International Association Of Bridge, Structural And Ornamental Iron Workers, Local No 15, Afl-Cio (Gateway Industries, Inc )

IRON WORKERS LOCAL 15 (GATEWAY INDUSTRIES) International Association of Bridge , Structural and Ornamental Iron Workers, Local No 15, AFL- CIO (Gateway Industries, Inc) and David Hen drick Case 39-CB-956 October 17 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 25 1988 Administrative Law Judge David S Davidson issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed a reply brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 1 and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent International Association of Bridge Structural and Ornamental Iron Workers Local No 15 AFL-CIO Hartford Connecticut its offs cers agents and representatives shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(b) (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 369 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT cause or attempt to cause Gate way Industries Inc to refuse to hire or transfer David Hendrick or any other employee unless the employee fails to tender or pay dues or initiation fees uniformly required as a condition of acquiring or maintaining membership in the Union or unless the Union s action is necessary to the effective per formance of its function in representing its constitu ency WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL make David Hendrick whole with in terest for any loss of pay he may have suffered as a result of our discrimination against him WE WILL notify Gateway Industries Inc in writing and furnish a copy of such notification to David Hendrick that we have no objection to his employment in any job assignment INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNA MENTAL IRON WORKERS LOCAL No 15, AFL-CIO Thomas W Meikeljohn Esq for the General Counsel Burton S Rosenberg Esq of New Haven Connecticut for the Respondent DECISION STATEMENT OF THE CASE 1 The Respondent has excepted to some of the ,fudges credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In his decision the judge states that David Hendrick was brought back to the Hartford jobsite around October 1 1986 as raising gang foreman and remained in that capacity for about 6 weeks The record indicates that Hendrick was brought back to the Hartford jobsite on October 30 1986 and remained in that capacity for about 3 weeks DAVID S DAVIDSON Administrative Law Judge This case was tried at Hartford Connecticut on January 11 1988 David Hendrick filed the charge on May 19 1987 and the officer in charge issued the complaint on July 31 unlawfully threatened Hendrick s employer with a work stoppage if it transferred Hendrick to its Hartford jobsite as an employee On the entire record including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and Respondent I make the following 291 NLRB No 61 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION Gateway Industries Inc (Gateway) a Pennsylvania corporation with offices at Mars Pennsylvania is en gaged in the building and construction industry as a steel erection contractor During times material to this com plaint it was engaged at a jobsite in Hartford Connecti cut where in a 12 month period it received goods and materials valued in excess of $50 000 directly from out side Connecticut I find that Gateway is an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent Local 15 is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts At all times material to this case Local 15 has been the exclusive bargaining representative of all Gateway s employees working within Local 15 s trade and junsdic tion at Gateways Hartford jobsite known as the Charter Oak jobsite Michael Coyne has been Local 15 s business representative and an agent of Local 15 The terms and conditions of Gateways employees at the jobsite were governed by a collective bargaining agreement which provided among other things that Gateway could uti laze its regular employees to fill up to 40 percent of the jobs at the Hartford jobsite and that the remainder were to be referred by Local 15 Respondents regular em ployees are from the Pittsburgh area where they are rep resented by Iron Workers Local 3 Local 15 s agreement and the Union s general work rules require that an em ployee being brought into a job must be cleared through Local 15 At the outset of the job in August 1986 Gateway as signed David Hendrick an employee from the Pitts burgh area to work as raising gang foreman supervising the crew of ironworkers who erect structural steel Robert Geisler Jr was assigned as job superintendent Because of lack of steel the job was shut down and Hendrick was transferred to another job in Albany New York Around October 1 Hendrick was brought back to the Hartford jobsite again as raising gang foreman Hen drick remained there in that capacity for about 6 weeks On November 21 he was removed from the job by Gate way Geisler Jr told others that he was removing Hen drick because the steel was not going up fast enough There is disputed testimony about whether Geisler Jr attributed the slow pace to poor performance by Hen drick as foreman or to antipathy between Hendrick and the others in the crew There is evidence about conflicts between Hendrick and some of the ironworkers on the job before Hendrick was removed from it The nature of the conflicts the cause of antipathy between Hendrick and the others and the quality of Hendricks work as foreman are all in dispute In March 1987 the job was still moving slowly and Robert Geisler Sr Gateways general manager decided to send a raising gang in from the Pittsburgh area to take over the work of that crew Geisler telephoned Coyne to inform him of his plans 1 According to Geisler he told Coyne that the job was not getting done that he had to send some of his people to it to get it done and that he could not go on like that Geisler told Coyne that he wanted to assign Hendrick and another employee Tom Shared to work as connec tors on the raising gang and to assign Bob Anderson to push the raising gang because Anderson Shared and Hendrick had worked together a lot as a team He was going to