Local I, Elevator Constructors

LOCAL 1, ELEVATOR CONSTRUCTORS Local 1, International Union of Elevator Constructors, AFL-CIO (Staley Elevator Company, Inc.) mnd Francis Lawrence and Martin Donohue. Cases 29- CB-2969 and 29-CB-3004 December 1, 1978 DECISION AND ORDER ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. BY MEMBERS JENKINS. MURPHY, AND TRUESDALE On May 4, 1978, Administrative Law Judge Phil W. Saunders issued the attached Decision in this pro- ceeding. Thereafter, General Counsel filed excep- tions and a supporting brief and Respondent filed a memorandum in opposition to General Counsel's ex- ceptions. 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, findings,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order. Respondent contends, inter alia, that the exceptions filed by the General Counsel did not comply with Sec. 102.46(b) of the Board's Rules and Regu- lations, Series 8, as amended. However. while the General Counsel's excep- tions may not have been in technical compliance with all the requirements of that section, we are mindful of the fact that the Rules and Regulations. Sec. 102.121., specify that they "shall be liberally construed to effectuate the purposes and provisions of the Act." We therefore conclude that the pur- poses of the Act are best effectuated by accepting the General Counsel's exceptions and find no ment to Respondent's contention that the exceptions are improperly before the Board. Holly Manor Nursing Home, 235 NLRB 426 (1978). 2 General Counsel has excepted to the Administrative Law Judge's failure to credit Charging Party Lawrence's testimony that Caraccioli, an employee of the Union. told him that Watson. president of the Union, had said that Lawrence could not be referred because, inter alia, too many cardholders were unemployed. The Administrative Law Judge discredited this testimony because he credited Watson's denial that he made such a remark. The Gen- eral Counsel alleges that. inasmuch as Caraccioli failed to testify, Lawrence's testimony, rather than that of Watson, should be credited. We find no ment to this argument. The issue is whether the Union's failure to refer Lawrence and Donohue was discriminatorily motivated, and Watson's alleged statement to Caraccioli is evidence of such motivation. However. inasmuch as the Administrative Law Judge found. on the basis of de- meanor. that Watson did not make the remark attributed to him, what Caraccioli may have said to Lawrence is irrelevant. It is the Board's estab- lished 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 (3d. Cir. 19511. We have carefully examined the record and find no basis for reversing his find- Intj. In the first sentence of the second paragraph before his Conclusions of Law, the Administrative Law Judge inadvertently omitted the word "not" which should have been inserted between the words "therefore" and "enti- tled." The sentence should read. in relevant part, "and Donohue. who had not even registered for the open employment list, and was therefore not entitled to any preference." DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Judge: Based on charges filed in July and August 1977, by Francis Law- rence and Martin Donohue, a consolidated complaint was issued on September 30, 1977, against Local i, Internation- al Union of Elevator Constructors, AFL-CIO, herein called Respondent or Union, alleging violations of Section 8(bX)( I )(A) and (b)(2) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint, denying it had engaged in the alleged matter. The Respon- dent filed a brief. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor,' I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Staley Elevator Company, Inc., herein called the Em- ployer or Staley, is a corporation organized under the laws of the State of New York, and at all times material herein has maintained its principal office and place of business in Long Island City, in the borough of Queens, city and State of New York, where it is engaged in the installation, main- tenance, and repair of elevators and related services. During the past year the Employer purchased and caused to be transported and delivered to its plant eleva- tors, parts, and other goods and materials valued in excess of $50,000, and of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in interstate commerce directly from States other than the State in which it is located. Staley is an employer in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IThe facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.L.R B v. Walton Manufacturing Company. 