Operating Engineers Local 841Download PDFNational Labor Relations Board - Board DecisionsMay 2, 1973203 N.L.R.B. 429 (N.L.R.B. 1973) Copy Citation OPERATING ENGINEERS LOCAL 841 429 Local Union No. 841 , International Union of Operat- ing Engineers, AFL-CIO (M. L. Arnold Steel Com- pany) and Herrick Wright. Case 25-CB- 1520 May 2, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 18, 1972, Administrative Law Judge George Turitz issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision and an answering brief to the Respondent's exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order .2 ORDER Union of Operating Engineers, AFL-CIO (Respondent), and upon M. L. Arnold Steel Erection (Arnold), a propri- etorship owned by Morris Arnold,' the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 25, on August 31, 1972, issued a complaint and notice of hearing which was duly served upon Respondent and Arnold. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the complaint was held before me on October 12 and 13, 1972, at Terre Haute, Indiana, at which the General Counsel and Respondent were repre- sented by their respective counsel. Respondent and the General Counsel have submitted briefs. Upon the entire record 2 and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Morris Arnold is an individual proprietor doing business under the trade name and style of M. L. Arnold Steel Erec- tion and having his principal office and place of business at Winslow, Indiana. Arnold is engaged as a construction con- tractor in steel erection and related services at various job- sites within the States of Indiana and Kentucky. In the course and conduct of his business operations Arnold annu- ally performs construction services valued at in excess of $50,000 in States of the United States other than the State of Indiana. I find that Arnold is an employer engaged pri- marily in the construction industry and engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Local 841, International Union of Operat- ing Engineers , AFL-CIO, Terre Haute , Indiana, its officers , agents , and representatives , shall take the ac- tion set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent has requested oral argument . This request is hereby denied as the record , the exceptions , and the briefs adequately present the issues and the positions of the parties DECISION STATEMENT OF THE CASE GEORGE TURITZ, Administrative Law Judge: Upon a charge filed by Herrick Wright on July 24, 1972, and served on July 25, 1972, upon Local Union No. 841, International It. THE LABOR ORGANIZATIONS INVOLVED Local Union No. 841, International Union of Operating Engineers , AFL-CIO, and Local Union No. 439, Interna- tional Association of Bridge , Structural and Ornamental Iron Workers , AFL-CIO (the Iron Workers), are each a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction This proceeding arises out of events which occurred in the course of the construction of the amphitheater of the civic center in Terre Haute. The prime contractor was Hickey Construction Company (Hickey), whose subcontractor, Elkhart Bridge and Iron Company, further subcontracted to Arnold the erection of structural steel and the setting of precast concrete. On May 30, 1972,3 at the start of opera- On my own motion I have amended the caption to include the Employer's name and to show Respondent's name correctly. 2 The General Counsel has moved to correct the record in certain respects. The motion is hereby granted . The corrections have been made and the motion, marked Exh. 5, has been placed in the exhibit file 3 Unless otherwise stated, all dates mentioned in this Decision were in 1972 203 NLRB No. 72 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions , Arnold installed Wright, the Charging Party, as fore- man of its erecting, or raising, gang . On July 19, immedi- ately after a meeting participated in by representatives of Arnold, Hickey, the Iron Workers, and Respondent, Arnold removed Wright from the project. The principal issues liti- gated at the hearing were: (a) Whether Wright was a super- visor; (b) whether Respondent, by strike or by threat of strike or of other action, coerced Arnold into removing Wright; and (c) whether , assuming the affirmative of the first two issues , Wright's reputation and his conduct on July 18 showed him to be so hot-tempered and prone to violence as to make it reasonably appear to Respondent that his presence on the job was a threat to the employees' safety thus justifying its actions. B. Wright's Status and Capacity The erecting or raising gang normally consisted of a crane operator and an oiler, both members of Respondent, two groundmen or hookers, and two top men or connectors, all four members of the Iron Workers, and Wright, who also was a member of the Iron Workers and was covered by its contract. This was a minimum complement; at times men were added to the gang. Hourly rates of pay were as follows: operator $7.72; oiler $6.88; groundmen and connectors $8.20; and Wright $8.95, which was 25 cents more than the foreman's rate called for by the contract ° Wright was the only member of the gang who was guaranteed 40 hours per week, irrespective of weather. So far as appears from the record the only other Arnold employees on the job were the members of the detail gang, the foreman of which was Mc- Candless. At the start of the job Arnold's general superintendent 5 advised Wright on which quadrant of the building erection was to commence. Wright directed his crew in unloading the steel and kept track of exactly which pieces arrived. When he was satisfied that the necessary steel members were on hand to start erection, he so informed