International Union of Operating Engineers, Local 18

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18 147 International Union of Operating Engineers, Local 18, AFL-CIO (Ohio Contractors Association) and Wil- liam F. Murphy. Case 8-CB-1896 September 8, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 28, 1975, Administrative Law Judge Rob- ert E. Mullin issued the attached Supplemental Deci- sion in this proceeding.' Thereafter, the Respondent filed exceptions and a supporting brief and the Charging Party filed cross-exceptions and a support- ing brief. Both parties also filed answering briefs. 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, and conclusions of the Administrative Law Judge. ORDER been prejudiced by this ruling. However, the U.S. Court of Appeals for the Sixth Circuit disagreed 2 and held that the Board's conclusion on this issue appeared inconsistent with an • earlier Board decision in Philadelphia Typographical Union No. 2 (Triangle Publications), 189 NLRB 829 (1971). Accordingly, the court remanded the case for a further hearing "under the standards of the Philadelphia Typo- graphical Union case..... On August 23, 1974, the Board directed that a further hearing be held before an Adminis- trative Law Judge at which the parties would be accorded an opportunity to produce all evidence relevant to the issue presented by the court's remand. On February 20, 1975, and pursuant to the Board's order of remand, a hearing was held for the above-described pur- pose. At that time all parties in the original proceeding appeared with counsel and approximately 200 pages of tes- timony were taken. At the conclusion of this hearing the parties waived oral argument. On March 31, 1975, all par- ties submitted briefs.3 Upon the entire record in the case including the briefs of counsel, and from his observation of the witnesses, I make the following: FINDINGS OF FACT At the reopened hearing the Respondent Union present- ed testimony as to the conduct of the Charging Party, Wil- liam F. Murphy, at the Union's referral office and at the Union's election. The testimony as to Murphy's allegedly disruptive conduct at the union hall will be considered first. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board reaffirms its previous Order and here- by orders that Respondent, International Union of Operating Engineers, Local 18, AFL-CIO, Cleve- land, Ohio, its officers, agents, and representatives, shall take the action set forth therein. i On June 29, 1973, the Board issued the underlying decision in this case, 204 NLRB 681. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: The Board decision in this matter, issued on June 29, 1973,' held that the Respondent violated Section 8(b)(2) and (1)(A) by unlawfully diminishing the job-referral seniority of William F. Murphy, a member of the Respondent Union. At the original hearing the Respondent sought, but was denied, the opportunity to establish that its purpose in denying Murphy his normal seniority on the referral list was not unlawful because he had engaged in offensive con- duct disruptive of an internal union election. In its original decision the Board held, inter alia, that the Union had not '204 NLRB 681. A. Findings as to Murphy's Conduct at the Hiring Hall At the time in question the Respondent's referral office was located on the second floor of the union hall. It was a large room that was separated by a partition which extend- ed from the floor to about 3 feet from the ceiling. The clerical staff that was responsible for the operation of the referral service was on one side of the partition and the union members gathered on the other side where chairs were located and where they awaited their turn in soliciting employment assistance . At one section of the partition there was a window and counter to which the members reported for any union business they wished to transact. 2496 F 2d 1308, decided, May 31, 1974. 3 The Charging Party's brief was filed with a number of appendices at- tached . These appendices , labeled as indicated , purported to be the bylaws of Local 18 (App A); the constitution of the international Union of Operat- ing Engineers (App B); an Ohio State Building Construction Agreement (App. C), a partial transcript of the union trial of Murphy (App. D); a portion of the decision of the Administrative Law Judge in International Union of Operating Engineers, Local 18, AFL-CIO (C F Braun Company), Case 8-CB-1816 (App E), and the Charging Party's petition for injunctive relief, apparently filed recently in the U.S District Court of Northern Ohio (App. F). None of these documents were introduced in evidence at the hearing in this case. On April 7, 1975, the Respondent Union filed a motion to strike the Charging Party's brief on the ground that it contains matters and docu- ments that were not offered during the hearing and which are not part of the record On April 16, 1975, counsel for the Charging Party filed an extensive memorandum in response to the aforesaid motion. Upon consideration of all of the foregoing, the motion of the Respondent