IBEW, Local 34

National Labor Relations Board - Board Decisions

Jan 23, 1974

208 N.L.R.B. 639 (N.L.R.B. 1974)

IBEW , LOCAL 34 639
International Brotherhood of Electrical Workers,
Local Union No. 34, AFL-CIO (Protection
Alarms, Inc.) and Robert L. Gerkin. Case
38-CB-521
demeanor of the witnesses, and after due consideration of
the General Counsel's brief, I make the following:
FINDINGS OF FACT
January 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 22, 1973, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions with a brief in
support thereof, as well as a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decisio_-i 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent. International Broth-
erhood of Electrical Workers, Local Union No. 34,
AFL-CIO, its officers, agents, and representatives,
shall take the act'on set forth in said recommended
Order.
DECISION
STATEMENT OF THE CASE
MARION C. LADwiG: This case was tried at Peoria,
Illinois, on July 12 13, 1973.1 The charge was filed on
March 27 by an individual, Robert Gerkin, and the
complaint was issued on May 1. The primary issue is
whether the Union,2 the Respondent, unlawfully filed
intraunion charges against and fined Gerkin and two other
members because they filed an unfair labor practice charge
with the Board or gave testimony in support of the Board
charge, in violation of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended.
Upon the entire record,3 including my observation of the
' All dates are in 1973 unless otherwise stated.
2 The name of the Union was amended at the trial.
1. JURISDICTION
Protection Alarms, Inc., herein called the Company, is
an Illinois corporation, engaged in installing burglar and
fire alarms at Peoria, Illinois, where it annually receives
goods valued in excess of $50,000 directly from outside the
State. The Union admits, and I find, that the Company is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Filing of Board Charge
The Company and the Union were in the process of
negotiating a new collective-bargaining agreement when
the Company, on the morning of January 4, discharged six
of its nine burglar alarm installers after they had gone the
evening before to a competitor's plant to check on the
possibility of obtaining employment in the event of a
strike. That same morning the Company and the Union
agreed to submit the discharges to arbitration under their
old collective-bargaining agreement, which had been
extended from its expiration date of December 31, 1972, to
January 14.
Despite this referral of the discharges to arbitration, one
of the discharged employees, Robert Bear, filed a Board
charge against the Company, in Case 38-CA-1646,
alleging that the Company had discriminatorily discharged
the six employees because of their union and concerted
activities, and had "engaged in a course of conduct
demonstrating bad faith bargaining." Two of the other
discharged employees, Union Steward Gerkin and Gerald
Nevitt, submitted testimony in the form of affidavits to a
Board attorney to support the charges. Meanwhile, the
Union's business agent, Michael Miller, notified the
discharged employees in writing that their arbitration case
was scheduled for trial on January 31, that a meeting
would be held in Miller's office on January 30, and that the
meeting "will be attended by Mr. Jean Souders, Attorney
for" the Union-indicating that the attorney would handle
the arbitration case for the Union.
A few days later, on January 17, member Bear was
informed by the Board attorney that Union Attorney
Souders had requested copies of Gerkin's and Nevitt's
affidavits. Bear then placed a brief, 2- or 3-minute long
distance telephone call to Souders to verify the request. As
Bear credibly testified, Souders confirmed that he wanted
the material, and stated "that it would be extremely helpful
in the preparation of the arbitration case." Bear next
contacted Gerkin and Nevitt, and told them that the union
attorney wanted their Board statements to prepare for the
3 The General Counsel's unopposed motion to correct transcript, dated
August 10, is granted and the transcript is corrected accordingly
208 NLRB No. S-1
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration case . Gerkin and Nevitt agreed and Bear sent
the affidavits to the attorney.
On January 30, an attorney from Souders' office
attended the meeting at the union hall. Upon hearing
Steward Gerkm 's oral account of what transpired on the
evening of January 3 , the attorney advised that the
arbitration case should be settled , with the six employees
getting reinstatement without backpay , and the Board
charge being dropped . The employees agreed , and the case
was settled on that basis before the arbitrator the following
morning.
