International Brotherhood of Electrical Workers, Local Union No. 453 (Southern Sun Electric Corporation)

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 862 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 453 and Southern Sun Electric
Corporation.1 Case 17-CB-2192
August 31, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On November 19, 1981, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, counsel for the
General Counsel and Respondent filed exceptions
and briefs, counsel for the Charging Party filed
cross-exceptions and a supporting brief, and Re-
spondent filed a brief in opposition thereto.
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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded, and
we agree, that Respondent's fining of Samuel
Miller while he was working for Southern Sun, an
employer with whom Respondent was engaged in
a long and bitter dispute, violated Section
8(b)(1)(A) of the Act. However, we do not adopt
the Administrative Law Judge's finding that the
fine was unlawful because it was levied "in the
context" of Respondent's contemporaneous unlaw-
ful picketing of Southern Sun and because Miller
worked for Southern Sun and, therefore, was in
furtherance of the same proscribed recognitional
objective.2 Rather, we find the fining of Miller un-
lawful for the following reasons:
The credited evidence shows that Miller, a
"traveler" from Respondent's sister local in Cali-
fornia where he has been a member since 1958, tes-
tified against Respondent during an unfair labor
practice proceeding in November 1978,3 and there-
after received no further referrals through Re-
spondent's hiring hall. On March 14 and 16, 1979,
Miller requested Business Manager Hensley to reg-
ister him on the hiring hall's group I roster, which
i We have corrected the inadvertent misspelling of the name of the
Charging Party.
International Brotherhood of Electrical Workers, Local 453 (Southern
Sun Electric Corporation), 252 NLRB 719 (1980), found that said picket-
ing waas violative of Sec. 8(bX7XA) of the Act.
3 Sachs Electric Company, 248 NLRB 669 (1980), where the respond-
ent, inter alia, was found to have unlawfully prevented qualified travelers
from signing its group I hiring hall referral list, and attempted to coerce
working travelers to vacate their jobs in favor of the respondent's unem-
ployed member&
263 NLRB No. 115
Hensley declined to do without checking into Mill-
er's qualifications, saying that he was of the opin-
ion that Miller was not qualified, and cautioning
him against forcing his name ahead of Respond-
ent's out-of-work members. Hensley further ad-
vised Miller he could appeal to the joint appeals
committee if he did not like it. That led to the
filing of an unfair labor practice charge against Re-
spondent by attorney Donald Jones, who had
brought the earlier Board proceeding against Re-
spondent and whom Respondent regarded as
anathema because of his involvement with the Na-
tional Right To Work Defense Fund.
Miller successfully appealed Hensley's decision
and was allowed to sign the group I roster on
March 22 by Hensley, who warned him that he
was making a "big mistake." The unfair labor prac-
tice charge subsequently was withdrawn, and
Miller obtained a job with Southern Sun in April
or May 1979 without Respondent's help or knowl-
edge. On July 10, Miller appeared at a hearing on
behalf of a fellow traveler-grievant who was repre-
sented by attorney Jones, and 6 days later internal
union charges were filed against Miller by Re-
spondent's vice president, Day, alleging union con-
stitutional violations based on his having been ob-
served working for Southern Sun on May 29.
Miller was tried and found guilty of violating four
constitutional provisions, the main thrust of which
prohibits "working for any . . . company declared
in difficulty with" the Union, and fined a total of
$1,000. Two others, however, were fined $350 and
$500, respectively, for violating three of the four
provisions for which Miller was fined $800.
The Administrative Law Judge noted that Re-
spondent failed adequately to explain either Day's
2-month delay in filing the charges against Miller
or the excessiveness of Miller's fines as compared
with the lesser fines levied against the two other
individuals who also violated three of the same
constitutional provisions by working for employers
in disfavor. He nonetheless found "no firm evi-
dence" that Miller's charges and fines were influ-
enced by anything other than his working for Re-
spondent's "arch enemy," Southern Sun, or that
such charges and fines would not have occurred
absent his protected activities, citing Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083
(1980), as authority. Accordingly, he predicated
the illegality of the charges and fines on an infer-
ence that they were imposed in the context of, and
were in furtherance of, Respondent's contempora-
neous unlawful picketing of Southern Sun.
Contrary to the Administrative Law Judge, we
are persuaded that Miller's unwelcome pursuit of
his and other travelers' rights to job referrals based
862
IBEW, LOCAL 453
on qualifications, Respondent's admittedly disparate
treatment of travelers vis-a-vis its members, the
timing of the internal union charges, and the dis-
parate amounts of his fines firmly indicate that Re-
spondent's actions were not based on its asserted
reason, i.e., Miller's employment by Southern Sun.