is granted as to all of the above-described appendices except Appendix E 220 NLRB No. 29 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Until the early part of 1971 this window had a large, unre- stricted opening. Thereafter, for reasons which will appear below, an iron grille was placed across it. Next to the win- dow there was a door which enabled office personnel to enter the office area. The bottom of this door had glass louvres. Shirley Hacker, the principal dispatcher, was assisted by Betty Finley, the assistant dispatcher, and employee Pame- la Coates, in maintaining the referral list for the hiring hall, taking employment requests from contractors and securing men to fill such jobs. Hacker had been the dispatcher since 1969 and Finley the assistant dispatcher since 1968. Both Hacker and Finley testified at length as to Murphy's be- havior in his contacts with the referral office during the period from 1970 to 1972. From this testimony it is evident that whenever Murphy visited this office and was not im- mediately referred to a job, he thereafter made many more visits that same day and in succeeding weeks. At the same time, and during this period, he made dozens of calls to Mrs. Hacker, Mrs. Finley, or anyone else in the office who would answer the telephone. Hacker testified that on many occasions, after Murphy appeared at the window and was told no job was to be had, he went immediately to a pay telephone on the first floor of the building and from there called to ask whether, during the ensuing minutes, a job had become available. She testi- fied that whenever she reported that she was still unable to refer him to a job he would become abusive and curse her. On one such occasion when he called her a "God damned bitch" she hung up on him. Almost at once, Murphy ap- peared in the waiting room and shouted at her through the window "Do you make it a practice to hang up on mem- bers?" According to Hacker, when Murphy came to the referral office and found that the Union had no job opening for him he would deride her and the other office personnel with abuse and profanity. When any of the business agents were present in the office he criticized them for not being at work in the field and when no one was present he would rail at the system and complain that no business agent was available to hear his demands. Hacker testified that in 1970 Murphy often stood at the window and, by reaching over the counter, secured some of their records which he insisted on perusing. According to Hacker, in order to prevent Murphy from continuing this practice, in 1971 an iron grille was installed at the window. Hacker testified that thereafter Murphy often came to the office and stood at the window, where he would remain, silently staring at the girls working in the office, sometimes for as much as 20 minutes. At other times he would place a chair against the partition and then stand on it, peering over the wall at the office personnel without speaking, for 10 to 20 minutes at a time. On other occasions he subjected them to the same type of treatment by laying on his stom- ach in front of the door to their work area from which vantage point he gazed up at them through the louvre openings. Mrs. Finley corroborated Hacker's testimony as to these incidents and testified that she found it nerve- wracking and upsetting to look up from her work and dis- cover that Murphy was staring at her from over the parti- tion or peering at her through the louvres at the bottom of administrative purposes is divided into six districts the door. Both Hacker and Finley testified that they fre- quently complained about Murphy's practices to Business Agent Frank Roviscane who admonished the member about this conduct, but that Murphy persisted in this type of behavior until the time of his suspension. Hacker testified that several times when she was explain- ing the referral system to a nonmember, Murphy appeared at the window. According to Hacker, when this occurred, Murphy would interrupt her conversation, make disparag- ing remarks about the manner in which Local 18 operated the referral system, tell the nonmember that there was no use registering, and declare that the referral list might as well be posted in the men's washroom next to the toilet paper. Murphy conceded that during the period in question he came to the referral office several times a week, that he occasionally stood on a chair to look over the partition at the girls in the office, and that after leaving he sometimes telephoned the girls at the hiring hall as often as 12 times a day. He further acknowledged that if the switchboard op- erator put him on hold while he was making a call from the pay telephone on the first floor of the building, he immedi- ately went back upstairs to the referral office. Murphy de- nied that he ever cursed the office workers, that he ever lay on his stomach and peered at the girls through the louvres on the office door, or that he ever stood at the counter window and stared for extended periods of time at Hacker, Finley, and the others at work