United Exposition Service Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinery Movers, Riggers And Machinery Erec- tors Local 136 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (United Exposition Service Co., Inc.) and James Graves. Case 13-CB- 8720 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 11, 1980, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge nd to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Machinery Movers, Riggers and Machinery Erectors Local 136 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I We find no merit in Respondent's exception which contends that its rights under the Administrative Procedures Act, 5 U.S.C §554(d), have been violated because counsel for the General Counsel investigated as well as prosecuted this case. The cited provision of the Administrative Procedures Act requires the separation of investigator aid prosecutorial functions not from each other but from the decisionmaking function 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administratise law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- · inces us that the resolutions are incorrect Sauldard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. We note that the Administrative Law Judge specifically discussed the impact of union applicant Graves' prior felony cons iction on his credibil- ity. The Administrative Lasw Judge found, in part based on his observa- tion of the witness, that Graves' initial denial of the fact that he had pled guilty to a 1975 robbery charge was not a deliberate lie It was instead, according to the Administrative Law Judge, an effort to deny that any current weight should be given to the conviction because Graves had successfully completed a 2-year conditional discharge from the convic- tion. 252 NLRB No. 58 DECISION STATEMENT OF THE CASE DAVII) L. EVANS, Administrative Law Judge: This matter was heard at Chicago, Illinois, on May 5, 1980. The charge against Machinery Movers, Riggers and Ma- chinery Erectors Local 136 of the International Associ- ation of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO (herein called Respondent), was filed by James Graves, an individual (herein called the Charging Party or Graves), on October 3, 1979.' A complaint issued on November 19 alleging that since on or about September 20, "Respondent, throuqh Ernest J. Gibas re- fused to consider James Graves for union membership," in violation of Section 8(b)(1)(A) of the Act. Respondent filed an answer admitting that, as alleged, Gibas, business representative, and Thomas Campagna, president of Re- spondent, are agents of Respondent, but denying the commission of any unfair labor practices. Upon the record as a whole, including my observation of the witnesses, and upon consideration of the briefs submitted by counsel, I make the following: FINDINGS OF FACT I. JURISt)ICTION Respondent is a labor organization which represents employees employed by various employers including United Exposition Service Company, Inc., a Texas cor- poration; which maintains an office and place of business in Chicago; and which, during the calendar year preced- ing issuance of the complaint, performed services valued in excess of $50,000 for enterprises, which were them- selves, engaged in interstate commerce. Respondent admits that United Exposition Service Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Accordingly, it is ap- propriate to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED It is undisputed that, at all times material herein, Re- spondent has been a labor organization within the mean- ing of Section 2(5) of the Act. 111. THE AI.T.GEI) UNFAIR ABOR PRACTICE Graves has worked in the Chicago area as a machin- ery mover off and on since 1969. He is not a member of any labor organization. He got his jobs by reporting to hiring halls operated by Respondent or by Local No. I of the same International. It is undisputed that2 around September 6 or 7, Graves approached Gibas at Respondent's hall and asked if there All dates referred to herein are in 1979, unless oherwise specified 2 Respondent generally attacks Graves' credibility on the grounds that in 1975, Graves was convicted of a felony, robbery, and he denied the conviction hen first questioned on cross-examination Graves had re- ceised a cnditional discharge and. after 2 years' good beha ior the con- viction ',as vacated; therefore, evidence of the conviction should prob- ably have been excluded under Rule 609(c)(1) of the Federal Rules of Evidence Moreover, it was clear that in his denial of the fact of convic- Continued 394 MACHINERY MOVERS, LOCAI 136 was any chance of his getting a membership card. Gibas replied that the Local's executive board would meet in 2 weeks, and that Graves should not worry about it be- cause he (Gibas) would "pull a few strings." On September 9, Graves filed an unfair labor practice charge against Local No. . The substance of the charge is not directly related to the events herein, and it was subsequently withdrawn. According to Graves, on September 19, in a tavern across the street from Respondent's hall, he asked Gibas about the progress on his union card. According to Graves, Gibas "stopped the conversation and he called John Ryan over, that's the vice president of Local 136. He told John Ryan that he wanted him to hear the con- versation." Gibas asked Graves if he had filed a National Labor Relations Board charge against Local 1. Graves replied affirmatively. Gibas called Graves a "stool pigeon" and, further according to Graves, "as long as he was the business manager of Local 136, 1 would never get a union card." Graves further testified that "Ernie Gibas also told me that if I wanted a union card I would have to [go] to the office of [the] National Labor Rela- tions Board and let them get it for me." When asked on direct examination if he recalled having a conversation with Graves in September, Gibas testified that he did, that it was on September 19, after a regular union meeting, and that Graves "came in and asked about a union card and I said to him: 'I can't do that. I'll -efer you to work when there's work,' and I said, 'Come on across the street and we'll have a beer.' That was the end of it." To the extent Gibas was attempting to advance a denial by this testimony, I discredit it. First, it simply is not a denial of the specific testimony of Graves that Gibas called him a "stool pigeon," and that as long as Gibas was business manager of Respondent that Graves would not get a union card, and that Gibas told Graves to go to the