We find, instead, that Respondent opportunely
seized upon Miller's asserted violation of its consti-
tution as a vehicle to conceal its retaliation against
him because he engaged in the aforesaid protected
activities. We further find that Respondent violated
Section 8(b)(1)(A) of the Act by its failure to
tender Miller job referrals through its hiring hall
and by its refusal to register him on the priority re-
ferral roster for which he was qualified. We also
find that such conduct severely impaired his job
prospects and placed him in the position of having
to take any available employment, and that, by
placing Miller in that position and then fining him
because of it, Respondent further violated Section
8(b)(l)(A) of the Act.
The Board, on the basis of the foregoing facts,
and the entire record, makes the following:
AMENDED CONCLUSION OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law:
"By failing to tender Samuel Miller job referrals;
by failing to register him on the priority referral
roster, which placed him in the position of having
to take any available employment; and by fining
him for taking such employment, Respondent vio-
lated Section 8(b)(l)(A) of the Act."
THE REMEDY
Having found that Respondent violated Section
8(b)(l)(A) of the Act in the manner set forth
herein, we shall order Respondent to cease and
desist therefrom and to take affirmative action de-
signed to effectuate the policies of the Act.
ORDER
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, as modi-
fied below, and hereby orders that the Respondent,
International Brotherhood of Electrical Workers,
Local Union No. 453, Springfield, Missouri, its offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph l(a),
deleting paragraph l(b) and renumbering paragraph
l(c) as l(b):
"(a) Restraining or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act by refusing to tender Miller job refer-
rals; by refusing to register him on referral rosters
based on qualifications; and by fining or otherwise
disciplining Miller or other members for accepting
employment with Southern Sun Electric Corpora-
tion, or any other employers, as a consequence
where such fine or discipline is imposed to accom-
plish an object unlawful under the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT restrain or coerce employees
in the exercise of the rights guaranteed them
by Section 7 of the Act by refusing to tender
them job referrals, or by refusing to register
them on referral rosters based on qualifica-
tions, or by fining or otherwise disciplining
members for accepting employment with
Southern Sun Electric Corporation, or any
other employer, where such fine or discipline
is imposed to accomplish an objective unlaw-
ful under the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WILL rescind the fine imposed against
Samuel Miller after a hearing held on Septem-
ber 27, 1979; and, having previously refunded
to him the payments made on said fine, WE
WILL make him whole for interest lost on said
payments.
WE WILL expunge from our records any
documents, entries, or other evidence that
Samuel Miller was found to be in violation of
certain provisions of the IBEW constitution,
and therefore fined as described in the preced-
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing paragraph; and WE WILL inform Miller in
writing that this has been done.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL
UNION No. 453
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
case was heard before me in Springfield, Missouri, on
February 3 and 4, 1981. The charge was filed on January
16, 1980, by Southern Sun Electric Corporation (South-
ern Sun). The complaint issued on August 7, 1980, was
amended during the hearing, and alleges that Internation-
al Brotherhood of Electrical Workers, Local Union No.
453 (Respondent), assessed a fine against Samuel Miller
on October 2, 1979, in retribution for his assorted pro-
tected activities, thereby violating Section 8(b)(IXA) of
the National Labor Relations Act, as amended (the Act).
I. JURISDICTION
Respondent's asserted basis for fining Miller is that he
was apprehended working for Southern Sun.
Southern Sun is an electrical contractor located in
Springfield. It annually purchases and causes to be
shipped into Missouri directly from outside the State
goods and materials of a value exceeding $50,000.
Southern Sun is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Background: Respondent and Southern Sun have been
locked in a dispute of several years' duration.
In March 1976, Respondent picketed Southern Sun for
about a week with signs stating that Southern Sun "does
not employ the members of" Respondent. This prompted
Southern Sun to charge Respondent with, and the Gen-
eral Counsel to prosecute it for, violating Section
8(b)(4)(B) of the Act. The Board, overruling the Admin-
istrative Law Judge, concluded that a violation had not
occurred. Local 453, International Brotherhood of Electri-
cal Workers (Southern Sun Electric Corp.), 237 NLRB 829
(1978). The Board was affirmed in Southern Sun Electric
Corporation v. N.LR.B., 620 F.2d 170 (8th Cir. 1980).
