IBEW Local No. 12, 245 (1980)

IBEW LOCAL NO. 12

International Brotherhood of Electricau Workers,

Local No. 12 (Commonwealth Electric Company) and Raymond Bosche. Case 27-CB-1218

September 18, 1980 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND PENELLO

On April 2, 1980, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety.

DECISION

ROGER B. HOLMES, Administrative Law Judge: The unfair labor practice charge in this proceeding was filed on May 1, 1978, by Raymond Bosche, an individual.

The Regional Director for Region 27 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, issued on June 23, 1978, a complaint and notice of hearing against International Brotherhood of Electrical Workers, Local No. 12, herein called Respondent.

The General Counsel's complaint alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(IXA) of the National Labor Relations Act, herein called the Act.

In summary, the General Counsel contends: (1) that Respondent levied fines on or about March 6, 1978, against eight members of Respondent, who had worked for Commonwealth Electric Company, herein called the Employer, and (2) the strike and the picketing by Respondent since on or about July 18, 1977, were in support of Respondent's insistence to impasse that the Employer agree to a nonmandatory subject of bargaining;

i.e., the National Electrical Industry Fund. (See G.C.

Exh. (c) for the specific allegations made by the General Counsel and see the arguments set forth in the General Counsel's brief).

252 NLRB No. 40

Respondent filed an answer to the General Counsel's complaint and denied the commission of the alleged unfair labor practices. (See G.C. Exh. (e).) In summary, Respondent contends that it did not insist to impasse on a nonmandatory subject of bargaining with the Employer. The attorney for Respondent stated in his brief: 'There is no dispute that the industry fund is a nonmandatory subject of bargaining but it may be proposed, even though it cannot be insisted upon as a condition of entering into a collective bargaining agreement.' Respondent contends that it was agreeable to negotiating a separate agreement with the Employer, and that it did not condition agreement on inclusion of industry fund payments. Respondent further urges that the eight members were fined for the reasons set forth in Joint Exhibit 43.

The hearing was held before me on October 26, 1979, at Denver, Colorado. The time for filing briefs was extended to December 17, 1979. Both the counsel for the General Counsel and the attorney for Respondent filed briefs.

FINDINGS OF FACT

i. THE EMPLOYER The Employer is a Delaware corporation with an office and place of business located at Pueblo, Colorado, where it is engaged in the electrical construction business.

In the course and conduct of its business operations within the State of Colorado, the Employer annually purchases and receives goods and materials valued in excess of $50,000 directly from outside the State of Colorado.

Upon the foregoing facts and the entire record herein,

I find that the Employer has been, at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.

11. THE UNION It was admitted in the pleadings that Respondent has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Based upon the pleadings, and the entire record herein, I find that fact to be so.

3. THE ALLEGED UNFAIR LABOR PRACTICES A. The Witnesses In alphabetical order by their last names, the following three persons appeared as witnesses at the hearing in this proceeding:

   Lawrence C. Farnan has been the district International vice president of the International Brotherhood of Electrical Workers since April 1, 1976.

   Robert D. Grinsteadhas been for the past 17 years the business manager and the financial secretary of Respondent.

   William Schwartzkopf has been the vice president and the general counsel of the Employer since July 1977.

   245

   DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to that time, he held the position of the general counsel of the Employer.

   B. CredibilityResolutions In making the findings of fact herein, I have based the findings on portions of the testimony of each one of the three witnesses who testified in this proceeding. In addition, I have relied on the extensive amount of documentary evidence introduced by the parties.

   Of course, in evaluating the testimony, I have given consideration to the positions occupied by the witnesses, and their potential interests in the outcome of the litigation. There are some minor variations in the testimony, but these are not truly significant in resolving the issues presented by the pleadings. For example, the recitals regarding the conversation between Schwartzkopf and Farnan in September 1977 varied to a minor degree, but those accounts are not directly in conflict. I will set forth herein the facts which appear to me to be more credible.

   Not surprisingly, the witnesses view the facts from different perspectives, and they would draw different conclusions from the facts as they see them. For example, the question of whether the Employer and Respondent were bound to the Colorado Statewide Line Agreement is one issue which separated the parties. Thus, I am not suggesting that there are no factual issues between the parties. However, as indicated above, I found the testimony by all three witnesses to be believable. Therefore,

   I have relied upon portions of the testimony from each one of them. Additionally, the documentary evidence offered at the hearing forms the basis for numerous findings of fact.

   C. Joint Exhibit I and JointExhibit 42

   Paragraph V of the General Counsel's complaint was admitted to be true. It states as follows:

   At all times material herein, the Respondent has been the representative for the purposes of collective bargaining of a unit of outside electrical workers employed by the Employer, which is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and by virtue of Section 9(a) of the Act the Respondent has been at all times material, and is now, the exclusive collective bargaining representative of all said employees.

   Introduced into evidence as Joint Exhibit I was a document which is entitled 'Letter of Assent-B.' That document is between the Employer and Local 969 of the IBEW. The document provides, among other things, that the Employer will comply with all of the terms and conditions of employment contained in the Colorado Statewide Line Agreement between the Western Line Constructors Chapter, Inc., and Local 969 of the IBEW.

   Joint Exhibit I is dated April 26, 1976, and it provides that it would remain in effect until October 31, 1976, which is described as the 'termination date.' A copy of the Colorado Statewide Line Agreement was introduced into evidence as Joint Exhibit 42. The document states that it is an agreement between the Western Line Constructors Chapter, Inc., N.E.C.A. and Local Unions No. 12, 111, 113, and 969 of the IBEW.

   The document further states: 'It shall apply to all firms who sign a letter of assent to be bound by this agreement.' (See J. Exh. 42.) The effective dates of Joint Exhibit 42 are contained in section 1.1 of article 1 of the document. It provides: 'This Agreement, amended, shall take effect on November 1, 1976, and shall remain in effect through October 31, 1977. It shall remain in effect from year to year thereafter from November 1, through October 31, of any year unless changed or terminated in the way provided herein.' The explanation why there was no Letter of Assent-B between the Employer and Respondent in this case was stated in a letter from Business Manager Grinstead to the International president of IBEW, as follows: 'By virtue of this Company being signatory to the Colorado Statewide Line Agreements by another Colorado Local, we did not feel it was necessary to further bind them to the same Statewide agreement.' While Vice President and General Counsel Schwartzkopf expressed the opinion at the hearing that the Employer was bound to the Colorado Statewide Line Agreement with Respondent herein, he acknowledged that an extensive search of the Employer's files revealed no letter of assent dated after Joint Exhibit 1. He further acknowledged that the Employer had not signed Joint Exhibit 42.

   Grinstead also stated at the hearing that he had checked Respondent's records, and that Joint Exhibit 1 was the only document which Respondent had. Grinstead further stated that he had also made inquiries with the other three local unions of the IBEW in Colorado and also with the International office of the IBEW, and that no agreement was produced which had been signed by the Employer.

   The main difference between Letter of Assent-B and Letter of Assent-A was explained by Vice President Farnan as being one which related to the effective dates of the document. Letter of Assent-A is an ongoing...