Electrical Workers, IBEW, Local 453

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1427 (N.L.R.B. 1981)

IBEW, LOCAL 453
International Brotherhood of Electrical Workers
Local Union No. 453 (National Electrical Con-
tractors Association, Inc.) and Bill Rodman.
Case 17-CB-2269
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 29, 1981, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs. Respondent Union' filed cross-ex-
ceptions and a supporting brief and a brief in oppo-
sition to the exceptions of the General Counsel and
the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint alleges that on June 17, 1980, the
Union, by its officers and agents, John Price and
Mike Brumley, threatened Bill Rodman with physi-
cal harm because Rodman had engaged in certain
activities protected by the Act. The Administrative
Law Judge found that Price and Brumley did
threaten Rodman with physical harm on June 17,
1980. He also concluded that the protected activi-
ties engaged in by Rodman provided the "real
catalyst" for the confrontation between Rodman
and Price and Brumley which led to the threats.3
The Administrative Law Judge went on to find
however that neither Price nor Brumley held
"active" office in the Union at the time of the inci-
dent in question and that neither possessed appar-
ent authority to act for or speak on behalf of the
'Hereinafter referred to as the Union.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I Rodman had filed intraunion charges against the Union's officials, had
filed unfair labor practice charges, had testified in a Board hearing
against the Union, and had been found a victim of unlawful discrimina-
tion by the Union in Schs Electric Company. et al., 248 NLRB 669
(1980).
The Administrative Law Judge stated that the personal friction which
existed among the three persons involved "cannot be overlooked" hut re-
iterated his finding that the animosity on the occasion involved herein
was engendered by Rodman's protected activities
258 NLRB No. 195
Union. Thus, he found that the Union was not
liable for the June 17, 1980, actions of Price and
Brumley and, accordingly, he concluded that the
complaint should be dismissed. We reverse.
We accept the Administrative Law Judge's find-
ing that Price and Brumley did threaten Rodman
with physical harm on June 17, 1980. We also
accept the finding that Rodman's protected activi-
ties engendered the threats delivered by Price and
Brumley. We cannot accept the finding, however,
that neither Price nor Brumley should be deemed
to be agents of the Union. In our view it is clear
that at least Price must be deemed an agent of the
Union. 4
The record reveals that Price was elected to the
union executive board in 1978, for a 3-year term.
The executive board is comprised of five members
and meets at least once each month. The functions
of the executive board include passing upon mem-
bership applications, approving vouchers for union
expenditures, conducting the business of the Union
between regular union meetings, and acting as a
trial board that hears and passes upon internal
union charges. Price testified that he sat on the ex-
ecutive board while it acted as a trial board on at
least one occasion when Rodman was involved in
the internal charges.
In May 1980, Price decided to leave the Spring-
field, Missouri, area, where the Union is headquar-
tered, to take a job at the Callaway Nuclear Power
Plant in Fulton, Missouri, approximately 175 miles
from Springfield. The jobsite was outside the geo-
graphic jurisdiction of the Union and, therefore,
Price was working as a traveler.5 Price maintained
a permanent residence in the Springfield area and
"commuted" to Fulton on a weekly basis. After
May 1980, Price did not attend any further meet-
ings of the executive board but took no action to
resign or otherwise formally relinquish his office.
On the contrary, the Union's business manager and
financial secretary stated in a July 9, 1980, affidavit
to the Board that "Danny Price is a member of the
Executive Board." A replacement for Price on the
executive board was not appointed until December
1980.6
' The threats delivered by Price and Brumley were virtually identical
and occurred as part of a single incident. Inasmuch as we find that
Price's actions are attributable to the Union and constitute a iolation of
Sec 8(b)(1XA). we need not determine whether Brumley's actions are
also attributable to the Union so as to constitute a separate violation of
the Act.
A traveler is an individual who is working outside the geographic
jurisdiction of the local union to which he belongs At the time of the
incident in question Price and Brumle. were working as travelers as
members of Respondent Union and Rodman wa;ls, orking as a traveler s
a member of a California local
'The executive board's quorum requirement ras three members Thus.
the board was able to continue its functions ithout Price's presence
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the foregoing facts, the Administrative Law
Judge concluded that Price was not an agent of the
Union on June 17, 1980. In so finding, he relied
primarily upon the fact that Price had no actual au-
thority because he ceased active participation on
the executive board in May 1980, and upon the fact
that Price had no apparent authority because
Rodman knew Price was working as a traveler and
should have surmised therefrom that Price was no
longer active in union affairs.
