International Union of Operating Engineers, Local 18

National Labor Relations Board - Board Decisions

Sep 8, 1975

220 N.L.R.B. 147 (N.L.R.B. 1975)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18 147
International Union of Operating Engineers , Local 18,
AFL-CIO (Ohio Contractors Association ) and Wil-
liam F. Murphy. Case 8-CB-1896
September 8, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On May 28, 1975, Administrative Law Judge Rob-
ert E. Mullin issued the attached Supplemental Deci-
sion in this proceeding.' Thereafter, the Respondent
filed exceptions and a supporting brief and the
Charging Party filed cross-exceptions and a support-
ing brief. Both parties also filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge.
ORDER
been prejudiced by this ruling. However, the U.S. Court of
Appeals for the Sixth Circuit disagreed 2 and held that the
Board's conclusion on this issue appeared inconsistent with
an • earlier Board decision in Philadelphia Typographical
Union No. 2 (Triangle Publications), 189 NLRB 829 (1971).
Accordingly, the court remanded the case for a further
hearing "under the standards of the Philadelphia Typo-
graphical Union case..... On August 23, 1974, the Board
directed that a further hearing be held before an Adminis-
trative Law Judge at which the parties would be accorded
an opportunity to produce all evidence relevant to the issue
presented by the court's remand.
On February 20, 1975, and pursuant to the Board's order
of remand, a hearing was held for the above-described pur-
pose. At that time all parties in the original proceeding
appeared with counsel and approximately 200 pages of tes-
timony were taken. At the conclusion of this hearing the
parties waived oral argument. On March 31, 1975, all par-
ties submitted briefs.3
Upon the entire record in the case including the briefs of
counsel, and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
At the reopened hearing the Respondent Union present-
ed testimony as to the conduct of the Charging Party, Wil-
liam F. Murphy, at the Union's referral office and at the
Union's election. The testimony as to Murphy's allegedly
disruptive conduct at the union hall will be considered
first.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board reaffirms its previous Order and here-
by orders that Respondent, International Union of
Operating Engineers, Local 18, AFL-CIO, Cleve-
land, Ohio, its officers, agents, and representatives,
shall take the action set forth therein.
i On June 29, 1973, the Board issued the underlying decision in this case,
204 NLRB 681.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: The
Board decision in this matter, issued on June 29, 1973,'
held that the Respondent violated Section 8(b)(2) and
(1)(A) by unlawfully diminishing the job-referral seniority
of William F. Murphy, a member of the Respondent
Union. At the original hearing the Respondent sought, but
was denied, the opportunity to establish that its purpose in
denying Murphy his normal seniority on the referral list
was not unlawful because he had engaged in offensive con-
duct disruptive of an internal union election. In its original
decision the Board held, inter alia, that the Union had not
'204 NLRB 681.
A. Findings as to Murphy's Conduct at the Hiring Hall
At the time in question the Respondent's referral office
was located on the second floor of the union hall. It was a
large room that was separated by a partition which extend-
ed from the floor to about 3 feet from the ceiling. The
clerical staff that was responsible for the operation of the
referral service was on one side of the partition and the
union members gathered on the other side where chairs
were located and where they awaited their turn in soliciting
employment assistance . At one section of the partition
there was a window and counter to which the members
reported for any union business they wished to transact.
2496 F 2d 1308 , decided , May 31, 1974.
3 The Charging Party's brief was filed with a number of appendices at-
tached . These appendices , labeled as indicated , purported to be the bylaws
of Local 18 (App A); the constitution of the international Union of Operat-
ing Engineers (App B); an Ohio State Building Construction Agreement
(App. C), a partial transcript of the union trial of Murphy (App. D); a
portion of the decision of the Administrative Law Judge in International
Union of Operating Engineers, Local 18, AFL-CIO (C F Braun Company),
Case 8-CB-1816 (App E), and the Charging Party's petition for injunctive
relief, apparently filed recently in the U.S District Court of Northern Ohio
(App. F). None of these documents were introduced in evidence at the
hearing in this case.
