Allied Chemical Corp.

National Labor Relations Board - Board Decisions

May 14, 1969

175 N.L.R.B. 974 (N.L.R.B. 1969)

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Chemical Corporation , Wilputte Coke Oven
Division and Emmett Rogers
Local 269 , Laborers International Union of North
America and Emmett Rogers . Cases 13-CA-8223
and 13-CB-2384
May 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On February 5, 1969, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and
Respondent Union filed an answering 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations, as modified herein.
We agree with the Trial Examiner's finding that
the General Counsel has failed to establish by a
preponderance of the evidence that the Respondent
Union prevented Emmett Rogers from securing
employment with Respondent Employer because of
his intraunion activities or that the Respondent
Union caused or attempted to cause the Respondent
Employer to refuse to hire Rogers for the same
reason. We also agree that the evidence is
insufficient to establish that Respondent Employer
failed to hire Rogers because of his intraunion
activities.
We do not adopt the Trial Examiner's statement
that, but for what he considered to be a discrepancy
in Rogers' testimony, he would not hesitate to find
that Rogers was not hired at the project because of
his dispute with union officials. This apparent
conflict involved Rogers' testimony herein that at
certain times he was present at Respondent
Employer's gate, available for hire, and his
testimony in another Board proceeding' as to the
times he was at a union hall some distance away.
We do not regard this apparent conflict= as being of
such crucial importance. The General Counsel does
not contend that Rogers was discriminated against
at the gate3 or at the union hall. Rather, he contends
that Stoynoffs failure to notify Rogers when
positions were available, as Stoynoff promised to
do, was discriminatory. However, there is no
evidence that Stoynoff was under any obligation to
notify Rogers or that he treated Rogers any
differently than any other union member. To the
contrary, the evidence indicates that at least one
other of Respondent Union's members, Aaron
White, and perhaps several more, were treated in
exactly the same manner. Accordingly, we shall
dismiss these allegations of the complaint.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the
National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial
Examiner , and orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
'Furnco Construction Company, 174 NLRB No. 19.
'After the conflict between his earlier testimony and his testimony herein
was brought to his attention , Rogers testified that he was not sure of the
times as he did not have a watch.
'As indicated by the Trial Examiner, Rogers does not contend that he
was ever at the gate when Stoynoff was hiring from that source.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge
filed on January 18, 1968, in Case 13-CA-8223 against
Allied Chemical Corporation, Wilputte Coke Oven
Division (hereinafter referred to as Respondent
Employer), and a charge filed the same day in Case
13-CB-2384 against Local 269, Laborers International
Union of North America (hereinafter referred to as
Respondent Union) by the Charging Party, Emmett
Rogers, and upon first amended charges filed in both
cases on April 1, 1968 , a consolidated complaint and
notice of hearing issued on April 30, 1968. The
consolidated complaint alleged that the Respondent
Employer violated Section 8(a)(1)(2) and (3) and the
Respondent Union violated Section 8(b)(1)(A) and 8(b)(2)
of the Act. Answers were filed by both Respondents
admitting certain allegations of the complaint, denying
others, and specifically denying the commission of any
unfair labor practices . Trial of the consolidated cases was
held before me in Chicago , Illinois , on June 15 and 16,
1968.' All counsel and representatives were afforded full
opportunity to be heard and to introduce relevant
evidence . Briefs were submitted by all parties and they
have been fully considered by me in arriving at my
decision in this matter.
Upon the entire record in these proceedings, including
my evaluation of the testimony of the witnesses based on
my observation of their demeanor and on the relevant
evidence, I make the following:
'Because of bona fide efforts on the part of all parties involved herein to
arrive at an amicable settlement in these cases subsequent to the trial, the
maximum time within which to file briefs was given and subsequent
extensions of time were granted . Unfortunately , the parties were not able
to settle their differences.
175 NLRB No. 164
ALLIED CHEMICAL CORP. 975
FINDINGS OF FACT
- I. JURISDICTIONAL FINDINGS
The Respondent -is ;a New.-York Corporation which
maintains its principal office in the city of New York. The
Respondent's Wilputte Coke Oven Division engages in the
engineering and 'construction of coke ovens for firms
located in the 'various States of the United States.
