Local 17, Int'l Union of Operating Engineers, Etc.

National Labor Relations Board - Board Decisions

Jun 25, 1963

143 N.L.R.B. 29 (N.L.R.B. 1963)

LOCAL 17, INT'L UNION OF OPERATING ENGINEERS, ETC. 29
In these circumstances, we are not persuaded that the duties and
skills required of Tull and Sylvia are such as to justify a finding that
a separate unit is appropriate.' Accordingly, we shall dismiss the
instant petition.
[The Board dismissed the instant petition.]
7 Kimble Glass Company, 102 NLRB 933, 934-936.
Local 17, International Union of Operating Engineers , AFL-CIO
[Vogtli & Sons Construction Corp .] and Harold W. Regenauer.
Case No. 3-CB-624. June 25, 1963
DECISION AND ORDER
On April 16, 1963, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 en-
tire record in this case, including the Intermediate Report and the
exceptions, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted
herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications :
(1) Delete the words "interfere with" from Section 1(c) of the
Order and also change "restrain or coerce" to "restraining or
coercing."
(2) Delete the second paragraph of the notice appended to the
Intermediate Report.
143 NLRB No. 6.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The paragraphs set out below shall be added to the notice ap-
pended to the Intermediate Report : i
WE, WILL NOT restrain or coerce the employees of Vogtli & Sons
Construction Corp., or any other employer, in the exercise of
rights guaranteed in Section 7 of the Act, as amended, by threat-
ening said employees with physical violence or damage to their
property unless such employees pay working dues ("dobie fees")
or by similarly threatening said employees for referring persons
who are not members of Local 17 to employment with said Em-
ployer or any other employer.
WE WILL NOT in any like or other manner restrain or coerce
any employee or applicant for employment in the exercise of his
rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be validly affected by an agreement entered
into in accordance with Section 8(a) (3) of the Act, requiring
membership in a labor organization as a condition of employment.
' The first sentence below the signature line at the bottom of the notice is amended
to read: This notice must remain posted for 60 consecutive days from the date of
posting . . "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act,
as amended , 29 U.S.C., Section 151, et seq., herein called the Act, and involves ap-
plication of facts to the provisions of Section 8(b)(1)(A ) and Section 8(b)(2).
Harold W. Regenauer, an individual , on November 8, 1962, filed a charge against
Local 17, International Union of Operating Engineers , AFL-CIO , herein sometimes
called the Union or Local 17, the Respondent herein, asserting violations of the
above-designated sections of the Act by the Union. Thereafter, on December 28,
1962, the General Counsel of the National Labor Relations Board, on behalf of the
Board, by the Regional Director for the Third Region , issued a complaint and
notice of hearing against the Respondent , the complaint setting forth allegations
of violations of the above-mentioned provisions of the Act. The notice of hearing
set the hearing date for January 30, 1963. No answer to the complaint having been
timely filed, counsel for the General Counsel, on January 24, 1963, filed a motion
for the issuance of an Intermediate Report and Recommended Order. This motion
had not been passed upon prior to the opening of the hearing on January 30, 1963,
nor had the General Counsel moved for an order to show cause why the Respondent
should not be held in default and for summary judgment. By answer to the complaint
dated January 23, 1963, received and filed in the Regional Office for the Third
Region on January 28, 1963, the Respondent , by counsel , entered a general denial
to the alleged violations of the Act set forth in the complaint . The Trial Examiner,
at hearing , denied the motion made on behalf of the General Counsel for the issuance
of an Intermediate Report. The case, therefore, was heard on its merits.
At the hearing before Trial Examiner Arthur E. Reyman at Buffalo, New York,
the General Counsel and the Respondent each was represented by counsel, and
participated fully therein, with the right to call and examine or cross-examine wit-
nesses, to argue orally upon the record, and to file proposed findings of fact or
conclusions of law, and to file briefs. Briefs have been filed on behalf of the
General Counsel and the Respondent and have been carefully considered.
Upon the whole record of the case and upon the testimony of witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF VOGTLI & SONS CONSTRUCTION CORP.
The belated answer of the Respondent filed herein neither admits nor denies that
Vogtli operations affect commerce within the meaning of the Act. At the hearing,
LOCAL 17, INT'L UNION OF OPERATING ENGINEERS, ETC. 31
there was some discussion between counsel as to whether the Respondent would
admit the jurisdiction of the Board in this respect. No agreement was reached.
