Walker Electric Co.

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1214 (N.L.R.B. 1963)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give Larry Perrin , Robert Perrin , Guyton Harvey , and Harris
Stebbins whatever backpay each lost as a result of being laid off February 28
or March 1, 1962.
GIBBS SHIPYARDS, INC.,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act, 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.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street , Tampa, Florida, 33602 , Telephone No. 223-4623,
if they have any question concerning this notice or compliance with its provisions.
Walker Electric Company and Local Union No. 390, International
Brotherhood of Electrical Workers, AFL-CIO and District 50,
United Mine Workers of America , Party to the Contract. Case
No. 23-CA-1448. June 18, 1963
DECISION AND ORDER
On February 19, 1963, Trial Examiner William J. Brown issued
his Intermediate Report in the above-entitled proceeding, finding that
the 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 Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint and recommended that those allegations of the com-
plaint be dismissed. Thereafter, the General Counsel, the Charging
Party, the Respondent, and the Party to the Contract filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,' as modified herein.2
1 We find it unnecessary , however, to pass upon the Trial Examiner's Interpretation of
Section 8 (f) appearing In footnote 7 of the Intermediate Report.
2 We agree with the Trial Examiner's finding that the Respondent bargained with District
50 at a time when Local 390 represented a majority of its employees In an appropriate unit,
142 NLRB No. 134.
WALKER ELECTRIC COMPANY 1215
We agree with the Trial Examiner that the record does not estab-
lish that the Respondent discharged Villemez and Ballard in viola-
tion of Section 8(a) (3) of the Act. The record shows, as found by
the Trial Examiner, that these employees were advised that Respond-
ent intended to recognize District 50 instead of the incumbent Local
390, at which point they resigned their employment. The dissenting
opinion assumes that the only alternatives open to Villemez and Bal-
lard were acceptance of the Respondent's unlawful conditions or ter-
mination of the employment relationship. Our colleague, however,
overlooks other obvious possibilities, such as, for example, filing
charges with the Board, and awaiting the outcome of the Board
proceedings. We note, further, that there is nothing in the record
which establishes or warrants an inference that joining District 50 or
resigning from membership in Local 390 was made a condition of
continued employment; I or that the question of union membership as
distinguished from union representation was even in issue; or that.
anything was required of the employees other than that they continue
to work despite the change to District 50 representation. Thus the
illegal conditions of employment to which Villemez and Ballard were
subjected were no different from those in the many cases in which em-
ployers have engaged in unfair labor practices to thwart their em-
ployees' representation desires. Yet, until this time it has not been
suggested that the Board should find the mere existence of unlawful
conditions, which do not require employees to take affirmative action
in derogation of their rights, to be sufficient justification for consider-
ing abandonment of employment as a constructive discharge.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications.'
Delete provisions 1(a) and 2(a) and add the following:
1. (a) Recognizing District 50, United Mine Workers of America,
as the representative of its employees in the appropriate unit for the
purposes of collective bargaining, and from giving any force or effect
in violation of Section 8(a) (2) and (1) of the Act. In order fully to remedy this violation,
we shall require the Respondent to cease and desist from recognizing District 50 until it
has complied with the provisions of the Order herein requiring it to bargain with Local
390, and has been certified as the employees ' representative
a The contract entered into by the Respondent with District 50 contained no requirement
of employee membership in that union , but only a provision conditioning such a result upon
its prior legalization in the State of Texas which , we note, is a "right-to-work" State
'The notice is hereby amended as follows: (1) Delete the first indented paragraph
thereof, and .add the following: Wa WILL NOT recognize District 50, United !%line Workers
of America, as the representative of our employees in the appropriate unit until we have
bargained with Local Union No 390 , International Brotherhood of Electrical Workers,
AFL-CIO, as the representative of such employees , and unless and until said District 50,
United Mine Workers of America, shall have been certified as such representative by the
Board.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the agreement with that labor organization dated May 2, 1962, or
any supplement, addition, or modification thereto, until it has com-
plied with the provisions of this Order requiring it to bargain with
Local Union No. 390, International Brotherhood of Electrical Work-
ers, AFL-CIO, and unless and until District 50, United Mine Work-
ers of America, shall have been certified as such representative by the
Board.
2. (a) Withdraw and withhold all recognition from District 50,
United Mine Workers of America, as the representative of its em-
ployees in the appropriate unit for the purposes of collective bargain-
ing, until it has complied with the provisions of this Order requiring
it to bargain with Local Union No. 390, International Brotherhood of
Electrical Workers, AFL-CIO, and unless and until District 50,
United Mine Workers of America, shall have been certified as such
representative by the Board.
MEMBER BROWN, dissenting in part:
Contrary to my colleagues, I would find that employees Villemez
and Ballard were constructively discharged in violation of Section 8
(a) (3) of the Act.
The Trial Examiner found that Villemez and Ballard "quit" their
jobs "rather than work under conditions . . . which would include the
United Mine Workers as their unwanted representative'"' and con-
cluded that this did not establish a violation of Section 8(a) (3) of
the Act. Such a conclusion, however, is contrary to the law as it
has been known almost since the Board's inception. As long ago as
1937, the Board stated :
To condition employment upon the abandomnent by employees
of the right guaranteed them by the NLRB is equivalent to dis-
charging them outright for union activities.,'
It is clear that the Respondent imposed such an illegal condition of
employment and that the employees left rather than accept it.
We are finding here that Respondent violated Section 8(a) (5) by
its refusal to execute the contract negotiated by the regional chapter
of NECA with Local 390 and that Respondent violated Section 8(a)
(2) by assisting District 50 and recognizing it at a time when it was
not the uncoerced choice of a majority of Respondent's employees.
