Local 38, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1147 (N.L.R.B. 1965)

LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 1147
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act.
LINCOLN BEARING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of her right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
Local 38, International Brotherhood of Electrical YÌ€orkers , AFL-
CIO and Robert R. Cutler, d/b/a Bob Cutler Signs . Case No.
8-CC-236. November 23, 1965
DECISION AND ORDER
On September 1.6, 1965, Trial. Examiner Sidney J. Barban issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the Charging Party filed
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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the finding, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 19, 1965, by Robert R. Cutler, d/b/a Bob Cutler
Signs, herein referred to as Cutler, the General Counsel of the National Labor Rela-
tions Board, herein referred to as the General Counsel, by the Regional Director for
155 NLRB No. 108.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 8 (Cleveland, Ohio), issued a complaint dated April 15, 1965, against Local
38, International Brotherhood of Electrical Workers, AFL-CIO, herein referred to as
the Respondent. The complaint alleged that the Respondent had engaged in and was
engaging in unfair labor practices in violation of Section 8(b)(4)(ii)(B) of the
National Labor Relations Act, as amended, by reason of acts of Respondent' s agent,
Donald Seeholzer, threatening, coercing, and restraining Nevilles to cease doing
business with Cutler. Respondent filed an answer to the complaint denying the com-
mission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Sidney J. Barban at
Cleveland, Ohio, on June 7, 1965. All parties appeared at the hearing and were
afforded full opportunity to participate, examine witnesses, and adduce relevant evi-
dence. Oral argument was waived. Briefs have been received from the General
Counsel and the Respondent and have been carefully considered.
Upon the entire record in this case,' and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTIONAL FACTS
The parties stipulated that Cutler is now and has been at all times material herein
an individual proprietor doing business under the trade name and style of "Bob Cutler
Signs" ; that, at all times material herein, Cutler has maintained his principal office
and place of business at North Omstead, Ohio, where he has been engaged as a sign
contractor in the production and erection of signs; and that, at all times material
herein , Cutler has been and is now a person engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
The parties further stipulated that Nevilles is an Ohio corporation, with its prin-
cipal office and place of business located at Lakewood, Ohio, where it operates a retail
department store in the retail industry; that Nevilles' gross volume of sales for the
period from January 1 to June 1 , 1965, was in excess of $560,000: and that from
January 1 to June 1, 1965. Nevilles purchased in excess of $50,000 in goods and
materials , which were received at its place of business in Lakewood, Ohio, directly
from points located outside the State of Ohio.
Based upon the above-stated facts, I find that Cutler and Nevilles and each of them
are, and have been at all times material herein, engaged in commerce and in an indus-
try affecting commerce within the meaning of Sections 2(6) and (7) and 8(b) (4)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As noted in Respondent's brief, the sole issue in this case concerns what was said
during two telephone conversations between Donald Seeholzer, assistant business
agent and business representative of the business manager of Respondent, and
C. Stephen Babin, an executive of Nevilles, on February 18 and 19, 1965. Even more
precisely, the resolution of this matter turns on whether Seeholzer told Babin, on the
afternoon of February 18, that Respondent would cause a work stoppage if Nevilles
did not cease doing business with Cutler, because of the latter's nonunion status, as
Babin testified, or whether Seeholzer advised Babin, on that occasion, merely that the
union men engaged on Nevilles' premises might refuse to work if Cutler's nonunion
men were also engaged on the premises.
Immediately prior to these conversations, on February 16, 1965, Nevilles had
executed an agreement with Cutler for the fabrication and erection, of three outdoor,
electrically illuminated signs, the contract having been awarded to Cutler on the basis
of competitive bidding. Two other companies, employing members of Respondent,
were engaged in work on Nevilles' premises on or about February 18 and 19, as
Seeholzer knew. During the conversations with Babin, he also became aware, if he
did not already know, that union carpenters were engaged on the premises.
