Electrical Workers Local 3 (Burmar Electrical Corp.)

National Labor Relations Board - Board Decisions

Dec 21, 1977

233 N.L.R.B. 1364 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (Burmar Electrical Corp.) and
McLawlin Brathwaite. Case 29-CB-2547
December 21, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 14, 1976, and July 1, 1977, respec-
tively, Administrative Law Judge Melvin J. Welles
issued the attached Decision and Supplemental
Decision in this proceeding.' The General Counsel
filed exceptions to both Decisions, together with
supporting briefs.
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 Decisions in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.3
i The Board issued an Order Remanding Proceeding to Administrative
Law Judge in 229 NLRB 1028 (1977).
2 The General Counsel 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Member Murphy fully agrees that a violation of Sec. 8(bXIXA) of the
Act has not been established and that the complaint should, therefore, be
dismissed in its entirety. As stated in her dissenting opinion in the Order
Remanding Proceeding to Administrative Law Judge, supra, Member
Murphy would not have remanded the matter to the Administrative Law
Judge for credibility resolutions inasmuch as she fully agreed with his earlier
disposition of this case.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Brooklyn, New York, on October 7, 1976,
based on charges filed on June 21, 1976, and a complaint
issued on July 29, 1976, alleging that Respondent Union
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended.
233 NLRB No. 197
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Burmar Electrical Corp. is a New York corporation
engaged in the business of providing electrical contracting
services and related services. During the 12 months prior to
the issuance of the complaint herein, it purchased goods
and materials, which were delivered to its place of business
in New York City, valued in excess of $50,000, which were
shipped directly to it from points outside the State of New
York. I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
The General Counsel alleged that Respondent Union
failed to represent the Charging Party, McLawlin Brath-
waite, concerning his discharge by the Employer because
Brathwaite failed to participate in a union-sponsored letter-
writing campaign, thus refusing to assist and support the
Union. The General Counsel presented a single witness,
Brathwaite, who testified that on the morning of his last
day of work, February 25, 1976, he was told by his
subforeman, Teddy Zielinski, to go see General Foreman
Marty Vischio. Just about then, Shop Steward Herb
Ackerman came by and the following conversation ensued.
Brathwaite said, "Herbie, I have a feeling something is
wrong around here today." Ackerman responded, "I will
not back you. You do not come to the club when you're
supposed to." Brathwaite said, "Herbie, I went to the club.
I wrote letters I got letters in return." Ackerman replied, "I
did not see that. In my book it is not that. You did
nothing."
The next day, at or about noon, Brathwaite met
Ackerman at a bar. Ackerman asked him, "How are you
doing?" to which Brathwaite replied, "I am doing good,
Herbie, I wrote letters, and got letters in return." Acker-
man then said, "Forget it, you're off the job. You will get
another job." He told Brathwaite again that he was not
backing him, and Brathwaite replied, "Herbie you did not
understand me, I told you I was on furlough."
The reference to "letters" concerns a union campaign to
have all its members write letters to Senators, Congress-
men, etc., apparently designed to obtain additional jobs in
the construction industry. In pursuance of this campaign,
the Union posts lists at various jobs where its members
work of those whom it wants to come to the "Kingsboro
Club" (apparently run by Local 3) to write such letters at
particular times. According to Brathwaite, his name was on
such a list for the third week in January, but he was on
"furlough" and could not go to the Kingsboro Club. He
testified that he told Ackerman this about February 1 when
he returned from furlough, and he repeated this explana-
1364
LOCAL 3, IBEW
tion on February 25 and 26. Brathwaite had earlier written
such letters and received answers.
Brathwaite was discharged by Vischio, who told him,
"Teddy gave me a bad report on you," when he went to see
him pursuant to Zielinski's instructions following his
conversation with Ackerman on February 25. Brathwaite
subsequently (he did not remember the date) went to see
Sol Besisie, of Local 3's grievance committee, at the
Union's offices and told Besisie the story. Besisie said that
Ackerman had nothing to do with whether the Union was
going to back him, stating, in Brathwaite's words, "Herb
don't make decisions around here. Herb has nothing to do
with whether the grievance is going to be processed."
Besisie then added that the Union would not process the
grievance because Brathwaite had many bad termination
reports from other jobs.