Simultaneously with its 8(a) (2) and (5) activities, the Respondent
informed Villemez and Ballard that the following week Respondent
was going to sign a contract with District 50 and asked each to "stay
on." Respondent even informed Ballard on April 26 that he would
have to be terminated at the close of business on Friday, April 27, but
would be rehired on Monday, April 30, if he chose to show up.
5 Atlas Mills, Inc., 3 NLRB 10, 17.
WALKER ELECTRIC COMPANY 1217
There can be only one implication from Respondent's statements-
that the employees could remain in Respondent's employ only by ac-
cepting District 50 as their bargaining representative, which would
require abandonment of Local 390, their chosen, lawful representa-
tive. There could be no other reasonable explanation for the Re-
spondent's comments. For, if the employees could remain without
abandoning Local 390 and/or without accepting District 50, there
was no need for Respondent to discuss the impending arrangements
at all. It is not disputed that both employees left only to avoid ac-
cepting District 50.
There can be no question but that the condition imposed required
the employees to abandon a statutory right. Because District 50 was
not entitled to the status which Respondent accorded it, the condition-
ing of continued employment on its acceptance was clearly illegal.
The obvious alternative to accepting this condition was termination
of their employment. It is the offering of these alternatives, one of
which constitutes an illegal condition of employment, that in law
requires their leaving to be considered a constructive discharge .6 It
is not necessary for such a finding that Villemez and Ballard await
the happening of the imminent illegal condition, already decided
upon and communicated to them.7
The Trial Examiner apparently considered these terminations apart
from all other findings in this case, and my colleagues adopt this por-
tion of the Intermediate Report. My colleagues are holding that this
Employer may not refuse to bargain with the incumbent majority
union and may not enter a contract with the unlawfully assisted union
but that the same Employer may at the same time insist that its em-
ployees accept the representative status of the assisted Union. I can-
not subscribe to such a view.
In the light of the other unfair labor practices which occurred, the
only possible conclusion, in my opinion, is that Villemez and Ballard
were constructively discharged in violation of Section 8(a) (3). Ac-
cordingly, I would reverse the Trial Examiner and would order these
employees reinstated with backpay.
6 Ra-Rsch Manufacturing Corporation , 120 NLRB 503 , 506-507, enfd . 276 P. 2d 451
(C.A. 2).
To accept the "alternative" of filing a charge, as a course of action which should have
been followed , rather than the abandonment of employment , strikes at the heart of the
constructive discharge cases already decided. In any constructive discharge case, the
discriminatee always has the "choice " of remaining silent, continuing to work, and filing a
charge. The Board has not previously imposed on such a discriminatee the obligation to
select that "choice."
'' Ace Wholesale Electrzo Supply Co ., et al., 133 NLRB 480, 505 A contrary result is
not required by Texas Independent Oil Company, Inc, 108 NLRB 617 , relied upon by the
Trial Examiner . The language of the Trial Examiner in that case was dictum to the deci-
sion. In addition , the assumed facts upon which the Trial Examiner based that dictum
are distinguishable from the instant case in that the illegal condition in the instant case
is not "portended" but rather has been presented to the employees as a fait accompli
requiring their immediate decision.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter sometimes called the Act, was initiated by a charge filed
June 20, 1962, by the above-indicated Charging Party, hereinafter sometimes referred
to as Local 390. The complaint issued by the Board's Regional Director for the
Twenty-third Region on September 11, 1962, alleges and Respondent, hereinafter
sometimes called Walker Electric, denies the commission of unfair labor practices
defined in Section 8(a)(1), (2), (3), and (5) of the Act. The issues grow out
of Walker Electric's action in severing relations with Local 390 and recognizing
District 50, United Mine Workers of America, hereinafter sometimes called District
50, as the representative of its employees.'
Pursuant to notice, hearing was held before Trial Examiner William J. Brown at
Port Arthur, Texas, on November 13 and 14, 1962. The General Counsel, Walker
Electric, and Local 390 were represented by counsel, participated fully in the hearing,
and were afforded full opportunity to present evidence and argument on the issues 2
Subsequent to the hearing, briefs were received from the General Counsel, Walker
Electric, and Local 390.
Upon consideration of the entire record herein, and on the basis of my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
The pleadings establish and I find that Walker Electric is a partnership composed
of Placida Walker and his son, Donald P. Walker. It is engaged in the business
of electrical contracting and maintains its principal office and shop at Port Arthur,
Texas. During the 12 months preceding issuance of the complaint, a representative
period, Walker Electric purchased and received goods originating from points out-
side the State of Texas, of a value in excess of $50,000. Walker Electric is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act and assertion
of the Board's jurisdiction is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
The pleadings establish and I find that Local 390 and District 50 are labor
organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Synoptic view; introduction to the issues
For more than 16 years, Walker Electric and its predecessor recognized and
bargained with Local 390 through a multiemployer bargaining agent. Prior to
1946, Walker Electric's predecessor, Walker-Azwell Electric Co., and a number
of other electrical contractors, bargained with Local 390 through an association
known as "Electrical Contractors of Port Arthur, Texas." Sometime in 1946, the
Southeast Texas Chapter, hereinafter sometimes called the Chapter, of the National
Electrical Contractors Association, hereinafter sometimes called NECA, was or-
ganized. Walker Electric was a charter member. Placida Walker has been at
times chairman of the Chapter's Sabine Division, an office which, according to his
testimony, he held at the time of the hearing. Collective-bargaining relations be-
tween Local 390 and NECA extended from 1946 to the present. They appear to
have been harmonious as is evidenced by the fact that on April 27, 1962, when Local
390 and the NECA Chapter executed a submission of bargaining issues then in
dispute to the Council on Industrial Relations for the Electrical Contracting Industry
1 The agreement according recognition to District 50, General Counsel's Exhibit No. 13,
states that it is entered into between Walker Electric and District 50 "on behalf of Local
Union No. 13739," also signatory. The role of the local does not appear material to con-
sideration of the issues in this proceeding.
