Ogden Allied Maintenance Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 545 (N.L.R.B. 1992)

545
306 NLRB No. 98
OGDEN ALLIED MAINTENANCE CORP.
1 The Respondent Union has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative 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 reversing the findings.
In his original decision, the judge relied, in part, on Vincent
Giblin’s office as president of the International Union, in crediting
employee Allen Saitta and discrediting the Respondent’s witnesses
as to Saitta’s conduct at his September 14, 1988 meeting with Giblin
and other union officers. As part of its credibility exceptions, the Re-
spondent Union correctly argues that, at the time of the September
14 meeting, Giblin was chief executive officer and business manager
of Local 68 of the Union, and not president of the International. We
find that any error in the judge’s findings as to the office Giblin held
was insufficient in these circumstances to warrant reversing the
credibility resolutions. Thus, Saitta’s testimony that Giblin said to
Saitta at the Local union hall that Giblin had ‘‘all the power in this
Union’’ is not inconsistent with Giblin’s position as business man-
ager. The judge’s observation that Saitta would have been ‘‘too in-
timidated’’ by Giblin for Saitta to have acted as described by Giblin
and McGuire is not undermined by the judge’s error in attributing
to Giblin the title of president of the International. As business man-
ager, Giblin could have been just as intimidating.
2 In his supplemental decision, the judge reaffirms the findings of
fact, conclusions of law, and recommended Order of his March 14,
1990 decision in this same proceeding. However, the judge notes
that his ultimate findings and conclusions set forth in his original de-
cision were in no way dependent on fn. 4 of that decision. In adopt-
ing the judge’s supplemental decision, we find it unnecessary to rely
on fn. 4 of his original decision.
3 We correct the remedy section of the judge’s original decision
to provide that interest shall be computed as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), rather than Florida
Steel Corp., 231 NLRB 651 (1977).
Ogden Allied Eastern States Maintenance Corpora-
tion and Allen Saitta
International Union of Operating Engineers, Local
68, AFL–CIO and Allen Saitta. Cases 22–CA–
16092 and 22–CB–5957
February 28, 1992
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 14, 1990, Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel and the Respondent then filed excep-
tions and briefs, and both Respondents filed answering
briefs to the General Counsel’s exceptions.
On October 30, 1990, the Board issued an order
vacating the judge’s decision and remanding the case
to him to rehear de novo the portion of the hearing
that reopened on October 5, 1989, and to prepare a de-
cision.
On June 7, 1991, the judge issued the attached sup-
plemental decision. The Respondent Union filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, the supple-
mental decision, and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings,1 findings,2 and conclusions and to adopt the
judge’s recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent Union, Inter-
national Union of Operating Engineers, Local 68,
AFL–CIO, West Caldwell, New Jersey, its officers,
agents, and representatives, shall take the action set
forth in the recommended Order.
IT IS FURTHER ORDERED that the complaint in Case
22–CA–16092 be dismissed in its entirety.
William Grant, Esq., for the General Counsel.
Joseph R. Fitzpatrick, Esq., for Respondent Ogden.
Albert G. Kroll, Esq., for Respondent Union.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on May 3, July 20 and 21, and October
5, 1989, in Newark, New Jersey.
On February 22, a complaint alleging that International
Union of Operating Engineers, Local 68 (Local 68) violated
Section 8(b)(1)(A) and (2) of the Act by causing Ogden Al-
lied Eastern States Maintenance Corporation (Ogden) to dis-
charge Allen Saitta, in violation of Section 8(a)(1) and (3)
of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and consideration of the posttrial
briefs, I make the following
FINDINGS OF FACT
Ogden is a New York State corporation, with an office
and place of business in New York, New York, and is en-
gaged in the business of providing maintenance service to
various business enterprises, including various Bell Commu-
nications Research, Incorporated facilities (Bell), located in
New Jersey. Ogden annually derives gross income in excess
of $50,000 from the provision of maintenance services di-
rectly to customers located outside the State of New York.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Local 68 is a labor organization within the meaning of
Section 2(5) of the Act. Local 68 represents the Ogden em-
ployees performing maintenance services for Bell in New
Jersey. The unit of employees covered and their terms and
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 McGuire denied the above conversation with Saitta. Rathers he
testified he told Saitta that if he wanted to return to the day shift
he could do so as a temporary employee subject to lay off at any
time. For reasons set forth in detail belows I find Saitta to be a cred-
ible witness. I do not find McGuire’s testimony in this case credible.