B. Complaints About the Board Charge
It is undisputed that Business Agent Miller repeatedly
complained about the adverse affect of the Board charge
on the negotiations with the Company . As credibly
testified by Bear, Miller told him in a telephone call about
the second or third week in January "that the charges
which I had filed with the National Labor Relations Board
were bringing in a lot more stress on the negotiations," and
that Bear "should have waited until after the arbitration
case" before filing charges. About a week later, in a
meeting with the discharged employees, Miller stated that
the Board "was bringing stress upon the negotiations with
the Company."
On February 1 (the day following the settlement of the
arbitration case), member Bear went at Business Manager
Miller 's request to the union hall. Miller and Bear
discussed the negotiations , and Miller again "brought out
the fact that I had filed the charges with the National
Labor Relations Board even though it was my own
business as far as going to the . . . Board, it had created a
lot of stress on the negotiations."
Two weeks later , Business Manager Miller demonstrated
his continued concern about member Bear filing the Board
charge and about members Gerkin and Nevitt giving
purportedly "false" or "untrue" testimony in support of it.
C. Intraunion Charges and Fines
On February 14, Business Agent Miller filed union
charges against the three members who were involved in
filing and supporting the Board charge against the
Company . Miller's charges, against Gerkin , Bear, and
Nevitt, included allegations that each of them violated
subsections 8 and 14 of section 1, article 27, of the
International 's constitution . These subsections read:
(8) Sending letters or statements, anonymous or
otherwise, or making oral statements , to public officials
or others which contain untruths about , or which
misrepresent a L.U., its officers or representatives... .
[Emphasis supplied.]
edge of Union business who were not entitled to such
knowledge, and testified to false information regarding
same . He also furnished another employee with testimony
that by-passed the office of Business Manager and
directed to the Union Attorney without proper authori-
zation.
Robert Bear did send statements of others to a
person containing untrue statements concerning this
L.U. He did not seek nor receive the advice , or consent,
or approval of the Business Manager.
Gerald Nevitt did deliver to Robert Bear his sworn
statement which was sent to a person not entitled to
information of the business of this L . U. He did not seek
nor receive the advice , or consent, or approval of the
Business Manager . [Emphasis supplied.]
On their face, the charges alleged that Gerkin "testified
to false information," and supplied this information to
"other persons . . . not entitled to such knowledge"
-clearly referring to Gerkin giving the sworn statement
to the Board attorney. The charges separately alleged that
Gerkin furnished this testimony (his sworn statement) to
another employee (Bear) to be furnished to the union
attorney "without proper authorization." The charges
against Bear referred to his sending "statements of others"
(Gerkin's and Nevitt's affidavits) to a person (the union
attorney) without "approval of the Business Manager,"
and described the material as "untrue statements." The
charges against Nevitt referred to his delivering to Bear his
"sworn statement" to be sent to a person (the union
attorney) "without approval of the Business Manager."
Thus, the charges on their face show that Business
Manager Miller was motivated by his concern about
Gerkin and Nevitt giving "false information" and "untrue
statements" to the Board attorney, and the three employees
taking part in furnishing this purportedly untrue informa-
tion, without clearance from the business manager, to the
attorney retained by the Union to handle the arbitration
case (involving the discharge of these and three other
employees).
Over 3 weeks later, on March 8, Business Manager
Miller deleted the direct references to giving false testimo-
ny to persons "not entitled to such knowledge," and to
sending "untrue statements" to the union attorney, and
added a theory to justify the charges that the three
discharged employees were violating the International
constitution by furnishing information to the attorney
whom the Union had notified the employees would handle
their discharge case before the arbitrator. Apparently being
advised that his February 14 charges were illegal on their
face, Miller filed amended charges against the three
employees and formally notified them that "These union
charges in no way relate to any unfair labor practice
charges" filed in the Board case.
The March 8 amended intraunion charges read:
(14) Making known the business of a L.U. to persons
not entitled to such knowledge. [Emphasis supplied.]
The charges alleged as violations:
Robert Gerkin . . . supplied other persons of knowl-
Robert Gerkin . . . did bypass the office of Business
Manager in matters relating to the arbitration case
against Protection Alarms Inc. by delivering to Robert
Bear the statement to be forwarded directly to the
attorney for the Union , at an unauthorized cost to this
IBEW, LOCAL 34 641
Local Union without the advice, consent or approval of
the Business Manager.