-Beginning in February 1967, and continuing beyond the
time of this trial, the Respondent Employer has been
engaged in the repair of existing ovens and the
construction of a new bank of coke ovens for the
Wisconsin Steel Company at the latter's facility in
Chicago, Illinois . During the past , calendar year the value
of the services rendered by the Respondent Employer to
the Wisconsin Steel Company has been in excess of
$50,000 , and during a similar period the Respondent
Employer purchased goods and materials valued in excess
of $50,000, front., suppliers located outside the State of
Illinois, and caused said -goods and materials to be
shipped to the Wisconsin Steel jobsite in Chicago , Illinois.
On the basis of the foregoing , I find that the
Respondent is, and has been at all times material herein,
an employer engaged in' commerce within in the meaning
of Section 2(6) -and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 269, Laborer's International Union of North
America is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A.. Background Facts
1. Rogers ' dispute with the Respondent Union
Emmett Rogers has been a member of the Respondent
Local Union for approximately 12 years and is
experienced in working • with firebrick. Over the years,
Rogers has been at odds with the leadership of the Union
and has filed several court actions , against the Respondent
Union alleging violations of -Title I of the Labor
Management Reporting and Disclosure Act, 1959.2
Although = Rogers never, ran for office in the Union, he was
appointed to ;be an; Election Judge during the last election
of union officers in June .1967} It was as a result of his
duties in this capacity that Rogers became involved in
another dispute with the officials of the Union.
On June 26 ;1 Rogers- went to the union headquarters
accompanied by Curtis Bush , an unsuccessful candidate
for the office of President of the Union , and demanded to
see the per capita tax list and the ledgers showing the
financial standing of the union members.
'This section of the Reporting and Disclosure Act is popularly known as
the "Bill of Rights" for union members. Rogers filed separate suits against
the Respondent Union in 1,961 and .1963. In each instance the case was
dismissed. by the Court . At, the time of the instant trial, he had another
action against the Union pending in the United States District Court.
'Unless otherwise specified , all dates, cited subsequently herein refer to
-1967.
The per capita tax list was -supplied by the International Union and
indicated those members who wear eligible to vote in the-election . Rogers
contended that Kama had been inserted on the list after it had been
received by the Respondent-Union, thereby allowing ineligible persons to
vote in the election.
After Rogers had inspected the Ledgers and the per
capita tax list, he put them under his arm and announced
to Vukodinovich, secretary-treasurer of the Respondent
Union, that he was taking the books to the Department of
Labor. Rogers and Vukodinovich struggled for possession
of the books and the police were subsequently called to
the union office. Although formal charges were not filed
with the police, Vukodinovich brought charges against
Rogers with the Respondent Union. After proper
notification the Executive Committee constituted itself as
a Trial Board and held a hearing on the charges on
November 9. Rogers participated in the hearing and was
represented by an attorney. The Trial Board rendered a
decision on November 30. Rogers was found to have
violated the section of the Respondent Union's
Constitution relating to the obligation of members. The
Trial Board barred Rogers from holding any union office
or position or serving in any capacity or participating in
any union meeting for a period of 1 year and fined him
the sum of $100. This action was ratified and adopted by
the membership at a meeting on December 11. Rogers did
not appeal the decision and paid the amount of the fine.
After the decision Rogers continued to meet his financial
obligations with the Union, and it was stipulated that he
was current in the payment of his dues.
2. The Respondent Employer's Project at the
Wisconsin Steel Company Site
The Respondent Employer began working at the
Wisconsin Steel Company facility in January 1967. The
work not only involved the repair of existing coke ovens,
but also included dismantling, excavating, and
constructing a new battery of ovens. By its very nature the
work required the use of a wide range of crafts, depending
of course on the stage of construction. The top
management official for the Respondent Employer at the
construction site was the superintendent of construction.