there. Murphy's denials, however, were not credible. Hacker and Finley were com- pletely frank and forthright in their testimony as to the antics in which Murphy engaged over a long period of time. Their testimony carried a persuasive ring of convic- tion and was entirely convincing. In view of this conclu- sion, I find that insofar as Murphy's testimony differs from their account, the testimony of Hacker and Finley is the more accurate as to what occurred at the Union's hiring hall during Murphy's visitations and his telephone calls. Finally, it should be noted, that both Hacker and Finley acknowledged that, notwithstanding Murphy's harassment, they were able to carry on their work at the hiring hall and to do all that was necessary to keep the referral office func- tioning. This accomplishment, under the circumstances found above, was, indeed, a tribute to their perserverance. B. Findings as to Murphy's Conduct During the Union Election On February 12, 1972, Local 18 held an election for del- egates to the forthcoming 1972 convention of the Interna- tional Union of Operating Engineers. Murphy was a candi- date for delegate from District No. I of Local 18.4 Some months before the date fixed for the election, the Union appointed an election committee of 12 members, the chairman of which was Stanley Blair. This committee was generally responsible for providing all eligible mem- bers an opportunity to vote in the election. Shortly after its formation the election committee retained the Honest Bal- lot Association (herein HBA) to oversee the preparation, Local 18 has jurisdiction throughout the entire State of Ohio and for INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18 149 mailing, and tally of the ballots. The Union spent approximately $10,000 on the conduct of this election among its over 11,000 members. An amount slightly in excess of $5,000 was paid to the HBA for its assistance and an almost identical total was spent on postage and clerical expense connected with the mailing of the ballots. George J. Abrams, executive director of the HBA and the official who was responsible for conducting the election and counting the ballots, testified at length as to the procedures which were used to insure that the elec- tion was both fair and impartial. Thus, Abrams testified that several weeks before Febru- ary 12, he secured the Union's mailing list, met with its election committee, prepared the ballots, and mailed them out to the eligible members. Thereafter Abrams arranged for personnel at the HBA office in Cleveland to aid in counting the ballots on election day. According to Abrams, the most important document in the conduct of a secret ballot election is what he termed a "control list," the use of which is designed to forestall fraudulent voting and the use of counterfeit ballots. The control list for the Local 18 elec- tion was prepared by Abrams from the Union's records and contained the names and addresses of each member along with the control number assigned to that member by the HBA. This latter number was also placed on the outer envelope which the member used in mailing his marked ballot, and on which the member was required to place his signature. The staff of the HBA retained custody of the control list at all times and neither the union officials nor the candidates were allowed access to it. On the day of the election, after Abrams and his assis- tants secured the ballots that had been mailed by the mem- bers to a special box at the post office, the NBA staff checked the outer envelopes against the control list to make certain that the number on each envelope corre- sponded with the number assigned to that particular mem- ber. Thereafter the outer envelope, bearing the member's signature, was removed and the inner envelope containing the ballot was opened. According to Abrams, however, this was not done until all of the outer envelopes, bearing the respective control numbers, were removed so as to main- tain complete secrecy of the ballots.5 Abrams testified that after the above-described steps had been accomplished and before the actual tally of the ballots was begun, the control list was placed on a separate table in the front of the room. This was in an area which Stanley Blair, chairman of the election committee, announced to all present in the room would be off limits to everyone except Abrams and a mem- ber of his staff. The incident in question occurred about 3 p.m. on the afternoon of the election and when the tally of the ballots was about half completed. Present in the room were abrams and his assistants, Blair, and his election commit- tee, and several of the candidates along with their observ- ers. Murphy was in the latter group. According to Murphy, he had been there throughout the day and had become increasingly irritated because on the preceding day the election committee had allowed him 5 Before this step was reached the challenged ballots were segregated in the presence of the candidates and the election committee. only 3 to 4 hours to examine the election list for the pur- pose of deciding on