Elevator Constructors Local 1 (National Elevator Industry)

National Labor Relations Board - Board Decisions

Aug 11, 2003

339 N.L.R.B. 977 (N.L.R.B. 2003)

ELEVATOR CONSTRUCTORS LOCAL 1 (NATIONAL ELEVATOR INDUSTRY) 977
Local One, International Union of Elevator Construc-
tors of New York and New Jersey and National
Elevator Industry, Inc. Case 29–CB–11649
August 11, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND ACOSTA
On April 16, 2002, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed an answering brief, a motion to strike unsup-
ported exceptions, a cross-exception, and responses to
the Respondent’s exceptions.
The National Labor Relations Board has delegated 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local One, International Un-
ion of Elevator Constructors of New York and New Jer-
sey, its officers, agents, and representatives, shall take
the action set forth in the Order.

Haydee Rosario, Esq., of Brooklyn, New York, for the General
Counsel.
Richard Markowitz, Esq. (Markowitz & Richman, Esqs.), of
Philadelphia, Pennsylvania, for the Respondent.
Timothy Copeland, Esq. (Downs Rachlin & Martin PLLC), of
Brattleboro, Vermont, for the Charging Party.

1 The Charging Party’s motion to strike the Respondent’s exceptions
that fail to cite supporting record evidence is denied because those
exceptions substantially conform with the requirements of Sec.
102.46(b)(1) of the Board’s Rules and Regulations.
2 The Respondent and the Charging Party have excepted to some of
the judge’s credibility findings. 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.
The Respondent has excepted to the judge’s finding that McVicker
was a 2(11) supervisor. In adopting the judge’s decision, we need not
rely on his supervisory findings inasmuch as we agree that McVicker
was an 8(b)(1)(B) representative. See NLRB v. Electrical Workers
Local 340, 481 U.S. 573, 584 (1987).
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge filed on July 10, 2001 by the National Elevator Industry,
Inc. (Association), a complaint was issued on September 26,
2001 against Local One, International Union of Elevator Con-
structors of New York and New Jersey (Respondent).
The complaint alleges that Respondent imposed a monetary
fine against Peter McVicker, (McVicker) a supervisor, because
he refused Respondent’s demand that Kone, Inc., his employer
(Employer) utilize additional employees to unload an escalator
truss at a Secaucus, New Jersey project, and because of
McVicker’s decision to unload the escalator truss without Re-
spondent’s consent.1 The complaint alleges that by such con-
duct Respondent violated Section 8(b)(1)(B) of the Act.
Respondent’s answer denied the material allegations of the
complaint and on December 12, 2001, a hearing was held be-
fore me in Brooklyn, New York.
Upon the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after considera-
tion of the briefs filed by all parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Kone, Inc. (Employer), a New York corporation having an
office and place of business at 47-36 36th Street, Long Island
City, New York, has been engaged in the installation, construc-
tion and modernization of elevators and escalators throughout
the United States. During the past year, the Employer pur-
chased and received at its Long Island City facility, goods and
materials valued in excess of $50,000 directly from suppliers
located outside New York State. The Respondent admits, and I
find that the Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act. The
Respondent also admits that it is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer is a member of the Association which has a
collective-bargaining agreement with the Union. The Union
represents elevator and escalator mechanics and apprentices.
McVicker, an employee of Kone and a member of the Un-
ion, has been employed for 20 years as a mechanic and a me-
chanic in charge for the Employer and its predecessor, Curtis
Elevator.
In June, 2000, McVicker was assigned to “run” a job at the
Secaucus Transfer Station. The project consisted of the installa-
tion of 31 escalators for Amtrak. McVicker’s supervisors were
Jeffrey Jenkins, the vice president of the Employer who as-
signed him to this job and to whom he reported, and William
Custer, the Employer’s construction superintendent. Neither
Jenkins nor Custer had an office at the Secaucus site. During
1 All references herein to McVicker shall be to Peter McVicker
unless otherwise stated.
339 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
the period of time involved herein, June through October, 2000,
Custer visited the Secaucus jobsite one or two times. At the
time, he was in charge of several escalator construction sites
throughout New York, New Jersey and Washington, D.C. Cus-
ter’s primary responsibility is to ensure that the jobs are done
on schedule and in accordance with the contract.
McVicker worked alone or occasionally with an apprentice
at the Secaucus job site from June, 2000 to October, 2000. Dur-
ing that four month period, McVicker organized the job site
including creating specific work plans for the unloading of the
escalators, and ordered equipment and material to perform that
job. This work was necessary in order to comply with Amtrak’s
requirements that each escalator to be unloaded be described in
a drawing and in a written proposal setting forth the means of
unloading and insertion into the building, the type of equipment
to be used, the location of the crane which unloads the escalator
from the truck, the entry point of the truck and which site roads
will be used, and the hours of work. The proposal must be
signed by a professional engineer and submitted to Amtrak for
its approval. McVicker prepared the proposal alone without
consulting with anyone else, and submitted it to an engineer.
While working at the site, McVicker always had an apprentice
assigned to him. He decided when the apprentice was needed at
the worksite, and at other times, when he was not needed, he
told the apprentice to remain at the shop.
The equipment McVicker ordered was usually set forth spe-
cifically in the site specific work plans, such as safety equip-
ment and the type and length of cables and equipment needed
to bring the escalators into the building. In ordering such
equipment, McVicker followed the OSHA and Amtrak safety
guidelines.
McVicker also decided upon the dates that the escalators
would be delivered, he set up the construction trailers and con-
tainers which held the equipment to be used for the erection of
the escalators, and arranged for the installation of telephone and
electricity lines. McVicker also attended weekly job meetings
at which he represented the Employer. The purpose of the
meetings was to discuss the progress of the job. The partici-
pants included other mechanics in charge or foremen. Neither
Custer nor Jenkins attended those meetings, except during the
incident described below.
B. Work at the Secaucus Jobsite
In early October, 2000, McVicker determined that escalators
could be delivered to the jobsite, and notified Custer of that