Under the superintendent, in order of authority, were the
assistant superintendent, the field engineer, and the craft
supervisors. All of these individuals were on the
Respondent Employer's home office payroll and received
their pay on a monthly basis. In addition, they shared in
all of the companywide benefits given by the Respondent
Employer. Under the craft supervisors were the foremen
of the various crafts. These employees were hourly paid
under the terms of the area contracts of the local craft
union, which included payment of prevailing health and
welfare benefits.'
The agreement governing the relationship between the
Respondents here was negotiated by the Builders
Association of Chicago and the Construction and General
Laborers District Counsel of Chicago, and Vicinity.
Among other things, this agreement provided:
Section VI, Paragraph 4(q) Foreman: There shall be a
laborer appointed as a Labor Foreman when ten (10) or
more laborers are employed on any one job or project;
there shall be a sub-foreman after the first twenty (20)
laborers, and for each multiple of ten (10) laborers
employed thereafter . . . . When a Labor Foreman is
needed to supervise laborers, such Labor Foreman shall
receive fifty (50e) cents or more, premium wages above
top labor scale, as mutually agreed between said Labor
Foreman and his employer.
'The Respondent Employer does not negotiate labor agreements directly
with the local unions , but abides by the local area agreements in effect at
the time that it commences construction on a given site.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above and foregoing shall not be so construed as
to restrict the employer's right to pay higher premium
wages or to appoint a greater percentage of foremen
and/or sub-foremen.
B. The Circumstances Surrounding the Alleged
Refusal to Refer or Employ Rogers
As noted above, the Respondent's project for Wisconsin
Steel started in January 1967. On February 22, Peter
Stoynoff was hired as a laborer on the project. He was
laid off after 2 weeks and rehired on March 15. On June
8, Stoynoff was promoted to the position of labor
foreman. As such, Stoynoff was responsible for hiring and
discharging all of the laborers working on the project. In
practice, Stoynoff received instructions from the craft
supervisor or the other management officials concerning
the number of men needed on the job, and he then hired
additional laborers or decreased his work force as the
situation warranted.' In addition to hiring and discharging
laborers, Stoynoff supervised the performance of the
various phases of the work of the laborers with the
assistance of subforeman appointed under the terms of the
contract. Stoynoff also handled grievances of the laborers.
The majority of these grievances dealt with disputes over
the amount of pay received. The problems were taken by
the men to Stoynoff, who in turn straightened out the
matters with the timekeeper.
During the peak periods of activity Stoynoff hired as
many as 70 laborers and had 5 subforeman under his
supervision. Stoynoff testified that he hired men from
three sources. He stated that approximately one-third of
his force was hired through the union hall. This was
accomplished by simply calling the Respondent Union and
asking for the number of men needed.' Another third of
the laborers were hired directly at the 112th Street gate
leading to the Wisconsin Steel property.' The balance of
the men were either personal friends or were
recommended by laborers and subforemen working on the
job.
Stoynoff was on the slate of candidates for union office,
and he was elected vice president on June 24. There is no
affirmative evidence in the record that the officials of the
Respondent Employer were aware that Stoynoff was
seeking union office or that he had been elected.'
On October 9, after a regular union meeting , Rogers
and a fellow union member, Aaron White, approached
Stoynoff and inquired about jobs with the Respondent
Employer at the Wisconsin Steel project. Stoynoff told
`The number of laborers employed at any given time vaned with the
type of work , the stage of construction , and the number of bricklayers used
on the project The average ratio of laborers to bricklayers was normally .8
to 1, but in some instances (depending upon the work involved ) increased
to I I to 1. A decrease or increase in the number of bricklayers employed
resulted in a corresponding decrease or increase in the laborer work force.
'Under the terms of the collective-bargaining agreement the Union did
not maintain an exclusive hiring hall through which laborers were supplied.
'There were several gates leading onto the Wisconsin Steel facility. From
the testimony given it appears that a number of laborers would "shape up"
at the 112th Street gate each morning to determine whether jobs were
available When additional men were required , Stoynoff, would on
occasion, hire them directly at the gate.