The pertinent parts of Babin's testimony, on direct examination, with respect to his
telephone conversations with Seeholzer, and an intervening conversation with Cutler,
I The joint motion of Respondent and the General Counsel to correct the record , served
on counsel for the Charging Party on June 21, 19G5 , to which no objection has been filed,
Is hereby granted.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL AVORIiERS 1149,
is as follows (after Seeholzer, had initiated the telephone call on February 18, and
had identified himself) :
... He [Seeholzer] asked me if we were going to install some electric signs. I
replied, yes, we were. He asked me who was going to do it. I told him that-
let's see . I told him at that point-I think I told him-I told him Bob Cutler
was going to be installing the signs. He said that Cutler wasn't a union shop,
and there could be trouble on the job.
I asked him to lay it on the line cold turkey and tell me exactly what he meant.
He said, "Well, if there are non-union men on the job then the union men would
have to be pulled off or taken off," or words to that effect.
Well, I said, "There are carpenters working there, too. What about them."
He said pretty much the same thing.
I told him that was making a big thing out of nothing inasmuch as this was a
small contract as far as I was concerned-making too much out of a thing out of
it by inferring or stating that there would be trouble if we had the non-union sign
company erect this sign or manufactured sign. He asked me if we couldn't cancel
the order, and of course I told him we couldn't, the contract had been signed two
days previous, and he already began work on the sign. I told him I didn't want
to get all fouled up over a miserable little sign, and that we hadn't had any prob-
lems in the past and I didn't want any now. That was about the extent of the
conversation.
Q. What did you do then after this conversation?
A. I called Mr. Cutler and told him I didn't care to have any problems, and
that maybe we just better forget about it and so forth, and he wanted to know
what was what. I told him, and he blew up. I tried to call Mr. Seeholzer back
and he wasn't in. I talked to hire on the following morning and he suggested
that perhaps we could get a union sign erector to erect the sign.
I told him that I would talk to Cutler and see what we could do about it. That
didn't get anywhere. Mr. Seeholzer then suggested that perhaps I would be
willing to pay some additional amount to have a union sign company do it. I told
him that that wasn't the issue . Mr. Cutler wanted to do the entire job, and
according to his contract he was entitled to do so, and that was the end of it.2
Mr. Seeholzer's testimony, on direct examination, with respect to these conversa-
tions with Babin, in pertinent part, is as follows:
Well, I asked him who was going to-or if there was going to be any electric
signs . He said there was, and I asked him who was going to install them, and he
told me that he had a contract with Bob Cutler. I informed him that Bob Cutler
did not have an agreement with Local 38, and we do represent employees that
work in the various electric sign shops in the City of Cleveland .... He said he
wasn't aware of any union problem, wasn't aware that Cutler wasn't union .
I said that the electricians working in the building might leave the job were Bob
Cutler to come on the job to install the signs .... he stated that he didn't want
any problems with the unions , and that lie did feel that he would get a hold of
Cutler and try to work something out and call me back .... I believe his testi-
mony is correct, that he returned or he made a call. I wasn't in, and then the
following day I did return his call .... He told me that Cutler was not interested
in relinquishing his contract. He also felt that we were making a big thing out of
nothing. Of course I didn't feel that way, and I said to him at that time, "Why
not take a positive attitude, here. Let Cutler deliver the signs and get a union
contractor to do the erecting, and pay Cutler for the signs that he had deliv-
ered" . . . . He said that he would see what he could do, but he certainly
wasn't very-well, he wasn't very sure that anything could be done at this
point . Well, I told him that I would certainly appreciate any coopera-
tion that he might extend, and of course, he pointed out the fact that all of his
2 This testimony was not varied in its essentials on cross-examination. Babin at all
times insisted that after Seeholzer advised blur that there "might" (in his original testi-
mony, "could") be "trouble," that he (Babin) then asked Seeholzer to "lay it on the line
cold turkey," and only after Seeholzer advised him that the men "would" have to be
pulled off the job (on one occasion, Babin agreed to the word "might" in place of "would").
At one point, Babin agreed that Seeholzer mentioned, in connection with the earlier
reference to "trouble." that union men might not work with nonunion men, but Babin
clearly denied that this was what Seeholzer said after Bahin asked him to "lay it on the
line cold turkey." Babin consistently maintained that after be asked Seeholzer to "lay
it on the line cold turkey," Seeholzer made the reference to pulling men off the job.
1150 DECISIONS OF NATION AT LABOR RELATIONS BOARD
electricians that he had ever employed had always been union electricians, and
I finished our conversation telling him I would certainly appreciate any coop-
eration that he could extend toward Local 38 in this instance.