the job superinten- dent and erection commenced. Thereafter the job superin- tendent told Wright from time to time which quadrant to proceed to next, and Wright gave the necessary instructions to his crew. He directed the crane operator and the oiler where to place the crane, told the groundmen, on the basis of the blueprints, which members he wanted and in what order, and he told the connectors where they were to work. Usually he acted as signalman for the operator but he could on occasion have another ironworker perform that function. Wright was responsible also for enforcing safety regulations on the job. The job superintendent visited the erection gang periodically through the day, but he gave Wright few in- structions other than what quadrant to work on next or, occasionally, to have something set in a different area from where Wright was working. His instructions, when given, took not more than 5 minutes, and on many days there was no occasion to give Wright any instructions. Apart from 4 The above rates were testified to by Arnold's job superintendent. The Iron Workers contract in evidence shows $860 and $9.10 as the respective journeymen and foreman rates effective May 1, 1972. S The general superintendent was Carl Deen . The job superintendent for the amphitheater was Tom Deen these instructions from the job superintendent Wright made the decisions as to how the steel was to go up in accordance with the blueprints . Asked on cross-examination whether the foremen were not merely "minor league bosses," the job superintendent testified , "I don't know what you mean by minor league . For a man to put up steel you can 't just take anybody and put them in as a foreman in a raising gang." At another point he said , "it takes years of experience." I credit this testimony . I find that Wright's duties in directing the raising gang required the exercise of independent judg- ment. Ironworkers were hired through the Iron Workers hiring hall. However , when a foreman recommended that a certain ironworker be hired , the job superintendent , without inves- tigation , put the man to work on trial , provided that that could be worked out with the Iron Workers business agent. The amphitheatre job superintendent hired Bohlen, a con- nector or top man , solely on the basis of Wright's recom- mendation ; and he told Wright he was ready to try another man recommended by Wright if he could be cleared with the business agent . Two other men recommended by Wright - Shake and Beard - were hired , but the record does not show specifically whether it was on the basis of Wright's recommendation . The job superintendent expected Wright to replace a top man who was unqualified . In one instance, noticing that a connector seemed scared , he asked Wright what he thought . Wright recommended laying the man off, and that was done . If the superintendent disagreed with Wright 's recommendation that a man be laid off, he would not terminate the man but would assign him to another gang. Wright maintained discipline over the raising gang. While he was not part of the "management grievance team," he was expected to work out disagreements among the men, and he had authority to work out with the union steward complaints as to working conditions such as the use of unsafe materials or procedures , lack of a full crew as re- quired by the contract , or improper work assignments. I find that such complaints were grievances within the mean- ing of Sections 2(11) and 8 (b)(1)(B) of the Act . Cf. Toledo Locals Nos . 15-P and 272 of the Lithographers and Photoen- gravers International Union , AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB 1072, 1078; enfd . 437 F.2d 55 (C.A. 6, 1971). I find that Wright responsibly directed employees, that his recommendations as the hire and discharge of employ- ees carried weight and were effective , and that he had au- thority to adjust employees' grievances. I further find that Wright was a supervisor. C. Wright 's Reputation On the basis of the uncontradicted testimony of numer- ous fellow employees in both unions and of the business agents of both unions, I find that Wright had a reputation among construction workers for having an uncontrollable temper and a propensity towards violence. OPERATING ENGINEERS LOCAL 841 431 D. Wright's Encounter with Merrill Getche The amphitheatre jobsite was surrounded by a fence bearing a number of "no trespassing" signs and having a gate on the south side. Near the gate was a sign bearing the legend, "Hard Hat Area - Do Not Enter," and persons were not allowed to enter the site unless wearing a hard hat. On July 18 in the middle of the morning Merrill Getche, the son of Wright's crane operator, Joe Getche, walked through the gate and to the crane, which was located 100 to 125 feet from the gate. Joe Getche had just set down a piece of steel and the crane was idling. Merrill, a youth of 20, 6 feet tall and of husky build, was bareheaded. He had come to chat with his father and because of the noise of the crane's en- gine, he climbed up on a small step on the crane, holding on to the door rail. Wright was on the other side of the crane, some 30 to 35 feet away, working on the blueprints he had laid atop a wooden reel turned on its side, which he used as a desk. He came round to give orders to his ground- men and saw Merrill, whom he did not know, hanging on to the side of the crane . Using obscenities, he sharply or- dered Merrill off, and when Merrill remained there, spoke more sharply, adding that the operator could get down off the crane and discuss any business he had with him. Merrill got down and started walking towards the gate. Wright, concerned about marking