Moreover, because the transfer was affected by Bell rather than
Ogden, Local 68 could not have affected such reassignment.
conditions of employment are set forth in a collective-bar-
gaining agreement between Local 68 and Ogden.
As set forth above, Ogden performs maintenance service
for several Bell facilities located in New Jersey, including a
facility located in Navesink, New Jersey. The Bell New Jer-
sey facilities maintained by Ogden in New Jersey are super-
vised by an area manager who is headquartered at Bell’s
Piscataway, New Jersey facility. At all material times this
position was occupied by Al Teixuro, an admitted supervisor.
At the Bell Navesink facility, Ogden employees, approxi-
mately 28 maintenance employees, working under various
job classifications who provide 24-hour-per-day maintenance
services, on a three-shift basis. There are about 10 mainte-
nance employees per shift. These shifts are supervised by
shift ‘‘working foreman’’ who report directly to the area
manager. The supervisory status of one of these shift fore-
man, Franz Michot, is in issue. At issue also is the agency
status of Michot.
The job classification of ‘‘working foreman’’ is a unit
classification, and employees working in such position are
required as a condition of employment to be members of
Local 68. Nevertheless Michot is the Ogden representative
who is in charge of the day-to-day operation of his shift. The
area manager visits the Navesink facility a few times each
week spending but a few hours at the facility. Michot spends
the majority of his time overseeing the job, making sure the
jobs are being properly carried out, and doing various paper-
work. He spends a minority of his time working with his
hands performing maintenance work. Michot assigns the em-
ployees their daily work. For the most part such assignment
is routine. However, at times such assignments are made on
Michot’s evaluation of an employee’s skill. Michot also pre-
pares employee’s shift schedules and maintains payroll
records. Michot interviews entry level employees for hire,
but the actual decision to hire is made by the area manager.
The handling of grievances is the responsibility of the area
manager. Discipline of employees is handled by the area
manager. Michot would relay any problem requiring dis-
cipline to the area manager who would decide what, if anys
discipline was necessary. Michot would sometimes speak to
an employee about minor rule infractions. Michot has no au-
thority to hire, discharge, suspend, promote, lay off, recall,
or effectively recommend such action.
Allen Saitta began his employment at Ogden’s Navesink
facility on November 11, 1985, at the age of 19, right out
of high school. He was assigned to an entry level control
room position on the afternoon shift. Pursuant to the union-
security clause in the collective-bargaining agreement be-
tween Ogden and Local 68, Saitta became a member of
Local 68. Saitta’s father was a longtime union member and
Saitta had some knowledge of the organization and functions
of unions generally. Sometime in April 1987 Saitta was pro-
moted to the position of maintenance mechanic helper and a
few months later in August 1987 was transferred to the day
shift. Saitta was pleased with his day-shift transfer because
it enabled him to attend night school.
In the summer of 1988 Saitta was transferred back to the
afternoon shift. At the same time Bell canceled its contract
with Ogden for the control room and maintained it with Bell
employees. Rather than lay off the three Ogden employees
who had maintained the control room, they were transferred
by Bell to the day shift as ‘‘temporary’’ employees. These
employees had less seniority than Saitta. The transfer of
Saitta to the afternoon shift interfered with his night school
attendance. He resented the fact that he had to work the
afternoon shift while less senior employees were working the
day shift.
