168 N.L.R.B. 965 (N.L.R.B. 1967)

Local 12 (Modular Structural Systems)

National Labor Relations Board - Board DecisionsDec 19, 1967

168 N.L.R.B. 965 (N.L.R.B. 1967)

LOCAL 12 (MODULAR STRUCTURAL SYSTEMS) 965 Local 12, International Association of Bridge , Struc- tural & Ornamental Iron Workers, AFL-CIO (Modular Structural Systems, Inc.) and William E. Buckley. Case 3-CB-1033 December 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 7, 1967, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief. 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 powers in connection with this case 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, the brief, and the entire record in the case, 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent , Local 12 , International Association of Bridge , Structural & Ornamental Iron Workers , AFL-CIO, its officers , agents, and representatives , shall take the action set forth in the Trial Examiner's Recommended Order , as herein modified: 1. Delete paragraph 1(b) of the Trial Examiner's Recommended Order, and the second indented paragraph of the Appendix attached to the Trial Ex- aminer's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This proceeding was heard at Albany, New York, on July 20, 1967,1 ' Unless otherwise indicated, all dates refer to the year 1967. pursuant to a charge filed on May 23, by William E. Buckley , an employee of Modular Structural Systems, Inc., herein called the Company , against the Respondent, Local 12, International Association of Bridge , Structural & Ornamental Iron Workers, AFL-CIO, herein called the Union , and pursuant to a complaint issued June 21. The primary issues are whether the Union (a) caused the Company to terminate Buckley by threatening a strike, and (b) attempted to coerce Buckley into withdrawing his NLRB charge against the Union , in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Upon the entire record ,2 including my observation of the demeanor of the witnesses , and after due considera- tion of the briefs filed by the General Counsel and the Union , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a New York corporation, has its prin- cipal place of business in Latham, New York, is engaged in the erection of steel buildings, and receives annually goods and materials valued in excess of $50,000 directly from outside the State. The Union admits, and I find, that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Buckley Soliciting Own Jobs William E. Buckley, a former member of the Union, returned to the Albany area in June 1966, deposited his dues book from an out-of-State local, sought membership in the Union, and paid the required travel service dues for working in the Union's jurisdiction. The Union referred him to his first job, but thereafter he solicited his own jobs. About August 1, 1966, before leaving the first job, Buckley telephoned the union business agent, James Winig, and asked if it would be all right for him to go to work for a second employer. Winig answered that it was all right, but told him that inasmuch as he was not a member of the Union, he should not be soliciting his own job. About 4 months later, before leaving the second job, Buckley again telephoned Winig, reporting that he had a chance to go to work as a foreman for a third employer. According to Buckley's credited testimony, Winig first "said he didn't want me to go to work for [the third employer] as a foreman," and then after discussing Buckley's chances of becoming a member of the Union, Winig said "I couldn't go to work [there] as a foreman." (Winig did not specifically deny this conversation.) Buckley took the job, and worked there as a foremanand as an ironworker until he was laid off on May 12. On Monday, May 15, Buckley solicited a job with the Company. The company officials, who were familiar with his work, agreed to pay him 25 cents above the union scale for foremen to work on various jobs as assigned. He was told to report to work the following morning in the 2 The General Counsel's motion to correct transcript, dated August 23, is granted and the transcript is hereby corrected accordingly. 168 NLRB No. 124, 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's yard, where he would work on building rods and mats until he was assigned to work elsewhere, includ- ing building erection on two projects, each requiring over a month and a half or 2 months of ironwork. B. Buckley's Early Termination Without contacting the Union about this fourth job, Buckley reported to work on Tuesday morning, May 16. The Company then telephoned the union hall for another ironworker, and the Union referred John McCarthy as a rodman, assuming there would be only one ironworker on the yard. Finding himself to be the second man there, Mc- Carthy became the union steward on that job (in ac- cordance with the union practice for the secomd em- ployee), and asked Buckley if he had checked with the hall. Buckley replied that he had forgotten all about it. McCarthy said, "You'd better check in with the hall then and see about your dues and assessments, that you are in good shape." Buckley promptly called Business Manager Winig, reported that he had hustled a rod job with the Company, and asked if it was all right to go to work there. Winig (not knowing that the Company had assigned Buckley to be the foreman on the job) said, "Fine, go ahead." That afternoon, after returning from lunch, McCarthy told Buckley to call the hall again. Buckley did, and ac- cording to his credited testimony, he talked to Union Pre- sident Thomas Mullen who "asked me what the hell, the reason I went out soliciting my own job when I wasn't a member of Local 12." Buckley said he had talked to Winig that morning and Winig had said it was all right, but Mullen "told me I didn't say I was going to be a foreman. ... When you're not a member of Local 12, you are not supposed to ... solicit your own jobs.... I want you to come to the Executive Meeting this coming Tuesday night [May 23] and explain your position." (Mullen did not directly dispute this