The Board regularly finds elected or appointed
officials of an organization to be agents of that or-
ganization.7 While the holding of elective office
does not mandate a finding of agency per se, such
status is persuasive and substantial evidence which
will be decisive absent compelling contrary evi-
dence. We find no such compelling contrary evi-
dence here.
Initially, we note that membership on the
Union's executive board is not a titular position
devoid of any prominence or actual authority in
the overall structure of the Union. The Union's ex-
ecutive board here is the primary governing body
of the Union. It is involved in membership issues,
all financial matters and, in fact, is responsible for
the daily operation of the Union between regular
union meetings. The executive board also sits as a
trial board on internal union charges. Indeed, Price
was part of a trial board that passed upon specific
charges involving Rodman.
In this context, the evidence which militates
against finding Price to be an agent of the Union is
insufficient. With regard to Price's "inactive"
status, we note that Price attained such putative
status in May 1980, and the incident in question oc-
curred on June 17, 1980. Since the executive board
is required to meet only once each month, it is not
clear how many, if any, meetings Price missed.
More fundamentally, however, Price's inactivity
could not, by itself, revoke his authority. He re-
tained his office until replaced in December.
Whether he subjectively intended to abandon his
position before then is immaterial. Absent objective
evidence it would be virtually impossible to distin-
guish between an officer who had abandoned his
position and one who was only engaged in a brief
hiatus due to intervening circumstances.
For similar reasons, we find any reliance upon
Price's status as a traveler to be unavailing. We
note that Price maintained a principal residence in
Springfield, where the Union was located. The
work at Fulton, therefore, by its very nature was
temporary and Price could, at any time, return to
Springfield. In addition, the facts of this case dem-
7 United Brotherhood of Carpenters and Joiners of Anerca, AFL-CIO
Local Union No. 1780, 244 NLRB 277. 279, fn. 6 (1979).
onstrate that proximity to the Union's offices was
not a prerequisite to engaging in union activities.
Finally, there is no evidence of any rule requiring
Price to vacate his union office upon taking a job
outside the Union's jurisdiction. There is instead
the admission of a fellow union official that Price
still was a member of the executive board almost a
month after the confrontation with Rodman.
For the foregoing reasons, we find that on June
17, 1980, Price was an agent of the Union and his
acts are attributable to it. As noted above, the Ad-
ministrative Law Judge found, and we agree, that
Price threatened Rodman with bodily harm as a
result of Rodman having engaged in activities pro-
tected under Section 7 of the Act. Accordingly, we
conclude that Respondent violated Section
8(b)(1)(A) and we will direct the appropriate
remedy.
CONCLUSIONS OF LAW
1. National Electrical Contractors Association,
Inc., is an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers Local Union No. 453 is a labor organization
within the meaning of Section 2(5) of the Act.
3. On or about June 17, 1980, Respondent Union,
through its agent, John Price, violated Section
8(b)(l)(A) of the Act by threatening employee Bill
Rodman with physical harm in retaliation for
Rodman having engaged in activities protected by
Section 7 of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
International Brotherhood of Electrical Workers
Local Union No. 453, Springfield, Missouri, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening employees with bodily harm in
retaliation for such employees engaging in activities
protected by Section 7 of the National Labor Rela-
tions Act, as amended.
(b) 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 designed
to effectuate the policies of the Act:
(a) Post at conspicuous places at Respondent's
business offices, meeting halls, and all other places
1428
IBEW, LOCAL. 453
where notices to members are customarily posted
copies of the attached notice marked "Appendix."8
Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly
signed by Respondent's authorized representative,
shall be conspicuously posted immediately upon re-
ceipt thereof, and be maintained for 60 consecutive
days thereafter, in places where notices to members
are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(b) Sign and mail sufficient copies of said notice
to the Regional Director for Region 17 for posting
by National Electrical Contractors Association,
Inc., provided that employer is willing, at all places
where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.,"
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten employees with
bodily harm in retaliation for such employees
engaging in activities protected by Section 7 of
the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION No. 453
DECISION
STATEMENT 01 THE CASE
ROGER B. HOIMES, Administrative Law Judge: Based
on an original unfair labor practice charge filed on June
14, 1980, and based on an amended unfair labor practice
charge filed on July 18, 1980 by Bill Rodman, the Gen-
eral Counsel issued on July 29, 1980, a complaint alleg-
ing a violation of Section 8(b)(1)(A) of the Act by Inter-
national Brotherhood of Electrical Workers, Local
Union No. 453.