Saitta complained to Local 68 Shop Steward Dave Stanley
about his reassignment to the afternoon shift, and demanded
his transfer to the day shift based on seniority. Stanley told
Saitta there was nothing Local 68 could do about the trans-
fer. It was a Bell decision.
Whether Saitta’s position had merit is immaterial to the
disposition of this case. There is no question in my mind that
Saitta believed his seniority entitled him to work the day
shift in the place of one of the temporary employees then
working the shift. His complaint to Steward Stanley and sub-
sequent complaints to other Local 68 officials were made in
such good-faith belief.
Several days later Saitta again complained to Stanley con-
tending he had a right to work the day shift. He handed
Stanley a written grievance to this effect and asked Stanley
to sign it. Stanley refused to sign the grievance but agreed
to process it.
Stanley attached a note to Saitta’s grievance directed to
Thomas Giblin, Local 68 president, which indicated that
Stanley had heard that Saitta had lost his temper recently and
had kicked and punched a refrigerator when he discovered
his lunch was missing. Presumably, the note was to indicate
that Saitta was in an angry mood over his transfer to the
afternoon shift and the failure of Local 68 to arrange for his
reassignment to the day shift.
Several days after Saitta filed his grievance he called
Local 68 and spoke to Business Representative Steve
McGuire. He explained his position to McGuire. McGuire
angrily told him that he was just 20 years old and he wanted
to change the system, and that he had a long time to wait
for anything.1
Several days following his conversation with McGuire,
Saitta called Thomas Giblin, Local 68 president. He asked
Giblin for a transfer to another Bell facility maintained by
Ogden and complained that Stanley was ‘‘sleeping with man-
agement,’’ going on fishing trips with management officials,
and not representing him properly.
The next day, September 13, when Saitta drove to work
he was met by McGuire and Stanley. McGuire asked Saitta
if he had called Local 68 and complained to Thomas Giblin
that Stanley was ‘‘sleeping with management.’’ Saitta ac-
knowledged he had. McGuire grew angry and asked Saitta
to prove it. He then told Saitta that Saitta thought he would
complain to the International. McGuire grew angrier and
yelled at Saitta to be at ‘‘the goddamned Union Hall in the
morning. I want your ass in the Union Hall in the morning
or you’re not going to have a job.’’
McGuire’s testimony, which I do not credit, is contrary to
that of Saitta. McGuire testified that he went to see Saitta
with Stanley because Saitta by contacting Thomas Giblin
547OGDEN ALLIED MAINTENANCE CORP.
2 It is simply not believable to me that given the probable lack of
merit to Saitta’s grievance, his persistent complaints, his accusations
against Stanley, over McGuire’s head to contact Thomas Giblin, that
McGuire went down to the Bell facility at Navesink to explain to
Saitta the appropriate chain of command, and union procedure. Rath-
er, I find it believable, that Saitta’s conduct angered McGuire and
he went to see Saitta to tell him that he better get in line and stop
making accusations, and when Saitta persisted McGuire lost his tem-
per, and threatened to ‘‘pull him off the job.’’
Although Saitta’s testimony is at times vague, for example when
he testified as to his promotions and transfers from one job and shift
to another, and at other times when he testified as to statements not
contained in his affidavit, nevertheless I find his testimony, espe-
cially concerning the above conversation with McGuire and Stanley
and the September 14 meeting at the union hall described below
very detailed, descriptive, and logical. It is not the kind of testimony
that Saitta would have the inventiveness or imagination to fabricate.
I was also impressed with Saitta’s demeanor, he testified in a forth-
right manner and was responsive to questions on both direct and
cross-examination. In short, I find Saitta’s testimony has a ring of
truth.
