Montgomery Elevator Co.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 871 (N.L.R.B. 1986)

MONTGOMERY ELEVATOR CO. 871
Montgomery Elevator Company and D. Webb Rob-
bins
International Union of Elevator Constructors, AFL-
CIO and D. Webb Robbins. Cases 10-CA-
20626 and 10-CB-4453
28 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 9 October 1985 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
Respondent International Union of Elevator Con-
structors, filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
to the Respondent Union's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondent Montgomery El-
evator Company, Knoxville , Tennessee, its officers,
agents , successors , and assigns , and Respondent
International Union of Elevators Constructors,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Order.
I The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Frank J. Rox Jr., Esq., for the General Counsel.
Daniel F. Murphy Jr., Esq. (Putney, Twombly, Hall &
Hirson), of New York, New York, for Respondent
Montgomery Elevator Company.
Robert Matisoff, Esq. (O'Donoghue & O'Donoghue), of
Washington, D.C., for Respondent International Union
of Elevator Constructors, AFL-CIO.
DECISION
ary 1985. The complaint is based on a charge filed by D.
Webb Robbins, an individual, on 4 December 1984, and
alleges that Respondent International Union of Elevator
Constructors, AFL-CIO (the Union) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act)
about 15 October 1984 by threatening employees of Re-
spondent Montgomery Elevator Company (the Employ-
er) by telling them that the Union had not abandoned its
demand that employees working for the Employer be
members of the Union, and that it violated Section
8(b)(2) of the Act about 23 October 1984 by causing the
Employer to demote its employee D. Webb Robbins
from the position of temporary mechanic to helper, and
also violated Section 8(b)(2) of the Act about 24 October
1984 by causing the Employer to lay off its employee D.
Webb Robbins. The complaint also alleges that the Em-
ployer violated Section 8(a)(1) of the Act about 16, 23,
and 24 October 1984 by threatening its employees with
layoff because they were not members of the Union and
that the Employer violated Section 8(a)(3) of the Act by
demoting its employee, D. Webb Robbins, about 23 Oc-
tober 1984 from the position of temporary mechanic to
helper and by laying off the employee about 24 October
1984 because he was not a member of the Union. The
complaint is joined by the answers of Respondents
wherein they deny the commission of the alleged viola-
tions of the Act.
On the entire record in this proceeding including my
observation of the witnesses who testified herein and
after due consideration of the positions of the parties and
briefs filed by the parties, I make the following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
The complaint alleges , Respondents admit, and I find,
that the Employer is, and has been at all times material
herein, an Illinois corporation with an office and place of
business located at Knoxville, Tennessee, where it is en-
gaged in the installation, repair, and maintenance of ele-
vators and that during the past calendar year prior to the
filing of the complaint, which period is representative of
all times material herein, the Employer purchased and
received at its Knoxville, Tennessee facility materials and
supplies valued in excess of $50,000 directly from suppli-
ers located outside the State of Tennessee, and that the
Employer is, 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. THE LABOR ORGANIZATION
The complaint alleges , the answer admits, and I find,
that Respondent is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on 22 and 23 May 1985 at
Knoxville, Tennessee. The hearing was held pursuant to
a complaint issued by the Regional Director for Region
10 of the National Labor Relations Board on 20 Febru-
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case is concerned with the alleged discrimination
having been practiced against the Charging Party, D.
Webb Robbins, by the Employer and the Union. The
Employer and Union are signatories to a standard labor
278 NLRB No. 122
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement which is bargained between the Union and
the National Elevator Industry, Inc. (NEII), an employer
bargaining group of which the Employer is a member.
The current standard agreement sets out two basic classi-
fications of elevator constructor workers. The first and
lower of the two is the elevator constructor helper. The
other classification is that of mechanic. The helper is
paid at, a lesser rate of pay than the mechanic and the
standard agreement sets out certain restrictions on the
work which a helper may perform without the supervi-
sion of a mechanic . In order to obtain the position of the
higher ranking classification of mechanic, an elevator
constructor helper must complete an education program
jointly administered by the Union and the Employer
who are signatories to the standard agreement. The pro-
gram is designated the National Elevator Industry Edu-
cation Program (NEIEP). On completion of the required
courses or "modules," a helper is required to pass a writ-
ten mechanic's examination in order to become a me-
chanic. The standard agreement also provides that a
helper may work as a "temporary mechanic" performing
the same work as a mechanic and at the same rate of pay
provided that the employer and the union agree. In addi-
tion to be entitled to work as a temporary mechanic, the
helper is to comply with requirements established by
NEIEP, the education program. A helper who fails the
mechanic examination is specifically prohibited from
working as a temporary mechanic for a 1-year period
thereafter.