'The General Counsel elicited from Stoynoff that he had been
congratulated on his victory by some of the laborers at the jobsite There is
no probative evidence , however, indicating that the Employer 's officials
were present when this occurred . In fact , Norman , the superintendent of
construction , testified that he did not know that Stoynoff held a position
with the Union until after the Respondent Employer received a copy of the
charge filed on January 18, 1968.
him that there were no openings at that time, but that
additional bricklayers would be hired in approximately a
week and more laborers would be required on the job.
Rogers and White wrote their names and telephone
numbers on a slip of paper and gave it to Stoynoff, who
agreed that he would contact them when openings were
available.10 After Stoynoff left the union meeting he went
home and promptly discarded the list of names. Stoynoff
claimed that he did this because he felt that if he hired
one of the men and not the others, those not hired would
"bug" him about the job.
The following morning, Stoynoff hired three extra
laborers. One of the men had formerly worked for another
subcontractor on the project and had been told by
Stoynoff to report to work that day to replace a laborer
who was quitting. The other two men were hired in
response to Stoynoff's call to the union hall requesting
two men. Stoynoff testified that he was not informed that
the Respondent Employer was going to hire additional
bricklayers until he reported to work that morning.
Consequently he did not know at the time of the union
meeting that additional laborers would be needed.
Rogers testified that he went to the 112th Street gate of
the jobsite on October 10, at approximately 7 a.m. and
remained there until noon . He stated that he was
accompanied by union member Bush , and that Stoynoff
did not appear at the gate at all while they were there.
Rogers further testified that he showed up daily at the
112th Street gate throughout the entire month of October
and continued to follow this routine until November 8,
when he was sent out on a job by another local union.
Rogers stated that he never saw Stoynoff while he was at
the gate and that he generally arrived there between 8 and
8:30 a.m. and did not leave until 9:30 or 9:45 a.m. On
cross-examination, however, it was brought out that in a
prior case against another local of the same International
Union," Rogers testified that he appeared at the hall of
that particular Union, located in Hammond, Indiana,
every morning during the month of October and remained
until at least 8:30 a. m. seeking work. Rogers also testified
that during the time that he was attempting to get a job
with the Respondent Employer he never went to the
Respondent Union's hiring hall in order to be available
for referral in the event Stoynoff made a request for men.
He stated, however, that he did speak with the business
manager, Bukovich, at a nearby bar and grill on at least
three occasions about being referred to a job, and was told
that the only thing he would get [from Bukovich] was a
portion of a lower part of his anatomy.
On January 17, 1968 , Rogers, again accompanied by
Bush, went to the jobsite. Rogers had previously called
and made arrangements to be met at the gate by Hatfield,
the assistant superintendent of construction. Hatfield did
"There was considerable dispute at the trial over whether White and
Rogers wrote their names on separate slips of paper or on a single sheet,
and whether other union members were present and likewise gave him their
names. In my judgment , this is wholly immaterial as all of the witnesses,
including Stoynoff, testified that White and Rogers wrote down their
names and telephone numbers and gave them to Stoynoff . Whether other
union members were present (as testified by Stoynoff) or whether the
names were placed on more than one slip of paper (as testified by White
and Rogers) only serves to prove that individual recollections of events
long since past may honestly differ . The insignificant differences in the
testimony concerning this particular event in no way reflect upon the
veracity or the credibility of the witnesses involved.
"That case involved Local 41, Laborers International Union of North
America and the Furnco Construction Corporation (Cases 13 -CA-8222,
8277, and 13-CB-2383 and 2419).
ALLIED CHEMICAL CORP. 977
not appear at the appointed time, and Rogers and Bush
went through a gate regularly used by the Steel
Company's employees. They went to the construction
superintendent's office and spoke with Hatfield and
Norman. According to Rogers, he inquired about the
Respondent Employer's policy on hiring laborers. Rogers
testified that Hatfield informed him that the Union
furnished the employer with a labor foreman, and this
individual hired all laborers through the union hall.
Rogers stated that he and Bush were informed that the
Respondent Employer hired laborers 4 or 5 days
previously, but there were no openings at the present time.