his blueprints accurately,6 re- turned to his makeshift desk. Merrill, as he walked towards the gate, felt more and more "burned up" at the way Wright had spoken to him. He turned round, approached Wright, who was kneeling at the wooden reel, and said, "Old man, if you've got anything else to say to me you had better say it nice or I'm going to knock your god damn head off." Wright, who weighed 190 pounds, had been something of a semiprofessional wrestler 30 years before. He was now 55 years of age, and as a result of an accident was crippled to the extent of 40 to 50 percent disability in both arms and could not work as a journeyman. He stood up, saying that he would talk any way he liked and that he was enforcing safety rules. Merrill invited Wright out into the street and started towards the gate again, with Wright following about 15 feet behind. Wright testified, and I credit him, that he went along to make sure that this time Merrill left. Several times Merrill stopped and turned to Wright, who then also stopped, and the two exchanged epithets. At some time during the walk to the gate Wright opened the knife he habitually used in his work and re- placed it in his pocket. He did this surreptitiously and Mer- rill was completely unaware of what he had done. Merrill taunted Wright, saying, "Old man, you're getting brave now," and again inviting Wright into the street. Wright admitted that by now he was "peeved," explaining that seven men were in his gang and he was trying to do the 6 The job at hand , assembling trusses and then erecting them, was more difficult to keep track of than the simple erection of ready members 7 Merrill , corroborated by his father and a number of other employees, testified that he apologized to Wright on this occasion. I found all this testimony unconvincing and have given it no credit While I have not accept- ed Wright's testimony that he used no obscene language at the crane , I found his testimony as to Merrill's so-called "apology" convincing and have cred- ited it. Employer's work, but Merrill had disrupted the job.. Merrill stepped outside the gate and turned round. Wright stopped inside and cursed Merrill some more. Mer- rill responded, "Old man, you are too old to mess with. I'm leaving," and started towards his motorcycle. Wright called him an insulting name and Merrill turned back quickly, his fists raised,8 saying, "Old man, you take one more step I'm going to knock your god damn head off." Wright, fearing that Merrill might come back in and attack him and that he could not defend himself from further injury because of his disabled condition, drew his knife and held it behind his back. He did not brandish the knife or hold it out towards Merrill, but the latter got a brief glimpse of it 9 Meanwhile, Joe Getche had left the crane and had come over to where the two men were faced off. He kicked the knife out of Wright's hand and when the latter reached for it on the ground, kicked it again, but Wright, after a shoving match with Getche, finally retrieved it and put it back into his pocket. Tom Deen, the job superintendent, came over to put a stop to what he thought was horseplay and was met by Merrill, who told Deen who he was and said, "Mr. Deen, I'm sorry I caused this trouble." Deen told him that if he had come to the office and got a hard hat, he would have taken him to the crane to speak to his father and there would have been no trouble. Tom Deen asked Wright and Getche, in turn, to tell him what had happened. Wright said that Merrill, without say- ing anything to anyone, had got on the crane, that since he had been instructed that no one be on the crane during operations, he asked him to leave; that Merrill thereupon "got smart with him" and invited him out to the gate, and that he drew the knife because he was crippled and "wasn't going to let the boy beat on him." 1° Getche's report placed a different coloration on the incident but Tom Deen, while agreeing that if he had been in Getche's place he "wouldn't let any man cut [his] son," told Getche that he could not have any trouble on the job and that at the time he felt that if anybody had to leave it would have to be Getche. Wright told Tom Deen that he wanted to quit. Deen tried to get him to cool down and return to work. He finally enlisted the aid of Carl, Deen, the general superintendent, who had hired Wright. Wright asked Carl Deen to be sent to another job. Carl Deen said, "Well, we need you here," and Wright consented to go back to work. Asked by Tom Deen if he wanted to get rid of Getche, Wright said, "abso- lutely not." He went back to his crew and the job proceeded normally the rest of the day except that Wright delegated to one of his connectors the task of signaling Getche. He told the connector, "Getche probably don't want to work with me." S I do not credit the testimony of Merrill, Hudley, Moore, and other employees to the effect that Merrill raised his hand with the palms towards Wright. 9 Merrill testified that he got a brief glimpse. I do not credit Dudley and Moore, who testified that Wright held the knife out towards Merrill. 