G. A. Rafel and Co.

National Labor Relations Board - Board Decisions

Jun 19, 1961

131 N.L.R.B. 1191 (N.L.R.B. 1961)

G. A. RAFEL & CO., ROBT. L. TEETS AND GEORGE RAFEL 1191
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
G. A. Rafel and Co., Robert L. Teets and George Rafel and
Local 9, International Brotherhood of Electrical Workers.
Cases Nos. 13-CA-3462 and 13-CA-3462-2. June 19, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members 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
Intermediate Report and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, to the extent consistent with
our Decision herein.'
[The Board dismissed the complaint.]
1 While we agree with the Trial Examiner that the Respondent has not violated Section
8(a) (3) and ( 1) of the Act , we do so solely on the ground that the General Counsel failed
to prove by a preponderance of credible evidence on the record as a whole that Respond-
ent required union referral or clearance for employment . Moreover , assuming that an
understanding existed between the Respondent and the Unions involved which provided
for union referral without Mountain Pacific safeguards , we are precluded from finding a
violation by the recent decision of the Supreme Court of the United States in Local 357,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America v . N.L.R.B . ( Los Angeles -Seattle Motor Empress ), 365 U.S. 667.
INTERMEDIATE REPORT AND RECOMMENDATION
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before the duly designated
Trial Examiner in Chicago , Illinois, on May 17, 1960, on complaint of the General
Counsel and answer of G. A . Rafel and Co., Robert L. Teets and George Rafel,
131 NLRB No. 154.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein collectively called the Respondent. The issues litigated involved the alleged
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act. More specifically the General Counsel
alleges that "the Respondents have maintained a hiring procedure under which
employees hired by the Respondent Company to do work outside of the jurisdiction
of Local 9, International Brotherhood of Electrical Workers, were required to be
referred by or cleared through the local union of International Brotherhood of
Electrical Workers, AFL-CIO, in whose jurisdiction the Respondent Company
planned to employ the aforesaid employees." This then is the sole and only issue
herein involved. There were no individual acts of discrimination under the afore-
mentioned alleged practice either alleged or testified to at the proceeding. An
opportunity for oral argument was made available to all parties and helpful briefs
were received from the attorneys representing the Respondent, the Charging Party,
and the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent G. A. Rafel and Co., at all material times herein has been a corpora-
tion duly organized and existing under the laws of the State of Illinois, having its
principal office and place of business in Chicago, Illinois, where it is engaged in
electrical construction work. During the calendar year 1958, a representative
period, Respondent G. A. Rafel and Co., purchased at least $500,000 worth of
materials from points outside the State of Illinois, which materials were shipped
into the State of Illinois. Robert L. Teets and George Rafel are, and at all times
material herein have been, officers of G. A. Rafel and Co. On these admitted
facts I find that the Respondent is and at all times material herein has been engaged
in commerce and its operations affect and have affected commerce within the mean-
ing of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
I find that the International Brotherhood of Electrical Workers, AFL-CIO, and
its affiliated locals, are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
As indicated earlier the only issue alleged and fully litigated at this proceeding
concerns the illegality of Respondents' alleged hiring procedure wherein employees
were required to be referred by or cleared through the appropriate local of the
IBEW. In his opening remarks counsel for the General Counsel indicated "that
the necessary safeguards under the Mountain Pacific Rule" had not been met.,
Apparently the General Counsel seeks to sustain a violation on one or both of two
theories. If an unfettered union controlled exclusive hiring hall arrangement can
be shown, without the attendant safeguards as required by the Board, there would
be a violation. If it can be shown that Respondent refused to hire employees unless
and until they were referred or cleared through an IBEW local this would be a
violation quite apart from the application of the Mountain Pacific rules or rationale?