Q. Does that complete the conversation that you had?
A. I believe that is about it .3
Thereafter, in April 1965, Cutler erected the completed signs at Nevilles. At the
time, the union carpenters were still working on the premises, but the union elect ricians
had completed their work and had departed. No work stoppage or attempt to cause a
work stoppage attributable to Respondent occurred.
After a careful study of the entire record in this matter and from my observation of
the witnesses, I conclude and find that the testimony of Babin, on direct examination,
as set forth above, is the more credible of the two accounts of the conversations
involved, and it is credited.
Among the several factors that have led to this conclusion, the following considera-
tions are prominent:
First, among the participants in this matter (Seeholzer, Cutler, and Babin), Babin
has the least, or perhaps no'Cning, to gain by the outcome in this case. He comes as
close to the position of the neutral witness as could be expected in this matter. He did
not display, in either his demeanor or testimony, any animosity or hostility to
Respondent or Seeholzer. On the contrary, Babin not only testified that his conver-
sations with Seeholzer were amicable, but at the hearing displayed none of that
restraint, reserve, or suspicion on cross-examination which frequently marks the
"opposing" witness. Babin also displayed no evident partiality for Cutler in his testi-
mony or demeanor. Nor does it appear that Babin has any antiunion bias, but, to the
contrary, has frequently employed union contractors, and Respondent had no dispute
with him, or Nevilles, other than Babin's insistence on carrying out his contract in full
with Cutler.
While the attitude of Seeholzer to the stand was also exemplary (as General Counsel
notes in his brief), Ifelt that both his demeanor and his testimony gave evidence of
the direct interest which Seeholzer and his employer has in the outcome of this matter.
Secondly, I do not believe that the conversation on February 18 was so simple as
Seeholzer would have it. While Seeholzer -might, in the early part of his conversa-
tion with Babin, have mentioned the fact that the union men on the premises might
not work if nonunion men were also working, and that this might cause "trouble,"
this was clearly not the end of the conversation on this point, as it is in Seeholzer's
version. The record is convincing that Babin thereafter asked Seeholzer to "lay it on
the line cold turkey," and that Seeholzer then replied to this request. From Seeholzer's
testimony it would appear that this latter part of the conversation did not occur.
However, I am convinced it did and that Babin's testimony as to Seeholzer'- reply to
Babin's request that Respondent's position be laid "on the line," is correct.
. Lastly, the record as a whole does not bear out Respondent's contention that See-
holzer's discussions with Babin were of the nature of friendly "persuasion," and con-
tained nothing in the form of restraint or coercion of Babin. Babin's reaction to
Seeholzer's conversations with him makes it clear that Babin was acting under con-
siderable constraint. On cross-examination, Babin testified that during the course of
his conversations with Seeholzer, he stated to Seeholzer, "I think you are making a big
issue out of a little thing," and "I don't want any problems with the unions. You
know we have always used union people around here." Emphasis supplied.] This
appeal to Seeholzer, personally, not to make a big issue out of the situation hardly
comports with the picture of Seeholzer as a "friendly persuader," 4 but indicates
Babin's concern over anticipated action against Nevilles by the Respondent. That
the action feared by Babin was expected to emanate from the Respondent, and not
from voluntary activity of individual workers is evidenced even by Seehoizer''s own
testimony. Thus, Seeholzer testified with respect to Babin's statements in the second
tel, phone conversation, "He also felt that we "-mere making a big thing out of nothing.
Of course I didn't feel that way, and I said to him at the time, `Why not take a positive
attitude here ....... [Emphasis supplied.]
In concluding that Seeholzer threatened a work stoppage in this case, I have given
consideration to the fact that Respondent apparently did nothing to carry out the
8 Although there was some tendency to vary or add to this testimony on cross-exam-
ination, Seeholzer 's testimony, also, was not varied in its essentials.
I Seeholzer testified that he called Babin because there was a problem, not because Babin
was a friend. Ile stated that the object of his call was to get the work involved for
Respondent's members.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 1151
threat. However, this may well be attributed to the fact that when the signs were
erected, members of Respondent were no longer working on the premises, although
when the threat was made, members of Respondent were so engaged, which gave the
threat at that time impact and immediacy.