10 In his testimony about Wright's report Tom Deen did not mention the knife However, Wright's statement that he was crippled would seem to have had relevance only to the knife. Nevertheless, Deen testified that as of the meeting of the next day, described below, he still did not know that Wright had drawn a knife . I find that he did know, although he did not know the circumstances 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Alleged Strike or Stoppage On July 19 and for some time prior thereto three opera- tors, in addition to oilers, were employed on the amphithea- tre project. They were Joe Getche and Scully, who were employed by Arnold, and Wilkinson, who was employed by Hickey. On July 19 the three arrived at the jobsite before the 8 o'clock starting time and met across the street from the jobsite with Pirtle and Rambus , two business agents of Re- spondent. They remained there after 8 o'clock. Meanwhile Wright had been engaged since about 7:15 directing a truck with an exceptionally difficult load of steel onto the jobsite. The truck became stuck in sand, and Wright was trying to get it extricated. Lindley, the Iron Workers steward , and possibly other ironworkers were as- sisting Wright. The three operators and the two business agents came over . Pirtle challenged Wright to get his knife out. Wright replied that the only reason he had done that was to try to defend himself ; and Rambus told him to go push his head in the mud . Getche placed himself against Wright and pushed until he forced Wright backwards. Deen came over and ordered Scully to bring his crane up from the basement to unload the steel from the immobilized truck. Getche and Scully said that they would not work with Wright. Deen asked that business agents to get the operators to unload the steel, which was projecting into the street and impeding traffic. Pirtle replied that the operators would not work as long as Wright was running the gang . Deen asked if they would unload the steel if he replaced Wright with someone else, and the business agents said that they would. Deen sent Wright to the office and placed McCandless, the detail foreman , over the raising gang . Scully thereupon pro- ceeded to operate his crane and remove the steel. F. Wright's Removal On the afternoon of July 18 the Iron Workers' and Respondent's stewards informed their respective business agents that Wright had drawn a knife." A meeting with Arnold and Hickey was arranged for the next morning at 8 o'clock at the Hickey office near the jobsite. The record does not show who was responsible for the calling of the meeting. On the basis of the denials by the various manage- ment representatives present and the fact that on the af- ternoon of July 18, when the meeting was arranged, the job was proceeding normally, I find that neither Hickey nor Arnold called the meeting. The meeting got under way shortly after 9 o'clock. The participants, Tom Deen and Hickey's field superintendent, Rocky Mroczkiewicz, arrived later. Rambus opened the meeting saying: Since I'm over here for the job for the Operating Engi- neers, I would like to open up the meeting. We have a good job and everything. We have a problem here. At the end we would like to have it settled so we have a smooth job going. There was discussion , and Wright 's "pulling" a knife was frequently referred to. All the union representatives said that Wright should be taken off the job. Hickey's two repre- sentatives , Kale and Rocky, both testified that they made no recommendation at the meeting, and I have credited their testimony. However, they expressed no objection to his removal, and Kale had previously recommended to Tom Deen that Wright be fired if the incident, as reported, was true. Tom Deen, who had been occupied, as already described, with getting an operator to unload the steel from the immo- bilized truck, arrived last. Pirtle, Respondent's other busi- ness agent , asked him what he was going to do. When Deen answered that he would do nothing, Pirtle said, "Then you want the monkey on our back?" Deen replied, " If it's going to be on anybody's back it's going to be on yours," whereup- on Pirtle retorted, "Consider it being there." Deen assumed that Pirtle's "monkey" remarks meant that all work would stop if he did not remove Wright. For this reason , without investigating the incident carefully, he agreed that Wright would be removed and the meeting im- mediately broke up. Deen testified that he would have re- moved Wright on his own initiative if he knew for a fact that he had drawn a knife; but he said that if it turned out to be self-defense , what he would have done would have depend- ed on the circumstances.12 Deen left the meeting and proceeded immediately to the Arnold trailer, where he told Wright that the Employer could not use him since the operators would not work with him. Wright offered to stay on for a few days in order to familiarize his successor with how he had the steel laid out, but Deen said that that was apt to cause more trouble with the operators and that Wright should get off the job. He said that Wright would hear from his shortly. In about late September Arnold employed Wright as foreman of a yard gang in a different area , Mount Vernon. Wright told the job superintendent there that he would take the job only for a few days since he had a job coming up with a company known as Ben Hur. The Mount Vernon job was behind schedule, and Wright started his work several times half an hour to an hour before his pay started to run, notwithstanding requests by a union business agent that he not do so. The day before the hearing in the present case the Mount Vernon job "blew up"; Wright quit, telling the job superintendent that he was taking the Ben Hurjob. Respon- dent, who injected the subject of the circumstances of Wright's termination from the Mount Vernon job into the case , explained its relevance as follows: We are showing a pattern of activity on the part of Wright exhibiting not only an indifference to safety of people on the job but an indifference to union rules and inability to get along on any job. And when . . . the court hears all of these witnesses, the court I think will find that is a fact, that he just doesn't get along on any