'See Mountatin Pacific Chapter of Associated General Contractors, Inc, 119 NLRB 883,
wherein the Board stated that exclusive hiring halls of an arbitrary and unrestricted type
stemming from unfettered union control over the hiring process would only become non-
discriminatory on its face if the agreement explicitly provided that: (1) Selection of
applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based
on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional
provisions, or any other aspect or obligation of union membership, policies, or require-
ments; (2) the employer retains the right to reject any job applicant referred by the
union , and (3) the parties to the agreement post in places where notices to employees
and applicants for employment are customarily posted, all provisions relating to the func-
tioning of the hiring arrangements, including the safeguards that we deem essential to
the legality of an exclusive hiring agreement
2 ,See Arthur G McKee and Company, 94 NLRB 399, 196 F. 2d 636 (CA 5) ; A B
Swinerton, at al, d /b/a Swinerton and Walberg Company, 94 NLRB 1079, 202 F 2d 511
(CA 9), cert denied 346 U S 814; The Lammas Company, 101 NLRB 1628, 210 F 2d
G. A. RAFEL & CO., ROBT. L. TEETS AND GEORGE RAFEL 1193
It is the latter theory to which the Charging Party's attorney attests in his opening
remarks.
In agreement with counsel for the Charging Party, this is indeed a novel case. We
have here a situation of a Charging Party complaining of a hiring procedure which
the Charging Party and its many sister locals both in the same and in other crafts,
have historically sought to have employers follow.3
B. Background
In order to obtain a clear picture of what is actually involved here, it seems
necessary to set forth the following background information appearing in the
record. Among trade unionists in the electrical industry there are two well-known
categories of work, namely inside and outside work. The basic difference as ex-
plained on the record is that inside work is performed on private property and
outside work is performed on public property. In the actual work being performed
there is little or no difference in the skills required. Within the framework of the
International Brotherhood of Electrical Workers, "Local 9 has jurisdiction terri-
torially and occupationally over outside electric work in Cook County, [Chicago]
Illinois." Local 134 of the IBEW has jurisdiction over inside electric work in the
same geographical area. The Respondent is engaged in both inside and outside
electrical construction work in Chicago and the surrounding areas. Both George
Rafel, president of G. A. Rafel and Co., and Robert L. Teets, 'a stockholder and
general superintendent of G. A. Rafel and Co., are long-time members of Local
134. Local 9 refuses to furnish men to G. A. Rafel and Co
C. The testimony
It was not contended by the General Counsel nor was there any evidence adduced
tending to indicate that this Respondent has any labor management contracts with
any labor organization. The General Counsel called only three witnesses to prove
this case.
George Rafe], president of the Respondent, was called and testified pursuant to
Rule 43(b) of the Federal Rules of Civil Procedure. Nothing of real significance
going to the allegations of the complaint appears in the testimony of Rafel,, other
than his general statement that as an employer, Respondent endeavors to follow
the custom and practice of the employers and the IBEW locals in whose area it
performs work? Rafel explained that he was the president and general administra-
tive officer of the Respondent Company and that he was unfamiliar with the details
of the hiring practice; that Robert Teets, the general superintendent of the Company,
handled the details of the hiring 5
Robert L. Teets, also a 43(b) witness, testified that it is the practice of the
Respondent to try and adhere to the customs and practices of the local unions and
electrical contracting employers in whose jurisdiction the Respondent may be per-
forming work. In following these customs and practices the Respondent requests
employees of the various locals in whose jurisdiction it might be performing work
and, while a large percentage of its employees are obtained from the Union, it also
obtains men from "off the street" and from "out of the blue." There is further
evidence in the record to the effect that these men who are hired' from "off the
street" or "out of the blue" are generally informed that the particular job is a
"union job," and it is suggested that they obtain appropriate clearance or approval
from the appropriate union having jurisdiction over the particular work. However,
377 (C.A. 5). These cases antedate the Mountain Pacific decision several years and firmly
establish violative conduct apart from the exclusive use of an unfettered union controlled
hiring hall.