Charging Party Robbins is an elevator constructor
helper who initially joined the elevator industry in 1966
in Birmingham, Alabama, and was a member of a local
union of the International Union (Local Union 24 in Bir-
mingham , Alabama). In June 1979, he accepted a posi-
tion with the Employer in Knoxville, Tennessee. Ac-
cording to the unrebutted testimony of Robbins as cor-
roborated by that, of his brother-in-law Joe Baccus, who
is, employed as a mechanic and is a member of another
local of the International Union (Local 64 in Knoxville,
Tennessee), Robbins cleared in as a union member with
the then business agent of Local 64 in June 1979 by tele-
phone as a helper to work as a temporary mechanic with
the Employer. Additionally, Robbins testified that he
was told by his supervisor, Kenneth Lane, who hired
him that he would clear him for work with the Local
Union as a temporary mechanic. Additionally, in two
documents sent out by the Employer to the Union one of
which is a complaint to the Union concerning an inci-
dent which occurred with respect to Robbins between
Doyle Lumpkins, then business agent of Local 64, and
Robbins and the Employer' s management at the office
and another of which is an answer to a grievance con-
cerning Robbins working as a temporary mechanic for
the Employer, the Employer contended to the Union
that Robbins had been properly cleared in as a tempo-
rary mechanic with Local 64 in June 1979 when he was
initially employed. I credit the unrebutted testimony of
Robbins and Baccus that Robbins was cleared in with
Local 64 as a helper to work as a temporary mechanic in
June 1979.
Thereafter, -Robbins worked in the Knoxville, Tennes-
see area" as a temporary mechanic for the Employer and
engaged primarily in servicing elevators for the Universi-
ty of Tennessee . The record clearly establishes , and it is
undisputed, that Robbins was considered a valued em-
ployee by both the Employer and its customer , the Uni-
versity of Tennessee . In January 1983 , Robbins was
carded by then Local 64 Business Agent Doyle Lump-
kins who requested to see his card while Robbins was
working on the job . Robbins presented Lumpkins with a
card which showed him to be a mechanic from Local 24
in Birmingham , Alabama , According to the testimony of
Rocky Jones, a helper working with Robbins at the time,
and Lumpkins , Robbins told Lumpkins that he was a me-
chanic . According to Robbins ' testimony, he did not tell
him that he was a mechanic but told him that this was an
old card . Lumpkins subsequently checked with the Inter-
national Union and verified that Robbins was a helper
working out of Birmingham 's Local 24. Shortly thereaf-
ter on the same date, he confronted Robbins in the pres-
ence of Jones with this information . According to the
testimony of Lumpkins and Jones , Robbins contended
that he was a mechanic . According to the testimony of
Robbins, he, at that point, did not contend that he was a
mechanic but told Lumpkins that the card was incorrect.
I credit the testimony of Lumpkins as supported by
Jones who I find to be a disinterested witness. I find
Robbins ' testimony that he initially only told Lumpkins
that it was an old card and only subsequently told him
that it was an improperly issued card or an incorrect
card is implausible.
Subsequently on 13 January 1983 , Lumpkins came to
the office of the Employer in Knoxville, Tennessee, and
became embroiled in a dispute with Robbins and local
management concerning Robbins' employment as a tem-
porary mechanic . This prompted a letter dated 26 Janu-
ary 1983 from Brint Adams, the Employer 's Knoxville
branch manager, to Harold Smith, a regional director of
the Union, in which Adams complained about the , con-
duct of Lumpkins in questioning the legitimacy of the
mechanic 's card of Robbins and the disruption of the
office for conducting union business . In this letter Adams
also stated that "as far as Montgomery is concerned,
Robbins was properly cleared to work for us in Knox-
ville starting in 1979 when he checked in with the
Local." On 17 January 1983 Robbins directed identical
letters to John N . Russell, general secretary-treasurer of
the International Union, and to B . R. Shadwick , business
agent of Local 24, and to William A. Daye, recording
secretary of Local 64 informing them that he was resign-
ing his membership in the International Union and would
withdraw from the Union on 2 May 1983 but that he in-
tended to retain his employment with Montgomery Ele-
vator and in compliance with paragraph 3 of article III
of the standard agreement, he would pay the required
service fee after his resignation . This followed the inci-
dent and a grievance that had been filed on 13 January
1983 by Lumpkins concerning Robbins working as a me-
chanic since June 1979 without an agreement with the
Local and which was responded to by the Employer on
7 February 1983 in which the Employer also stated that
"when Robbins arrived , he properly checked in with the
previous business agent as a ' helper and was properly
MONTGOMERY ELEVATOR CO. 873
cleared to work for Montgomery as a temporary me-
chanic and has continued to do so until the present." The
letter further states that Ken Lane, the Employer's su-
perintendent in its Knoxville branch , properly cleared
Robbins to work in the Local with a previous business
agent in 1979 prior to Robbins ' moving into the local ter-
ritory.