The hearing was held on February 18, 1981, at Spring-
field, Missouri. The due date for filing post-hearing briefs
was set for March 25, 1981.
FINDINGS OF FACT
1. THE EMPLOYER AND THE UNION
The Board's jurisdiction is not in issue in this proceed-
ing. The National Electrical Contractors Association,
Inc. (N.E.C.A.), is a multiemployer association, which is
comprised of electrical contractors engaged in the con-
struction industry. N.E.C.A. provides labor relations and
related service to its employer-members. Such employer-
members of N.E.C.A. meet the Board's direct inflow and
direct outflow jurisdictional standards.
The status of the Respondent as a labor organization
within the meaning of the Act was admitted.
II. THE WITNESSES
Four persons were called as witnesses at the hearing in
this proceeding. In alphabetical order by their last
names, the witnesses were: Mike Brumley, who is a jour-
neyman electrician and who was formerly an assistant
business agent of the Respondent; Jim W. Hensley, who
is the business manager and the financial secretary of the
Respondent: John D. Price, who is a journeyman electri-
cian and who was formerly a member of the Respond-
ent's executive board; and Bill Rodman, who is the
Charging Party in this proceeding.
The findings of fact to be made herein will be based
on portions of the testimony of each one of the four wit-
nesses. In addition, certain findings will be based on doc-
umentary evidence introduced by the parties at the hear-
ing.
With regard to the events which took place at the K
Mart store on June 17, 1980, and which will be described
in section D herein, I will rely on the testimony of
Rodman. He gave the appearance on the witness stand of
having the best recollection of what took place that eve-
ning. Rodman recalled the entire occurrence on the wit-
ness stand without any hesitation, and he related those
events in a clear and coherent manner. His recital was
convincing that he really did remember what had been
said and what had taken place at the K Mart store that
evening. Accordingly, I have accepted and credited his
version.
As to the events involving Brumley and Price, which
occurred prior to their arrival at the K Mart store that
night, I will rely on Brumley's account, which seems
logical and reliable.
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Matters Pertaining to Bill Rodman
For the past 20 years, Rodman has been a member of
International Brotherhood of Electrical Workers, Local
Union No. II11, which is located in Los Angeles, Califor-
nia. Rodman has lived in Springfield, Missouri, for the
past 8 to 9 years. During that time, he has obtained work
through the Respondent's hiring hall. Rodman has ap-
plied for membership in the Respondent four or five
times, beginning as early as 1974 or 1975.
On June 17, 1980, Rodman was working for the
Delcon Corporation at the Callaway Nuclear Power
Plant, which is located south of Fulton, Missouri.
Delcon Corporation is a member of N.E.C.A.
At the request of the counsel for the General Counsel
made at the outset of the hearing, I have taken judicial
notice of an earlier Board proceeding in which Rodman
was a witness. He was one of the persons found to have
been discriminated against by the Respondent. Sachs
Electric Company, 248 NLRB 669 (1980).
The General Counsel's Exhibits 4 and 5 are copies of
unfair labor practice charges filed against the Respond-
ent with Region 17 of the Board on March 21, 1979, and
on April 23, 1980, by either Rodman or his attorney.
Both unfair labor practice charges were subsequently
withdrawn. No complaint was issued by the General
Counsel with regard to those charges.
The General Counsel's Exhibits 6 through 16 are
copies of intraunion charges filed on various dates be-
tween April 12, 1979, and April 7, 1980, by Rodman
against certain officials and members of the Respondent.
All of the intraunion charges were ultimately dismissed.
