J. Livingston & Co.

National Labor Relations Board - Board Decisions

Oct 21, 1971

193 N.L.R.B. 869 (N.L.R.B. 1971)

J LIVINGSTON & COMPANY
J. Livingston & Company and John A. Canning
Local 3, International Brotherhood of Electrical
Workers , AFL-CIO (J. Livingston & Company)
and John A . Canning. Cases 2-CA-12291 and
2-CB-4945.
October 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 8, 1971, Trial Examiner James V. Constan-
tine issued his Decision in this proceeding finding that
Respondents had not engaged in the unfair labor
practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision with a supporting brief
and Respondent Local 3 filed cross exceptions with a
supporting brief and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
I Unlike the Trial Examiner, we find no provision in the collective-
bargaining agreement between Local 3 and Livingston which would have
required Canning to join the Union The clause to which the Trial
Examiner apparently refers, section I I of article XI I, is a supplement to the
agreement which applies only to administrative employees There is no
suggestion in the record that any of the parties considered Canning an
administrative employee Although the Trial Examiner's finding that
Canning was a temporary employee relied in part on the existence of a
union-security clause, we do not regard Canning's employee status as
determinative of the issue in this proceeding and do not adopt the Trial
Examiner's findings in this respect or his discussion of the legal
consequences of Canning's employee status
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
869
JAMES V. CONSTANTINE, Trial Examiner: This is a
consolidated unfair labor practice case brought pursuant to
Section 10(b) of the National Labor Relations Act, herein
called the Act (29 U.S.C. 160(b)). It consists of two cases
which were consolidated for the purpose of trial. In Case
2-CA-12291 a charge filed on March 3, 1971, names J.
Livingston & Company as Respondent. In Case
2-CB-4945, a charge filed on March 3, 1971, names Local
3, International Brotherhood of Electrical Workers,
AFL-CIO, as Respondent. It is referred to as Local 3
herein. In both charges the Charging Party is John A.
Canning.
On April 16, 1971, the General Counsel of the NLRB,
through the Regional Director for Region 2 (New York,
New York), consolidated said two cases and issued a
consolidated complaint based on the said two charges. In
substance said complaint alleges that Respondent Living-
ston has violated Section 8(a)(1) and (3), that Local 3 has
violated Section 8(b)(1)(A) and (2), and that such conduct
by each Respondent affects commerce within the meaning
of Section 2(6) and (7) of the Act. Respondents have
severally answered, each admitting some facts but denying
that it committed any unfair labor practices.
Pursuant to due notice the consolidated case came on to
be heard, and was tried before me, at New York, New
York, on May 17 and 18, 1971. All parties were represented
at and participated in the hearing and had full opportunity
to adduce evidence, examine and cross-examine witnesses,
file briefs, and argue orally. Motions of both Respondents
to dismiss were denied at the trial. All parties argued orally
at the close of the case and thereafter also submitted briefs.
This case presents the following issues:
1. Whether Respondent J. Livingston & Company,
herein referred to as Livingston, (a) discharged Canning
because he was not a member of Local 3; (b) discharged
Canning because Local 3 demanded his discharge for the
reason that Local 3 refused to issue him a new temporary
work card; or (c) did both.
2. Whether Respondent Local 3 (a) caused Livingston
to discharge Canning; (b) refused to approve the continued
employment of Canning by Livingston; or (c) engage in
both acts.
Upon the entire record in this case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent Livingston, a New York corporation, is
engaged in New York and other States in the business of
performing electrical construction and related services.
During the past year it purchased electrical equipment and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
delivered to it in New York directly from other States. I
find that Respondent Livingston is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
193 NLRB No. 143
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it will effectuate the purposes of the Act to assert
jurisdiction over this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Local 3 is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel 's Evidence
John Canning, a millwright and a member of Millwright
Local 740, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein called Local 740, was
employed by Livingston from December 10, 1969, to
December 1, 1970, to pull telephone lines and cables. About
December 9, 1969, Local 3 issued to him and 28 other
millwnghts each a temporary work card similar to the card
of James Sullivan in evidence as General Counsel's Exhibit
2. On the same date the Director of the Employment Plan
of the Joint Industry Board of the Electrical Industry issued
to Canning a referral slip referring him to a job with
Livingston at construction being performed at 1 New York
Plaza, New York City. While employed by Livingston,
Canning did not pay union dues to Local 3 although
members of Local 3 did pay such dues. However,
Livingston deducted 2 percent of Canning's weekly wages
and the weekly wages of all its other employees and
forwarded these sums, as "working assessments," to the
Joint Board described below. Said Board in turn remitted
said sums to Local 3.