However, the testimony of Lee Vogtli, president of Vogtli & Sons Construction
Corp., herein sometimes called Vogth or the Company, substantiates the allegations
of the complaint in regard to the Board's right to jurisdiction in this matter.
Vogtli is and has been at all times material herein a corporation duly organized
under and existing by virtue of the laws of the State of New York. During such
times, Vogtli has maintained its principal office and place of business at Broadway
Road, in the city of Gowanda, State of New York, where it is engaged in the con-
struction business, primarily of roads and highways. During such times, the Com-
pany has been engaged in the construction and repair of New York State highway,
Route 78, in and around the town of Strykersville, State of New York. During the
year immediately preceding the filing of the complaint herein, Vogtli, in the course
and conduct of its business operations, purchased, transferred, and delivered to its
various jobsites, corrugated steel pipe and other goods and materials valued in excess
of $50,000 which were transported to said sites and received from other enterprises
including Syracuse Tank and Manufacturing Company, Inc., located in the State of
New York, these other enterprises having had received the said goods and materials
directly from States other than the State of New York. During this year immediately
preceding the issuance of the complaint herein Vogtli, in the course and conduct of
its business operations, furnished services to the State of New York valued in excess
of $900,000, of which services valued in excess of $50,000 were rendered for con-
struction, maintenance, and upkeep of New York highways, which constitute essen-
tial links in channels of interstate commerce.
Vogtli is now and has been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The Respondent, Local 17, International Union of Operating Engineers, AFL-CIO,
is and has been at all times material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Sometime before October 8, 1962, Vogtli found itself in need of the use of a
Gradall, a type of construction machine, together with an operator and another man,
an oiler, to run it. Lee Vogtli testified that prior to October 8, 1962, he entered
into a verbal agreement over the telephone with John Patti, the owner of a Gradall,
and that during the course of this conversation Patti said that he could furnish an
oiler to work with him on the machine. It was agreed that Patti and the oiler
would go on the payroll of Vogtli and that the use of the Gradall would be paid for
by Vogtli to Patti on a per month use basis.
Patti then and now is a member of the International Union of Operating Engineers,
Local 463, of Niagara Falls, New York; at the time of his conversation with Presi-
dent Vogtli he was at Jamestown, New York, where he lives.
During the course of the telephone conversation between President Vogtli and
Patti the question arose as to whether Patti could furnish an oiler and Patti told
him he could. According to Patti:
He asked me if I was a union operator and I said yes. He asked me if my
oiler was a union member or if I had an oiler. I said. "I have no oiler, but
there is a man that asked me for a job. He is willing to join the Union. If
it's all right, I will bring him." Mr. Vogtli said, "As long as he is willing to
join the Union, I guess it would be all right to bring him along."
The man referred to by Patt was Harold W. Regenauer, the Charging Party herein.
According to Patti, after talking to Vogtli, he told Regenauer that as long as the
latter was willing to join the Union it would be all right for him to work as his
oiler on the job-"that he could go to work as an oiler, but I said that he probably
would have to join the Union when he got there."
On October 8, 1962, Patti drove his Gradall some 70 miles from Jamestown to
the project near Strykersville and Regenauer followed or accompanied him in a
pickup truck. Again, according to Patti, when he and Regenauer arrived at the job-
site they went to Vogtli's office, where they met a person they assumed was a fore-
man who instructed them to a site on the job and started issuing instructions as to
what should be done. Then, said Patti, "just as we were getting organized or ready
to nut the machine in its place, this Tommy Stanton drives up. He asked me for my
union book and he wanted to know who my oiler was ." Stanton , a member and
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business representative of Local 17 and the master mechanic on the job for the
Operating Engineers , inquired as to who Patti 's oiler was and upon being informed
that Regenauer was not a member of the Union, although he had been hired as an
oiler by Vogtli and was willing to join the Union , Stanton said that Regenauer
"cannot work there" and upon finding out that Patti was a member of the Niagara
Falls Local of the Operating Engineers informed him that he could not work there
either.
