Hoisting and Portable Engineers, Local 4, IUOE

HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1231 Hoisting and Portable Engineers, Local 4, International Union of Operating Engineers, AFL-CIO, and its Agent, Walter Ryan [Corey Steeplejacks, Inc.] and William F. Cronin. Case No. 1-CB-783. April 11, 1963 DECISION AND ORDER On December 27, 1962, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondents' exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions. The Trial Examiner found, and we agree, that Respondents unlaw- fully caused the Employer, Corey Steeplejacks, Inc., to discharge employee Cronin because Cronin was not a member of, and was not acceptable for membership in, Respondent Union. As principally set forth in the Intermediate Report and as more fully reflected in the record, Corey was awarded the demolition sub- contract on a project involving extension of the Massachusetts Turn- pike. Respondent Ryan testified that the general contractor, Perini Corporation, before awarding the Corey subcontract, because of its practice of not allocating contract work to nonunion employers, con- tacted Respondent Union to determine Corey's status. At that time, Corey had no contract with Local 4 and had previously operated on a nonunion basis. On the understanding that Corey and its em- ployees wanted to become "union," and that it would sign a contract with Local 4 and observe its rules, Respondent Union informed Perini that it had no objection to subcontracting to Corey. Perini there- upon awarded the demolition work to that firm. Cronin, whose employment was initially solicited by Corey, re- ported to work on July 5 as an oiler on a P. & H. 10-ton crawler crane. Thereafter, he continued to work as an oiler, was regarded 141 NLRB No. 119. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an oiler by Corey, and was compensated at the oiler rate. On July 26 or 27, Respondent Ryan appeared at the worksite. According to the credited testimony of Cronin, Ryan, in a conversation with Bob Corey, a management representative of Corey Steeplejacks, stated, after observing Cronin, that he did not want nonunion labor on the job. In a later conversation with President James Corey, Ryan stated that Cronin was unacceptable for membership in Local 4, and that he could notbe used on any power equipment.' Although Corey was satisfied with Cronin's work performance, he complied with Ryan's demand and on August 3 removed Cronin from work on the crane. Cronin continued to work for Corey until August 10 doing odd jobs in the expectation that Corey would give him a job on another piece of equipment, but left when Corey finally told him he could not do so because of Ryan's objections. From the testimony of James Corey, which we credit,2 it appears that at the time Ryan requested Cronin's removal from work on the crane, he also insisted that the oiler's job be filled by an unemployed member of Local 4. Corey, however, indicated that if he had to put someone else in the oiler's job, he preferred filling it with his son-in-law. The parties eventually reached a "compromise" whereby the son-in-law was to work as an oiler and be admitted to the Union. Thereafter on August 29, 16 of Corey's employees were cleared for membership in Local 4 and a collective-bargaining agreement was executed with Local 4 on October 1 or 2. In view of the foregoing, we find that employment on the Corey job was conditioned on union membership and that Cronin was dis- charged on Ryan's demand because he was unacceptable for union membership. As Perini's award of a contract to Corey was con- tingent on the approval of Local 4, we do not regard Ryan's demand as mere persuasion that Corey employ union labor. Accordingly, we find that the Respondent caused Corey unlawfully to discharge Cronin in violation of Section 8(a) (3), thereby violating Section 8(b) (2) and (1) (A) of the Act. ORDER The Board hereby adopts as its Order the Recommended Order of the Trial Examiner,3 except that, in accordance with our usual policy, we shall not hold Respondent Ryan personally liable for backpay. 'The record contains some indication that Cronin was unacceptable for membership in Local 4 because of his alleged reputation as a "wage cutter." 2 Although the Trial Examiner did not specifically advert to this testimony by Corey, he discredited certain testimony of Ryan which was inconsistent therewith. 3 Member Leedom dissents from the inclusion of interest in the backpay obligation for the reasons stated in the dissent in Isis Plumbing & Heating Co, Inc., 138 NLRB 71G. HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1233 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed August 6, 1962, by William F. Cronin, an individual, against Hoisting and Portable Engineers, Local No. 4, International Union of Operating Engineers, AFL-CIO, and its agent, Walter Ryan, herein called Local 4 or the Union and Ryan, respectively, and collectively as the Respondents, the General Counsel issued a complaint alleging Respondents violated Section 8(b)(2) and (1) (A) of the Act by causing Corey Steeplejacks, Inc., herein called Corey, to discrim- inate against Cronin in hire and tenure of employment by reason of his non-member- ship in Local 4. The answer denied that Corey was engaged in commerce within