On April 7, 1975, the Respondent Union filed a motion to strike the
Charging Party's brief on the ground that it contains matters and docu-
ments that were not offered during the hearing and which are not part of the
record On April 16, 1975, counsel for the Charging Party filed an extensive
memorandum in response to the aforesaid motion. Upon consideration of
all of the foregoing , the motion of the Respondent is granted as to all of the
above-described appendices except Appendix E
220 NLRB No. 29
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Until the early part of 1971 this window had a large, unre-
stricted opening. Thereafter, for reasons which will appear
below, an iron grille was placed across it. Next to the win-
dow there was a door which enabled office personnel to
enter the office area. The bottom of this door had glass
louvres.
Shirley Hacker, the principal dispatcher, was assisted by
Betty Finley, the assistant dispatcher, and employee Pame-
la Coates, in maintaining the referral list for the hiring hall,
taking employment requests from contractors and securing
men to fill such jobs. Hacker had been the dispatcher since
1969 and Finley the assistant dispatcher since 1968. Both
Hacker and Finley testified at length as to Murphy's be-
havior in his contacts with the referral office during the
period from 1970 to 1972. From this testimony it is evident
that whenever Murphy visited this office and was not im-
mediately referred to a job , he thereafter made many more
visits that same day and in succeeding weeks. At the same
time, and during this period, he made dozens of calls to
Mrs. Hacker, Mrs. Finley, or anyone else in the office who
would answer the telephone.
Hacker testified that on many occasions, after Murphy
appeared at the window and was told no job was to be had,
he went immediately to a pay telephone on the first floor of
the building and from there called to ask whether, during
the ensuing minutes, a job had become available. She testi-
fied that whenever she reported that she was still unable to
refer him to a job he would become abusive and curse her.
On one such occasion when he called her a "God damned
bitch" she hung up on him. Almost at once, Murphy ap-
peared in the waiting room and shouted at her through the
window "Do you make it a practice to hang up on mem-
bers?"
According to Hacker, when Murphy came to the referral
office and found that the Union had no job opening for
him he would deride her and the other office personnel
with abuse and profanity. When any of the business agents
were present in the office he criticized them for not being
at work in the field and when no one was present he would
rail at the system and complain that no business agent was
available to hear his demands.
Hacker testified that in 1970 Murphy often stood at the
window and, by reaching over the counter, secured some of
their records which he insisted on perusing. According to
Hacker, in order to prevent Murphy from continuing this
practice, in 1971 an iron grille was installed at the window.
Hacker testified that thereafter Murphy often came to the
office and stood at the window, where he would remain,
silently staring at the girls working in the office, sometimes
for as much as 20 minutes. At other times he would place a
chair against the partition and then stand on it, peering
over the wall at the office personnel without speaking, for
10 to 20 minutes at a time. On other occasions he subjected
them to the same type of treatment by laying on his stom-
ach in front of the door to their work area from which
vantage point he gazed up at them through the louvre
openings. Mrs. Finley corroborated Hacker's testimony as
to these incidents and testified that she found it nerve-
wracking and upsetting to look up from her work and dis-
cover that Murphy was staring at her from over the parti-
tion or peering at her through the louvres at the bottom of administrative purposes is divided into six districts
the door. Both Hacker and Finley testified that they fre-
quently complained about Murphy's practices to Business
Agent Frank Roviscane who admonished the member
about this conduct, but that Murphy persisted in this type
of behavior until the time of his suspension.
Hacker testified that several times when she was explain-
ing the referral system to a nonmember, Murphy appeared
at the window. According to Hacker, when this occurred,
Murphy would interrupt her conversation, make disparag-
ing remarks about the manner in which Local 18 operated
the referral system, tell the nonmember that there was no
use registering , and declare that the referral list might as
well be posted in the men's washroom next to the toilet
paper.
Murphy conceded that during the period in question he
came to the referral office several times a week, that he
occasionally stood on a chair to look over the partition at
the girls in the office , and that after leaving he sometimes
telephoned the girls at the hiring hall as often as 12 times a
day. He further acknowledged that if the switchboard op-
erator put him on hold while he was making a call from the
pay telephone on the first floor of the building, he immedi-
ately went back upstairs to the referral office. Murphy de-
nied that he ever cursed the office workers, that he ever lay
on his stomach and peered at the girls through the louvres
on the office door, or that he ever stood at the counter
window and stared for extended periods of time at Hacker,
Finley, and the others at work there. Murphy's denials,
however, were not credible. Hacker and Finley were com-
pletely frank and forthright in their testimony as to the
antics in which Murphy engaged over a long period of
time. Their testimony carried a persuasive ring of convic-
tion and was entirely convincing. In view of this conclu-
sion, I find that insofar as Murphy's testimony differs from
their account, the testimony of Hacker and Finley is the
more accurate as to what occurred at the Union's hiring
hall during Murphy's visitations and his telephone calls.