As a result of the illness of Harold Smith , the regional
director assigned to handle local union matters in the
Knoxville area, Regional Director Mike Mullett of De-
troit was sent to Knoxville to attempt to resolve the
matter and met with Robbins and Lumpkins . As a result
of that meeting , an agreement was reached whereby the
following provisions were agreed to between Robbins
and the Union: (1) Robbins would rescind his letter of
resignation from the Union; (2) Robbins would request a
clearance card from Local 24; (3) Local 64 would accept
Robbins into their Local; (4) Robbins would be allowed
to write the mechanic's test at the next mechanic's exam
held for Local 64; (5) all charges against Robbins would
be dropped and the grievance against Montgomery re-
solved; (6) Robbins would retain his temporary mechan-
ic's card , issued to him by Local 64, until the mechanic's
exam . It would be reviewed each month ; (7) upon pass-
ing the mechanic 's exam, he would receive a mechanic's
card; failing, he would revert to helper.
Following this agreement, Robbins took and failed the
mechanic's exam in July 1983. On 9 August 1983 the di-
rector of NEIEP informed Mullett that Robbins had
failed the examination . On 23 August 1983 Mullett di-
rected a letter to Tim L. Duin , vice president of the Em-
ployer at its home office in Moline , Illinois, and informed
him that Robbins had taken and failed the examination
on 28 July. The letter further stated that Mullett had no-
tified Adams, the Knoxville branch manager and Lump-
kins, the business agent for Local 64 , that Robbins
should revert to the status of helper as stated in item 7 of
the memorandum of understanding and that Robbins
could continue to be employed by the Employer as a
helper. The letter further stated that the Union and
Local 64 expected the action to be carried out immedi-
ately as adequate time had elapsed since the notification
to Robbins that he had failed the mechanic's exam. On 8
September 1983 Robbins directed a letter to John N.
Russell , general secretary -treasurer of the Union, inform-
ing him that he would resign his membership in the
Union effective 16 December 1983 but that he intended to
retain his employment with the Employer and would
pay the required service fee under the terms of the stand-
ard agreement and that he expected that Local 64 would
advise him of the amount and the manner of payment.
On 6 October 1983 E . A. Treadway, general president of
the Union, directed a letter to Robbins acknowledging
receipt of his letter of 8 September 1983 and informing
Robbins that under Tennessee law he was permitted to
resign and that his resignation would not prevent him
from continuing employment with Montgomery Elevator
in Tennessee but that he would have to continue as an
elevator constructor helper and not as a temporary me-
chanic because of his failure to pass the mechanic 's exam.
Following his resignation from the Union, Robbins con-
tinued to work as a temporary mechanic for the Employ-
er until October 1984 when he was involuntarily laid off.
Robbins testified that on 15 October 1984 approximate-
ly around noon of the workday he went to the office of
the Employer to pick up parts that he needed for the
University of Tennessee where he was assigned and Su-
perintendent Ken Lane , an admitted supervisor , told him
that he wanted to tell Robbins that they (the Employer's
management) had had a meeting in Moline (the Employ-
er's home office) that morning with the Union, and had
said they were going to challenge the right -to-work law
and to challenge his job and it would cost him his job.
Robbins testified further that a few days later, he was
drinking coffee at the work place with Bill Daye, the
then recording secretary for the Union for Local 64, and
that Daye was a friend of his. Robbins testified that
Daye told him that the Union was challenging the right-
to-work law and challenging his job . Robbins testified
that the day after his conversation with Ken Lane, he
was called into the office by his beeper shortly after
lunch and walked in the front door and Ken Lane, his
superintendent, and General Manager Brint Adams (also
an admitted supervisor) walked into Lane 's office and
Adams told him that he would have to bring himself
back in good standing with Local 64 if he were to con-
tinue his employment with the Employer . Robbins told
Adams that it would cost him $500 for a reinitiation fee
plus about a year and a half of back union dues and that
he was not paying any more good money after bad. Rob-
bins testified that Adams immediately got on the phone
and called someone in Moline and he heard Adams state
that Webb Robbins is not going to get back in the
Union . This terminated the meeting and Robbins was
told to go back to work.
On 23 October 1984 Robbins met with Lane and
Adams and Adams told Robbins, "you are not going to
like what I've got to tell you," and then told him that
they (the Employer 's management) had met in Moline
with union officials and they, the Employer, were going
to have to put him back to helper for a year and that
Adams then told him that "this is off the record,. Moline
decided to go with the Union's decision on some conces-
sions down the line for the Union-for the company."
He asked Adams and Lane what was happening and
Lane stated that Jim Kuriger , the Employer's assistant
vice president and general construction manager, told
them to put this man back to helping and make certain
that there is not a job for him . At that time, Adams
stated that if Robbins were going to sue he would have
to sue the Company to get to the Union . Adams then
stepped out and Robbins inquired of Lane what Adams
had meant by this statement and Lane stated he did not
know but when Adams came back to ask him again.
