Local 15, Operating Engineers

National Labor Relations Board - Board Decisions

Aug 23, 1977

231 N.L.R.B. 563 (N.L.R.B. 1977)

LOCAL 15, OPERATING ENGINEERS
Local 15, International Union of Operating Engineers
(Akron Wrecking Corp.) and Thomas M. Hebb.
Case 2-CB-6391
August 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On April 7, 1977, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
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 Administrative Law Judge and
hereby Orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). we have
carefully examined the record and find no basis for reversing his findings.
2 We disavow the Administrative Law Judge's reliance on Hotel, Motel &
Club Employvees Union Local 6, Hotel & Restaurant Employees & Bartenders
International Union. A FL-CIO (Domac Corporation, d/b/a Hotel Commo-
dore). 164 NLRB 491 (1967). The facts of the instant case are materially
different from those of the cited case, and therefore that case has no bearing
on the conclusion we reach here.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This case
was heard before me on January 26, 1977, at New York,
New York. The charge was filed by Thomas M. Hebb
(hereinafter Hebb) on September 9, 1976,1 and the
complaint was issued on November 16. The principal
issues are whether Local 15, International Union of
Operating Engineers (hereinafter Union), the Respondent,
through its alleged agent Robert Pittlack (hereinafter
Pittlack): (a) violated Section 8(b)(2) and (I)(A) of the
I All dates are in 1976 unless otherwise stated.
National Labor Relations Act, as amended (hereinafter the
Act), by unlawfully causing or attempting to cause Hebb's
termination from employment at Akron Wrecking Corp.
(hereinafter Akron), on September 3; (b) unlawfully
restrained and coerced employees in violation of Section
8(b)(IXA) of the Act by threatening Leo Gach (hereinafter
Gach), Akron's vice president, with "trouble"; (c) violated
Section 8(bXIXl)(A) on September 3 by Union President and
Business Manager Thomas P. Maguire, Jr. (hereinafter
Maguire), allegedly telling Hebb large numbers of union
members would appear on Akron's jobsite to intimidate
and harass Hebb if he kept working; and (d) discriminated
against Hebb when, on September 27, Maguire allegedly
told Gach that Hebb would not be permitted to work for
Akron.
All parties were afforded full opportunity to participate
in the proceeding. The counsel for the General Counsel of
the National Labor Relations Board (hereinafter the
Board)2 and counsel for the Union filed briefs which have
been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Akron, a New York corporation, at all times material
maintained its principal place of business at the Foot of
Jersey Avenue, Jersey City, New Jersey, and other places
of business at construction sites in various States of the
United States, including a jobsite at East 16th Street and
Avenue C in New York, New York (hereinafter the 16th
Street site).
At all times material herein, Akron has been engaged in
the building and construction industry as a demolition
contractor and has annually performed services exceeding
$1 million for various enterprises located in States other
than New Jersey. In addition, Akron performed services
exceeding $1 million in value annually outside the State of
New Jersey.
Akron, in the course and conduct of its business,
transported and caused to be transported and delivered to
the 16th Street site building materials and other goods and
materials valued in excess of $50,000 during 1976, which
were transported to that site in interstate commerce
directly from points outside the State of New Jersey.
The parties agreed, and I find, that Akron is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED - THE
RESPONDENT
The Union admits, and I find, that Local 15, Internation-
al Union of Operating Engineers, is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
2 The document actually submitted was a letter memorandum "in lieu of
a formal brief."
231 NLRB No. 113
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union represents a variety of employees within
certain job classifications enumerated in a collective-
bargaining agreement between it and the General Contrac-
tors Association of New York, Inc., to which Akron was
bound at all times material herein. That agreement,
together with a supplement, contains a provision making
the Union one, but not the sole, source of referral of
applicants for employment.3 At the time of the alleged
unlawful activity herein, Hebb was employed by Akron as
a payloader operator, a job obtained directly from Akron
without the assistance of, or referral from, the Union. His
job classification was among those covered by the
collective-bargaining agreements. Hebb was not a member
of the Union, although it is clear (as will be developed
below) that he made several efforts to acquire membership.
Membership procedures were stipulated at the hearing to
require no application form to be completed until it
became certain that the applicant would be granted
membership. Thus, although Hebb was working at the 16th
Street site on September 3, he had not filled out a
membership application. Indeed, Hebb had worked for
Akron on other occasions in the past, and for another
employer, Lehigh Salvage in 1972, without having physical-
ly completed such a form. He had worked on the earlier
jobs by having received an oral permit to do so from either
Maguire or Maguire's predecessor, Thomas P. Maguire,
Sr., his father.