Livingston is a member of the New York Electrical
Contractors' Association. The latter is one of three
electrical contractors' associations which are parties to a
collective-bargaining agreement with Local 3. Said agree-
ment is in evidence as General Counsel's Exhibit 3.
Livingston is I of over 400 contributing employers to the
Joint Industry Board of the Electrical Industry and is
familiar with said Board's "employment plan." A copy of
said Board's Rules and Regulations is in evidence as
General Counsel's Exhibit 4. Pursuant to the collective-
bargaining agreement Livingston contributed to the
"annuity fund" of said Board sums of money on behalf of
all Livingston's employees, including Canning.
The details surrounding Canning's employment and
termination may be summarized as follows:
Shortly prior to December 9, 1969, the business agent of
Local 740, Hunt, informed Canning that Local 3 had called
Hunt for men and asked Canning whether he was
interested. Upon receiving an affirmative reply, Hunt
instructed Canning to report to the Jewell Avenue
headquarters of Local 3 the next morning. Upon arriving at
such headquarters Canning observed 15 to 17 other
millwrights there. Such headquarters is on the fourth floor.
Each millwright was presented a slip of paper on which he
was directed to write his name, address, and local union.
After said slips were collected, Business Manager
Thomas Van Arsdale of Local 3 spoke to the assembled
millwrights. Among other things he told them what was
expected of them; that they were being dispatched as
electricians and would receive "a higher rate"; that he
"anticipated no difficulty with the millwrights falling into
the electrical work"; that if they were dissatisfied with the
particular job or were unable to perform it, to return to him
so that he could try to assign them to a more suitable job;
and that, when they resumed millwright work , they should
return the work permit issued to them by Local 3 so that it
would be available to them "at a future date if [they] so
desired to pick it up again ." Van Arsdale also mentioned
that they should "return to Local 3 on the date stamped on
back of the card to have it reissued or validated again."
Shortly thereafter Rosenberg, a business agent of Local 3,
gave the assembled millwrights cards with white pieces of
paper attached to them and told them to take such to a
designated room on the third floor . Such card of one of the
millwrights is in evidence as General Counsel's Exhibit 2.
On the back of Canning 's card was a notation to return on
January 29 , 1970, to have it revalidated . The white piece of
paper attached to said card is in evidence as General
Counsel's Exhibit 5. According to Foreman Paulding, "No
man can work on the job without the card ," i.e., General
Counsel's Exhibit 2.
Said designated room on the third floor was occupied by
the Joint Industry Board . This is composed of employer
and employee representatives and a public member. It
administers the electric industry 's employment plan,
pension plan , annuity plan , vacation plan, and other benefit
plans . It maintains an employment office where electricians
covered by the collective -bargaining agreement register for
work . Employers needing workers notify said office which,
in turn , refers registered applicants to them. Such
electricians are "primarily members of Local 3," but
sometimes others are referred . But all persons referred must
have "Local 3 cards" or "temporary work cards issued to
them by Local 3."
Upon arriving there , i.e., the third floor , Canning handed
in his copy of General Counsel's Exhibits 2 and 5 to a
secretary there . When his name was called he received a
working permit accompanied by a slip , which he described
as a referral slip, directing him to report to an employer, J.
Livingston & Company at 1 New York Plaza , the next
morning. On the next morning Canning went to said jobsite
where he spoke to Livingston 's foreman , John J . Medonia,
whom I find to be a supervisor under Section 2(11) of the
Act. Medonia is a member of Local 3 . Although Medonia
hired Canning after examining the latter's referral slip and
work card (or work permit), Medonia complained, "What
am I going to do with millwrights?" After that Medonia
introduced Canning to the job steward (who was not an
employee of Livingston but of Zwicker) who, in turn, put
Canning to work.
Canning worked under Foreman William Paulding, a
member of Local 3, whom I find to be a supervisor under
Section 2( 11) of the Act. Paulding assigned Canning to the
task of pulling telephone station cables through floor heads.
However, while employed by Livingston & Company
Canning performed other work at I New York Plaza and at
jobsites other than at I New York Plaza where said
Livingston was engaged in electrical construction work.
Canning's temporary work card, similar to General
Counsel's Exhibit 2, directed him to return to Local 3 on
January 29 , 1970, to have it revalidated . On January 28
J. LIVINGSTON & COMPANY 871
Canning did go to Local 3 for this purpose, and it was again
validated. Canning returned again several times prior to
November 23, 1970, on each occasion on or before the
validation expired, and each time his card or work permit
was validated by Local 3. The last date stamped on said
card requiring Canning to obtain a revalidation is
November 23, 1970.