Robert Bear did bypass the office of Business
Manager in matters relating to the arbitration case
against Protection Alarms, Inc. by sending statements
of others directly to the attorney for the Union , and by-
passing the Business Manager in calling such attorney,
at an unauthorized expense to this Local.
Gerald Nevitt did bypass the office of Business
Manager in matter relating to the arbitration case
against Protection Alarms Inc. by delivering to Robert
Bear the statement to be forwarded directly to the
attorney for the Union , at an unauthorized cost , to this
Local Union without the advice , consent or approval of
the Business Manager. [Emphasis supplied.]
Apparently through inadvertence , Business Manager Mill-
er retained in the amended charges the allegation that the
above-quoted subsection 8 (concerning sending untrue
statements about the Union to public officials or others)
was one of the constitutional provisions which had been
violated.
Thus the amended charges still dealt with Gerkin's and
Nevitt's Board affidavits, and alleged that the actions of
the three employees in sending this information to the
union attorney caused an unauthorized expense. Not only
is the evidence up denied that the union attorney had
requested copies of the affidavits to assist him in preparing
for the arbitration case, but at no time has the Union
established that the attorney made any charge for
confirming to member Bear (when Bear telephoned him)
that the attorney did want the affidavits or, for quickly
glancing at the affidavits upon receiving them , to see what
they were , before placing them in the file-for later use, as
it turned out, by another attorney in the office while
preparing for the arbitration case. (In this connection, I
credit Bear's positive testimony that nothing was men-
tioned in his short telephone conversation on January 17
with the attorney about Miller or about taking the
affidavits to the union hall.)
At their separate union teals on March 17, the three
employees were advised that the subsection 8 allegation
had been withdrawn , and that no mention could be made
to the Board or the Board charge. Bear and Nevitt denied
that they were aware that furnishing the information to the
union attorney violated the International constitution, but
pleaded guilty. Beth were found guilty of violating
subsection 14 ("Making known" union business "to
persons not entitled to such knowledge") and subsection 3
("Violation of any provision of this Constitution . . .").
Bear was also found guilty of violating subsection 4 (failing
to file union charges against known offender and to notify
the Union). In letters dated March 21 , the Union advised
them of these findings , fined Nevitt $ 100 and Bear $150,
and "suspended " them "from attending Local 34, IBEW
regular meetings and social events of Local 34 for two
years, starting March 17, 1973."
Gerkin 's trial was much longer, because he had also been
charged , as a union steward , with a number of other
violations . On March 21 , he was notified that he had been
found guilty of five violations , fined $250 . and suspended.
(On March 27 , he filed a decertification petition, which
resulted in the Union being decertified . The Union filed
additional charges against him and expelled him. There is
no allegation herein that his expulsion violated the Act.)
D. Contentions and Concluding Findings
The General Counsel contends that although Business
Manager Miller amended the charges against members
Gerkin , Bear , and Nevitt , withdrawing the patently illegal
allegations that the employees had violated subsection 8
(concerning sending untrue statements about the Union to
public officials and others ), the original , illegal charges
indicate Miller's motive for filing the charges, and that
"these particular members were singled out from the other
alarm installers because they and they alone filed charges
with, and/or gave testimony to the National Labor
Relations Board , an action which Miller opposed and
resented ." The General Counsel also argues that "the
substance of the charges against Bear, Gerkin and Nevitt
which pertained to sending the affidavits submitted to the
NLRB during its investigation to the union attorney is,
under the circumstances, so ludicrous that it is clear that
Miller wanted to retaliate against Gerkin , Bear and Nevitt
in any way that he could."
Business Manager Miller did not testify at the trial
herein , and the Union did not file a brief . The Union's
position , as stated at the trial , was that the March 17 union
trials "in no way related to the activities of these men
before the NLRB," and that the charges concerned
"themselves with the fact that as long as these men had
voted the Union in to represent them, they were bound to
work through the Union, to deal in good faith with the
Union , to not bypass the union representative, to not
mislead the union representatives , and this they did not
do."