8 District 50, although notified of the filing of the charges and of the subsequent issuance
of the comlaint, did not seek participation as a party to the proceedings.
WALKER ELECTRIC COMPANY 1219
the submission documents indicated that it was the first dispute submitted to the
Council .3
During the pendency of the Chapter-Local 390 agreement covering the period
June 1, 1959, to May 31, 1961, under date of February 23, 1960, Local 390 re-
ceived from its International office and the NECA Chapter received from its na-
tional office , communications suggesting new language , relating to letters of assent,
to be inserted either in the subsisting collective-bargaining agreement or in the
next successor negotiations. The IBEW letter stated that the objective to be achieved
was twofold: (1) to bind a member of an association to comply with the agreement
through its expiration date even though he might disaffiliate with the association
during the agreement, and (2) to insure a complete record in the International
office of all firms under agreement with construction local unions. NECA's letter
to chapter managers recognizes the two above-mentioned objectives and the third,
that of establishing in NECA's national and local offices lists of both members and
nonmembers in contractual agreement with a local union of the IBEW.
Pursuant to the foregoing instructions, the Chapter and Local 390 provided in
their 1961-62 agreement, effective for the period July 27, 1961, through April 30,
1962, that the agreement subsisted between the Chapter on behalf of its members
who have signed a letter of assent and other employers who signed a similar letter
of assent authorizing the Chapter to be their bargaining agent, and Local 390.
There is considerable dispute in the testimony as to the extent to which contractors,
both members and nonmembers of NECA, executed letters of assent. Suffice it to
say that Local 390 appears to have been somewhat less than diligent in obtaining
any letters of assent from non-NECA members and the Chapter appears to have
been even more remiss in obtaining them from NECA members. The evidence
in short indicates a mutual inattention to the matter. It is undisputed that Walker
Electric never signed a letter of assent.
On January 19, 1962, Local Union 390 gave the Chapter written notice of its
intention to terminate the existing agreement. On January 29, 1962, the Chapter,
by letter to Local 390, notified the latter of proposed changes in the existing agree-
ment.4 In accordance with established piactice, bargaining sessions commenced
between the parties on February 21, 1962. Placida Walker, chairman of the Sabine
Division, headed the employer negotiating team. Walker Electric had 5 days pre-
viously on February 16, 1962, notified the Chapter by letter that it rescinded all
previous understandings whereby the Chapter was authorized to represent Walker
Electric in labor negotiations. This letter expressly stated that such authority as
had been previously authorized was then rescinded with reference to the existing
or future agreements. It is undisputed that the contents of this letter were never
revealed to Local Union 390 at that time or at any time material to the issues herein.
There were six bargaining sessions conducted between the parties during the
period February 21 through April 27, 1962. Placida Walker was present at the
first, second, and fourth bargaining sessions, the fourth being held on April 10,
1962, participated in the negotiations in an active role, and at no time indicated
that his participation was on any basis different from that in prior years ' sessions .5
The last meeting on April 27 was the occasion of the joint submission of issues re-
maining in dispute by the parties to the Council in accordance with provision of
the existing agreement.
Sometime before the last bargaining session, Placida Walker had decided to
withdraw recognition from Local 390 apparently because of his dissatisfaction over
the amount of benefits he was required to pay under the agreement. On April 23
and 24, Placida Walker informed employees that he intended to sign with Dis-
6 This Council established in 1920 by NECA and IBEW decides issues in dispute between
IBEW local unions and NECA chapters , when the parties pursuant to agreement submit
their issues for decision . It acts only by unanimous agreement of union and contractor
representatives . Local 390 and Chapter agreements have at all material times contained
a Council provision . For an exposition of the Council 's relationship to IBEW locals and
NECA chapters and its effectiveness , see Parks v. IBEWV, 52 LRRM 2281.
4 This agreement provided for duration until April 30, 1962, and automatic year-to-year
renewal unless notice to change or terimnate were given by either party in writing at least
90 days prior to the terminal date
r, By letter dated March 16, 1962, in the interval between the second and third bargaining
sessions , before any indication of intent on Walker Electric 's part to seek to go its separate
way in bargaining , Local 390 formally withdrew the notice to terminate. Walker Electric
does not appear either in the spring of 1962 , at the hearing , or in its brief to attach any
significance to the fact that Local 390's notice was to terminate rather than amend
712-548-64-vol. 142-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trict 50. On May 2, Walker Electric signed a 2-year agreement with District 50.
On May 29, the Council issued its decision on matters in dispute between the
Chapter and Local 390.
B. The refusal to bargain
The General Counsel contends that the long history of multiemployer bargain-
ing as a member of the Chapter, together with Walker Electric's failure to give
Local Union 390 any indication in the 1962 bargaining sessions that it intended to
dissociate itself from the Chapter bargaining, requires the conclusion that Walker
Electric's conduct amounted to an ineffective attempt to withdraw from Chapter
bargaining. Thence results the conclusion that it is obligated to recognize the
Chapter-Local 390 agreement as negotiated including the provisions resulting from
the decision of the Council on Industrial Relations.
