Local 15, Operating Engineers

LOCAL 15, OPERATING ENGINEERS Local 15, International Union of Operating Engineers (Akron Wrecking Corp.) and Thomas M. Hebb. Case 2-CB-6391 August 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On April 7, 1977, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 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 brief and has decided to affirm the rulings, findings,1 and conclusions 2 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. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established 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 (C.A. 3. 1951). we have carefully examined the record and find no basis for reversing his findings. 2 We disavow the Administrative Law Judge's reliance on Hotel, Motel & Club Employvees Union Local 6, Hotel & Restaurant Employees & Bartenders International Union. A FL-CIO (Domac Corporation, d/b/a Hotel Commo- dore). 164 NLRB 491 (1967). The facts of the instant case are materially different from those of the cited case, and therefore that case has no bearing on the conclusion we reach here. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: This case was heard before me on January 26, 1977, at New York, New York. The charge was filed by Thomas M. Hebb (hereinafter Hebb) on September 9, 1976,1 and the complaint was issued on November 16. The principal issues are whether Local 15, International Union of Operating Engineers (hereinafter Union), the Respondent, through its alleged agent Robert Pittlack (hereinafter Pittlack): (a) violated Section 8(b)(2) and (I)(A) of the I All dates are in 1976 unless otherwise stated. National Labor Relations Act, as amended (hereinafter the Act), by unlawfully causing or attempting to cause Hebb's termination from employment at Akron Wrecking Corp. (hereinafter Akron), on September 3; (b) unlawfully restrained and coerced employees in violation of Section 8(b)(IXA) of the Act by threatening Leo Gach (hereinafter Gach), Akron's vice president, with "trouble"; (c) violated Section 8(bXIXl)(A) on September 3 by Union President and Business Manager Thomas P. Maguire, Jr. (hereinafter Maguire), allegedly telling Hebb large numbers of union members would appear on Akron's jobsite to intimidate and harass Hebb if he kept working; and (d) discriminated against Hebb when, on September 27, Maguire allegedly told Gach that Hebb would not be permitted to work for Akron. All parties were afforded full opportunity to participate in the proceeding. The counsel for the General Counsel of the National Labor Relations Board (hereinafter the Board)2 and counsel for the Union filed briefs which have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Akron, a New York corporation, at all times material maintained its principal place of business at the Foot of Jersey Avenue, Jersey City, New Jersey, and other places of business at construction sites in various States of the United States, including a jobsite at East 16th Street and Avenue C in New York, New York (hereinafter the 16th Street site). At all times material herein, Akron has been engaged in the building and construction industry as a demolition contractor and has annually performed services exceeding $1 million for various enterprises located in States other than New Jersey. In addition, Akron performed services exceeding $1 million in value annually outside the State of New Jersey. Akron, in the course and conduct of its business, transported and caused to be transported and delivered to the 16th Street site building materials and other goods and materials valued in excess of $50,000 during 1976, which were transported to that site in interstate commerce directly from points outside the State of New Jersey. The parties agreed, and I find, that Akron is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED - THE RESPONDENT The Union admits, and I find, that Local 15, Internation- al Union of Operating Engineers, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 2 The document actually submitted was a letter memorandum "in lieu of a formal brief." 231 NLRB No. 113 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union represents a variety of employees within certain job classifications enumerated in a collective- bargaining agreement between it and the General Contrac- tors Association of New York, Inc., to which Akron was bound at all times material herein. That agreement, together with a supplement, contains a provision making the Union one, but not the sole, source of referral of applicants for employment.3 At the time of the alleged unlawful activity herein, Hebb was employed by Akron as a payloader operator, a job obtained directly from Akron without the assistance of, or referral from, the Union. His job classification was among those covered by the collective-bargaining agreements. Hebb was not a member of the Union, although it is clear (as will be developed below) that he made several efforts to acquire membership. Membership procedures were stipulated at the hearing to require no application form to be completed until it became certain that the applicant would be granted membership. Thus, although Hebb was working at the 16th Street site on September 3, he had not filled out a membership