Ackerman testified that he did not talk to Brathwaite at
all on February 25; that the first time he saw Brathwaite in
connection with the latter's discharge was at noon on
February 26, at a bar, when Brathwaite told Ackerman he
had been fired. He also testified that he at that time told
Brathwaite that he had been "on thin ice for a long time,"
that he (Ackerman) had talked to Frank Cristallo (Burmar
general foreman) for him a number of times about his
problems at work, and that Brathwaite did not ask
Ackerman to help him get his job back. Ackerman also
testified that he did not tell Brathwaite that the latter had
not written letters in connection with the Union's cam-
paign, nor did Brathwaite tell Ackerman anything to that
effect. He also testified that he pays no attention to the
names on the "list" to go to the union hall.' Ackerman
added that not more than about half the people on any list
actually go to write letters, and that the men who do not go
are not treated any differently from those that do write the
letters. Finally, Ackerman testified that it is not the
function of a steward to help a man get his job back after
he is fired; that his recourse is to "write a letter or go to the
Union and ask for a hearing before the Joint Industry
Board." 2 In this latter connection, General Foreman
Frank Cristallo of Burmar testified that no steward had
ever asked that a man be put back to work after he was
terminated,3 but that Ackerman has interceded to save a
man's job, asking Cristallo to have "compassion," doing
just this on an earlier occasion with respect to Brathwaite. 4
Although the merits of Brathwaite's discharge are not at
issue here, testimony was adduced concerning the dis-
charge for the purpose of showing that the failure of the
Union to process any grievance on Brathwaite's part was
not arbitrary and capricious. As noted above, the record
shows a number (eight) of "bad terminations" for Brath-
waite, and it demonstrates at least primafacie, based on the
testimony of Cristallo and Zielinski, that Burmar had
ample reason for terminating Brathwaite.
Assuming the facts in their best posture for the General
Counsel's position, that is, assuming that the conversations
between Brathwaite and Ackerman occurred precisely as
Brathwaite testified on or about February I and on
February 25 and 26, I nonetheless do not find that the
Union violated its duty of fair representation as to
Brathwaite.
Brathwaite's own testimony establishes that he went to
the union offices, told his story, and was told, in effect, that
steward Ackerman does not "make decisions around here,"
and that he "has nothing to do with whether the grievance
is going to be processed," but that the grievance would not
be processed because of Brathwaite's "bad termination"
reports over the years. As Ackerman's testimony, support-
ed by the Union's bylaws, indicates that union stewards
had no authority to process or initiate discharge grievances,
it is clear on the above facts that the Union (as distinct
from its steward, Ackerman) did not refuse to process
Brathwaite's grievance because of his failure to go to
Kingsboro Club and write letters on or about January 15.
Assuming that Ackerman said what Brathwaite testified
he did, the statement might well be viewed as a threat to
Brathwaite that in the future he had better obey the
Union's instructions with respect to letter-writing cam-
paigns or other matters at the risk otherwise of incurring the
displeasure of the steward and causing the steward not to
assist him in job-related matters. But the theory of this case
is that the Union violated its duty of fair representation,
not that it merely threatened to do so. Perhaps, had
Brathwaite not pursued the matter and proceeded to the
union office, the apparent authority with which a union
steward is clothed, and which makes him normally a union
agent, would be sufficient to entail an 8(bXIXA) violation
based on Ackerman's presumed remarks. But here there is
specific evidence, both testimonial and documentary, that
stewards did not possess that kind of authority.5 And,
based on Brathwaite's own testimony, it is clear that the
ultimate failure to process his grievance had nothing to do
with what Ackerman either thought or said. Accordingly, I
shall dismiss the complaint herein.
For all the foregoing reasons, I conclude that Respon-
dent Union has not violated Section 8(bX)(IXA) of the Act
by refusing to process Brathwaite's grievance and issue the
following recommended:
At this project, there were about 80 employees, and about 20 would
have been on each list.
2 Local 3's bylaws list the duties of stewards as follows: "(a) To have a
copy of the I.B.E.W. Constitution, these bylaws, and the working agreement
and rules with them at all times. (b) To see that Union membership is
encouraged, and all workmen at their respective shops or jobs have paid-up
dues receipts or valid working cards of the Local Union. (c) To report any
encroachment upon the jurisdiction of this Local Union. (d) To report to the
Business Manager any violation of our laws, agreements or rules. (e) To
perform such other duties as may be assigned to them by the Business
Manager."