At a time before Patti began working his machine on the morning of October 8,
Stanton telephoned the union hall and, according to Patti, informed his office that
Patti was there with the Gradall and an oiler; that the oiler had no book; and that
neither one of them "are going to work here." Patti told him that he was not
paying any more dobie fees and informed Stanton at the time that he had made
application for a transfer from his local in Niagara Falls to Local Union 17, that
the Union had known about it for probably 6 or 7 months and had deferred any
action on his request for a transfer ; Patti said that Stanton , who was still on the
telephone , told him that he could go to work if he sent in a check the next day for
$17 50. After that, Patti returned to his machine, told Regenauer that he would
not be allowed to work because he did not belong to the Union , and up until about
1 o'clock that day Patti operated the Gradall without an oiler. According to him
Stanton came back and told Ray Sanders, a foreman, to put a laborer on the job
and subsequently called the union hall for an oiler , a member of the Union, who
arrived on the job at about 1 o'clock in the afternoon.
Thomas Stanton testified at the hearing that he is president of Local 17; that he
was employed by Vogtli in about the middle of August 1962, and worked until
the middle of November of that year when work had progressed to the point
where, because of weather conditions and the orderly progress of the job, his
services were no longer required. He testified that he acted as master mechanic on
the job and that the duties of the master mechanic in general were that a master
mechanic-
. is in charge of the equipment on the job. He is in charge of the-nor-
mally, he is in charge of the hiring and firing of the personnel who operate the
equipment and he is responsible solely to the employer for the job safety and
the proper operation and maintenance of such equipment as might normally
come under the control of the contractor.
Stanton was on the payroll of Vogtli and was directly responsible to the superin-
tendent of construction.
With regard to the happenings of the morning of October 8 he said that he
observed the Gradall approach the job and observed its entrance into the work
area on Route 78 in Strykersville . He said that usually the master mechanic would
be informed ahead of time as to the arrival of a piece of equipment but in this
case he had been not so advised ; that in usual course it was the custom for the
master mechanic to determine whether or not personnel coming on the jobsite were
qualified and that in usual course the master mechanic would ask who is going to
operate the piece of equipment , whether he was a member of the local union, and
that the reason for asking whether he was a member of the local union would be
to verify whether he was a qualified operator. He said that only in the absence
of someone in the Company giving him assurance that the man was a qualified
operator or that the crew was qualified, would he himself undertake to question
the qualifications of the operator of a machine or a crew as he did in the case of
Patti and Regenauer. On October 8, he said he first spoke to the foreman in charge
of the operation , Ray Sanders , the labor foreman ; he testified further, concerning
his conversation with Patti:
I asked him who he was. He told me he owned the piece of equipment. I
asked him if he was going to run it and he said he was, that he had been
hired by Lee Vogtli. I asked him if he had worked in the area before and
he said he had not worked in the Strykersville area. I asked him if he was a
member of the Operating Engineers Union. He said that he was and that
he had a card out of the Niagara Falls local . . . during this conversation
with Mr. Patti, he said he had a card at the Niagara Falls local, in their B
branch. I asked him if he had a qualified oiler and he said he did. I asked
if Mr. Vogtli had hired the oiler. He said, "No." I asked if he had hired
him. He said, "Yes." If I recall correctly, I then asked him if the oiler was
a qualified man and he said that he hadn't worked for him before, that he
was not a member of the Union, but that he wanted to join. I then-if my
recollection is correct-I asked him to come up to the office so we could
talk to Mr. Stewart who was the job superintendent.
LOCAL 17, INT'L UNION OF OPERATING ENGINEERS, ETC. 33
They then went to the office of Mr. Stewart and when the latter arrived, he said,
they discussed Patti and the operation of his machine. Stanton said he expressed
surprise that he had not been informed that the machine was going to arrive at
the job in view of the fact that he as master mechanic was responsible for all the
machinery and the personnel; that Stewart told him that he had not been informed
that it would be there that day, that Vogtli had assured him in the conversation
held by telephone the night before that everything was in order as far as qualifica-
tions of the people who were running the machine were concerned, and that Stanton
then raised the question as to the qualifications of the oiler. His testimony in this
respect was this:
Q. Now, at this time, did you raise any questions as to the qualification of
the oiler?
A. Yes, I did, in the sense that I had been required to layoff a qualified
oiler sometime before this incident, I believe, approximately a week or 10
days before, and I felt that if we were going to hire another oiler, we should
give preference along with the Company's policy that was laid down to me
when I started to work, that we should have qualified people on the machinery;
not only qualified people for a certain machine, but people who would also
be qualified if a job situation arose to operate other equipment being used by
the Company on the job.