Canning carried his card in his wallet. However, his
wallet was stolen from him in the first week of November
1970. Canning immediately reported this theft to his
foreman, William Paulding, who told Canning that if the
card was not retrieved Canning could obtain a new one
from Local 3. But Canning did not notify Local 3 of such
loss of the working card. Livingston's foremen on the job
require both a referral slip and a working card before they
give anyone a job.
On November 23, 1970, Canning returned to Local 3 to
obtain validation for a new work permit for an additional
period of time . Upon informing the female receptionist
there of his mission , she left to go to another room. When
she came back she told Canning, "We can't give you a
card" because Thomas Van Arsdale had so decided. When
Canning expressed surprise to Van Arsdale, who was called
to the room, especially since "we were right on the verge of
Christmas," Van Arsdale replied that he "didn't intend for
you millwrights to be here this long and I have no intention
of making an electrician out of you." Although Canning
asked to be permitted to work until the first week of
January 1971, Van Arsdale referred Canning to Jim Hunt,
the business agent of Local 740. Nevertheless Van Arsdale
allowed Canning to work until the end of the week "and
then you [Canning] will have to leave."
When the next day Canning recited to his foreman,
Paulding , what Van Arsdale had decided the day before,
Paulding promised to speak to "Sol."' Later in the week
Paulding told Canning, "The union called the office, you
can stay until Tuesday" of the following week, December 1,
1970.2 Upon completing his day on December 1, Canning
was terminated.
Not only did no one at Livingston complain of Canning's
work, but he was often complimented by Foremen
Paulding and Medonia. Although Canning wrote to Van
Arsdale (General Counsel's Exhibit 6) asking him to reissue
a work permit valid until January 8, 1971, the latter never
responded to it.
B. Evidence of Respondent Local 3
James Hunt is the business representative of Local 740.
About December 7 or 8, 1969, he telephoned Thomas Van
Arsdale, the business manager of Local 3, asking the latter
whether " there was a probability of temporary employ-
ment" for members of Local 740 whose "prospects for the
winter were very doubtful." Replying, Van Arsdale told
him to send some men to see him because Van Arsdale felt
he could help such men . The next day Hunt told Canning
and several other millwrights that temporary employment
could be had "working with electricians."
Thereafter a "temporary working card" similar to
General Counsel's Exhibit 2 was issued to Canning
pursuant to written instructions (Respondent Local 3's
Exhibit 1) by Van Arsdale. At or about the same time
Canning on December 9, 1969, was given a slip, signed by
Van Arsdale, to report to the Joint Industrial Board of the
Electrical Industry (See General Counsel's Exhibit 5) "to be
referred for employment as an electrician." Local 3 does
not refer applicants for employment directly to a job. Said
General Counsel's Exhibit 2 mentions that the bearer
belongs to Millwrights Local Union 740. This serves to
identify the worker to the foreman so that the latter will
know the worker is not an electrician.
At the time the temporary work cards (General Counsel's
Exhibit 2) were issued Van Arsdale told the millwright
holders thereof (about 29 in all), one of whom was Canning,
that they were being offered temporary employment, that
an effort would be made to have the Joint Board refer them
to employment, that if they had any difficulty with the work
assigned to them that they should so inform Van Arsdale,
that they should have the temporary work card renewed or
extended before its last expiration date, and that said card
should be returned to Local 3 "when they were no longer
employed in the industry." However, he did not tell them
"how long the temporary card would be good for, how long
the temporary work would be good for."
Such temporary work cards "are primarily issued [by
Local 3 ] to men who are organized electricians . . . who are
awaiting a period of employment and a period of testing so
that [the holders thereof ] could then be issued their
permanent cards." Nevertheless they were also issued "in
this case" to millwrights for temporary employment.
About November 23, 1970, Canning informed Van
Arsdale that the former had lost his temporary work card
and requested that a new one be issued to replace it. Van
Arsdale replied that he was surprised that there were any
millwrights still employed in the electrical industry and that
millwrights had been employed "only . . . on the basis that
they would be there for a few months." Consequently, Van
Arsdale refused to reissue a new card to Canning.
As described above, the Joint Board administers the
employment plan of the electrical industry. Its director,
William Gillin, is a member of Local 3. According to Gillin,
he refers persons applying for work to jobs requiring
electricians. In addition to members of Local 3 Gillin also
refers members of other locals of the International
Brotherhood of Electrical Workers, AFL-CIO, to jobs "in
the territory of Local . . . 3." However, none of the
members of such other locals of the IBEW present him with
a "working card," as "that is not part of [Gillin's]job .. .
