International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jan 26, 1967

162 N.L.R.B. 1177 (N.L.R.B. 1967)

INTERNATIONAL UNION OF OPERATING ENGINEERS 1177
has been applied to the employees here involved at a time when there
were other projects in operation as well, we find that the requested
unit, confined expressly to employees at the Raleigh and Wyoming
Counties project, is too limited in scope and is therefore inappro-
priate.6 Accordingly, we shall dismiss the petition for this reason,
without reaching the other issues raised by the Requests for Review.'
[The Board dismissed the petition.]
6 See Rerach Construction Company, Inc., 161 NLRB 1269, where we made a similar
determination that a single project unit was inappropriate on the basis of related facts.
Cf. Daniel Construction Company, 133 NLRB 264; and Trammell Construction Company,
Incorporated , 126 NLRB 1365.
We do not view the Wood and Bush case , 9-RC-6367 ( not published in NLRB volumes),
on which the Regional Director relied , as controlling . In that case, the employer, a com-
pany which had not previously done any construction work in the State of West Virginia,
entered into an agreement with the Intervenor upon acquiring a project award , and, as
of the date the petition was filed, had no construction employees in the State other than
those on the above-described single project.
7 In rejecting the Petitioner ' s request for the employees of the single project here in-
volved, we need not, and do not , here decide whether the appropriate unit for inclusion
of the subject employees would be a multiproject unit of all employees of the Employer,
or a multiemployer unit also encompassing the employees of all other employer members
of the Committee.
International Union of Operating Engineers, Local 478, ABC & D,
affiliated with the AFL-CIO (Oneglia and Gerversani Construc-
tion Co., Inc. ) and Harold Twitchell . Case 1-CB-1128. Janu-
ary 26, 1967
DECISION AND ORDER
On October 27, 1966, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
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 [Chairman McCulloch and Members Fanning and Brown].
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 the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
162 NLRB No. 112.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint 1 pursuant to Section 10(b) of the National Labor Relations Act
(herein called the Act), alleges that International Union of Operating Engineers,
Local 478, AFL-CIO (herein called Respondent or the Union), violated Section
8(b)(2) and (1)(A) of the Act, by causing or attempting to cause Oneglia and
Gerversani Construction Co., Inc. (herein called 0 & G, or the Company), to dis-
criminate against employee Harold Twitchell, and other employees or prospective
employees, in regard to their hire or tenure of employment, and other terms and
conditions of employment. Respondent, by answer, admitted certain allegations of
the complaint, but denied that it, in any manner, violated the Act.
A hearing on the issues raised by the complaint and 'answer, was held before
Trial Examiner Joseph I. Nachman on September 12, at New Haven, Connecticut,
with all parties represented by counsel or present in person. Full opportunity was
afforded all parties to introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally on the record. Oral argument was waived. A brief
submitted by the General Counsel has been duly considered.
Upon the entire record in the case, including my observation of the demeanor of
the witnesses while testifying, I make the following:
FINDINGS OF FACT 2
Harold Twitchell, a member of the Teamsters Union, had been employed for
some years as truckdriver by 0 & G on various of its construction projects. In the
early part of 1966, Twitchell became ill, and his doctor advised that he cease work-
ing as a truckdriver. Because 0 & G regarded Twitchell as a valued employee and
wished to retain him, George Oneglia, a member of the firm of 0 & G, on the
advice of Thomas Gangi, its labor relations director, that such was permissible
under its contract with Respondent, directed that Twitchell be put to work on a
pump on its Colebrook Dam project. Pursuant to such direction, Twitchell was
assigned to operate the pump on the second shift (4 p.m. to midnight); a job admit-
tedly within the jurisdiction of Respondent Union.
The contract in effect between Respondent and 0 & G,3 with respect to union
security, provides:
ARTICLE V
Union Recognition and Security
Sec. 1: The Employer recognizes and acknowledges that the Local Union is
the exclusive representative of all employees in the classifications of work cov-
ered by this Agreement for the purposes of collective bargaining as provided
by the Labor-Management Relations Act of 1947 as amended.
Sec. 2: All present employees who are members of the Local Union on the
effective date of this Agreement shall remain members of the Local Union in
good standing as a condition of employment. All present employees who are
not members of the Local Union, and all employees who are hired hereafter,
shall become and remain members in good standing of the Local Union as a
condition of employment on and after the eighth (8th) day following the
beginning of their employment or on and after the eighth (8th) day following
the effective date of this Agreement, whichever is the later.
ARTICLE VI
Hiring
When the Employer needs additional men, he shall give the Local Union equal
opportunity with all other sources to provide suitable applicants , but the
Employer shall be the sole agent as to whether or not the men furnished are
qualified.
1Issued July 26, on a charge filed June 9 and amended July 14. All dates herein
are 1966
2 No issue of commerce or labor organization is presented The complaint alleges, and the
answer admits , facts which establish these elements . I find such facts to be as pleaded
8 This is a contract between Connecticut Labor Relations Division of the New England
Road Builders' Association , Inc, of which 0 & G is a member , and Respondent, effective
from April 2, 1964, through April 1, 1967.
INTERNATIONAL UNION OF OPERATING ENGINEERS 1179
As disposition of the case turns on events following the assignment of Twitchell
to the operation of the pump on the Colebrook Dam job, the evidence with respect
to which is in conflict , a proper presentation thereof requires that both versions be
stated before resolving the credibility issues.
According to Labor Relations Director Gangi, Twitchell was assigned to the
aforementioned job on May 23. Also according to Gangi, Metz, an admitted agent
of the Union, came to the Company's office on May 24 or 25, complained to Gangi
that the Company had assigned Twitchell, a nonunion man, to operate a pump on
the Colebrook Dam job, and stated that unless Twitchell was taken off that job
immediately, he (Metz) would shut the job down. Gangi testified that he explained
to Metz the Company's reasons for placing Twitchell on the job; that the latter was
a good union man who would have no objections to joining Respondent Union;
that he urged Metz to permit Twitchell to work on the job assigned him; but that
Metz insisted that if Twitchell was on the job that night, the job would be shut
down. According to Gangi, he then agreed to discharge Twitchell, and Metz left the
office. Gangi further testified that he then telephoned the job and directed the fore-
man to discharge Twitchell; that the foreman stated it was too late to do so that
day because Twitchell had started his shift and a replacement could not then be
obtained for that shift, but that he would, as directed, discharge Twitchell at the
end of the shift. According to Gangi, he telephoned Metz that evening at the Tat-
ter's home, and reported the inability to get Twitchell off the job that day, stating
that he would be off the following day, and that Metz agreed, saying, "Okay, I'll
trust you." After the second shift on May 25 ended, the foreman, pursuant to
Gangi's direction, discharged Twitchell.
Metz admits that he went to the Company's office where he had a conversation
with Gangi regarding the employment of Twitchell, but says this was on May 24.4
According to Metz, he went to the Company's office on this occasion because the
assignment of Twitchell to a job within the Union's jurisdiction came to his atten-
tion and he regarded this to be a violation of article VI of the contract, in that the
Company had failed to give the Union "equal opportunity" to provide an employee
for the pump job, and that he so told Gangi. Metz denied that he told Gangi that
the job would be shut down unless Twitchell was removed. He claimed that his
statement to Gangi was that unless Twitchell was removed, he (Metz) would file
for arbitration, as provided in the contract. According to Metz, the conversation
ended when Gangi stated that he would put Twitchell on another job. Metz also
denied that Gangi subsequently telephoned him, claiming that he called Gangi, and
that he did so because he learned that the Company had not called the Union for
a man to replace Twitchell on the pump, nor had it placed another member of
Respondent on that job. According to Metz, Gangi was surprised to learn that
Twitchell was still on the job, saying that he had given directions that the latter
be discharged, and that he would check to "find out why it wasn't done." Metz
admitted that compliance by Gangi with his promise to put Twitchell on another
job, meant placing him on a job not subject to the jurisdiction of the Union.
Although his testimony on this point is rather skimpy, Metz testified that following
the last-mentioned telephone conversation, Gangi telephoned him and stated that
the foreman had trouble in finding a replacement for Twitchell, but that the matter
would be taken care of that afternoon. Presumably this was the final conversation
between Metz and Gangi, to which the latter testified. However, Metz also testified
that he was never informed by Gangi that Twitchell was not employed by the Com-
pany, and assumed that Twitchell was so employed, but on a job not within the
Union 's jurisdiction, until June 22, when he was informed by the Board's field
examiner who investigated this matter, that Twitchell had been discharged by the
Company on May 25. It shall be pointed out in this connection, however, that
Metz admits that the original charge filed in this matter on June 9, came to his
attention when it was received by the Union on June 10 .5 Metz also admits that
after June 10, he did not communicate with the Company regarding Twitchell "s
employment until June 22. On that day Metz wrote the Company that it has no
* I find it unnecessary to resolve the conflict as to the date ; the important thing is what
was said by Metz at the time.
5 That charge alleges "On or about May 26, 1966, the above-named labor organization
caused Oneglia & Gerversani Construction Company to discharge Harold Twitchell in
violation of Section 8(a) (3) of the National Labor Relations Act."
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection to your employing Harold Twitchell in any capacity ," and that it had
advised Twitchell "that you may employ him in any capacity you want." 6
It is conceded that after receipt of the Union 's letter of June 22, the Company
reemployed Twitchell on June 27 in the capacity of "Colebrook plant operator," a
job within the jurisdiction of Respondent , and that Twitchell has been so employed
since that time.
Credibility Resolutions and Concluding Findings
Upon the entire record I credit Gangi, and on the basis of his testimony find and
conclude that through Gangi , Metz threatened to strike 0 & G's Colebrook Dam
project unless Twitchell was removed from that job, because of his lack of member-
ship in Respondent Union. I reach this conclusion for the following reasons:
1. It is highly significant , I believe, that while Metz claims that all he demanded
of Gangi was that the Union be given equal opportunity to furnish an employee for
the job which the Company had assigned to Twitchell , he admitted that had the
Company complied with the contract as he interpreted it, Twitchell would not be
on the job. On cross-examination , Metz modified this by saying that he did not mean
that the Company could not employ Twitchell on the project ; that the Company
could do so and Respondent would, after 7 days, give Twitchell an application for
membership . This explanation , I find, has the indicia of an afterthought.
2. I regard it as significant also that while Metz claims that his only statement to
Gangi was that unless Twitchell was promptly removed from the job, he (Metz)
would "file for immediate arbitration ," he has instituted no such proceedings, so
far as this record shows. There is, therefore , more than a slight suggestion that what
motivated Metz was not 0 & G's alleged failure to comply with the contract, but
Twitchell 's lack of membership in Respondent Union.
3. Finally, it is clear from this record that the Company wanted to keep Twitchell
on the job it had assigned to him , and would have done that had it felt free to keep
him on that job. My observation of Gangi convinces me that he is not the kind of
individual who would have given in on a mere statement that arbitration would be
invoked. I am convinced that something much stronger must have motivated his
agreement to remove Twitchell from the job theretofore assigned him, and that
something must have been what Gangi testified it was, the threat by Metz to close
down the job because of Twitchell 's lack of membership in Respondent Union.
Having found that Metz threatened to close down the job in question unless
Twitchell , a nonunion employee, was removed from the work assigned him by the
Company, it follows that Respondent thereby attempted to cause and did cause
O & G to discriminate against Twitchell because of his nonmembership in Respondent
Union , in violation of Section 8(a)(3) of the Act . Local Union No. 18, Interna-
tional Union of Operating Engineers , AFL-CIO, etc. (Earl D . Creager, Inc.), 141
NLRB 512; Local Union No. 369 of the International Brotherhood of Electrical
Workers, AFL-CIO, etc. (Charles A. Bentley, d/b/a Bentley Electric Company),
143 NLRB 1297 ; Local 106, International Union of Operating Engineers , AFL-CIO
6 The full text of this letter is as follows :
I was shocked today to learn that Harold Twitchell was no longer working for
your company. When we last talked about this man you told me that you were going
to find him another job rather than go to arbitration on your failure to follow the
procedure required in the contract. This afternoon you told me that I had insisted
that you fire him completely from the company. That is not so. I never, never said
anything like that. Let me repeat that this Union has no objection to your employing
Harold Twitchell in any capacity.
However, this Local Union does not give out books to anyone that asks for mem-
bership. We have the right to refuse membership to any person, particularly one who
is physically disabled as you described Air. Twitchell. If membership in our Union
is refused to a man working in our jurisdiction, this Union does not discriminate
against him and we expect that the employer will not discriminate against-or in
favor of-such person because of his non-membership in the union.
Let me also remind you that your company has a contract with this union which
requires you to give us equal opportunity with all other sources to furnish applicants
for employment. This means you have to notify us that jobs are available. You are
not doing this and we plan to complain to the Association if this violation does not
cease immediately.
The business manager has authorized me to write this letter and to tell Harold
Twitchell that we have written you this letter that you may employ him in any
capacity you want.