B. Matters Pertaining to Mike Brumley
Brumley has been a member of the Respondent for 12
years. In July 1978, Brumley was appointed by Business
Manager Hensley to be an assistant business agent of the
Respondent. Brumley served in that capacity until the
latter part of May 1980. Because of the financial situation
of the Respondent at that point in time and because of
the unemployment conditions existing in that area, there
was no longer a need for two people to be business
agents of the Union. Therefore, Brumley ceased to be an
assistant business agent. His last pay period was for May
29, 1980. (See G.C. Exh. 20.)
Since the end of his job as an assistant business agent
of the Respondent, Brumley has worked only 2 days as
an employee of the Respondent. That occurred in Octo-
ber 1980. During those 2 days, Brumley assembled infor-
mation in the Union's office regarding charges, lawsuits,
and Board hearings. He performed that office work for
Hensley and the Respondent's attorney, Benjamin J.
Francka.
After his job as assistant business agent was over,
Brumley went to work as a journeyman electrician at the
Callaway Nuclear Power Plant near Fulton, Missouri.
He worked there for approximately 4-1/2 months. Brum-
ley said that there were 6,000 people working on that
job.
The distance from Springfield to Fulton is about 170
miles. Brumley and Price drove early each Monday
morning from Springfield to the jobsite. They shared
living quarters at Fulton, and they drove back to Spring-
field each Friday evening.
Prior to June 17, 1980, Brumley saw Rodman at work
at the Callaway Nuclear Power Plant. Brumley also re-
called seeing Rodman one morning prior to June 17,
1980, during breakfast at Cecil's Cafe in Fulton. Accord-
ing to Brumley, there was no conversation between them
at that time.
C. Matters Pertaining to John D. Price
Price has been a member of the Respondent since
1951. Price was nominated on May 11, 1978, to be a
member of the executive board of the Respondent. (See
G.C. Exh. 17.) Price was thereafter elected to the posi-
tion of executive board member. He served as one of the
five members of the executive board. His term of office
was for 3 years.
In May 1980, Price attended his last meeting as an ex-
ecutive board member. He has not attended any such
meetings since that time. During the week before Memo-
rial Day in May 1980, Price took a job as a journeyman
electrician at the Callaway Nuclear Power Plant near
Fulton. Since Fulton is outside of the geographical juris-
diction of the Respondent, Price became a "traveler." As
indicated previously in section B herein, he shared a ride
with Brumley in commuting back and forth each week
between Springfield and Fulton, and they shared living
quarters in Fulton. Price continued to work at the
Callaway Nuclear Power Plant until August 14, 1980.
Thereafter, Price worked at the James River Power
House.
When Hensley gave an affidavit to a Board agent on
July 9, 1980, Hensley stated the following, inter alia, at
page 3, paragraph 6: "Danny Price is a member of the
Executive Board, one of the five members of the Execu-
tive Board." (See G.C. Exh. 19.)
On December 23, 1980, Danny Curtis was appointed
to fill the remaining term of office which Price had va-
cated. (See G.C. Exh. 18.) At the hearing, Hensley ex-
plained with regard to the foregoing that a quorum of
the executive board is made up of three members. There-
fore, Hensley said that the executive board operated with
a quorum of members, and that Price was not replaced
until December 23, 1980.
Price also recalled seeing Rodman during breakfast for
three mornings prior to June 17, 1980, at Cecil's Cafe in
Fulton. Price said that there was no conversation be-
tween them at that time.
D. The Events on June 17, 1980, at the K Mart Store
in Fulton, Missouri
On June 17, 1980, Rodman got off from work at 3:30
p.m. He went to his motel to clean up, and then he went
to dinner about 5:30 p.m. Rodman testified, "It was a
benefit dinner for a fellow who had been disabled and I
purchased a ticket for it." The group which sponsored
the dinner is known as FLE, which Rodman said stood
for "Fun Loving Electricians." The dinner was held in
the town of Mokane, Missouri.
Brumley and Price also got off from work at 3:30
p.m., on June 17, 1980. Their usual practice was to
1430
IBEW, LOCAL 453
return to their motel, get something to eat, and then
watch television. Brumley recalled having seen signs
posted at the jobsite regarding the FLE dinner, but nei-
ther he nor Price attended that function. Instead, they
drove by a drive-in theater to ascertain what motion pic-
ture was playing there. The theater was about a block
from the K Mart store in Fulton. They were riding in
Brumley's vehicle, which is a 1979 model silver-colored
El Camino with red stripes.