Local 390's position essentially is that Respondent Walker Electric by the entire
course of its conduct throughout the bargaining era up to the time of its recogni-
tion of District 50 is estopped from asserting that it is not properly included within
the coverage of the current agreement between the Chapter and Local 390.
The Respondent's position is that since Respondent never signed any document
authorizing the Chapter to bargain on its behalf and specifically failed to sign any
letter of assent during the pendency of the 1961-62 agreement, it has not been party
to the 1962 bargaining and is not bound by the negotiations therein or the agree-
ment resulting therefrom. Respondent further asserts that if it be contended that
it is obligated to bargain on an individual employer basis, the Board cannot direct
such individual bargaining in view of the facts that (1) Local 390 is not shown
to represent a majority in a unit of all Respondent's employees (including its neon
department) and (2) the unit represented by the Chapter in the past is inappropriate
since it includes the position of general foreman, allegedly a supervisory one.
It can be seen from the foregoing analysis that on the basis of the undisputed
facts and in view of the positions asserted by the parties, the question boils down
to one as to the effectiveness of Walker Electric's withdrawal from the multiemployer
bargaining and in the event its withdrawal is ineffective what sanctions may be
entered against it. The consideration that Walker Electric never signed a document
authorizing the Chapter to bargain on its behalf or agreeing to be bound by any
collective-bargaining agreement is wanting in cogency.6 There is no dispute but
what Walker Electric was a charter member of the Chapter and still holds mem-
bership therein. The bylaws of the association establish that its objectives include
the establishing and maintaining of uniform wages, hours, and conditions of em-
ployment through collective agreement. It has been the bargaining agent for its
members (and certain others) from its earliest days and its members' dues are
calculated on the basis of a percentage of the weekly productive labor payroll on the
basis of the rate established under the prevailing labor agreement. As early as
February 23, 1960, the national office of NECA called to the attention of local
chapters, including the Chapter here involved, the desirability of securing letters
of assent and directing chapter managers to obtain signatures from members of
his chapter and other employers who have authorized the chapter to serve as their
agent in collective bargaining.
Walker does not contend that the 1961-62 agreement was not binding on it.
Indeed it obtained the referral of qualified electricians pursuant to the agreement
and in turn Walker Electric complied with all provisions of the agreement includ-
ing the payment of benefits to the several benefit boards provided for in the bar-
gaining arrangement between the parties. Walker Electric's grant of authority to
the Chapter is, indeed, confirmed by its own letter of February 16 where it purported
to rescind previous understandings and agreements whereby the Chapter was author-
ized to represent it in labor negotiations. The record herein plainly indicates that
Respondent's action over more than 16 years is such as to firmly establish it as a
member of the multiemployer bargaining unit, at least through the term of the
1961-62 agreement.
The basic question here presented is whether Walker Electric effectively with-
drew from the established multiemployer unit by its letter of February 16 to the
Chapter manager. The answer quite plainly is that the letter was ineffective as
it came too late, almost a month after Local 390's notice to terminate (in effect
o In fact this contention would prove too much to be of any avail to Respondent for it
would be idle to rest the right to withdraw in mid-stream of 1962 on the claim that it had
a right to withdraw in mid-stream at any time. The entire history of stable labor relations
between the parties militates against such a claim. There is a right to withdraw but labor
peace requires that it be exercised at the right time and in the proper manner.
WALKER ELECTRIC COMPANY 1221
a notice to change) and more than 2 weeks after the Chapter notice of desire to
amend. It was not even timely under the 90-day clause of the existing agree-
ment. But even more important than the timing aspect is the secrecy and want of
good faith in failing to apprise Local 390 of its aspirations for separate representa-
tion followed by Placida Walker's active participation in the Chapter bargaining.
Withdrawal from a historically stable unit can be effected only by timely and good-
faith action. Retail Associates, Inc., 120 NLRB 388.
Walker Electric is in a position quite similar to that of the employer in Detroit
Window Cleaners Union, Local 139, etc. 126 NLRB 63. If anything, Walker
Electric is in even less favorable position to claim withdrawal from the multi-
employer unit than the employer in that situation because there, the employer had
actually withdrawn from the association whereas in the present case, Walker
Electric admittedly continues as an active member. In that case, the Board said:
As indicated above, [the employer] never gave the Respondent notice that
it had withdrawn from the multiemployer collective-bargaining unit or resigned
from the association until after contract negotiations had been concluded.
Instead, it stood by while negotiation3 were being conducted, keeping informed
of the progress of these negotiations, without giving the Respondent the
slightest reason to believe that the association was no longer bargaining on its
behalf. Indeed it was only after negotiations were concluded and after it had
received a requested preliminary copy of the agreement and later a final printed
copy that [the employer] notified the Respondent that it had resigned from
the association and was therefore not obligated to sign the agreement.
In the present case, not only did Walker Electric keep alive its membership in the
association, but Placida Walker actively participated in the negotiations and does not
appear to have given notice to Local 390 until sometime after the unresolved issues
had been submitted to the Council.
Respondent's reliance on Northern Nevada Chapter, NECA, etc., 131 NLRB
550, is misplaced, since membership in the NECA Chapter appears there to have
been a basis for finding delegation of bargaining authority to the Chapter with
resultant inclusion in the multiemployer unit . Reno Employers Council, Adm.
Dec. Case No. 20-RC-4753, April 25, 1962, is likewise inapposite since it did not
involve a situation where, as here, the employer not only avoided notifying the union
but actively participated in the bargaining. Abbott Laboratories, 131 NLRB 569,
relied on in Reno, is noteworthy in that emphasis was placed on the factor of notice,
express, implied, or apparent, to the Union. In the case here no notice whatever
was given Local 390.