3 See William Haber, "Industrial Relations in the Building Industry", Haber and
Levinson, "Labor Relations and Productivity in the Building Trades" ; Harry H Rains,
"Construction Trade Hiring Halls," Labor Law Journal, vol 10, No 6
& When asked to explain custom and practice, Rafel replied : "Well, the wage rates in
a particular area The welfare fund payments to be made in a particular, if any are re-
quired The hours of the day to be worked ; the overtime schedule-anything pertaining
to the prevailing conditions in any particular area. . . anything pertaining to prevailing
conditions in a particular area in relation to I B E W. and the Electrical Workers in that
particular area "
5 Some .further information might be culled from Rafel's testimony, but in view of his
admitted unfamiliarity with the details of the hiring procedure, the Trial Examiner is of
the opinion that Teets' testimony is more accurate and reliable and should be looked to in
establishing the essential facts herein
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the only evidence in the record as to what happens to the particular employee who
is unable to obtain "proper approval" from the appropriate union is to the effect
that in spite of the lack of approval the individual has continued in the employment
of the Respondent.
Teets also testified that after an employee is hired and goes to work that he is
given an employee information form (General Counsel's Exhibit No. 4) which
solicits certain information including union affiliation and number of local union.
There is no showing in the record of any discriminatory use of the information
obtained. Teets testified that the form is used for administrative purposes only and
frequently results in discovering otherwise unknown or undisclosed qualifications
and skills.
Teets further testified that he assists the accounting department in ascertaining
the welfare payment -requirements for employee members of any particular local.
A stipulation was entered into by all parties hereto to the effect that certain canceled
checks provided the General Counsel by the Respondent pursuant to subpena, were
canceled checks to cover welfare payments made to local unions Nos. 150, 701, 117,
and 134 of the IBEW by the Respondent.
Teets further testified that all prospective employees are asked certain questions
by their supervisor "to ascertain the man's skill"; that it is probable, not necessarily
every time, that the applicant would be asked "if he is a journeyman electrician,
I.B.E.W." This for the reason that if a man is a journeyman electrician, IBEW,
he "possesses a skill. In other words, somebody else has said, `this man possesses
a skill relative to that of an inside wireman.' " -
Teets indicated by his affirmation of prior sworn testimony that within the terri-
torial jurisdiction of Local 134, IBEW, that all Respondent's inside electricians have
been secured from the seniority board.6 This testimony was qualified by indicating
that at least since November 1959, Respondent has not always waited the prescribed
48 hours for the seniority board to furnish men.
Teets further testified that there have been times when the Respondent has asked
employees working for it to move from one local's work jurisdiction to that of another
and Respondent has paid such fees as may be required,of said employee in the new
work location. His testimony was that the man "has to get his own clearance,"
but "we will pay those expenses the same as we would pay the man's room and
board as it would be required, or his travel expenses. That is an expense required
by the reason that he is being sent there."
Teets was unable to affirmatively testify that Respondent had posted notices com-
porting to comply with the Mountain Pacific decision, supra.?
William F. Clifford was called by the General Counsel and testified that he was
a member of Local No. 9, IBEW, the Charging Party herein, and that on February 19,
1960, he visited the offices of the Respondent at 2112 Lawrence Avenue, Chicago,
where he endeavored to examine the company bulletin boards to ascertain whether
• there were any notices purporting to comply with the requirements as set forth in
the Mountain Pacific case, supra. Clifford testified that he did not see any such
notices.
6 As adduced from General Counsel's Exhibit No 3, the seniority board is a joint arbi-
tration board composed of five members from the Electrical Contractors Association of
Chicago and five members from Local 134 who direct and supervise the operation of a
referral system. The board was first established in July 1948.
7 At the hearing the attorney for the Charging Party was permitted to fully participate.
Apparently dissatisfied with some of the responses that he had been given by Teets, the
Charging Party's attorney sought to question and show that Teets had given slightly dif-
ferent sworn testimony to similar questions in an earlier Board proceeding. Wigmore,
Evidence, vol 3, sec 1018, states • "It is universally maintained by the Courts that
Prior Self-contradictions are not to be treated as having any substantive or independent
testimonial value" In the same section Wigmore reasons that the preferred rule should
be to permit the trier of the facts to consider both the current testimony and the prior
inconsistent statement to determine the whole picture. As Wigmore says "Thus, we
do not necessarily accept 'his former statement as replacing his present one ; the one
merely neutralizes the other as a trustworthy one." The Charging Party was quick to
assert that he was not desirous of using the prior sworn testimony for the purpose -of
impeaching the witness See also Wigmore, vol. 4, sec. 1048 at p 6 under Admissions.
