Elevator Constructors Union Local No. 1

ELEVATOR CONSTRUCTORS UNION LOCAL NO. I Elevator Constructors Union Local No. I (Tishman Realty and Construction Co., Inc.) and Alexander Grieco. Case 2-CB-5292 November 20, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 14, 1973, Administrative Law Judge Paul Harper issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief opposing and in answer to the General Counsel's exceptions. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 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. DECISION STATEMENT OF THE CASE PAUL HARPER, Administrative Law Judge: Upon charges filed by Alexander Grieco, an individual, the General Counsel issued a complaint on May 11, 1973, alleging violations of Section 8(b)(1)(A) and (2) of the Act against Elevator Constructors Union, Local No. 1, herein called Respondent Union or Local. Respondent filed an answer admitting some of the allegations of the complaint but denying that it committed any unfair labor practices. The hearing was held in New York City on June 27, 1973. All parties were represented at and participated in the trial and had full opportunity to introduce evidence, examine and cross-examine witnesses. A brief was filed by Respondent Union. Upon the entire record in the case, including my observation of the demeanor of witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER 497 Tishman Realty and Construction Co., Inc., herein Tishman, is a New York corporation maintaining an office and place of business in the city and State of New York where it has been at all times material herein engaged in providing general contracting services in the building and construction industry. In the course of its business operations Tishman has performed services valued in excess of $500,000 annually of which in excess of $50,000 represented revenue for services performed in and for various enterprises located in States other than New York. I find that Tishman is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT LABOR ORGANIZATION Respondent Local is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The parties stipulated that a bargaining contract between Respondent Union and Tishman, or its industrywide association, covering "temporary elevator operators" contains an exclusive hiring hall provision. They further stipulated that a similar bargaining contract between Respondent Union and Otis Elevator Company covering "elevator mechanics' contains an exclusive hiring hall provision. For many years Respondent Local has been hiring agent for Otis in supplying Otis with "elevator mechanics." Similarly, it has been hiring agent for Tishman and other construction contractors in supplying them with "tempo- rary elevator operators." The parties agree that the classification "temporary elevator operators" is an easier and less hazardous job than that of "elevator mechanic" and has been traditionally reserved for mechanic members who have become aged or disabled. Alexander Grieco has been a member of Respondent Local about 26 years. He has been employed by Otis Elevator Company about 28 years. In August 1957, while working for Otis, he sustained an injury to his hand which incapacitated him for a period of 8 to 10 weeks. Thereafter, as was its custom and practice, the Union referred Grieco to at least two jobs running a temporary elevator. In October 1958, Grieco returned to work for Otis as an elevator mechanic. He became a foreman in 1961 and except for about 8 months in 1969 when he again worked as a mechanic remained a foreman until December 1971. He then returned to the job of mechanic until January 1972 when he received a leave of absence from Otis. Once again the Union referred him to running a temporary elevator based on Grieco's own report to the Union concerning his state of health. On February 28, 1972, the Union referred Grieco to the job at Tishman running a temporary elevator until the Union went on strike on July 1, 1972. During the strike, which lasted from July 1, 1972, until January 30, 1973, Grieco worked for several months as a journeyman electrician. At the end of the strike the Union informed Grieco he would not be referred back to a job of 207 NLRB No. 81 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD running a temporary elevator but since he had demonstrat- ed physical fitness to work as a journeyman electrician in the building and construction industry he would be referred to jobs as an elevator mechanic. There was contradictory testimony at the hearing as to whether or not the Union had offered Grieco a referral to a mechanic's job. Grieco denied that such an offer had been made. However union representatives Vincent Watson and Thomas J. Connally both testified Grieco was offered referrals by them as a mechanic to Westinghouse and Armour Elevator Company. I credit their mutually corroborated testimony over Grieco's denial. Moreover within a month or two Grieco returned to Otis as an elevator mechanic where he continued to work at the time of the hearing. The General Counsel alleges in his complaint that "on or about February 1, 1973 Local 1 made a demand upon Tishman that it discharge Grieco from his position of employment . . ." because Grieco violated Local l's rule "whereby if disabled employees who have been assigned to employment as elevator operators work at any employ- ment during periods when Local 1 is engaged in a strike against their employers, such employees forfeit their right to work again as elevator operators at the termination of the strike." In view of the above language contained in the complaint it is necessary to comment briefly on General Counsel's apparent theory of a violation. It must first be noted that on or about February 1, 1973, at the end of the strike, Grieco had not been referred back to Tishman as a temporary elevator