challenges. Since the list contained several thousand names and addresses he considered the time allotted hopelessly inadequate. Murphy testified that about the middle of the afternoon he spoke to Abrams about the matter of challenges and sought to examine the voting list, but that when he did so, the shouts and threats that arose caused him to run for his life. According to Mur- phy, he was pursued out of the union hall and finally ap- prehended in another building about a block from the elec- tion site. He testified that he did not realize until he reached the other building that he had the control list on his person. Murphy's version of what occurred was in conflict with that of Abrams. According to the latter, Murphy was not engaged in any discussion with him about challenges or anything else. Instead, according to Abrams, as he and his staff were busy with the tabulation and about 3 p.m. he noticed Murphy step up to the table in the restricted area, take the control list, and make off with it. Abrams testified that he immediately called out to Blair, chairman of the election committee, "Mr. Murphy is running off with the list." Thereupon, Abrams, Blair, and several others began the pursuit of Murphy. One of the latter was Robert Bowes, a 61-year-old business agent present at the election scene as an observer. During the first minute of the chase, when Bowes was about to overtake Murphy, the latter turned and kicked him, knocking Bowes to the floor and breaking his glasses 6 About 300 feet from the union hall and in an obvious attempt to evade his pursuers, Murphy entered the Hatton House Restaurant where he ran up to the second floor. On finding himself at a deadend and with Abrams and the union officials in hot pursuit, Murphy rid himself of the control list by sliding it under a locked door at the head of the stairs where he found himself at bay. The police were summoned and Murphy was placed un- der arrest 7 At the hearing, Murphy conceded that he did not tell anyone, including Abrams, as to what he had done with the control list. The latter was recovered after the lapse of about 30 minutes when police, who were called to the scene, managed to open the door behind which Mur- phy had concealed the election control sheets. Abrams and the union officials then returned to the union hall and the tally of the ballots was completed without further incident. Abrams testified that Murphy's actions would not have prevented him from certifying the results of the election, that there were no challenges as a consequence of this in- terruption, and that the HBA did not bill the Union for any additional charges because the tally procedure was temporarily disrupted. Blair testified that as Murphy left the union hall, he heard someone shout, "Stop him, stop him, the son-of-a- bitch has got the list," and that, later, when on the street and while running towards Hatton's Restaurant he heard someone else say "Kill the son-of-a-bitch." Murphy testi- fied that he heard such shouts when examining the control list in the room where the ballots were being counted, and 6 Murphy, many years younger than Bowes, is 6 feet 4 inches in height At the hearing, Murphy conceded that Bowes is about 6 inches shorter than he r Criminal charges that were filed against Murphy were eventually dis- missed. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that because of the fear engendered by these threats and his past experience in the Union 8 he impulsively fled from the room. As to the events on the afternoon in question, Murphy was not a convincing or plausible witness. Whereas he tes- tified that it was during a conversation with Abrams about a challenge that he heard the threatening shouts which caused him to fear for his life and made him flee from the room, on the basis of Abrams' testimony which was com- pletely credible, I conclude that Murphy was engaged in no discussion with the HBA official at the time. It is also found that the various threats, about which Murphy testi- fied, and which Blair described, were not voiced until Mur- phy had fled from the union building and was headed to- ward the restaurant down the street, where, when he was about to be apprehended, he sought to dispose of the con- trol list. Abrams testified that the availability of the control list was critical both in maintaining the integrity of the election procedure by preventing fraudulent balloting, and for pos- sible use by the U.S. Department of Labor in any subse- quent investigation of the election under the Labor Man- agement and Disclosure Act. Murphy's action on the afternoon of February 12 may have been impulsive and unreasoned at the outset, but his subsequent conduct in attempting to dispose of the list when he was about to be apprehended was an act of sabotage as far as the union election was concerned. Nevertheless, as found earlier, the tally of the ballots was completed that afternoon at no additional expense to the Union and there were, in fact, no challenges to the conduct of the election. In the original hearing before Administrative Law Judge