From the above it is found that Seeholzer, an agent of Respondent, threatened to
remove union workers from their work for Nevilles unless Nevilles ceased doing
business with Cutler on the basis of their original business arrangement. Such action
constituted a violation of Section 8(b) (4) (ii) (B) of the Act. Local 3, International
Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company),
140 NLRB 729; see District 65, Retail, Wholesale & Department Store Union, AFL-
C1O (Eastern Camera & Photo Corp.), 141 NLRB 991, 996.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in
connection with the operation of Cutler and Nevilles described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Respondent urges that, even if a threat should be found here, the event involved
was isolated and a remedial order based upon it would not be justified, citing Local 38,
International Brotherhood of Electrical Workers, AFT CIO (Edwin A. Wells, dlb%a
E. Wells Electrical Construction Company), 148 NLRB 757. In that case the Board,
after finding that certain ambiguous statements did not reach the level of activities
prohibited by Section 8(b) (4), stated that even if one of the statements should be
considered coercive, "We do not believe that a remedial order based on this single
statement is justified." General Counsel opposes Respondent's position.
I have been much attracted to the Respondent's argument, particularly in the cir-
cumstances of this case, where merely a single threat occurred followed by no other
overt action, but, after thorough consideration, I have come to the conclusion that a
remedial order should issue.
I do not consider that the threat found to have been made in this case is in any way
ambiguous . Prior Board decisions involving Respondent, and the facts of this matter,
show that Respondent , like other unions in the building and construction industry, is
committed to a course of conduct aimed at discouraging the employment of nonunion
contractors on building construction. So long as Respondent's activities in support
of that objective do not reach a level violative of the provisions of the Act, Respondent
should be and has been exonerated of any charge of violating the Act. See Local 38,
IBEW (Wells Electrical Construction Co.), supra; Electrical Workers Union Local 38,
IBEW (Hoertz Electric Maintenance Co.), 138 NLRB 160. However, on those occa-
sions in which Respondent may overstep the prohibitions laid down by the Act, it
seems to me that the purposes of the law would best be served by issuing an order
remedying the violations. See Local 38, IBEW (Simon Construction Company), 141
NLRB 983. Therefore, having found that Respondent has engaged in certain unfair
labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act, I shall
recommend that it cease and desist therefrom, and take certain affirmative action
designed to effectuate the purposes of the law.
CONCLUSIONS OF LAW
1. Nevilles and Cutler are engaged in commerce and in an industry affecting com-
merce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By threatening to cause a work stoppage at the Nevilles' premises with an
object of forcing or requiring Nevilles to cease doing business with Cutler, Respond-
ent has engaged in unfair labor practices within the meaning of Section 8(b)(4)
(ii) (B) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in this matter, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Respondent, Local 38, International
1152 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from threatening, coercing, or restraining Nevilles, Inc., or
any other employer or person engaged in commerce, where an object thereof is to
force or require any employer or person to cease doing business with Robert R.
Cutler, d/b/a Bob Cutler Signs.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Post at its offices and meeting halls copies of the attached notice marked
"Appendix" 5 Copies of said notice, to be furnished by the Regional Director for
Region 8, shall, after being duly signed by official representatives of the Respond-
ent, be posted by it immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps shall be taken
to insure that the notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writing, within 10 days from
the date of this Order, what steps have been taken by Respondent to comply
herewith.6
5In the event that this Recommended Order Is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order he enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words " a Decision
and Order."
O In the event that this Recommended Order is adopted by the Board , this provision
shall he modified to read : "Notify the said Regional Director , in writing, within 10 days
from the date of this Order , what steps have been taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 38, IBEW, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Nevilles, Inc., or any other
employer or person engaged in commerce, where an object thereof is to force
or require any employer or person to cease doing business with Robert R.
Cutler, d/b/a Bob Cutler Signs.
LOCAL 38, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
B & M Excavating , Inc. and Donavan A. Van Over and Robert L.
Van Over. Cases Nos. 21-CA-6423-1 and 21-CA.-643-9d. No-
vember 23,196.5
DECISION AND ORDER
On August 3, 1965, Trial Examiner Howard Myers issued his Deci-
sion in the above -entitled proceeding , finding that the Respondent
155 NLRB No. 105.