In response to a question as to whether or not an oiler at times operated a Gradall,
Stanton replied yes, particularly in heavy highway construction; during the busy
season too many Gradalls are not available, and while normally an apprentice
would not run the piece of equipment until he had served his entire apprentice-
ship, if he had demonstrated ability and know-how and the contractor was willing
to trust him with the machine, "there have been many instances where an oiler
has been allowed to run the equipment in order not to interfere with the process
of the job " Stanton testified in his judgment Regenauer was not qualified, and
his belief is based on the fact that Patti had told him that Regenauer had not worked
for him previously; he had observed Patti driving the Gradall himself and the
man he proposed to operate the piece of equipment followed him in a pickup truck,
and he questioned Patti as to whether the man was qualified to operate the Gradall
if "he didn't allow him to drive it to the jobsite." i Patti testified that Lee Vogtli,
the construction superintendent who hired him over the telephone, told him that
the project was a strictly union job.
Gale Stewart confirmed in substance the conversation had with Stanton and
Patti. He said that Stanton had said that the machine "couldn't go to work until
it had a union oiler"; there was some conversation as to Patti's dobie fees when
Stanton told Patti that he would have to pay them; and later he talked to Stanton
and "told him call the Union and get a union oiler for us."
All of the parties agree apparently that Vogtli, the corporation, had through its
superintendent delegated a right to hire to the master mechanic, and that Stanton
had been given instruction concerning the Company's policy in such matters and
that it was up to Stanton to see that qualified men were hired. The record is clear,
as the Respondent argues, that Regenauer had had no previous experience as an oiler
nor had he had experience in the construction industry; that his experience had been
limited to the gasoline , restaurant , and hotel business ; that he was not an experienced
oiler and had no knowledge concerning the operation of a Gradall. The Respondent
by counsel argues emphatically that the primary motivating factor behind Stanton's
refusal to hire Regenauer was his concern for the lives and limbs of the workers on
the job, and for the safety of Regenauer himself. Testimony was proffered to the
effect that nonunion men were working at the jobsite at the time Regenauer was
refused employment by Stanton.
Further, according , from the testimony of Stanton on direct examination by
counsel for the Respondent:
'The testimony of Stanton to the effect that he was under the supervision of and re-
sponsible to management is borne out by the provisions of a written agreement between
Labor Relations Division, Associated General Contractors of America, New York State
Chapter, Inc, and International Union of Operating Engineers Local Union No 17,
No 106, No. 410, No. 545, and No. 832. This agreement provides in part that where six
or more engineers are employed on any one shift, or one project, a master mechanic, com-
petent for work, shall be employed to supervise operators, maintenance work, and repairs.
"He shall be mutually agreed upon by both parties."
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yes, I talked with Mr. Stewart about the situation . I mentioned the case of
this oiler who had been laid off. He had been driving a water truck for us
on the job , water truck equipment , a job that comes under the jurisdiction of
our Local and this man had been laid off sometime previous to the hiring of
Mr. Patti's Gradall; and I mentioned that under normal fair play he would
be entitled to come back on the job if we were going to hire new personnel.
Mr. Stewart objected to the rehiring of Mr. Caffrey on grounds that on this
particular type of equipment he was far too nervous to carry out the duties in
a safe manner . I had to agree with him because , although Mr . Caffrey was
competent in certain situations , I didn't feel that driving a truck which was an
important piece of equipment was the proper place for this particular man.
Subsequently , I asked-I called the office and asked for a man in line with
what I thought was good policy . I asked them to send me a man who could
not only drive the Gradall but could subsequently drive a bulldozer, a "D 6"
which comes under the classification of an oiler in our agreement . He agreed
that it was a good idea. I subsequently called the office and they sent a man
I had never seen before but they assured me he was a qualified oiler, a good
driver and that he could operate efficiently a "D 6" bulldozer.
Regenauer , as well as Stanton , apparently were not acquainted with each other
until the morning of October 8 and according to Stanton , he would not have recog-
nized Regenauer again except for the fact that he testified at the hearing . Stanton
stated emphatically that his sole purpose in rejecting Regenauer was to follow his
instructions according to company policy and to allow the hire only of qualified oilers
for the particular job or jobs as the occasion might occur.