3 As set forth above, I was impressed with Saitta’s credibility. An
examination of his testimony creates a very detailed description of
what took place. In view of Saitta’s accusations concerning Stanley
and McGuire, in view of his prior confrontations with them, it
strikes me as believable that Giblin, the president of the Inter-
national, and a man recovering from surgery would be short tem-
pered with him. It strikes me as unbelievable that a young man 21
years old and slight of build would come down to Local 68’s office
and in the presence of union officers including the International
president, all of whom are big husky men, act in a manner as de-
scribed by Giblin and McGuire. He would be too intimidated. As set
forth above, I conclude Saitta lacked both the imagination and inven-
tiveness to fabricate such logical and descriptive testimony.
was bypassing McGuire and not following the proper chain
of command and internal complaint procedures. McGuire tes-
tified when he met Saitta with Stanley he calmly explained
to Saitta why his seniority did not allow him the day-shift
preference and then questioned why he would accuse Stanley
of ‘‘sleeping with management.’’ At this point according to
McGuires Saitta began screaming and carrying on and in re-
sponse to this told Saitta to be at the union office the fol-
lowing day and he would schedule a meeting with the ‘‘top
guy.’’2
The following morning, September 14, Saitta reported to
the Local 68 union hall. He was ushered into an office.
Present were Vincent Giblin, president of the International,
McGuire, and Stanley. Saitta credibly testified that McGuire
told him he was ‘‘at the top’’ now and introduced him to
Vincent Giblin. Giblin told him to sit down, that if he lost
his temper he would be ‘‘carried out of the union hall.’’
Giblin, McGuire, and Stanley are big men, over 6 feet tall,
and husky. Giblin had lost some weight as the result of re-
cent surgery. Saitta is about 5 feet 9 inches and about 150
pounds. Giblin handed Saitta the union bylaws and directed
him to read a specified paragraph in the bylaws. Saitta read
the paragraph. Giblin asked him what the paragraph meant
to him. Saitta replied that it meant he Vincent Giblin had
total power in the Union. Giblin rose from the chair where
he had been seated and screamed in Saitta’s face: ‘‘that’s
right, I have all the goddamned power in this Union, you
threatened to go to the International, I am the goddamned
International. Tommy [Thomas Giblin] works for me. He’s
the business manager and he wants you out of here. I want
you out of here. I want your card. You’re out of a job.’’
Saitta was shaken but asked Vincent Giblin if he could
talk to Thomas Giblin. Vincent said okay and took Saitta to
an adjoining office, picked up the phone, and then slammed
it down and said: ‘‘You don’t deserve to talk to Tommy, I
want your card. Just give it to me now, you’re out of here.
You don’t have a job.’’
Saitta gave Giblin his union card and Giblin told him to
get out of his office. Saitta left.
Giblin and McGuire incredibly testified that when Giblin
calmly attempted to explain the Union’s chain of command
and internal complaint procedures Saitta exploded ‘‘to hell
with this’’ and vehemently renewed his accusations that
Stanley and McGuire were ‘‘sleeping with management.’’
Giblin testified that in response he calmly told Saitta that if
he did not like the way the Union was run he could turn in
his book, whereupon Saitta exploded again and told him ‘‘to
take the book and shove it up [his] ass, I’m leaving,’’ that
he wanted ‘‘no part of the union, no part of the job.’’3
A few minutes after Saitta left the meeting, McGuire
called Ogden’s area manager, Al Teixuro. Teixuro was not
in. McGuire left a message with Teixuro’s secretary, Janice
Reber, that Saitta would not be going to work or was not
going to be working there anymore. When questioned as why
McGuire would call Teixuro’s office and leave such message
he responded, ‘‘I just did it. I don’t know why. I mean I
can’t answer your question.’’
Reber conveyed to both Teixuro and Michot, the foreman
in charge of Saitta’s shift, McGuire’s message that Saitta
would no longer be working at Ogden. Michot testified that
following his phone conversation with Reber, he understood
the message to mean that Saitta had been terminated.
On or about September 22 Saitta returned to the Ogden
jobsite at Navesink. He returned his uniform and badge to
Michot and told him the Union had taken his book and
pulled him from the job. Saitta then asked Michot for a letter
to present to unemployment. Michot prepared the following
letter:
To whom it may concern:
Allen Saitta was terminated at this job site on
9/14/88 by the Union. The Union pulled his member-
ship card and notified us he no longer works there. This
was not with any action of the employer. His work was
satisfactory in all aspects.