When Adams returned, Robbins asked him what he had
meant by that statement but Adams merely repeated the
statement. The following day Robbins returned to the
Company to get his tools and asked Lane if there were a
helper's job available where it would be and at that point
Lane told him Jim Kuriger had said to lay Robbins off
and not to find him any work . Although both Adams
and Lane were in the courtroom, neither was called by
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents to refute these alleged statements as testi-
fied to by Robbins . I thus credit Robbins' testimony
which stands unrebutted on the record . I reject Respond-
ent's contentions that it must be rejected because Rob-
bins was not a credible witness or on grounds of its im-
plausibility.
James Kuriger, an assistant vice president and general
construction manager with responsibility for the entire
United States operations of the Employer , testified that
on 22 October 1984 he was present at a meeting attended
by Tim Duin , the Employer 's vice president and risk
manager for the Employer, and Jim Hale , the regional
business agent for the Union . He testified that when he
came into the office that morning , Duin came to him and
told him that Hale wanted to see him about some prob-
lems and that they all sat down in Kuriger 's office. He
testified further that Hale told him that we had a prob-
lem down in Knoxville , that a man had taken the me-
chanic's test but had not passed it , and that Hale wanted
to know why the Company was not going to live up to
the standard agreement . Kuriger testified that Hale told
him at the meeting that Robbins had taken the test and
failed it and was supposed to have gone back to the
helper position for 1 year but that Hale had found out
later that the Employer had never cut his pay , and that
he had remained at the mechanic's rate . Robbins handed
Kuriger a letter which encompassed the agreement of
February 1983 written by Mullett . Kuriger verified, in
the presence of Hale and Duin, with the payroll depart-
ment that the pay of Robbins had not been reduced.
Kuriger then told Hale he would check into the matter
further, that the Company would live up to the standard
agreement and that if in fact Robbins had taken the test
and failed it, he would be set back to helper. The parties
then went on to discuss other problems . He testified fur-
ther that there was no deal or agreement made whatso-
ever with Hale concerning Robbins and that Hale had
not offered him any inducement to enter the decision
that he did concerning Robbins.
After Hale left, Kuriger talked to Duin and also did
some additional checking and found out that Robbins
had taken the test and failed it and based on that told
Duin that they would have to honor the standard agree-
ment . He then called Adams and told him that he had
not been aware of what had happened but that Robbins
would have to be set back on that Wednesday which
would have been 24 October which meant to demote
him to helper for 1 year starting Wednesday, 24 October.
According to Kuriger , Adams pleaded with him that
they needed the man, that they had a customer that de-
manded that he stay there and that he could not be re-
placed and it would put the Company in a bind if Rob-
bins were let go . Kuriger told Adams he was sorry but
he had to follow the standard agreement , that he wanted
it taken care of on Wednesday , and told him that he
would send a letter confirming the telephone call. He
also told him that the man should be set back as a helper
whether it be a service or construction helper for the
period of a year . Kuriger sent a letter dated 26 October
1984 to Adams confirming the telephone conversation of
22 October 1984 in which Adams was instructed to set
Robbins back to the helper status as of 24 October 1984
and to pay him at 70 percent of the mechanic 's rate be-
cause Robbins had failed to pass his mechanic 's test.
Kuriger denied ever having instructed Adams to make
sure that Robbins was bumped down to helper classifica-
tion and that there was no work available for him. On 30
October 1984 Kuriger received a notice of the termina-
tion of Robbins . He called Adams and asked why Rob-
bins had been terminated . Adams told Kuriger that there
was no work at this time so that Robbins had been laid
off. Kuriger then told him that "I want you to call the
man today and tell him that there is an opening in con-
struction or whenever you have the first opening, he is
to be put back on if he wants the job and confirm that in
writing and send me a copy thereof." By his letter of 31
October 1984 Adams confirmed a telephone conversation
on 30 October 1984 wherein he had informed Robbins
that there would be construction work available in the
next 2 to 3 weeks for projects in Roanoke , Virginia, and
near Greensboro , North Carolina, and that there would
be a possibility of working in the Chattanooga local area
on a hotel project and that he would have Lane get in
touch with Robbins to discuss these upcoming work op-
portunities . The Employer's termination form of Robbins
states that Robbins had been laid off because he had been
a helper working as a service mechanic with a tempo-
rary permit , had taken and failed the mechanic 's test in
July 1983 and as part of Respondent's agreement with
the Union , Respondent was required to reduce his status
to helper for 1 year following the test failure and that
the 1 year took effect as of 24 October 1984 with no
helper work available . On cross-examination, Kuriger
testified that he did not know whether there were any
helper jobs available in the Knoxville area and that the
nonmembership of Robbins in the Union had been dis-
cussed at the meeting between Duin , Hale, and himself
but that Robbins' resignation of his membership in the
Union had nothing to do with his decision . He also testi-
fied that Hale did not mention that Robbins had not been
paying his service fees . Robbins was shortly thereafter
hired by the University of Tennessee as an elevator in-
spector and had occasion to work with employees from
the Employer and sign their time tickets.