Gordon J. Myatt, it was found that Murphy's conduct dur- ing the election caused him to be brought up on charges before the members, who, after a hearing, voted to suspend him from membership in Local 18 for 2 years and fined him $500. Murphy paid the fine and appealed the action of the Local to the International Union.' In May 1972, and after his suspension from membership, Murphy sought to register his old referral card at the hiring hall so that he could secure employment. There he was told by Hacker that he would have to fill out a new card as a nonmember and that this card would be placed at the bottom of the classification to which he was normally assigned by virtue of his experience. This action, of course, had the effect of wiping out all the seniority he had accumulated for job- 8 Murphy testified that in 1970 he was beaten by Kenneth Delaney and James Grothaus, two members of the Union's executive board, and that in a civil suit against them he won a $500 Judgment In a Board action arising on the same set of facts, however, he did not fare so well . After a charge which he filed resulted in a complaint and hearing, the Administrative Law Judge dismissed the complaint. International Union of Operating Engineers, Local 18, AFL-CIO, Case 8-CB-1564, issued on July 16, 1971. In another action in 1973, Murphy charged Raymond Jamschell, a union agent, with assault and battery as a consequence of a beating he endured at Columbus, Ohio. According to Murphy, Jamschell was found guilty of assault and battery and paid a fine . Later, Murphy filed a civil suit against Jamschell and, from his testimony , was awarded a $600 Judgment . The Union offered no testimony to deny or contradict Murphy's account of his earlier experi- ences as described above. s The record is silent as to what disposition was ever made of this appeal by the International Union. referral purposes. The Union adhered to this position until about August 14, 1972, when Murphy's old card was re- turned to its proper order of rotation. C. Concluding Findings The Union urges now, as it did at the original hearing, that Murphy's conduct, including the theft of the control list and his offensive behavior at the hiring hall gave the Respondent Union the right to deny him the use of its referral service. Philadelphia Typographical Union No. 2 (Triangle Publications), 189 NLRB 829 (1971). In that case a union expelled one Kelley from membership after Kelley, as treasurer of the local, was found guilty of having embez- zled over $35,000 from the union treasury. The expulsion order caused Kelley to lose his seniority under a work ar- rangement plan which the Union had with his employer and shortly thereafter he was laid off. In dismissing a com- plaint which alleged that the Union had violated Section 8(b)(2), the Board found that Kelley's expulsion from membership was not the cause of the interference with his employment, and that the removal of his seniority and his ultimate layoff resulted solely because of the embezzle- ment. In so holding the Board stated that "Kelley's actions as treasurer of the Union were so inconsistent with ordi- nary concepts of honesty as to dispel any notion that the Union's interference [with his employement] might be con- strued as having a forseeable consequence of encouraging union membership." (Ibid., 830). The situation in the present case is substantially different from the one cited above, where the peculation of a dishon- est treasurer could well have destroyed the ability of the union to serve its membership. Here, the Charging Party was not a dishonest official of the Union, but only an ec- centric member. Murphy's conduct, distasteful and objec- tionable though it may have been, did not prevent the Union from acting effectively as the bargaining representa- tive for the membership. The tally of the ballots was con- cluded on election day, at no additional expense to the Union, and the dispatchers at the referral office were able to function and carry on their work, even with Murphy present. Consequently, it would appear that this case is distinguishable from Philadelphia Tyopgraphical Union, su- pra. The original decision of the Board in this matter left the Respondent Union free to impose its internal sanctions on Murphy as a union member by levying a fine, suspending his membership, or expelling him from Local 18. Even in the light of Murphy's behavior at the referral office, aber- rant and offensive though it may have been, and his mis- creant reaction on the day of the election, it would appear that any of the foregoing penalties should constitute an adequate disciplinary sentence without resort to the ulti- mate weapon, viz, a substantial diminution of any further employment opportunities. Consequently, on the basis of the record developed at the supplemental hearing, and on the findings set forth above, it is now recommended that upon its reconsideration of this matter the Board reaffirm its original holding that the Respondent violated Section 8(b)(2) and (1)(A) by unlawfully diminishing Murphy's job-referral seniority.