The March 1976 picketing was followed by an NLRB
election and Respondent's being certified, in May 1976,
as the representative of Southern Sun's employees.2 Sub-
' Respondent, in its brief, characterizes the dispute as "much publi-
cized and bitterly contested."
Case 17-RC-7996.
sequent negotiations failed to yield a contract; and, in
May 1978, in the aftermath of an NLRB election in
which Respondent and a rival labor organization, Con-
gress of Independent Unions (CIU), were on the ballot,
CIU became the certified representative of the Southern
Sun employees.3 Southern Sun and CIU entered into a 3-
year contract on June 25, 1978.
In July 1978, Respondent began picketing Southern
Sun anew, with signs stating that Southern Sun's em-
ployees were "receiving wages, benefits and working
conditions that are substandard to that received by mem-
bers of' Respondent. This caused CIU to charge Re-
spondent with, and the General Counsel to prosecute it
for, violating Section 8(bX7XA) of the Act.4 The Board,
again overruling the Administrative Law Judge, con-
cluded that there had been no violation. International
Brotherhood of Electrical Workers, Local 453, AFL-CIO
(Southern Sun Electric Corporation), 242 NLRB 1130
(1979). The Board in turn was reversed in Congress ofl In-
dependent Unions [Southern Sun Electric Corporation] v.
N.LR.B., 620 F.2d 172 (8th Cir. 1980).
The Board Decision just mentioned issued on June 13,
1979. Respondent's picketing of Southern Sun, which
had been enjoined during the pendency of that decision,
resumed with the same signs on June 22, 1979. In addi-
tion, between June and October 1979, Respondent's busi-
ness manager, Jim Hensley, sent identical letters to some
14 principals and general contractors in the Springfield
area, informing them that Respondent planned to picket
their projects because "some electrical work is being per-
formed by" Southern Sun, the letters adding that South-
ern Sun's employees "are working for wages and under
conditions which are substandard to those which our
Union has struggled many years to obtain." Respondent
also ran a number of advertisements in the weekly
Springfield Labor Record at or about this time, which,
beneath a "Please-Do-Not-Patronize" caption, identified
projects on which Southern Sun and others in disfavor
were engaged and noted that the work "is not being
done by" members of Respondent.
This latest picketing and related activity moved South-
ern Sun to charge Respondent with, and the General
Counsel again to prosecute it for, violating Section
8(b)7XA). The Administrative Law Judge and the
Board both concluded, this time, that the picketing had a
proscribed recognitional object and thus was improper.
International Brotherhood of Electrical Workers, Local 453
(Southern Sun Electric Corporation), 252 NLRB 719
(1980).
The fining of Miller. Miller is a journeyman wireman.
He belonged to Respondent's sister local in Los Angeles,
California, from 1958 through September 30, 1979, at
which time he was dropped from membership because of
a dues delinquency. He moved to the Springfield area in
1976, and began working as a "traveler," i.e., without
Case 17-RC-8418.
4 Sec. (bX7)(A) makes it an unfair labor practice for a labor organiza-
tion "to picket or cause to be picketed, or threaten to picket or cause to
be picketed any employer," if an object is recognition, "where the em-
ployer has lawfully recognized . . . any other labor organization and a
question concerning representation may not appropriately be raised
864
IBEW, LOCAL 453
shifting his membership to Respondent, out of Respond-
ent's hiring hall.
Miller went to work for Southern Sun in April or May
1979, remaining until late July. He obtained the job with-
out Respondent's help or knowledge. As previously
noted, Southern Sun's employees were then represented
by CIU.5 In the 5 or 6 months preceding his hire by
Southern Sun, Miller had been tendered no referrals by
Respondent. Hensley, Respondent's business manager,
testified that that was "a cold winter" from a job stand-
point.
On July 16, 1979, i.e., about 24 days after Respondent
began its latest round of picketing against Southern Sun
following the favorable Board decision reported at 242
NLRB 1130, Don Day, a vice president of Respondent
from 1976 to June 1978, submitted a letter to Robert
Willis, Respondent's recording secretary, charging Miller
with violating four provisions of the constitution of the
parent organization (IBEW) and one of Respondent's
bylaws. Day's letter elaborated:
The violation occurred as follows: I observed Sam
Miller working at the Fremont Shopping Center.
He was working with Southern Sun employees as
an electrician for Southern Sun Electric. This
project is adjacent to the Heritage Cafeteria where
I was working.
The violation occurred on May 29, 1979 at 2:30
p.m.