Franz P. Michot
Allied Foreman
Saitta filed a claim for unemployment with the New Jersey
Department of Labor. The investigator handling the claim re-
lied solely on information supplied to him by Saitta. The
claim was eventually processed. Ogden did not contest the
claim and Sattia was eligible for coverage.
On or about May 3, 1989, during the course of the instant
trial, Ogden agreed to a settlement wherein they would rein-
state Saitta. After reaching this agreement, Teixuro received
a telephone call from a Bell official who informed Teixuro
that he heard a rumor that there was a poll taken by Local
68, polling whether employees would strike if Saitta was re-
instated. The Bell official told Teixuro he didn’t want prob-
lems and Ogden better not put Saitta back to work. Local 68
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As set forth above, during the course of this trial Ogden had of-
fered Saitta reinstatement. Such offer was withdrawn when Local 68
through Shop Steward Stanley conducted a poll among unit employ-
ees indicating the employees would walk out if Saitta was reinstated
and Bell management became aware of such poll. Ogden was in-
formed by Bell that in order to keep labor peace Ogden had better
nor reemploy Saitta. Such action by Local 68, though not alleged as
a violation of Sec. 8(b)(1)(A) and (2) establishes the extent of Local
68’s labor control on the job. Laborers Local 341 v. NLRB, 564 F.2d
834 (9th Cir. 1977), enfg. 223 NLRB 917 (1976).
Steward Stanley confirmed to Michot that he was conducting
such poll. As a result Ogden withdrew its offer of reinstate-
ment. Local 68 Business Representative McQuire denied
knowledge of such a poll.
Analysis and Conclusions
The facts of this case establish that on September 13
McGuire threatened Saitta with the loss of his job if he con-
tinued with his accusations that Shop Steward Stanley was
‘‘sleeping with management.’’ The facts further establish that
during the meeting at Local 68’s office, Vincent Giblin,
International Union president, took away Saitta’s Local 68
book and told him his employment at Ogden was over, he
was ‘‘out of a job.’’ Given the circumstances of Giblin’s
statements to Saitta and Saitta’s familiarity with Local 68’s
relationship with Ogden and Bell, there is no doubt in my
mind that Saitta knew his employment at Ogden was over.4
The facts further establish that immediately following
Giblin’s effective termination of Saitta, McGuire contacted
Ogden and informed it through the area manager’s secretary
who subsequently informed Area Manager Teixuro that
Saitta would not be working at Ogden anymore.
There is no evidence that Saitta quit his job. Rather the
evidence establishes that Saitta did not return to work be-
cause he knew that Local 68 through International President
Giblin had effectively terminated his employment.
The Supreme Court has held that union inducement of an
employer to discharge a union member for reasons other than
failure to pay union dues or fees authorized by a union-shop
provision violates Section 8(b)(2). Radio Officers Union v.
NLRB, 347 U.S. 17 (1954). In Eldorado Mfg. Corp., 249
NLRB 646 (1980), the Board held that a union’s conduct in
causing the discharge of employees was unlawful when the
union’s demand that such employees be discharged was mo-
tivated by the employee’s accusations that the union shop
steward failed to perform his duties properly.
Accordingly, I conclude Local 68 by its officers caused
the termination of Saitta’s employment at Ogden because of
his accusations against Shop Steward Stanley and that such
conduct was violative of Section 8(b)(1)(A) and (2).
As set forth above, McGuire called Ogden Area Manager
Teixuro and notified Teixuro’s secretary that Saitta would
not be working at Ogden anymore. Teixuro’s secretary noti-
fied Teixuro and Michot, the working foreman-in-charge of
Saitta’s shift. McGuire’s statement concerning Saitta’s status
is on its face ambiguous. It could mean Saitta was quitting.