Hebb testified, without contradiction, that his efforts to
become a union member dated at least back to 1972 when
he then told Maguire, Senior, he desired to join the Union.
Although Maguire, Senior, granted the oral work permit
for the earlier jobs, no membership was approved.
According to Hebb, Maguire, Senior, told him that he
would "see" about getting Hebb membership in the future.
Hebb testified that he sought membership several times.
Specifically, he recounted one such discussion with
Maguire, Senior, on an unspecified date in the union
offices, another discussion during late August 1974 with
both Maguires, and a third in August 1975 with Maguire.
According to Hebb, each conversation was substantially
like each other, the responses to his requests for member-
ship being met with the observation that he had been
receiving union benefits, was permitted to continue
working under the oral permit system, and his "book"
signifying full union membership would be the subject of
future consideration. During the 1975 discussion, Hebb
testified that Maguire added that the work in the trade was
slow and when work increased, he would consider Hebb's
membership request once again.
Throughout the entire work history discussed above,
Hebb paid no union dues, was not subject to the checkoff
:' It was stipulated that the nonexclusive hiring provisions were in effect
at the time of the hearing, but no such stipulation was possible covering the
time period during which the alleged unlawful conduct occurred. Testimony
of the various witnesses, however, revealed that the parties then functioned
pursuant to a similar, if not identical, nonexclusive hinng practice.
Neither the propriety of the so-called challenge procedure, nor its
operation, is claimed to constitute a violation of the Act.
provisions of the collective-bargaining agreements, while
his various employers contributed on his behalf to the
Union's apprenticeship, pension and welfare funds, and
vacation stamp fund. Hebb received medical and dental
benefits, together with all other emoluments of the
contracts.
Although the Union was not the exclusive source of job
referrals, a system existed informally by which the union
members could police the activities of the employers bound
by the agreements. The system was called a challenge
procedure whereby unemployed members of the Union
visited jobsites where the employers were at work and
challenged the right of certain employees to perform
bargaining unit work. 4 If an unemployed union member
believed he possessed a superior right to a job, the matter
was pursued by filing an informal complaint with the
Union's business managers.
B. The Events of September 3
The various incidents alleged as violations of the Act
have their origin in Pittlack's efforts to exercise the
challenge procedure. He testified, without contradiction,
that he had visited the 16th Street site on September 1,5 saw
Hebb working there and asked him whether he had a
"book." When Hebb responded he had no book, Pittlack
inquired of him whether Maguire knew Hebb was on the
job. Hebb said that Maguire knew of Hebb's presence, and
Pittlack told Hebb he would verify that fact at a regular
meeting of the Union scheduled for September 2.
On September 2, Pittlack informed Maguire of his
conversation with Hebb the previous day, but Maguire told
Pittlack he had not given Hebb permission to work at the
16th Street site. Maguire corroborated Pittlack's version of
the September 2 conversation between them, and both of
them credibly testified that Maguire asked Pittlack to tell
Hebb to phone Maguire so Maguire could deny Hebb's
statement to Pittlack that Maguire was aware of Hebb
working at the 16th Street site.
Pittlack returned to the 16th Street site at approximately
7:30 a.m. on September 3 and spoke to Hebb. 6 According
to Hebb, Pittlack told him to stop working, to call Maguire,
and told him "You can't work here." Pittlack acknowl-
edged only that he asked Hebb to call Maguire, but denied
specifically that he directed Hebb to cease his work or
saying anything to the effect that Hebb could not work at
that site. In any event, it is undisputed that Hebb
immediately shut down his machine and phoned Maguire.
According to Hebb, he asked Maguire why he couldn't
work there and Maguire allegedly asked him why Hebb
had not sought clearance. Maguire, on the other hand,
testified he had simply wanted Hebb to call to enable
Maguire to refute Hebb's September 1 remark to Pittlack
that Maguire was aware Hebb was at work at the 16th
Street site.7 The substance of the remainder of this phone
5 Hebb began working there on or about August 26.
6 Hebb agreed Pittlack's conversation with him occurred at this time of
day.