369 U.S. 404 (1962). As to those witnesses testifying in contradiction of the findings herein, their testimony has been discredited, either as having been in con- flict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES It is alleged in the complaint, as consolidated, that since on or about July 7 and 20, 1977, the Respondent has failed and refused to refer Francis Lawrence to available work because he was not a member of the Union. It is further alleged that since August 2, 1977, the Respondent has also failed and refused to refer Martin Donohue to available work with the Employer because he was not a member of the Union. Francis Lawrence was employed by Staley in October, 1969, as an elevator helper, later became a temporary me- chanic, and then returned to the position of helper. Law- rence continued to work for Staley until on or about Janu- ary 29, 1976, when he was laid off due to lack of work. It appears that during Lawrence's tenure with Staley, he was employed pursuant to the terms and conditions of the collective-bargaining agreement between Staley and the Union. Lawrence testified that he was employed by Staley after he went down to the union hall, filled out a form, paid union dues, and then received a letter and a permit from the Union to go to work for Staley. Lawrence stated that he worked on the permit and was not a member of the Union. However, it does appear that Lawrence received all of the benefits set forth in the collective-bargaining agree- ment between the parties and thus participated in the Re- spondent's annuity and pension funds, to which contribu- tions were made by Staley on his behalf. At the time of Lawrence's layoff in January, 1976, as aforestated, he notified the Union in accordance with the applicable procedure. Employees are requested to notify the Union at the time of their layoffs, and such employees are then immediately put on the open employment list which the Union maintains for job referral purposes. In April and May 1976, Lawrence submitted applica- tions to the annuity fund and the pension fund for the return of contributions made to these funds. Lawrence's applications for the return of contributions made were ap- proved by both funds. Approximately 9 or 10 months after he last worked for the Employer, Lawrence began to telephone Staley to ask whether or not it had any available work, and in early July 1977, Lawrence was advised by Staley that if he could ob- tain a work permit from the Union, he could return to work. Lawrence then visited the offices of the Union and spoke with clerical employee Al Caraccioli. Lawrence ad- vised Caraccioli about Staley's offer of reemployment and requested that his permit be returned. However, after wait- ing until someone else came in, Caraccioli then advised Lawrence that he could not give him a permit inasmuch as he had withdrawn his money from the pension and annuity funds, but nothing was said concerning Lawrence's mem- bership or lack of membership in the Union. Lawrence then telephoned Staley and advised the Em- ployer as to what had taken place and requested that it hold his job open until he could resolve the difficulties. Lawrence wanted to discuss this matter with a friend of his, Walter Burke, a member of the Union's board of trustees and executive board. Lawrence then contacted Burke and informed him of what had taken place, and Burke advised him to wait until he could bring this matter up before the Union's executive board. It appears that Burke later called Lawrence and then advised him to obtain a letter from Staley setting forth that it wanted him to return to work and that it had been less than 2 years since he had last worked for the Employer. 2 In accordance with advice from Burke, Lawrence then obtained a letter from Staley which stated that it would like to exercise its option and rehire Lawrence effective from July 20, 1977. Lawrence took the letter with him to the Union's office on this date and presented it to Caracciolo, but was advised that Caraccioli would have to present the letter to someone else, as he did not have any authority to act in this matter. However, while Lawrence waited in the office, Caraccioli was able to present the letter to Vincent Watson, president and business manager of the Union. Watson then advised Caraccioli that Lawrence was not eli- gible to exercise his card option under the 2-year provision of the collective-bargaining agreement, inasmuch as he had withdrawn his pension and annuity funds and was thus considered as having left the elevator industry. Caraccioli then so advised Lawrence that he could not be referred to Staley because he had withdrawn his pension and annuity funds.3 The General Counsel argues that, because of the great power a union exercises over the livelihood of employees subject to an exclusive hiring hall, the law requires that the hiring hall be operated in a nondiscriminatory manner, and especially with regard to employees' or prospective em- ployees' memberships, and that Lawrence requested the re- turn of his permit pursuant to a clause in the contract which required the Union to refer an employee for a 2-year period when that particular employee is specifically re- quested. In the instant case, the Union had a legitimate and prop- er basis in refusing to refer Lawrence. As pointed out, at the time Lawrence requested the Union to refer him for 2 The collective-bargaining agreement between the Union and Staley pro- vides for an exclusive hiring hall, and one of the rules which applies to the operation of the hiring hall states that employees who are specifically re- quested bh an employer are to be referred if they had worked for that employer within the preceding 2 years. Sec. II, A,4(a), of the collective- bargaining agreement provides as follows: (a) If the Employer requests by name from the open employment list a workman, other than a probationary man, who had previous em- ployment with the Employer within the past two (2) years, that work- man shall be referred by the Union to the Employer unless the work- man is then working for another company or is unwilling to accept employment with the Employer. 