"This double evidential utility explains the proposition sometimes judicially sanctioned,
that an Admission is equivalent to affirmative testimony for the party offering it." The
Trial Examiner has employed the more liberal view as expressed by Wigmore and has
given consideration to all of the direct testimony and the purported prior sworn in-
consistencies as appear in the record. , ,
.
G. A. RAFEL & CO., ROBT. L. TEETS AND GEORGE RAFEL 1195
D. Legal considerations
Recognizing that violations of the Act may be proved by circumstantial evidence,8
but also being cognizant that the burden of proving a violation of the Act by a
preponderance of the evidence rests with the General Counsel,9 this Trial Examiner
is unable to find a violation in the instant case because "mere suspicion and con-
jecture cannot be accepted as substantial evidence." to
This Trial Examiner is fully aware of the difficulties in obtaining proof of viola-
tions of the type herein being considered, but this fact does not diminish the General
Counsel's obligation of proving the violation by a preponderance of the evidence.
The Trial Examiner is aware that an actual act of discrimination toward an individual
discriminatee is not a necessary ingredient to establish an unlawful hiring contract,"
but in the instant case where there is no written contract and the General Counsel
seeks to prove an unlawful arrangement or practice, an affirmative determination
of the allegation would become more tenable if such could have been shown. In
this case there was not a single instance of actual discrimination even alluded to.
If any credence is to be given to the testimony of the General Counsel 's principal
witness, Teets, it fails to establish that referral or clearance from an IBEW local
is essential before employment by the Respondent. If, on the other hand, because
of alleged inconsistencies in his testimony and prior sworn statements, his testimony
is to be wholly discredited, then this record is wanting for any evidence tending to
prove the allegation.
The employee information form may seek information tending to interfere with
an employee's rights as guaranteed by Section 7 of the Act,12 but such a violation
of the Act was not set forth in the charge, alleged in the complaint, or fully litigated
at the hearing. The only testimony available to this Trial Examiner as to the use
by the Respondent of this form is to the effect that the information sought thereon
is only obtained after an employee has been hired and gone to work. Such evi-
dence can hardly be used to establish the allegation that the Respondent required
referral or clearance before hiring an individual.
General Counsel's Exhibits Nos. 3 and 5 (the contract between the Associated
General Contractors of Chicago and Local No. 134, IBEW, and the seniority system
addendum to said contract) are not helpful, in the opinion of this Trial Examiner,
in establishing the allegation herein for two reasons. The Respondent admits an
effort to adhere to the terms, conditions, and working rules established by this con-
tract, but also states that it does not always use the seniority board as its exclusive
source of employees: Secondly, there was no argument made that the aforemen-
tioned contract establishes an exclusive hiring hall arrangement of the type which
would require the usual Mountain Pacific notices. Without attempting to make a
definitive determination, because it would not seem to come within the scope of
the complaint or hearing herein, a brief perusal of this contract indicates that the
seniority board is administered by a board comprised of equal representation from
both labor and management thus removing the subsequent hiring procedure from
the "unfettered union control" upon which the Mountain Pacific case is premised.
For these reasons this Trial Examiner is of the opinion the General Counsel has
failed to sustain by a preponderance of the evidence the allegations set forth in
the complaint and I shall therefore recommend dismissal of the complaint in its en-
tirety. In so recommending this Trial Examiner does not intend to indirectly place
an imprimatur of legality on the agreement between the Electrical Contractors Asso-
ciation of the City of Chicago and Local Union No. 134, IBEW. The legality of
8 See N.L R.B v. Link-Belt Co , 311 U.S 584, 602, N L R B v. International Union of
Operating Engineers, Hoisting and Portable Local No 101 of Greater Kansas City and
Vicinity, A F of L (Sub Grade Engineering Co ), 216 F. 2d 161, 164 (C A 8) ; N L R B v.