This testimony of Stanton is rebutted with more than little effect . The record is
clear enough, through the testimony of Superintendent Stewart and Patti and Stanton
himself, that Patti was put on the payroll of Vogtli by Stewart with the approval of
Stanton and that Regenauer ostensibly was refused employment by Vogtli through
Stanton because Stanton did not consider Regenauer a qualified man. With regard to
the testimony of Stanton , as above reported, the following communication addressed
by him to the recording -corresponding secretary of Local 17 under date of Novem-
ber 2 , 1962, is significant:
Mr. DONALD C. MARTIN,
Rec.-Corres . Secretary,
International Union of Operating Engineers,
Local Union #17, 17A, 17B, 17C,
Hotel Buffalo, Room 1217,
279 Washington St.,
Buffalo 5, New York.
NOVEMBER 2, 1962.
To the Officers and Members of Locals 17, 17A, 17B, 17C:
I, Thomas E. Stanton , President of this Local Union do hereby prefer the
following charge against Bro. John Patti of Local 463B, Niagara Falls, New
York, Reg. #981336.
I charge Bro. John Patti with violating his obligation required for member-
ship in the International Union of Operating Engineers by hiring a non-union
person to do work that is the craft jurisdiction of the Operating Engineers
Union and thereby not giving union labor preference in filling any position
of which he has control . By this action Bro. John Patti does in effect openly
discriminate against the members of Locals 17, 17A, 17B, 17C and violate his
oath as an engineer.
These violations took place during the month of October 1962, when Bro.
Patti as the owner of a grade-all did hire an oiler for this rig while Bro. Patti
did the Operating and later did maintenance work on overtime after sending
his oiler home and denying him the overtime work.
Fraternally yours,
(Signed ) THOMAS E. STANTON, President,
Local 17, 17A, 17B, 17C, International Union of Operating Engineers.
The recording-corresponding secretary of Local No. 17, under date of November 8,
1962, transmitted the following letter to Patti:
DEAR SIR AND BROTHER: Enclosed you will find a copy of charges filed against
you under the enclosed International Union of Operating Engineers Constitution
and your obligation required for membership in the International Union of
Operating Engineers.
LOCAL 17, INT 'L UNION OF OPERATING ENGINEERS , ETC. 35
Under Article XXIII, Sub. 7, Sec. M of the Constitution you must file an
answer or defense or enter a plea by November 26, 1962.
Fraternally yours,
DONALD C. MARTIN,
Rec.-Corres. Secretary.
As noted above, the complaint alleges that Thomas E. Stanton, Charles Cullen,
and William Connors, agents of the Union, on or about October 22, 1962, threatened
to inflict bodily injury on, and to cause other harm to, certain of Vogtli employees
if the employees refused or failed to pay certain dobie fees or continued to refer
nonmembers of Respondent to the Strykersville jobsite. It will be noted that the
date of October 22 follows the date (October 8) when the complaint alleges that
Local 17, the Respondent, caused or attempted to cause Vogtli to refuse to hire
Regenauer because of his lack of membership in the Respondent Union.
In connection with the threats alleged in the complaint, the uncontradicted testi-
mony of Patti may be summarized as follows:
Patti said that he was talking to Michael Flemming, a subcontractor doing ce-
ment work on the Strykersville job, and Stanton at that time approached him and
"told me I had my nerve hiring or bringing a nonunion man on a job." Later,
said Patti, he walked into a restaurant on Route 78 at Strykersville and saw Con-
nors, Cullen, and Stanton and "a couple of other fellows sitting at the table" and-
They invited me to have a drink which I refused, and Connors told me-
asked me if I had paid my dobie fee and I told him "I'm not paying any more
dobie fee. I've got an application in for a transfer; and up until the time
they transfer I'm not paying any more dobie fees." And he said "don't worry,"
he says, "we have ways of getting it one way or the other," and he said "we
have strong-arm men that will take care of guys like you and also your ma-
chine " I told him that "I'm not scared of threats." Then Stanton pops a
question and says I had my nerve to bring a "scab" on the job. He said that
"any way I can, I will see to it that I take your book away from you," my
union book from Niagara Falls.
Michael Flemming, a concrete contractor working as subcontractor on the Vogtli
construction on Route 78, testified with respect to his recollection of the conversa-
tion reported by Patti. He said that he was at the Strykersville hotel when Stanton,
on the approach of Patti, turned to John Lee and said, "Here comes a scab."
Flemming said that Stanton said something about "He [meaning Patti] thinks he
is going to hire his own oilers" and he said, "He is going to take on the job who we
put there."