job, this job, that job, any job. At another point Respondent stated: And I say that an individual who will use the language that Herr ick Wright used to that boy no matter what the boy did short of a physical assault on him in the presence of his father and use that language is not fit 12 In fact , as found above, Deen had already heard from Wright's own lips 11 Rambus testified that he received a message from the steward to the that he had drawn the knife What he did not know was whether Wright had effect that Wright was "running wild out there trying to cut people " had justification acceptable to him or his superiors OPERATING ENGINEERS LOCAL 841 433 to be a foreman. G. Concluding Findings 1. Causing Wright 's removal Respondent contends that there was no work stoppage and that it did not cause Wright 's removal . "Rocky" Mroczkiewicz , Hickey's director of field operations , testi- fied : "The subject matter of the meeting was to get the job going again which to us had been described as at a stand- still." Respondent attempted to demonstrate that on the morning of July 19 the oilers , members of Respondent, were on their cranes warming up the engines . Assuming this to have been the case , there is no doubt that at starting time all three crane operators were not on fheir cranes but were on the street Moreover , at least Scully , and probably Getche , refused to comply with Tom Deen's order to get a crane over and to move the steel from the immobilized truck, where it was impeding traffic . As the work to be done on the project , the erection of steel had to be performed by crane operators , it is plain that Mroczkiewicz ' information that the job was at a standstill was correct . It is also plain that the standstill resulted from the three operators ' refusal to work. Rambus and Pirtle expressed no disapproval of the oper- ators' conduct . In fact, their refusal of Deen's request that they direct the men to work , their acting as the men's spokesmen in speaking to Deen , and Rambus ' telling Wright to get his knife out and to push his head into the mud all go to show that they were expressing full approval. As- suming, therefore , that they did not initiate the men's refus- al to work , they gave it their blessing and ratification and made common cause with them in the effort to use the refusal to compel Deen to get rid of Wright. I find that Respondent, through Rambus and Pirtle , caused the three operators , both Arnold's and Hickey's, to refuse to work so long as Wright was on the job . Accordingly, when Tom Deen sent Wright to the trailer and replaced him with Mc- Candless as raising-gang foreman pending the outcome of the meeting, Respondent was coercing Arnold, successfully, in the selection of a supervisor . See Local 423, Laborers' International Union of North America, AFL-CIO (Mansfield Flooring Co., Inc.), 195 NLRB 241, 242. By his "monkey-on -our-back" remark at the meeting Pir- tle took full responsibility for bringing about Wright's im- mediate permanent removal. He and Rambus had already coerced Deen to replace Wright temporarily . The two busi- ness agents made no attempt at the meeting to indicate any change in their position. On the contrary , Rambus' refer- ence to a smooth-running job meant a job where there would be no interruptions of work , such as was then occur- ring outside . The entire meeting took place under a plainly implied coercive threat by Respondent of further stoppage. Tom Deen testified that he would have removed Wright on his own initiative if he had known for a fact that Wright had drawn a knife . However, I have found that when he refused Pirtle's demand at the meeting , he did know. What he did not know was the full circumstances ; and he testified that if Wright had drawn a knife for self-defense , what he did would have depended on the circumstances . But Re- spondent was not allowing Deen to ascertain the circum- stances . Moreover, after Arnold had had ample opportunity to investigate, if it had so wished, it employed Wright as foreman on the Mount Vernon project. Plainly Respondent wanted to continue to use Wright if it could. I therefore find that when Deen consented to Wright's removal, he did so under the coercion of Respondent's action in causing the operators to refuse to work and under the coercion of Ram- bus' and Pirtle's implied threat at the meeting that such refusal would be continued if Wright was not removed per- manently. 2. Respondent's affirmative defense Respondent contends that in any event it would have been within its rights in coercing Arnold to remove Wright because his presence on the job as foreman threatened the employees' safety. Respondent also contends that Wright exhibited an indifference to union rules and inability to get along on any job, and that he was not fit to be a foreman. Section 8(b)(1)(B) does not make every attempt by a union to coerce an employer to remove a supervisor per se and irrebuttably a violation; the Section must be read in the light of The entire Act and its basic policies. As stated by Trial Examiner Welles in Carpenters District Counsel of Sa- bine Area and Vicinity (Miner-Dederick Construction Corpo- ration), 195 NLRB 178 at 182, "Plainly there is tension between 8(b)(1)(B) on the one hand and the protected rights of employees and their representatives, and perhaps even a union's obligation to protect the employees, on the other." It is necessary in each case to appraise the facts by weighing the employees' interest in their conditions of employment and in their statutory right of self-organization against the employer's interest in his statutory right to adjust grievances and negotiate through agents