have his present raising gang foreman become general foreman and run the job and he would not re place anyone When Geisler mentioned Hendrick s name Coyne said that if he brought Hendrick back to the job Coyne would put the job into mothballs till summer Coyne did not object to bringing the others to the job Coyne never told him to bring Hendrick back According to Coyne Geisler told him that he wanted to bring more men up to get the job done Coyne told Geisler to go ahead Geisler told him some of the names and said that he wanted to bring Hendrick back as fore man Coyne said that Geisler had to be crazy that he pulled Hendrick off the job once and that with the prob lems they had with him on the job previously the others would all walk off the job if he came there Coyne said that if they walked off he did not know if he would be able to get them back with the problems they had had with bounced paychecks workmen s compensation and unemployment Geisler insisted that he wanted to bring Hendrick back and said that he would not bring him back as foreman but would bring him back as a connec tor Coyne said that he had a raising gang there but that if you want to bring him up and put him on the job then that s your responsibility Then bring him up Coyne denied telling Geisler that he would put the job in mothballs if Hendrick was employed on the job Geisler did not send Hendrick back to the job but a few days later five others from the Pittsburgh area were transferred to the job and worked there without any problem B Concluding Findings The central issue is credibility Neither Geisler nor Coyne can be viewed as impartial 2 Although on collat eral matters Geisler s testimony was more vulnerable than Coyne S 3 I am persuaded that with respect to the critical conversation Geisler s version must be credited Geisler placed this conversation on February 10 1987 while Coyne testified that their conversation about bringing in a new raising gang did not occur until March Although the difference is not material I am in clined to credit Coyne who had checked referral records to the hearing and none were placed in evidence but his testimony on cross examina tion indicated that he had records to support his testimony that the call and referrals were made in March Even in the absence of complete re ferral records at the hearing Gateways records could have been pro duced to show an earlier presence of the Pittsburgh employees on the job 2 The General Counsel argues that Geisler had no personal stake in the outcome of the proceeding However the General Counsel concedes that Geisler displayed resentment toward Coyne and Local 15 because of his belief that they were responsible for the slow progress on the job Geisler was wary on cross examination and tended to defensive argu mentation in his testimony On the record before me Coyne s testimony Continued IRON WORKERS LOCAL 15 (GATEWAY INDUSTRIES) Hendrick was removed as raising crew foreman be cause the steel was not going up either because of poor performance or poor relations with others on the job In either case it would have made little sense for Geisler to bring Hendrick back in the same capacity to get the job moving Indeed if Coyne were to be believed Geisler Jr told him he removed Hendrick because he was very displeased with Hendricks performance on the job and he had to get him off the job to keep the job going If that were so there is simply no explanation why Geisler Sr would have tried to bring Hendrick back as foreman Respondent argues that Coyne only objected to Hen duck s return to the job as foreman and told Geisler that if he wanted to bring Hendrick back to the job as a con nector he could do so Yet if that were the case there is no explanation why Hendrick was not brought back to the job as a connector Coyne s testimony itself is less clear than the argument based on it Under Coyne s version when Geisler said that he wanted to bring Hendrick back as raising gang foreman Coyne said the men would all walk off the job if Hendrick came there and he did not know if he could get them back again When Geisler said he would bring him back as a connector rather than foreman Coyne did not unambiguously assent but said If you want to bring him up and put him on the job then that s your re sponsibility Then bring him up In the context of Coyne s immediately preceding mention of a walkout the reference to Geisler s responsibility left ambiguous whether Geisler would be responsible for the staffing de cision as he was for all such decisions or that he would be responsible for the consequences if the others walked out 4 I find as Geisler testified that when he called for clearance to bring Hendrick back to the job as a connec tor Coyne told him that if he did so Coyne would put the job in mothballs until summer Both parties agree that the principles governing the decision in this case are those set forth in Operating Engi neers Local 18 (Ohio Contractors) 204 NLRB 681 (1973) revd on other grounds 496 F 2d 1308 (6th Cir 1974) When a union prevents an employee from being hired or causes an employees discharge it has dem onstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or if you please adopt a pre sumption that-the effect of its action is to encour age union membership on the part of all employees who have perceived that exercise of power But the inference may be overcome or the presumption re about the date of the critical telephone call is more persuasive than Geisler s and Coyne s memory in this respect appeared to be more com plete While there is one conflict between his testimony and an affidavit he gave 'us testimony on that point was elicited on cross examination only after it was clear that his memory regarding it was uncertain Coyne s memory in general appeared to be better but he appeared to change his testimony during examination concerning his knowledge of Hendrick s role in the discharge of Carson Bennett for drinking 4 On redirect Coyne s differentiation between the consequences of Hendricks return as foreman and his return as connector was even less clear He testified that he believed the men would