3 Cristallo has terminated 10 to 15 employees as general foreman.
4 Confirming Ackerman's testimony to the same effect.
5 Cf. Local 1016, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, et al. (Booher Lumber Co.), 117 NLRB 1739, 1746 (1957)., where
the Board found that a union steward was an agent of the union with respect
to union members at the site at which the steward operated, stating, "Where.
as in the present case, there is no evidence as to the steward's duties, the
Board infers that he possesses the usual authority of a union steward if its
existence is not expressly disputed .... There was no denial in this case
that Stafford performed the normal functions of a union steward." Here, as
noted, the existence of the union steward's authority with respect to
grievances is expressly disputed, and there is a denial, supported by
evidence, that the steward's functions included processing grievances.
1365 a
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER6
The complaint is dismissed in its entirety.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: On May
31, 1977, the Board remanded the above-entitled proceed-
ing to me "to make credibility findings and conclusions
with respect to the unfair labor practices alleged in the
complaint, including, but not limited to, the issue of
whether Respondent violated Section 8(b)(XI)(A) by failing
and refusing to represent Brathwaite prior to his dis-
charge," and to "prepare and serve on the parties a
Supplemental Decision, setting forth the resolution of such
credibility issues, and findings and conclusions with
respect to the unfair labor practices alleged in the
complaint." '
Upon the entire record in the case, including my
observation of the witnesses, I make the following findings.
Credibility Resolution and Conclusions
As set forth fully in my initial Decision herein, Brath-
waite, the General Counsel's only witness, testified that the
morning of his last day of work, February 25, 1976, he was
told by his subforeman, Teddy Zielinski, to go see General
Foreman Marty Vischio. Just about then, Shop Steward
Herb Ackerman came by and the following conversation
ensued. Brathwaite said, "Herbie, I have a feeling some-
thing is wrong around here today." Ackerman responded,
"I will not back you. You do not come to the club when
you're supposed to." Brathwaite said, "Herbie, I went to
the club. I wrote letters I got letters in return." Ackerman
replied, "I did not see that. In my book it is not that. You
did nothing."
The next day, at or about noon, Brathwaite met
Ackerman at a bar. Ackerman asked him, "How are you
doing?" to which Brathwaite replied, "I am doing good,
Herbie, I wrote letters, and got letters in return." Acker-
man then said, "Forget it, you're off the job. You will get
another job." He told Brathwaite again that he was not
backinghim, and Brathwaite replied, "Herbie you did not
understand me, I told you I was on furlough."
The reference to "letters" concerns a union campaign to
have all its members write letters to Senators, Congress-
men, etc., apparently designed to obtain additional jobs in
the construction industry. In pursuance of this campaign,
the Union posts lists at various jobs where its members
I had dismissed the complaint without resolving a credibility conflict
between the Charging Party, Brathwaite, and Union Shop Steward
Ackerman, stating, in relevant part, "Assuming the facts in their best
posture for the General Counsel's position, that is, assuming that the
conversations between Brathwaite and Ackerman occurred precisely as
Brathwaite testified to ... I nonetheless do not find that the Union violated
its duty of fair representation to Brathwaite."
2 At this project, there were about 80 employees, and about 20 would
have been on each list.
3 Local 3's "Bylaws" list the duties of stewards as follows: "(a) To have a
work of those whom it wants to come to the "Kingsboro
Club" (apparently run by Local 3) to write such letters at
particular times. According to Brathwaite, his name was on
such a list for the third week in January, but he was on
"furlough" and could not go to Kingsboro Club. He
testified that he told Ackerman this about February I when
he returned from furlough, and he repeated this explana-
tion on February 25 and 26. Brathwaite had earlier written
such letters and received answers.
Brathwaite was discharged by Vischio, who told him,
"Teddy gave me a bad report on you," when he went to see
him pursuant to Zielinski's instructions following his
conversation with Ackerman on February 25. Brathwaite
subsequently (he did not remember the date) went to see
Sol Besisie, of Local 3's grievance committee, at the
Union's offices, and told Besisie the story. Besisie said that
Ackerman had nothing to do with whether the Union was
going to back him, stating, in Brathwaite's words, "Herb
don't make decisions around here. Herb has nothing to do
with whether the grievance is going to be processed."