the meaning of the Act and denied the commission of unfair labor practices. This proceeding, with the General Counsel and Respondents represented was heard before Trial Examiner John F. Funke at Boston, Massachusetts, on October 29, 1962, and at the conclusion of the hearing the parties were given leave to file briefs. A brief was received from Respondent on November 26. Upon the entire record in this case, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF COREY Corey Steeplejacks, Inc., is a Massachusetts corporation having its office and prin- cipal place of business in Lowell, Massachusetts, where it is engaged in the razing and demolition of buildings and other structures. During 1962 Corey was engaged as a subcontractor to Perini Corporation in the demolition of buildings at Kenmore Square, Boston. The value of the subcontract was in excess of $200,000 and it was stipulated that Perini Corporation, engaged in the heavy construction industry, annually performed services outside the State of Massachusetts valued in excess of $50,000. James E. Corey, president of Corey, testified that in 1962 his company had, as prime contractor, engaged in an urban renewal development project at Man- chester, New Hampshire, of a value of $60,000 or $70,000. The work performed for Perini was part of the extension of the Massachusetts Turnpike from Weston, Masachusetts, to downtown Boston. I find Corey engaged in commerce within the meaning of the Act.' The motion made by Respondent at the hearing to dismiss the complaint on jurisdictional grounds is accordingly denied. II. LABOR ORGANIZATION INVOLVED Local 4 a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The testimony of Cronin Cronin testified that on July 4, 1962,2 he received a telephone call from Jack Corey, employed by Corey, who asked him if he wanted to go to work. Conin said he did and was told he would be broken in on a P. & H. 10-ton crawler crane and to report the next morning to Newbury Street, Boston. Cronin was a licensed en- gineer but not a member of Local 4, although he had worked on Local 4 jobs under a permit. Cronin went to work the next day as an oiler at the jobsite at Kenmore Square, where Bob Corey was foreman. Cronin testified that on either July 26 or 27 he had a conversation with Bob Corey in which Corey told him that Ryan, business manager of Local 4, had told him that he (Ryan) objected to Cronin working as either an operator or oiler 3 and that he would not take Cronin into the Union. According to Cronin this topic was discussed between Bob Corey and himself on the succeeding days Cronin worked as oiler. On further direct examination Cronin testified that on July 26 or 27, Ryan came to the jobsite and walked up to him (Cronin was beside the machine) and told him to get the operator (Paul Corey) off the machine and bring him down. Cronin Siemons Mailing Service, 122 NLRB 81. z Unless otherwise noted all dates are 1962. 3,Cronin stated he received an oiler's rate but operated the crane for a total time period of 3 or 4 days while he was employed 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repeated this request to Bob Corey, also present, who talked to Ryan. Ryan, after talking to Bob Corey, walked over to Cronin and asked him his name, age, and address and how long he had been working for Corey. Ryan then went back to Bob Corey and Cronin testified that he overheard Ryan tell him that he did not want any nonunion men on the job. Cronin testified that on the afternoon of August 3 (a Friday) Ed Corey came to him and told him Ryan objected to his working as either operator or oiler and that on Monday he would try to find another job for him. Ed Corey repeated that Ryan had said he would not take Cronin into Local 4 and then asked Cronin, as a favor, to instruct his (Corey's) son-in-law how to oil and adjust the machine. Corey's explanation was that he and Ryan had reached a "compromise" and that Ryan would permit the son-in-law to join Local 4 and work as an oiler. Cronin continued to work for Corey from August 6 to 10 doing odd jobs on the site but he did not work with the crane. When Cronin turned in his timecard on August 10 he asked both Bob and Ed Corey about working as a power shovel operator and again was told that Ryan would not take him into Local 4 as an operator for the Northwest Model 6 power shovel they wanted him to use. 2. The testimony of James Corey James Corey, president of Corey, was a reluctant and evasive witness and it was apparent that his reluctance and evasiveness stemmed from an unwillingness to give testimony which he considered damaging to the Respondents.4 Corey admitted that Cronin was a satisfactory worker and he also admitted that Ryan told him Cronin was not acceptable and could not be admitted into membership in Local 4. He also admitted telling Cronin, when he and Cronin were discussing Cronin's working on the power shovel, that Ryan had told him he could not use Cronin on any machine. Finally, he admitted that he was telling Cronin the truth when he so adivsed him and that Ryan had told him he could not use Cronin and that this was the reason Cronin was removed as oiler on the crawler crane on August 3 5 3. The testimony of Walter J. Ryan Walter J. Ryan testified that he was employed as business agent of Local 