Robbins testified additionally that union members
David Arwood and Jack Sellars are helpers who are as-
signed to work as temporary mechanics. Arwood has
been in business in Knoxville for 17 years and Sellars has
been in the elevator business for 15 years. He also testi-
fied that union member Jerry Latrell is a helper who has
worked at the University of Tennessee campus since he
has been an inspector and has worked as a mechanic. All
three men are members of Local 64. He testified further
that all three were serving as temporary mechanics when
he came to Knoxville in 1979 and that Respondent Em-
ployer brings them in when they have repair work to be
done on the campus . Union member Joe Baccus; who is
a ' mechanic and works in Johnson City (the tri-cities
area) testified that he is aware of several employees
working for Montgomery who are classified as, helpers
but receive mechanic's wages. He named David Arwood
and Jack Sellars who are Montgomery employees. He
also testified that Gerald Trent is a member of Local 64
MONTGOMERY ELEVATOR CO. 875
and has been employed for the past 3 years in the tri-
cities area and classified as a helper but works as a tem-
porary mechanic and receives mechanic wages and he
does not go up and down from helper to temporary me-
chanic but has held the temporary mechanic 's position
for the 3 years he has been there . He also testified that
Jeff Robbins , the son of Charging Party D. Webb Rob-
bins, works for Montgomery Elevator in the tri-cities
area and is classified as a helper but received a mechan-
ic's wage . He acknowledged, however, that the tri-cities
area was not , until the week prior to the hearing, a part
of Local 64's territory but was regarded as open terri-
tory rather than under Local 64 's jurisdiction . Addition-
ally, George Patrick Miles who is a business partner of
Charging Party D. Webb Robbins in an elevator compa-
ny testified further that David Arwood , Jack Sellars, and
Jerry Latrell are all classified as helpers but had not
taken the mechanic 's exam.
Former Local 64 Business Agent Lumpkins acknowl-
edged that on 23 December 1983, he filed charges
against Local 64 members David Arwood , Mike Lauder-
dale, Meril Morton, and Steve Cleek for working as me-
chanics although all were classified as helpers in the ab-
sence of an agreement between the business agent and
the supervisor in violation of the standard agreement. He
also acknowledged that these charges were not proc-
essed from December 1983 to December 1984 when he
withdrew them on the understanding that these members
were in the school program although they had not ap-
plied for or taken the test in this period of time. He ac-
knowledged furthermore that he had never made specific
inquiries concerning the participation in the school's pro-
gram by these members although he believed they had
gotten back into the school program and had started
doing their modules again . He had neither requested nor
received the letter from the NEIEP concerning these
employees although he had done so with respect to Rob-
bins.
William A. Daye, who at the time of the hearing was
the business representative of Local 64 and in October
1984 was then the recording secretary of Local 64, ac-
knowledged that he had a conversation with Robbins in
October 1984 . He testified he considers Robbins a friend
but denied the specific statements attributed to him by
Robbins and stated he did make the statement to Robbins
"not as a recording secretary , not as any union official
by any means, but as a friend , and emphasized that I was
not making it as a union official , that I felt the Union
would not allow the standard agreement to be violated,
and I emphasized and stressed to him irrespective of any
union affiliation or the lack of union affiliation-that was
not the issue . The issue is whether or not the Union
would allow to go unchallenged the violation of the
standard agreement pertaining to working as temporary
mechanic or working out of your class . This is the state-
ment I made." Daye acknowledged that he was certain
the subject of the right-to-work law had come 'up in this
conversation and that his recollection was that he was
aware of what the right-to-work laws were and stressed
that membership or nonmembership in the Union had no
affect on your job nor on benefits. He testified that Rob-
bins had asked him about the pension and how his non-
membership would affect his pension and Daye told him
it would not be affected as it was his understanding that
Tennessee is a right-to-work state.
The Issues
(1) Whether the Employer violated Section 8(a)(1) of
the Act by threatening to lay off Robbins because he
was not a member of the Union; (2) Whether the Union
violated Section 8(b)(1)(A) of the Act by telling Robbins
that the Union was insisting that he be a member of the
Union in order to continue his employment with the Em-
ployer; (3)Whether the Employer violated Section
8(a)(3) and (1) of the Act by demoting and laying off
Robbins; (4) Whether the Union violated Section 8(b)(2)
of the Act by causing the demotion and layoff of Rob-
bins.
Analysis
The General Counsel contends that the Union violated
Section 8(b)(1)(A) by the statement made by Daye to
Robbins in October 1984 concerning the Union challeng-
ing the right-to-work law and his job . The Union con-
tends initially that Daye was an official of Local 64 and
not of the International Union and therefore was not an
agent of the Union and the Union (the International)
cannot be held responsible for the acts of a local official.