Respondent's assertions regarding the impropriety of ordering it to bargain
on an individual employer basis need only brief mention since it abundantly appears
that the historical multiemployer unit with its accepted and traditional coverage
is the appropriate unit. The evidence does indicate some progression from neon-
shop to electrician but this does not appear to have been a stumbling block to
satisfactory relations in the past nor should it preclude a disposition of the case
on a basis in accord with the stable bargaining history.
With regard to the Chapter-Local 390 agreements' inclusion of the classification
of general foreman, analysis of the agreement reveals that the status of general
foreman may be such as not necessarily to involve independent judgment within the
intendment of Section 2(11) of the Act. The agreement provides: (1) when four
or more journeymen are required on a job one shall be designated foreman and
may be required to work with the tools until the crew size reaches six journey-
men; (2) when more than eight journeymen are employed there must be two (or
more) foremen, one of whom shall be designated general foreman; and (3) only
when three or more foremen are on a job is the general foreman relieved of direct
charge of a crew. Neither in the foregoing contract provisions nor in the testimony
of Shop Foreman Marionneaux is there a basis for concluding that the agreement
covers supervisory employees.
On the basis of the foregoing analysis of the evidence and the applicable law,
I find and conclude that by its conduct in refusing to accept the Chapter-Local 390
agreement as binding on it, Walker Electric unlawfully refused to bargain, thereby
engaging in an unfair labor practice as defined in Section 8(a)(5) of the Act.
C. The aid, assistance, and support furnished District 50, United Mine Workers
There is little conflict in the testimony relating to the circumstances surround-
ing Walker Electric's action in signing a collective-bargaining agreement on May
2, 1962, with District 50. The agreement, in evidence as General Counsel's Ex-
hibit No. 13, was the end result of a veritable whirlwind of events originating in a
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone call about noontime on May 1 from Placida Walker to Vernon Ford,
regional director of District 50 in Houston. Some week or so prior to this tele-
phone call, Walker had revealed to employees Villemez and Ballard and to Shop
Foreman Marionneaux that he was going to sign with the Mine Workers, stating to
Ballard that the reason for this action was that he was not figuring on paying any
more benefits to the IBEW. According to Placida Walker's testimony, he made one
or two telephone calls to Houston and one or two trips back and forth between
Houston and Port Arthur, a distance of some 90 miles, on May 1. A. W. Ham-
mons, now assistant regional director of District 50 but on May 1 a field represen-
tative under Ford's supervision, testified that on May 1, pursuant to instructions
from Ford, he came to Walker Electric to solicit employees to join District 50. The
circumstances surrounding his solicitation of employee authorization cards, furnishes
the only substantial conflict of testimony in the instant proceeding.
Appraising the evidence in the light most favorable to Respondent, it appears
that there were five employees actually at work for Walker Electric on May 1,
1962, three of whom signed cards at the solicitation of Hammons on May 1. The
cards are in evidence as Respondent's Exhibits Nos. 3, 4, and 5, bear date of May
1, 1962, and the signatures of Whittlesey, DeHart, and Honeycutt. The circum-
stances surrounding the execution of these cards bear somewhat of an aura of
mystery, and Placida Walker's testimony was that the date they were signed could
not have been the first of May.
May 1 was a busy day in the Port Arthur-Houston area as appears from the
fact that Placida Walker, all starting at noontime, made one or two telephone
calls and one or more trips back and forth between Houston and Port Arthur
that day. Also Hammons, according to his testimony, came to Port Arthur on
May 1, introduced himself to Placida Walker, and explained that his purpose was
seeking organization of the employees. Thereafter, according to Hammons, Placida
Walker introduced Hammons to three of the five employees. Later Donald Walker
joined the group, but according to Hammons, neither of the Walkers were there
when he talked to the employees about joining District 50 Donald Walker was
not interrogated concerning the circumstances under which employees signed cards
even though a preceding witness, Hammons, had testified that Donald Walker joined
him, the three employees and Placida Walker for at least some time during the
period of Hammons' visit to Walker Electric on May 1.
Whittlesey testified that Placida Walker had approached him on the street during
the week of April 22 and asked him to come to work. In a subsequent conversa-
tion, Walker said that he was going under a new union, the Mine Workers, and that
it would be necessary for Whittlesey to join the Mine Workers to have employ-
ment with Walker Electric. Whittlesey reported for work May I and signed the
District 50 card in Walker Electric's office; he testified that both Placida Walker and
the union representative (apparently Hammons) were present when he signed.
Honeycutt who works in the neon shop and was hired May 1, testified that he signed
while neither of the Walkers were present, but that he was on the clock while he
was signing. He did testify that he met Hammons the day that he signed for the
first time. DeHart, who did not testify, also appears to have been hired May 1.
Viewing all the evidence bearing on the issue of whether Walker Electric furnished
support and assistance to District 50, it appears to be difficult to conceive of a clearer
case of assistance and support. Placida Walker, displeased with the burden of
benefit payments required under the Chapter-Local 390 agreement, announced in
the week prior to his signing up with District 50, both to employees and to pro-
spective employees, his intention of going with District 50 as the new bargaining
agent of employees. To at least one prospective employee, Whittlesey, he made
it plain that affiliation with the Mine Workers would be a condition of continued
employment. Additionally, I find the credited evidence to indicate that support
was given by allowing, in fact inviting, the District 50 representative onto the pre-
mises for the purpose of obtaining employee signatures during working time with-
out loss of pay. The rapidity with which the collective agreement was executed,
although not in itself entitled to conclusive weight, tends to support the inter-
pretation of the evidence that the Respondent was desperately anxious to have an
agreement with District 50 coincident with the expiration of the 1962 Chapter
agreement because as Placida Walker put it, he still wanted to be a "union contractor."