Both Rogers and Bush testified that Norman assured
them that the Respondent was an equal opportunity
employer. Bush testified that during this conversation he
informed Norman and Hatfield that Stoynoff was labor
foreman on the job and also vice president of the Union.
Bush told them that he and Rogers had been trying to get
a job through Stoynoff and the Union but were never
hired. He stated that the Union instructed them to go to
the gate, but that no one ever showed up there to hire
them. Norman, testifying about the same conversation,
denied that there was any mention by either Rogers or
Bush of Stoynoff's position with the Respondent Union.
The following day, charges were filed by Rogers against
both the Employer and the Union.
Concluding Findings
Two major issues are presented by these cases. First,
whether the Union, acting through Stoynoff, prevented
Rogers from being employed at the Wisconsin Steel
jobsite because of his active opposition to the officials
administering the affairs of the Union. Secondly, whether
the Respondent Employer unlawfully interfered in the
affairs of the Union by having as its labor foreman an
individual who was at the same time the vice president of
the union representing its laborer employees. Involved in
this second issue is also the question of whether the
Respondent Employer, acting through its labor foreman,
refused to hire Rogers in order to discourage union
members from opposing the leadership of the Union.
There is no doubt on this record that Rogers had been
engaged in a number of serious disputes with the union
officials over a period of years. The several law suits, one
of which is still pending, and his conduct during the
election of June 24, resulting in charges and discipline by
the executive committee, all attest to this fact. Of primary
consideration, however, is whether the animosity
engendered by these disputes caused the Union officials to
retaliate by preventing Rogers from securing employment
with the Respondent Company.
It is undisputed that Rogers and at least one other
union member gave their names and telephone numbers to
Stoynoff on October 9 and that the latter discarded this
list later that same evening. Stoynoffs explanation for his
action - that he would be "bugged" by those individuals
not selected for employment - hardly carries with it a
ring of truth. The very nature of the position which
Stoynoff held with Respondent Employer required him to
constantly make choices; especially from among the men
hired directly at the gate, and to a lesser extent from
among his friends whom he employed on occasion. The
record also discloses that the following day (October 10)
Stoynoff hired three men; one of whom had a prior
commitment from Stoynoff for a job as a replacement
and two others from the union hall. In view of his actions
concerning the list given to him the night before,
Stoynoff's explanation that he was unaware that two
additional laborers would be required on the job the
following day must be viewed with suspicion, and his
conduct in this regard would appear to support the
contention that he, as an official of the Union, was
interested in keeping Rogers off the job. Further support
of this contention would appear to be contained in
Bukovich's obscene remarks in rejecting Rogers' request
for help in getting a job. Thus, at first blush, the evidence
would seem to indicate that the General Counsel has
established that Rogers was not hired at the Wisconsin
Steel project of the Respondent Employer because of his
disputes with the officials of the Respondent Union, and if
this were all that was contained in the record, I would not
hesitate to so find.
There is, however, one crucial factor which I find
cannot be ignored. Rogers testified that he and Bush
appeared at the 112th Street gate of the project (where
Stoynoff hired men directly at the jobsite) on October 10
at 7 a.m. and remained there until noon. According to
Rogers, they were not hired nor did they see Stoynoff.
Rogers also testified that he went to this gate every day at
8 a.m. during the month of October and followed this
practice until November 8, when he secured employment
elsewhere through another local of the same International
Union. The clear import of this testimony is that Rogers
was present at the gate during the times that Stoynoff
hired men there between the hours of 8 and 8:30 a.m.
The record however shows otherwise. In another unfair
labor practice case against Local 41 of the same
International Union, the trial of which was held on July 1,
Rogers testified under oath that he was at the hiring hall
of that local (in Hammond, Indiana) every day during the
month of October until 8 or 8:30 a.m. As it was physically
impossible for Rogers to be at 112th Street and Torrence
Avenue in Chicago, Illinois, and at the union hall in
Hammond, Indiana, at the same time, it is apparent that
Rogers was tailoring his testimony concerning his
availability to fit the circumstances of the particular case
being tried before this Agency. In my judgement, it is
critical to the General Counsel's case that the evidence
establish that Rogers was available at the gate or the
union hall when Stoynoff was hiring from these sources.