? I credit Maguire's version of what was said during the initial phase of
the phone call because Hebb acknowledged he had advised union officials
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LOCAL 15, OPERATING ENGINEERS
conversation between Hebb and Maguire is likewise
disputed, Hebb asserting he reminded Maguire of an
alleged agreement whereby Hebb could work, whereas
Maguire denied the existence of such an agreement. It is
undisputed, however, that the conversation turned to the
subject of Hebb's membership in the Union and that
Maguire said Hebb could not be admitted to full member-
ship status at that time because of the large number of
members then unemployed. According to Hebb, Maguire
also told him that he couldn't work on the job. Maguire
specifically denied making this remark.8 The conversation
ended by Hebb telling Maguire he would go to the union
hall to pursue this discussion.
Hebb then informed Gach he was going to the union hall
and accepted Pittlack's offer to drive him there. Hebb and
Pittlack arrived at the union hall at approximately 9:20
a.m. As the two men left the 16th Street site, Gach told
Hebb he'd have to hire a replacement.9 Even Hebb agreed
that Gach so advised him before he actually left the jobsite
to drive to the union hall.
Upon arrival, Pittlack was asked to wait in a room other
than that in which Hebb spoke with Maguire. Also present
during the conversation were Union Business Representa-
tives Murphy, Geraghty, and Guma, each of whom (except
Guma) testified at the hearing. All parties to the conversa-
tion agree that Hebb reiterated his former requests to be
accorded full union membership, and Maguire admitted he
denied Hebb's request. According to Maguire, he told
Hebb the denial was based on excessive unemployment
among the Union's membership.'0 Although Hebb recalled
Maguire's statement, Hebb claimed that, in addition,
Maguire threatened him with having "400 unemployed
men come down and look at (Hebb)," and that Hebb could
not work on Akron's job " while, on the contrary, Maguire
testified he told Hebb he couldn't prevent him from
working nor would he try to do so. The conversation in the
union hall was interrupted by a phone call to Maguire from
Pignitelli, a then unemployed union member, who told
when he successfull) obtained employment in the past, but had not done so
when he started working at the 16th Street site because he had previously
worked for Akron and believed his earlier notification of employment with
that employer constituted similar notice on the 16th Street site. Thus,
Maguire's testimony is reflective of past practice.
X Where there are variations in the testimony between the General
Counsel's and Respondent's witnesses, I conclude the versions offered on
behalf of the Respondent are the most reliable. Where more than one
witness presented by Respondent testified as to particular subject matter
and incidents, all versions were consistent: whereas, the two witnesses,
Hebb and Gach, on behalf of the General Counsel were sometimes vague
and confusing. For example, Hebb testified that immediately after his phone
conversation with Maguire. Hebb told Gach that the "Union did not want
me working there." Gach testified only that Hebb, at that time, said he
couldn't "go back on the machine," without referring to the Union, and also
that that comment was made by Hebb hours later than ascribed by Hebb
and after Hebb's visit to the union hall. See also fn. 13, infra.
9 Apparently this was necessary because Akron's work crew on the 16th
Street site relied on Hebb's payloader operation for sufficient work to keep
them busy. The record reveals that Gach did call Joseph Pignitelli
(hereinafter Pignitelli) to come to work, and that the call was made dunng
Hebb's travel to, or visit at, the union hall.
i' Maguire also alluded to pending litigation in which the Union was
involved concerning minority groups as an additional reason for declining
to grant membership to Hebb at that time.
i" For the reasons discussed in fn. 8. supra, and because of other
discrepancies in Hebb's narration as revealed by all the other witnesses,
including Gach, and discussed infra, I do not credit Hebb's account of this
Maguire he had been called by Gach to work at the 16th
Street site. That call was made so that Maguire could delete
Pignitelli's name from the Union's unemployed list.
Maguire then informed Hebb that Pignitelli had been
called by Gach to replace Hebb.' 2 There is no evidence
that Hebb responded to this, and the conversation ended
by Hebb advising Maguire that he intended to attend
school in January 1977 to obtain technical training to
become a mechanic and a better qualified union member
and asked whether Maguire would reconsider Hebb's
membership request in that light. Maguire, however,
remained steadfast.
Hebb and Pittlack returned, in Pittlack's automobile, to
the 16th Street site, reaching there approximately at noon.
He, Gach, and Pittlack had a brief conversation. Hebb
informed Gach that the Union would not permit him to
work. A heated discussion ensued between Gach and
Pittlack during which Pittlack is supposed to have said that
if Hebb worked the Union would pull the other machines
off the job.'3 Gach and Pittlack agreed in their testimony
that the character of their conversation was less than
friendly. That conversation ended with Hebb indicating he
would consult the Board to determine his rights.