Besisie then added that the Union would not process the
grievance because Brathwaite had many bad termination
reports from otherjobs.
Ackerman testified that he did not talk to Brathwaite at
all on February 25, that the first time he saw Brathwaite in
connection with the latter's discharge was at noon on
February 26, at a bar, when Brathwaite told Ackerman he
had been fired. He also testified that he at that time told
Brathwaite that he had been "on thin ice for a long time,"
that he (Ackerman) had talked to Frank Cristallo (Burmar
general foreman) for him a number of times about his
problems at work, and that Brathwaite did not ask
Ackerman to help him get his job back. Ackerman also
testified that he did not tell Brathwaite that the latter had
not written letters in connection with the Union's cam-
paign, nor did Brathwaite tell Ackerman anything to that
effect. He also testified that he pays no attention to the
names on the "list" to go to the union hall.2 Ackerman
added that not more than about half the people on any list
actually go to write letters, and that the men who do not go
are not treated any differently from those that do write the
letters. Finally, Ackerman testified that it is not the
function of a steward to help a man get his job back after
he is fired, that his recourse is to "write a letter or go to the
Union and ask for a hearing before the Joint Industry
Board." 3 In this latter connection, General Foreman
Frank Cristallo of Burmar testified that no steward had
ever asked that a man be put back to work after he was
terminated, 4 but that Ackerman has interceded to save a
man's job, asking Cristallo to have "compassion," doing
just this on an earlier occasion with respect to Brathwaite. 5
I am constrained to credit Ackerman's testimony over
Brathwaite's. Not only does it seem unlikely that Acker-
copy of the I.B.E.W. Constitution, these bylaws, and the working agreement
and rules with them at all times. (b) To see that Union membership is
encouraged, and all workmen at their respective shops or jobs have paid-up
dues receipts or valid working cards of the Local Union. (c) To report any
encroachment upon the jurisdiction of this Local Union. (d) To report to the
Business Manager any violation of our laws, agreements or rules. (e) To
perform such other duties as may be assigned to them by the Business
Manager."
4 ristallo has terminated 10 to 15 employees as general foreman.
5 Confirming Ackerman's testimony to the same effect.
1365b
LOCAL 3, IBEW
man would deny a union member "fair representation" for
something as innocuous as failing to participate in a letter-
writing campaign, but if Brathwaite is correct in stating
that he had written letters, had an excuse (being on
"furlough") at the time he was on the list for the third week
in January, and so informed Ackerman, it is even more
unlikely that Ackerman would refuse to accept this excuse
and threaten Brathwaite that he would "not back" him
prior to the discharge, continuing so to state afterward. 6
Furthermore, it strains coincidence to the breaking point
to assume that Ackerman, even if he were interested in
whether the 80 or so employees at the project fulfilled their
letter-writing obligations, 7 was at the Kingsboro Hall at
precisely the right time to note Brathwaite's absence. Ant if
he had noted it, it seems probable that he would have
mentioned it to Brathwaite shortly thereafter, rather than
waiting almost 6 weeks to do so, particularly as both were
on the project together at all times in between.
6 As noted above, it is plain that stewards had no role at all to play in
"representing" employees after their discharge, a fact confirmed by
Brathwaite's own testimony, as well as by the Union's bylaws. Surely
Ackerman knew this - as he testified he did.
I No testimony at all was offered by the General Counsel in this respect,
leaving uncontradicted the testimony that not more than half the employees
actually wrote such letters.
8 An issue I viewed at the time of my initial Decision as not being within
the purview of the complaint or the General Counsel's theory of the case.
For all the foregoing reasons, I credit Ackerman. As I
have already concluded that Respondent did not violate
Section 8(bX)(IXA) by refusing to process Brathwaite's
grievance over his discharge, even on the assumption that
Brathwaite's testimony was credited, a fortiori, there is no
violation in the light of the instant credibility finding.
Indeed, without Brathwaite's testimony, there is no
semblance of a violation. As to the issue of whether
Respondent failed and refused to represent Brathwaite
prior to his discharge,s the foregoing credibility resolution
necessarily requires that no violation be found. For the
foregoing reasons, I conclude that Respondent has not
violated the Act, and issue the following recommended:
ORDER 9
The complaint is dismissed in its entirety.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1365c