Electrical Workers IBEW Local 6 (San Francisco Electrical Contractors), 109 (1995)

Docket Number:20-CB-07825
 
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International Brotherhood of Electrical Workers,

Local 6, AFL-CIO (The San Francisco Electrical Contractors Association; Butcher Electric) and Michael Berkowitz and La'Moyne Addleman and Jan Berroyer and Lee Bartl and John Finn and Lee M. Naranjo. Cases 20-CB- 7825, 20-CB-7843, 20-CB-7873, 20-CB-7882, 20-CB-7995, and 20-CB-8495

July 31, 1995

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE

The principal issues in this case1 are whether the judge correctly found that several of the Respondent's exclusive hiring hall rules, practices, and procedures violated Section 8(b)(1)(A) and (2) of the Act. In addition, there are issues whether statements made by the Respondent's hiring hall dispatcher, John Conroy, to hiring hall applicants Michael Berkowitz and La'Moyne Addleman violated Section 8(b)(1)(A). The judge found that only one statement made to Berkowitz was unlawful.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modified and to adopt the recommended Order as modified.

1. With respect to statements made by dispatcher Conroy, Charging Party Berkowitz credibly testified about an intermittent conversation with Conroy over a 2-hour period on November 9, 1990. No one else was present. Conroy asked Berkowitz why he was ''suing'' the Union. Berkowitz responded, ''It's the money.'' Conroy responded by saying that a good union brother would not sue a union. Conroy also said, ''You know, we can turn you in to the unemployment people for turning down work.'' The Respondent had no such reporting policy or practice.

When Conroy and Berkowitz resumed their discussion later that day, Berkowitz said that he would be

willing to bet Conroy $1000 that Conroy would lose the case. Conroy asked for a week or two to think about it. As they were leaving, Berkowitz told Conroy that ''if this case goes to trial the NLRB will make this case a class action.'' Conroy responded that if this case ''became a class action that you will be killed.''

The judge found that Conroy's parting statement violated Section 8(b)(1)(A). He concluded that the threat was ''objectively perceived as a threat by Berkowitz,'' even if it may have been just a ''rhetorical overstatement in the concluding moments of an impassioned debate.'' We disagree with this conclusion.

The test of whether a statement would reasonably tend to coerce an employee in the exercise of protected concerted activities is an objective one, requiring an assessment of all the circumstances in which the statement is made. Contrary to the judge, we find that Conroy's statement cannot reasonably be construed as a threat of adverse consequences, physical or otherwise, if Berkowitz' unfair labor practice charge led to ''class action'' litigation. The statement that Berkowitz would ''be killed'' in that event culminated a conversation in which each party confidently predicted victory in litigation. Under the circumstances described by Berkowitz, Conroy's statement would reasonably be construed as he claims it was intended, i.e., a metaphorical prediction of resounding defeat for a possible class action. In addition, there were no overt moves by Conroy that would be consistent with a threat actually to kill Berkowitz. We shall dismiss this allegation of the complaint.

On the other hand, we find that Conroy did make an unlawful statement in his conversation with Berkowitz when he explicitly threatened to take the unprecedented action of turning Berkowitz in to ''the unemployment people.'' The General Counsel correctly states in cross-exceptions that the complaint was amended at hearing to encompass this statement. The judge clearly found that the statement was made, but he failed to rule on the merits of the amended complaint allegation. We find that Conroy's statement would reasonably be viewed as a threat to retaliate against Berkowitz' pursuit of the unfair labor practice charge. Conroy, therefore, violated Section 8(b)(1)(A) of the Act.

2. We agree with the judge that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by discriminatorily enforcing its hiring hall eligibility rule against the individual Charging Parties specifically and against travelers from other International Brotherhood of Electrical Workers (IBEW) locals in general.3 We, there-

1 On February 11, 1992, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the exceptions. The Respondent filed a reply to the cross-exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

We grant the General Counsel's motion to strike statements in the Respondent's brief that refer to evidence that is not part of the record.

3 In sum, the eligibility rule bars registration on Respondent Local 6's group I out-of-work list (the highest priority referral list) of any individual who is eligible for registration, even though not actually registered, on any other IBEW local's group I list. We wish to clarify the judge's statement, in sec. IV,D,1,b of his decision, that ''the

Continued

fore, find it unnecessary to pass on the judge's alternative finding that the eligibility rule is unlawful on its face. To remedy the discrimination found, we find it appropriate to order the Respondent to refrain from enforcing its hiring hall rules, practices, and procedures in a discriminatory manner.

We further agree with the judge's findings that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing to provide information specifically requested by hiring hall users about relevant rules, practices, standards, and procedures of the hiring hall. We find it unnecessary to pass on the judge's additional finding that, even in the absence of a request, the Respondent acted unlawfully by failing to inform all hiring hall users of the rules and practices necessary for an intelligent utilization of the hiring hall. A finding of a violation in this regard would not materially affect the judge's recommended broad notification remedies, which we adopt in light of the Respondent's egregious pattern of arbitrary and discriminatory conduct with respect to travelers who seek employment through the Respondent's hiring hall.4

ORDER

The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local 6, AFL-CIO, its officers, agents, and representatives, shall

1. Cease and desist from

(a) Threatening to report a hiring hall user to unemployment officials in retaliation against the filing of an unfair labor practice charge.

(b) Failing and refusing to provide information specifically requested by hiring hall users about the rules, practices, standards, and procedures of the hiring hall.

(c) Maintaining referral questionnaires which mislead hiring hall users about residency requirements for group I eligibility in order to discourage and delay qualified travelers from registering on the group I outof-work list.

(d) Enforcing an eligibility rule or any other hiring hall rule, practice, standard, or procedure in a manner which discriminatorily denies group I status to travelers.

(e) Failing and refusing to allow eligible group I hiring hall applicants to register on the group I out-of-work list, thereby causing and/or attempting to cause them to lose employment opportunities they would have otherwise obtained.

(f) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) For a period of 6 months, reduce to writing and post in the hiring hall a complete statement of all Local 6 hiring hall rules, procedures, standards, and practices, including those relating to referral appeal committee proceedings. The written rules shall be kept current. Further, copies of these rules and all updates shall be mailed to each employer with whom Local 6 has a contract in sufficient numbers to allow for posting, if the employer is willing, at each jobsite employing individuals dispatched from the Respondent's hiring hall.

(b) Rescind referral questionnaires which create the mistaken impression about residency requirements for group I status and include in any questionnaires used within the 6-month notice period covered by this Order a statement that, on request, the Respondent will provide a complete written statement of all current Local 6 hiring hall rules, procedures, standards, and practices, including those relating to referral appeal committee proceedings.

(c) In response to prior requests from individual hiring hall users, provide those individuals with the specific requested information which the Respondent failed to provide, including information about the requirements for registration on the group I out-of-work list, the reasons for denial of group I status, and the reasons why the referral appeal committee has denied an appeal of the Respondent's denial of group I status.

(d) For a period of 6 months, notify each hiring hall user requesting specific information about hiring hall operations and/or the user's current hiring hall referral status that, on request, the Respondent will also provide a complete written statement of all current Local 6 hiring hall rules, procedures,...

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