walk off the job Be cause they had told me d fferent men on the job had told me that with the problems that were created when he was up here before that they wouldn t work if he wa up here 371 butted not only when the interference with em ployment was pursuant to a valid union security clause but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its con stituency i As the General Counsel contends the presumption ap plies whether the union causes a complete denial of em ployment or merely a transfer to a less lucrative job 5 Respondent contends that the presumption is rebutted in this case because the facts show that its action was necessary to effective performance of its function of rep resenting its constituency Respondent contends that the evidence shows that Hendrick did not have the requisite ability or the work experience to perform as raising crew foreman or as an ironworker on the Charter Oak job justifying its refusal to permit him to be referred to the job The evidence Respondent relies on would establish that Hendrick moved structural steel from one location to another on the jobsite several times without cause when standard procedure is to move it only once that he failed to observe safety standards and that he reneged on promises to his crew to guarantee them 40 hours pay per week and to provide employment in Albany to cer tarn members of his crew Assuming arguendo that I credited Respondent s witnesses testimony relating to this defense I would find nonetheless that Respondent has failed to rebut the presumption that Respondents re fusal to clear Hendrick s return to the job as a connector encouraged union membership Each of Hendricks al leged shortcomings reflected on his competence as a foreman but not as a connector As a connector Hen deck would have no responsibility to direct the move ment of steel to decide on the use of netting and plank ing or to guarantee full employment or employment on other jobs Although Hendrick might continue to ridi cule the safety concerns of others on the crew there is no evidence or even suggestion that because of the atti tude he displayed as foreman he would pose a threat to the safety of others when working as a connector Assuming that Respondent might have properly pre vented Hendricks return to the Charter Oak job as rats ing gang foreman in order to properly represent the in terests of its constituents relating to working conditions on the job its right to restrict Hendricks access to the jobsite as a connector was much more limited There is no showing that Hendrick lacked the requisite ability and work experience to perform the job of connector Beyond that even if other employees had no desire to work with Hendrick because of their experiences with him when he was their foreman Respondents proper function was to protect Hendricks right to employment not to bar him from it Laborers Local 341 (Bannister Joyce Leonard) 223 NLRB 917 90-920 (1976) enfd 564 F 2d 834 (9th Cir 1977) Accordingly I find that by refusing to clear Hendrick for employment as a connec tor on the Charter Oak jobsite and by threatening to put 5 Operating Engineers Local 478 (Stone & Webster) 271 NLRB 1382 (1984) 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the job in mothballs if he was employed there Respond ent violated Section 8(b)(1)(A) and (2) of the Act CONCLUSIONS OF LAW 1 Respondent is a labor organization within the mean ing of Section 2(5) of the Act 2 Gateway Industries Inc is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 3 By threatening Gateway with a work stoppage if Gateway employed David Hendrick as a connector at its Charter Oak jobsite and causing Gateway to refrain from transferring Hendrick to that jobsite Respondent en gaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(2) of the Act I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act The Respondent shall notify Gateway in writing that it has no objection to any job assignments it may make to Hendrick and similarly notify Hendrick that it has so notified Gateway I shall also recommend that Respond ent make Hendrick whole for any loss of earnings suf fered by him as a result of the discrimination against him Loss of earnings shall be computed in the manner set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded 6 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed7 ORDER The Respondent International Association of Bridge Structural and Ornamental Iron Workers Local No 15 6 283 NLRB 1173 ( 1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 9 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses AFL-CIO Hartford Connecticut its officers agents and representatives shall 1 Cease and desist from (a) Causing or attempting to cause Gateway Industries Inc to refuse to employ or transfer David Hendrick or any other employees unless the employee fails to tender or pay periodic dues and initiation fees uniformly re quired as a condition of acquiring or maintaining mem bership in Respondent or unless the Union s action is necessary to the effective performance of its function of representing its constituency (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make David Hendrick whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision (b) Notify Gateway in writing and furnish a copy of such notification to David Hendrick that it has no objec tion to his employment in any job assignment (c) Post at its business office copies of the attached notice marked Appendix 8 Copies of the notice on forms provided by the officer in charge for Subregion 39 after being signed by the Respondents authorized representative shall be posted by the Respondent imme diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places wehre no tices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Forward a sufficient number of signed copies of the notice to the officer in charge for Subregion 39 for posting by Gateway at its place of business in places where notices to employees are cumstomanly posted if Gateway is willing to do so (e) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 8 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board