C. The Allegation of Discrimination on
September 27
Not having worked since September 3, Hebb returned to
the 16th Street site on September 27 where he spoke to
Gach and told him a Board agent suggested to Hebb he
make an effort to return to work at that job. Thereupon,
Hebb requested Gach to reemploy him. Gach made a
telephone call during which Hebb heard Gach tell
whomever he called that Hebb was present at the 16th
Street site and requested to be put to work. According to
Hebb, Gach asked if it was "all right," received a response,
terminated the call and announced to Hebb that "Mr.
Maguire said that nothing is changed and you can't go
conversation, except where the testimony of other witnesses is identical to
his own,
12 Hebb asserted that Maguire told him that Maguire would try to obtain
Pignitelli to replace him. Apparently, this remark forms the basis for the
General Counsel's claim that the Union was attempting to discriminate in
favor of its members to the exclusion of nonmembers. In view of Gach's
vivid recollection (admitted by Hebb on cross-/and redirect-examination)
that he told Hebb of the necessity to obtain another operator before Hebb's
conversation with Maguire in the union hall; Gach's testimony that he
called Pignitelli while Hebb was away from the jobsite:; and Pignitelli's
confirmation of this account, Maguire's version is credited over Hebb's.
13 Hebb's testimony relating this incident is too vague to be reliable. The
transcript reveals the following:
"Hebb: Then he (Pittlack) said if I did work that-
Q. (By Counsel for General Counsel) Who said that?
A. Robert Pittlack was saying to Leo (Gach) - and more or less
myself, that if I did work, that's - that they'd pull the other machines
off the job, the Union would pull the other machines off the job. That
was the message he more or less relayed .... " [Emphasis supplied.]
When Gach narrated this conversation he testified Pittlack said "something
along the line there would be a problem if Hebb got back on the machine."
No questions were asked of Gach to elicit a more precise account of
Pittlack's alleged threat. In view of the foregoing, coupled with Pittlack's
unequivocal denial of uttering the threat, I find that Pittlack did not use the
words attributed to him by Hebb.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to work." Gach testified on direct examination by
counsel for the General Counsel that he asked for Maguire
and what was said to him "was things have not changed,
and that was it." Gach did not specifically relate whether
the person to whom he spoke referred to Hebb's ability to
return to work. On cross-examination, Gach testified he
was unable to recognize Maguire's voice over the telephone
and admitted he was not sure he spoke to Maguire on
September 27. Maguire denied having this alleged phone
conversation with Gach and no effort was made to cross-
examine Maguire on this point.
In view of Gach's failure to positively identify Maguire
as the person to whom he spoke 14 and his failure to fully
corroborate Hebb on the contents of the conversation, I
conclude the evidence does not sustain the factual assertion
of this aspect of the complaint.
The record reveals that Hebb again visited the 16th
Street site at the end of November, at which time Gach
returned him to work where he remained, without interfer-
ence of any type until he voluntarily terminated his
employment with Akron in January 1977 to attend school.
Analysis and Conclusions
The foregoing credited facts are relatively clear and
require no extensive analysis nor resort to legal principles
for resolution. As will be more fully discussed below, even
if, as contended by the General Counsel, Pittlack was an
agent of the Union,'5 I would find no violations as alleged.
That Hebb's September 3 termination from Akron was
not discriminatory is abundantly clear. I conclude it was
self-imposed, perhaps motivated by Hebb's desire to avoid
challenges to his work by acquisition of full union
membership. Hebb himself conceded he left the jobsite
after receiving no satisfaction from Maguire during the
phone conversation he made after Pittlack asked him to
call Maguire. The record is totally devoid of evidence of
direct communication between any officials of the Union
and Akron prior to, and including, September 3. Even
Gach did not provide such a link. Gach's replacement of
Hebb was solely his decision based on his judgment of
production requirements and was stimulated not by the
Union, but rather what I have concluded to be Hebb's
voluntary absence from the job. Even if Hebb were
credited in his assertion that Pittlack told him to stop
working and that he could not work at the Akron job, there
is no evidence that those comments were communicated to
Gach or another Akron representative before Gach
decided to replace Hebb.' 6 Accordingly, I conclude Hebb's
termination was neither caused, nor sought, by the Union.
14 I note Gach was certain he spoke to someone at the union hall on
September 27. This fact alone, however, cannot serve to impute responsibili-
ty for the alleged unlawful conduct to the Union.