There remains for consideration the contention vigorously urged by Respondent
that the provisions of Section 8(f), added by the 1959 amendments, authorized
Walker Electric to enter in a collective-bargaining agreement with a labor organiza-
tion without determining whether it represented a majority of employees. Section
8(f) provides:
WALKER ELECTRIC COMPANY 1223
It shall not be an unfair labor practice under subsection (a) and (b) of this
section for an employer engaged primarily in the building and construction
industry to make an agreement covering employees engaged (or who upon
their employment, will be engaged) in the building and construction industry
with a labor organization of which building and construction employees are
members (not established, maintained, or assisted by any action defined in
section 8(a) of this Act as an unfair labor practice) because (1) the majority
status of such labor organization has not been established under the provisions
of section 9 of this Act prior to the making of such agreement....
Prescinding from the question as to the applicability of Section (f) to District
50 in view of the plain purpose of Congress to restrict its benefits to labor organiza-
tions "of which building and construction employees are members," it quite clearly
has no applicability in the instant case because of the clear assistance and support
furnished District 50 by Walker Electric.?
The preponderance of the evidence quite plainly reveals that the situation here is
a far cry not only from one in which a labor organization conducts an organizing
campaign and eventually secures majority status, but also from one where an em-
ployer contacts a union as a source of skilled workers. Here, in effect, District
50 was picked by Placida Walker as the vehicle by which it might continue to be
known as a "union contractor" and in effect was not only invited in to Walker
Electric's shop, but was furnished the support and assistance resulting from a pre-
hire admonition to one employee that he would have to join as a condition of
employment and to the encouragement emanating from the fact that, according to
Hammons himself, Walker at the very least introduced him to the employees. I
conclude and find that Walker Electric is shown by a clear preponderance of the
evidence to have unlawfully furnished assistance and support to District 50 and that
District 50 is shown to have had no genuine, uncoerced majority of employees at
any material time.
D. The alleged discriminatory terminations
The complaint alleges that Respondent terminated Villemez on April 23, 1962,
and Ballard on April 27, 1962, and refused to reinstate them because of their
failure to relinguish membership in and abandon Local 390, and their refusal to
become members of and designate District 50 as their bargaining representative.
Villemez was first employed by Walker Electric in March 1946, as a sign painter
helper and sometime in 1950, joined Local 390 and commenced work as an elec-
trician. From 1950 up until his last day of work with Walker on Thursday, April
19, he worked for no other employer. Ballard also had long service with Walker
Electric, having been hired in 1952, and never having worked for any other em-
ployer than Walker since that time. Sometime in the week beginning Monday,
April 16, Shop Foreman Marionneaux told both Villemez and Ballard that work
was slackening off and that they should take a few days off
On the morning of Monday, April 23, Villemez visited Walker's office and talked
to both Placida and Donald Walker. Placida Walker, urging Villemez to keep
the conversation confidential, told Villemez that he was going to sign up with the
Mine Workers on the first of the month and would like Villemez to stay on as shop
foreman at an increase in pay. Villemez said that he would have to think about
it since it involved the possible loss of his IBEW membership. Later on the same
day, Villemez told the two Walkers that he had made up his mind not to stay with
Walker Electric; they urged him to think further on it Still later on the same day,
Villemez told Donald Walker that he had definitely made up his mind that he would
not stay with Walker Electric under those conditions.
Similarly, following his layoff by Marionneaux, Ballard stopped in at Walker's
office on Tuesday, April 24, and Walker said he was figuring on going with the
Mine Workers the first of May and asked Ballard to stay on. Ballard said that
R The meaning of the limitation of Section 8(f) to "labor organizations of which building
and construction employees are members" does not appear to have been passed on by the
Board. See S. S. Burford, Inc., 130 NLRB 1641; Island Construction Co., Inc., et al., 135
NLRB 13. The legislative history of Section 8(f) as set forth in S. Rept 187, 86th Cong.,
1st sess., to accompany S. 1555, pp 27-28; IT Rept. 741, 86th Cong., 1st secs., p 20; H.
Rept. 1147, 86th Cong., 1st sess. (Conf. Rept.), p 41, emphasizes the requiiremenit that the
labor organization be one of which building and construction employees are members. The
Senate report refers to the section as one designed to afford relief for the traditional and
customary practices in the industry where skilled craftsmen "constitute a pool of help
centered about their appropriate craft union "
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not see how he could, whereupon Walker asked him to think it over and
come in and tell him his decision later. On Thursday, April 26, Walker told him
that he would have to terminate him at 4:30 on Friday,8 but that if he wanted to
report for work on Monday, April 30, he should show up and he would be signed
back in. After receiving his pay on Friday, Ballard went down to Local 390 and
signed the out-of-work book.
On cross-examination, Villemez conceded that Walker did not tell him he was
going to have to become a member of the United Mine Workers, nor did he tell
him he would have to drop his membership in the IBEW; similarly, Ballard testi-
fied on cross-examination that Walker did not say that he would be required to
give up his IBEW membership to remain with Walker Electric.
The General Counsel contends that under the rule of Radio Officers' Union, etc.
(A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, specific proof of intent
to encourage or discourage union membership is unnecessary where a natural con-
sequence of the employer's action was such encouragement or discouragement. But
this rule is applicable where there is employer action in the nature of discrimina-
tion. As I have found above, Walker Electric in my view is clearly shown to have
furnished assistance and support to District 50 of the United Mine Workers, but I
do not think that discrimination in tenure of employment is made out by Respond-
ent's action in informing Villemez and Ballard of its intention to sign with the
United Mine Workers.