of his own choosing. When a union has imposed a fine or other discipline on a supervisor who was also one of its members, the Board has found a violation only in those cases in which the reason for the discipline was an act of the supervisor in furtherance of his supervisory or managerial functions. Thus, the Board has held that a union could not fine a member who was a supervisor for performing rank-and-file work during a strike. See International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, International Brotherhood of Elec- trical Workers, AFL-CIO (Illinois Bell Telephone Company), 192 NLRB 85, enfd. as modified 81 LRRM 2257, 69 LC 13,017 (C.A.D.C., 1972). In contrast, see Local Union 453, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Syd Cough & Sons Inc.), 183 NLRB No. 24, where the Board found no violation in a union's fining a supervisor member for violating a union rule requir- ing members to register with the union before going to a job. The reason for the difference of result is that only when the union's internal discipline is directed at acts performed by the supervisor on behalf of the employer is the latter de- prived of the benefit of the supervisor's loyalty and services. On the other hand, when a union requires a supervisor's removal, the employer's right to choose and use his own agents is impinged upon irrespective of the union's reasons. Congress did not intend, for example, that a union have the right to deprive an employer of a supervisor because, as a 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union member, he opposes the current officers in a union election. To make the point obvious, it is hardly conceiva- ble, except possibly in very special circumstances, that a union would be exonerated if it coerced an employer to remove a supervisor because he was a Democrat, or an atheist, or because he drove a foreign car. To establish that Respondent deprived Arnold of all benefit of the services of the raising-gang foreman it had selected there is no need for any nice analysis as to whether the drawing of the knife should be deemed a supervisory or managerial act. Respondent's affirmative defense is based primarily upon Wright's conduct towards Merrill Getche, considered against the background of his reputation for having an un- controllable temper and a tendency to become violent." Notwithstanding Wright's reputation, widely known among the employees and Respondent 's officials , no ques- tion was raised about his being foreman during the 7 weeks he was on the job prior to July 18; and immediately after the knife incident all the employees went back to work with Wright still on the job. Significantly, at the July 19 meeting the Iron Workers business agent did not take the initiative or exert pressure to bring about Wright's removal; and that morning, while the three operators were off the jobsite refus- ing to work, Lindley, the Iron Workers shop steward, and probably other ironworkers, were working with Wright trying to extricate the immobilized truck. It was the iron- workers who had to work close to Wright on the job and who did the truly dangerous work, riding 100 feet over the ground on steel members being carried by the cranes. The fact that they did not feel so threatened by Wright's pres- ence on the job as to refuse to work with him throws doubt on Respondent's claim that its action was taken out of concern for the employees' safety. In view of these facts, and of Wright's demonstration of self-control before all the employees, discussed below, I do not credit Respondent's witnesses who testified that Respondent and the employees considered Wright's presence on the job a safety hazard.14 The significant factor in the situation was probably Getche's apparent unwillingness to work with Wright and Tom Deen's warning to him on July 18, immediately after his physical encounter with Wright, that if anyone had to go, it would be Getche. The danger to Getche's job was a much more likely reason for Respondent's pressure on Ar- nold than the false issue of employees' safety. I shall there- fore examine Respondent's action in the light of its duty to protect Getche against possible unjust treatment. The knife incident started with Merrill Getche's entry onto the jobsite to chat with his father. It seems fairly ob- vious that steel erection cannot be carried on efficiently or safely if subject to the sudden unannounced appearance of unsupervised social visitors." When Wright, whose respon- 13 Respondent offered evidence of actual violent behavior by Wright on other jobs which I excluded pending proof , which was never offered, that Resrndent knew about it at the time it coerced his removal 1 Respondent attempted to show what it termed a "pattern of activity on the part of Wright exhibiting not only an indifference to safety of people on the job but an indifference to union rules and inability to get along on any job " What Respondent proved was that on the Mount Vernon project, which was behind schedule , Wright was on the job working - without pay - well before starting time , and the union there objected I infer that Respondent held against Wnght matters other than safety sibilities included the enforcement of safety rules , not only discovered that Merrill had no business on the site 16 but also found him clinging dangerously to the side of the crane, it is understandable that he was angry. Nevertheless, when Merrill started to leave the site , Wright dropped the matter and went back to his blueprints. However, Merrill then engaged in extremely provocative conduct . When he came back to protest Wright's tone and language , he taunted him as an "old man," interrupting