On September 27, Respondent's trial board conducted
a hearing on the charges, consisting of testimony from
Day. Miller did not attend, explaining: "I was afraid of
my well-being; it was after dark and I was afraid to go
down there."6 The trial board, comprised of the five
people who make up Respondent's executive board, con-
cluded that Miller was guilty of the four alleged consti-
tutional violations, but not of the alleged bylaw viola-
tion, and assessed fines totaling $1,000.
More specifically, Miller was fined $200 each for vio-
lating article 22, section 4, and article 27, section 1, sub-
section 3, of the IBEW constitution; and S300 each for
violating subsections 10 and 21 of article 27, section 1.
Article 22, section 4, requires members to "promise
and agree to and abide by the Constitution and laws of
the IBEW and its local unions." Article 27, section 1,
subsection 3, proscribes the "violation of any provision
of this Constitution and the rules herein, or the by-laws,
working agreements, or rules of a L.U." 7 Subsection 10
' Miller, however, did not join CIU.
6 By letter dated August 21, Miller had requested that the hearing,
then set for the night of August 23, be rescheduled for a Saturday morn-
ing. The letter cited unspecified "physical threats of violence." The trial
board, although not complying, did reset the hearing for August 31 at
5:30 p.m. Then, being concerned whether Miller "had been properly noti-
fied" of that change, the trial board again reset it, for September 27 at 9
p.m. By letter dated September I 11, Miller made a second request that the
hearing be on a Saturday morning, his reason this time being that it
would enable Bill Rodman, a fellow traveler out of the Los Angeles
local, to "appear with me as my counsel." Explaining why this request
was not granted, Roger Testerman, trial board secretary, testified: "Our
feeling was that we should not set it at his convenience, but maybe at our
convenience."
' "L.U." meaning local union.
of that article and section bans "working in the interest
of any organization or cause which is detrimental to, or
opposed to, the IBEW"; and subsection 21 prohibits
"working for any individual or company declared in dif-
ficulty with a L.U. or the IBEW, in accordance with this
Constitution."
Willis informed Miller of the trial board's decision by
letter dated October 2. Miller undertook immediate ef-
forts to perfect an appeal, meanwhile paying S80 against
the fine-$20 each in October, November, December,
and January. 8 At length, after a considerable amount of
correspondence, Miller received a letter dated June 17,
1980, from Charles Pillard, IBEW president, stating that,
since the Los Angeles local had dropped Miller from
membership on September 30, 1979, the trial board's
"October 2 decision was and is, practically speaking, aca-
demic."9
That was followed by a letter dated June 26, to Miller
from Hensley, tendering a refund of the $80 Miller had
paid and stating that "the matter is closed in that you
were dropped from membership . . . on September 30,
1979 .... "
Miller's allegedly protected activities: On November 20,
1978, Miller testified on behalf of the General Counsel in
a consolidated unfair labor practice proceeding against
Respondent and an employer known as Sachs Electric
Company. In that testimony, he described conversations
with a job steward in which the steward had quoted
Hensley as saying, in essence, that he wanted all travel-
ers to leave the project to create openings for unem-
ployed members of Respondent. The Administrative
Law Judge, in a decision dated July 17, 1979, concluded
that this conduct was not improper. The Board, howev-
er, in a decision issuing the following March, concluded
that it was coercive and thus in violation of Section
8(b)(1)(A). Sachs Electric Company, 248 NLRB 669
(1980).
The Board further concluded, in agreement with the
Administrative Law Judge, that Respondent had violated
Section 8(b)(1)(A) and (2) by refusing to let two qualified
travelers sign the group I referral list in its hiring hall,t o
and that it had violated Section 8(bXIXA) by threatening
to file and in fact filing internal union charges against
one or the other of those two travelers. One of the two
a The IBEW constitution states: "No appeal for revocation of an as-
sessment shall be recognized unless the member has first paid the assess-
ment, which he can do under protest. When the assessment exceeds
twenty-five dollars ($25.00). payments of not less than twenty dollars
(S20.00) in monthly installments must be made." Miller had sought with-
out success to obtain a waiver of this requirement
I The Los Angeles local informed Respondent by letter dated October
8, 1979., that Miller "was dropped from membership as of October 1,
1979, for nonpayment of dues."
o1 The contract then in effect between Respondent and the Springfield
Division of the Kansas City Chapter, National Electrical Contractors'
Association, provided that Respondent was "the sole and exclusive
source of referrals," and that job applicants were to be in four groups.