application. Indeed, Hebb had worked for Akron on other occasions in the past, and for another employer, Lehigh Salvage in 1972, without having physical- ly completed such a form. He had worked on the earlier jobs by having received an oral permit to do so from either Maguire or Maguire's predecessor, Thomas P. Maguire, Sr., his father. Hebb testified, without contradiction, that his efforts to become a union member dated at least back to 1972 when he then told Maguire, Senior, he desired to join the Union. Although Maguire, Senior, granted the oral work permit for the earlier jobs, no membership was approved. According to Hebb, Maguire, Senior, told him that he would "see" about getting Hebb membership in the future. Hebb testified that he sought membership several times. Specifically, he recounted one such discussion with Maguire, Senior, on an unspecified date in the union offices, another discussion during late August 1974 with both Maguires, and a third in August 1975 with Maguire. According to Hebb, each conversation was substantially like each other, the responses to his requests for member- ship being met with the observation that he had been receiving union benefits, was permitted to continue working under the oral permit system, and his "book" signifying full union membership would be the subject of future consideration. During the 1975 discussion, Hebb testified that Maguire added that the work in the trade was slow and when work increased, he would consider Hebb's membership request once again. Throughout the entire work history discussed above, Hebb paid no union dues, was not subject to the checkoff :' It was stipulated that the nonexclusive hiring provisions were in effect at the time of the hearing, but no such stipulation was possible covering the time period during which the alleged unlawful conduct occurred. Testimony of the various witnesses, however, revealed that the parties then functioned pursuant to a similar, if not identical, nonexclusive hinng practice. Neither the propriety of the so-called challenge procedure, nor its operation, is claimed to constitute a violation of the Act. provisions of the collective-bargaining agreements, while his various employers contributed on his behalf to the Union's apprenticeship, pension and welfare funds, and vacation stamp fund. Hebb received medical and dental benefits, together with all other emoluments of the contracts. Although the Union was not the exclusive source of job referrals, a system existed informally by which the union members could police the activities of the employers bound by the agreements. The system was called a challenge procedure whereby unemployed members of the Union visited jobsites where the employers were at work and challenged the right of certain employees to perform bargaining unit work. 4 If an unemployed union member believed he possessed a superior right to a job, the matter was pursued by filing an informal complaint with the Union's business managers. B. The Events of September 3 The various incidents alleged as violations of the Act have their origin in Pittlack's efforts to exercise the challenge procedure. He testified, without contradiction, that he had visited the 16th Street site on September 1,5 saw Hebb working there and asked him whether he had a "book." When Hebb responded he had no book, Pittlack inquired of him whether Maguire knew Hebb was on the job. Hebb said that Maguire knew of Hebb's presence, and Pittlack told Hebb he would verify that fact at a regular meeting of the Union scheduled for September 2. On September 2, Pittlack informed Maguire of his conversation with Hebb the previous day, but Maguire told Pittlack he had not given Hebb permission to work at the 16th Street site. Maguire corroborated Pittlack's version of the September 2 conversation between them, and both of them credibly testified that Maguire asked Pittlack to tell Hebb to phone Maguire so Maguire could deny Hebb's statement to Pittlack that Maguire was aware of Hebb working at the 16th Street site. Pittlack returned to the 16th Street site at approximately 7:30 a.m. on September 3 and spoke to Hebb. 6 According to Hebb, Pittlack told him to stop working, to call Maguire, and told him "You can't work here." Pittlack acknowl- edged only that he asked Hebb to call Maguire, but denied specifically that he directed Hebb to cease his work or saying anything to the effect that Hebb could not work at that site. In any event, it is undisputed that Hebb immediately shut down his machine and phoned Maguire. According to Hebb, he asked Maguire why he couldn't work there and Maguire allegedly asked him why Hebb had not sought clearance. Maguire, on the other hand, testified he had simply wanted Hebb to call to enable Maguire to refute Hebb's September 1 remark to Pittlack that Maguire was aware Hebb was at work at the 16th Street site.7 The substance of the remainder of this phone 5 Hebb began working there on or about August 26. 