fact. McVicker decided upon the number of employees to work
at the site. He concluded that two teams were necessary to
unload the escalators and bring them into the building. A team
is composed of a mechanic and an apprentice. McVicker and
his apprentice constituted one team, and he asked Custer to
assign one additional team. McVicker was not involved in the
hire of the employees.
Upon the arrival of the three other employees at the site,
McVicker called a meeting and the men agreed that their work
hours would be 7:00 a.m. to 2:30 p.m., instead of 8:00 a.m. to
3:30 p.m., the regular hours provided in the collective-
bargaining agreement. The employees record their hours and
give the time sheets to McVicker, who checks them, approves
them and submits them to Custer. McVicker assigned overtime
to the workers the first day they worked, without asking Jenkins
or Custer whether he could assign such overtime.
McVicker assigned work to the employees on a daily basis.
Such assignments included unloading equipment, hanging
safety equipment, removing safety lines, backing the trucks into
position; and setting up and positioning the cranes. He stated
that the collective-bargaining agreement requires that certain
parts of the escalators be removed and re-installed. If the work-
ers had any questions concerning the method of installation
they would ask him.
There were three days of work consisting of unloading and
installing the escalators at the Secaucus jobsite. All the wit-
nesses agreed that the first day of work was on Thursday, Oc-
tober 12. There is a disagreement as to the dates of the second
and third days of work. Although there was some discrepancy
in McVicker’s testimony, I agree with his version that the sec-
ond and third days of work were on Friday, October 13, and
Monday, October 16. I do this because (a) McVicker testified
several times to those dates (b) his testimony about the third
day, October 16, agrees with Custer’s testimony (c) Respon-
dent’s charge against McVicker states that the third day was
October 16 and (d) all witnesses agree that the Respondent’s
business agent Raymond Hernandez visited the jobsite on the
second day of work.
The actual dates the work was performed are not critical. All
witnesses essentially agree as to what happened and the se-
quence in which the events occurred. Thus, on the second day
of work Hernandez spoke with McVicker, and that on the final
day of work a confrontation took place between Custer and two
employees. For the purposes of the following recitation of the
facts, I will use McVicker’s version of the dates these events
occurred.
Six escalator sections arrived by truck at the worksite on
Thursday, October 12, 2000. The work of unloading them be-
gan that day. Each section weighs more than 10,000 pounds
and is about 33 feet long. The work included moving the
equipment across the building. When the escalators arrived at
the site, McVicker realized that four employees were too few to
complete the task. He asked Custer to send more workers.
Custer assigned two additional men but they were refused entry
to the site by Amtrak personnel because they were not trained
in Amtrak’s safety procedures. McVicker testified that the
unloading proceeded with four employees. He stated that he
assigned the following work to the employees: assist in unload-
ing the equipment, hang the safety equipment, remove the
safety lines, back the tractor trailers into position, and set up
and position the cranes.
McVicker testified that that evening he phoned Custer and
asked for one additional employee to help them.
In their written statement to the International Union and Re-
spondent, employees Kenny Kolodziej and Thomas Weber
stated that the work was done that day with six employees, or
three teams, but it appears that those six employees actually
worked on the next workday—Friday, October 13.
McVicker testified that on Friday, October 13, the second
day of unloading the escalators, the work was done with six
ELEVATOR CONSTRUCTORS LOCAL 1 (NATIONAL ELEVATOR INDUSTRY) 979
employees, including two extra men sent by Custer at
McVicker’s request.2
Respondent’s business agent Raymond Hernandez testified
that he received a call from Respondent’s day secretary Joe
Nolan who told him that there was a “problem” at the jobsite
concerning the unloading of escalators which related to Article
4 of the collective-bargaining agreement. Hernandez immedi-
ately visited the jobsite and asked McVicker how many em-
ployees would be working at the site. McVicker replied that he
intended to do the installation with six workers. Hernandez
seemed surprised that the work could be done with such few
people but McVicker assured him that since the job was ex-
pected to take two or more years, the smaller number of em-
ployees would be employed a longer period of time. McVicker
stated that the employees told Hernandez that they demanded
that more employees be employed on the job. Hernandez told
McVicker that more workers should be hired. McVicker replied
that he would always have enough people on the job to safely
perform the work. In their written statement, the employees
noted that five men were at work that day. Kolodziej testified
that he believed that the job could be done with five employees
if adverse conditions such as strong wind, were not present.
During his visit, Hernandez gave McVicker a document
which set forth the “jurisdictional paperwork” concerning
which escalator parts had to be removed by the workers pursu-
ant to the collective-bargaining agreement. Hernandez made the
further request that prior to the installation of the glass escalator
sections, the glass brackets had to be removed. McVicker
posted the paper in the trailer for the employees to see.
McVicker stated that the next workday, Monday, October
16, Custer and Jenkins were present to attend a job meeting,
which McVicker was unable to go to because of the escalator
unloading. McVicker and three other men worked at the jobsite.
McVicker assigned Kolodziej and Weber to the second floor,
and he and Robert McVicker, his son, worked on the ground
floor. Kevin Zelinsky was supposed to work that day but did
not appear.
Kolodziej became concerned that with only four employees
the job could not be done safely. He stated that without Ze-
linsky the crew was short one man. He came to the first floor
and told McVicker that there was a problem with “manpower,”
and suggest that McVicker “do something about it.” McVicker
replied that they would “see what happens” and directed him to
set up the crane and go to the second floor and get ready to do
the job—then they would see if Zelinsky appeared. After work-
ing in this manner and upon the arrival of a second truck, Ko-
lodziej noticed that Zelinsky had still not appeared and “now
we have a serious problem arising.” Kolodziej and his partner
Weber stopped work and approached McVicker to “confront”
him regarding the absence of Zelinsky.
McVicker told Kolodziej to speak to Custer about their con-
cern. Kolodziej testified that Custer asked him why he left his