Group 1, that of highest priority, was to consist of those with at least 4
years' experience in the trade who lived in Respondent's jurisdictional
area, had passed a journeyman's examination, and had worked no less
than I of the past 4 years under a contract between the parties to the
current contract. Group II was to consist of those with 4 years' experi-
ence in the trade who had passed a journeyman's examination Groups
III and IV were to consist of those with fewer qualifications
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
travelers in question was Bill Rodman, identified by
Miller to the trial board, in his second letter seeking a
Saturday hearing, as the one Miller wanted to act as his
counsel. 1 The other was Larry Nolan.
The charges in Sachs Electric Company, supra, were
filed by Donald W. Jones, a Springfield attorney. Jones
also assisted Miller in drafting his several letters in con-
nection with Day's charges against him and the ensuing
fine, and represented Southern Sun in the filing of the
present charge and at the present hearing. The record
leaves no doubt that Jones is anathema to Respondent.
Hensley testified that "it is a known fact by everyone"
that Jones long has been "involved with the National
Right-to-Work Defense Fund Group," and has been "at-
tacking us in every manner." Day testified that, had he
known that Jones was Miller's lawyer, he "might have
not waited almost 60 days to file" the charges against
Miller.
On March 14, 1979, Miller, then on the group 11 refer-
ral list, spoke to Hensley about signing the group I list.
As will be seen, Miller was qualified for group I. Hens-
ley replied that Miller had "better set down," so Hensley
could tell him what he would be "up against" should he
sign the group I list. Hensley then stated that a number
of Respondent's members were out of work, and that
Miller would "be forcing" his name "ahead of theirs" if
he were in group I. At or about that point, Mike Brum-
ley, Respondent's assistant business manager, mentioned
Miller's reluctance to accept referrals to Fort Leonard
Wood. The exchange became "heated"-Miller's depic-
tion-and Miller left "in a little bit of a huff," as Hensley
recalled. Hensley did not explicitly tell Miller, during
this encounter, that he could not be in group 1.1 2
Miller and Hensley had another exchange on March
16, the subject again being Miller's wish to be in group I.
Hensley told him he was not qualified and that, if he did
not like that determination, he could "appeal it to the
joint appeals committee." The operative labor contract
provided for a three-member appeals committee-one
member appointed by Respondent, one by the employer,
and one "public member" appointed by the other two-
"to consider any complaint of any employee or applicant
for employment arising out of the administration by the
Local Union of' the hiring hall. Hensley testified that he
did not think Miller had worked the requisite year, i.e.,
2,000 hours, under Respondent's contract, and that proof
also was needed that Miller "was still living in the area
and that he had lived here for that length of time con-
stantly." After Miller left on March 16, however, Hens-
ley added up his hours, finding that he did have over
2,000.
On March 20, Miller hand-delivered a letter to Re-
spondent's hall, addressed to the hiring hall appeals com-
mittee. Particularizing Miller's qualifications to be in
group I, it grieved that Hensley had "knowingly violat-
" See fn. 6, supra .
12 Hensley testified that, while he "assume[dl" that Miller went to the
hall on March 14 to sign the group I list, he "never did say anything
about signing the book." Miller is credited that the matter of his being in
group I was expressly broached, and that the exchange, generally, was
substantially as here set forth.
ed" the IBEW constitution on March 16 "by not allow-
ing [him] to sign the proper out-of-work register."
On March 21, the aforementioned Donald W. Jones
filed an unfair labor practice charge against Respond-
ent,13 alleging that it had violated Section 8(b)(1)(A) and
(2) by discriminating against Miller, Bill Rodman, and
Larry Nolan in the operation of its hiring hall, and by
otherwise coercing, intimidating, and harassing them, be-
cause they were not members of Respondent and had
testified in Sachs Electric Company, described earlier.
Also on March 21, Robert Haines, secretary of the
Kansas City Chapter, National Electrical Contractors'
Association, and the employer appointee on the hiring
hall appeals committee, telephoned Hensley concerning
Miller's March 20 letter to the committee. The record
does not reveal what was said between the two. In the
immediate aftermath, however, Hensley telephoned
Miller, telling him that it had been ascertained that he
had "barely over the year" required for group I, that he
probably "would be eligible for Book I," and that he
should bring his credentials to the hall for a conclusive
determination. 14
Miller delivered his documentation to the hall on
March 22. Hensley, after reviewing it, permitted him to
sign the group I list. But, as Miller did so, Hensley re-
marked that he was "making a big mistake."' 5
On March 22, as well, Hensley submitted a letter to
the appeals committee giving his version of the March 16
exchange with Miller and the ensuing developments, in-
cluding Miller's placement in group I, and ending: "I
now consider the matter closed." The appeals committee
apparently agreed, there being no evidence that it gave
the matter further attention. As for the charge filed by
Jones on March 21, his requested withdrawal of it was
approved by the Regional Director on April 19.