operator. It follows that Respondent Local could not have made a demand on Tishman to discharge Grieco as Grieco was not then employed by Tishman. Nevertheless if Respondent Local refused to refer Grieco for unlawful reasons a violation could be established. In its brief Respondent contends that the complaint must be dismissed because of General Counsel's failure to conform the pleadings to the proof. Inasmuch as I recommend dismissal of the complaint on other grounds I do not reach or pass upon this argument. With respect to the complaint allegation concerning the Union's rule it appears to me to result more from guesswork than any definite knowledge about the rule. Undisputed testimony in the record reveals that the rule was promulgated in 1969 for the purpose of offering more equitable opportunities to members who were aged or disabled. It provided that where an erstwhile disabled member had worked in the construction trades and thus demonstrated his physical capacity to work as an elevator mechanic he would not be referred to the easier job of running a temporary elevator. Apparently there had been some abuse of past privileges which the Union thought necessary to correct. The rule has nothing to do with working in other jobs during a strike. Indeed uncontradict- ed evidence shows the Respondent Union made a practice of encouraging such other employment and actually was instrumental in helping members obtain other employment during the strike which ended January 30, 1973. The issue thus narrows to the question of whether Respondent Union refused to refer Grieco to the job of temporary elevator operator with Tishman, the job he held before the strike, in order to restrain or coerce him in the exercise of Section 7 rights or as asserted by Respondent, for enforcing a legitimate and reasonable union rule. The credible evidence of record shows that Grieco sustained an injury to his hand in August 1957 while working as a mechanic for Otis Elevator Company. As noted above after being referred to two jobs as a temporary elevator operator because of his injury Grieco in October 1958 returned to Otis as a full time mechanic. After more than a year of employment as a mechanic he became a foreman in 1961. Except for about 8 months he remained a foreman until December 1971 when he again became a mechanic until obtaining a leave of absence from Otis in January 1972. Admittedly his leave of absence had nothing to do with his hand injury. Grieco testified he took leave of absence ". . . because [he] wasn't feeling that great." After relaxing a few weeks he called the Union about getting on the work list for temporary elevator operators. He testified he told the day secretary that his ". . . back was bothering him a little bit." Apparently at that particular time there were a number of temporary elevator jobs available. Grieco testified the secretary said to him "there are plenty of jobs available and that's what the jobs are there for, for the older men with seniority and injured." Other than a short 4-day job elsewhere, Grieco was employed as temporary elevator operator by Tishman on February 28, 1972, where he remained until the strike began in July 1972. During the strike Grieco worked as a journeyman electrician in the construction industry for a period of about 3 months. It is clear to me that this type of work is the type of work contemplated by the Union's rule which demonstrates a member's ability to perform the job of elevator mechanic. Also I am satisfied and find that such a rule was promulgated for the purpose asserted by Respon- dent Local and that it is a reasonable and necessary rule to provide equitable opportunities for any and all members who are or become aged and/or disabled. At the hearing the General Counsel introduced certain evidence attempting to show that even if the rule was a proper one it had been discriminatorily applied in the case of Grieco; that several other members who worked during the strike in the construction industry had been referred to operating jobs. However in each case the credible evidence reveals the Union had not applied the rule in a disparate manner against Grieco or anyone else; that it had uniformly applied the rule with respect to each member making application for the job of operator. Moreover the credible testimony of record reveals that four to five other operators who, like Grieco, had worked during the strike in the construction trades were likewise denied referrals back to such jobs. Furthermore Grieco was offered referrals to the job of elevator mechanic at the time he was seeking the job of operator. He at first declined such offers but within a few weeks accepted the Union's referral to Otis Elevator Company as a mechanic sometime in March 1973 where he was still employed at the time of the hearing. As I have found the Union's rule in question to have been promulgated for reasonable business purposes; that it has not been utilized in a disparate or unlawful manner as to Grieco or any other member, I find there has been no ELEVATOR CONSTRUCTORS UNION LOCAL NO. 1 499 violation of the Act as alleged in the complaint. According- ly, I recommend the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Tishman Realty and Construction Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Elevator Constructors Union Local No. 1 is a labor organization within the meaning of Section 2(5) of the Act. 3. The complaint allegations that Respondent Local 1 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. violated Section 8(b)(1)(A) and (2) of the Act have not been sustained by a preponderance of credible evidence. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following recommended: t ORDER It is hereby ordered that the complaint herein be dismissed in its entirety. 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.