[But] they present [Gillin] with a card from the business
manager's office of Local 3, which is telling [Gillin] that
they are qualified electricians."
In addition to members of Locals of the IBEW "people
come off the street and apply to be referred" to jobs by
Gillin. Such persons execute applications for employment.
Gillin "referred out" Canning "on a recommendation from
the business manager's office" of Local 3.
i This is Canning's version. Paulding testified that he "would have to supervisor under Section 2(11) of the Act.
check with the office to see what we're going to do about it " "Sol" is Sol 2 This is Canning's account of what Paulding said Paulding denies that
Werboff, who is Paulding's "boss" on the jobsite I find that Werboff is a he told Canning the Union, i.e., Local 3, called the office
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Evidence of Respondent Employer
Sol Werboff is Respondent Livingston's general foreman.
Livingston "uses qualified electricians that are members of
Local 3, exclusively." This is because such members are
qualified to do the electrical work performed by the
Company, such work being "critical and hazardous." When
work gets slow "in a particular building," and qualified
electricians are available, Werboff "moves them around to
other electrical jobs."
On the job at 1 New York Plaza Canning pulled
telephone cables throughout the building and also helped
set up a specific type (called 701) of equipment room for the
telephone company. But nonelectricians did not perform
any of the electrical work necessary to install telephones in
the building or set up 701 equipment rooms.
Livingston completed its work at I New York Plaza on
March 7 or 8, 1971. As a result Livingston laid off some
electricians. It was Werboff's decision to lay off Canning.
This was not because Canning lacked a temporary card or a
working card. Werboff did not transfer Canning to another
job because Canning was not an electrician and, therefore,
he "couldn't use him." In fact Werboff did not hire any
nonelectricians, although "a few qualified electricians"
were hired, after Canning was laid off. Such newly hired
electricians were sent to work at a job at 919 Third Avenue,
New York City.
When Canning reported for work at Livingston's I New
York Plazajob he executed a so-called "starting ticket." See
Respondent Company's Exhibit 1. Among other things this
ticket stated that he belonged to Local 740. It also discloses
the word "Temp" thereon. The Company's evidence reveals
that this means temporary work. The General Counsel's
evidence discloses that "Temp" indicates that Canning
"possessed a temporary M card, given to [Canning] by
Local 3."
D. Concluding Findings and Discussion
Initially, I rule that the burden of proof is on the General
Counsel to establish the allegations of the complaint by a
fair preponderance of the evidence and that this burden
does not shift to the Respondents. The law governing
burden of proof has been enunciated by the Board with
frequency and citation of cases thereon needs no repetition
in this case.
Further, I rule that even if I reject the defense of each
Respondent this does not aid the General Counsel in
establishing his case. This is because nonacceptance of a
defense or noncrediting of a Respondent's evidence does
not amount to affirmative evidence capable of sustaining
the General Counsel's burden of proof. N.L.R.B. v. Joseph
Antell, Inc., 358 F.2d 880, 883 (C.A. 1); Guinan v. Famous
Players, 167 N.E. 235, 243 (Mass .); Council of Bagel and
Bialy Bakeries, 175 NLRB No. 148.
Upon considering the entire record in this case I am
persuaded, and find, that the General Counsel has failed to
sustain his burden of proof that Canning was denied
employment by either Respondent for reasons proscribed
by the Act. Accordingly, I shall recommend that the
complaint be dismissed as to each Respondent. In arriving
at this ultimate finding I have credited the General
Counsel's evidence and have not credited the evidence of
Respondents to the extent that it is not consonant with the
General Counsel's.
Although the ultimate finding that no unfair labor
practice was committed by either Respondent is derived
from the entire record it is also based upon the following
subsidiary findings, which I hereby find as facts.
a. Canning was hired as a temporary employee.
Although he was not expressly so informed, the evidence
adduced by the General Counsel points to this conclusion.
Thus Canning's working card, issued to him by Local 3,
specifically states that it is a "temporary working card" and
that Canning "has been granted this CLASS M TEMPO-
RARY WORKING CARD until date last noted on reverse
side." See General Counsel's Exhibit 2. Further, Cammng,
in writing to Local 3 on November 28, 1970, himself also
recognized the temporary nature of his working card by
referring to it as "my temporary permit" and requesting
that it "reissue . . . till January 8, 1971." See General
Counsel's Exhibit 6. Since this card specifically mentioned
an expiration date, which could be extended only by the
consent of Local 3, it became incumbent upon the General
Counsel to show that it was not extended for reasons
proscribed by the Act. I find he has failed to show such
illegal reasons.
