Local 17, Operating Engineers

National Labor Relations Board - Board Decisions

Sep 12, 1977

231 N.L.R.B. 1287 (N.L.R.B. 1977)

LOCAL 17, OPERATING ENGINEERS
Local 17, International Union of Operating Engineers,
AFL-CIO (Combustion Engineering, Inc.) and
Estate of James F. Kipler.' Case 3-CB-2713
September 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 27, 1977, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and briefs in support thereof and in
support of the Administrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, to modify his Remedy,3 and to adopt his
recommended Order, as modified herein.4
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 Respondent, Local 17,
International Union of Operating Engineers, AFL-
CIO, West Seneca, New York, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order, as so modified:
I. Substitute the following for paragraph l(c):
"(c) In any other manner restraining or coercing
employees in the exercise of their rights under
Section 7 of the Act."
2. Substitdte the attached notice for that of the
Administrative Law Judge.
I he name of the Charging Party appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the
Administrative La. 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.
:' In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent
In par. I(c) of his recommended Order, the Administrative Law Judge
provided that Respondent shall cease and desist from "in any like or related
manner" infringing upon employee rights guaranteed in Sec. 7 of the Act.
ltoweser, in cases of this kind. involving a violation of Sec. 8(bX)2) it is the
Board's established polico to use the broad injunctive language "in any
231 NLRB No. 145
other manner." See N.LR.B v. Entwistle Mfg. Co., 120 F.2d 532. 536 (C.A.
4. 1941). Accordingly, we shall modify the Administrative Law Judge's
recommended Order and notice to conform his injunctive language to that
customarily used by the Board.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Combustion Engineering, Inc., to refuse to hire
any employees in violation of Section 8(b)(2) of
the Act.
WE WILL NOT restrain or coerce the employees
of Combustion Engineering, Inc., or of any other
employer, in violation of Section 8(b)(l)(A).
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL make whole the Estate of James F.
Kipler for any loss of earnings it may have
sustained as a result of our discrimination against
him.
WE WILL notify, in writing, Combustion Engi-
neering, Inc., that we have no objection to the
employment by it of individuals not referred by
the Union
LOCAL 17,
INTERNATIONAL UNION
OF OPERATING
ENGINEERS, AFL-CIO
DECISION
KARL H. BUSCHMANN, Administrative Law Judge: On
September 3, 1976, a complaint issued pursuant to a charge
filed April 20, 1976, by James F. Kipler.1 The complaint
charged that Respondent caused the employer, Combus-
tion Engineering, Inc., to refuse employment to the
Charging Party in violation of Section 8(b)(1)(A) of the
Act. Respondent filed an answer on September 15, 1976,
admitting several allegations but denying that it had
engaged in any unfair labor practices.
A hearing was held on January 18, 1977, in Buffalo, New
York. Briefs have been filed by both, counsel for General
Counsel and counsel for Respondent, and have been duly
considered.
FINDINGS OF FACT
Combustion Engineering, Inc., sometimes referred to as
the Employer, is, and has been at all times material, a
Delaware corporation with headquarters at 1000 Prospect
Hill Road, Windsor, Connecticut. Combustion Engineer-
James F. Kipler died on July 6, 1976. prior to the hearing in this case.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, Inc., is admittedly an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
In 1976, Combustion Engineering, Inc., was the success-
ful bidder for a repair job at Niagara Mohawk's steam
station in Dunkirk, New York. This jobsite was within the
area served by Respondent, Local 17, International Union
of Operating Engineers, AFL-CIO. This Union is, and at
all material times has been, a labor organization within the
meaning of Section 2(5) of the Act.2
On or about April 1, 1976, prior to the start of the job,
Richard Griffin, district manager for Combustion Engi-
neering, Inc., received a call from Mr. Freedenberg,
president of Local 17. Freedenberg asked Griffin for an
estimate of the need for operating engineers on the
upcoming job and requested that Combustion Engineering,
Inc., fill the jobs through Local 17's hiring hall because of
the high unemployment situation prevailing in western
New York. Griffin generally acquiesced, even though the
parties had not entered into an exclusive hiring hall
agreement. It was stipulated on the record that, at all times
material herein, there was no exclusive hiring hall or
referral arrangement between Combustion Engineering,
Inc., and Operating Engineers, Local 17. About April 7,
Griffin again spoke with a Local 17 representative, either
David Harrigan or Leo Hopkins, to inform him that
Malcolm Hawkhurst would be the Employer's construction
superintendent at the Dunkirk project.