The sum and substance of the evidence on the matter of the cessation of employ-
ment of Villemez and Ballard is that they quit their employment rather than work
under conditions, to be imposed sometime in the near future, which would include
the United Mine Workers as their unwanted representative. I agree with the Re-
spondent's position that the case is analogous to that set forth in the Trial Examiner's
report, accepted by the Board, in Texas Independent Oil Company, Inc., 108 NLRB
617, in which the employee anticipated the portended treatment and elected to ter-
minate relations rather than face the forthcoming representation by an unwanted
bargaining agent. I recommend dismissal of the Section 8(a)(3) allegations.
E. Interference, restraint, and coercion
As amended by leave granted by the Trial Examiner at the hearing, the com-
plaint alleges five separate instances of interference, restraint, and coercion on the
part of Placida and/or Donald Walker. The alleged acts of interference relate to
conversations between the Walkers and Villemez, Ballard, and Whittlesey in the
period April 23 to 29
Paragraph 7(a) of the complaint alleges that on or about April 23, 1962, Placida
Walker promised an employee promotion to supervisory status if he would agree to
acquiesce in representation by the United Mine Workers and forego his rights under
Section 7 of the Act to representation by a labor organization of his own choosing.
Villemez, according to his account of the events of Monday. April 23, summarized
above, testified that Placida Walker told him on that occasion that he was going
to sign with the Mine Workers the first of the month and he would like Villemez
to stay with him as shop foreman for which he would get a 25-cent an hour raise.
As recounted above, Villemez had two other conversations that same day with the
Walkers and finally reported to them that he had made up his mind that he would
not work under the forthcoming UMW arrangement On cross-examination,
Villemez conceded that Placida Walker did not say that Villemez would have to be-
come a member of the Mine Workers, nor did he say that Villemez would have to
drop his membership in the IBEW.
While the evidence does not indicate that Walker conditioned his offer of an
increase in status to that of shop foreman, either on joining United Mine Workers
or surrendering membership in the IBEW. it is plain that the offer was conditioned
upon Villemez' working under a Mine Workers' contract. The fact that Villemez
made up his mind to sign the out-of-work book rather than submit to this oppres-
sion is immaterial. The interference with his rights under the Act was complete
when Placida Walker made his offer. Walker Electric thereby interfered with,
restrained, and coerced employees in their rights under Section 7 of the Act
Paragraph 7(c) of the complaint alleges that "on or about April 24, 1962. Placida
Walker threatened an employee that Respondent was discontinuing payment of
union benefits." Syntactical considerations praetermitted, this allegation of the
8I interpret Walker's statement as an expression of his understanding of his position
under the existing contract with its terminal date of April 30 rather than as an effective
discharge.
WALKER ELECTRIC COMPANY 1225
complaint relates to the conversation on April 24 between Placida Walker and
Ballard. In the course of that conversation, as noted above, after telling Ballard
that he was figuring on going with the Mine Workers May 1 and asking Ballard
if he would go along and stay with him, Placida Walker said that he was not
figuring on paying any more benefits to the IBEW. This latter statement of Placida
Walker apparently followed sometime after Ballard had said that he did not see
how he could acquiesce in United Mine Workers representation because of his
longstanding representation by the IBEW and the fact that all his benefits had been
paid into IBEW-employer funds to which Placida Walker said that he would like
Ballard to think it over. While it appears that Walker later said that he was not
figuring on paying any more benefits to the IBEW it appears that this was not an
independent threat but rather a statement of one of the reasons why be was
abandoning his contractual arrangement with IBEW and proposing to sign an agree-
ment with the Mine Workers. This is not a threat of the type alleged in the com-
plaint even if it be assumed, as I have found herein, that the Respondent's action
in changing over from Local 390 to District 50 was invalid under the law.
Section 7(e) of the complaint, as added by amendment at the hearing alleges
that on April 30, 1962, Placida and Donald Walker informed an employee that
he would have to join the United Mine Workers as a condition of employment.
Whittlesey, who subsequently signed a card for District 50, testified that sometime
during the week of April 22, Placida Walker approached him on the street and
asked him if he would go to work for Walker Electric. Placida Walker explained
he was giving up his contract with the IBEW and going under a new union and
Whittlesey would have to join the Mine Workers Union to go to work. Again on
April 30, either Placida or Donald Walker, according to Whittlesey, told him he
would have to join the Mine Workers Union. Whittlesey persisted in his account
under vigorous cross-examination. His testimony is not denied either by Placida
or Donald Walker. I credit it and find that either Placida Walker on two occasions
or Placida and Donald Walker on two separate occasions informed Whittlesey that
it would be necessary for him to join the United Mine Workers as a condition of
employment. This amounted to interference with his rights under the Act to repre-
sentation of his own choosing .9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of Respondent 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
In view of my findings that Respondent has engaged in unfair labor practices
as noted above, I shall recommend that it be required to cease and desist therefrom
and to take such affirmative action as appears necessary and appropriate to effectuate
the purposes of the Act.