his concentration on the difficult task of keeping an accurate record of the truss members which were being assembled. When Wright sent him on his way again , accompanying him to make sure that he left this time , the youth stopped and turned every now and then to defy Wright , repeatedly taunting the former wrestler as an "old man," and inviting him outside . Each time Merrill stopped , Wright stopped, carefully keeping his distance . Wright's actions , including the manner in which he drew and held his knife , corroborate his testimony that he did so only to be prepared , notwith- standing his crippled condition , to defend himself if at- tacked . He was in complete control of himself and his behavior in the face of Merrill 's deliberate provocations belied his reputation for an uncontrollable temper. It cannot be gainsaid that the incident assumed the pro- portions and importance it did because Wright, in his assi- duous concern to get Merrill off the jobsite so that he could carry on Arnold 's work without interruption , took a short- cut and attended to his removal himself . Drawing the knife showed very poor judgment. 17 Although Wright had no in- tention to attack Merrill , but only to defend himself , others, especially the youth 's father , could not be expected to feel confident on that score . The result of Wright 's drawing the knife was thus the physical altercation with Getche , and the episode blew up into a situation in which Getche apparently would not work for Wright . At the same time it must be emphasized that Merrill was at fault in brashly coming on the restricted jobsite as he did , and that his taunting of Wright was provocative and cruel ; and Joe Getche himself was at fault in not having his son get a hard hat and authori- zation. The weighing of interests I have mentioned earlier as the basis for deciding some cases under Section 8(b)(1)(B) does not mean that I am to weigh the exact degree of fault as between Wright and the Getches . The matter at issue is not Wright's interest , but Arnold's interest derived from the specific statutory prohibition against coercing it in the selec- tion of personnel who would adjust grievances. This prohi- bition is not conditioned upon perfect conduct by the supervisor in question . See Local 423, Laborer's Internation- al Union of North America, AFL-CIO (Mansfield Flooring Co., Inc.), supra, where a union was found in violation of Section 8(b)(1)(B) for threatening to shut down a job unless 15 Joe Getche had no authority to invite his son in , and I infer that he was aware of this . I was unfavorably impressed by him as to credibility , and I do not credit his testimony that it was "normal procedure " for a crane operator to invite relatives in to talk , nor do I credit his and Merrill's testimony that he signaled the latter to come in 16 When he first saw Merrill , Wright assumed that he was an employee or an applicant 17 If not so concerned with avoiding delay, Wright would have waited a bit to see if Merrill would leave, and then, if he did not leave , he could have called the police OPERATING ENGINEERS LOCAL 841 the employer removed a supervisor who had performed manual work in violation of the applicable contract. See also Trial Examiner Welles ' statement in Carpenters District Council of Sabine Area and Vicinity, and Carpenters Local Union No. 610 (Ralph M. Parsons Company), 193 NLRB 423 at 424, Trial Examiner's Decision , adopted by the Board, "it is no defense that the conduct of the supervisor may have violated the contract , or been discriminatorily motivated." While the employer 's 8(b)(1)(B) right is not absolute and is not to be applied without regard for the employees' Section 7 rights , it must be recognized that Section 8(b)(1)(B) places some limitation on the employees ' right to strike . See the discussion by Trial Examiner Barker in Silver Bay Local Union No. 962, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO (Alaska Lumber & Pulp Co., Inc., 198 NLRB No. 107. Since I have ruled out concern for the employees ' safety as Respondent 's motivation , there was no immediacy in the situation such as might arguably justify a work stoppage either under Section 502 of the Act 18 or as a matter of general equity . Getche was not being discharged ; if his job was in jeopardy that resulted from his own reluctance to work with Wright ; and he and his son were far from blame- less in bringing about that circumstance . Moreover, even if Getche had been discharged , Respondent had other reme- dies available if such discharge would have been unjust. To protect Getche 's rights it did not have to impinge so severely upon Arnold's right to select its foreman free of coercion. Respondent did not even make an effort to ascertain all the facts ; and Business Agent Rambus apparently accepted without question the untruthful message that Wright was "running wild out there trying to cut people ." Respondent did not permit Arnold and Hickey to ascertain the circum- stances of Wright's knife-drawing, and as a result the meet- ing was conducted under false assumption that Wright had used the knife to threaten Merrill . Respondent assumed a dictatorial role and forced immediate compliance with its demand . Deen , as well as Hickey 's representatives, knew that until Wright was removed Respondent would keep the project at a complete halt. I find Respondent 's affirmative defense without merit. I find that Respondent violated Section 8(b)(1)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth above in section III, occurring in connection with the operations of Morris Arnold doing business as M. L. Arnold Steel Erec- tion described above in section I, have a close, intimate, and substantial relationship 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. Is Sec. 502 provides , in part , "nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." 