On the basis of Rogers' conflicting testimony in this and
the prior case, I am unable to make such a finding." Nor
am I able to find that the Respondent Union refused to
refer Rogers for employment with the Respondent
Company. By his own testimony, Rogers did not go to the
union hall to apply for work on the Wisconsin Steel
project. I am not unmindful of his encounters with
Bukovich on three unspecified dates in October and
November outside the union hall, but, in my judgement,
this does not establish that Stoynoff was hiring on these
occasions or that Rogers would not have been referred
from the hall had a request for men been made.
Thus on the basis of the record as a whole I find that
the General Counsel has failed to establish by a
preponderance of the evidence that the Respondent Union,
acting through its vice president, Stoynoff, prevented
Rogers from securing employment with the Respondent
"The record also contains another example of serious conflict between
Rogers' stated availability for work and independent evidence to the
contrary . Rogers testified that he was available for work on January 17,
1968, when he and Bush spoke with Norman and Hatfield at the jobsite. A
claim submitted by him through the Union ' s Health and Welfare
Department, however , discloses that he was injured in November and
unable to work as of November 28, and had not resumed work as late as
February 26, 1968.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company because of- his intraunion activities or that the
Respondent Union caused or attempted to cause the
Respondent Employer to refuse to hire Rogers for the
same reasons. Accordingly, I find that the Respondent
Union has hot violated Section 8(b)(1)(A) and 8(b)(2) with
regard to Rogers , and I shall recommend that these
allegations,-be dismissed.
Although separate violations are alleged against the
Employer and the Union, the dual role of Stoynoff, as
labor foreman and as vice president of the Respondent
Union, provides the common thread linking all of the
allegations . In their briefs , both Respondents concede that
Stoynoff was a supervisory employee of the Respondent
Employer with authority to hire and fire and to
responsibly direct laborer employees, and that he fully
discharged his duties as a vice president of the Respondent
Union ; including sitting on the executive committee,
voting in elections , and participating in the management
of the Union's affairs as required by the constitution and
bylaws . Having found 'that the evidence is insufficient to
establish that the Respondent Union , through its agent,
Stoynoff, prevented Rogers from obtaining employment at
the Wisconsin - Steel project or that it caused the
Respondent Employer to refuse to hire Rogers, it follows
that the evidence is-likewise insufficient to establish that
the Respondent Employer, acting through its supervisor,
Stoynoff, failed -to hire Rogers because of his intraunion
activities. I find, therefore, that the Respondent Employer
did not violate Section 8(a)(3) of the Act with regard to
Rogers, and I shall recommend that this allegation be
dismissed. `
There remains for consideration the question of whether
Respondent -Employer unlawfully interfered with the
administration of the -Union because its labor foreman
actively participated in union affairs and was a union
official . Both the Board 'and the courts agree that this is a
matter which must be approached on a case -by-case basis
and that a per se rule-is unrealistic , especially in the
building trades industry . As the court stated in Local 636,
United Association of Journeymen and Apprentices of the
Plumbing and Pipelitting Industry of the United States
and Canada , AFL-CIO v. N.L.R .B. (Detroit Association
of Plumbing Contractors), 287 F.2d 354 (C.A.D.C.):
... In an industry such as construction , there is an
extreme - upward and downward flexibility in job
positions . A man hired one week for one job as a
foreman may very possibly be hired the next week on
the next job as a journeyman . In view of this flexibility,
not every supervisory employee is to be barred from
active participation in a journeyman 's union .... This
problem -is approached by the Board on a case by case
basis.