In addition, Canning's information card or "starting
ticket," filled out by him, states that his employment is
"temp." See Respondent Company's Exhibit 1. Canning
testified that "temp" signified that a temporary M card had
been issued to him. Accepting this version, as against the
Company's that "temp" meant temporary work, it never-
theless follows that Canning himself was aware that he was
hired as a temporary employee.
b. Since Canning became a temporary employee, it was
incumbent upon the General Counsel to show that at some
point his status was converted into that of a permanent
employee, or that the temporary status was terminated for
reasons proscribed by the Act. But the record is bare of
evidence that Canning became a permanent employee. The
fact that he was employed for about a year does not prove
this, especially since Canning himself testified that he had
to renew his temporary working card at stated intervals,
and that failure to renew it destroyed even his temporary
designation. Nor does the fact that the Company contribut-
ed a certain percentage of Canning's wages as payments
towards benefits under the contract with Local 3 require the
conclusion that Canning became a permanent employee.
This is because such payments were made for all employees
regardless of whether they were permanent workers or not.
See General Counsel's Exhibit 3, section X, pp. 27-28.
That Canning was a temporary employee may also be
inferred from the fact that he never was asked to become,
and never became, a member of Local 3 pursuant to the
collective-bargaining agreement. See section II of General
Counsel's Exhibit 3 which requires new employees to
become members of Local 3 on the 31st date following the
beginning of their employment. (The contention of Local 3
in its brief that such agreement did not contain a union-
security clause is not well taken.) Manifestly Local 3 could
have asked for Canning's discharge, since he was not a
J. LIVINGSTON & COMPANY 873
member of Local 3 pursuant to said contract, if he were not
a temporary employee.
c. Canning was not an electrician and, on the evidence
unfolded at the trial, it cannot be found that he was
qualified to perform an electrician's work. Hence it is
reasonable to infer, and I find, that Canning was given
work by Local 3 only because this local was temporarily
assisting members of Canning's union, Local 740. Patently
such assistance was not intended to last forever but, rather,
was offered as a temporary measure to alleviate the
unemployment of millwrights, one of whom was Canning.
d. Canning was not terminated for discriminatory
reasons . In fact he was put to work notwithstanding that he
was not an electrician and not a member of Local 3, an
electrical union. Certainly neither Respondent displayed
hostility towards him because he was a millwright and a
member of Local 740. It is therefore reasonable to imply,
and I find, that Canning was terminated for reasons
unrelated to his nonmembership in Local 3. Rather, it is
reasonable to infer, and I find (as noted above) that
Canning's employment ceased because the special arrange-
ment under which he was hired for a temporary period
expired.
To deduce otherwise would be to assume that Canning
somehow acquired a vested right to remain on ajob which
was performed by and utilized electricians and to work for
an employer who had no need for millwrights. Cf. National
Electrical Contractors Association, 190 NLRB No. 43. In
fact there is nothing in the record which suggests that
Canning was prevented from taking an examination to
qualify as an electrician , thus enabling him to be considered
for employment as an electrician if he so desired.
e. Finally, it is reasonable to infer, and I find, that
Livingston no longer needed millwrights to perform the
unskilled labor connected with electrical work, and that this
is the reason why Canning was not retained. Obviously
3 In the event no exceptions are filed as provided by Section 10246 of
the Board 's Rules and Regulations , the findings , conclusions , recommenda-
tions, and recommended Order herein shall , as provided in Section 102.48
Livingston was not obliged to continue to employ
millwrights to perform work-albeit unskilled-normally
performed by electricians or apprentice electricians,
especially when it was paying such millwrights, as unskilled
workmen, the higher wages of skilled electricians.
It is desirable to emphasize that Canning was hired for
temporary work of an unskilled nature, and that he realized
this. He cannot now complain that such temporary work
came to an end. In fact, he was allowed to remain on the
job for a short while after he lost his temporary work card,
thus demonstrating that his lack of membership in Local 3
had not contributed to his loss of his job.
Accordingly, I shall recommend that the complaint in
this consolidated case be dismissed as to each Respondent.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Local 3 is a labor organization within the meaning of
Section 2(5) of the Act.
2. Livingston is an employer within the meaning of
Section 2(2) and is engaged in commerce as defined in
Section 2(6) and (7) of the Act.
3. Neither Local 3 nor Livingston has committed any of
the unfair labor practices as alleged against each in the
complaint.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this case, I hereby issue the
following recommended: 3
ORDER
It is ordered that the consolidated complaint be, and it
hereby is, dismissed in its entirety as to each Respondent.
of said Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.