conversation, although he testified that neither he nor Winig objected to Buckley getting his own work. Mullen did not impress me as a trustworthy witness, and I discredit his testimony where it conflicts with Buckley's.) Buckley returned to work and remained on the job as working foreman through Thursday, May 18. Sometime during that day, Company General Superintendent Paul Bishop went to the yard where Buckley and McCarthy were working. As credibly testified by Buckley, without objection, "Mr. Bishop ... says the hall called the office and raised a lot of hell about you going to work for us.... Didn't you square yourself with the Union?" Buckley said that he had. Bishop responded, "Well, go on up to the office and talk to [General Manager] Brian Hollenbeck ... and see if you can't straighten it out." When Buckley and Bishop reached the office, Hollenbeck "said it looks like Jim Winig's going to pull all my men from me ... because you're working as a foreman.... I'll have to let you go.... I got a lot of good work coming up. . . I need the men and ... I can't afford to get involved in any union squabbles." Then Bishop "dialed the union hall ... said `Hello, Jim. I would like to talk to you about Buckley, what are we going to do to straighten this out?"' (Buckley could not hear what Winig answered; none of the com- pany officials testified; and Winig was not questioned directly about the telephone call when called as a defense witness.) Later in the conversation, following the telephone call, Bishop mentioned that the Company had jobs in Herkimer and Kingston, New York, and Buckley suggested, "Why don't you send me out to Herkimer, that is out of the jurisdiction of Local 12 and that way Mr. Winig won't be so. . . angry at me." Bishop asked, "What about this job," and Buckley said , "Well, you have Alex Blackburn here.... Let him be the foreman down on the yard on this rod job with McCarthy to help him." Bishop agreed, and suggested that they send for Alexander Blackburn (an ironworker who had worked for the Com- pany about 3 years and whom the parties stipulated was a union steward at the Company and an agent acting on the Union's behalf). About 4:30 that Thursday afternoon, May 18, Steward Blackburn (in Buckley's words) "came in and I said I sup- pose you know about the hall calling here ... and raising hell because I'm working for Modular. He said, `I knew about it.' And I said, `Well, they're going to knock you guys off tomorrow morning if I'm still on the payroll.' And he said, `Yes, I know.' And I said , `We've been discussing about me going to Herkimer on Monday and you run the job here, how does that sound?' And he said, `Well, I'll talk to Jim Winig tonight ... And then I'll let you know in the morning."' (Emphasis supplied. When called as a witness by the General Counsel, Blackburn appeared to permit his loyalty for the Union to affect his candor. However, after being shown his pretrial affidavit, he admitted that he told General Superintendent Bishop "that Buckley had to go down to Local 12 to answer some charges and that he couldn 't work for Modular until he got it straightened out and that he couldn't work in Local 12's jurisdiction until he got it straightened out.") The next day, Friday, May 19, Buckley asked Steward Blackburn if he had talked to Winig, and Blackburn an- swered: "He said you work here today in a gang; Monday you go up to Herkimer." Buckley worked that day in the gang with McCarthy, and Blackburn acted as foreman. Buckley continued to receive $5.50 an hour, 50 cents above the union scale for the work he was doing. (I reject the Union's belated contention, made at the close of the trial and in its brief, that the General Counsel 's case is pure hearsay. Steward Blackburn's admissions, both in the Company's office on May 18 and on the stand, are not hearsay and are binding on the Union. Furthermore, I consider the credited testimony concerning the conver- sations and occurrences in the yard and in the office be- fore Blackburn arrived, and in the office on May 23 (as discussed below) to have probative value, particularly in view of Blackburn's admissions and the sequence of events. Buckley worked in Herkimer part of 1 day, on Mon- day, May 22, and then was instructed to report back to the company office in Latham on Tuesday morning because of a shortage of materials on the Herkimer job (about 73 miles from Latham). Buckley reported as in- structed, whereupon General Superintendent Bishop ter- minated him , saying "It looks like you can't work for us. I've been told by [Steward] Blackburn that [Business Agent] Winig said you cannot work for Modular or ... in this territory at all.... So ... I guess I'll have to let you go.... I'll pay you four hours for today." This was on the morning of May 23, the day Buckley was directed by the Union to report to the executive board "on charges." When called as a defense witness, Winig testified: Q. (By Mr. Torche) You've heard all the testimony of Mr. Buckley, the statements that were supposed to have been made by you to somebody; is this true or untrue? A. False in its entirety. LOCAL 12 (MODULAR STRUCTURAL SYSTEMS) 967 He also gave other general denials, that he had ever told anybody to fire Buckley, and that he ever told any em- ployer, or anybody to tell an employer, that Buckley was not to work in this area any more. (I discredit these deni- als, finding from Winig's demeanor on the stand and the content of his testimony that he was not a credible wit- ness. ) Winig did admit on cross-examination that "We don't like the idea" of a man who already has a job to go out and get another one, which Winig testified he remem- bered "Quite well, quite well" Buckley had "done on nu- merous occasions." C. Concluding Findings From the above-cited evidence and the record as a whole, I find that the only reason that the Company trans- ferred the highly competent Buckley from the yard job on May 19 and terminated him on May 23 was the Union's threat to remove the other ironworkers unless the Com- pany did so. I further find that the Union caused