INTERNATIONAL UNION OF OPERATING ENGINEERS 1181
(Machnick Construction Co., Inc.), 146 NLRB 573. Indeed, at the hearing, counsel
for Respondent conceded that if Gangi was credited , a violation of Section 8(b)(2)
and (1) (A) of the Act by Respondent occurred.
Upon the foregoing findings of fact and on the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. 0 & G is an employer withiri the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening to strike the Colebrook Dam project unless Twitchell was
removed therefrom , because of his lack of membership in Respondent Union, as
above found , Respondent attempted to cause and did cause 0 & G to discriminate
against its employee, Harold Twitchell, in violation of Section 8(a)(3) of the Act,
and restrained and coerced employees in the exercise of rights guaranteed to them
by Section 7 of the Act, and thereby engaged in unfair labor practices proscribed
by Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor practices it will be ordered
to cease and desist therefrom , and take affirmative action designed to effectuate the
policies of the Act. I shall recommend that Respondent be required to make Twitch-
ell whole for any loss of pay he may have suffered by reason of the discrimination
against him by paying to him a sum of money equal to the difference between what
he would have earned as wages during the period beginning with his termination by
O & G on or about May 25, and terminating on the day of his reemployment by
O & G on or about June 27, less his net earnings during that period . Loss of pay, as
aforesaid , shall be computed in accordance with the formula stated in F. W. Wool-
worth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent
having heretofore notified 0 & G, and Twitchell, that it had no objection to the
employment of Twitchell by 0 & G in any capacity , it is unnecessary to direct that
it do so again.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record
in the case , and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that International Union of Operating Engineers, Local
478, ABC & D, affiliated with the AFL-CIO, its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Oneglia and Gerversani Construction Co.,
Inc., to discharge , demote, deny employment to, or otherwise discriminate against
Harold Twitchell in violation of Section 8(a)(3) of the National Labor Relations
Act, as amended , because of his nonmembership in said labor organization.
(b) In any like or related manner restrain or coerce Harold Twitchell, or any
other employee , in the exercise of rights guaranteed by Section 7 of the aforesaid
Act, as amended.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Make whole Harold Twitchell for any loss of earnings he may have suffered
by reason of the discrimination against him , in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Post at its offices, meeting halls, and hiring halls, copies of the attached
notice marked "Appendix ." 4 Copies of said notice , to be furnished by the Regional
Director for Region 1 of the Board ( Boston, Massachusetts ), after being duly signed
7 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the voids "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by its authorized representative , shall be posted immediately on receipt thereof, and
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily posted . Reasonable
steps shall be taken to insure that said notices are not altered , defaced , or covered
by other material.
(c) Additional copies of the aforesaid notice, in the number required by the
aforesaid Regional Director , after being signed by its authorized representative, shall
be forthwith returned to said Regional Director , for posting by Oneglia and Gerver-
sani Construction Co., Inc., said Employer being willing , at its business office and
construction projects within the jurisdiction of the Respondent Union , where notices
to its employees are customarily posted.
(d) Notify the aforesaid Regional Director , in writing , within 20 days from
receipt of this Decision , what steps it has taken to comply herewith.8
8 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the aforesaid Regional Director , in writing , within
10 days from the date of this Order , what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 478, ABC & D, AFFILIATED WITH THE AFL-CIO AND ALL EMPLOYEES OF
ONEGLIA AND GERVERSANI CONSTRUCTION CO., INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Oneglia and Gerversani Construc-
tion Co., Inc., to discharge , demote, deny employment to, or otherwise dis-
criminate against Harold Twitchell in violation of Section 8(a)(3) of the
National Labor Relations Act, because of his nonmembership in this Union.
WE WILL NOT in any like or related manner restrain or coerce Harold
Twitchell , or any other employee, in the exercise of rights guaranteed by Sec-
tion 7 of said Act.
WE WILL make whole Harold Twitchell for any loss of wages he may have
suffered by reason of the discrimination practiced against him.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
478, ABC & D, AFFILIATED WITH THE AFL-CIO,
Labor Organization.
Dated-------------- ----- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having any question concerning this notice or compliance with its provi-
sions may communicate directly with the Board's Regional Office, Twentieth Floor,
John F . Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston,
Massachusetts 02203, Telephone 223-3353.
The Great Atlantic & Pacific Tea Company, Inc. and Retail Clerks
International Association , Local Union No. 1636 , AFL-CIO.
Cases 12-CA-3356 and 12-IBC-2313. January 27, 1967
DECISION AND ORDER
On July 12, 1966, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
162 NLRB No. 110.