Intl. Union of Operating Engineers, Local Union #150

INTL. UNION OF OPERATING ENGINEERS, LOCAL UNION #150 159 International Union of Operating Engineers, Local Union 150 , AFL-CIO (Builders Association of Chicago ) and Joseph W. O'Brien. Case 13--CB-2021. May 31, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On March 14, 1967, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relation Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: Upon a charge filed on June 23, 1966, by Joseph W. O'Brien, an individual, the General Counsel of the National Labor Relations Board, hereinafter referred to as the Board, issued a complaint on October 26, 1966, against International Union of Operating Engineers, Local Union #150, AFL-CIO, hereinafter referred to as the Respondent or the Union, alleging violations of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice, a hearing was subsequently held on January 11, 1967, at Chicago, Illinois, in which all parties were represented by counsel and were afforded full opportunity to be heard and to introduce evidence pertinent to the issues, and to engage in oral argument. Shortly after the opening of the hearing, the parties stipulated the facts pertaining to this matter. Timely briefs, received on February 20, 1967, were filed by counsel for the General Counsel and for the Respondent. Upon the entire record in this case, I make the following: FINDINGS AND CONCLUSIONS I. COMMERCE The parties stipulated, and I find, that the Builders Association of Chicago, hereinafter referred to as the Association, is, and at all times material to this proceeding has been, a nonprofit corporation duly organized under, and existing by virtue of, the laws of the State of Illinois, and is composed primarily of employers engaged in and around Chicago, Illinois, in the construction of industrial, commerical, and institutional buildings. The Association maintains its office and place of business at Chicago, where, among other activities, it is engaged in the conduct of labor negotiations and the execution of collective- bargaining agreements on its behalf with unions representing employees of its employer-members. Said employer-members of the Association, during the calendar year 1965, performed services valued in excess of $1 million, which services were performed in States other than the State of Illinois. The Respondent is an unincorporated association, maintaining an office at Chicago, Illinois, which exists for the purpose, in whole or in part, of dealing with employers, including employer-members of the Association, concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. In this regard, it is the collective-bargaining representative for certain of the employees of members of the Association, and, as said representative, has executed, maintained, and given effect to collective-bargaining contracts with the Association covering said employees. The Respondent annually receives in excess of $1,600,000 from initiation fees, dues, assessments, fines, work permits, and other sources from its members, of which, in excess of $100,000, is annually transmitted to the Respondent's parent organization , the International Union of Operating Engineers, in Washington, D.C. Based upon the foregoing, I find that the Association and each of its employer-members is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION I find that International Union of Operating Engineers, Local#150, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts Joseph W. O'Brien, a member of the Respondent, has worked over a period of time for an employer-member of the Association, and under a collective-bargaining 165 NLRB No. 6 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement in force between the Respondent and the Association. In August 1965 the Union held its election of officers. At this election William Martin, the incumbent president, was reelected to that office and Joseph O'Brien was one of three auditors elected to office. Thereafter, during the fall of 1965, a member of the Union filed an election appeal with the parent International Union of Operating Engineers, seeking a declaration of ineligibility of many of the elected officials, including Martin and O'Brien. At an appeal hearing held in Washington, D.C., O'Brien appeared with the member filing the appeal. The appeal was overruled. Martin and other officers of the Union were aware of the appeal and had knowledge of O'Brien's appearance at the appeal hearing. Shortly thereafter, at the Respondent's regular semiannual audit meeting held on January 23, 1966, O'Brien was present as were the other two auditors, the three trustees, and most of the Union's executive board, including President Martin. During the reading of the audit's statement, O'Brien asked several questions. Martin refused to answer any of them or to allow anyone present to answer them. At one point during the reading, Martin accused O'Brien of continual harassment, asking whether he was going to have to put up with this type of individual harassment the next 3 years and stating that he would not do it. The meeting continued and Martin and the executive board members left the room. Sometime thereafter, Martin returned to the room, walked toward O'Brien, and called him a profane name, inviting O'Brien to take a swing at him. This O'Brien refused to do, whereupon, Martin again called O'Brien profane names and left the room. The audit meeting continued, at the end of which, O'Brien refused to sign the audit. The