Finally, it should be noted, that both Hacker and Finley
acknowledged that, notwithstanding Murphy's harassment,
they were able to carry on their work at the hiring hall and
to do all that was necessary to keep the referral office func-
tioning. This accomplishment, under the circumstances
found above, was, indeed, a tribute to their perserverance.
B. Findings as to Murphy's Conduct During the Union
Election
On February 12, 1972, Local 18 held an election for del-
egates to the forthcoming 1972 convention of the Interna-
tional Union of Operating Engineers. Murphy was a candi-
date for delegate from District No. I of Local 18.4
Some months before the date fixed for the election, the
Union appointed an election committee of 12 members,
the chairman of which was Stanley Blair . This committee
was generally responsible for providing all eligible mem-
bers an opportunity to vote in the election. Shortly after its
formation the election committee retained the Honest Bal-
lot Association (herein HBA) to oversee the preparation,
Local 18 has jurisdiction throughout the entire State of Ohio and for
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18 149
mailing, and tally of the ballots.
The Union spent approximately $10,000 on the conduct
of this election among its over 11,000 members. An
amount slightly in excess of $5,000 was paid to the HBA
for its assistance and an almost identical total was spent on
postage and clerical expense connected with the mailing of
the ballots. George J. Abrams, executive director of the
HBA and the official who was responsible for conducting
the election and counting the ballots, testified at length as
to the procedures which were used to insure that the elec-
tion was both fair and impartial.
Thus, Abrams testified that several weeks before Febru-
ary 12, he secured the Union's mailing list, met with its
election committee, prepared the ballots, and mailed them
out to the eligible members. Thereafter Abrams arranged
for personnel at the HBA office in Cleveland to aid in
counting the ballots on election day. According to Abrams,
the most important document in the conduct of a secret
ballot election is what he termed a "control list," the use of
which is designed to forestall fraudulent voting and the use
of counterfeit ballots. The control list for the Local 18 elec-
tion was prepared by Abrams from the Union's records
and contained the names and addresses of each member
along with the control number assigned to that member by
the HBA. This latter number was also placed on the outer
envelope which the member used in mailing his marked
ballot, and on which the member was required to place his
signature . The staff of the HBA retained custody of the
control list at all times and neither the union officials nor
the candidates were allowed access to it.
On the day of the election, after Abrams and his assis-
tants secured the ballots that had been mailed by the mem-
bers to a special box at the post office, the NBA staff
checked the outer envelopes against the control list to
make certain that the number on each envelope corre-
sponded with the number assigned to that particular mem-
ber. Thereafter the outer envelope, bearing the member's
signature , was removed and the inner envelope containing
the ballot was opened. According to Abrams, however, this
was not done until all of the outer envelopes, bearing the
respective control numbers, were removed so as to main-
tain complete secrecy of the ballots.5 Abrams testified that
after the above-described steps had been accomplished and
before the actual tally of the ballots was begun, the control
list was placed on a separate table in the front of the room.
This was in an area which Stanley Blair , chairman of the
election committee, announced to all present in the room
would be off limits to everyone except Abrams and a mem-
ber of his staff.
The incident in question occurred about 3 p.m. on the
afternoon of the election and when the tally of the ballots
was about half completed. Present in the room were
abrams and his assistants , Blair, and his election commit-
tee, and several of the candidates along with their observ-
ers. Murphy was in the latter group.