The General Counsel contends that as the standard
agreement indicates, the International Union has delegat-
ed many duties and functions to the various locals in-
cluding initial resolution of work disputes on the local
level, local responsibility in setting wage adjustments, re-
tention by the local of unpaid holidays , local control
over the establishment of the shift work, and resolution
of grievances on the local level, and that the contract
specifies the Local must consent to a helper working as a
temporary mechanic, all of which establish that Daye
was an agent of the International Union.
I find that the delegation of duties to the Local as set
out in the labor agreement clearly establishes that Daye
as an officer of Local 64 was an agent of the Internation-
al Union with respect to statements involved here. I thus
fmd that the International Union is responsible for
Daye's statements concerning the effect of Robbins non-
membership in the Union . Steelworkers Local 15167
(Memphis Folding Stairs), 258 NLRB 484, 485 fn. 1
(1981); Mine Workers (Garland Coal), 258 NLRB 56, 59
(1981). See also Cosmetic Workers' Local 300 (Cosmetics
Components), 257 NLRB 1335, 1338 (1981).
The Union also contends that Robbins ' testimony
should be discredited as he was not a credible witness as
a result of several inconsistencies in his credibility and on
the ground that the statement attributed to Daye that the
Union was challenging the right-to-work law and chal-
lenging Robbins' job made no sense . The General Coun-
sel contends that Daye's testimony wherein he volun-
teered that he had told Robbins he was talking to him
only as a friend and not as an official of the Union and
his alleged stilted denials of having told Robbins that his
job and the right-to-work law were being challenged
demonstrate that Daye's testimony was not credible. I
fmd that Robbins' testimony should be credited over that
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Daye in this regard . At the outset I am aware of sev-
eral inconsistencies in Robbins' testimony and I specifi-
cally discredited his testimony with respect to his earlier
conversation with Lumpkins in the presence of Jones.
However, in this instance, I found Robbins' testimony to
be specific, clear, and believable , and I found Daye to be
hesitant on the stand in this regard , and his unprompted
volunteering that he had told Robbins that he was talk-
ing to him as a friend and not as a union official does not
impress me as a credible recounting of the actual conver-
sation between Daye and Robbins . I find it far more
likely that he did, as Robbins testified , tell Robbins that
his job was being challenged and the Union was chal-
lenging that aspect of the right-to-work law and Rob-
bins' right-to-work as a nonmember of the Union. I find
that this demonstrates that the Union was treating Rob-
bins differently as a result of his nonmembership in the
Union. It may be that Robbins' membership in another
local initially triggered the investigation into his status as
a temporary mechanic or as a mechanic vis-a-vis helper,
however, that investigation had gone on for a long
period of time and the Union's subsequent actions appear
tied to Robbins' nonmembership in the Union . I further
reject the Union's contention that its actions were moti-
vated in part by Robbins' failure to pay his service fees.
While it is clear from the Union's letter that he in fact
was in arrears for these service fees , it is equally clear
from the testimony of Kuriger that these were not men-
tioned in the conversation between himself and Union
Representative Hale. I , accordingly , fmd that Daye's
statement to Robbins to the effect that the Union was
challenging the right-to-work law and specifically chal-
lenging Robbins ' job was a threat that his nonmember-
ship in the Union would cost him his job and that such
threat was a violation of Section 8(b)(l)(A).
I further find that the Employer violated Section
8(axl) of the Act by threats issued by Superintendent
Lane to him that the Union had met with the officials at
Mongtomery Elevator corporate headquarters and that
the Union was challenging the right-to-work law and
that getting out of the Union would end up costing Rob-
bins his job. As set out above, Robbing' testimony in this
regard was unrebutted, both Adams and Lane were sit-
ting in the courtroom and the Employer had the oppor-
tunity to call them as witnesses to rebut Robbins' testi-
mony . I thus credit Robbins' testimony in this regard. I
also credit Robbins' unrebutted testimony that the fol-
lowing day Adams told him that in order to continue his
employment with the Employer, Robbins would have to
bring himself back in good standing with Local 64. I
reject the Union's and the Employer 's contentions that
getting back in good standing referred to paying the re-
quired service fee . While it is undisputed that Robbins
was behind in his service fees, Kuriger acknowledged
that the service fees were not discussed during his meet-
ing with Hale. I thus find that the threats issued by. Lane
and Adams as set out above were violative of the Act
and that the Union thereby so violated Section 8(a)(1) of
the Act.
It is undisputed that Robbins was terminated rather
than merely demoted . I also find that the testimony of
Robbins of the statements attributed by him to Adams
and Lane that Kuriger had told them not to find work
for Robbins after he was demoted is unrebutted. Lane
and Adams are undisputed agents of the Employer and
carried out the termination of Robbins . Their stated rea-
sons for terminating Robbins constitute admissions
against the Employer. I fmd no reason for disregarding
the unrebutted testimony of Robbins in this regard.
