Eller & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1984

273 N.L.R.B. 57 (N.L.R.B. 1984)

ELLER* /4 . CO. 57
Eller & Company, Inc. , and Gary Lee Jones and
Arthur Lee Brown •,
International Union of Operating Engineers Local
675; AFL-CIO and Gary Lee Jones and Arthur
Lee Brown. .Cases 12-CA-10556, 12-CA-
10587, 12-CB-2480-1, and 12=EB-2480-2•
•30 November 1984
'DECISION ' AND ORDER
' By MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 25 June 1984 Administrative Law Judge
James J. O'Meara Jr., issued the attached decision.
The General Counsel filed exceptions and -a sup-
parting brief, and the Respondent Union and the
-Respondent Employer filed answering . briefs. The
_Respondent UniOn'also.filed" cross-exceptions and a.„
supporting brief.' ^
- The -National Labor- Relations Board has delegat-
ed its authority in this -proceeding to - a three-
member panel:
The Board has considered the decision and the -
'record in light of the exceptions- and briefs and his
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order.
ORDER:
, •
The recommended Oider of the administrative
law judge is adopted and the complaint is dis-
missed.
The mations of the Respondent Union and the Respondent Employer
to strike the' General Counsel's Notice of Authority are denied as lacking
merit
The General Counsel and the Respondent Union 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 1.88 F.2d 362 (3a Cu' 1951) We have carefully examined the record
and find no basis for reversing the findings
DECISION
, STATEMENT OF THE CASE
JAMES J. O'MEARA -JR., Administrative Law Judge
These cases were consolidated and-tried at Miami, Flon-
,da, on May 3 and 4; 1983:- The Charges were filed by
'Gary Lee Jones 'and Arthur Lee BioWn against the
Union . Respondent on January 20, 1983, Subsequently,
Jones and Brown filed additional charges against the
Company Respondent on -February 1 and 24, 1983,• re-
spectively On March 9, 1983, a consolidated• complaint
was issued based on the four charges. That complaint al-
leges that Jones and Brown were discharged by the Re-
spondent Eller & Company, Inc. in response to the re-
quest of the Union. The- complaint also alleges that the
Union, through several officials, threatened several em-
ployees with loss of employment because of Alien - in-
•traunion political views and activities ,,The cornplaint
charges that such activities constituted y' iolatio-ns-of Sec-
tion 8(a)(1) and (3) and Section 8(b)(2)of the Abt.,
- The Respondents, Eller 'Company, 'Inc and the
.Union, deny that they have violated the Act. . •
On the entire record,_ including my observation of the
demeanor of the witnesses, and in consideration ,of the
:briefs filed by the General Counsel; the Company 'Re-
'spondent, and-the Union Respondent, J. make the follow-
ing • ' ,
. -
FINDINGS OF FACT,;,
, I JURISDICTION •. . - •
Respondent Eller & Company, Inc. '(Eller) is a Florida
co-rperation with several offices and place's-of business in
.the.State • of Florida, including its faciliiy located.at Port
'Everglades, Florida. It has been engaged in the business
providing maritime services, including stevedoring
services and' warehousing at various locations in several
'States including its facility at Port _Everglades, 'Florida,
which is the site of the incident giving rise to this- case.
During the past 12 months, Respondent Eller, in the
dotirse and conduct of its business operations, performed
services valued in excess of $50,000- in States other than
'the . State • of Florida, and is now, - and has' been at all
times material; an employer engaged in commerce within
the'meannig , of Section 2(2), (6), and (7)-of the Act
Respondent International Union of Operating 'Engi-
neers; Local 675 (the Union) is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
I find that it will effectuate the policies of the Act to
assert jurisdiction in this case.
:IL STATEMENT OF, FACTS
A - The Business of Respondent - Eller
' Eller is:engaged in the mantimesindustry as a shipping
agent and Provides stevedoring and other maritime serv-
ices at various seaports throughout Florida, Virginia, and
Texas - At its Port Everglades, Florida operation the
Company employs operating 'engineers represented by
the UniOn as well as other employees. Approximately 3
Percent_ of 'the vessels unloaded by Eller at Port 'Ever-
glades' require the use of Eller-operated cranes and union
crews to operate them.'
B. Eller's Employment of Operating Engineers . 4
The number of operating engineers engaged to operate. .
Eller's cranes 'constantly changes due to fluetuatiOns in-
the nuinber and type of vessels for which Eller provides
steyedonng facilities These operating engineers are Ob-
tained through the Union's hiring hall and at the request
of Eller. As a result of these circumstances, layoffs of
operating engineers occur frequently. In 1982 Eller laid
off a, total of 18 crane operators;' some of the operators
have been hired and laid off several -tinies ,during the
year.
273 NLRB No. 10
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the`practice 'of the Company at 'all times materi-
'al tiy the issues, in 'this 'complaint to maintain four "per-
manent"' OP6-aters_ or "continuous" - employees: These
permanent ciPerators perfornied thëir duties in • teams -of
two and Operated-itid Maintained two cranes. The four
continuous 'emplOyees' 'were treated . 'differently from
other operators by the Company in that they were paid
50 cents per hour over and above that wage required