3In effort to establish a discriminatory motivation, the General Counsel has attempted to rely upon the fact that during the conversation that Law- rence had in the union office, reference was made to the fact that "card- holders" were out of work. Al Caraccioli, a clerical employee of the Union, supposedly told l.awrence that Vincent Watson. president and business manager of the Union, had responded to his request for referral by stating that Lawrence could not be referred because he had withdrawn his pension and annuity funds monies and that there were too many cardholders unem- ployed. This testimony cannot be relied upon in view of Watson's undisput- ed and credited denial of this remark attributed to him. 552 LOCAL I. ELEVATOR CONSTRUCTORS reemployment at Staley, in July 1977, he had already with- drawn his contributions from the pension and annuity funds and in so doing indicated that he intended to with- draw from the elevator industry. As such, Lawrence was no longer eligible for referral to Staley pursuant to the 2-year provision of the collective-bargaining agreement. As con- tended by counsel for the Union, an employee cannot withdraw from the industry, secure the return of all his contributions, and then still remain eligible for referral. Moreover, as also pointed out, Lawrence's intention to withdraw from the elevator industry is revealed on his ap- plication for the return of his contributions from the annui- ty fund. Indeed, the application, at question 5, specified that an employee would be ineligible for a return of the money if the employee was remaining in the elevator in- dustry or had not reached retirement age.4 It is true that Lawrence failed to specify on his application withdrawal form whether he was leaving the elevator industry, but the intention of his application and his acceptance of the lump sum payment from the funds amply demonstrate his ac- knowledgment that he was leaving the elevator industry and indicate that he was no longer employed in the indus- try. It is further noted by the Union that section II A(4) of the collective-bargaining agreement, the 2-year provision for referrals, as aforestated, has been interpreted by the Union and various employers, who are all parties to collec- tive-bargaining agreement, as not providing any preference for employees who had withdrawn from the industry and had secured the return of their pension and annuity funds. From the credited evidence in this record, the decision to exclude employees who had withdrawn their pension and annuity funds from the 2-year-recall provision of the col- lective-bargaining contracts was agreed to at the request of the employers who were party to the agreements with the Union at a meeting of the New York Arbitration Commit- tee several years ago. There is further evidence in this rec- ord that this action was taken because employers feared that the tax exemption from the Internal Revenue Service for the pension and the annuity funds would be endan- gered if there were promiscuous withdrawals of monies from those funds by employees, and there was also a con- cern to protect the integrity of the pension fund concept and to prevent the funds from becoming open bank ac- counts. Moreover, there is no evidence that the above interpreta- tion of the collective-bargaining agreements has not been uniformly applied to all similarly situated individuals, nor is there any evidence that this mutually agreed upon inter- pretation is anything but a valid and proper policy estab- lished to protect the integrity of the pension and annuity funds. When viewed in this context, the Union's refusal to refer Lawrence to the Staley job was pursuant to a valid interpretation of the collective-bargaining agreement and was, therefore, lawful. Martin Donohue was employed by the New York City Housing Authority in January 1964, and, as such, he was paid by the City of New York as one of its employees. 4See Resp. Exh. 3 Donohue was first employed by the New York Housing Authority as an elevator helper and then as a mechanic and became a civil service employee member of the Union in 1968 or 1969.5 In August 1976, Donohue, along with many others, was suspended from his employment and charged with theft of overtime, and in October 1977, Donohue pleaded guilty to certain criminal charges relating to the above, and as a result of the sentence imposed, he was forced to resign from his job, pay a $4,000 fine, and was also placed on 3 years' probation. Donohue testified that in August 1977, he heard that Staley was in need of elevator mechanics, and that he then went to the Employer and inquired whether it had any job openings. Donohue had never previously worked for Staley but informed the Employer that he was an elevator me- chanic under suspension by the Housing Authority. Dono- hue was then told that he would be hired but would first have to "clear it with the Union." Donohue stated that at this time he only had a municipal card in the civil service branch of the Union, as