The testimony of Kuriger establishes that this action
was taken only after a meeting held by the Union en-
couraging him to demote Robbins . I find that the evi-
dence is substantial that Robbins was singled out for spe-
cial treatment with respect to his status with the Union.
It may have been initially that this resulted from his
having been a member of another local and exacerbated
as a result of the dispute over the mechanic 's card. How-
ever, the major issue in addition to his failure to pass the
test that distinguished Robbins from other members, who
were unquestionably permitted to work for long periods
of time as temporary mechanics although they were ac-
tually helpers, was his nonmembership in the Union. I
fmd that the testimony of Robbins as corroborated by
Miles and Baccus and acknowledged at least in part by
former Business Agent Lumpkins was that these other in-
dividuals were permitted to work as temporary mechan-
ics for substantial periods of time without being enrolled
in the school program . I fmd that the filing of charges
against these individuals , only subsequent to the second
resignation of Robbins in 1983 and the failure of Local 64
to process these charges for a period of a year and their
subsequent withdrawal in 1984 on the vague assertion
that the members were back in the school program is in-
consistent with the Union's alleged concern with the en-
forcement of the standard agreement . The standard
agreement is proper on its face. The Union has the re-
sponsibility to enforce it in a nondiscriminatory manner.
However , it is the disparate treatment of Robbins in this
instance that is in question . I recognize the importance of
working members within their appropriate classification
consistent with their acquired skills and training . Howev-
er, it is the disparate treatment accorded Robbins as op-
posed to other employees that calls into question the
Union's conduct in this particular case . I thus find that
the Union by pursuing Robbins in this regard clearly sin-
gled him out because of his nonmembership in the Union
as opposed to the other employees . The Union failed to
rebut the testimony of Robbins , Baccus, and Miles that
other members were permitted to work as temporary
mechanics for extensive periods of time (years) without
meeting the qualifications for mechanic . Although the
Union clearly had the opportunity by testimony or
records to rebut the General Counsel 's case in this
regard , it failed to do so.
I thus fmd that the circumstances of this case , includ-
ing the timing of the discharge of Robbins following the
meeting of the Union 's representative with the Employ-
er's higher echelon of management in Moline, Illinois,
the credited testimony of Robbins concerning the state-
ments made to him by Daye, and the statements made to
him by the Employer's Superintendent Lane and Branch
Manager Adams, are sufficient to warrant the inference
and conclusion that the Union pursued the termination of
MONTGOMERY ELEVATOR CO. 877
Robbins because of his nonmembership and the Employ-
er acceded to this request . I do not credit the testimony
of Kuriger that the termination of Robbins was an error
or was unknown to him until shortly thereafter , in view
of the unrebutted testimony of Robbins concerning the
reasons given by Lane and Adams for his termination
and the lack of likelihood that he would have been un-
aware of the termination of Robbins from the outset.
These events all occurred within a relatively short
period of time and it is clear that the Employer respond-
ed to the Union's demand . I do not find crucial to this
determination the fact that the Union 's letter to the Em-
ployer and Kuriger 's letter to Lane requested demotion
only, rather than termination of Robbins.
I thus find that the General Counsel has established a
prima facie case of a violation of Section 8(a)(3) by the
Employer and Section 8(b)(2) by the Union by the Em-
ployer's termination of Respondent because of his non-
membership in the Union and by the Union 's insistance
on and causing his termination because of his nonmem-
bership in the Union . I find that neither the Employer
nor the Union has rebutted this prima facie case by the
preponderance of the evidence . I, accordingly , fmd that
Robbins was demoted and laid off because of his non-
membership in the Union and that the Union violated
Section 8(b)(2) of the Act by causing the demotion and
termination of Robbins and that the Employer violated
Section 8(a)(3) and (1) of the Act by demoting and ter-
minating Robbins . Hickmott Foods, 242 NLRB 1357
(1979).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III
above occurring in connection with the operation of the
Employer, Montgomery Elevator Company , set out in
section I above have a close , intimate , and substantial re-
lationship to trade, traffic , and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. The Respondent Employer , Montgomery Elevator
Company, is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent Union , International Union of Ele-
vator Constructors , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The Respondent Employer violated Section 8(a)(1)
of the Act by threatening on two occasions to lay off its
employee D. Webb Robbins because he was not a
member of the Respondent Union.
4. The Respondent Union violated Section 8(b)(1XA)
of the Act by telling Robbins that it was insisting that he
be a member of the Union in order to continue his em-
ployment with the Respondent Employer.
5. The Respondent Employer violated Section 8(a)(3)
and (1 ) of the Act by demoting and then laying off its
employee Robbins.
6. The Respondent Union violated Section 8(b)(2) of
the Act by causing the demotion and layoff of Robbins.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.T
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices in violation of Section
8(b)(1)(A) and (2) and Section 8(axl) and (3) of the Act,
I shall recommend that they be ordered to cease and
desist therefrom and to take certain affirmative action
necessary to effectuate the policies of the Act.