I agree with the General Counsel that the original
wording of the intraunion charges , under the circum-
stances of this case, revealed Business Manager Miller's
illegal motivation in filing the charges against three of the
six discharged employees : a clear reprisal for their filing
the charge , or given supporting testimony , against Miller's
will. I further find that the amended intraunion char-
ges-related to submitting the Board affidavits directly to
the union attorney , who had requested them after being
retained by the Union to handle the employees' discharge
case before the arbitrator-are so insubstantial that they
demonstrate Miller 's determination to retaliate indirectly
against the three employees for their filing and supporting
the Board charge, which he repeatedly protested as
interfering with the negotiations with the Company. I
therefore find , as alleged in the complaint , that the Union
filed the charges against , and fined, Gerkin , Bear, and
Nevitt because they filed the Board charge or gave
supporting testimony , in violation of Section 8(b)(1)(A) of
the Act . Local 138, Operating Engineers (Charles Skura),
148 NLRB 679 (1964).
The complaint also alleges that other reasons for the
intraunion charges and fines were the employees' actions
in advocating withdrawal from the Union, opposing
advice, recommendations , and conduct of the union
officials during contract negotiations , and making appeals
to the International . However, these are intraunion
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters, not concerning a Board charge or petition, cf. Tri-
Rivers Marine Engineers Union (United States Steel Corp.),
189 NLRB 838 (1971), and not involving threats to their
jobs, cf. Roadway Express, Inc., 108 NLRB 874, 875, 882
(1954). I therefore find that, even if the Union had these
other reasons for charging and fining the three employees,
the Union did not further violate the Act by being so
motivated. I also find, because of the wording of the
original intraunion charges, the insubstantial nature of the.
allegations concerning the Board affidavits being sent
directly to the union attorney, and all the circumstances,
that the Union's above-found illegal motivation (related to
the filing and supporting of the Board charge) was a
substantial, if not the controlling, reason for singling out
and fining Gerkin, Bear, and Nevitt.
CONCLUSION OF LAW
By filing intraunion charges against and fining members
Robert Gerkin, Robert Bear, and Gerald Nevitt because
they filed a Board charge or gave supporting testimony, the
Union engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(1)(A) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent Local 34 has engaged
in certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Because of the unlawful action taken by the Respondent
against the three members, I find it necessary that the
Respondent be ordered to expunge from the members'
records all papers related to the February 14 and March 8
charges against them, the March 17 trial, and the March 21
findings of the trial board; to rescind the fines and
suspensions; and to reinstate Bear and Nevitt to member-
ship in good standing if they so request.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4
Respondent, International Brotherhood of Electrical
Workers, Local Union No. 34, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Filing charges or imposing fines against, or otherwise
disciplining, its members for filing or giving testimony to
support any unfair labor practice charge before the Board.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind and revoke the March 21, 1973, fines and
suspensions imposed against Robert Gerkin, Robert Bear,
and Gerald Nevitt, and expunge from their records all
papers related thereto as provided in the "Remedy" section
of this Decision.
(b) Reinstate Bear and Nevitt to membership in good
standing if they so request.
(c) Post in conspicuous places in its offices and union
hall in Peoria, Illinois, where notices to members are
customarily posted, copies of the attached notice marked
"Appendix."5 Copies of the notice, on forms provided by,
the Officer-In-Charge for Subregion 38, after being duly
signed by an authorized representative of the Respondent,
shall be maintained for 60 consecutive days thereafter.
Reasonable 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 Officer-In-Charge, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
4 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.
5 In the event that the Board 's Order is enforced by a judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal law by filing union charges,
and imposing fines, against three of our members for filing
a Board charge or giving testimony to a Board agent:
WE WILL revoke the March 21, 1973, fines and
suspensions imposed against Robert Gerkin, Robert
Bear, and Gerald Nevitt.
WE WILL reinstate Robert Bear and Gerald Nevitt as
members in good standing if they so request.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL UNION No. 34,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
IBEW , LOCAL 34 643
This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be
anyone. directed to the Board 's Office. Savings Center Tower, IOth
This notice must remain posted for 60 consecutive days Floor, 411 Hamilton Boulevard , Peona, Illinois 61602,
from the date of posting and must not be altered , defaced, Telephone 309-673-9283.
or covered by any other matenal . Any questions concern-