2 I do not credit the testimony of Kolodziej and Weber that on that
Friday no unloading took place because the crane was in use elsewhere.
McVicker testified that he believed that the second day of unloading
was October 13 or 15. However, October 15 was a Sunday when no
work took place.
work area on the second floor. Kolodziej replied that he needed
an extra worker on that floor, and that it was unsafe to unload
the sections with only four employees. Custer responded that
the workforce was short one employee since Zelinsky, who was
assigned to work, did not appear. It was suggested that Custer
direct the crane from the second floor, thereby substituting for
Zelinsky.3 Kolodziej objected that Custer could not perform
unit work since he was not a member of the Respondent. Custer
replied that he would pay Zelinsky for the day even though he
was absent. Kolodziej repeated that Custer could not perform
unit work.
Custer then asked Kolodziej if he was refusing to unload the
equipment. Kolodziej replied that he was not actually refusing
to do the work. Kolodziej testified that he told Custer that he
was refusing to do an unsafe job. Custer responded that if he
was refusing to work he could report to the union hall as he was
fired. Weber then interjected that if Kolodziej was returning to
the union hall he would do the same.
At that point McVicker entered the conversation since he
found that the discussion had gone from being “friendly” to “a
little bit quarrelsome.” McVicker said that there was no reason
for anyone to be fired. McVicker suggested a way to resolve
the matter—the crane would lift the load off the truck and hold
it in mid-air while McVicker went to the second floor before
the load was brought into the building and he would be the
additional worker. Custer made another suggestion and ulti-
mately both suggestions were implemented with McVicker
working on the second floor and Custer performing no work.
The work was completed upon the arrival and assistance of
apprentice Greg O’Loughlin who was requested by Custer to
report to the jobsite from Newark Airport. No one was dis-
charged.
Kolodziej testified that when he was arguing with Custer,
McVicker stood off to the side and did not intervene.
That day was the last day worked by the Employer on the job
site for two weeks due to delays in receiving equipment. In the
interim, McVicker completed paperwork at Secaucus, and was
then reassigned to another jobsite. The Secaucus job resumed in
late October or early November with a delivery of more escala-
tors. McVicker worked on the site with four other employees
but did not act as the mechanic in charge during such work,
which lasted four days.
C. The Respondent’s Proceedings Against McVicker
McVicker received a summons to appear on November 8 be-
fore Respondent’s Executive Board. McVicker stated that at
that meeting, he told John Green, Respondent’s president, that
he was the mechanic in charge at the Secaucus jobsite. Green
examined McVicker’s union card which bore no mention that
he was the mechanic in charge, and told him that he could work
at the jobsite but could no longer “run” that job. According to
McVicker, Green did not offer an explanation. At the meeting,
McVicker was questioned extensively about what had occurred
on October 16, and Green told him that charges might be
brought against him. The following day, McVicker told Custer
3 McVicker first testified that he made the suggestion, and later
stated that Custer did so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
and Jenkins that Green had “unilaterally removed” him from
the position of mechanic in charge at the jobsite.
Anthony Orrigo, Respondent’s secretary-treasurer, testified
here that inasmuch as McVicker’s union card did not say that
he was a mechanic in charge he could not be “accepted” as
such, and was not considered as a mechanic in charge, espe-
cially in light of the safety complaint made against him, which
was subject to further investigation. Orrigo stated that there had
been safety concerns with the Employer and its predecessor
Curtis in the past, and that members of Respondent had died in
accidents on jobsites between 1996 and 1999.
On January 7, 2001, Kolodziej and Weber made a written
complaint to Respondent concerning McVicker’s actions. They
related what occurred at the jobsite which essentially is the
same as McVicker’s version set forth above. Their specific
complaints were that McVicker “ignored the safety issues dis-
cussed with Hernandez” prior to the October 16 incident, and
“set [the employees] up for a confrontation with Custer,” and
also failed to intervene with Custer in their behalf.
Shortly thereafter, McVicker received charges from Respon-
dent, filed by business agent Hernandez. The charge alleged a
violation of the following provision of the Respondent’s consti-
tution and by-laws:

Section 19. Any member to receive over the mechanic’s wage
shall be referred to as “Mechanic in Charge.”
D. He shall be instructed by the Executive Board to report
immediately to the union the following:
3. Any Brother who performs his work hazardous to other
Brothers on said job.

The specific violation alleged that on October 16, McVicker
“expos[ed] members to hazardous working conditions while
overseeing the unloading of escalators from the unloading site
to a second story final destination. Due to extreme equipment
pull off stress, those in the performance of their duties re-
quested more manpower to safely unload material (escalator
truss). Request for additional manpower was refused and threat
that those asking for it would be fired if they did not carry out
the job assignment. Brother McVicker was instructed by
Brother Hernandez to provide more personnel to accomplish
this assignment one-day prior to incident. Brother McVicker,
acting as mechanic in charge refused to comply with the direc-
tive and allowed three workers to attempt to perform the job
assignment.”
Hernandez testified that he filed the charges because during
his conversation with McVicker on October 13, McVicker
“proclaimed himself” the mechanic in charge and accepted the
responsibility of running the job in a safe manner. Hernandez
believed that McVicker violated his agreement with him to
have six employees working on the site, when on October 16,
only four were employed. McVicker therefore was held respon-
sible for “putting four employees in jeopardy.”
A trial on the charges took place on February 6, 2001. Ac-
cording to the minutes of the hearing, Hernandez related that he
directed McVicker on October 15 to have six workers em-
ployed on the site in order to safely perform the work. Accord-
ing to the minutes, McVicker agreed that five workers were
necessary to perform the job but that on October 16 only four
were employed because one employee failed to appear, and
nevertheless, the job was performed safely.
On March 9, Respondent sent a letter to McVicker. The let-
ter stated that its Executive Board found him guilty of both
charges. He was fined $2,000 for each charge, with $1,000 for
each charge to be paid immediately, and $1,000 for each charge
held in abeyance “pending any future violations of the Consti-
tution.” Further, he was prohibited from working as a mechanic
in charge for one year from the date of the letter.
McVicker reported to the Employer that Respondent prohib-
ited him from working as a mechanic in charge. He was told
that the Employer did not want to “ruffle feathers” concerning
Respondent and that they should take a “wait and see” attitude.
The Respondent’s by-laws requires that a member must re-
port to the union the fact that he was appointed as mechanic in
charge, after which the Executive Board explains to him the
working conditions associated with such position. Upon his
acceptance of those conditions, his union card is stamped “me-
chanic in charge.” According to the minutes of the hearing,
McVicker admitted that he did not inform the Respondent that
he had been appointed as mechanic in charge at the Secaucus
jobsite, but at the NLRB hearing, he stated that he telephoned
the Respondent and informed it that he had been so assigned.
McVicker appealed the charges and the verdict to the Un-
ion’s International General Executive Board. On December 6,
2001, the General Executive Board notified McVicker that “in
view of the pending unfair labor practice hearing” before the
National Labor Relations Board regarding the Respondent’s
charges, the appeal was tabled until the next General Executive
Board meeting.
No grievance was filed against the Employer concerning the
allegations of unsafe working conditions.
D. McVicker’s Duties
The collective-bargaining agreement, Section IV(J)—
“Mechanic in Charge (Foreman) of Job” provides that:

Under the direction of a Superintendent the mechanic in
charge shall have the right to assign and schedule work, direct
the work force and to enforce the safety practices and proce-
dures on the job to which he is assigned by the Employer.