The first question to be decided of course is whether or not Regenauer was
refused employment by Stanton because he was not a member of Local 17 or be-
cause he was not qualified to do the job for which he had been hired. That brings
us to the question of whether he was hired by the Company or reported for hire on
the recommendation of Patti. Patti had represented to Vogtli over the telephone
that he had a qualified oiler. The fact remains that Regenauer had had no ex-
perience as an oiler and in fact no experience in the highway construction business.
I think, under the contract provisions between the Employer and Local 17, the
bargaining representative of the employees, that Stanton had authority to act on
behalf of the Employer and refuse employment to Regenauer if the latter was proven
not qualified to do the job he was asked to do by Patti. However, a laborer was
assigned to the oilers job until a member of Local 17 showed up.
Counsel for the General Counsel argues that the testimony of Lee Vogtli, Patti,
and Stewart, as well as the testimony of Stanton, "make it clear that Regenauer was
to begin work as an oiler on Patti's Gradall as an employee of Vogtli on October 8
at the Strykersville jobsite." I think there is no question that this was the fact.
Counsel for the General Counsel argues further that the Respondent mistakenly
contends that if Stanton's motivation was illegal, it cannot be attributed to Local 17
since Stanton as master mechanic was the supervisor and agent of Vogtli; however,
that there is no evidence to establish that Vogtli had any requirement or policy of
hiring only union members?
2In support of his argument General Counsel refers to the collective-bargaining agree-
ment between Vogtli and Local 17 and a provision therein that on or after 7 days follow-
ing the beginning of employment of a workman for the effective date of this agreement,
whichever is later, membership in the Union shall be a condition of his employment The
General Counsel, in his complaint, does not allege a violation of Section 8(a) (1) or
8(a) (3) of the Act in this respect. Stanton says that his demand that Regenauer hold a
71T-672-64-vol. 143-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter of November 2, 1962, from Stanton to the secretary of Local 17 but-
tresses the argument of counsel for the General Counsel that Stanton's sole motiva-
tion in refusing Regenauer employment was because he was not a member of the
Union. The testimony regarding the running into of Patti with the union officials
in the hotel at Strykersville (uncontradicted upon the record) indicates that the
vendetta between Patti and Stanton and other business representatives of the Union
was primarily because of the effort of Patti to have Regenauer hired rather than
the refusal of Patti to pay additional dobie fees to Local 17. Apparently, the fact
that no action had been taken upon his request for a transfer from the Niagara
Falls Local to the Jamestown Local of the Union was aggravating to Patti and he
felt he had a just grievance when further dobie fees (additional or working dues
required in the absence of a clearance or transfer card from one local to another)
were required from him by Stanton before Stanton would consent to Patti starting
work on the Route 78 job as an employee of Vogtli.
The General Counsel is persuasive when he points out that after Stanton had
talked to his office on October 8, he told Patti that he would be required to pay
certain dobie fees owing for work which was performed before Patti was em-
ployed by Vogtli, the statement being simultaneous with Stanton's refusal to allow
the employment of Regenauer for failure to possess a union card, as demonstrating
that Stanton was acting on behalf of the Union and making the Union's interest
paramount over Stanton's obligation as master mechanic for Vogtli. The General
Counsel cites in support of the proposition that when a union representative occupies
two roles it devolves upon him to clarify for other participants which role he
chooses to play if he is not acting as a responsible official for his union. Interna-
tional Longshoremen & Warehousemen's Union, et al. (Catalina Island Sightseeing
Lines), 124 NLRB 813, 816. I infer, from the facts related by Patti, Regenauer,
and particularly Stanton himself, that Stanton at that point of the controversy
made the interests of the Union paramount without regard to the persuasive argu-
ment of counsel for the Respondent, that Stanton was concerned only with the
hiring on behalf of Vogtli of a competent man for the job. Had the discussion
been confirmed only to Regenauer's ability to perform the work, I might take a
different view; however, Stanton's insistence that Patti make up dobie fees lends
credence to the position of the General Counsel that Stanton was acting on behalf
of the Union only, at that time, and not on behalf of the Employer.
Concluding Findings
The activities of Stanton on the morning of October 8, 1962, and subsequent
threats regarding the continued employment of Patti unless he paid certain dobie
fees taken together with the charges filed by him in his letter to the corresponding-
recording secretary of the Union indicate conclusively to me that he far exceeded
his duties he then owed to Vogtli as employer as its master mechanic, by enforcing
or attempting to enforce closed-shop conditions at the jobsite and conseqently in
effect imposed his views regarding employment of persons by Vogtli rather than
expressing policy or instructions given to him by the employer. Local 84, Interna-
tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(South Texas Building Company), 129 NLRB 971.