It could mean Saitta, for unknown reasons, was unable to
work. It could mean anything. In the face of such statement
Ogden took no action. It did not list Saitta as a ‘‘quit.’’ It
did not terminate his employment. Neither Teixuro or any
other Ogden official contacted Local 68 to obtain clarifica-
tion of McGuire’s message, nor did they initiate any inde-
pendent investigation. There is absolutely no evidence that
Ogden was aware of Saitta’s accusations concerning Shop
Steward Stanley or the events that took place on September
14 at Local 68’s office between Saitta, Giblin, McGuire, and
Stanley. Local 68 officials did not at any time amplify
McGuire’s statement concerning Saitta’s status.
Although Saitta returned to Ogden a week later to turn in
his uniform and badge and request from Michot the letter of
termination which Michot executed, there is no evidence
Michot notified Ogden representatives of the contents of the
letter or supplied them with a copy of the letter. It is clear
that Michot is not a supervisor within the meaning of Section
2(11) of the Act. He possesses none of the supervisory cri-
teria set forth in Section 2(11). He is a unit employee work-
ing in the unit classification of working foreman, and his
terms and conditions of employment are controlled by the
collective-bargaining agreement between Local 68 and
Ogden. Bay Area-Los Angeles Express, 275 NLRB 1063,
1080 (1985). The fact that Michot was the employee ‘‘in-
charge’’ of the shift is not sufficient to confer on him super-
visory status, absent any statutory supervisory indicia. Bay
Area-Los Angeles Express, supra. At best Michot is a limited
company agent, a ‘‘conduit’’ between Ogden and the day
shift consisting of 10 employees. In the absence of any evi-
dence that Ogden was aware of Michot’s letter and given
Michot’s limited responsibilities as an agent is not reasonable
to conclude that on the basis of Michot’s letter Ogden had
terminated Saitta.
Although Ogden became aware of Saitta’s claim that he
was terminated through his claim with the New Jersey De-
partment of Labor, Division of Unemployment Insurance,
Ogden simply did not contest the finding by the New Jersey
Unemployment Insurance Division that Saitta was dis-
charged. This in my opinion is insufficient to conclude that
Ogden had knowledge of Saitta’s effective termination by
Local 68 or that it subsequently ratified Local 68’s unlawful
action.
The Board has long held that an employer does not violate
the Act notwithstanding that a request by a union for dis-
charge was improper, unless it can be established that the
employer had reasonable cause to believe that the request for
discharge was based on reasons other than the failure of the
employee to pay the dues and fees required as a condition
of employment. R. H. Macy Co., 266 NLRB 858, 868
(1983).
Similarly, the Board recently held in cases involving a hir-
ing hall agreement between a union and employer that it will
no longer impose strict liability on employers when a union
unlawfully refuses to refer etc., based on a presumed exist-
ence of a principal-agent relationship between an employer
and union. The Board instead held it would not impose li-
ability on an employer in cases where an employer does not
have actual notice, or may not reasonably be charged with
notice of a union’s discriminatory operation of a referral sys-
tem. Wolf Trap Foundation for the Performing Arts, 287
NLRB 1040 (1988).
It seems clear that an employer’s liability in cases where
a union demands a discharge or engages in discriminatory
conduct affecting the terms and conditions of an employee’s
employment is predicated on establishing that the employer
had knowledge or should reasonably be charged with knowl-
edge. As set forth aboves I have concluded that Ogden had
549OGDEN ALLIED MAINTENANCE CORP.
5 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
7 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
National 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.’’
no actual knowledge, nor do I find that they could reason-
ably be charged with knowledge. Accordingly, I conclude
Ogden did not violate Section 8(a)(1) and (3) of the Act as
alleged.
Counsel for Local 68 contends he was denied due process
in that he requested a postponement of this case which had
been scheduled for resumption on October 5, 1989, and such
motion for postponement was unfairly or improperly denied
and such denial prevented Local 68 counsel from being
present to represent its client on October 5, the last day of
this trial. I have considered counsel for Local 68’s contention
and for the reasons set forth in detail on pages 297 through
304 of the trial transcript of this case on October 5, 1989,
together with Judges Exhibits 1 through 7 and in my Order
dated October 1, 1989. I find no merit in counsel’s conten-
tion.
