counsel does not contend that Endicott's layoff in August
was caused by any conduct of the Respondent.
9 See G.C. Exh. 3.
ELECTRICAL WORKERS , LOCAL 71 1157
B. Analysis and Concluding Findings
The issue in this case is, as previously mentioned, wheth-
er the conduct of the Respondent's agent Wooddell in
April and May constituted an attempt to cause the Em-
ployer to discriminate against the Charging Party in viola-
tion of Section 8(a)(3), thereby violating Section 8(b)(2)
and (1)(A) of the Act, or whether Respondent, by such
conduct, was merely seeking to police and enforce the rele-
vant provisions of its collective-bargaining contract with
the Employer. After a careful consideration of all of the
evidence in the record, I have concluded that the General
Counsel has failed to sustain his burden of proof on this
issue, and will therefore recommend that the complaint be
dismissed.
As respects the claim that the Respondent attempted to
cause the Employer to lay off or discharge the Charging
Party, the witness for.the General Counsel (Lemasters) spe-
cifically disclaimed any such attempt in the telephone con-
versations which he assertedly had with the Respondent's
business agent on May 12 and 14. He did mention that
Wooddell broached the subject in the April 30 telephone
conversation. I have previously set forth the difficulty I
have with fully crediting this aspect of Lemaster's testimo-
ny. But assume that Wooddell broached the subject in the
manner asserted, i.e., that he "asked about sending some-
body down as a crane operator in Clyde Endicott's place,"
such an inquiry, which certainly does not constitute a de-
mand or even a formal request, hardly rises to "an attempt
to cause . . . discrimination" within the meaning of the
Act. I therefore find a lack of substantial evidence to sus-
tain this allegation of the complaint.
The record evidence clearly shows that in May and June
the Respondent's agent attempted to cause-and did
cause-the Employer to reduce the Charging Party's hour-
ly rate. Such conduct was prompted by the complaints of
some of the members of the Respondent respecting the fact
that Endicott was receiving $7.70 per hour for operating a
crane whereas they had only been paid the rate set forth in
the contract, i.e. $6.76 per hour. Although I have no doubt
that Wooddell, as business representative of the Respon-
dent, would have been agreeable to having the problem
solved by the Employer's dismissal of Endicott from the
job, and subsequently replacing him with one of the mem-
bers of Respondent, this was not what Wooddell required
of the Employer, nor what the Employer did. Rather,
Wooddell merely demanded that the Employer abide by
the contractual provisions respecting the rate of pay of
crane operators.
Counsel for the General Counsel, in his brief, argues that
the bona fides of the Respondent's conduct on this aspect
of the case is seriously questioned since Wooddell must
have known about the discrepancy in wage rates between
Endicott and the other crane operators for some time, and
acquiesced in it. Counsel for the General Counsel further
claims that this was the reason that Respondent lost its
grievance against the Company. Wooddell denied knowl-
edge of the disparity in wage rates until it was called to his
attention in May, claiming, as previously noted, that the
wage information supplied the Respondent was in terms of
gross wages and not in terms of wage rates. There was no
evidence presented in the hearing to refute this. But even
assuming the contrary, arguendo, as argued by the General
Counsel, the failure of Respondent to prevail in the griev-
ance procedure does not convert the conduct to an unfair
labor practice under the Act. So long as no complaints
from his members were forthcoming, it was not compelling
upon Wooddell to upset the apparently amicable relation-
ship between the Respondent and the Company. The evi-
dence shows that it was only after the matter was brought
to his attention that Wooddell sought complaince with the
contract by either reducing Endicott's wage rate or retroac-
tively raising the other crane operators' wage rate. Also,
contrary to the contentions of counsel for the General
Counsel, the Respondent did, in fact, file unfair labor prac-
tice charges against the Employer alleging a violation of
Section 8(a)(5) in that the Employer had bypassed the Re-
spondent by negotiating Endicott's pay rate with Endicott
individually.
On the basis of all of the foregoing, including a consider-
ation that there is a lack of proof herein of an intent on the
part of Respondent's officials to discriminate in favor of
their members vis-a-vis members of other locals of the In-
ternational Union,1° I find that the evidence considered as
a whole does not preponderate in favor of the General
Counsel and that the Respondent, by its conduct, acted
legitimately in seeking to enforce its contractual rights. As
counsel for the General Counsel stated in his opening re-
marks, "Now if you, the judge, were to find that all that
was involved was an effort by the Respondent to enforce
its contract, then General Counsel would have no case
11
Accordingly, I shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Wagner-Smith Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not, as alleged in the complaint,
engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
IIORDER
The complaint is dismissed in its entirety.
iu Cf. Local Union 8, IBEW (Romanoff Electrical Corp.), 221 NLRB No.
180 (1976).
" 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.