Pacific Intermountain Express Company, 228 F. 2d 170, 172 (C.A 8), cert denied 351
U S 952
9 Local No. 3, United Packinghouse Workers of America, CIO (Wilson & Co , Inc) v
N L R.B., 210 F 2d 325, 328-329 (C A 8), cert denied 348 U S 822
10 Local No 3, United Packinghouse Workers of America, CIO (Wilson & Co , Inc v
NLRB , supra, at 331 ; NLRB v Montgomery Ward & Cc , 157 F. 2d 486, 491 (C A 8) .
Osceola County Co-Operative Creamery Association v. N L R B , 251 F 2d 61, 68 (C A 8).
11 See Mountain Pacific, supra, footnote 7. at p 896
19 For expressions of a contrary view see the following cases cited in the Respondent's
brief. N L R-B v Montgomery Wai d & Co , 192 F 2d 160 (C A 2) , N.L R B v Ozark
Dam Constructors, 190 F 2d 222 (C.A. 8) ; Max Sax, d/b/a Container Manufacturing
Company v N L R B., 171 F 2d 769 (C.A. 7) ; Wayside Press, Inc v N L R B , 206
F 2d 862 (CA 9)
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this instrument was not fully litigated and only became a part of this case indirectly.
Neither does the Trial Examiner intend to indicate that Respondent is free from
suspicion . This suspicion does not stem , however, from the evidence presented here-
in, but from general knowledge of the method of doing business in a highly in-
dustrialized area, such as Chicago , when that business is a segment of the building
and construction industry.13
The inadequacy of proof as found above is sufficient to warrant a dismissal of
this proceeding . However, under all the circumstances of this case the Trial Ex-
aminer is constrained to set forth an added reason why in his opinion this case should
be dismissed.
The Charging Party refuses to supply the Respondent with men in spite of Re-
spondent 's willingness to abide by its (Local 9's) custom and practice so far as
wages, hours , and working conditions are concerned . Confronted with the refusal
of the Charging Party to supply manpower , Respondent has continued to do busi-
ness in the only way possible-securing men from other sources.14 Local 9 there-
upon files the charges providing the basis for the complaint herein . While it is true,
as the attorney for the Charging Party argues, that what motivates the Charging
Party in filing a charge is immaterial ' 15 nevertheless the Board has the authority to
"decline to be imposed upon or to submit its process to abuse." 16 Under all the
circumstances , the instant case appears to be an abuse of the Board's process and
completely contrary to the expressed purposes of the Act.
Upon the above findings of fact , and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
3. The Respondent has not violated Section 8 ( a) (3) and (1) of the Act as alleged
in the complaint.
[Recommendations omitted from publication.]
13 See the references set forth in footnote 3, supra, for a confirmation of the suspicion.
14 See the Board ' s finding of fact in Local Union No . 9, International Brotherhood of
Electrical Workers , et al . ( G. A. Rafel and Co., Inc .), 128 NLRB 899 , involving the
parties herein.
15 See Mooremack Gulf Lines , Inc., 28 NLRB 869, 882.
16 N.L.R .B. v. Indiana f. Michigan Electric Company , 318 U . S. 9. See N .L.R.B. v.
Donnelly Garment Company, 330 U . S. 219, for a reiteration of the same principle.
Sheet Metal Workers International Association , Local Union
No. 299, AFL-CIO, and Allen Stout , its agent and S. M. Kisner
( deceased ), W. F. Kisner , R. M. Kisner , R. D. Kisner, H. A.
Kisner, O. C. Kisner , M. D. Kisner , and B . E. Kisner , partners,
d/b/a S. M. Kisner and Sons . Case No. 6-C,C-222. Jwrie 20, 1961
DECISION AND ORDER
On August 31, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, dismissing the
complaint in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
131 NLRB No. 147.