Brumley had been keeping an account of his travel ex-
penses in a calendar book. Brumley suggested to Price
that he too should keep a record of his expenses for
income tax purposes. As a result, Brumley and Price
stopped at the K Mart store, so that Price could pur-
chase a logbook or calendar book in which to note his
daily expenses.
Meanwhile, Rodman had arrived about 7:35 p.m. on
his motorcycle at the K Mart store. Rodman testified as
follows with regard to the events which took place that
evening inside the K Mart store and outside in the park-
ing lot:
Q. If you would, please, describe what happened
at that time at that place.
A. I had gone to the K-Mart to shop for some
legal pads and had entered the store. As I went
down one aisle, I saw some legal pads but not of
the correct size, so I went around to another aisle
and as I was standing there examining them, I no-
ticed someone had walked up to my right and I
looked up and it was Mr. Mike Brumley.
Someone came up to my left and I noticed it was
Mr. Danny Price. At that time, I want to apologize
to the Court for the language, but I am going to
repeat it verbatim, Mr. Brumley said, "I am going
to whip your God damn ass."
Mr. Price spoke up and said, "And I am going to
whip your God damn ass. There ain't no use of
your trying to get out of it this time, you rat bas-
tard, I am going to whip your ass."
I didn't say anything. Mr. Brumley said, "You
know the reason I am going to whip your ass, for
what you've done to the local."
I said, "You boys are really something."
I turned and walked away and walked around
the end of the aisle, back around to the other side
to look at the other legal pads. They weren't the
size that I wanted. I wanted to pick up the other
size.
Mr. Brumley followed along perhaps two feet
behind me and kind of to my right. Mr. Price went
around the other end of the aisle and he came up
from the other direction. I bent over and picked up
the legal pads and examined them. Mr. Brumley
said "You are a no good son of a bitch. You are a
cowardly bastard."
Mr. Price said, "You are a no good son of a
bitch. You are a rat."
I didn't say anything. They said, "We are going
to whip your ass before you get out of this store to-
night."
I said, "Well, you go ahead and do whatever you
think you have to do. I am going to finish my shop-
ping and I am going to leave."
I walked to the checkout counter and Mr. Price
and Mr. Brumley went through an unused lane. Mr.
Price stood at the doorway by the telephone, the
doorway leading out of the entrance to the K-Mart.
Mr. Brumley went outside and I didn't see him. I
went ahead and checked out of the counter, at the
checkout counter. As I walked towards the door,
Mr. Price said, "I am going to whip your God
damn ass and you are not going to get away this
time."
I opened the door and started through the door.
It was one of those automatic opening type doors. I
stepped on the thing and it opened and Mr. Brum-
ley was outside. I could see him standing out there.
Mr. Price followed right along behind me.
I walked out the door and Mr. Brumley pointed
to a spot on the ground and he said, "This is where
I will whip your God damn ass."
I didn't say anything. I continued towards my
motorcycle. It was parked out in the parking lot.
Mr. Brumley fell in on the right side about 18
inches to two feet from me and Mr. Price was on
the left and I continued to walk towards the motor-
cycle.
Mr. Brumley was calling me a mother fucker.
Price was calling me a bastard, a rat son of a bitch.
I walked out to the motorcycle and they contin-
ued to follow along with me. At that time, I got my
keys out for the box that I had my helmet in in the
motorcycle. Mr. Brumley was standing approxi-
mately two feet from the back of the motorcycle
and Mr. Price was standing to the left, approximate-
ly two feet from that. I reached my hand into the
box and Mr. Brumley said, "You no good son of a
bitch. You are a cowardly bastard, are you going to
fight?"
I said, "Well, you boys are holding all the cards
so go ahead and make your play." I said, "Don't
get in over your head though."
Mr. Brumley said, "I think that sounds to me like
a threat and we are in here in the market shopping.
We are not causing any trouble."
Mr. Price said, "You are a no good son of a
bitch."
I said, "Do you think you have got enough
people here to whip me, enough Local No. 453
people to whip me?"
Mr. Price said, "I will go to the car and Brum-
ley, you can whip his ass. If you don't get the job
done, you go set in the car and I'll whip your ass."
I said, "Well, neither one of you have the guts to
do anything, or you wouldn't be talking."