According to Murphy, he had been there throughout the
day and had become increasingly irritated because on the
preceding day the election committee had allowed him
5 Before this step was reached the challenged ballots were segregated in
the presence of the candidates and the election committee.
only 3 to 4 hours to examine the election list for the pur-
pose of deciding on challenges. Since the list contained
several thousand names and addresses he considered the
time allotted hopelessly inadequate. Murphy testified that
about the middle of the afternoon he spoke to Abrams
about the matter of challenges and sought to examine the
voting list, but that when he did so, the shouts and threats
that arose caused him to run for his life. According to Mur-
phy, he was pursued out of the union hall and finally ap-
prehended in another building about a block from the elec-
tion site. He testified that he did not realize until he
reached the other building that he had the control list on
his person.
Murphy's version of what occurred was in conflict with
that of Abrams. According to the latter, Murphy was not
engaged in any discussion with him about challenges or
anything else. Instead, according to Abrams, as he and his
staff were busy with the tabulation and about 3 p.m. he
noticed Murphy step up to the table in the restricted area,
take the control list, and make off with it. Abrams testified
that he immediately called out to Blair, chairman of the
election committee, "Mr. Murphy is running off with the
list." Thereupon, Abrams, Blair, and several others began
the pursuit of Murphy. One of the latter was Robert
Bowes, a 61-year-old business agent present at the election
scene as an observer. During the first minute of the chase,
when Bowes was about to overtake Murphy, the latter
turned and kicked him, knocking Bowes to the floor and
breaking his glasses 6 About 300 feet from the union hall
and in an obvious attempt to evade his pursuers, Murphy
entered the Hatton House Restaurant where he ran up to
the second floor. On finding himself at a deadend and with
Abrams and the union officials in hot pursuit, Murphy rid
himself of the control list by sliding it under a locked door
at the head of the stairs where he found himself at bay.
The police were summoned and Murphy was placed un-
der arrest 7 At the hearing, Murphy conceded that he did
not tell anyone, including Abrams, as to what he had done
with the control list. The latter was recovered after the
lapse of about 30 minutes when police, who were called to
the scene, managed to open the door behind which Mur-
phy had concealed the election control sheets. Abrams and
the union officials then returned to the union hall and the
tally of the ballots was completed without further incident.
Abrams testified that Murphy's actions would not have
prevented him from certifying the results of the election,
that there were no challenges as a consequence of this in-
terruption, and that the HBA did not bill the Union for
any additional charges because the tally procedure was
temporarily disrupted.
Blair testified that as Murphy left the union hall, he
heard someone shout, "Stop him, stop him, the son-of-a-
bitch has got the list," and that, later, when on the street
and while running towards Hatton's Restaurant he heard
someone else say "Kill the son-of-a-bitch." Murphy testi-
fied that he heard such shouts when examining the control
list in the room where the ballots were being counted, and
6 Murphy, many years younger than Bowes, is 6 feet 4 inches in height At
the hearing , Murphy conceded that Bowes is about 6 inches shorter than he
r Criminal charges that were filed against Murphy were eventually dis-
missed.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that because of the fear engendered by these threats and
his past experience in the Union 8 he impulsively fled from
the room.
As to the events on the afternoon in question, Murphy
was not a convincing or plausible witness. Whereas he tes-
tified that it was during a conversation with Abrams about
a challenge that he heard the threatening shouts which
caused him to fear for his life and made him flee from the
room, on the basis of Abrams' testimony which was com-
pletely credible, I conclude that Murphy was engaged in no
discussion with the HBA official at the time. It is also
found that the various threats, about which Murphy testi-
fied, and which Blair described, were not voiced until Mur-
phy had fled from the union building and was headed to-
ward the restaurant down the street, where, when he was
about to be apprehended, he sought to dispose of the con-
trol list.
Abrams testified that the availability of the control list
was critical both in maintaining the integrity of the election
procedure by preventing fraudulent balloting, and for pos-
sible use by the U.S. Department of Labor in any subse-
quent investigation of the election under the Labor Man-
agement and Disclosure Act. Murphy's action on the
afternoon of February 12 may have been impulsive and
unreasoned at the outset, but his subsequent conduct in
attempting to dispose of the list when he was about to be
apprehended was an act of sabotage as far as the union
election was concerned. Nevertheless, as found earlier, the
tally of the ballots was completed that afternoon at no
additional expense to the Union and there were, in fact, no
challenges to the conduct of the election.