4, an elective office, and that he had six other representatives of Local 4, responsible to him, on the road. He is also a member of the executive board of Local 4 and stated that "the overall policy of the union, between executive board meetings and regular meetings, would be formulated to a good degree by my thinking " 6 Ryan first testified to discussions before Corey started on the project, initiated by Perini, as to any objections Local 4 might have to Perini's subcontracting to Corey, not at that time under contract with Local 4. Since Ed Corey 7 had previ- ously told another business agent of Local 4 that his men wanted to become mem- bers of Local 4, Ryan expected a contract with Corey and raised no objection with Perini. Discussions between Corey and Ryan took place in the fall of 1961 and since no contract had been signed by late July of 1962 Ryan went to the jobsite at Kenmore Square. Ryan saw the other rig first, and then testified he saw the second rig operated by Paul Corey. He said he saw "this fellow hosing down debris" and then asked for the operator. Robert Corey came over and told Ryan the operator was his brother and when asked who the oiler was he told him Cronin ("the fellow hosing down debris") was the oiler. Ryan then demanded another oiler on the ground that Cronin was doing a laborer's work. After some discus- sion and repeated requests by Ryan that a Local 4 man be put on the job, Ed `J,unes Corey was called as a witness by the General Counsel and during his direct examination the General Counsel moved to have him declared a hostile witness After fuither interrogation, however, Corey responded more directly and it was not necessary to rule on the motion i This Is Corey's testimony: Q (By the TRIAL EXAMINER ) Well, when you told him, were you telling him the truth" By that I mein, had Air Ryan told you you couldn't use Cronin on any job involving a machine? A. Yes. Q (By Mr MACa ) And, Air. Corey, is that why on August 3rd he was removed as oiler, is that correct? A. Yes. On the above testimony I find that Ryan was at all times material herein an author- ized agent of Local 4. 7 James Corey is also and more familiarly known as "Ed" Corey. HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1235 Corey told him that if he was going to employ another oiler he would put his son-in-law on the job.8 Ryan testified he never went back to the jobsite but that at a later date Local 4 received 17 applications for membership from Corey em- ployees and that on October 1 or 2 a collective-bargaining contract was signed between Local 4 and Corey. Ryan denied asking Corey not to employ Cronin and stated his request for a union oiler on Cronin's rig was the result of his observ- ance of Cronin hosing down debris. This, he feared, would lead to a jurisdictional dispute with the Building Wreckers' Union, which, according to Ryan, claimed the right to a third man on the rig, presumably for doing this type of work. This summarizes the material testimony. B. Conclusions Cronin was a credible witness and I accept his testimony that he overheard Ryan tell Bob Corey that he did not want any nonunion men on the job .9 My finding in this Base is based chiefly on the testimony of James Corey. As has been stated, Corey was quite apparently unwilling to testify adversely to the interests of Respondents. After persistent interrogation, however, he directly and unequivocally admitted that Ryan had told him that Cronin was not acceptable and that that was the reason Cronin was removed from the crawler crane and denied work on the power shovel. This testimony I fully credit and it determines the sole issue of the case. More direct evidence of discrimination could not be found. As to Ryan's testimony that he asked for the employment of a union oiler be- cause he observed Cronin performing work which Ryan felt came within the juris- diction of the Building Wreckers' Union, I find it suspect. If, as Ryan claimed, three men should have been attached to the rig, one of them a member of the Wreckers' Union, then the obvious solution to the problem, and the one which certainly would have been employed if Cronin had been a union member, would have been to restrict Cronin to oiling and to employ a Wrecker for hosing down. I find that Respondents, by causing Corey to remove Cronin from his job as oiler on the crawler crane and by causing Corey to refuse to offer Cronin em- ployment on the power shovel because Cronin was not a member of Local 4, violated Section 8(b)(2) and (1)(A) of the Act. IV. THE REMEDY Having found the Respondents have engaged in and are engaging in certain un- fair labor practices affecting commerce, it is recommended that Respondents cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that Respondents, by attempting to cause and causing Corey to discriminate against Cronin by removing from his job as oiler on a P. & H. 10- ton crawler crane and denying him work as oiler on a power shovel, restrained and coerced employees in violation of Section 8(b)(2) and (1) (A) of the Act. It shall be recommended that Respondents cease and desist from such action and it shall be further recommended that the Respondents shall make Cronin whole for any loss of pay suffered by him as a result of such discrimination, computation to be made in accordance with the Woolworth formula.1° Interest at the rate of 6 percent per annum shall be added to said backpay to be computed as set forth in Isis Plumbing 11 Liability for backpay shall cease 5 days after Respondents notify Corey they have no objection to the employment of Cronin as an oiler or for any other position for which he may be qualified, or when the Corey subcontract with Perini for the Turnpike project is completed, whichever is sooner. Comple- tion of the subcontract shall not, however, relieve Respondents of the obligation to notify Corey of their withdrawal of their objections to the employment of Cronin. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Corey Steeplejacks, Inc., is engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. 8Corey's son-in-law was not a member of Local 4 but was admitted to membership by Ryan and took over Cronin's work. 8 As to other conversations between Cronin and Bob Corey in which Corey related Ryan's objections, I do not hold these binding upon the Respondents. 10 F. W. Woolworth Company, 90 NLRB 289. n Isis Plumbing & Heating Co., Inc., 138 NLRB 716. 708-006-64-vol. 141-79 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent Local 4 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Walter Ryan is and at all times material herein was an agent of Local 4 within the meaning of the Act. 4. By causing and attempting to cause Corey to discriminate against Cronin with respect to his hire and tenure of employment, Respondents have engaged in and are engaging in unfair labor practices in violation of Section 8(a)(2) and (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I hereby recommend that the Respondents Hoisting and Portable Engineers, Local 4, International Union of Operating Engineers, AFL- CIO, its officers, agents, representatives, successors, and assigns and Walter Ryan, its agent, shall: 1. Cease and desist from: (a) Causing or attempting to cause Corey Steeplejacks, Inc., to discriminate against William F. Cronin or any employee with respect to hire and tenure of employment by denial of work assignments. (b) In any like or related manner restraining or coercing employees in violation of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make William F. Cronin whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in that section of the Intermediate Report entitled "The Remedy." (b) Notify Corey Steeplejacks, Inc., in writing, that they withdraw their objec- tions to the employment of Cronin as an oiler or for any other position for which he is qualified. (c) Respondent Local 4 shall post at its office at Boston, Massachusetts, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director of the First Region, shall, after being duly signed by an official representative of Respondent Local 4, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (d) Respondent Local 4 shall mail signed copies of said notice to the Regional Director for the First Region for posting by Corey Steeplejacks, Inc., it willing, at all locations where notices to Corey's employees are customarily posted. (e) Notify the Regional Director for the First Region, in writing, within 20 days from the date of this Intermediate Report what steps the Respondents have taken to comply herewith.13 12 In the event this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 1s In the event this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES OF COREY STEEPLEJACKS, INC., AND TO ALL MEMBERS OF HOISTING AND PORTABLE ENGINEERS, LOCAL No. 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1237 WE WILL NOT cause Corey Steeplejacks, Inc., to discriminate against William F. Cronin, or any other employee, by taking him off his job as oiler on a crane or by refusing to give him a job on a crane or give him any job for which he is qualified because Cronin is not a member of Local 4. WE WILL make William F. Cronin whole for any pay he may have lost because of the discrimination against him. WE WILL NOT in any like or related manner coerce or restrain employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. HOISTING AND PORTABLE ENGINEERS, LOCAL 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain. posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston Five Cents Savings Bank Building, Boston 8, Massachusetts, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Peter Smith, its Agent and Pure Milk Association ; Sidney Wanzer & Sons, Inc. Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Peter Smith, its Agent and Pure Milk Association ; Sidney Wanzer & Sons, Inc. Cases Nos. 13-CC-297-1, 13-CC-297-,Q, 13-CE-9-1, and 13-CE-9-°. April 11, 1963 DECISION AND ORDER On October 11, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents 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 attached Intermediate Report. There- after, the General Counsel and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs.- The Respondents filed a brief in support of the Intermediate Report. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Examiner only insofar as they are consistent with this Decision and Order. The Board hereby denies the Charging Parties' request for oral argument, because the record, the exceptions, and briefs adequately present the Issues and positions of the parties. 141 NLRB No. 103.