National Labor Relations Board to get his card. Finally, Respondent offered no reason for not call- ing Ryan, nor did it dispute Graves' identification of Ryan as vice president of Respondent. Presumably, had Ryan's testimony been favorable to Respondent, it would have called him to testify or explained its failure to do so, and I draw an adverse inference from its failure in this regard. In short, I credit Graves' testimony about what was said at the tavern on September 19. On September 21, Graves approached Union President Campagna at Chicago's McCormick Place convention hall where Campagna was working that date. Graves complained to Campagna that Gibas would not let him take an examination required for membership because he had filed charges against Local I. Campagna said he would look into the matter. On Sunday, September 30, Graves called Campagna at home. Campagna confirmed that Gibas was "upset" by Graves' filing of the Board charge against Local 1, and that Gibas was not going to let Graves take the examination. Graves said he would then complain to the International's vice president, and, according to Graves Campagna replied that "Ernie tion, (iraes as actually attempting to deny that any effect should be given to it That is, he as not attempting to delude the trier of facl Gibas said that if I made any, trouble for him or the Local, that he was going to put me in the trunk." Althouqh Campagna was present at the hearing herein, he was not called to deny these statements. This failure raises the presumption that the testimony of Campagna would have been adverse to Respondent, and I find that this testimony by Graves to be true. Graves also testified that on September 20 and Octo- ber 1, he called the union hall in an attempt to plead with Gibas over the matter. Graves testified that both times, Gibas tersely rebuffed him saying only, "f-k you." This one vulgarism is the only specific testimony by Graves which Gibas denied: however, I found Graves' credible on the point and find his testimony to be true. Respondent offered no testimony that its agents re- fused to consider Graves for membership because of any legitimate reason, and I find on the credited testimony of Graves about the statements of Gibas and Campagna, that the sole reason for Respondent's admitted refusal to consider him was that he had filed charges under the Act, against Local 1. While Section 8(b)(l)(A) provides that a labor organi- zation shall have the right "to prescribe its own rules with respect to the acquisition or retention of member- ship," this proviso does not give a labor organization li- cense to enforce union rules or policies which serve no legitimate union interest and run counter to other Public policies of an overriding nature that Congress has imped- ed in the labor laws. L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, et al., 391 U.S. 418 (1968). Specifically, it does not license a union to deny membership because an individual has filed charges or given testimony under the Act. Plumbers Local Union No. 17. of the United Association of Journey- men, Plumbers and Pipefitters of the United States and Canada,. AFL-CIO (FSM Mechanical Contractor, Inc.), 224 NLRB 1262 (1976). Accordingly, I find and conclude that by refusing to give good-faith consideration to Graves' application for membership because he had filed charges under the Act, Respondent has violated Section 8(b)(l)(A) of the Act.3 CONC.USIONS OF LAW 1. By refusing to give good-faith consideration to the membership application of James Graves because he had filed charges under the Act, Respondent has engaged in an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ' ithout benefit of citation or argument eyond the conclusionar statemcnts. Repondent conlends that because counsel for the General Counsel inrseligalted the charge herein. its rights under the Adminlsira- tlie 'rocedures Act and the Fifth Amendment to the Constilutlon of the United Stale, have been siolaled. and moves to dismiss the complaint T'here is rno hasis in fact or las fior this motlon and it is accordingl) denied 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Respondent, by counsel, contended at the hearing that there were legitimate reasons for rejecting the applica- tion of Graves if it had been considered. This contention, however, begs the question. As the General Counsel contends, James Graves was and is entitled to good-faith consideration of his application, that is, without regard to his invocation of statutory processes against Local No. 1, Respondent, or any other labor organization, and with- out regard to any other consideration contrary to law. Therefore, it is appropriate that as well as being or- dered to cease and desist from its action found to be vio- lative of the Act herein, Respondent shall be ordered to give good-faith consideration to any application for membership submitted by Graves and to post an appro- priate notice to its members. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER4 The Respondent, Machinery Movers, Riggers and Ma- chinery Erectors Local 136 of the International Associ- ation of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act by re- fusing to give good-faith consideration to membership applications because said employees have filed charges under the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: 4 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 find- ings, 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. (a) Upon request, give good-faith consideration to any membership application James Graves files, or attempts to file, with it. (b) Post at its Chicago, Illinois, union hall copies of the attached notice marked "Appendix." 5 Copies of said notices on forms provided by the Regional Director for Region 13, shall, after being duly signed by Respondent's authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board," shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT refuse to give good-faith consider- ation to the application for membership filed by any employee because said employee has filed charges under the National Labor Relations Act, as amend- ed. WE WILL NOT in any other manner restrain or coerce employees or applicants for membership in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WIl.L give good-faith consideration to any applicant for membership filed by James Graves. MACHINERY MOVERS, RIGGERS AND MA- CHINERY ERECTORS LOCAl. 136 OF THE IN- TERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAl AND ORNAMENTAL IRON WORKERS, AFL-CIO 396