I find no difficulty in finding that Patti during the times material herein is and
was an employee of Vogtli. For his services as operator of the Gradall machine
he was paid at the same hourly rate applied to any other union operator, was
covered by the Company's liability insurance, and was a member in good standing
at the time of the International Union. Whether or not he was in arrears in dobie
fees at the time of the occurrences of October 8 and thereafter seems to me to
be immaterial, in the light of the plain provisions of Section 8(b)(1) and (2) of
the Act. Compare Construction, Building Material and Miscellaneous Drivers,
Local Union No. 83, et al. (Marshall & Haas), 133 NLRB 1144. I find that
the Respondent, Local 17, through Stanton, restrained and coerced Patti in the
exercise of the rights guaranteed to him under Section 7 of the Act. International
Union, United Automobile etc., Local 291 (Wisconsin Axle Division, The Timken-
union card was prompted primarily by his desire to know whether or not Regenauer was
qualified to do the job of oiler on the Gradall. I do not think the provision of the con-
tract between Vogtli and Local 17 referred to (the 7-day membership requirement) enters
into the case as a necessary element to its proper resolution The language of Section
8(b) (1) and ( 2) of the Act , particularly Section 8 ( 2), does, on the prima facie case made
out by the General Counsel, show that the Union caused or attempted to cause Vogtli to
discriminate against Regenauer in violation of Section 8(a) (3).
LOCAL 17, INT'L UNION OF OPERATING ENGINEERS , ETC. 37
Detroit Axle Company ), 92 NLRB 968, enfd . 194 F . 2d 698 (C.A. 7); see also
Namm's Inc., 102 NLRB 466.
The Respondent minimizes the conversation or conversations held at the hotel
near the Strykersville job wherein , according to the uncontradicted testimony of
Patti, as supported by that of Michael Flemming, he was threatened with bodily
injury or damage to his equipment . The Respondent , in the brief filed on its
behalf, brushes lightly over the incident wherein , it is said by Patti , retaliatory threats
were made against him. I would, had any explanation of this event been offered,
have minimized it as being a sort of incident not related to the main issues in the
case. However, the remarks of Stanton, accompanied by those of Connors and
Cullen , union agents , at that particular time, cannot pass unnoticed . International
Association of Bridge, Structural & Ornamental Iron Workers , Local Union No.
84 (Buie Building Materials Company ), 112 NLRB 1059.
Nothing is shown in the record herein as to the disposition of charges made by
Stanton against Patti for alleged violation of the union constitution or its rules,
regulations , and bylaws . It is clear enough that Regenauer was excluded from a
job for the lack of a union book without being afforded an opportunity to tender
dues and be employed by the Employer at the jobsite on October 8.
I find, upon the preponderance of evidence herein , that the allegations of the
complaint have been sustained and that the Respondent , Local 17, has engaged in
acts constituting unfair labor practices affecting commerce within the meaning of
Section 8 ( b)(1) (A) and ( 2) and Section 2(6) and ( 7) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the
operations of Vogtli & Sons Construction Corp., described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent , Local 17, has engaged in unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act. I shall recom-
mend that (1) the Respondent notify Vogtli & Sons Construction Corp., in writing,
with a copy to Harold W . Regenauer, that the Respondent has no objection to the
employment of Regenauer by the Company or any other employer, and (2) Local
17, the Respondent , make Regenauer whole for any loss of pay he may have
suffered as a result of the Respondent 's having caused the Company not to hire
him on October 8, 1962, by payment to him of a sum of money equal to that
which he normally would have earned as an employee of the Company between
that date and a date 5 days after notification by the Respondent and to Regenauer
as provided above, less his net earnings ( Crossett Lumber Co., 8 NLRB 440,
497-498), during said period the payment to be computed on a quarterly basis in
the manner established in F. W. Woolworth Co., 90 NLRB 289, with interest thereon
according to the principle laid down by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716, requiring the payment of interest on backpay awards at the rate
of 6 percent per annum . I shall further recommend that the Respondent , Local 17,
cease and desist from restraining or coercing any of said Company's employees in
the exercise of rights guaranteed in Section 7 of the Act, as amended, through
threats of physical violence or damage to property unless such employees paid
working dues ("dobie fees") or that they refer employees who were not members of
Respondent 's labor organization to employment with said Employer or any other
employer; or in any like or other manner interfere with , restrain , or coerce any
employee or applicant for employment in the exercise of his rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be validly affected
by an agreement entered into in accordance with Section 8 (a)(3) of the Act, re-
quiring membership in a labor organization as a condition of employment.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Local 17, International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of the Act.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
2. Vogtli & Sons Construction Corp. is engaged in commerce within the meaning
of the Act.