CONCLUSIONS OF LAW
1. Ogden is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 68 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Local 68 violated Section 8(b)(1)(A) and (2) of the Act
by unlawfully effecting the discharge of Allen Saitta, an em-
ployee from Ogden.
4. Ogden did not violate the Act as alleged.
THE REMEDY
Having found that by engaging in the above-described
conduct Local 68 has violated Section 8(b)(1)(A) and (2) of
the Act, I shall recommend it cease and desist therefrom and
to take certain affirmative actions in order to effectuate the
policies of the Act.
It is recommended the Union shall be ordered to make
Allen Saitta whole for any loss of pay he may have suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount he would nor-
mally have earned as wages from the date of his effective
termination on September 14, 1989, to the date of his rein-
statement. The loss of earnings shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), together with interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).5
The Union shall also be ordered to expunge from its files
any reference to Saitta’s unlawful termination and shall be
required to notify Saittas in writing, of its actions as well as
inform him that his unlawful termination shall not be used
as a basis for future action against him. Furthermore, the
Union shall be required to ask the Employer, Ogden Allied
Eastern States Maintenance Corporation, to remove from its
files any reference to Saitta’s unlawful termination and shall
notify Saitta that it has asked his employer to do so. Sterling
Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, International Union of Operating Engi-
neers, Local 68, AFL–CIO, West Caldwell, New Jersey, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Ogden Allied Eastern
States Maintenance Corporation to terminate or otherwise
discriminate against Allen Saitta or any other employee for
reasons other than the failure of such employees to pay peri-
odic dues and initiation fees required as a condition of ac-
quiring or retaining membership in Local 68.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Allen Saitta whole for any loss of pay he may
have suffered as a result of the discrimination against him in
the manner set forth in the remedy section of this decision.
(b) Expunge from its records any reference to his unlawful
termination and notify him in writing that this has been done
and that evidence of his unlawful termination shall not be
used as a basis for any future action against him.
(c) Post at its business office, copies of the attached notice
marked ‘‘Appendix.’’7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 22, after being
signed by Respondent Local 68’s representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(d) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 22, for posting by
the Employer at its place of business, in New Jersey, in
places where notices to employees are customarily posted, if
the Employer is willing to do so, and ask the Employer to
remove any reference to Saitta’s unlawful termination from
the Employer’s files and notify Saitta that it has asked the
Employer to do this.
(e) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint in Case 22–
CA–16092 be dismissed in its entirety.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If I struck the testimony from the record, I was in error. Such
testimony would of course be admissible to establish that based on
Belcor Manager Ariens’ statement, Respondent took certain action.
2 Michot testified on February 27, 1991. His testimony was con-
sistent with his credited testimony on October 5, 1990.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT cause or attempt to cause Ogden Allied
Eastern States Maintenance Corporation to terminate or to
otherwise discriminate against Allen Saitta, or any other em-
ployee, for reasons other than an employee’s failure to pay
periodic dues and initiation fees required as a condition of
acquiring or retaining membership in International Union of
Operating Engineers, Local 68, AFL–CIO.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization as a condition of employment.
WE WILL make Allen Saitta whole for any loss of pay suf-
fered by reason of our discrimination against him, with inter-
est.
WE WILL expunge from our files any reference to the ter-
mination of Allen Saitta and notify him in writing that this
has been done and that evidence of this unlawful discharge
will not be used as a basis for future action against him, and
WE WILL ask the Employer to remove any reference to
Saitta’s unlawful termination from its files and will notify
Saitta that we have asked the Employer to do this.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 68, AFL–CIO
William Grant, Esq., for the General Counsel.
Joseph R. Fitzpatrick, Esq., for Respondent Ogden.