So I put on my motorcycle helmet, unlocked the
motorcycle, started the engine. Mr. Price came
around on the right side of the motorcycle approxi-
mately two feet from me and Brumley was standing
to the left of me.
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Price said to me, "You haven't heard the last
of this, you mother fucker. You are going to find
out what it is like to buck No. 453."
Mr. Brumley said, "You are a cowardly bastard."
I had the motor on the motorcycle started by
that time and I rode out of the parking lot.
Q. Did they follow you, do you know?
A. Not to my knowledge.
Q. You didn't see them any more that day?
A. No, sir, I didn't.
Rodman acknowledged at the hearing during cross-ex-
amination that he had a gun in the box on his motorcy-
cle, and that he had unlocked the box after he warned
Brumley and Price, "Don't get in over your head."
However, Rodman did not take the gun out of the box.
Later that evening Rodman reported the incident to the
police department at Fulton. After he returned to his
motel, he wrote down in his daily journal his account of
the events which had taken place that evening at the K
Mart store. The portion of his daily journal which per-
tained to the June 17, 1980, events at the K Mart store
was produced during the cross-examination of Rodman
at the hearing pursuant to a subpoena duces tecum.
At the time of the incident described above, Rodman
did not know that Brumley no longer held the position
of assistant business agent of the Respondent. At that
time, Rodman also believed that Price was still a member
of the executive board of the Respondent. However,
Rodman acknowledged that he had seen both Brumley
and Price working at the Callaway Nuclear Power Plant
prior to June 17, 1980. Rodman further acknowledged
that he had earlier called Price a "mental midget" at
Cecil's Cafe in Fulton. That had occurred on one occa-
sion prior to June 17, 1980. Rodman further acknowl-
edged at the hearing that on other occasions he had re-
ferred to Price and Brumley as "retarded possums," and
that he had alluded to their alleged mental retardation on
an occasion.
Conclusions
In analyzing the evidence presented in this case, it is
helpful to look for guidance to the Board's decision in
International Brotherhood of Teamsters, General Drivers.,
Chauffeurs and Helpers Local Union No. 886 (Lee Way
Motor Freight, Inc.), 229 NLRB 832 (1977), where the
Board stated at 832 and 833:
We note, however, that Section 2(13) of the Act
provides that:
In determining whether any person is acting as
an "agent" of another person so as to make such
other person responsible for his acts, the question
of whether the specific acts performed were actu-
ally authorized or subsequently ratified shall not
be controlling.
Rather, responsibility attaches if, applying the "or-
dinary law of agency," it is made to appear the
union agent was acting in his capacity as such.
Local 760, International Brotherhood of Electrical
Workers, A.F of L. (Roane-Anderson Company, 82
NLRB 696, 712 (1949). And, as the Board has indi-
cated in International Longshoremen's and Warehou-
semen's Union, C.I.O., Local 6, et al. (Sunset Line
and Twine Company):
A principal may be responsible for the act of
his agent within the scope of the agent's general
authority, or the "scope of his employment" if
the agent is a servant, even though the principal
has not specifically forbidden the act in question.
It is enough if the principal actually empowered
the agent to represent him in the general area
within which the agent acted.'
As the Second Circuit in N.L.R.B. v. Local
Union No. 3, International Brotherhood of Electri-
cal Workers, AFL-CIO [New York Telephone
Company]," 2 noted, "[c]ommon law rules of
agency govern; authority may be implied or ap-
parent, as well as express."
79 NLRB 1487, 1509 (1948).
2467 F.2d 1158 (1972).
Without repeating the findings of fact previously made
herein, it will be recalled that Price was formerly a
member of the Respondent's executive board, and that
Brumley was formerly an assistant business agent of the
Respondent. A union was held responsible by the Board
for threats made by one of its executive committee mem-
bers, where those threats were made to a member of the
union who had made complaints about that union's offi-
cials to the Secretary of Labor and had filed charges
with the Board. The Buffalo Newspaper Guild, Local 26,
American Newspaper Guild, AFL-CIO-CLC (Buffalo
Courier-Express, Inc.), 220 NLRB 79, 86, 87 (1975). A
union was also held liable for a threat that a person
would be killed, where that threat was made by an alter-
nate steward of the union, because of the person's dissi-
dent activities. International Brotherhood of Teamsters,
Dallas General Drivers, Warehousemen and Helpers Local
745 (Transcon Lines), 240 NLRB 537 (1979).