In the original hearing before Administrative Law Judge
Gordon J. Myatt, it was found that Murphy's conduct dur-
ing the election caused him to be brought up on charges
before the members, who, after a hearing, voted to suspend
him from membership in Local 18 for 2 years and fined
him $500. Murphy paid the fine and appealed the action of
the Local to the International Union.' In May 1972, and
after his suspension from membership, Murphy sought to
register his old referral card at the hiring hall so that he
could secure employment. There he was told by Hacker
that he would have to fill out a new card as a nonmember
and that this card would be placed at the bottom of the
classification to which he was normally assigned by virtue
of his experience. This action, of course, had the effect of
wiping out all the seniority he had accumulated for job-
8 Murphy testified that in 1970 he was beaten by Kenneth Delaney and
James Grothaus , two members of the Union 's executive board , and that in
a civil suit against them he won a $500 Judgment In a Board action arising
on the same set of facts , however, he did not fare so well . After a charge
which he filed resulted in a complaint and hearing, the Administrative Law
Judge dismissed the complaint. International Union of Operating Engineers,
Local 18, AFL-CIO, Case 8-CB-1564, issued on July 16, 1971. In another
action in 1973, Murphy charged Raymond Jamschell , a union agent, with
assault and battery as a consequence of a beating he endured at Columbus,
Ohio. According to Murphy, Jamschell was found guilty of assault and
battery and paid a fine . Later, Murphy filed a civil suit against Jamschell
and, from his testimony , was awarded a $600 Judgment . The Union offered
no testimony to deny or contradict Murphy's account of his earlier experi-
ences as described above.
s The record is silent as to what disposition was ever made of this appeal
by the International Union.
referral purposes . The Union adhered to this position until
about August 14, 1972, when Murphy's old card was re-
turned to its proper order of rotation.
C. Concluding Findings
The Union urges now, as it did at the original hearing,
that Murphy's conduct, including the theft of the control
list and his offensive behavior at the hiring hall gave the
Respondent Union the right to deny him the use of its
referral service. Philadelphia Typographical Union No. 2
(Triangle Publications), 189 NLRB 829 (1971). In that case
a union expelled one Kelley from membership after Kelley,
as treasurer of the local, was found guilty of having embez-
zled over $35,000 from the union treasury. The expulsion
order caused Kelley to lose his seniority under a work ar-
rangement plan which the Union had with his employer
and shortly thereafter he was laid off. In dismissing a com-
plaint which alleged that the Union had violated Section
8(b)(2), the Board found that Kelley's expulsion from
membership was not the cause of the interference with his
employment, and that the removal of his seniority and his
ultimate layoff resulted solely because of the embezzle-
ment. In so holding the Board stated that "Kelley's actions
as treasurer of the Union were so inconsistent with ordi-
nary concepts of honesty as to dispel any notion that the
Union's interference [with his employement] might be con-
strued as having a forseeable consequence of encouraging
union membership." (Ibid., 830).
The situation in the present case is substantially different
from the one cited above, where the peculation of a dishon-
est treasurer could well have destroyed the ability of the
union to serve its membership. Here, the Charging Party
was not a dishonest official of the Union, but only an ec-
centric member. Murphy's conduct, distasteful and objec-
tionable though it may have been, did not prevent the
Union from acting effectively as the bargaining representa-
tive for the membership. The tally of the ballots was con-
cluded on election day, at no additional expense to the
Union, and the dispatchers at the referral office were able
to function and carry on their work, even with Murphy
present. Consequently, it would appear that this case is
distinguishable from Philadelphia Tyopgraphical Union, su-
pra.
The original decision of the Board in this matter left the
Respondent Union free to impose its internal sanctions on
Murphy as a union member by levying a fine, suspending
his membership, or expelling him from Local 18. Even in
the light of Murphy's behavior at the referral office, aber-
rant and offensive though it may have been, and his mis-
creant reaction on the day of the election, it would appear
that any of the foregoing penalties should constitute an
adequate disciplinary sentence without resort to the ulti-
mate weapon, viz, a substantial diminution of any further
employment opportunities. Consequently, on the basis of
the record developed at the supplemental hearing, and on
the findings set forth above, it is now recommended that
upon its reconsideration of this matter the Board reaffirm
its original holding that the Respondent violated Section
8(b)(2) and (1)(A) by unlawfully diminishing Murphy's
job-referral seniority.