following week, on January 28, 1966, the Respondent held its semiannual general membership meeting in Chicago, Illinois, which was attended by approximately 500 members, a number of whom were also employees of employer-members of the Association. At this general membership meeting, at which O'Brien was present, President Martin announced to the union members present that O'Brien had refused to sign the audit. At this, a member from the audience suggested that O'Brien be fired from his office for his refusal to sign the audit. In response thereto, President Martin stated to those present that O' Brien could not be fired as he was elected to the office. Martin then added, "I don't know what I am going to do with O'Brien, but I'll get him in my own way." B. Conclusion The sole issue presented is whether, as asserted by the General Counsel, on these facts Martin's statement to O'Brien and to the assembled union members on January 28, 1966,' to the effect that "I don't know what I am going to do with O'Brien, but I'll get him in my own way," constitutes restraint and coercion within the proscriptions of Section 8(b)(1)(A) of the Act.2 In this regard, as readily acknowledged by all, it has long been established that, although the proscriptions of 8(b)(1)(A) are limited, actual or threatened economic reprisals or physical violence by union officials under circumstances may constitute violations of this section of the Act.3 Thus, it would appear that, if Martin's statement on this occasion is found to constitute a threat of economic or financial reprisal or a threat of bodily harm against O' Brien , who, as a dissident union member was questioning the integrity of Martin and perhaps other union officials, the Act has been violated. Counsel for both the General Counsel and the Respondent rely on the same Board Decision in support of their respective positions, namely, J. Ziak & Sons, Inc.4 In that case, which is strikingly similar to the facts in the instant proceeding, the Trial Examiner found that a number of statements made to a dissident union member at union meetings "were intended as and were reasonably understood to be pronouncements of dire consequences," and, as such, "were threats of bodily, economic, and financial harm."5 The Board, however, in reversing the Trial Examiner, did so on the ground that the union official's remarks were ambiguous, and because it was "unable to infer from the testimony as to the mood of the audience and their comments that Haggerty's remarks constituted threats of either bodily or financial harm, or were designed to create an atmosphere hostile to Farrell and the others."' Notwithstanding the absence of a subsequent "neutralization" by the union officials of the remark, relied on here by the General Counsel as the controlling factor distinguishing the two cases and warranting a different conclusion, I cannot, viewing the two factual situations side by side, agree that Martin's remark was anything but ambiguous.' Accordingly, while recognizing the statement as a threat, but finding its ambiguity to leave unanswered the question as to whether it was one prohibited by the Act, I find, as did the Board in Ztak, that the General Counsel has not established by a preponderance of the evidence that Martin, and therefore, i The General Counsel made it clear that no violation is alleged as to Martin's conduct at the audit meeting on January 23 2 Sec 8(b)(1)(A) provides in pertinent part that "It shall be an unfair labor practice for a labor organization or its agents-(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 " 2 See International Typographical Union (American Newspaper Publishers Association), 86 NLRB 951, modified 193 F 2d 782 (C.A 7), affil 345 U S 100, and Nu-Car Carriers, Inc., 88 NLRB 75, enfd 189 F 2d 756 (C A 3), cert. denied 342 U S 919. 4 152 NLRB 380. 5 As found by the Trial Examiner, the union official therein stated to the union member "that he was `going to get him'; that `this guy is going to get his', that he was `going to take care of him'; that he had 'ways of taking care of these fellows', to `watch these men . watch everyone '; that he would 'get to him in time'; that 'we will get this guy', and that he would `take care of him later "' On one occasion, prior to the 10(b) period, the union official told the dissident member that he was "traveling the wrong road and if you don't stay away from these guys, one of these days , I might ruin you financially " 6 In Ziak, the union official's statements concerning the member were followed by violent reaction by the members, including shouts to "throw him out " However , the Board appeared to place emphasis on the fact that because the assembled members were then told that the dissident member "would be taken care of in accordance with the regular union procedures," there was no intent to threaten the member with bodily or financial harm Nor, in my opinion, does the fact that Martin challenged O'Brien to a fist fight the week before resolve the ambiguity INTL. UNION OF OPERATING ENGINEERS, LOCAL UNION #150 the Respondent, unlawfully threatened O'Brien on January 28, 1966. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Builders Association of Chicago and International Union of Operating Engineers , Local Union #150, AFL-CIO, are both engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 161 2. The Respondent, International Union of Operating Engineers , Local Union #150, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety.