Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1040 (N.L.R.B. 1970)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica (August Bohl Contracting Co., Inc. and
Cooley Contracting Co., Inc ., a Joint Venture)
and Jack Sharac
Local 294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica (August Bohl Contracting Co., Inc. and
Cooley Contracting Co., Inc ., a Joint Venture)
and Elroy Levernois . Cases 3-CB-1268-1 and
3-CB-1268-2
June 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On February 27, 1970, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent Union, Local 294, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Albany,
New York, its officers, agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' Respondent 's exceptions directed to the credibility resolutions of the
Trial Examiner are without merit The Board will not overrule the Trial Ex-
aminer's resolutions as to credibility unless a clear preponderance of all
relevant evidence convinces us that they are incorrect On the entire
record , such a conclusion is not warranted herein Standard Dry Wall
Products , inc , 91 NLRB 544 , enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceed-
ing, brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136),
herein called the Act, was heard at Albany, New
York, on November 3, 1969. The order consolidat-
ing the cases, complaint, and notice of hearing,
dated September 30, 1969, was issued by the Re-
gional Director for Region 3 (Buffalo, New York)
on behalf of the General Counsel of the National
Labor Relations Board (herein called the General
Counsel and the Board) and was based on charges
filed and served in both cases on May 6, 1969.
In substance the complaint alleged that Respon-
dent, pursuant to an exclusive job referral practice
and arrangement with Bohl-Cooley, a joint venture,
caused Bohl-Cooley to refuse employment to Elroy
Levernois and Jack Sharac because of their activi-
ties "in supporting candidates for election as of-
ficers of Respondent Union in opposition to a slate
of candidates nominated by Respondent Union"
thus dscriminating against them within the meaning
of Section 8(a)(3) of the Act and thereby violating
Section 8(b)(1)(A) and (2) of the Act.
In its duly filed answer Respondent denied the
commision of any unfair labor practices and alleged
certain affirmative defenses as will be shown.
Upon the entire record and from my observation
of the witnesses I make the following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
August Bohl Contracting Company, Inc., and
Cooley Contracting Company, Inc., are, and have
been at all times material herein, corporations duly
organized under and existing by virtue of the laws
of the State of New York, and are engaged in the
construction industry as August Bohl Contracting
Company, Inc., and Cooley Contracting Company,
Inc., a Joint Venture herein called Bohl-Cooley. At
all times material Bohl-Cooley, which maintains its
office and principal place of business at Albany,
New York, has been engaged in excavation work at
projects at or related to the South Mall, Albany,
New York, as well as other projects in the Albany,
New York, area.
During the 12 months preceding issuance of the
complaint Bohl-Cooley, in the course of its business
operations, received in New York State directly
183 NLRB No. 104
LOCAL 294, TEAMSTERS
from other States goods and materials valued in ex-
cess of $50,000. At all times material Bohl-Cooley
has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 294, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, at all times material has been a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
In October 1967 an organization called United
Teamsters Association was formed in the Albany,
New York, area. It was composed of and limited to
members of Teamsters Local 294. As described by
Jack Sharac (one of the alleged discriminatees
herein) United Teamsters Association "had a two-
fold purpose. One was as a social organization and
the second was to recruit men that were diligent in
their beliefs ... that ... wanted to help their own
union out as well as themselves." Both Sharac and
Leroy Levernois (the other alleged discriminatee
herein) were active in the formulation of this or-
ganization-Sharac becoming its president and
Levernois its treasurer.
In December 1967 the newly formed association
(then about 300 members strong out of some 6,000
Local 294 members) put up a slate of candidates
for union office in opposition to union incumbents
as well as others who were also running for union
office. Besides a candidate for president of the
Union, the Association was running one Leo Lester
as candidate for one of the five business agent posi-
tions to be chosen. Among the candidates for busi-
ness agent were Anthony J. Carusone, an organizer
for the Union, and Billy Germain, an incumbent
business agent, whom Carusone had on occasion
assisted in his business agent duties.
Both Sharac and Levernois became very active
on behalf of the Association's slate of candidates,
putting up campaign posters, making telephone
calls, and talking to Local 294 members wherever
they could be found. Just prior to the union elec-
tion in December 1967, a news item appeared in a
local paper headed "300-Member `Social' Unit
Backs Insurgent Teamsters." The article stated in
part:
Teamster Local 294 election campaigns in nine
area cities rolled into high sear today as a new
300-member-strong "social organization"
within the union announced its support of four
local insurgents.
Jack Sharac of Hudson, president of the new
United Teamsters group, said:
We're primarily a social organization, but
1041
we found ourselves in the political end of
it after several of our members decided to
run for office. It's our opinion that a real
two party system within our local would
add a spark of vitality to what has become
a dormant rank-and-file membership
group within the local. Out moto is "U-
nited we stand for old-fashion honesty."
We're not out to form our own union.
We're for Local 294. We're out to better
Local 294 and to represent all the mem-
bers all the time no matter who they
know.
In addition to the foregoing, the article contained
a picture of Sharac and Levernois (together with
the Association's recording secretary, George
Kakely) holding up to view a large banner or poster
headed in heavy block letters "KEEP OUT
WHEELERS AND DEALERS!" under which in
heavier block lettering appeared the words, "VOTE
UNITED." The poster also named the Association's
four candidates and the offices for which they were
running. In the election only one of the Associa-
tion's candidates was successful, being elected to a
position of trustee. Carusone was elected to a busi-
ness agent position as was incumbent Germain. At
the time of the hearing the Association (now called
United Men's Club) had grown to about 400 mem-
bers and had monthly meetings. Sharac was no
longer president but Levernois was still treasurer.
Sharac testified that some time in late January or
early February 1968 he asked Union Steward An-
drew Cavanaugh if he wanted to buy a ticket for a
raffle being conducted by the United Teamsters As-
sociation. Cavanaugh looked at the ticket, "Just
laughed and walked away." Somewhat prior to this
incident, according to Sharac's further testimony,
Sharac had circulated a petition among the drivers
to have an election to replace Cavanaugh as
steward. Business Agent Carusone came down to
the job and wanted to know what the problem was.
Sharac indicated that he did not think the men
were getting proper representation from
Cavanaugh. Carusone said that Cavanaugh would
remain on the job as steward, and Sharac pointed
out that Cavanaugh was originally elected by the
men to the position and argued that if the job was
filled once by election why could it not be done
again if the man was not performing. Carusone's
reply was that "he was running the job and that was
it; If (the man) didn't like it to quit." The discus-
sion became somewhat personal. According to
Sharac's undenied and credited testimony, substan-
tially corroborated by Levernois, Carusone told
Sharac, "When the job is finished you may as well
move because it's the last one you're going to get. "I
' According to Levernois' testimony, Carusone told Sharac on this occa-
sion that , "When he is done on the job he is possibly dead in the area as far
as work "
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharac replied, according to his testimony, "That
shows how silly you are, you just intimidated me in
front of about 25 witnesses."
As of the beginning of 1969, the Bohl-Cooley
joint venture had been engaged in intermittent ex-
cavation work in Albany for some 4 years on what
is known as the South Mall project. In addition to
this project Bohl-Cooley was also engaged in work
at several other locations in the Albany area, all
under separate contracts, including work at a loca-
tion known as the Walsh job. Originally Bohl-
Cooley had some 25 truckdrivers working in-
terchangeably from the South Mall project (all
working under a seniorty roster established at the
start of the South Mall project)' with other of the
Bohl-Cooley jobs3 without any change in the
payroll records-the drivers staying on the Bohl-
Cooley payroll but the cost being billed against the
particular jobs upon which they worked.
Local 294 represented the drivers at the South
Mall project and the Walsh job, and Andrew
Cavanaugh was the union steward for both jobs. In
February 1969, because of a problem arising with
respect to the size of the trucks being operated by
Bohl-Cooley on the South Mall project, it was
necessary to eliminate all but four of them on that
project. By this time 9 of the original 25 drivers had
already left Bohl-Cooley employment leaving 16
drivers facing the then necessary reduction in force.
Of these 16, the top four men in seniority were kept
on the South Mall project, and the remaining 12
told by the Employer that there was no longer any
work at the South Mall project but that they could
go to work on the Albany High School job which
Bohl-Cooley "just started."4 As will appear, 10 of
the 12 transferred to the high school job at this
time.
As to how the Union deals with the contractors
who are signatories to collective-bargaining agree-
ments with it5 Business Agent Carusone testified as
follows:
Well, any time a contractor gets a new job they
bid a job and they are awarded it. Then we
usually sit down. The formal procedure is to sit
down and have a prejob conference to deter-
mine how many men it is going to involve, who
their subcontractors are going to be, and then
tell them who our steward is going to be.
This happened with respect to the Albany High
I Sharac was number I I in seniority on this list and Levernois was
number 20
8 From the testimony of Calvin Bohl, who was master mechanic for the
South Mall project , it appears that the Bohl-Cooley drivers were thus used
between the South Mall project and the Walsh job From the credited
testimony of Sharac and Levernois , both South Mall drivers, it appears that
the interchange of drivers extended to other Bohl-Cooley projects as well
' The Walsh job at this time had apparently closed down for the winter It
would appear from Calvin Bohl's direct examination that Bohl -Cooley did
not get the Albany High School job until about a week after the South Mall
cutback occurred From his cross-examination , however, it would appear
that the high school job was ready at the time the South Mail layoff oc-
curred
' Bohl-Cooley belongs to a contractors association which represents it in
negotiations with the Union
School job. At the prejob conference in Carusone's
office with two representatives of Bohl-Cooley, a
steward was appointed and the question of a
seniority list for the job was discussed.'
A few days after the men began transferring to
the Albany High School job, Carusone told the
steward "to get all the men and make sure they
were at (his) office in the morning, that (they)
were going to have a meeting."' According to
Carusone's testimony he had the meeting because
he "wanted to make sure that the guys that were
going to get laid off, that some of [them] would get
a shot at going up there."
About 10 drivers attended the meeting-among
them Levernois but not Sharac. Carusone at this
time told the men that "there would be separate
seniority on this job" for the reason that this "was a
separate job,.separate contract." He also told them
that by taking a layoff slip from the Company they
could retain their seniority on the South Mall pro-
ject and would thus be the first recalled, and con-
versely that if they did not take a layoff slip on the
South Mall project but went to work on the Albany
High School job they would lose their seniority.
From Levernois' testimony it appears that none
of the drivers agreed with Carusone's edict on
seniority but that "every driver argued against it."
On the other hand, Union Steward Cavanaugh, who
also attended the meeting,' was asked on direct ex-
amination in effect whether the men agreed with
Carusone's edict and answered, "That's right. " I
credit Levernois' testimony here and find that no
voluntary agreement to establish a new seniority
roster on the high school job was made by the em-
ployees.' The only agreement that occurred on the
part of-the men apparently was that two of them
decided to forego employment at the Albany High
School job and agreed to take layoff slips as ap-
pears from Carusone's testimony: When Carusone
was asked on direct examination if agreement was
reached with the men at this meeting , the respon-
sive part of his answer was,10 "Yes. Two of the men
said that they were going to take layoff slips."
There is a further implication in Carusone's
testimony that the men did not agree with the new
seniority list. Thus, he testified that when the layoff
occurred on the high school job, the men com-
plained that "their seniority was violated."
Both Sharac and Levernois were among the 10
What was said about seniority does not appear in the evidence
From Jack Sharac's undenied and credited testimony, it appears that he
had worked on the Albany High School job for 3 days before this meeting
took place
' At the time of this meeting Cavanaugh was on leave recuperating from
surgery, but nevertheless was present at the meeting which took place at
the union hall on a Sunday
" Respondent attempts to bolster its version by testimony of both Calvin
and Herbert Bohl to the effect that they had heard that the men "thrashed
it out themselves " Since neither of the Bohls attended the meeting in
question, their hearsay account is hardly of probative value-particularly
on the face of contrary testimony of someone who attended the meeting
" In his testimony Carusone repeatedly launched into rambling, often
unintelligible dissertations that had no conceivable connection with the
questions being posed to him
LOCAL 294, TEAMSTERS
drivers who transferred from the South Mall job to
the Albany High School job. According to Sharac's
undenied and credited testimony, the steward on
the high school job showed him a seniority list for
that job that had been made up by Carusone. It was
a continuation of the South Mall seniority list with
the exception that Sharac was now last in seniority
instead of number 11 as he had been on the South
Mall project. Had there been no change in seniority
imposed by the Union, Sharac would have been
number 3 in seniority at the start of the Albany
High School job and Levernois number 10.11
The work at the Albany High School job had
been expected to last 4 or 5 months but was essen-
tially completed in about half that time, and by
mid-April the men were laid off. According to Cal-
vin Bohl's testimony, the men that left the South
Mall job to work on the Albany High School job
were still on the Bohl-Cooley payroll when the high
school job finished. At that time the Walsh job was
still in a winter shutdown. However, about 2 weeks
later, work began again on the Walsh job and
several trucks were needed for it. According to
Bohl's testimony, he left it up to Union Steward
Cavanaugh to get the men for the job as the work
requirements dictated. He had no understanding
how Cavanaugh would do this and left it completely
up to Cavanaugh.12 The ultimate result of this ar-
rangement between Bohl and Cavanaugh was that,
except for Sharac and Levernois, all the Bohl-
Cooley drivers who had transferred to the Albany
High School job from the South Mall job when the
layoff occurred there were rehired at the Wals job
when it reopened plus Ray Eaton and Jack Max-
well, the two who had elected to take layoff slips
from the South Mall job so as to retain their
seniority.
As to what happened to Sharac in this connec-
tion , he testified that about 2 weeks after he had
been laid off the Albany High School job, he
learned from Lee Bridenbech, one of the other laid-
off drivers, that Bridenbech and some of the other
drivers had been called back for work on the Walsh
job. On the basis of this information, Sharac went
to see Calvin Bohl. He told Bohl, "I understand
you've got some men back to work?" and asked
what his chances were of going back to work. Bohl
replied, "Jack, I haven't got a job for you. "13
Sharac did not talk to Cavanaugh because he was
not around. He did go to see Business Agent
Carusone in his office. As to what took place there,
Sharac credibly testified as follows:
First I asked him why he had ignored a letter
that I sent by registered mail to the executive
" This result is arrived at by eliminating the 9 drivers from the original
seniority list of 25 who had already left Bohl -Cooley employment by this
time, and including the 2 who took layoff slips when the transfer to the Al-
bany High School job occurred
12 Cavanaugh 's testimony that he submitted a list of names to Bohl and
called men to come to work on the Walsh job when it reopened , only after
he had been instructed by Bohl specifically who to call, is not credited
13 Bohl testified to this effect On direct examination Sharac testified that
1043
board of the Local and a formal complaint my
seniority was violated on the Albany High
School job. He gave no reply that I can re-
member. When I asked why I was placed on
the bottom of the list on the high school job.
His reply was I wasn't there at that meeting
that Sunday they held. Then I asked him about
if it wasn't true we were suppose to get three
days notice according to the contract before
layoff or pay. And he said that we were not en-
titled to it.... I asked the same question in re-
gard to vacation pay. He also said I wasn't enti-
tled to that. I said, "Jack Maxwell was junior to
me on the list. He took a lay off before he
came to the Albany High School job and he
received vacation pay." To that he didn't reply
also.
I also asked him about getting back down on
the Mall. He said, "I'll make it perfectly clear
that no one for Bohl-Cooley will go back to the
Mall. Any hiring done will be done through
me. I am in control of the whole area.
Like Sharac, Levernois learned from Bridenbech
that "they were calling men back" to the Walsh
job. The next morning Levernois called Cavanaugh
at 7:30 at the jobsite about which he testified as fol-
lows:
I told him, I said, "I understand some of the
men are back working. I was talking to some.
And there's quite a few hired back." And he
said yes there was. So, he mentioned-I asked
him who. He mentioned a few names and I
mentioned a few names. He said, "Yes, they
are working." I said, "How come these guys
got called back and I ain 't called back and
these other guys hired after I was, practically
close to a year after I was?" And he said, "You
know what the assumption was at the meeting.
When you went up to the high school you lost
your rights." I said, "Nobody agrees to that, no
drivers. It was never agreed on." And he said,
"Well," you know, he said, "that's the way it
is. We can hire back who we want at any
time ." In the end he said, "We're getting more
trucks, and shortly you should be called back."
Prior to this time Levernois had gone to Calvin and
Jack Bohl and sought reemployment through them
without success.
About the same time that Levernois had the
above conversation with Cavanaugh, he attended a
union meeting about which he testified credibly and
without denial as follows:
I tried to go up on the floor with the
microphone and have Mr. Carusone speak to
when he asked Bohl what his chances were of going back to work Bohl
replied, "I haven't got anything for you Andy Cavanaugh is doing all the
hiring " On cross-examination Sharac testified that when he asked Bohl for
work the latter told him that he had no work for him and that he would
have to see Cavanaugh Sharac then admitted that the part of Bohl's state-
ment about seeing Cavanaugh was Sharac 's own addition as to what Bohl
told him I credit Bohl
427-258 O-LT - 74 - 67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me on the floor and president Robert Oswell
wouldn't allow it. He said that the only way I
could talk to Mr. Carusone was to go into his
office. I said it ain't of my choosing to go into
the office because you get the same procedure
when you go in there as any other time. They
said no, that's done. But I had to go into the of-
fice.
[Carusone] said, "What's your bitch now?" I
said, "It's the same bitch as before. Why can't
we get back to work? Everybody else was
called back, men hired after us. Why can't we
go back?" He said, "You know when you went
up to that job you lost all your rights as you
lost everything around here. You're through. If
we don't want to hire, we don't have to hire."
He just kept saying flatly, "No, that's it."
He said, "When you went up to that job, there
was a new seniority." They claim there was a
list made. But I have never seen a list. I never
seen one on the high school job all the while I
was there. I seen one. There was never one up.
I said as far as seniority nobody agreed to that
seniority. At the meeting we had, every driver
argued against it. He was only one man. He de-
mended that's the way it was going to be.
Every driver didn't want it at this time. Bill
Bruce tried to tell him how other jobs were do-
ing. He said, "I don't care about other jobs. I'm
telling you that's the way it's going to be."
*
It kept getting a little hotter. I told him about
my vacation pay. He said, "don't think you
have vacation pay." I reminded Mr.
Cavanaugh when I started. He agreed, "Yes,
• you do. In February you should have one com-
ing.
Mr. Carusone told Mr. Cavanaugh to look into
it which he did. Mr. Cavanaugh did look into
it. He said, "That's all there is to it. You're
through. You ain't going to go to work." He
opened the door and said, "Get out. You're
done. And you're dead. Get out." I went out of
his office.
As for who went to the Albany High School job,
Carusone testified, "Well, I left it up-which I do
all the time after the steward is appointed. Take
'a In addition, Sharac's attempt to replace Cavanaugh as steward obvi-
ously did nothing to ingratiate himself with Cavanaugh or Carusone for that
matter The affront to Cavanaugh is obvious And the attempt to accom-
this up with the steward.... It didn't make any dif-
ference to me. As long as the jobsite was covered
and the Teamsters were doing the job that was all I
was interested in." Carusone also testified that
when the men began getting laid off the high school
job "then they said their seniority was violated. It
wasn't violated. At that time they were having a
party getting all those hours."
According to Carusone's further testimony, when
Levernois came into the office to see him Levernois
had been drinking. He told Levernois, "Look, don't
you come in here when you've got false courage. I
told you this before and I will tell you again this is
the way the thing is. Now, get out." Opening the
door to his office Carusone then said, "When you
are sober come back again." The following day
Carusone had to appear in court to defend himself
in connection with a warrant sworn out by Lever-
nois. The charges were dismissed.
Contentions and Conclusions
In its brief Respondent correctly states the issues
as being:
1. That there was an arrangement, un-
derstanding, or practice that Respondent
Union had the sole responsibility and discre-
tion for the selection and referral of em-
ployees.
2. That the Union caused Bohl-Cooley to
refuse to employ Sharac and Levernois on the
South Mall project.
3. The Union caused Bohl-Cooley to refuse to
employ Sharac and Levernois because they
supported candidates in opposition to a slate of
candidates nominated by the Union.
Respondent contends that there was no arrange-
ment , understanding, or practice relegating to the
Union the sole responsibility and discretion for the
selection and referral of employees to Bohl-Cooley.
I disagree and find the contrary. Not only does Cal-
vin Bohl's testimony clearly show the exclusive ar-
rangement with the Union, but so do undenied
statements by union officials. Thus, Carusone told
Sharac when the latter was trying to be reemployed
by Bohl-Cooley, "Any hiring done will be done
through me. I am in control of the whole area." In a
similar vein , it will be recalled, Cavanaugh told
Levernois, "We can hire back who we want at any
time."
I also find against Respondent on the other two
issues . I believe that the preponderance of the
evidence shows that Sharac and Levernois were
refused employment at the Walsh job after the Al-
bany High School job ended essentially because of
their support of the United Teamsters Association
and the activities it was engaged in," and that this
refusal was the result of action taken by the Union.
plish his purpose by an election clearly impinged on Carusone's preroga-
tives as business agent to appoint the steward
LOCAL 294, TEAMSTERS 1045
The crux of the whole matter is the Union's uni-
lateral change in the seniority of the Bohl-Cooley
drivers when they began work on the Albany High
School job. Respondent argues strenuously in sup-
port of its action claiming in effect (1) that the men
"thrashed out ... themselses" the matter of the
new seniority list on the Albany High School job
and (2) that this was done in accordance with the
established construction site seniority rule that all
"construction sites have a separate seniority." As
already shown, the evidence does not support
Respondent in (1), above. As for (2), apart from
the bald statement by Carusone that each construc-
tion site has a separate seniority, there is nothing in
the record to support such a finding. Indeed, what
evidence there is tends to show the opposite. Thus
as shown by Levernois' testimony the men took ex-
ception when Carusone claimed that such was the
practice on construction projects. Moreover, if
such was the practice it had not been followed for
some 4 years by Bohl-Cooley in the assignment of
its drivers to various of its other jobs from the
South Mall project.
It appears from the foregoing that the Union had
the sole responsibility and discretion for the hiring
of Bohl-Cooley drivers on all its Albany area pro-
jects. It also appears that, had the Union recalled
the men to the Walsh job on the basis of their
previously established seniority, Sharac would have
been number 3 to be recalled and Levernois
number 10. As it was, a total of 10 men were called
back, 7 with seniority less than Sharac and 2 with
seniority less then Levernois. Considering the part
played by Sharac and Levernois in the organization
and administration of the United Teamsters As-
sociation and its political activities,15 it requires no
effort to draw the inference (which I do) that the
Union's failure to recall these two men was because
of such activity on their part.
There is no doubt that the existence and activi-
ties of the United Teamsters Association and those
responsible for its organization and direction, par-
ticularly as pertains to the union election of
December 1967, were well noted by the incumbent
union officials as well as by Carusone16 and
Cavanaugh. In this connection Cavanaugh testified
that he knew that Sharac and Levernois were mem-
bers of the United Teamsters organization, alluding
to the fact that he had seen their pictures in the
paper.
Respondent claims that the Union's actions on
behalf of Sharac and Levernois as well as other
United Teamsters members after the union election
and prior to the reopening of the Walsh job shows
that it had no discriminatory attitude toward mem-
bers of the United Teamsters Association. Thus
Respondent points to (1) the fact that sometime in
1968 Carusone processed a grievance for Sharac
with the Employer saving his seniority standing, (2)
that Cavanaugh at Carusone's instructions saw to it
that Levernois was paid for vacation that he had
earned, and (3) that the Union represented Frank
Severino, a United Teamsters member, in a
grievance before a state-appointed arbitrator that
Severino had filed against the Company for his
discharge. About his discharge Severino testified
that on August 6, 1968, Union Steward Cavanaugh
stopped Severino's truck at 8:30 a.m. and accused
him of intimidating a couple of men by having tried
to make them sign a petition for a new steward.
Cavanaugh told Severino at this time that "you ...
United Teamsters are going down the road one by
one. In fact, you are going to go right now because
I have the right to fire you ... take that truck back
to the yard. You're all done."
According to Cavanaugh's testimony, the matter
was as follows:
There was a couple of fellows getting-they
had a coffee shack they all use to stop at. Mr.