Albert G. Kroll, Esq., for Respondent Union.
SUPPLEMENTAL DECISION
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me pursuant to a remand by the Board dated
October 30, 1990, which vacated my decision which issued
on March 14, 1990. The remand stated as follows:
It is ordered the Administrative Law Judge’s Decision
is vacated. It is further ordered that Administrative Law
Judge Howard Edelman rehear de novo that portion of
the Hearing initially reopened on October 5, 1989.
Pursuant to the Board’s remand the hearing was reopened
on February 27, 1991. Representatives for all parties were
present, given the opportunity to call witnesses and make ob-
jections, and filed posthearing briefs.
Pursuant to a stipulation executed by all parties the parties
agreed that:
Pursuant to the Board Order of October 30, 1990, ordering
the administrative law judge to rehear de novo that portion
of the case initially heard on October 5, 1989, and in accord-
ance with the Order, the parties, by and through their respec-
tive counsel, stipulate that the record from the October 5,
1989 hearing shall constitute the entire record of the rehear-
ing, subject to: (1) objections by Respondent Union’s counsel
to questions to witnesses who testified at the October 5, 1989
hearing; (2) cross-examination by Respondent Union of the
witnesses who testified at the October 5, 1989 hearing and
redirect of the witnesses by Respondent Company, (3) sub-
mission of evidence by Respondent Union in rebuttal to the
witnesses’ direct testimony, and (4) response to rebuttal evi-
dence submitted by Respondent Union.
Pursuant to the remand, counsel for Respondent Union ob-
jected on the grounds of heresay, to the following questions
put to Al Teixuro, area manager of Respondent Employer, by
counsel for the General Counsel. These questions occurred in
connection with a conversation Teixuro had with Hank
Ariens, a supervisor of Belcor, the corporation which em-
ploys Respondent Employer as its maintenance contractor,
concerning Respondent Employer’s decision to reinstate
Saitta:
Question: And isn’t it true that the union said, ‘‘Did
it come to your attention that the union took the posi-
tion, that if the company did so, they would engage in
a strike?’’
Question: They did? Answer: They did. I was told
that by the Belcor manager, who told me on an emer-
gency call that he had heard a rumor that there is a poll
taken by Local 68 to the fact that if Allen [Saitta] went
back to work, they’d ask the workers to walk off the
job.
A review of the entire record and my March 14, 1990 de-
cision establish that such objected to testimony relates only
to footnote 4 of my decision.
I sustained counsel for Respondent Union’s objection that
such testimony was heresay, if taken to establish that Re-
spondent Union did threaten a walkout by its members work-
ing for Respondent Employer if Respondent reinstated Saitta.
Of course such testimony would be admissible to establish
that based on such rumor, Ariens, a Belcore representative,
told Teixuro not to reinstate Saitta because Belcore did not
want a disruption of services’ which a walkout of Respond-
ent Employer’s employees would cause.1
The credible testimony of Michot, an employee of Re-
spondent Employer and a member of Respondent Union es-
tablished that Respondent Union Shop Steward Stanley had
told Michot that he was taking a poll of Respondent Employ-
er’s employees to see if the employees would walk out if
Saitta was reinstated.2
Accordingly, I conclude that, notwithstanding counsel for
the Union’s objections, described above, and my sustaining
such objections, the facts and conclusions set forth in foot-
note 4 of my March 14, 1990 decision are consistent with
the testimony of witnesses Teixuro and Michot on October
5, 1990, and on February 27, 1991. Accordingly, such find-
ings and conclusions are affirmed.
551OGDEN ALLIED MAINTENANCE CORP.
Moreover, it is clear that my ultimate findings and conclu-
sions set forth in my March 14, 1990 decision were not in
any way dependent on footnote 4 of that decision.
Accordingly, based on a full reconsideration of the entire
record in this case, including the posttrial briefs, I reaffirm
the findings of fact, conclusions of law, and recommended
Order as set forth in my March 14, 1990 decision.