On June 15, 1979, Rodman grieved to the hiring hall
appeals committee that Hensley and Brumley, the assist-
ant business manager, had acted improperly by issuing a
rule in 1978 requiring job applicants to reregister at the
hall every 2 weeks. A hearing on the grievance was held
July 10-6 days before Day filed the charges against
Miller. The minutes of the hearing reflect that Rodman
was represented by Donald W. Jones, and that Miller
and Larry Nolan were present "in behalf of" Rodman.
Rodman testified that Miller testified in that proceeding,
and the written decision of the appeals committee states
that he did. Miller, however, testified that he could not
remember if he testified; and Hensley testified that Miller
did nothing more than stand up and recite his name.
Hensley recalled that Miller came to the hearing with
:; Case 17-CB-2067.
14 The record is in some confusion concerning when Hensley added
up Miller's hours, and when, relative to that, he informed Miller that his
hours were sufficient for group 1. He testified at one point that he called
Miller "immediately" after adding the hours. The weight of his testimony
conveys the impression, however, that he counted the hours on March
16, but did not call Miller until March 21, after Haines had called him.
't Miller is credited that Hensley made this remark, Hensley's denial
notwithstanding. Miller generally was a convincing witness, both in de-
meanor and testimonial content. Even Hensley conceded that Miller "is
basically an honest person." Hensley, on the other hand, and despite his
concession regarding Miller's honesty, seemed to lapse from the truth on
occasion.
866
IBEW, LOCAL 453
Jones. The appeals committee denied Rodman's griev-
ance.
More on the fine: Day testified that he initiated the
action against Miller because he "felt it was [his] duty."
He explained that Southern Sun is a "scab outfit"; that
its "substandard" wage levels are "common knowledge."
He denied discussing Miller's transgression with Hensley
or any other union official before filing,' 6 asserting that
he "kept it a secret" lest internal union charges be
brought against him for his inaction. 17 That it in fact
was a secret to Respondent's officialdom is questionable.
Hensley testified that Respondent picketed Southern Sun
on the project where Miller was apprehended "a good
part of the time they were working there." Moreover,
Miller credibly testified that he once observed Day and
Brumley in conversation at that project. '
Day further testified that, when he filed the charges,
he did not know about Miller's November 1978 testimo-
ny in Sachs Electric Company, or about his March 20,
1979, grievance letter to the hiring hall appeals commit-
tee, or about his being named as one of the aggrieved in
the March 21, 1979, unfair labor practice charge filed by
Jones, or about his being present on behalf of Rodman at
the July 10, 1979, hearing of the hiring hall appeals com-
mittee. Asked why he waited from May 29-the date he
saw Miller working for Southern Sun--until July 16 to
file, Day testified that he "just did not have time for it"
earlier, and, as mentioned earlier, that he might not have
waited so long had he known that Jones was Miller's
lawyer.
In January 1979, Respondent's trial board fined two
members for offenses described by Roger Testerman,
trial board secretary, as "similar" to or bearing "some
similarity" to Miller's. James Cunningham, whose offense
had been to work for a nonunion employer, was fined
$125 each for violating subsections 3, 10, and 21 of arti-
cle 27, section 1, of the IBEW constitution.' 9 William
White, whose offense had been to operate union and
nonunion shops simultaneously, was fined $250 for vio-
lating subsection 3, and $125 each for violating subsec-
tions 10 and 21. Neither Cunningham nor White had
been connected with Southern Sun.
Asked why Miller was fined so much more than Cun-
ningham and White for violating subsections 3, 10, and
21 ($800 compared to $375 and $500), Testerman testi-
fied that "every case is on its own"-"it just depends on
the people, I mean the facts." Testerman continued:
I don't know anything particular why we came to a
certain figure on it [Miller's fine]. I know that one
thing that had a bearing is the fact that Mr. Miller
did not choose to come and defend himself. And we
felt we were more inclined to not show any lenien-
cy because of the fact that he failed to show up to
defend himself or explain anything.
x6 Day's testimony was mirrored by Hensley's in this regard.