The contract also states that when four persons including the
elevator constructor mechanic in charge, are employed on a
new construction job, one shall be designated as the elevator
constructor mechanic in charge of the job and shall have his
hourly rate increased by 12.5% for all hours actually worked.
As set forth above, McVicker decided when employees
should be assigned to work at the project and how many were
needed. He assigned work to the employees on a daily basis. He
has no authority to hire, discharge or promote employees, and
in his pre-trial affidavit he stated that he does not have the au-
thority to discipline employees, explaining that he believed that
the question related to more severe forms of discipline, such as
discharge.4 However, McVicker testified about his discipline
of employee Kevin Zelinsky. He stated that in November, he

4 McVicker at first denied that his affidavit contained the statement
that he did not have authority to discipline employees, but when shown
the affidavit admitted that it did say that.
ELEVATOR CONSTRUCTORS LOCAL 1 (NATIONAL ELEVATOR INDUSTRY) 981
told employee Zelinsky to wear his safety eyeglasses. Thereaf-
ter, an OSHA inspector observed Zelinsky without eyewear,
and directed McVicker to have Zelinsky wear the eyeglasses.
Zelinsky put them on but then removed them. The inspector
returned, saw that Zelinsky was not wearing his eyeglasses and
warned McVicker that unless Zelinsky wore his eyeglasses he
would shut the site down and have the Employer removed from
the site. McVicker then told Zelinsky that he must wear his
eyeglasses or go home because McVicker could not afford to
have the jobsite shut down. Zelinsky then put on the eyeglasses.
McVicker stated that he is the person to whom the Amtrak
inspectors go to if employees are not following safety regula-
tions, as set forth above. He is also responsible to ensure that
employees follow the safety regulations of OSHA and Amtrak.
McVicker stated that if the employees had any questions con-
cerning their work they would ask him.
Regarding his terms and conditions of employment,
McVicker was paid at the contractual mechanic in charge rate,
which was 12.5 percent above the mechanic’s rate, and also
was provided a paid automobile. He was paid at a double-time
rate when he worked overtime and contributions were made to
Respondent’s funds on his behalf by the Employer and other
employers for which he worked. Employer official Custer testi-
fied that Kone employs about 200 elevator mechanics and ap-
prentices, which includes 46 who work in the construction de-
partment—the division of the business in which McVicker was
always employed. Of those 46 employees, seven worked as
mechanics in charge. Custer stated that it is common for em-
ployers to pay a premium rate to mechanics if they are compe-
tent and the employer wishes to retain the employee. Custer is a
salaried employee who is not covered by the collective-
bargaining agreement, no contributions to Respondent’s funds
are made for him and he does not receive pay for overtime
work.
Kolodziej testified that he did not consider McVicker or any
mechanic in charge to be his supervisor. He stated that the me-
chanic in charge “delegates” the work to be done, obtains the
equipment to perform the work and gives material to the work-
ers. Kolodziej and Weber testified that they regarded Custer
and Jenkins as their supervisors, and they would file any griev-
ance they had with those two individuals. Following the close
of the Secaucus job on October 16, Kolodziej was told by
McVicker to call Custer for his next assignment.
McVicker did not participate in any meetings, discussions, or
conferences in the negotiation of the current collective-
bargaining agreement. Counsel for the General Counsel con-
ceded that McVicker is not involved in negotiations for collec-
tive-bargaining agreements, or in the formal grievance proce-
dure.
Respondent’s business agent Hernandez and its secretary
treasurer Anthony Orrigo testified that mechanics in charge are
not generally considered to be supervisors. Grievances are filed
with an employer’s supervisor or office manager, but never
with the mechanic in charge.
III. ANALYSIS AND DISCUSSION
A. The Supervisory Status of McVicker
According to Section 2(11) of the Act:

The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

Section 2(11) is phrased in the disjunctive. The exercise of
authority requiring independent judgment with respect to any
one of the actions specified is sufficient to confer statutory
supervisory status. Queen Mary, 317 NLRB 1303 (1995).
McVicker was the Employer’s sole representative at the Se-
caucus jobsite. The only time that his supervisor, Custer, ap-
peared at the site was on the date of the confrontation concern-
ing the need for additional workers. McVicker was in charge of
the Employer’s day-to-day operations.
The evidence establishes that McVicker initially decided
upon the number of employees needed to perform the work
when the Employer’s work on the project began. He communi-
cated that to his supervisor and the employees were hired.
McVicker assigned employees to their work duties, and di-
rected the complex and dangerous work of unloading enormous
escalator sections from trucks and their installation into the
second floor of the Secaucus facility. He determined how many
employees would be needed to perform various tasks during the
progress of the work itself and recommended to Custer that
additional workers be hired as needed. On the first day of work,
McVicker initiated a meeting of employees to discuss their
work hours and obtained an agreement from them which dif-
fered from the collective-bargaining agreement in that regard.
McVicker decided that employees should work overtime and
assigned such overtime work. He also recorded the employees’
work hours. McVicker issued a verbal warning to Zelinski and
threatened to dismiss him if he did not wear his safety glasses.
In addition, he represented the Employer at contractor meetings
at the jobsite. McVicker checked and approved the time sheets
submitted to him by the employees and sent them to the Em-
ployer for payment.
The employees brought safety issues to McVicker’s attention
for resolution. When employee Kolodziej complained that more
workers were needed, McVicker directed him to proceed with
the preparatory work and said that he (McVicker) would decide
what action to take based upon whether Zelinski reported to
work.
McVicker used independent judgment in the exercise of vir-
tually all of the above duties. Thus, he independently decided
when the job was ready to receive a crew, he decided how
many employees were needed initially and during the progress
of the work, he assigned the workers to, and directed them in
the intricate unloading and installation of extremely heavy and
cumbersome equipment. As the only Employer representative
on the jobsite responsible for a crew of workers, it is clear that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
the exercise of these responsibilities was not the product of
routine direction but was done with the use of extensive inde-
pendent judgment. This is particularly illustrated by the fact
that prior to the beginning of the physical work, McVicker
spent four months creating required detailed work plans for the
unloading and installation of the escalators. The involved na-
ture of this preparatory work, which was approved by an engi-
neer, serves to emphasize that in the actual performance of the
work extensive independent judgment was utilized.
McVicker exercised many of the responsibilities performed
by the mechanic in charge, found to be a statutory supervisor,
in Elevator Constructors Local 36 (Montgomery Elevator), 305
NLRB 53, 54–55 (1991).
Respondent argues that McVicker was not a statutory super-
visor based upon the collective-bargaining agreement which
states that “under the direction of a superintendent the me-
chanic in charge shall have the right to assign and schedule
work, direct the work force . . . .” Respondent contends that
McVicker can exercise no independent judgment since he per-
forms his duties only under the direction of a superintendent.
However, superintendent Custer was not on the jobsite except
on the last day of work, and McVicker exercised his responsi-
bilities in directing the work without supervision. Respondent
further asserts that since McVicker was covered by the collec-
tive-bargaining agreement and was a member of the unit he was
not a supervisor. These cases arise because of the union’s disci-
pline of a supervisor-member who is by necessity a unit mem-
ber. In NLRB v. Electrical Workers Local 340 (Royal Electric),
481 U.S. 573, 595, the Supreme Court stated that the union
member—particularly a supervisor—has “a right to resign from
a union at any time and avoid imposition of union discipline.”
I accordingly find and conclude that McVicker is a supervi-
sor within the meaning of Section 2(11) of the Act.
B. The Alleged Violation of the Act
The complaint alleges that Respondent unlawfully imposed a
monetary fine on McVicker because he (a) refused Respon-
dent’s October 15, 2000 demand that the Employer utilize addi-
tional employees to unload an escalator truss at the Secaucus
Project, and (b) decided on October 16, 2000, to unload the
truss without Respondent’s consent.
Section 8(b)(1)(B) of the Act provides that it is an unfair la-
bor practice for a union to “restrain or coerce an employer in
the selection of his representatives for the purposes of collec-
tive bargaining or the adjustment of grievances.”
The Supreme Court has held that:

A union’s discipline of one of its members who is a supervi-
sory employee can constitute a violation of Section 8(b)(1)(B)
only when that discipline may adversely affect the supervi-
sor’s conduct in performing the duties of, and acting in his ca-
pacity as, grievance adjuster or collective bargainer on behalf
of the employer. Florida Power and Light Co. v. Local 641,
IBEW, 417 U.S. 790, 804–805 (1974).