Buckley's termination, not because of any failure to tender union dues or the initiation fee, but because Buckley failed to follow internal union procedures or poli- cies (not required by the collective-bargaining agreement) and because he was not a member of the Union. The Union's conduct clearly violated Section 8(b)(2) and (1)(A) of the Act. Concerning the allegation that the Union attempted to coerce Buckley into withdrawing his NLRB charge, I find that there is insufficient evidence to support the al- legation. Although I otherwise credit the testimony of Buckley, who appeared to be an honest, forthright wit- ness, I find that his recollection about this purported in- cident was too inadequate to be credited. I shall therefore recommend dismissal of the allegation. CONCLUSIONS OF LAW 1. By causing the Company to terminate the employ- ment of William E. Buckley on May 23, 1967, in violation of Section 8(a)(3) of the Act, the Union has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act. 2. There is insufficient evidence to support the allega- tion that the Union violated Section 8(b)(1)(A) of the Act by attempting to coerce Buckley into withdrawing the charge. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct, and to remove the effect of the unfair labor practices and to ef- fectuate the policies of the Act. The Respondent having unlawfully caused Modular Structural Systems, Inc., to terminate William E. Buckley, I shall recommend that the Respondent be or- dered to notify the Company that the Respondent has no objection to his reinstatement. Inasmuch as Buckley had been employed permanently, or at least for an indefinite period of time to work on a series of projects, I shall also recommend that the Respondent be ordered to make him whole for any loss of earnings suffered from May 23, 1967, the date of his termination, until the date 5 days after the Respondent serves on the Company the above- required notice. The loss of earnings shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum as pro- vided in Isis Plumbing & Heating Co.,138 NLRB 716. Having considered all the circumstances of this case, including (a) the Union's flouting of the Act by threaten- ing a strike to coerce compliance with internal union poli- cies, and (b) the demeanor of union representatives on the stand, indicating a disregard of the truth and a deter- mination to defy the remedial procedures of the Act, I find that the Respondent could be expected to attempt to nullify the effectiveness of remedial measures by taking further reprisals against Buckley. Therefore, in order to vindicate the right of Buckley and others working under the union agreement to seek redress for lawless dis- crimination, and to prevent the Respondent from taking additional reprisals against Buckley for properly resorting to the Board's processes, I shall recommend that the Respondent be ordered to refrain from maintaining any past, or taking any future, action of any kind against Buckley, including any punishment, penalty, or any ad- verse consideration on his membership request, for any of Buckley's acts or omissions preceding the Respond- ent's above-required notice to the Company. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pur- suant to Section 10(c) of the Act, issuance of the follow- ing: ORDER Respondent, Local 12, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, its officers, agents, representatives, and suc- cessors, shall: 1. Cease and desist from: (a) Causing or attempting to cause Modular Structural Systems, Inc., or any other employer, to discharge or otherwise discriminate against William E. Buckley or any other of its employees in violation of Section 8(a)(3) of the Act. (b) Maintaining or taking any action against Buckley of any kind, as provided in the section of the Trial Ex- aminer's Decision entitled "The Remedy." (c) In any like or related manner restraining or coerc- ing members and nonmembers in the exercise of their rights as employees under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Buckley and Modular Structural Systems, Inc., in writing, that it has no objection to the Company reinstating him. (b) Make whole Buckley for any loss of earnings he may have suffered as a result of his termination by the Company, as provided in the section of the Trial Ex- aminer's Decision entitled "The Remedy." (c) Post at the Respondent's business offices and meeting halls, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by 3 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 words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 968 DECISIONS OF NATIONAL the Regional Director for Region 3 (Buffalo, New York), after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material . Upon request of the Regional Director the Respondent shall supply him with a sufficient number of signed copies for posting by Modular Structural Systems, Inc., if the Company desires to do so. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS ALSO ORDERED that the complaint be dismissed in- sofar as it alleges any violation of the Act not specifically found herein. 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 12, INTERNA- TIONAL ASSOCIATION OF BRIDGE , STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT induce Modular Structural Systems, Inc., or any other employer, to discharge or other- wise discriminate against William E. Buckley or any other member or nonmember for failing to follow any union policy not required by the union contract. WE WILL NOT take any action against Buckley, or discriminate against his application for membership in the Local. WE WILL notify Modular Structural Systems, Inc., that we have no objection to its reinstating Buckley. WE WILL pay Buckley for any earnings he has lost as a result of our causing the Company to discharge him. LOCAL 12, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMEN- TAL IRON WORKERS, 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Resident Office, 7th Floor Dirslane Building, 60 Chapel Street, Albany, New York 12207, Telephone 472-2215.