6 Hebb agreed Pittlack's conversation with him occurred at this time of day. ? I credit Maguire's version of what was said during the initial phase of the phone call because Hebb acknowledged he had advised union officials 564 LOCAL 15, OPERATING ENGINEERS conversation between Hebb and Maguire is likewise disputed, Hebb asserting he reminded Maguire of an alleged agreement whereby Hebb could work, whereas Maguire denied the existence of such an agreement. It is undisputed, however, that the conversation turned to the subject of Hebb's membership in the Union and that Maguire said Hebb could not be admitted to full member- ship status at that time because of the large number of members then unemployed. According to Hebb, Maguire also told him that he couldn't work on the job. Maguire specifically denied making this remark.8 The conversation ended by Hebb telling Maguire he would go to the union hall to pursue this discussion. Hebb then informed Gach he was going to the union hall and accepted Pittlack's offer to drive him there. Hebb and Pittlack arrived at the union hall at approximately 9:20 a.m. As the two men left the 16th Street site, Gach told Hebb he'd have to hire a replacement.9 Even Hebb agreed that Gach so advised him before he actually left the jobsite to drive to the union hall. Upon arrival, Pittlack was asked to wait in a room other than that in which Hebb spoke with Maguire. Also present during the conversation were Union Business Representa- tives Murphy, Geraghty, and Guma, each of whom (except Guma) testified at the hearing. All parties to the conversa- tion agree that Hebb reiterated his former requests to be accorded full union membership, and Maguire admitted he denied Hebb's request. According to Maguire, he told Hebb the denial was based on excessive unemployment among the Union's membership.'0 Although Hebb recalled Maguire's statement, Hebb claimed that, in addition, Maguire threatened him with having "400 unemployed men come down and look at (Hebb)," and that Hebb could not work on Akron's job " while, on the contrary, Maguire testified he told Hebb he couldn't prevent him from working nor would he try to do so. The conversation in the union hall was interrupted by a phone call to Maguire from Pignitelli, a then unemployed union member, who told when he successfull) obtained employment in the past, but had not done so when he started working at the 16th Street site because he had previously worked for Akron and believed his earlier notification of employment with that employer constituted similar notice on the 16th Street site. Thus, Maguire's testimony is reflective of past practice. X Where there are variations in the testimony between the General Counsel's and Respondent's witnesses, I conclude the versions offered on behalf of the Respondent are the most reliable. Where more than one witness presented by Respondent testified as to particular subject matter and incidents, all versions were consistent: whereas, the two witnesses, Hebb and Gach, on behalf of the General Counsel were sometimes vague and confusing. For example, Hebb testified that immediately after his phone conversation with Maguire. Hebb told Gach that the "Union did not want me working there." Gach testified only that Hebb, at that time, said he couldn't "go back on the machine," without referring to the Union, and also that that comment was made by Hebb hours later than ascribed by Hebb and after Hebb's visit to the union hall. See also fn. 13, infra. 9 Apparently this was necessary because Akron's work crew on the 16th Street site relied on Hebb's payloader operation for sufficient work to keep them busy. The record reveals that Gach did call Joseph Pignitelli (hereinafter Pignitelli) to come to work, and that the call was made dunng Hebb's travel to, or visit at, the union hall. i' Maguire also alluded to pending litigation in which the Union was involved concerning minority groups as an additional reason for declining to grant membership to Hebb at that time. i" For the reasons discussed in fn. 8. supra, and because of other discrepancies in Hebb's narration as revealed by all the other witnesses, including Gach, and discussed infra, I do not credit Hebb's account of this Maguire he had been called by Gach to work at the 16th Street site. That call was made so that Maguire could delete Pignitelli's name from the Union's unemployed list. Maguire then informed Hebb that Pignitelli had been called by Gach to replace Hebb.'2 There is no evidence that Hebb responded to this, and the conversation ended by Hebb advising Maguire that he intended to attend school in January 1977 to obtain technical training to become a mechanic and a better qualified union member and asked whether Maguire would reconsider Hebb's membership request in that light. Maguire, however, remained steadfast. Hebb and Pittlack returned, in Pittlack's automobile, to the 16th Street site, reaching there approximately at noon. He, Gach, and Pittlack had a brief conversation. Hebb informed Gach that the Union would not permit him to work. A heated discussion ensued between Gach and Pittlack during which Pittlack is supposed to have said that if Hebb worked the Union would pull the other machines off the job.'3 Gach and Pittlack agreed in their testimony that the character of their conversation was less than friendly. That conversation ended with Hebb indicating he would consult the Board to determine his rights. C. The Allegation of Discrimination on September 27 Not having worked since September 3, Hebb