aforestated. Donohue then went over to the Union to find out wheth- er he could be referred to work with Staley and spoke to John Gree, vice president of the Union. Donohue advised Green that he had a job opportunity with Staley and that he was attempting to clear it with the Union. Donohue and Green discussed Donohue's suspension from the New York Housing Authority and that he had a municipal membership card in the civil service branch. Green then advised Donohue that there was an existing list of unem- ployed men (open employment list), including a list of men who had previously worked for Staley, and, under their bargaining agreement, they had first preference on recalls. Dunng this conversation, Donohue inquired whether he could convert his civil service membership and also men- tioned to Green that he had recently received a letter which stated that civil service employee members were now being taken into the Union upon the payment of an initiation fee. Green then advised Donohue that he could not answer these questions but would bring the matter up with the Union's executive board. In May 1977, at a membership meeting, the Union amended its constitution that, effective July 1, 1977, all members who had civil service employee memberships and were working as of that date, or on any subsequent date, could transfer to general membership status upon the pay- ment of the current initiation fee.6 Green testified that in his August 1977, conversation with Donohue, as aforestated, he also told him that the unemployment situation in the Union "was bad"; and that under the bargaining contract with the Union, Staley could call back employees by name under the 2-year option pro- vision. It appears that on this occasion Green also attempt- ed to explain to Donohue that because he was still on sus- pension from the Housing Authority as of July 1, 1977, the effective date specified in the constitutional amendment, ' It appears that the Union maintained a separate membership for the employees of the Housing Authority. who were considered civil service em- ployee members Moreover. the) were nor, required to pay initiation fees. but the) did pay dues. 6See Resp : xh 9. 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was not working within the meaning of the amendment and, thus, probably did not qualify for admission. Green further advised Donohue that the status of all of the men that had been suspended was in a state of confusion at that time and that the executive board was attempting to have the matter clarified. This matter was then brought before the Union's execu- tive board, and it was determined that unless an employee was actually working for the Housing Authority on July 1, 1977, he would not be eligible to receive general member- ship status pursuant to the constitutional amendment. The General Counsel argues that at the time Donohue requested referral by the Union to Staley, he had not yet resigned from the Housing Authority and was refused re- ferral on the grounds that he was not a member of the Union. As pointed out, Donohue was a civil service employee member of the Union, and in May 1977, the Union amended its constitution to permit civil service employee members, upon payment of an initiation fee, to obtain reg- ular membership in the Union. The amendment provided that civil service employee members would be eligible for regular membership provided that they were working on or after July 1, 1977, and were employed as of the date they desired to exercise this option. When Donohue inquired about the matter in August, 1977, the question was submit- ted to the Union's executive board, and it determined that inasmuch as Donohue and the other 75 employees who were also on suspension as of July 1, 1977, and had been on suspension since August 1976, they were not to be con- sidered as working on the critical date, they were ineligible for regular membership. As also indicated, the General Counsel has offered no evidence to undermine or attach this decision of the Union's executive board. Counsel for the Union further points out and argues that, even assuming that Donohue had obtained regular membership in the Union, he still would not have been entitled to a referral to Staley, as the bargaining agreement provided an open employment list which consisted of many employees, and who were entitled to preference to any job that Staley or any other employer might have had, and Donohue, who had not even registered for the open employment list, was therefore entitled to any preference. Moreover, there is no evidence that Staley ever requested the Union to refer Donohue or ever even called the Union for an elevator mechanic. I am in agreement that the record in this case is totally devoid of any evidence of animosity or hostility by the Union toward Lawrence or Donohue. In the final analysis, it appears that the Union was interested only in enforcing its bargaining agreement as the contract had been inter- preted and applied by the parties. CONCLUSIONS OF LAW 1. The Respondent Union has not violated the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issued the following recommended: ORDER 7 The complaint is dismissed in its entirety. 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. 554