In those circumstances, “the employer would be deprived of
the full service of his representatives and hence would be re-
strained and coerced in his selection of those representatives.”
American Broadcasting Co. v. Writers Guild, 417 U.S. 411,
429 (1978).
McVicker was the only Employer representative available on
a day-to-day basis to deal with employee grievances and prob-
lems. His duties were similar to those of the supervisor found to
be engaging in Section 8(b)(1)(B) grievance-adjusting func-
tions in Steelworkers Local 1013 (USX Corp.), 301 NLRB
1207, 1209 (1991). Such employee problems included ensuring
the accuracy of payments, job assignments, calling in workers
or requiring overtime, ensuring that employees did not work in
unsafe conditions, and relieving an employee from work for the
remainder of the shift for alleged misconduct. McVicker’s du-
ties involved these matters. If they were the subject of a griev-
ance as was the issue of safety, McVicker, as the Employer’s
representative at the jobsite, had the authority to resolve them.
Thus, Kolodziej asked McVicker to do something about the
fact that they needed an extra worker so that the job could be
performed safely.
Similarly, Respondent’s agent Hernandez spoke to McVicker
concerning an employee complaint concerning the unloading of
the escalators and safety issues. Accordingly, McVicker dealt
with the Respondent concerning employee grievances. During
their meeting, the employees and Hernandez demanded that
more workers be hired. McVicker assured Hernandez that the
number he assigned was sufficient and that he would always
ensure that enough employees were employed to do the job
safely. Thus, McVicker dealt with Respondent’s representative,
and also resolved grievances, if only at a “fairly low level.” It is
clear that the Employer vested McVicker with the “authority
and responsibility to settle jobsite problems, and that [he] was
the only person whom [the Employer] had available to repre-
sent it in day-to-day dealings” with Respondent’s agents. Sheet
Metal Workers Local 68 (DeMoss), 298 NLRB 1000, 1004
(1990).
In that case, the Board found that superintendents who were
the only persons representing the employer on the jobsite and
who were the only persons with the authority and responsibility
to settle jobsite problems, possessed the authority to represent
the employer in the adjustment of grievances within the mean-
ing of Section 8(b)(1)(B) of the Act. DeMoss, above, at 1004.
The Respondent argues that McVicker was not involved in
grievance adjustment. It asserts that McVicker engaged, at
most, in the “resolution of daily supervisory problems or the
resolution of routine personal problems that do not rise to the
level of grievance adjustment necessary to confer 8(b)(1)(B)
status on an employer’s representative.” Elevator Constructors
(Montgomery Kone, Inc.), JD–113–96; Hod Carriers Local 872
(Andrew T. Curd Builders), 310 NLRB 488, 492–493 (1993).
However, in Hod Carriers, the Board stated that it found it
unnecessary to pass on the judge’s conclusion that the foreman
did not possess grievance-adjustment responsibilities necessary
to establish his states as an 8(b)(1)(B) representative, but based
its decision only on the fact that the foreman’s termination did
not result from union coercion. Hod Carriers, above, 310
NLRB 488 at fn. 1. Here, however, McVicker was involved in
genuine grievance adjustment and resolved Respondent’s and
the employees’ concern about manning requirements during the
meeting with Hernandez.
ELEVATOR CONSTRUCTORS LOCAL 1 (NATIONAL ELEVATOR INDUSTRY) 983
Respondent is correct in asserting that Custer took control of
the confrontation with Kolodziej. However, that fact does not
diminish McVicker’s authority. Rather, it appears that Custer
took charge of the situation because he was at the jobsite.
McVicker properly deferred to his supervisor when Custer was
present. Custer did not come to the jobsite in order to direct the
work. The work was in progress when he arrived. Custer and
Jenkins were present for the purpose of attending a job meeting
which McVicker could not attend because he was directing the
installation of the escalator sections.
I also find that McVicker was involved in contract interpreta-
tion. First, he was responsible to ensure that the work was done
according to the collective-bargaining agreement’s standards.
He testified that the agreement specified what work the em-
ployees represented by Respondent must do. In addition, the
contract provides that as a mechanic in charge he was responsi-
ble to “enforce the safety practices and procedures on the
job….” The specific violation charged by Respondent was that
he exposed the workers to hazardous working conditions. Her-
nandez stated that his reason for filing the charges was that
McVicker “proclaimed” himself the mechanic in charge and, as
such, was responsible for the safety of the employees. Accord-
ingly, McVicker interpreted the contract as permitting his as-
signment of a certain number of workers which he believed
could safely unload and install the escalators. Respondent dis-
agreed with his interpretation and fined him because he refused
Hernandez’ demand that more workers be assigned, and that
because fewer workers were assigned, those performing the
work were subject to dangerous working conditions. I therefore
find that Respondent brought charges against McVicker be-
cause of his interpretation of the contract. Sheet Metal Workers
Local 104 (Simpson Sheet Metal), 311 NLRB 758, 759 (1993).
Respondent argues that McVicker was not involved in con-
tract interpretation. Rather, the Respondent and its members
have an overriding concern with safety issues on the job, and
thus raised that matter with him in an attempt to ensure their
safety when moving the escalator sections. I share Respon-
dent’s interest in promoting safe working conditions. However,
the core issue here is the fact that McVicker set the number of
employees needed to perform the work and the Respondent
objected to that number and imposed discipline upon him for
doing so.
In Sheet Metal Workers Local 68 (DeMoss), 298 NLRB
1000, 1003 (1990), the Board stated that:

An important interest that Congress was protecting in Section
8(b)(1)(B) was an employer’s interest in having an individual
of its own choosing to represent it in dealing with the union
that represents its employees. The employer’s need for unco-
erced representation of its interests is of great importance at
the level at which grievances first arise, since the employer’s
preferred interpretation of the contract could be effectively
thwarted by a jobsite representative who “resolved” griev-
ances simply by agreeing to whatever the union’s job steward
proposed.