435 The Remedy As I have found that Respondent engaged in certain un- fair labor practices, I recommend that the Board issue the Order set forth below requiring Respondent to cease and desist from those unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. As Arnold removed Wright from his position as foreman of the raising gang because it was coerced into doing so by Respondent's unfair labor practices, I recommend that Re- spondent notify Arnold and Wright in writing that it does not object to Wright's reemployment as raising-gang fore- man or in any other supervisory position, and that it will not coerce Arnold to remove him from such position. I further recommend that Respondent make Wright whole for any loss of earnings he may have suffered by reason of Respondent's unlawful conduct found by me or resulting from a failure to carry out the terms of the Order. Backpay shall be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289; and it shall include interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Morris Arnold, doing business as M. L. Arnold Steel Erection, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 841, International Union of Operat- ing Engineers, AFL-CIO, and Local Union No. 439, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, are each a labor organization within the meaning of Section 2(5) of the Act. 3. Raising-gang foremen employed by M. L. Arnold Steel Erection are supervisors within the meaning of Section 2(11) of the Act and are representatives of said employer for the purpose of the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By restraining and coercing M. L. Arnold Steel Erec- tion in the selection of a representative for the purpose of the adjustment of grievances Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:19 19 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided by Sec. 102 .48 of the Rules and Regulations , automatically become the findings, conclu- sions, decision , and Order of the Board, and all objections thereto shall be deemed waived for all purposes. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER APPENDIX Respondent , Local Union No. 841, International Union of Operating Engineers , AFL-CIO, its officers , agents, and representatives , shall: 1. Cease and desist from: (a) Causing, or threatening to cause, employees of M. L. Arnold Steel Erection to refuse to perform services with an object of requiring Arnold to remove , or refuse to employ, Herrick Wright as raising-gang foreman or in any other supervisory position. (b) In any other manner restraining or coercing Arnold in the selection of raising-gang foremen or any other repre- sentatives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative' action necessary to ef- fectuate the policies of the Act. (a) Immediately notify M. L. Arnold Steel Erection, in writing, that Respondent has no objection to the reemploy- ment of Herrick Wright as raising -gang foreman or in any other supervisory position , and that it will not restrain or coerce said employer to remove him from such position. (b) Simultaneously send to Herrick Wright a copy of the notification referred to in subparagraph (a). (c) Make Herrick Wright whole in the manner set forth in section V of this Decision entitled "The Remedy." (d) Post at its office and meeting halls copies of the at- tached notice marked "Appendix." 20 Copies of the notice, on forms provided by the Regional Director for Region 25, shall, after being signed by a representative of Respondent, be posted immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter in conspicu- ous places , including all places where notices to members are customarily posted . Reasonable steps shall be taken to ensure that said notices are not altered , defaced , or covered by any other material. (d) Furnish to the Regional Director for Region 25 signed copies of said notice for posting by M. L. Arnold Steel Erection , if willing, in places where notices to its em- ployees are customarily posted . Copies of said notice, to be furnished by the Regional Director , shall, after being signed by an official representative of Respondent , be forthwith returned to the Regional Director for distribution by him. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith. 20 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 National Labor Relations Board ," shall read, "Posted Pursuant to the Judgment of a United States Court of Appeals Enforcing an Order of the National Labor Relations Board." NOTICE To MEMBERS POSTED By ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL immediately notify M. L. Arnold Steel Er- ection and Herrick Wright that we have no objection to the reemployment of Herrick Wright as raising-gang foreman or in any other supervisory position. WE WILL make Wright whole for any loss of earnings suffered as a result of Arnold's removal of Wright as raising-gang foreman. WE WILL NOT cause any employees of Arnold to refuse to perform services in order to require Arnold to re- move or refuse to employ Herrick Wright as raising- gang foreman or in any other position. WE WILL NOT in any other manner restrain or coerce Arnold in the selection of raising-gang foremen or any other representatives for the purposes of collective bar- gaining or the adjustment of grievances. LOCAL UNION No 841, INTER- NATIONAL UNION OF OPERATION ENGINEERS , AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633- 8921. Copy with citationCopy as parenthetical citation