3. By causing the refusal by the Company of employment of Harold W. Regenauer
because he was not a member of the Union and for other stated reasons, the Re-
spondent has engaged in and is engaging in a violation of Section 8 (b) (1) and (2)
of the Act.
4. By said acts against Regenauer and by reason of unfair labor practices against
John Patti, as found above, the Respondent, Local 17, has engaged and is en-
gaged and is engaging in unfair labor practices within the meaning of Section 8(b)
(1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that Local 17, International Union of Operating Engineers , AFL-CIO,
its officers , agents, representatives , successors , and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Vogtli & Sons Construction Corp., or any other
employer, to refuse employment to Harold W . Regenauer because he is not a mem-
ber in, or has not received clearance or approval from , Respondent Union , or in any
other manner to discriminate against him in violation of Section 8(a) (3) of the Act.
(b) Restraining or coercing the said Company 's employees in the exercise of rights
guaranteed in Section 7 of the Act, as amended , by threatening employees with
physical violence or damage of their property unless such employees paid working
dues ("dobie fees"), or requiring referral of persons who are not members of Re-
spondent 's labor organization to the Respondent before employment with said
Employer or any other employer.
(c) In any like or other manner interfere with, restrain , or coerce any employee
or applicant for employment in the exercise of his rights guaranteed in Section 7
of the Act, except to the extent that such rights be validly affected by an agreement
entered into in accordance with Section 8(a) (3) of the Act, requiring membership
in a labor organization as a condition of employment.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Notify the said Employer in writing that it has no objection to the Company's
employment of Harold W. Regenauer.
(b) Make whole Harold W. Regenauer for any loss of pay he may have suffered
as a result of the discrimination against him , as set forth in that section of this
Intermediate Report entitled "The Remedy."
(c) Post at its business office in Jamestown , New York , and in all places where
notices or communications to its members are customarily posted and, the Company
willing, at the jobsite at Strykersville , New York, copies of the attached notice
marked "Appendix ." 3 Copies of said notice , to be furnished by the Regional
Director for the Third Region , shall, after being duly signed by an official repre-
sentative of the Respondent , remain posted for a period of not less than 60 con-
secutive days. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any other material.
(d) Notify the Regional Director for the Third Region , in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply therewith.4
'If this Recommended Order be 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pur-
suant to a Decision and Order "
I If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Third Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
WEST TEXAS EQUIPMENT COMPANY 39
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS , AND REPRESENTATIVES AND TO ALL
EMPLOYEES OF VOGTLI & SONS CONSTRUCTION CORP.
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct the business of Local 17 as required by the National Labor
Relations Act, we notify you that:
WE WILL NOT try to cause Vogtli & Sons Construction Corp. to refuse to
hire any worker because he does not have clearance to the job from Local 17
or has not been referred by us.
WE WILL NOT try to cause Vogtli & Sons Construction Corp. to refuse to hire
any worker because he has engaged in lawful union activities which do not
meet with our approval.
WE WILL NOT try to cause Vogtli & Sons Construction Corp. to discriminate
against any employee or applicant for employment in any way that violates
the National Labor Relations Act.
WE WILL pay Harold W. Regenauer for the time he lost from work with
Vogtli & Sons Construction Corp. because of our having caused that Company
not to hire him , and we will notify Regenauer and that Company that we do
not object to Regenauer 's working for any employer.
LOCAL 17, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days after its date, and must not be altered,
defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo , New York, 14202, Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with its
provisions.
West Texas Equipment Company and International Union of
Operating Engineers , AFL-CIO, Local 191. Case No. 16-CA-
1729. June 25, 1963
DECISION AND ORDER
On April 5, 1963, Trial Examiner W. Edwin Youngblood issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices, and recommended that the complaint be dismissed with respect
to such allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
143 NLRB No. 7.