As summarized in section A herein, Rodman has filed
numerous intraunion charges against the Respondent's
union officials; he has filed unfair labor practice charges
with the Board; he has testified in the earlier NLRB
hearing referred to in that section, and he was found by
the Board to be one of the persons against whom the Re-
spondent Union had discriminated in that case. Consider-
ing that background, and the positions which both Brum-
ley and Price had held in the administration of the
Union, I conclude that Rodman's earlier protected activi-
ties were the real catalyst for the confrontation which
took place at the K Mart store on June 17, 1980. Never-
theless, the fact cannot be ignored that a personal ani-
mosity was evident prior to the incident at the K Mart
store. In this connection, note the fact that Rodman ac-
knowledged during cross-examination that he had earlier
referred to Price as a "mental midget," and that he had
referred to both Price and Brumley as "retarded pos-
sums." In addition, there was Rodman's remark about
their alleged mental retardation. It seems reasonable to
infer that such derogatory comments by Rodman would
1432
IBEW, LOCAL 453
have created a personal friction between him and Brum-
ley, and between him and Price. apart from the views
they may have held about Rodman when they were an
assistant business agent and executive board member, re-
spectively. Thus, I conclude that the matter of personal
friction among those three people cannot be overlooked,
although I conclude that the conversation at the K Mart
store reveals that the animosity on that occasion was
based on Rodman's past protected activities.
I conclude that the evidence shows that neither Brum-
ley nor Price was acting in an official capacity for the
Respondent when they made the threats to Rodman at
the K Mart store on the evening of June 17, 1980. First
of all, I conclude that Brumley no longer held the office
of assistant business agent of the Respondent. I further
conclude that Price had ceased his active participation as
a member of the executive board of the Respondent.
Brumley's last day on the payroll of the Respondent as
an assistant business agent was for the pay period May
29, 1980. His subsequent reemployment for 2 days to as-
semble papers and documents in the Respondent's office
took place in October 1980. I conclude that such a limit-
ed and temporary assignment does not alter the fact that,
as of June 17, 1980, Brumley was no longer an employee
of the Respondent. Price attended his last meeting of the
executive board in May 1980, and he did not participate
any further in executive board meetings. Thus, Price
had, in effect, abandoned his position as an executive
board member when he ceased attending meetings and
left the local union's jurisdiction to work as a traveler at
the Callaway Nuclear Power Plant. While he was not re-
placed in office until December 1980, 1 conclude that
Hensley satisfactorily explained why an earlier replace-
ment had not occurred. Even though Hensley indicated
in his affidavit to the Board agent on July 9, 1980, that
Price was a member of the executive board at that time,
I conclude that his statement does not alter the fact that
Price had ceased his participation as an executive board
member and had left the Union's jurisdiction.
Since I have concluded that neither Brumley nor Price
held active office in the Respondent on June 17, 1980, 1
find that the instant case is distinguishable from the situa-
tion in Peninsula Shipbuilders' Association (Newport News
Shipbuilding and Dry Dock Company), 239 NLRB 831
(1978). As Administrative Law Judge Henry L. Jalette
held (239 NLRB at 833):
The record indicates that all the individuals to
whom misconduct was attributed by General Coun-
sel's witnesses were agents of the Respondent.
Thus, at the time of his alleged surveillance, Stepp
was an assistant manager of the Respondent and a
full-time salaried employee of the Respondent on
leave from his job with the Company. Carolina is a
staff representative. London, Daniels, and Tobias are
assistant managers of the Respondent. All are on
leave from their jobs with the Company, and use an
office on company property to conduct business on
behalf of the Respondent. Harris is executive assist-
ant business manager, responsible for all administra-
tive functions of the Respondent. B. R. Pike is sec-
retary and an officer of the Respondent. Harvey
Pike is a delegate, an elected position. All the fore-
going individuals participate in various stages of the
grievance procedure and have been held out to the
Company as agents of the Respondent. It is clear
from the record, therefore, that the individuals
herein charged with misconduct were agents of the
Respondent. As the conduct was in furtherance of
the interests of the Respondent and undertaken
within their capacity as agents, I conclude that the
Respondent was responsible for it.