The landmark case in this area is the Board 's decision in
the Nassau and Suffolk case." There the Board was
confronted with a situation in which master mechanics
(supervisory employees) were included in the bargaining
unit under the terms ' of the contract and actively
participated in union affairs . Recognizing the upward and
downward movement 'iii the construction industry, the
Board held ' that an employee was not required to
relinquish his basic union membership or refrain from
actively participating in union affairs , when occupying a
supervisory position , unless it could be affirmatively
shown that the' employer, instigated or ratified this
conduct, or led the employees to reasonably believe that
the supervisor was acting for and on behalf of
management ." The Board also held in that case that
unlawful interference in the affairs of a union occurs when
supervisory employees, who are members of a
journeyman 's union , engage in collective-bargaining
negotiations with their employers. The reasoning for this
is clear, for it would result in divided loyalties and would
be contrary to the clear legislative policy to free the
collective-bargaining process from all taint of employer
influence . International Association of Machinists, v.
N.L.R.B., 311 U.S. 72, 80.
Applying these principles to the instant cases, I find
and conclude that the Respondent Employer did not
interfere with the administration of the Union's affairs
because Stoynoff occupied the dual positions of labor
foreman and vice president of the Union. Stoynoff's
selection as labor foreman was in no way related to his
position with the Union. Indeed, he was appointed labor
foreman by the Respondent's superintendent of
construction several weeks before he was elected to union
office. There is no evidence whatsoever to indicate that the
Respondent had any knowledge that Stoynoff was seeking
union office. That Stoynoff was active in the affairs of the
Union and fully discharged his duties as required by the
Union's constitution and bylaws is conceded by all parties.
He attended union meetings and voted, he also sat on the
executive committee, and in the case of Rogers,
participated when that committee sat as a trial board.
Stoynoff received premium wages as labor foreman a fact
which the General Counsel makes much of in his brief.
This was provided for, however, by the
collective-bargaining agreement. Under the terms of that
document the labor foreman was to receive at least 50
cents an hour more than the journeyman rate.
Furthermore, the contract which governed the parties was
not negotiated by the Respondent Union itself, but by a
District Council composed of several local unions. The
Respondent was represented on the District Council by
two officials elected for that purpose - Vukodinovich
(secretary-treasurer) and Bukovich (business manager).
While it is not clear how the Respondent Union's contract
proposals were formulated or whether they were even
considered by the District Council, it is clear that the
Respondent Union's officers, other than the delegates, did
not engage in direct negotiations with employers. The
record does indicate that as labor foreman, Stoynoff
handled grievances of laborers on the jobsite. These
grievances related almost exclusively to wages and he took
the matter up with the timekeeper in each instance. The
General Counsel argues that this is sufficient evidence that
Stoynoff engaged in negotiations with the employer to
establish interference. I do not agree. This activity was
infrequent (embracing approximately a half dozen
situations) and involved nothing more than reconciling the
wages paid to the complaining employee with the records
kept by the timekeeper. In the total scheme of collective
negotiations such activity on the part of Stoynoff was
minuscule at best. I find, therefore that Stoynoff's
activities did not require him to engage in
collective-bargaining negotiations with the Employer.
Further applying the principles of Nassau and Suffolk,
I find that the Respondent Employer did not ratify or
instigate Stoynoff's intraunion activities , nor did the
Employer in any manner lead the employees to reasonably
believe that he was acting for and on behalf of
management while engaged in his union activities.
Accordingly, I find, in the circumstances of these cases,
that the Respondent Employer did not violate Section
"Nassau and Suffolk Contractors Association , 118 NLRB 174.
"Id. at p. 183.
ALLIED CHEMICAL CORP.
8(a)(2) of the Act by employing as its labor foreman an
individual who was also the vice president of the
Respondent Union. Nassau and Suffolk, supra; Detroit
Association of Plumbing Contractors , 126 NLRB 1381,
enfd . in part 287 F.2d 354 (C.A.D.C.); Banner Yarn
Dyeing Corporation , 139 NLRB 1018, 1027.
CONCLUSIONS OF LAW
1. The Respondent Employer, Allied Chemical
Corporation, Wilputte Coke Oven Division, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
979
2. Respondent Union, Local 269, Laborers
International Union of North America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The Respondent Employer did not violate Section
8(a)(1), (2), or (3) of the Act.
4. The Respondent Union did not violate Section
8(b)(1)(A) and 8(b)(2) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law
and the entire record in these cases, I recommend that the
consolidated complaint herein be dismissed in its entirety.