Mal Hawkhurst began at the jobsite on Friday, April 9,
1976. He had worked at this facility several times in the
past. In his previous dealings with the Union at this jobsite,
his practice was to hire a union member who would then be
responsible for contacting additional operating engineers
as were needed from time to time. In this instance, to fill a
need for operating engineers, he had contacted George
O'Donnell, a member of Local 17 with whom he had
worked in the past. O'Donnell reported for work on
Monday, April 12, 1976. Griffin testified that he had visited
the jobsite about April 12 or 14, and had at that time told
Hawkhurst of the request of Local 17 to use the hiring hall.
The critical events in this case occurred Friday, April 16.
Hawkhurst informed O'Donnell that additional operating
engineers would be needed for the second and the third
shifts on the following Monday, April 19, and expected
O'Donnell to fill the slots, as had been the practice in the
past. O'Donnell's testimony confirms that the practice was
for him to call qualified men to fill the slots. On April 16,
O'Donnell called Butch Gillian and Jim Kipler for
Monday's second shift, and Charles Cullen and Red
McNamara for the third shift, in accordance with Hawk-
hurst's instructions of the same day.
Hawkhurst, on Griffin's instructions, called the hall with
the understanding that he was simply to keep the hall
informed that certain jobs had been filled with members of
Local 17, the Respondent Union. Hawkhurst told the
dispatcher at the hall that the four jobs for the second and
third shifts had been filled with four men, including Kipler.
Cullen, one of the operating engineers who had been called
by O'Donnell, also called Harrigan to report that he would
be taking the job with Combustion Engineering, Inc. He
further reported to Harrigan that Kipler and Gillian would
be on the second shift and that he and McNamara would
be on the third shift. Harrigan's response was "fine."
Later on Friday, Harrigan, the union representative,
called Hawkhurst from the union hall. According to
Hawkhurst's testimony the substance of Harrigan's tele-
phone call was as follows:
It was quite a large conversation, kind of one-sided by
Mr. Harrigan, but he had three points, as I recall, that
he brought up. One was that I-that I would lose my
job as a deal he had with Griffin, if I didn't comply,
that all further requests would be made directly by me
to the Hall to the Operating Engineers and failure to
comply would be that he would shut the job down by
using the usual picket lines and several other methods
that he suggested.
Hawkhurst responded by expressing his amazement to
Harrigan since he had operated in this manner each year
from 1968 through 1971 without any objection by the
Union in the past. But he told Harrigan that he was
interested "to keep peaceful customer relationships" and
that he "didn't want to get involved in any job shutdown."
He therefore offered Harrigan a compromise:
I would find room for the four people, if there
were two that George had called, already called, and
Mr. Harrigan's people that he sent out; that I would try
to find a place on the job for them, all of them, as I said
before, to avoid a problem on the job.
Harrigan, however, declined quite vehemently and
insisted that he had a deal with Griffin that he, Harrigan,
would have sole authority to refer operating engineers for
the job, stating further: "This is the way it is going to be or
else."
Harrigan, in his testimony, denied having made any
threats, claiming that he understood Hawkhurst to have
simply made a request for a union dispatch of operating
engineers. In any case, Harrigan dispatched two men for
the 4:30 p.m. shift on Monday, April 19, 1976. The two
men contacted by O'Donnell. Gillian, and Kipler, also
appeared at 4 p.m. at the jobsite.
Hawkhurst, who in an earlier discussion with Griffin had
been instructed by him to comply with the Union's
demand, then told the four employees that only two were
needed for the job and requested them to settle the matter
among themselves. They called the union hall and were
told that the hall referrals were to take the jobs. Slocum
and Ferraro, the two who were dispatched by the hall, were
accordingly hired. Again, for the third shift, those sent
from the hall received the jobs, while Cullen and McNa-
mara, those sent by O'Donnell, were not hired.
The record indicates that one of the reasons for the
Union's insistence to control the jobs was that three of the
four O'Donnell men had previously run in the last union
election on a ticket opposing the incumbents, including
Harrigan, and the fourth had supported their ticket. In any
case, the record is conclusive that the Union insisted and
2 Admitted in Respondent's answer.
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LOCAL 17, OPERATING ENGINEERS
succeeded in filling the jobs at the Dunkirk jobsite, and
that the four men contacted by O'Donnell, in accordance
with Hawkhurst's instructions, were refused employment.
Analysis
Section 8(b)( )(A) makes it an unfair labor practice for a
union "(I) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in Section 7 .. ." and "(2)
to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection 8(a)(3)
The evidence in this case shows that the four men who
O'Donnell had contacted, at the behest of Hawkhurst, were
members of Local 17 and, in the union election, opposed
the candidates who remained in power. Harrigan, one of
those who had remained in power, therefore had a purpose
in keeping those men from getting jobs and arrogating to
himself the power to make job referrals at this jobsite.