I shall recommend that Respondent be required to cease and desist from recogniz-
ing or assisting District 50, and further be required to set aside the purported agree-
ment with that labor organization and to reimburse employees the amount of
moneys deducted by way of checked-off dues and initiation fees in favor of Dis-
trict 50 with interest at the rate of 6 percent computed as in Isis Plumbing & Heat-
ing Co., 138 NLRB 716. In view of my findings that Respondent's purported
withdrawal from the multiemployer bargaining arrangement with Local 390 through
the NECA Chapter was ineffective, I shall recommend that Respondent be required
to adhere to the existing agreement between the NECA Chapter and Local Union
390 for its duration, this to include recognizing the temporary employee status of
electricians hired other than through the referral system established in the agree-
ment. I shall recommend the posting of appropriate notices at Respondent's own
office and the forwarding of copies for posting at Local Union 390's office.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following:
O The General Counsel's brief does not appear to urge that the evidence sustains the
allegations of Section 7(b) and ( d) relating to other instances of Section 8(a) (1) utter-
ances and I appraise the record as insufficient to warrant a finding of independent inter-
ference as alleged in those sections.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect commerce within the mean-
ing of Section 2(6) and (7) of the Act; Local Union No. 390, International Brother-
hood of Electrical Workers, AFL-CIO, and District 50, United Mine Workers of
America, are labor organizations within the purview of Section 2(5) of the Act.
2. By its withdrawal from the multiemployer bargaining relationship between the
NECA Chapter and Local Union 390 and its according of recognition to and execu-
tion of a labor agreement with District 50, United Mine Workers of America, Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a) (5)
of the Act.
3. By informing employees and prospective employees that it intended to recognize
District 50, United Mine Workers, and that as a condition of employment they would
have to acquiesce in the recognition or become members of District 50, and by
assisting representatives of District 50 to solicit membership in that organization,
Respondent engaged in unfair labor practices within the scope of Section 8(a) (2)
and (1) of the Act.
4. All employees of Respondent and other employers performing electrical work
and historically covered under the collective-bargaining agreements between Local
390 and the NECA Chapter constitute a unit appropriate for the purposes of collec-
tive bargaining within the scope of Section 9 of the Act.
5. The collective-bargaining agreement between the NECA Chapter and Local
Union 390 effective May 1, 1962, to remain in effect until April 30, 1964, as amended
by the decision of the Council on Industrial Relations issued May 29, 1962, is, while
in full force and effect, binding on Respondent.
6. The purported agreement entered into May 2, 1962, between Respondent and
District 50, United Mine Workers of America, is invalid and of no force and effect
and in no way binding upon Respondent.
7. The unfair labor practices noted above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, it is recommended that the Respondent, Walker
Electric Company, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Recognizing District 50, United Mine Workers of America, or any successor
thereto or local thereof, unless and until certified by the Board, as the representative
of employees for purposes of collective bargaining, and from giving any force or
effect to the agreement with that labor organization dated May 2, 1962, or any supple-
ment, addition, or modification thereto.
(b) Refusing to bargain with Local Union 390 or to recognize it as the representa-
tive of its employees for purposes of collective bargaining.
(c) Failing, neglecting , and refusing to recognize the agreement between Local
Union 390 and the NECA Chapter currently in effect as applicable to its employees
in classifications of employees covered thereby.
(d) Interfering with, restraining, or coercing employees in any manner in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which is found to be necessary and
appropriate to effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from District 50, United Mine
Workers of America, as a representative of employees for purposes of collective
bargaining unless and until the Board certifies said labor organization as the repre-
sentative of Respondent's employees.
(b) Inform Local 390 and the Chapter in writing that it accepts and recognizes as
binding on it the provisions of the Chapter-Local 390 agreement.
(c) Reimburse employees for initiation fees and union dues deducted from em-
ployees' wages in accordance with the provisions of the May 2, 1962, agreement with
District 50, United Mine Workers of America, as in Section V above.
(d) Place electricians hired before resumption of the Local 390 referral operations
in the status of the temporary employees under the referral provisions of the
agreement.
(e) Post at its office in Port Arthur, Texas, and forward to Local Union 390, for
posting in its office, a copy of the attached notice marked "Appendix." 10 Copies of
101n the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
WALKER ELECTRIC COMPANY 1227
said notice, to be furnished by the Regional Director for the Twenty-third Region,
shall, after being duly signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that these notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date hereof, what steps it has taken to comply herewith.ii
It is recommended that allegations of unfair labor practices contained in the com-
plaint and not specifically found herein to be unfair labor practices engaged in by
Respondent be dismissed.
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
for the words "Pursuant to a Decision and Order."
P In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for the Twenty-third Region, In
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."
APPENDIX
NOTICE
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, we hereby notify our employees and applicants referred by Local Union
No. 390, IBEW, AFL-CIO, that:
WE WILL withdraw and withhold all recognition from District 50, United
Mine Workers of America, as collective-bargaining representative of any of our
employees unless and until so certified by the National Labor Relations Board
WE WILL NOT give any effect to the collective-bargaining agreement signed
with District 50, United Mine Workers of America, dated May 2, 1962, or any
modification, extension, renewal, or supplement thereto or to any checkoff in
favor of District 50, United Mine Workers of America.
WE WILL NOT give any assistance or support to District 50, United Mine
Workers of America.
WE WILL reimburse each of our present and former employees for all initia-
tion fees, dues, and other moneys unlawfully exacted from them pursuant to
the aforementioned agreement with District 50, or checkoff authorizations exe-
cuted in favor of District 50.
WE WILL recognize the current agreement between Local Union No. 390,
IBEW, AFL-CIO, and the NECA Chapter binding upon us and covering our
employees. This will include the referral provisions for purposes of which
employees hired prior to the date of this notice will be replaceable as temporary
employees.
WE WILL NOT in any way interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form labor organizations, to
join or assist Local Union No. 390, and bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WALKER ELECTRIC COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting , and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No. Capitol
8-0611, Extension 296, if they have any question concerning this notice or compliance
with its provisions.