Severino and this fellow name Faye Johnsbn,
he was another truckdriver, he was there. And
this man kept harping on him that he should do
this and he was not doing this and not doing
that and so on and so forth. So this Faye John-
son went to Cal Bohl. And then he started on
another man that was there, Harold Ward. And
he told him he was no good and so on and so
forth. And he went to Cal Bohl. This was when
they had that case on him. Then Cal Bohl
came to me. He said, "You'd better do
something about that fellow." So, they had
been warned to have no riders in the trucks
whatsoever. So, he goes right out, pulls right
out of the yard. And he picks up a man and
had this man riding around in the truck with
him.....
At this point Cavanaugh was asked by Respon-
dent's counsel in effect if Severino was discharged
because he had a man riding in the truck with him
to which he testified as follows:
... that ... and several other things. Cal Bohl
said to me, "come on, Eddie, get in the truck
with me." He said, "that fellow there, he is
violating every law and everything. If I tell him
to do something he just doesn't do it." So, we
go over to the Mall. And Cal Bohl told him to
take the truck back to the garage, that he was
through. He said, "You got a man in that truck
and you were told not to have anybody in this
truck whatsoever."
i5 Respondent contends that the General Counsel failed to prove that the
people against whom the United Teamsters candidates were running in the
December 1967 union election were "candidates nominated by Respon-
dent Union " It is true that Carusone was not an incumbent business agent
nor was he shown to have been nominated by the Union as such But it is
also shown that candidate Germane, an incumbent business agent, had
been on occasion assisted in his business agent duties by Carusone, thus
showing some amicable connection between Carusone and the governing
hierarchy of the Union
'S Carusone 's testimony that he "didn 't know anything about the United
Teamsters" opposition to the Union incumbents and that he did not know
that Campbell, United Teamsters candidate who was elected a trustee, was
member of that organization is rejected as patently incredible
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whatever the exact facts about the matter I credit
Severino's testimony here. (The arbitrator's award
was against Severino.)
This conduct on the part of the Union normally
would be of some significance in weighing the
charge of discrimination on the part of the Union
against Sharac and Levernois. But the circum-
stances here are not ordinary and there are coun-
tervailing factors that should be considered. For in-
stance, it should be noted that Respondent Union
is, and has been for a long time, a sophisticated
union very ably represented by counsel and quite
experienced in the ramifications of charges involv-
ing Section 8(b)(1)(A) and (2), and other sections
of the Act." Thus the Union could very well have
been wary in 1968 about inviting a charge of
restraint and coercion of Sharac in the exercise of
his rights under the Act by a discriminatory refusal
to process a grievance for him-particularly so
soon after his publicly having told Carusone how
stupid he was to have threatened him with loss of
employment in front of some 25 witnesses. By
1969, the deterrent effect of such a remark may
have diminished.
Nor would it have been in keeping with the
Union's knowledge to have invited similar charges
by Levernois on anything so open and shut as vaca-
tion benefits to which he was entitled. As for the ar-
bitration on Severino's discharge, apart from the
fact that there was nowhere near the incentive for
union resentment of Severino as there was with
respect to Sharac and Levernois,18 the truth is that
many an arbitration has been processed by a union
knowing full well that it would be lost and being
quite content in that knowledge.