Harrigan's testimony3 that he had dispatched his men in
the belief that Hawkhurst, in his telephone call to the hall
on April 16, 1976, had requested them, is directly
contradicted by Hawkhurst, 4 who stated that he had called
the hall for the sole purpose of keeping the Union
informed. The testimony of O'Donnell and Cullen substan-
tiates Hawkhurst's version of the events on April 16 and 19,
1976. Moreover, the record is undisputed that Hawkhurst
had acted on this occasion in accordance with the past
practice of this Employer to fill jobs for operating
engineers by having O'Donnell make the necessary
contacts. The record further shows that the engineers
which the Union dispatched were hired and that the four
men, including James Kipler, who were contacted by
O'Donnell did not get the jobs. Indeed, it is also clear that
Respondent was not merely interested in their referrals
getting the jobs. Harrigan wanted absolute control. He
refused Hawkhurst's attempt to compromise the conflict
and declined Hawkhurst's offer to employ both
O'Donnell's men and Harrigan's referrals. Whether Hawk-
hurst complied with Respondent's demands because of the
Union's pressure directed against him personally, or as a
result of Griffin's orders-as argued by the Union-is
immaterial. The record clearly indicates the former,
namely, that Hawkhurst initially proceeded in filling the
jobs as he had done in the past, even though Griffin had
already informed him of the Union's request, and thus
Harrigan's call to Hawkhurst on April 16 became the
turning point. It is well settled that, absent an exclusive
hiring hall agreement, a union's interference with an
employer causing him to terminate or refuse to hire certain
individuals in violation of Section 8(aX3) constitutes a
violation of 8(b)(1)(A) and (2) of the Act. Bricklayers,
Masons and Plasterers' International Union of America,
Local No. 2, A FL-CIO (Glenshaw Glass Company, Inc.), 205
NLRB 478 (1973).
:' Harrigan's testimony is discredited because of his generally evasive
demeanor in responding to questions. and because it is contradictory in
some instances.
In spite of Respondent's attempt to attack Hawkhurst's credibility
because of the circumstances leading to his discharge, I credit his forthright
testimony. Being no longer employed by Combustion Engineenng. Inc.. he
also had no special interest in the outcome of the case.
CONCLUSIONS OF LAW
I. Respondent, Local 17, International Union of
Operating Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Combustion Engineering, Inc., is an employer within
the meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By causing and attempting to cause the Employer,
Combustion Engineering, Inc., to discriminate against and
refuse to employ certain individuals, including James F.
Kipler, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(bX)(1)(XA)
and (2) of the Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that Respondent unlawfully caused
Combustion Engineering, Inc., to refuse to hire James F.
Kipler and others, it is recommended that Respondent
make whole the Estate of James F. Kipler for any loss of
pay which may have been suffered as a result of the
discrimination against him by making payment to his
Estate of a sum of money plus interest, equal to that which
he would have earned but for Respondent's discrimination
against him in accordance with the principles enunciated
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumling & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing facts, conclusions of law, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 5
The Respondent, Local 17, International Union of
Operating Engineers, AFL-CIO, West Seneca, New York,
its officers, agents, and representatives, shall:
1. Cease and disist from:
(a) Restraining or coercing employees of Combustion
Engineering, Inc., or any other employer, in violation of
Section 8(bXX)(A) of the Act.
(b) Unlawfully causing and attempting to cause Combus-
tion Engineering, Inc., to refuse to hire any employees in
violation of Section 8(bX2) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, 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.
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner restraining or coercing
employees in the exercise of any rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole the Estate of James F. Kipler for any
losses in pay it may have sustained as a result of
Respondent's discrimination against him computing the
amount due in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify immediately Combustion Engineering, Inc.,
that it has no objection to the Company employing certain
individuals contacted by the Employer.
(c) Post at its business offices in West Seneca, New York,
its meeting hall, and all other places where notices to
members are customarily posted, a copy of the attached
notice marked "Appendix," 6 Copies of the notice on forms
provided by the Regional Director for Region 3, after
,i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
being duly signed by an authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and maintained for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Promptly, upon receipt of copies of said notice from
the Regional Director, return to him signed copies for
posting by Combustion Engineering, Inc., if it be willing, at
the Company's Dunkirk, New York, office, and any other
jobsite located in the Buffalo, New York, area.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges any violation of the Act
not specifically found.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1290