I recommend that the Employer offer full reinstate-
ment to Robbins to his former position , or to a substan-
tially equivalent one if it no longer exists , and that the
Union notify the Employer and Robbins in writing that
it has no objection thereto.
I further recommend that Respondents make Robbins
whole for any loss he may have suffered as a result of
his demotion and layoff on 24 October 1984 until such
time as he has been offered reinstatement by the Em-
ployer to his former position of temporary mechanic at
the Employer's Knoxville branch. All loss of earnings
and benefits incurred by Robbins as a result of the dis-
crimination practiced against him as set out above shall
be computed with interest in the manner prescribed in F.
W. Woolworth Ca, 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).'
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
A. Respondent International Union of Elevator Con-
structors , AFL-CIO, its officers , agents, and representa-
tives, shall
1. Cease and desist from
(a) Threatening employees that it will insist that they
be a member of the Union in order to continue their em-
ployment with Respondent Montgomery Elevator Com-
pany.
(b) Causing the demotion and layoff of employees of
Montgomery Elevator Company because of their non-
membership in the Union.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the purposes and policies of the Act.
(a) Make D. Webb Robbins whole jointly and several-
ly with the Employer for any loss of pay or other bene-
fits he may have suffered as a result of the unlawful
action against him in the manner set forth in the section
of this decision entitled "The Remedy."
' See generally Isis Plumbing Ca, 138 NLRB 716 (1962).
2 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Inform D . Webb Robbins and Montgomery Eleva-
tor Company in writing that it has no objection to the
assignment of Robbins as a temporary mechanic.
(c) Post at its business office and meeting hall copies of
the attached notice marked "Appendix A"s in places
where notices to members of Local 64 are customarily
posted immediately upon receipt for 60 consecutive days,
in conspicuous places at its business office and meeting
hall in Knoxville , Tennessee , and on any union bulletin
boards at Respondent Montgomery Elevator Company's
Knoxville, Tennessee facilities where said notices are
customarily posted . Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20
days from the data of this Order what steps Respondent
Union has taken to comply.
B. Respondent Montgomery Elevator Company,
Knoxville, Tennessee , its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening to lay off its employees because of
their nonmembership in the International Union of Ele-
vator Constructors.
(b) Demoting and then laying off its employees be-
cause of their nonmembership in the International Union
of Elevator Constructors.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Offer to D. Webb Robbins immediate and full rein-
statement to his former position as a temporary mechanic
or, if this position is no longer available , to an equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed.
(b) Expunge from the personnel record of D. Webb
Robbins all references with respect to his termination
and demotion.
(c) Make D. Webb Robbins whole jointly and several-
ly %iith the Union for any loss of pay or other benefits
he may have sustained by reason of the discrimination
against him in the manner set forth in this decision enti-
tled "The Remedy."
(d) Preserve and , on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Sign and post copies of the attached notice marked
"Appendix B"4 immediately upon receipt for 60 consec-
® If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
See fn. 3 above.
utive days in conspicuous places at its Knoxville, Ten-
nessee facilities including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National LaborRelations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with loss of em-
ployment because of their nonmembership in the Interna-
tional Union of Elevator Constructors.
WE WILL NOT cause the demotion and layoff of em-
ployees of Montgomery Elevator Company in the Knox-
ville, Tennessee area because of their nonmembership in
the International Union of Elevator Constructors.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
WE WILL jointly and severally with Montgomery Ele-
vator Company make whole D. Webb Robbins for losses
of earnings and benefits with interest which he may have
suffered as a result of his discharge.
WE WILL notify Montgomery Elevator Company in
writing that we have no objection to the reinstatement of
D. Webb Robbins to his former position of temporary
mechanic.
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS, AFL-CIO
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to lay off our employees be-
cause of their nonmembership in the International Union
of Elevator Constructors in the Knoxville , Tennessee
area.
WE WILL NOT demote and layoff our employees be-
cause of their nonmembership in the International Union
of Elevator Constructors in the Knoxville , Tennessee
area.
MONTGOMERY ELEVATOR CO. 879
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer D. Webb Robbins full reinstatement to
his former position of temporary mechanic , or to a sub-
stantially equivalent position and will expunge from his
personnel record all references to his discharge.
WE WILL jointly and severally with the International
Union of Elevator Constructors make whole said em-
ployee for any loss of pay or other benefits sustained by
him by reason of his discharge, with interest.
WE WILL preserve our records in order to calculate
the moneys due to said employee.
WE WILL expunge from our records any references to
the unlawful actions taken by us against D. Webb Rob-
bins.
Our employees have the right to support and join
International Union of Elevator Constructors as their
collective-bargaining representative or to refrain from
doing so.
MONTGOMERY ELEVATOR COMPANY