'5 This position is vitiated by the record, it being undisputed that Pittlack
never had been an officer, employee, or other designated representative of
the Union. The General Counsel s agency theory is predicated on what is
described as the "contemporaneous adoption" by the Union of Pittlack's
alleged unlawful conduct. As stated hereinabove, however, the facts fail to
reveal activity by Maguire or anyone else who could bind the Union from
which it may be said that Pittlack's comments, had they been made, were
later ratified, approved, adopted, or condoned. Indeed, the record is replete
with evidence to the contrary and no recapitulation of those factual
descriptions is necessary.
Inasmuch as I have found that the facts do not support
the General Counsel's contentions that either Pittlack or
Maguire made the threatening comments alleged to have
occurred on September 3, I conclude that the General
Counsel has not sustained his burden of proof as to those
aspects of the complaint. Further, in view of the paucity of
evidence of union responsibility for the remarks allegedly
made on September 27, I conclude the evidence fails to
establish any unlawful conduct on that date.
Assuming, arguendo, that I were to find that the alleged
coercive remarks in fact had been made by Pittlack,
dismissal is nonetheless warranted. The record fails to
establish him as an agent of the Union or the General
Counsel's theory of comtemporaneous adoption is viable.
While it is true that this theory has been utilized to hold
labor organizations responsible for acts of rank-and-file
members, those situations are distinguishable from the
present case. Thus, in General Teamsters Local 326,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Eazor
Express, Incorporated), 208 NLRB 666, 670-671 (1974),
cited by the General Counsel, what was in issue was
previously unauthorized conduct of the union president
whose general agency was admitted. The Respondent
herein expressly has denied the existence of this relation-
ship between it and Pittlack. Similarly, in Union Nacional
de Trabajadores (Jacobs Constructors Company of Puerto
Rico), 219 NLRB 405, 409-410 (1975) (also relied on by the
General Counsel), there was evidence that the alleged
agent had previously acted as a conduit for relaying union
instructions and that he had acted as principal spokesman
for the union. Moreover, the record in that case contained
evidence that the alleged agent expressly had been advised
by the union hierarchy that he spoke for the union
whenever he spoke on behalf of the employees, and he had
informed management officials that he was a union agent.
The evidence before me falls far short of containing such
indicia of authority, and I therefore deem the above two
cases inapposite.
Of course, in other situations, activities of rank-and-file
members have been held to bind their unions, such as
where actual statements of adoption have been made 7 or
where members engage in picket line misconduct on a
picket line established by the union.18 Indeed, actions of
nonmembers of unions have been held to form the basis for
finding a violation of the Act.19 The rationale of these cases
is founded on the premise that the alleged unlawful
conduct was perpetrated within the broad scope of
authority either granted in advance of the activity or
subsequently ratified by some overt act. Neither of these
ingredients is present herein. The instant case is most like
16 See fn. 9, supra. Additionally. Gach recalled only that any conversa-
tion he had with Pittlack before the visit to the union hall was limited to the
subject matter of Pittlack seeking entrance to the jobsite.
" Local 379, Building Material & Excavators (Catalano Bros., Inc.,), 175
NLRB 459, 460, fn. 9 (1969).
i1 Teamsters Local 536 (Connecticut Foundry Company), 165 NLRB 916,
919 (1967).
'9 Hobco Mfg. Co., an Operating Division of Genesco, 164 NLRB 862
(1%967), where union responsibility was based on its sponsorship of meetings
during which the third parties uttered objectionable remarks.
566
LOCAL 15, OPERATING ENGINEERS
Hotel, Motel & Club Employees Union Local 6 (Hotel
Commodore),2o where no violation was found because of
subsequent disavowals of the alleged unlawful conduct.
The burden rests with the General Counsel to prove both
the existence of an agency relationship and the extent of
the agent's authority. In the present case, there is no direct
evidence that Pittlack was an agent of the Union. Such
inferences as are reasonable may be drawn to sustain the
General Counsel's burden of proof where there is no
evidence to rebut them. 21 I find the instant record contains
considerable credible evidence which effectively negates
the General Counsel's assertions and prevents a conclusion
of agency based on inference.
Upon the basis of the foregoing findings of fact, analysis
and conclusions, and upon the entire record in this case, I
make the following:
20 164 NLRB491 (1967).
21 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 377 (All-American Stamp and Premium
Corporation of New York), 159 NLRB 1313(1966).
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
CONCLUSIONS OF LAW
1. Akron Wrecking Corp. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Union has not engaged in any of the
unfair labor practices alleged in the complaint.
Accordingly, I hereby issue the following recommended:
ORDER 22
The complaint is dismissed in its entirety.
Board's Rules and Regulations, the findings, conclusions and recommended
Order herein shall, as provided in Sec. 102.48 of the 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.
567