' Art. 27, sec. 1, subsec. 4, of the IBEW constitution makes it an of-
fense for a member, "having knowledge of the violation of any provision
of this constitution, or the by-laws or rules of the L.U.," to fail to "file
charges against the offender or to notify the proper officials of the LU."
's Day's denial was unconvincing. Brumley did not testify.
19 Cunningham also was fined $125 for violating one of Respondent's
bylaws.
The trial board decided to be "a little more lenient"
with Cunningham, according to Testerman, because he
not only "appeared before the board and apologized for
his actions," but "gave some extenuating circumstances
of why he had done this." The extenuating circum-
stances were that Cunningham had been confined to
part-time work because of his ministerial studies, and had
children to support.20
White, like Miller, was not present for his hearing,
however, and Testerman conceded, as concerns his fine:
"I don't know that there was any extenuating circum-
stances." He also conceded that he could not offer "any
specific reason" why Miller was fined more than White.
Testerman testified that, while he knew of Miller's
having testified in Sachs Electric Company, and of his
being named in Jones' March 21 unfair labor practice
charge, those matters were raised neither in the trial
board deliberations leading to Miller's fine, nor previous-
ly by the same people in their roles as executive board
members. Testerman testified, finally, that he did not
know at the time of the trial board's deliberations about
Miller's March 20 letter to the hiring hall appeals com-
mittee or of Miller's presence at the July 10 Rodman
hearing.
Hensley denied that he discussed the Miller situation
with the trial board before it made its decision.
The would-be settlement: On January 29, 1981, Re-
spondent offered to settle this matter by posting a stand-
ard-form notice to employees and members stating,
among other things, that it would not "levy intraunion
fines against any members because they exercised their
rights guaranteed by Section 7," and that it had "re-
voked and rescinded the fine . . . imposed by [sic]
Samuel J. Miller . . . and [had] refunded to him any
amounts that he paid on said fine." The proposed settle-
ment also contained a so-called nonadmission clause, i.e.,
a statement that Respondent, by entering into it, "does
not admit that it has violated the ... Act."
Southern Sun refused to join in the settlement, and the
Regional Director withheld his approval.
B. Conclusion
Positions of the parties: The General Counsel's principal
contention is that Miller's fine was unlawful because mo-
tivated by his having engaged in assorted protected ac-
tivities, namely, testifying in November 1978 in Sachs
Electric Company, grieving to the hiring hall appeals
committee in March 1979 that Hensley improperly had
prevented him from signing the group I list, having an
unfair labor practice charge filed against Respondent on
his behalf in March 1979, and being present on behalf of
Rodman at the hearing of the hiring hall appeals commit-
tee in July 1979.
The General Counsel makes the alternative contention
that, regardless of underlying motivation, the fine was
unlawful because Respondent, having been found by the
Board in Sachs Electric Company to have prevented
qualified travelers from signing the group I list, thereby
improperly impairing their job prospects, had no valid
2O Respondent's contract makes no allowance for part-time work.
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground to discipline Miller, a traveler, for taking what-
ever employment he could find, even with Southern Sun.
Respondent contends, first, that the weight of evidence
fails to establish improper motivation, precluding the
finding of violation; and, second, regardless of the merits,
that the matter should be resolved by adoption of the
would-be settlement. Respondent does not address the
General Counsel's alternative contention, which was not
articulated with any clarity during the hearing.
Discussion: To summarize, Respondent and Southern
Sun have been in the throes of a long and bitter dispute.
Miller began working for Southern Sun in April or May
1979. On June 22, encouraged by the Board's recent de-
termination in International Brotherhood of Electrical
Workers Local 453, AFL-CIO (Sun Electric Corporation),
242 NLRB 1130 (1979), that its earlier picketing was per-
missible, Respondent reinstituted its picketing of South-
ern Sun, including the project where Miller worked.
That picketing was augmented by "Please-Do-Not-Pa-
tronize" advertisements against Southern Sun in the
Springfield Labor Record, and by letters to principals
and general contractors that picketing of their projects
was contemplated because the electrical work was being
done by Southern Sun. Day's charges against Miller, on
their face because he worked for Southern Sun, were
filed July 16. The trial board held its hearing and
reached a result September 27. Respondent informed
Miller of the result by letter dated October 2.
Given that the charges and fine against Miller oc-
curred in the context of Respondent's resumed picketing
and other activity against Southern Sun, that the pro-
fessed basis for the action against Miller was his working
for Southern Sun, that there is no firm evidence that the
charges and fine were influenced by anything other than
that, and that a deep and longstanding animosity existed
between Respondent and Southern Sun, it can only be
concluded that the charges and fine would have hap-
pened even absent Miller's assertedly protected activities.