returned to the 16th Street site on September 27 where he spoke to Gach and told him a Board agent suggested to Hebb he make an effort to return to work at that job. Thereupon, Hebb requested Gach to reemploy him. Gach made a telephone call during which Hebb heard Gach tell whomever he called that Hebb was present at the 16th Street site and requested to be put to work. According to Hebb, Gach asked if it was "all right," received a response, terminated the call and announced to Hebb that "Mr. Maguire said that nothing is changed and you can't go conversation, except where the testimony of other witnesses is identical to his own, 12 Hebb asserted that Maguire told him that Maguire would try to obtain Pignitelli to replace him. Apparently, this remark forms the basis for the General Counsel's claim that the Union was attempting to discriminate in favor of its members to the exclusion of nonmembers. In view of Gach's vivid recollection (admitted by Hebb on cross-/and redirect-examination) that he told Hebb of the necessity to obtain another operator before Hebb's conversation with Maguire in the union hall; Gach's testimony that he called Pignitelli while Hebb was away from the jobsite:; and Pignitelli's confirmation of this account, Maguire's version is credited over Hebb's. 13 Hebb's testimony relating this incident is too vague to be reliable. The transcript reveals the following: "Hebb: Then he (Pittlack) said if I did work that- Q. (By Counsel for General Counsel) Who said that? A. Robert Pittlack was saying to Leo (Gach) - and more or less myself, that if I did work, that's - that they'd pull the other machines off the job, the Union would pull the other machines off the job. That was the message he more or less relayed .... " [Emphasis supplied.] When Gach narrated this conversation he testified Pittlack said "something along the line there would be a problem if Hebb got back on the machine." No questions were asked of Gach to elicit a more precise account of Pittlack's alleged threat. In view of the foregoing, coupled with Pittlack's unequivocal denial of uttering the threat, I find that Pittlack did not use the words attributed to him by Hebb. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back to work." Gach testified on direct examination by counsel for the General Counsel that he asked for Maguire and what was said to him "was things have not changed, and that was it." Gach did not specifically relate whether the person to whom he spoke referred to Hebb's ability to return to work. On cross-examination, Gach testified he was unable to recognize Maguire's voice over the telephone and admitted he was not sure he spoke to Maguire on September 27. Maguire denied having this alleged phone conversation with Gach and no effort was made to cross- examine Maguire on this point. In view of Gach's failure to positively identify Maguire as the person to whom he spoke 14 and his failure to fully corroborate Hebb on the contents of the conversation, I conclude the evidence does not sustain the factual assertion of this aspect of the complaint. The record reveals that Hebb again visited the 16th Street site at the end of November, at which time Gach returned him to work where he remained, without interfer- ence of any type until he voluntarily terminated his employment with Akron in January 1977 to attend school. Analysis and Conclusions The foregoing credited facts are relatively clear and require no extensive analysis nor resort to legal principles for resolution. As will be more fully discussed below, even if, as contended by the General Counsel, Pittlack was an agent of the Union,'5 I would find no violations as alleged. That Hebb's September 3 termination from Akron was not discriminatory is abundantly clear. I conclude it was self-imposed, perhaps motivated by Hebb's desire to avoid challenges to his work by acquisition of full union membership. Hebb himself conceded he left the jobsite after receiving no satisfaction from Maguire during the phone conversation he made after Pittlack asked him to call Maguire. The record is totally devoid of evidence of direct communication between any officials of the Union and Akron prior to, and including, September 3. Even Gach did not provide such a link. Gach's replacement of Hebb was solely his decision based on his judgment of production requirements and was stimulated not by the Union, but rather what I have concluded to be Hebb's voluntary absence from the job. Even if Hebb were credited in his assertion that Pittlack told him to stop working and that he could not work at the Akron job, there is no evidence that those comments were communicated to Gach or another Akron representative before Gach decided to replace Hebb.' 6 Accordingly, I conclude Hebb's termination was neither caused, nor sought, by the Union. 