On the record as a whole, I am convinced and
find that when the Union failed to recall or to
rehire Levernois and Sharac'9 on the Walsh job in
the exercise of its exclusive hiring arrangement with
Bohl-Cooley, it can be said to have caused dis-
crimination against them by Bohl-Cooley within the
meaning of Section 8(a)(3) of the Act, and thus
violates Section 8(b)(1)(A) and 8(b)(2) of the
Act. International Union of Operating Engineers,
Local 624 A-B (D. S. McClanahan & Son), 141
NLRB 615; Carpenters Union Local 180 (Golden
State Runway and Engineering Company), 162
NLRB 950.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union set forth
in section III, above, occurring in connection with
17 See Conway's Express, 87 NLRB 972, Western Express Company, Inc ,
91 NLRB 340, The Great Atlantic and Pacific Tea Company, Inc., 116
NLRB 943, Valetta Trucking Company, 116 NLRB 842, Bonded
Freightways, Inc, 121 NLRB 924, Grand Union Company, 122 NLRB 589,
K-C Refrigeration Transport Co, Inc, 124 NLRB 1245, Valletta Motor
Trucking, Inc, 137 NLRB 1023, Island Dock Lumber, Inc, 145 NLRB 484,
and The Great Atlantic and Pacific Tea Company, Inc, 173 NLRB 1492
18 So far as the record shows, Severino was merely a member of the
the Employer's operations set forth in section 1,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent Union violated
the Act , I shall recommend that it cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Hav-
ing found that Respondent Union caused Bohl-
Cooley to discriminate against Jack Sharac and
Leroy Levernois by refusing them employment con-
trary to requirements of Section 8(a)(3) of the Act,
I shall recommend that Respondent make them
whole for any loss of pay suffered by reason of the
discrimination against them , by paying to them a
sum of money equal to that which they normally
would have earned from the date of the discrimina-
tion against them ( which was the date they would
have been recalled to the Walsh job in the spring of
1969, had the recall been made on the basis of the
seniority they were entitled to carry with them to
the Albany High School job from the South Mall
project ) to the time that they would have been laid
off on the Walsh job or the South Mall project as
their seniority would have dictated , absent any dis-
criminatory motive.
Upon the foregoing findings of fact and upon the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. August Bohl Contracting Company, Inc., and
Cooley Contracting Company, Inc., a Joint Ven-
ture , are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By causing or attempting to cause August
Bohl Contracting Company, Inc., and Cooley Con-
tracting Company, Inc., a Joint Venture, to refuse
employment to Jack Sharac and Leroy Levernois
because of their supporting candidates for election
as officers of Respondent Union in opposition to a
slate of candidates backed by the Union, Respon-
dent has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) and 8(b)(2) of
the Act.
United Teamsters Association and played no part in its formation or ad-
ministraction Parenthetically, one wonders how Carusone would have
known of Severino's membership in the United Teamsters Association if he
did not (as he claimed) know about its publicized members who were in-
volved in the same election campaign as he was
19 Contrary to Respondent the evidence shows that Sharac did seek
reemplpyment through the Union-not through Cavanaugh but through
Carusone-the one who controlled hiring in the whole area
LOCAL 294, TEAMSTERS
4. The said unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclu-
sions of law and upon the entire record in the case,
I recommend that Respondent Union, Local 294,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause August Bohl
Contracting Company, Inc., and Cooley Contract-
ing Company, Inc., a Joint Venture, to discriminate
against Jack Sharac and Leroy Levernois or any
other employee contrary to the requirements of
Section 8(a)(3) of the Act.
(b) In any other manner restraining or coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Make whole Jack Sharac and Leroy Lever-
nois for any loss of earnings they may have suffered
because of the discrimination against them in the
manner set forth in the section entitled "The
Remedy."
(b) Post at Respondent Union's business offices
and meeting halls copies of the attached notice
marked "Appendix. "2 Copies of said notice, on
forms provided by the Regional Director for Region
3, after being duly signed by Respondent's
authorized representative, shall be posted by said
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 3
signed copies of the attached notice marked "Ap-
pendix" for posting at the premises of the two
named contracting firms and the Walsh and South
Mall project sites in places where notices to the
Company's employees are customarily posted, the
said Companies willing.
(d) Notify the Regional Director for Region 3, in
writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.21
IT IS FURTHER RECOMMENDED that, unless on or
before 20 days from the date of receipt of this
Decision Respondent notifies said Regional
Director in writing that it will comply with the
foregoing recommendations, the National Labor
Relations Board issue an order requiring it to take
the aforesaid action.
20 In the event no exceptions are filed as provided by Section 102 46 of
1047
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
2i In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3 , in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Au-
gust Bohl Contracting Company, Inc., and
Cooley Contracting Company, Inc., a Joint
Venture, to discriminate against Jack Sharac
or Leroy Levernois or any other employee or
applicant for employment in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain
or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL make Jack Sharac and Leroy
Levernois whole for any loss of earnings they
may have suffered because of the discrimina-
tion against them.
LOCAL 294,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
ByDated
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Fourth Floor, The 120 Building,
120 Delaware Avenue, Buffalo, New York 14202,
Telephone 716-842-3100.