That Miller was fined more harshly than others for vio-
lating the same constitutional provisions is no less con-
sistent with this analysis than with the General Counsel's
contention to the contrary. That contention consequently
fails. 2
The General Counsel's alternative contention also fails.
While the Board did conclude in Sachs Electric Company
that the respondent improperly had failed to place two
travelers in group I in February and July 1978,22 no de-
termination has been made that it thereafter violated the
Act in that regard. Section 10(b) of the Act precludes in-
quiry at this late date whether Miller suffered similar vic-
timization before going to work for Southern Sun.23
Despite the foregoing, it is concluded that the fining of
Miller violated Section 8(b)(1)(A). As previously noted,
the Board found in International Brotherhood of Electrical
Workers, Local 453 (Southern Sun Electric Corporation),
s" Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980).
While Wright Line sets forth certain principles in the context of employer
motivation, there is no reason why those principles would not be equally
applicable in cases such as this, dealing with union motivation.
I" Sachs Electric Company, supra at 677.
'" Carpenters and Joiners of America. Local 1620 {David M. Fisher Con-
struction Company), 208 NLRB 94, fi. 2 (1974). See also New York Typo-
graphical Union No. 6 (Typemen. Inc.), 229 NLRB 886 (1977).
252 NLRB 719, that Respondent's picketing of Southern
Sun around the time Miller was charged and fined had a
proscribed recognitional object, therefore violating Sec-
tion 8(bX7)(A). It is fair to infer that the fine, happening
in the context of this unlawful picketing and because
Miller worked for Southern Sun, was in furtherance of
the proscribed object as well, and so was itself unlaw-
ful. 24
CONCLUSION OF LAW
By fining Samuel Miller as found herein, Respondent
violated Section 8(bXI)(A) of the Act.
ORDER2 5
The Respondent, International Brotherhood of Electri-
cal Workers, Local Union No. 453, Springfield, Missouri,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees in the exercise
of their rights guaranteed by Section 7 of the Act by
fining or otherwise disciplining members for accepting
employment with Southern Sun Electric Corporation, or
any other employer, where such fine or discipline is im-
posed to accomplish an objective unlawful under the
Act.
(b) Seeking to collect or collecting from its members
any fines imposed to accomplish an objective unlawful
under the Act.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take this affirmative action:
(a) Rescind the fine imposed against Samuel Miller
after a hearing held on September 27, 1979; and, having
previously refunded to him the payments made on said
fine, make him whole for interest lost on said pay-
ments. 2 e
(b) Expunge from its records any documents, entries,
or other evidence that Samuel Miller was found to be in
violation of certain provisions of the IBEW constitution,
and therefore fined as described above in paragraph 2(a);
and inform Miller in writing that this has been done.
" New York Typographical Union No 6 (Typemen. Inc), supra. Local
Union Na 41A Sheet Metal Workers' International Association AFL-CIO
(Young Plumbing & Supply, Inc.), 227 NLRB 300, 302-303 (1976); Truck
Drivers Chauffeurs and Helpers Local Union No. I00, an Affiliate of The
International Brotherhood of Teamsters Chauffeurs. Warehousemen and
Helpers of America (Moraine Materials Company), 214 NLRB 1094 (1974).
The issue whether the timing of the fine, relative to Miller's being
dropped from membership, rendered it unlawful has not been raised and,
in light of the result herein, need not be addressed.
'a It is concluded that this Order would more fully serve the policies
of the Act than would adoption of the would-be settlement. Respondent's
contention in that regard therefore is rejected. All outstanding motions
inconsistent with this Order hereby are denied. In the event no excep-
tions are filed as provided by Sec. 102.46 of the Rules and Regulations of
the National Labor Relations Board, the findings, conclusions, and rec-
ommended Order herein shall, as provided in Sec. 102 48 of the Rules
and Regulations, be adopted by the Board and become its findings, con-
clusions, and Order, and all objections thereto shall be deemed waived
for all purposes.
,6 Interest shall be computed in accordance with Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Ca,
138 NLRB 716 (1962).
868
IBEW, LOCAL 453
(c) Post at its offices, meeting halls, and hiring halls
copies of the attached notice marked "Appendix." 2 7
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an au-
thorized representative of Respondent, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
s" In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish to the said Regional Director sufficient
signed copies of the attached notice for posting at the
premises and projects of Southern Sun Electric Corpora-
tion, if Southern Sun is willing.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
869