14 I note Gach was certain he spoke to someone at the union hall on September 27. This fact alone, however, cannot serve to impute responsibili- ty for the alleged unlawful conduct to the Union. '5 This position is vitiated by the record, it being undisputed that Pittlack never had been an officer, employee, or other designated representative of the Union. The General Counsel s agency theory is predicated on what is described as the "contemporaneous adoption" by the Union of Pittlack's alleged unlawful conduct. As stated hereinabove, however, the facts fail to reveal activity by Maguire or anyone else who could bind the Union from which it may be said that Pittlack's comments, had they been made, were later ratified, approved, adopted, or condoned. Indeed, the record is replete with evidence to the contrary and no recapitulation of those factual descriptions is necessary. Inasmuch as I have found that the facts do not support the General Counsel's contentions that either Pittlack or Maguire made the threatening comments alleged to have occurred on September 3, I conclude that the General Counsel has not sustained his burden of proof as to those aspects of the complaint. Further, in view of the paucity of evidence of union responsibility for the remarks allegedly made on September 27, I conclude the evidence fails to establish any unlawful conduct on that date. Assuming, arguendo, that I were to find that the alleged coercive remarks in fact had been made by Pittlack, dismissal is nonetheless warranted. The record fails to establish him as an agent of the Union or the General Counsel's theory of comtemporaneous adoption is viable. While it is true that this theory has been utilized to hold labor organizations responsible for acts of rank-and-file members, those situations are distinguishable from the present case. Thus, in General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Eazor Express, Incorporated), 208 NLRB 666, 670-671 (1974), cited by the General Counsel, what was in issue was previously unauthorized conduct of the union president whose general agency was admitted. The Respondent herein expressly has denied the existence of this relation- ship between it and Pittlack. Similarly, in Union Nacional de Trabajadores (Jacobs Constructors Company of Puerto Rico), 219 NLRB 405, 409-410 (1975) (also relied on by the General Counsel), there was evidence that the alleged agent had previously acted as a conduit for relaying union instructions and that he had acted as principal spokesman for the union. Moreover, the record in that case contained evidence that the alleged agent expressly had been advised by the union hierarchy that he spoke for the union whenever he spoke on behalf of the employees, and he had informed management officials that he was a union agent. The evidence before me falls far short of containing such indicia of authority, and I therefore deem the above two cases inapposite. Of course, in other situations, activities of rank-and-file members have been held to bind their unions, such as where actual statements of adoption have been made 7 or where members engage in picket line misconduct on a picket line established by the union.18 Indeed, actions of nonmembers of unions have been held to form the basis for finding a violation of the Act.19 The rationale of these cases is founded on the premise that the alleged unlawful conduct was perpetrated within the broad scope of authority either granted in advance of the activity or subsequently ratified by some overt act. Neither of these ingredients is present herein. The instant case is most like 16 See fn. 9, supra. Additionally. Gach recalled only that any conversa- tion he had with Pittlack before the visit to the union hall was limited to the subject matter of Pittlack seeking entrance to the jobsite. " Local 379, Building Material & Excavators (Catalano Bros., Inc.,), 175 NLRB 459, 460, fn. 9 (1969). i1 Teamsters Local 536 (Connecticut Foundry Company), 165 NLRB 916, 919 (1967). '9 Hobco Mfg. Co., an Operating Division of Genesco, 164 NLRB 862 (1%967), where union responsibility was based on its sponsorship of meetings during which the third parties uttered objectionable remarks. 566 LOCAL 15, OPERATING ENGINEERS Hotel, Motel & Club Employees Union Local 6 (Hotel Commodore),2o where no violation was found because of subsequent disavowals of the alleged unlawful conduct. The burden rests with the General Counsel to prove both the existence of an agency relationship and the extent of the agent's authority. In the present case, there is no direct evidence that Pittlack was an agent of the Union. Such inferences as are reasonable may be drawn to sustain the General Counsel's burden of proof where there is no evidence to rebut them. 21 I find the instant record contains considerable credible evidence which effectively negates the General Counsel's assertions and prevents a conclusion of agency based on inference. Upon the basis of the foregoing findings of fact, analysis and conclusions, and upon the entire record in this case, I make the following: 20 164 NLRB491 (1967). 21 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 377 (All-American Stamp and Premium Corporation of New York), 159 NLRB 1313(1966). 22 In the event no exceptions are filed as provided by Sec. 102.46 of the CONCLUSIONS OF LAW 1. Akron Wrecking Corp. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has not engaged in any of the unfair labor practices alleged in the complaint. Accordingly, I hereby issue the following recommended: ORDER 22 The complaint is dismissed in its entirety. Board's Rules and Regulations, 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. 567