The fines were imposed upon McVicker because of his in-
terpretation of the contract in a manner which was contrary to
Respondent’ interpretation. In Montgomery Elevator, above,
the respondent was found to have improperly fined the me-
chanic in charge because of his method of interpreting the con-
tract relating to the hoisting of material. The coercion exerted
by Respondent by imposing the fines and prohibiting from
working as a mechanic in charge for one year served to penal-
ize McVicker for his actions while serving as the Employer’s
Section 8(b)(1)(B) representative.
I find that the fines imposed upon McVicker would likely
have an inhibiting effect on his future conduct as a supervisor, a
company representative, and a grievance adjuster. Dallas Mail-
ers Local 143 (Dow Jones Co.), 181 NLRB 286 (1970).
McVicker was fined because of the action he took as a supervi-
sor—the assignment of four employees to move an escalator
section into the building. Respondent’s imposition of a fine
upon McVicker because he exercised his supervisory and Sec-
tion 8(b)(1)(B) duties would necessarily have an adverse effect
upon his future performance of his responsibilities as a man-
agement representative and as a grievance adjuster.
In making future decisions on staffing, McVicker would be
motivated not solely by the Employer’s interests, but by the
actions the Respondent may take against him. This possibility
presents an actual concern since this job was expected to last at
least two years and during the course of that work McVicker
would have to make manning decisions frequently. Such in-
timidation would therefore deprive the Employer of
McVicker’s full and unimpaired service and therefore restrain
the Employer in the selection of its representatives. ABC,
above, at 429.
In addition, the Respondent’s removal of McVicker from his
position as mechanic in charge deprived the Employer of hav-
ing McVicker as its mechanic in charge at its jobsites.
CONCLUSIONS OF LAW
1. Kone, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. Respondent, Local One, International Union of Elevator
Constructors of New York and New Jersey, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By imposing a monetary fine on Peter McVicker by letter
of March 9, 2001, because McVicker refused Respondent’s
October 13, 2000 demand that the Employer utilize additional
employees to unload escalator trusses at the Secaucus project,
and because of McVicker’s decision on October 16, 2000, to
unload the escalator truss without acceding to Respondent’s
demand, Respondent violated Section 8(b)(1)(B) of the Act.
4. By prohibiting Peter McVicker from working as a me-
chanic in charge for one year from March 9, 2001 because of
the reasons set forth above, Respondent violated Section
8(b)(1)(B) of the Act.
REMEDY
Having found that Respondent violated Section 8(b)(1)(B) of
the Act by imposing a monetary fine on Peter McVicker, it is
recommended that it cease and desist therefrom and take certain
affirmative actions necessary to effectuate the policies of the
Act, including rescission of the fine, the removal of all refer-
ences in its files thereto, refund of any moneys paid as a result
of the unlawful fine imposed upon McVicker, and written noti-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
fication to McVicker and to the Employer that this has been
done and that no further action will be taken against him as a
result of the charges filed by Raymond Hernandez against
McVicker, and that an appropriate notice be posted.
Any fines paid by McVicker shall be refunded by Respon-
dent and shall be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
It is also recommended that Respondent rescind its prohibi-
tion upon McVicker that he not work as a mechanic in charge
for one year from March 9, 2001, and make written notification
to McVicker and to the Employer that this has been done.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Local One, International Union of Elevator
Constructors of New York and New Jersey, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Restraining or coercing Kone, Inc., in the selection of
representatives for the purpose of adjustment of grievances by
imposing monetary fines upon individuals because of their role
in the adjustment of grievances on behalf of Kone, Inc., and by
prohibiting them from working as a mechanic in charge.
(b) In any like or related manner restraining or coercing any
employer in the selection of representatives for the purpose of
the adjustment of grievances.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the fine imposed upon Peter McVicker because
of the charges filed by Raymond Hernandez and refund to him
any moneys paid as a result of such fine, with interest, as pro-
vided in the Remedy section.
(b) Rescind the prohibition upon Peter McVicker that he not
work as a mechanic in charge for one year from March 9, 2001.
(c) Within 14 days from the date of this Order, rescind the
internal union charges and the fine levied upon Peter McVicker
and remove from its files all references to the charges and the
fine and the prohibition from working as a mechanic in charge
against Peter McVicker, and within 3 days thereafter notify
Peter McVicker and the Employer in writing that this has been
done and that no further action with be taken against him as a
result of the charges filed against him or because of his role as
an employer representative for the adjustment of grievances.
(d) Within 14 days after service by the Region, post at its un-
ion office in Long Island City, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 29, after

5 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.
6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices 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.
(e) Sign and return to the Regional Director sufficient copies
of the notice for posting by Kone, Inc., if willing at all places
where notices to employees are customarily posted.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT restrain or coerce Kone, Inc., in the selection
of representatives for the purpose of adjustment of grievances
by filing internal union charges against, levy fines against, or
by prohibiting employees from working as a mechanic in
charge, because of their role in the adjustment of grievances on
behalf of Kone, Inc.
WE WILL NOT in any like or related manner restrain or coerce
any employer in the selection of representatives for the purpose
of the adjustment of grievances.
WE WILL rescind the fine imposed upon Peter McVicker be-
cause of the charges filed by Raymond Hernandez and refund
to him any moneys paid as a result of such fine, with interest.
WE WILL rescind the prohibition upon Peter McVicker that
he not work as a mechanic in charge for one year from March
9, 2001.
ELEVATOR CONSTRUCTORS LOCAL 1 (NATIONAL ELEVATOR INDUSTRY) 985
WE WILL within 14 days from the date of this Order, rescind
the internal union charges and the fine levied upon Peter
McVicker and remove all references to the charges and the fine
and the prohibition from working as a mechanic in charge
against Peter McVicker from its files, and within 3 days there-
after notify Peter McVicker and the Employer in writing that
this has been done and that no further action with be taken
against him as a result of the charges filed against him or be-
cause of his role as an employer representative for the adjust-
ment of grievances.

LOCAL ONE, INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS OF NEW YORK AND NEW JERSEY