Note that in the foregoing case, the persons charged
with misconduct currently held various offices in the
union. See also another case cited by the counsel for the
General Counsel, where a complaint was issued against a
union acting in its capacity as an employer. United Broth-
erhood of Carpenters and Joiners of America, AFL-CIO.
Local Union No. 1780, 244 NLRB 277, 279, fn. 6 (1979).
Like the situation in Peninsula Shipbuilders' Association
(Newport News Shipbuilding and Dry Dock Company), 239
NLRB 831 (1978), the executive board members of that
union and the assistant business agent held their offices in
the union at the material times.
The Board has found that a person, who was not an
employee of the union, but who was the wife of the
union's business agent, had "apparent authority" to act
on behalf of the union in the circumstances presented in
that case. Local 90, Operative Plasterers and Cement
Masons' International Association of the United States and
Canada, AFL-CIO (Southern Illinois Builders Association),
236 NLRB 329 (1978). The Board stated at 331:
The Board has previously determined that it has a
"clear statutory mandate to apply the 'ordinary law
of agency"' to its proceedings.6 Thus, the Board has
adopted the fundamental rule of agency that "au-
thority to act as an agent in a given manner will be
implied whenever the conduct of the principal is
such as to show that he actually intended to confer
that authority."7 In the present case, Mrs. Turner
answered the regularly listed union business phone,
stated the Union Local's name, and gave the im-
pression that she was capable of conducting union
business by placing names of employees on the "idle
list." Clearly, Mrs. Turner possessed the apparent
authority necessary to indicate to third parties deal-
ing with her that she was an agent of the Respond-
ent.H Therefore, we agree with the Administrative
Law Judge's finding that Mrs. Dean E. Turner was
an agent of the Respondent.
I' tl'rIernlUliolna! Logshortmnn' unad W4r'huwm.e,,cn ' 1 ' llOI
C/ . Local 6. et at (Sunsic t.w n and i.I 1nc (5,par , 79 NI .RB
1487. 1507 1948)
Id
Intlrnalioal HBrrhrh,zd i/f' Iu'arnslr. (hult/liur. urtlhouil,-
on & I[tolper f .o.inerica. .ot a 7 nl.,ukv .rie,. I c 226 N RI
20() (1976) (arpintier Dirirwr Cln(i l / Dln r and lic inr
(I'nwl Ph'lp ('onsirucltiull (,o. . 222 N R 551 1970t
I conclude that the evidence in the instant case does
not establish that Brumley and Price had the "apparent
authority" to act for, or speak on behalf of, the Respond-
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent during the June 17, 1980, incident involving Rodman
at the K Mart store. As noted earlier, I have concluded
that neither Brumley nor Price was an active official of
the Union at that point in time. While Rodman did not
know of their change in status on June 17, 1980, he did
know that both Brumley and Price were working at the
Callaway Nuclear Power Plant, which is about 170 miles
away from Springfield, and which is outside of the Re-
spondent's geographical jurisdiction. It seems reasonable
to infer that Brumley's working as a "traveler" and jour-
neyman electrician outside of the Respondent's jurisdic-
tion would be an indication that Brumley did not hold
the position of assistant business agent of the Respond-
ent. Thus, the fact that both Brumley and Price were
working as journeymen electricians on a project, which
was a substantial distance from the Respondent's loca-
tion, would be an indication they were not actively in-
volved in the current administration of the Respondent
Union in Springfield. Thus, I conclude that the circum-
stances here weigh against a finding that Brumley and
Price possessed the "apparent authority" to act on behalf
of the Respondent at the K Mart store on June 17, 1980.
After considering all of the foregoing, I conclude that
a preponderance of the evidence does not establish that
the Respondent is liable for the actions of Brumley and
Price on June 17, 1980, at the K Mart store. According-
ly, I shall recommend to the Board that the General
Counsel's complaint be dismissed.
CONCLUSIONS OF LAW
1. The employer-members of the National Electrical
Contractors Association, Inc., are employers engaged in
commerce within the meaning of Section (6) and (7) of
the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
above.
[Recommended Order for dismissal omitted from pub-
lication.]
/' U.S. Goernment Printing Office: 1982-361-554/4
1434